Published online for research and educational purposes. Copyright: MCRI, Globalization and Autonomy
The concept of autonomy is a remarkably complex one. It can be spoken of in
collective or individual and personal forms. It is an analytical concept employed
for the investigation of various forms of self-government and
In this working paper, Dr. Natalia Loukacheva, who holds a postdoctoral scholar's award with the Major Collaborative Research Initiative "Globalization and Autonomy," investigates the status of the concept of autonomy in law. In particular, she examines its place in international public law and comparative constitutional law. She is interested here in a notion of autonomy as equivalent to self-government in the context of an internal right to self-determination. She is not focusing on an external right to self-determination as exercised through secession.
Her analysis is divided into two parts. In the first section of the paper, she considers general notions of autonomy in international law and in comparative constitutional law. She argues that there are weak grounds for recognition of autonomy as a principle of international law and somewhat stronger, but still very limited, grounds for its recognition in comparative constitutional law. She also notes that the normative arguments in favour of its recognition do exist to some extent in law. Finally, she comments on the ambiguity of the concept of law, suggesting that this ambiguity provides flexibility for adapting its use to the particular circumstances of groups making autonomy claims.
The second section of the paper turns to a specific consideration of the place of autonomy for Indigenous peoples in law. Here Dr. Loukacheva argues that there is an emerging right to Indigenous peoples' autonomy, which is slowly being considered and recognized by international bodies. She adds, however, that the concept of autonomy lacks clarity. This feature, she suggests, can be an advantage. There is no need for a single type or model of Indigenous peoples' autonomy — different forms of autonomy can serve varying Indigenous groups' aspirations. This analysis is based on a wide-ranging examination of cases of autonomy, particularly in Europe and in the Arctic Circumpolar region.
In her conclusion, Dr. Loukacheva sketches out some common characteristics that
any autonomous arrangement should satisfy. This analysis arises from her studies
of case law in the area. She also stresses that autonomy in law is not a static
concept, but a dynamic one. As such, it is evolving toward ever more
William D. Coleman, McMaster University
Extensive scholarly works on the issue of autonomy and Indigenous self-governance
show that legal concepts of autonomy suffer from much confusion. In the following
study, I present a survey of the concept of governance in the legal scholarship in
attempting to develop normative grounds for the right to autonomy. This paper is
divided into two parts. The first part deals with general considerations of
theoretical aspects of the concept of autonomy in public law
A few qualifications are in order. Given that autonomy is a vague concept with
multiple interpretations by different scholars and representatives of Indigenous
and non-Indigenous peoples, it is important to define the sense in which I use it
here. I employ the notion of autonomy as equivalent to self-government in the
context of an internal right to self-determination. I do not explore a right to
secession or other aspects of external self-determination as an attribute of
autonomy. In particular, I examine the collective right to self-government,
focusing my analysis on the territorial concept of autonomy. This focus narrows
the scope of the paper to looking at some autonomous entities with constitutional
powers transferred from unitary or federal state authorities to the institutions
of territorial or regional public governance without going into detail about the
context of local autonomy or municipal levels of government.
In this first section, I aim to provide a theoretical basis for understanding autonomy in public law. At the outset, I deliberate on the notion of autonomy in legal and political science theory, showing that the concept suffers from much ambiguity and confusion. I argue that the lack of a precise legal definition of autonomy makes the concept more amenable to minority and Indigenous peoples' aspirations, depending on each case. Next, this section explores why autonomy, despite being a "hopelessly confused concept,"(Wiberg 1998, 43) is so attractive to different groups. It looks at how the concept of autonomy is entrenched in the sources of international and constitutional law in relation to minorities and the right to self-determination. Although there is an emerging recognition of the right to autonomy or self-government, international law instruments and mechanisms are not sufficient for realizing these claims currently.
Recently, much has been written about autonomy and its implications.
Because of its diverse applications, autonomy is a vague concept and "almost all
writers on the topic of autonomy do not make clear to the readers (or even to
themselves!) what they actually mean with the notion" (ibid., 43).
Lindley draws the difference between the general concept and particular
conceptions of autonomy.
Autonomy also is often connected with federalism as in Lapidoth's definition of
"decentralization"[…] Means the autonomous self-determination of an individual or an
entity, the competence of power to handle one's own affairs without outside
interference […] autonomy describes the limits of State interference, on
the one hand, and the autonomous determination and regulation of certain affairs
by specific institutions on the other […] In a more narrow sense,
autonomy has to do with the protection and self-determination of minorities. And
it is in this sense that the notion of autonomy is used in modern international
law.
Thus, the question becomes whether there is a need to render the notion of
autonomy more definite. The practice shows that there is not such a need. Because
of its ambiguity in interpretation, the concept of autonomy can be better adjusted
to the particular circumstances of each case. Its vagueness may even be attractive
to those who are seeking autonomous arrangements. As Wiberg puts it, "it is not
the clarity, but the ambiguity of the concept (of autonomy) added by me that is
the most important guarantee of its popularity"(1998, 57).
Within recent decades the right to autonomy has become an attractive slogan for different groups and especially for Indigenous peoples, but there is no clarity on the scope and legal recognition of this right. Therefore, I turn next to examine autonomy in international law.
