Volume 43 | Number 3

Sovereignty Revisited: International Law and Parallel Sovereignty of Indigenous Peoples

by Federico Lenzerini

Summary

1. Introduction: The Evolution of the Concept of Sovereignty from Political Theory to International Law


2. Sovereignty, Self-Determination of Peoples, and Democracy


3. Indigenous Sovereignty


4. Major Potential Titles of Indigenous Sovereignty
   1. Recognizing the Invalidity of the Original Title of Indigenous Lands Occupation and of the Native Title’s Legal Significance
      1. The Relevant Practice
      2. The Inadequacy of the Recognition of the Invalidity of the Title of Terra Nullius and of the Legal Significance of the Native Title, Ex Se, as Foundation of Indigenous Sovereignty
   2. Delegation of Powers by the State
      1. The Practice of the Delegation of Sovereign Powers by States in International Law
      2. The Lack of Relevant Practice Concerning the Delegation of Sovereign Powers by States to Indigenous Peoples
   3. Rules of Customary International Law
      1. The Growing Interest of International Law for the Protection of the Identity and the Rights of Indigenous Peoples
      2. The Foundations of the Existence of a Norm of Customary International Law Concerning Indigenous Sovereignty
5. The Nature and Extent of Indigenous Sovereignty Under Customary International Law


6. Conclusion

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I. Introduction: The Evolution of the Concept of Sovereignty from Political Theory to International Law

The controversial nature of the topic of indigenous sovereignty is inherent in its very theorization, in that it constitutes a powerful challenge to the basic foundations of international law. In order to properly understand whether and to what extent such sovereignty actually exists within the framework of contemporary international law, it is necessary to have a retrospective look at the evolution and development of the concept of sovereignty in the modern world. Such preliminary investigation serves the purpose of ascertaining whether the notion of sovereignty in international law must be conceived in an absolute sense or, on the contrary, whether its scope is subject to the influence of other competing values that could therefore represent the foundations for asserting the existence of a given degree of indigenous sovereignty parallel to the sovereign power held by the State.

At the time that the philosophy of sovereignty, in the modern sense of the term, first developed it was certainly conceived as an absolute prerogative of the sovereign entity. In Shakespeare’s Richard II, the former King of England, forced by Henry IV to hand over his crown, is killed in prison by Sir Pierce of Exton, who thought that it was Henry IV’s wish that Richard II be dead. When Sir Pierce of Exton brings Richard II’s body before Henry IV, the new King bitterly blames the murderer:

Exton, I thank thee not, for thou hast wrought
A deed of slander with thy fatal hand
Upon my head and this famous land.¹

Then, he banishes him from the Kingdom:

With Cain go wander through shades of night,
And never show thy head by day nor light.²

The prophecy of disgrace incumbent upon Henry IV and England is a corollary of the idea of the impossibility of destroying, even by assassination, the enduring nature of the King, representing the mystical dignity and justice of sovereignty.³ The inherent dignity of the King was above the earthly idea of life and death, and also above the law. The conception of the sovereign power as the supreme entity, over the law and the life and death of the subjects, was shared by most theorists and philosophers from the early modern times, such as Nicolò Machiavelli, Jean Bodin, and Thomas Hobbes, although such an idea was often the result of considerations of realpolitik rather than of supernaturalism-based thoughts. In the words of Machiavelli:

Those who have been present at any deliberative assemblies of men will have observed how erroneous their opinions often are; and in fact, unless they are directed by superior men, they are apt to be contrary to all reason.⁴

. . . .

The only way to establish any kind of order there is to found a monarchical government; for where the body of the people is so thoroughly corrupt that the laws are powerless for restraint, it becomes necessary to establish some superior power which with a royal hand, and with full and absolute powers, may put a curb upon the excessive ambition and corruption of the powerful.⁵

In sum, it was just the public interest that required an absolute type of sovereignty, which justified the use, by the prince, of any kind of instrument, irrespective of its moral implications, including force (“the stick”), bribery, or deceit.

From these premises, the objective idea of sovereignty that emerged in early modern Europe was of a power concentrated in the hands of an authority bundled into a single entity, which governed a collectivity unified by the sharing of a single set of interests and confined within territorial borders. The sovereign authority held supremacy in the collective interest.⁶

When Europe came out of the Medieval darkness (politically speaking), the internal absoluteness of sovereignty was not yet reflected in its external dimension. In particular, the Holy Roman Empire retained a nearly exclusive power over religious matters, and this allowed the Pope to interfere in the internal affairs of independent “sovereign” States. The transition from the “vertical” structure—headed by the Pope and the Holy Roman Empire—to the “horizontal” structure of independent sovereign States—which in principle were equal in authority and legal legitimacy—was consolidated in 1648 with the Peace of Westphalia (ending the Thirty Years’ War in Europe), which introduced the so-called Westphalian sovereignty. A number of States acquired uncontested independence, no longer the subject of interferences from the Holy Roman Empire; the authority of princes and kings over religion, with regard to the territories subjected to their sovereignty, was definitely established.⁷ The principle of non-interference by any sovereign power in the territorial affairs of other States became the main uncontested rule that governed the system of international relations, and the authority of kings and princes over their respective territories became “supreme.”

