Canada: love it or leave it?

by reconciliationproject

Maybe some Nation should just leave it. The topic of this post is a fairly obscure case, at least for aboriginal rights lawyers in Canada. Yet the Kosovo Reference (http://www.icj-cij.org/docket/files/141/15987.pdf), by the International Court of Justice, (a pretty robust arbiter of international law issues) raises a fairly simple yet intriguing possibility. In essence, the International Court of Justice concluded that there really isn’t anything facially wrong at international law with a Declaration of Independence.

The issue in the Kosovo reference was whether a unilateral declaration of independence by Kosovars was contrary to international law. As you may (or may not) be aware, Kosovo was once territory of the state of Serbia, and gained independence after a (in my mind) protracted period of ethnic conflict.

The Court examined the issue from a few different angles, from general international law, to interpreting specific Security Council resolutions. While an interesting judgment, I’ll only focus on the Court’s discussion of general international law.

One of the best markers of the state of international law is state practice. Responding to the argument that state practice does not support unilateral declarations of independence, the Court noted that, “State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence” (at para. 79).

One of the hurdles to greater recognition of indigenous rights is the principle of territorial integrity. In essence, many states suggest that recognizing indigenous rights would impair their territorial integrity (by breaking up the territory of the state and creating any number of indigenous jurisdictions). The principle of territorial integrity is viewed by some as a foil to realization of the right to self-determination.

However, the principle of territorial integrity does not necessarily apply in the context of declarations of independence. After conducting an analysis on this point, the Court noted, “Thus, the scope of the principle of territorial integrity is confined to the sphere of relations between States.” (at para. 80) In other words, the International Court of Justice is suggesting that the principle of territorial integrity should not even be relevant to indigenous rights at all!

Consider for a moment the United Nations Declaration on the Rights of Indigenous Peoples, passed as a General Assembly Resolution in 2007. Article 46(1) of the UNDRIP states:

Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

Article 46(1) of the UNDRIP highlights how much of a compromise the UNDRIP represents. This is not necessarily undesirable because the rights articulated in the UNDRIP are more likely to represent or become customary international law norms if they enjoy consensus from states. However, it is critical for indigenous peoples to always recognize that the UNDRIP represents a minimum standard of treatment. It appears the international law of self-determination and territorial integrity may have surpassed this minimum standard of treatment.

The Court ultimately concluded that Declarations of Independence are not contrary to general international law. Of course, seeking recognition as a state from other states is ultimately a political exercise. The Kosovo Reference; however, is very clear that there is no legal bar to unilateral declarations of independence.

While the Court did not address the particulars of whether an indigenous people could unilaterally secede from a state (or declare that they have always been independent), the Kosovo Reference opens up some interesting possibilities on this front. While I am under no illusion that issuing a Declaration of Independence would result in immediate (or easy) recognition of a right of self-determination, there are a number of indigenous peoples who continue their longstanding position that they remain independent of the state. The Kosovo Reference lends legal support to their position.

Moreover, it improves the position of all indigenous peoples when some adopt a more ‘extreme’ position because it reminds all actors that documents such as the UNDRIP are not endpoints, but rather compromise documents (which, in the case of the UNDRIP enjoy consensus support from states).

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