Is autonomy a principle of international law? In Carl Creifelds' (1990) words,
"in international law, autonomy means that parts of the State's territory are
authorized to govern themselves in certain matters by enacting laws and statutes,
but without constituting a State of their own" (quoted from Heintze 1998, 7).
Hannum and Lillich conclude that the concept of autonomy does not have
"[…] a generally accepted definition in international law […] is
a relative term that describes the extent or degree of independence of a
particular entity rather than defining a particular minimum level of independence
that can be designated as the status of 'autonomy'"(1980, 885).
The place of autonomy in international law can be evaluated through analysis of sources of international law, like customs, treaties, conventions, and the practices of international organizations, doctrines, reports, and documents. Analysis of these sources shows that there are weak grounds for recognition of autonomy as a principle of international law.
Sanders argues otherwise. He claims that autonomy is a principle of international law because first, "autonomy for specific populations is a principle of customary international law, based on an assertion of a common practice of leading states" (1986, 17). Second, it is a principle because "autonomy (is) a distinctive right of minorities" (ibid., 17). He bases his third argument "on the principle of self-determination of peoples" (ibid., 17).
With respect to his first argument, Sanders asserts, "there is a developing international consensus that political autonomy is the proper response to the phenomenon of territorial minorities, particularly territorial indigenous minorities" (ibid., 19). He deliberates on a historical approach and shows the examples developing of different autonomous arrangements and their perception "in the international intellectual milieu" (ibid., 19). By using a non-historical approach, he tries to identify common patterns in the existing examples of autonomies on the basis of factors of geography, population, cultural difference, and existing institutions (ibid., 20).
It is not clear, however, whether there is a common practice of autonomy. It is also not convincing that autonomy for specific populations is a principle of international customary law. Arguably, as Oeter (1994) puts it, "minority status is then equated with the right to autonomy. This alleged right is said to be customary law derived from the frequent occurrence of autonomy. However, forms of self-government and autonomy vary so much from case to case that their specific content remain doubtful and a customary rule has not evolved" (quoted from Heitze 1998, 13). Custom as a source of international law assumes that the subject of the action repeats in the same manner and form for it to be continued as a custom. Most scholars on the topic stress that there is no certain model or type of autonomy. They emphasize that, "autonomy is, therefore, a general legal term that has to be given concrete content" (Heitze 1998, 8). Its content would depend on the particular circumstances of each country. Thus, even some sort of recognition of autonomies by the "international intellectual milieu" and existence of autonomous entities in the historical perspective are not sufficient for arguing that autonomy is a principle of customary international law.
Further, there are few examples of formation of autonomy in international
documents
Can autonomy be justified as a principle of international law, based on Sanders'
second argument that autonomy is a distinctive right of minorities? Autonomy is
often considered as a mechanism that assists in ethnic conflict resolution as a
result of its potential for protecting minorities. Like "autonomy," there is no
commonly accepted definition of "minority," (Lapidoth 1997) and scholars have
examined relevant international materials, which indicate some cohesion between
minority rights and autonomy.The participating States note the efforts undertaken to protect and create
conditions for the promotion of the ethnic, cultural, linguistic and religious
identity of certain national minorities by establishing, as one of the possible
means to achieve these aims, appropriate local or
Other international documents do not mention the distinctive right of a minority
to autonomy. These include the Report of the CSCE Meeting of Experts on National
Minorities (Geneva, 1991); Document of the Moscow Meeting of the Conference on the
Human Dimension of the CSCE (Moscow, 1991); UN Declaration on the Rights of
Persons Belonging to National or Ethnic, Religious or Linguistic Minorities
(1992);
In her analysis of the right to autonomy in Article 3 of Protocol 1 of the
European Convention on Human Rights (1995), the European Charter of Local
Self-Government (1985, in force since 1988), and the Draft Charter on Regional
Self-Government (1996), Lewis-Anthony (1998) comes to the conclusion that Article
3 of Protocol 1 does not expressly protect or guarantee territorial autonomies.
However, case law suggests that this article is applicable to the legislatures of
existing autonomies with constitutional status. She further concludes that the
Council of Europe, through Charter 1985 (Article 4(3)) and Draft Charter of 1996
(Article 2) began to demonstrate its commitment to regional self-government.
In his study of autonomy and the European Union (EU) states, Bullain notes that
substate political autonomy is not specifically recognised by the European Union.
He adds "the Committee of Regions […] neither by its composition, nor by
its powers, can be understood as an institutionalization of the autonomous units
of the EU"(1998, 347). He further suggests that from the standpoint of European
integration, substate autonomous authorities only represent an administrative
level (ibid. 352). Therefore, to deal with EU autonomies, one has to conclude
"participatory" agreements with the states (ibid., 355). The state plays the role
of the mediator. From Sohn's (1980; 1981) analysis of autonomy and the
In sum, the right to autonomy is not expressed in major international documents regarding minority rights nor in the practices of the Council of Europe, the European Union, or the United Nations, or some universal minority rights treaty. As Thornberry concludes, "in the context of minority rights, autonomy appears as hortatory or pragmatic politics, refusing to convert itself into a coherent norm or perhaps dissolving into conceptual sub-constituencies before our eyes" (1998, 123). Thus, there is no distinctive right of a minority to autonomy as a principle of international law.