This evolution resulted in a concept of sovereignty that may be defined as “supreme authority within a territory.”⁸ The first element of this definition is “authority,” which has been defined by the philosopher R. P. Wolff as “the right to command and correlatively the right to be obeyed”;⁹ the term “right” is central to the definition since it indicates the legitimacy of sovereignty—founded on some legitimate basis.¹⁰ The second component of the concept is that “authority” is “supreme,” in the sense that the sovereign power is superior to any other authority which, to whatever extent, exercises governing functions over the territory concerned;¹¹ in a federal State, for example, the central government, identified in the constitution of the federation, is superior to the governments of any “sub-State,” which is part of the federation itself. Finally, a sovereign authority needs a territory, delineated by political borders, over which it has the right of exercising its supreme powers. Seen in these terms, sovereignty appears as having an absolute character, characterized by the fact that no external entity may, in principle, interfere with its exercise. The world is thus composed by a number of sovereign entities that have absolute dominion within their territorial borders, all of these sovereign entities being in a relationship of parallel equality with each other. In other words, they all possess an identical set of sovereign features, and the sovereign powers belonging to each of such entities stop exactly where the sovereign powers of another begin. This is the so-called chunk theory of sovereignty, according to which sovereignty may only be possessed “in full or not at all,” being represented as a monolithic chunk of identical stones, any one of which is possessed by a sovereign entity.¹²

From the standpoint of international law, the translation of this theory into practical terms shows the connection between the concept of sovereignty, at least in its strict and narrowest sense, with the notion of constitutional or legal independence. Etymologically speaking, one entity is independent when it is not dependent on any other authority. In this context, the element of the territory is of particular relevance since, according to international law, independence is linked to a territorial area. It thus exists when the sovereign entity is able, at least to a satisfactory extent, to freely dispose of its own territory without external interferences; a sovereign power must have a government of its own, one not subject to the control of another governmental body. In principle, in contemporary international law, the entity which meets the necessary conditions for sovereignty is the State. As a consequence, although the concept of sovereignty is to be distinguished from the related concept of statehood, it is in fact strictly related to the existence of a State. The other sovereign entities different from States (this latter term being conceived in a strict sense), existing in the framework of contemporary international law (like the European Union), derive from States and are the result of a voluntary and conscious delegation of powers by States themselves. The conception of sovereignty as a prerogative of States as independent entities enjoying political dominion over a territorial area is clearly expressed by article 2 paragraph 4 of the Charter of the United Nations, which bans the threat or use of force “against the territorial integrity or political independence of any state.”¹³

Having said this, the fact that the “sovereign equality” of States, which, in terms of legal theory, is a corollary of the principle of sovereignty itself,¹⁴ exists only in principle, since the degree of independence exercised by States varies greatly in reality. It is necessary to emphasize that even for the most powerful States in the world sovereignty is not absolute. For instance, a number of States have definitively delegated a wide range of powers to other entities, as has happened with the European Union. Thus, the so-called basket theory of sovereignty appears as much more coherent to the concrete reality existing in the real world than the chunk theory.¹⁵ According to the basket theory, sovereignty is to be seen “in variable terms, as a basket of attributes and corresponding rights and duties.”¹⁶ Any sovereign entity owns a basket, but the content of the different baskets varies considerably; certain sovereign entities have baskets with many more attributes of sovereignty than others, and as a result, entities possessing more of these attributes have a higher degree of independence.

In addition, the extent of State sovereignty has been progressively circumscribed by the evolution of international law, which, through freeing itself from its original character as a corpus juridicum composed exclusively of norms reflecting reciprocal concessions made by States vis-à-vis other governments with the purpose of satisfying shared individual interests, has increasingly permeated the area of State domestic jurisdiction for the safeguarding of values of universal relevance, corresponding to interests shared by the international community as a whole. This has resulted in a global context in which State sovereignty is constrained by a number of international principles, in particular those concerning the prohibition of the use of force, the delimitation of the special sphere of powers, the obligations concerning the treatment of aliens, the protection of human rights and, more recently, the protection of the environment and of cultural heritage, and is thus limited in its scope.¹⁷ Although the beginning of such evolution of international law is commonly traced back to the end of World War II, as a reaction to the awful crimes committed during that tragic conflict, it actually began in the early nineteenth century (with Emmerich de Vattel’s The Law of Nations) when some scholars felt that the concept of sovereignty could no longer be thought of in absolute terms, recognizing that a “sovereign” could be under the authority (de jure or de facto) of another greater sovereign without losing its own “sovereignty.”¹⁸ In addition, since the first half of the twentieth century, a number of scholars, conceiving the term “State” in a broad sense, theorized the distinction between “sovereign” (i.e., “independent”) and “semi-sovereign” (i.e., “dependent”) States, both possessing, although to a different extent, the attributes of sovereignty.¹⁹