Could autonomy be qualified as a principle of international law based on Sanders'
third argument — the right to self-determination? To understand autonomy
in these terms, it is useful to draw a distinction between the right to external
self-determination (usually referred to as "secession" but which may include other
aspects)
For example, in Lapidoth's words "more and more authors seem to consider autonomy as a valid means of self-determination" (1997, 23). Heintze stresses that the distinction between an internal and an external right to self-determination brings a new perspective on the relationship between self-determination and autonomy. Therefore many scholars "now claim that the right to internal self-determination is "almost synonymous with local autonomy" (1998, 9). In the opinion of Hannikainen, in international law the right to autonomy is narrowed to a certain limited level of self-government, but the right to self-determination is more promising. Compared to a limited right to self-government, "the holder of the right of self-determination may have the right to determine its status without external interference and may opt for full independence — not only limited self-government" (1998, 79).
Accordingly, the right to autonomy or internal self-determination is a part of the
concept of the right to self-determination which, because of its external
dimensions, is broader than just self-governance. Thus, international law allows
for certain subjects in some cases to interpret self-determination as independence
by means of secession, which is sometimes called full self-governance.
For the purposes of this paper, I assume that the right to autonomy (territorial or non-territorial) can be considered as a realization of the principle of internal self-determination in the form of self-governance if several conditions exist: a strong voluntary will of the population to achieve autonomy; ethnic, cultural linguistic differences (cultural factor); some geographical and historical conditions relevant to each particular case; the existence of a legislative body elected by the local population, as well as an executive organ (democratic participation); and economic sustainability or a financial base.
Nevertheless, from the point of view of existing international law, both concepts
of autonomy or self-governance and
self-determination are confusing and ambiguous.
Thus, the question becomes, whether autonomy can be regarded as a principle of
international law based on a vague notion of self-determination. Thornberry argues
that self-determination is a right, while autonomy is not. In his words, "autonomy
is essentially a gift by the state (grudgingly offered, ungratefully
accepted)
Harhoff suggests that rather than substantiate the contents of self-determination, "this concept should be understood as a procedural norm,"(1994-1995, 66) which includes the state's duty to promote autonomy for their peoples in good faith, and to guarantee that "self-determination arrangements, once established, can never be withdrawn, reduced or amended unilaterally by states"(ibid., 66). As he further notes, "the idea is to enable the international community, by means of a simple international legal principle, to exert pressure on states that in word or practice simply refuse to establish any form of self-determination for their local peoples" (ibid., 66). This idea might be hard to implement. It is questionable whether the right of peoples to self-determination is a binding principle for states that have not ratified international covenants. Each state and people have their own interpretation of self-determination. The concept is far from universal. A clear legal definition might be required for implementation of self-determination as a procedural norm.
To conclude, in contemporary interpretations of the principle of
self-determination, autonomy can be regarded as a form of its internal realization
even though it does not constitute a distinct international norm on its own
account. But this situation does not resolve problems with respect to ambiguity.
Practically, "[…] both customary and treaty law on
In short, there is no consensus among scholars on the existence or definition of a right to autonomy in international law. The definition of autonomy and its relation to minorities and peoples' right to self-determination suffer from ambiguity. In some cases, autonomy serves as a mode of international conflict resolution. The practice of existing autonomies makes the right to autonomy more feasible even without having a strong status in international law.
International
Prominent human rights scholars (Scheinin 2000a and 2000b; Myntti 2000) have
already elaborated on these scenarios. Based on a human rights approach, the right
to autonomy applies to all groups whether they are considered minorities or
Indigenous peoples. At the same time, the right to autonomy is rooted in the right
of peoples to self-determination (Article 1) and linked to the right of persons
Analyzing the procedural positions of autonomous regions before the International
Court of Justice, the European Commission, the European Court of Human Rights, the
European Court of Justice, and the Human Rights Committee, Åkermark
concludes that "autonomous regions, in fact, play an important role in
international judicial and quasi-judicial proceedings and that international law
has started taking steps needed to accommodate this trend" (1998, 149-50).
However, there are no clear procedural provisions in international law regarding
such participation. Thus, Åkermark points out that, under the Statute of
the
With respect to the European Commission and the European Court of Human Rights, Åkermark finds "that autonomies, their inhabitants and their representative organs and authorities may play a very active role both as applicants and as respondents before the organs supervising the European Convention for Human Rights,"(ibid., 144) and that "the regions of the Member States of the Communities have been active before the European Court of Justice both as complainants and as respondents"(ibid., 146). Finally, Åkermark notes that autonomous regions can be involved in cases before the Human Rights Committee, despite the fact that the precise procedural modes for this are underdeveloped (ibid.).
Alfredsson underscores that "international human rights instruments do not
expressly provide for a right to autonomy" (1997, 34). He adds, "autonomy is yet
to be firmly anchored in international and regional human rights instruments"
(ibid., 40). Representatives of autonomous authorities can apply before the
Committee on the Elimination of Racial Discrimination, which can examine petitions
from individuals and groups concerning possible violations (Article 14 of the
Convention on the Elimination of All Forms of Racial Discrimination) (ibid., 43).
Alfredsson examines different UN procedures for enforcing minorities and
Indigenous peoples' rights, such as: state reporting obligations, and fact-finding
and investigative procedures.
To conclude, there is only some indication in the international documents,
procedures, and practice of international organs and the main sources of
international law to support the existence of a right to autonomy. Therefore,
Eide, a Special Reporter of the Sub-Commission on Prevention of Discrimination and
Protection of Minorities reported that, "even if international organizations are
ready to propose autonomy as the solution for existing inter-ethnic and
intra-State conflicts, they lack any coherent policy to promote it."
As a possible solution, Hannikainen suggests the development of a multilateral
convention capable of taking various autonomy arrangements under its umbrella.
Consequently, states would be obliged to submit autonomy arrangements existing
within their jurisdiction to supervision of the international organ. This body
"should perhaps be quasi-judicial in nature similar to the UN Human Rights
Committee" (1998, 95). Thus, he proposes a universal Convention on autonomy and
the creation of an international organ for the supervision and establishment of
regional autonomies. The idea of a special international body, which could
supervise and clarify autonomy arrangements, is possible, as there are precedents
of that kind.
As mentioned earlier, Harhoff offered to interpret the right to self-determination as a procedural norm. He also suggested considering it as a duty of a state to grant autonomy and the state's burden to prove its loyalty to and implementation of the autonomous arrangement. Analysed suggestions raise difficult questions: is it within the jurisdiction of international law to decide and to provide for the right to autonomy? Is autonomy a universal right to be entrenched in a separate international Convention? Is there any legal principle or legal theory on autonomy, which would form a basis for such documents and more importantly, is there a need for them? Obviously modern international law and practice do not give us a definite answer in this regard.
Arguably, comparative constitutional law can reduce ambiguities surrounding the concept of autonomy in international law. Can constitutional law assist in clarifying international legal ambiguities? Indeed, is autonomy the legal domain of constitutional jurisprudence? Some authorities maintain that, "the legal basis for autonomy can be a constitutional arrangement, devolution by statutory law, or customary law" (Eide, Greni, and Lundberg 1998, 256). Others propose the constitutional entrenchment of autonomy (Suksi 1998b, 168-9).
Suksi (1998b) identifies three types of autonomous entities: those organized on
the basis of the national constitutions of their host countries with special
jurisdiction including exclusive law-making powers (e.g., Åland
Islands/Finland before 1994, Gagauzia/ Moldova, Spain, Italy, and Portugal);
Identifying the legal foundation for the relationship between the state and
Indigenous peoples, Rehof (1994, 25-26) defines the following forms of
constitutional recognition: independence of the Indigenous peoples; treaty
relationship (Waitangi Treaty in New Zealand); constitutional recognition of
distinct status (Norway); statutory agreement of a more or less irrevocable nature
(Greenland); other de facto arrangements; and non-recognition of a distinct
status. As he correctly states, the present arrangements in this scheme may
increase or decrease their status or they will stay the same.
To conclude, in those countries that I have considered, constitutions do not recognize, with the exception of Spain, the right to autonomy. However, the institution of autonomy is mostly regulated by means of constitutional law, which can be seen in the modes of entrenchment and regulation of autonomous regimes on the domestic level. Importantly there are some precedents of constitutional recognition of autonomous status to some groups and territories and international law is starting to consider some elements of autonomous jurisdictions. Does this developing practice manifest an emergent right to Indigenous peoples' autonomy? To explore this crucial question, I turn to an examination of the connection between autonomy and Indigenous peoples' rights.
What is autonomy for Indigenous peoples? This section of the paper examines the existence of Indigenous peoples' right to autonomy. It argues that the vague concept of autonomy can be rendered more determinate by employing comparative constitutional analysis of measures that secure Indigenous peoples' autonomy. Further, a detailed analysis of the connection between autonomy and Indigenous peoples' rights is given from a legal-historical and minority rights perspective with a particular focus on the right of Indigenous peoples to autonomy in international law. It raises the question whether autonomy is applied in the same way to Indigenous peoples as it is to minorities. This analysis reveals that there is an emerging right to Indigenous peoples' autonomy, which is slowly being considered and recognized by international bodies. However, the concept of autonomy lacks clarity. Furthermore, the varying forms of autonomy for Indigenous peoples are explored. I argue that there is no need for a single type or model of Indigenous peoples' autonomy — different forms of autonomy can serve Indigenous groups' aspirations.
The way in which the right to autonomy comes to be exercised or expressed in each jurisdiction has been heavily influenced by the interaction between indigenous forms of social organization and opposing legal and political regimes introduced by colonial and contemporary authorities. Dramatic differences in understandings and livelihood between Indigenous and non-Indigenous populations require approaches to the development of Indigenous autonomy more in consonance with Indigenous values and knowledge. Due respect should be paid to Indigenous peoples' expectations for expanding their legal capability to exercise jurisdiction in areas traditionally non-transferable to subnational regions. Accordingly, the right to autonomy should comprehend or protect Indigenous jurisdiction in legal systems and the administration of justice. It should allow direct Indigenous participation in international affairs when it concerns their homelands, and include Indigenous involvement in security issues relevant to the development of their lands (Loukacheva 2004a and 2004b).
In recent years significant attempts have been made to promote different
autonomous arrangements for Indigenous peoples. However, it is not clear in the
legal or political science scholarship whether the right to Indigenous peoples'
autonomy exists in international or domestic law and how it can help Indigenous
peoples to preserve their livelihood, traditional culture, and values. The scope
of this section is limited to elucidation of the right to Indigenous peoples'
autonomy in constitutional and international legal documents. It does not cover
Indigenous peoples' views from a framework of Aboriginal law or native cosmology.
Nor does this section deliberate on debatable issues such as the definition of
Indigenous peoples
In recent decades considerable effort has been made by various scholars,
politicians, and representatives of Indigenous peoples
Analyzing the constitutional position of Indigenous peoples in a historical perspective, Harhoff states that after World War I "indigenous peoples were […] recognized at the time as collective subjects of national law with inherent rights to protection and self-government" (1988, 289). Therefore, the prevailing view was to protect Indigenous peoples in their own culture and livelihood and to maintain their traditional forms of government.
After the
One more dimension can be added to this process: the development of the right of Indigenous peoples to autonomy in the new millennium. The trend is that more and more Indigenous groups are looking forward to some form of self-governance through self-determination. It gives them a sense of control over their own destiny and a chance of becoming masters in their own home and an ability to preserve indigenous culture, language, livelihood, and values. From a historical perspective, most Indigenous peoples consider their right to autonomy as an inherent right because they were the owners of their lands before contact with colonizers and they had their own forms of self-governance.
Despite these trends, Anaya is of the view that "international law cannot easily
embrace claims of ethnic or nationality group autonomy primarily based on accounts
of the pre-existence and wrestling of sovereignty"(1990, 841). He argues that "the
historical sovereignty approach" under which, "self-determination is invoked to
restore the asserted 'sovereignty' of an historical community that roughly
corresponds to the contemporary claimant group"(ibid., 838) is limited in
international law by "doctrine of
Other scholars (Heintze 1997; Alfredsson 1997) also support the idea of protection of minorities and Indigenous peoples via human rights instruments. In the words of Erica-Irene Daes, "for Indigenous peoples, autonomy and self-government are prerequisites for continuing their struggle in order to achieve full equality, freedom of racism and racial discrimination, human dignity, and effective enjoyment of all human rights and fundamental freedoms" (2001, 267).
Given the divergent views on the topic, it is necessary to explore the relation between Indigenous peoples' autonomy and minorities. It is questionable whether the international law regime for the creation of autonomous arrangements for minorities is akin to Indigenous peoples' autonomy.
In the words of Thornberry, "autonomy and collective rights in the case of
Usually, it is a collective entity — the group — that claims and
enjoys the right to autonomy. Generally, Indigenous peoples are looking at
autonomy as a collective, group right. It can also be asserted as non-territorial,
personal autonomy,
Lapidoth qualifies Indigenous groups as ethnic minorities and states that they
"can enjoy the rights granted by international law to minorities" (1997, 5).
Alfredsson suggests that "when indigenous peoples number less than one half of the
state population, they can benefit from minority rights if they so choose, as
evident by the case-law of the Human Rights Committee under Article 27 of the
Covenant on Civil and Political Rights and its Optional Protocol" (1998, 125).
Though from the legal perspective, it is asserted that Indigenous groups that are
in a minority situation (e.g., subject to subordination or a certain degree of
dispossession by a dominant group) and are thus entitled to protection as
minorities under Article 27. The debate is a complex one. This complexity is
underpinned by the fact that some Indigenous peoples claim that they are not
minorities (Sanders 1993)
Indigenous peoples are not mere 'populations' or 'citizens'. Nor should we be
viewed as 'minorities' under international law. We are distinct peoples or
nations. In order to defend our rights and interests, we must increasingly be
considered as subjects under international law.
Furthermore, Alfredsson underlines that regardless of "the comparison with
minority rights, the international debate about autonomy is different in the case
of indigenous peoples"(1998, 125). He argues that the case for Indigenous peoples'
right to autonomy is stronger than that presented by most minorities: "[H]aving
been colonized, outnumbered and often overwhelmed by subsequent settlers, autonomy
can contribute to the achievement of dignity and raise indigenous peoples to an
equal footing with other parts of society" (ibid., 125). Finally, Alfredsson notes
that self-government in its internal affairs is crucial for Indigenous peoples as
"probably the most effective means of protecting group identity, group equality
and group dignity within States" (ibid., 125). How is the position of Indigenous
peoples on autonomy stronger than for minorities?
What, if any, is the basis for Indigenous peoples' autonomy in international law?
Notably, all international documents suggestive of a right to autonomy for
minorities are relevant to Indigenous peoples. The Human Rights Committee has
interpreted Article 27 of the International Covenant on Civil and Political Rights
1966 as protecting the right of Indigenous groups to preservation of their
livelihood, language, values, and traditional economic activities.
The Draft Declaration of Principles for the Defence of the Indigenous Nations and
all Peoples of the Western Hemisphere (1977), developed by the NGO Conference on
Discrimination Against Indigenous Populations, does not mention a general right to
autonomy. However, in Section 1 it refers to the right of Indigenous peoples to
have a government as a fundamental requirement of nationhood and in Section 7 it
underlines Indigenous nations' or groups' right to self-determination.
The Declaration of Principles of Indigenous Rights, adopted by the World Council
of Indigenous Peoples (NGO status) in 1984, in Principle 1, recognizes Indigenous
peoples' right to self-determination, by virtue of which they may freely determine
their political status and freely pursue their economic, social, religious, and
cultural development. Principle 2 mentions the states' obligation to recognize
Indigenous institutions.
The provisions of the 1989
The Indigenous 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.
Article 3 is important for understanding of Article 31 which might be still in
force with adoption of the Draft Declaration in the futureIndigenous peoples, as a specific form of exercising their right to
self-determination, have the right to autonomy or self-government in matters
relating to their internal and local affairs, including culture, religion,
education, information, media, health, housing, employment, social welfare,
economic activities, land and resources management, environment and entry by
non-members, as well as ways and means for financing these autonomous
functions.
This formula specifies the content of the right to autonomy or self-government,
which is a specific form of exercising the right of self-determination. Autonomy
and self-government are indicated with the disjunctive "or," which makes these
notions synonymous.
The Inter-American Draft Declaration on the Rights of Indigenous Peoples 1995, in
Article XV, Right to Self-Government, Management and Control of Internal Affairs,
does not mention the right to autonomy in its title.
The essence, scope, and features of autonomy for Indigenous peoples were framed in The Nuuk Conclusions and Recommendations on Indigenous Autonomy and Self-Government, adopted by the UN Meeting of Experts in Nuuk, Greenland, in 1991. These recommendations have no binding force on any state but they feature some important elements of Indigenous autonomy. Thus, the Recommendations underline that an integral part of Indigenous peoples' right to self-determination "is the inherent and fundamental right to autonomy and self-government" (Article 2). Article 4 states, that "self-government, self-administration and self-management of Indigenous peoples constitute elements of political autonomy." Article 4 further provides that "the realization of this right should not pose a threat to the territorial integrity of the State."
Article 4 also notes "autonomy is meaningful for indigenous peoples because it is a prerequisite for achieving equality, human dignity, freedom from discrimination and the full enjoyment of all human rights. From the Nuuk Conclusions it further follows that autonomy is "[…] beneficial to the protection of the natural environment and maintenance of ecological balance which helps to ensure sustainable development" (Article 6). Autonomy is the way of popular participation in public affairs (Article 7) and participation in decision-making in the matters of a given jurisdiction (Article 12). Autonomy is essential for Indigenous peoples' survival and further development (Article 9). It forms the basis for international cooperation and bilateral and multilateral legal arrangements (Article 9) and contributes within states "to peaceful and equitable political, cultural, spiritual, social and economic development"(Article 11).
The Nuuk Conclusions do not provide a definition of Indigenous peoples' autonomy or its specific forms. Importantly, they point out that self-government, self-administration, and self-management constitute critical aspects of political autonomy, and that territorial and resource bases are crucial to the construction and effective exercise of Indigenous peoples' autonomy (Article 5). They also note in the Preamble, that "[…] indigenous peoples are historically self-governing with their own languages, cultures and traditions." This statement means that Indigenous peoples had some form of autonomy, which had a different interpretation for each particular Indigenous group.
To conclude, in the examined documents, the scope of the right of Indigenous
peoples to autonomy is far from lucid. It is questionable whether Indigenous
peoples' autonomy can become a principle of international law,
Eide underlines that the "right to self-determination" of Indigenous peoples must be understood to mean some form of autonomy. In his view, "in spite of the use of the word 'self-determination' the indigenous people are assumed to remain within the existing sovereign state" (1995, 365-6). He argues that a degree of autonomy is required to enable Indigenous peoples to preserve their political, economic, and cultural characteristics.
In the most frequently cited documents, the right of Indigenous peoples to
autonomy is connected with the right to self-determination or considered as an
integral part of this right. Notably, Indigenous peoples, like all peoples, have a
right to self-determination (Article 1(2) of the UN Charter, and Article 1 of the
International Covenants on Civil and Political Rights and on Economic, Social and
Cultural Rights 1966). Sanders situates their right in the context of state
sovereignty:
If the people is a colonized people within the boundaries of an existing state,
then their right to self-determination must be balanced against the right of the
State to territorial integrity. This balancing means that the people have the
right to choose the extent of autonomy or self-government which is appropriate to
their situation within the particular state. A denial of equality or human rights
or self-government would give the people an option for independence. This
position begins with the proposition that "self-determination of peoples" applies
equally to all peoples, including indigenous peoples (1993, 79).
As noted earlier, it is questionable whether Indigenous peoples should be
classified with cultural, ethnic, national, or other minorities. Sanders, however,
states that Indigenous peoples, as cultural minorities, "require some autonomy to
maintain and develop their distinctiveness. Particularly for Indigenous peoples,
where cultural difference is often very great, this requires autonomy or
self-government" (ibid., 80).
The practice of international law thus shows that the idea of self-determination in the case of Indigenous peoples has a different connotation than in the case of minorities or other peoples. As regards Indigenous peoples' autonomy, numerous discussions on these issues can be summarized in the following conclusions.
Indigenous peoples have a right to internal self-determination and internal
autonomy as an integral part of this right.Demands for autonomy have been presented as claims to the right of internal
self-determination. The self-determination label certainly does not improve
indigenous' peoples chances of obtaining autonomy; on the contrary, it is more
likely to alienate states, and at some point to disappoint the groups themselves.
Autonomy under the banner of self-determination, while avoiding the claim of
external self-determination (which would include the option of secession and
independence), is misleading and likely to create unrealizable expectations.
Special measures such as group autonomy should be called by their proper names,
and their image should not be overly enhanced by popular labels (1997, 40).
From Alfredsson's statement, it follows that there is no need to divide the right
into internal or external self-determination, as it relates to Indigenous peoples.
Such division makes the already ambiguous concept of self-determination more
confusing and leads to higher expectations for autonomy among Indigenous peoples.
The more they ask for under the banner of external self-determination, the less
likely they are going to get any form of self-governance.
The experience of the Inuit of Nunavut, who had refrained from using extreme formulas, shows how Indigenous peoples can be successful in their quest for governance (Hicks and White 2000). The major arguments against external self-determination are connected with the issue of state integrity, sovereignty, and ethnic conflict. Alfredsson (1998) points out that the exercise of a right of external self-determination by Indigenous peoples under existing law is not encouraging due to the maintenance of peace and security as a way to avoid ethnic conflicts based on the disruption of state borders or connected with the creation of new states. The exercise of external self-determination is also complicated by the fact that the international legislative process is made by states seeking to preserve their interests of integrity, governments, and majorities.
Arguably, the right to Indigenous peoples' autonomy as an integral part of the
right to self-determination should possess both external and internal dimensions.
The prohibition of an external right causes misunderstandings and disappointments.
The grant of it would not necessarily lead to Indigenous peoples seeking
secession or independence. In contrast to minorities' demands, most Indigenous
peoples do not interpret self-determination as separatism (Lâm 1996).
As expressed by the representative of the Aboriginal and Torres Strait Islander
Commission to the UN Working Group on Indigenous Populations in 1993:
[…] Self-determination is an aspirational [sic] concept which embraces a
widening spectrum of political possibilities, from self-management by indigenous
peoples of their own affairs to self-government by indigenous peoples of their own
communities or lands […] recognition of self-determination does not
provide a mandate for secessionist separatism […] rather,
self-determination represents the conceptual basis for progressive empowerment of
indigenous peoples (quoted from Thornberry 1998, 119).
To summarize, autonomy can be regarded as a part of Indigenous peoples' right to
self-determination without constituting a threat to state disintegration or
secession. Could internal self-governance as a form of internal
self-determination answer Indigenous peoples' aspirations?
As Alfredsson puts it: "[…] if external self-determination is not
available […] and not politically feasible, the question arises whether
another form of self-determination can substitute wholly or partially for the
external application" (1998, 135). Internal self-determination in the form of
extensive self-government can partially compensate for what is not obtained by
external self-determination. For most Indigenous peoples some form of internal
self-government instead of external self-determination is the only possible
solution because of territorial disputes, cultural and linguistic assimilation, or
integration with the majority. Ironically, as Russell states, federal and
provincial governments' "willingness to negotiate self-government arrangements
with Aboriginal peoples is based less on respect for the principle of Indigenous
self-determination than on fear of provoking Aboriginal resistance that could be
both economically disturbing and internationally embarrassing" (2001, 3). However,
in some cases, internal self-determination would never replace the desire and will
for independence. For example, fascinating changes are taking place in Greenland's
political agenda today. They show that even though the Home Rule jurisdiction in
some areas is broader than the competence of federal units, and the prospect for
economic sustainability of the Island is grim, there is a movement towards
independence and a new constitutional arrangement and partnership with the Danish
state.
Exploring the models, types, or classifications of autonomy that can be applied to Indigenous peoples, I argue that there is no need for a special form of Indigenous peoples' autonomy as long as existing schemes of autonomous arrangements are suitable for Indigenous peoples' modes of self-governance. And the particular circumstances of each Indigenous group are considered, including characteristics which are of special significance for Indigenous governance.
Legal and political science scholarship has developed two significant approaches
for classification of autonomy: territorial and non-territorial.
Analysing the example of Åland Islands' Swedish minority and the Inuit of Greenland, Myntti concludes that "a person may change his language, but it is not possible to change one's ethnic origin. Therefore, the principles of territoriality and ethnicity arise in particular in relation to indigenous peoples" (1998, 280). In the words of Sanders, "for self-government, territoriality is a crucial factor" (1993, 70). For non-territorial Indigenous populations, in his view, self-government is not suitable language.
Considering the relationship between ethnicity and territoriality, Assies proposes
the following forms of self-government systems. First, he mentions:
Cases of local or regional autonomy where ethnicity formally does not play a role.
Administrative boundaries are drawn in such a way that the indigenous population
constitutes a majority within them and thus effectively can realize a degree of
self-government within the nationally established administrative framework, e.g.
municipal councils, provincial councils, federal states (e.g., the Nunavut
territory in Canada, Greenland) (1994, 45).
Assies is referring to territorial autonomy in general, which is applicable to
Indigenous peoples but does not form a distinctive type of Indigenous peoples'
autonomy. Secondly, Assies describes:
Cases where ethnicity and territoriality are formally linked in self-government
arrangements where, within certain limits as to scope and content, only the
indigenous [peoples] may partake in the government of a territory (e.g., Columbia,
the Kuna in Panama or the Indian reserves in the USA). (ibid., 45)
Finally, he describes cases where ethnicity is a criterion without being linked to
the territory of Indigenous peoples' domiciles (for example, the Saami parliament
in Norway).
The Danish anthropologist Jens Dahl (1992; 1993) defines three types of Indigenous
peoples' autonomy:
Both authors describe the same types of autonomy. Land claims can be included into
Assies' second type. The argument that a land claim settlement is a form of
Indigenous peoples' autonomy is disputable because of its very narrow scope and
orientation toward economic ownership rights. However, in some cases, for example
in Canada, according to the comprehensive lands claims policy, modern treaties
address not only land issues but often provide for territorial and civic
Indigenous governance.
Henriksen identifies the following types of autonomy granted to Indigenous groups. First, he mentions autonomy arrangements based on contemporary Indigenous political institutions, the Saami Parliaments in Finland, Norway, and Sweden. Second, he speaks about autonomous entities based on the concept of an Indigenous ancestral territory, the arrangement for the Comarca: Kuna Yala in Panama. Finally, he defines regional autonomy within the State, such as Nunavut and the Indigenous autonomous regions in the Philippines (Henriksen 2001 quoted in Magnarella 2001, 442-3).
These types of autonomy are also common for minorities and other peoples. This
brings us to the conclusion that there is no singular form of Indigenous peoples'
autonomy. Legal scholarship and practice have developed some schemes for
territorial and non-territorial forms of autonomy. Though they may vary from case
to case, they are applicable to Indigenous peoples and minorities. In the case of
Indigenous peoples, Land is not only an economic resource for Indigenous Peoples. It is also the
peoples' library, laboratory and university; land is the repository of all history
and scientific knowledge. All that the Indigenous Peoples have been, and all that
they know about living well and humanly is embedded in their land and in the
stories associated with every feature of the land and landscape. (2001, 264-5)
In a similar vein, Anaya (1996) speaks to an important element of autonomous
Indigenous governance: the capacity to develop institutions of governance securing
ongoing self-determination and consideration of distinctive Indigenous cultures,
usage of land, and resources. Thus, the issues of land and its resources, cultural
ceremonies, oral traditions, and the system of customary regulations put a special
imprint on the institutions of autonomy. Indigenous peoples' autonomy differs from
minority autonomy on historical grounds and on self-government being an inherent
right linked to their prior settlement in the territory in which they live
(continuing occupation of their original territories and special relationship with
their lands).
Furthermore, in the case of Indigenous self-government, often Western patterns pre-determine the framework of autonomy. However, Indigenous customs, traditions, and views may influence the exercise of autonomy in practice. Thus, the question becomes: how to reconcile Indigenous systems of governance with Western patterns of self-governance. Indigenous peoples have to adjust and integrate the structures of majority societies because of continuous technological and social changes and the necessity for communication with the national and international community. Arguably, at the municipal level of governance it is easier to entrench indigenous traditions, as municipal legislation is the jurisdiction of autonomous, territorial or provincial levels. When we deal with regional, territorial, or non-territorial autonomy levels, the idea of public governance obtains a special state support.
Analysis of the concept of autonomy and existence of the right to autonomy in the
main sources of international and constitutional law as they bear upon the cases
considered in this paper reveals that there is a weak normative basis for this
right. However, it is emerging and gradually obtaining a greater
There are numerous approaches to the concept of autonomy in the public law scholarship. All of the above mentioned legal documents and instruments indicate that there is an emerging recognition of the right to autonomy in international law and it is further shaped by means of constitutional jurisprudence. The form, type, and scope of autonomy vary in each case. I have argued that there is no need for a rigid legal definition of autonomy. The lack of clarity makes the concept of autonomy more attractive to many groups and flexible in response to their aspirations to self-governance. I also have shown that there is no need for a special form of Indigenous peoples' autonomy as long as existing schemes of autonomous arrangements meet Indigenous peoples' aspirations of self-governance and take into consideration the particular circumstances of each Indigenous group including features of special significance for autonomy of the Indigenous group as defined by the group itself.
There is an evolving understanding of autonomy in law. Depending on the
methodological grounds, there are several ways of approaching the legal concept of
autonomy. The traditional one was followed in this paper. It employed the
contextualist and textualist interpretations of autonomy in the framework of
existing legislation, documents, instruments, court decisions, publications, and
opinions of prominent scholars and Indigenous representatives. Thus, based on a
human rights approach, the right to autonomy is housed in the right to
self-determination. It embraces cultural differences and effective political
participation in the institutions of democratic governance. Regardless of its
ambiguity even in legal terms, theoretically, every autonomous arrangement in the
framework of internal self-determination should be responsive to the following
characteristics:
This latter human development factor is closely connected with another way of
studying the right and the concept of autonomy, a "bottom to top" approach or
moving from de facto understanding of autonomy to a
The paper is partially drawn from the Doctor of Juridical Science thesis: Autonomy and Indigenous peoples of the Arctic-legal Status of Inuit (case study of Greenland and Nunavut). Faculty of Law, University of Toronto, August 2004. Many thanks are owed to Patrick Macklem, Lorne Sossin, and Karen Knop at the Faculty of Law; Peter Russell at the Department of Political Science, University of Toronto; and to Dr. Martin Scheinin, Director of the Institute of Human Rights at Åbo Akademi University. I am grateful to Dr. W. Coleman and Dr. L. Pauly for their assistance with this paper. I also wish to thank the two anonymous reviewers for their comments.