As a result of the previous considerations, it appears that, from the perspective of international law, it is no longer appropriate to refer to sovereignty as supreme authority within a territory, but rather as territorial independence subject to no legal constraints except those imposed by international law. In this regard, it is evident that the actual extent of such independence depends on the degree and the scope of the constraints imposed on any sovereign entity by international law.
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II. Sovereignty, Self-Determination of Peoples, and Democracy

The evolution of international law that has taken place in the last decades has led not only to the restriction of the scope of State sovereignty, but also to the conditioning of its constitutive elements, particularly its legitimacy. While it may be argued that, until the second half of the twentieth century, the legitimacy of sovereignty was ipso facto inherent in the reality of an effective power over a territory and a community of people, in more recent times this situation has slightly changed due to the development of a movement, still in fieri at present, pursuing the idea that to be legitimate, sovereignty must be representative of the people living in the territory upon which it extends its scope.

Under traditional international law, the forms of sovereignty and its ways of management were part of the domestic jurisdiction of States. As a consequence, the idea of sovereignty that developed in the early modern times,²⁰ as well as its practical applications (including dictatorial governments), were in no way inconsistent with international law, for the simple reason that it was not a matter that international law could interfere with. This notwithstanding, since the eighteenth century, the philosophy of sovereignty was progressively modified, with the rising of popular movements aimed at freeing peoples from the domination of despotic governments. For example, article 3 of the Declaration of the Rights of Men and of the Citizen, approved by the National Assembly of France on August 26, 1789, solemnly declared that “[l]e principe de toute souveraineté réside essentiellement dans la Nation. Nul corps, nul individu ne peut exercer d’autorité qui n’en émane expressément.”²¹ Also more solemnly, the U.S. Declaration of Independence of July 4, 1776 had previously considered the principle of democracy as originating from the “Laws of Nature” and by God Himself.²²

Legally speaking, for nearly two centuries, the relevance of these proclamations remained limited in scope to the States concerned, although they operated as sparks for the rising of revolutionary movements pursuing the idea of democracy in different countries. Starting in the 1950s, the practice of the United Nations led to the evolution of the principle of self-determination of peoples, already proclaimed by article 1 paragraph 2 and article 55 of the U.N. Charter, towards a principle of customary international law granting the right of independence to any people subjected to foreign colonial domination. Such a principle, at least in its external sense, exhausts its relevance to the situations of forcibly imposed foreign occupation, without supporting the secessionist aspirations of minorities or ethnically-distinct groups or meaning that any government of the world must be the expression of the majority of its population. Thus, at present, it may not yet be maintained that a principle of general international law establishing that any sovereign power must be founded on democracy actually exists, since a number of non-democratic governments still exist in the world and are tolerated by the international community. This notwithstanding, it may not be sustained that international law is totally unconcerned with this matter. Leaving aside the recent proclamations aimed at justifying the violation of the sovereignty of others by using armed force with the need of “exporting democracy,” the element of democracy is now part of the dialogue among States (not only within the framework of developed countries) to a progressively growing extent, so as to raise some doubts of the international legality of certain particularly oppressive forms of government. At the declarative level, the principle of democracy was, for example, proclaimed in 1990 by the final document of the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Co-operation in Europe (CSCE) (representing thirty-four countries, including the USSR, plus the Holy See), which recognized, among other things, that

pluralistic democracy and the rule of law are essential for ensuring respect for all human rights and fundamental freedoms, the development of human contacts and the resolution of other issues of a related humanitarian character [and welcomed] the commitment expressed by all participating States to the ideals of democracy and political pluralism as well as their common determination to build democratic societies based on free elections and the rule of law.²³

More recently, with the Warsaw Declaration of June 27, 2000, the “Community of Democracies,” representing 106 States from all the different geographic, political, and cultural areas of the world, agreed to respect and uphold some core democratic principles and practices, including the rule that “[t]he will of the people shall be the basis of the authority of government, as expressed by exercise of the right and civic duties of citizens to choose their representatives through regular, free and fair elections with universal and equal suffrage . . . .”²⁴

The fact that the principle of democracy is pursued not solely by Western countries is also demonstrated by other relevant international instruments, although not binding per se, adopted at the regional level. For example, the Charter of the Organization of American States (OAS) identifies the aim of “promot[ing] and consolidat[ing] representative democracy” as one of the “essential purposes” of the Organization.²⁵ Also at the OAS level, the Inter-American Democratic Charter solemnly states that “[t]he peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it.”²⁶

Similarly, the 2004 Dar-Es-Salaam Declaration on Peace, Security, Democracy and Development in the Great Lakes Region, adopted under the auspices of the United Nations and the African Union, emphasizes the “need to respect democracy and good governance”²⁷ and to develop “a regional and inclusive vision for the promotion of sustainable peace, security, democracy and development.”²⁸

At the EU level, virtually all agreements concluded by the European Community (EC) with developing countries are characterized by non-reciprocal trade preferences. These preferences are granted with the aim of promoting the social and economic development of the developing countries, and contain a “clause of democracy” conditioning the implementation of the agreements by the EC on the respect for the principle of democracy by the developing State.

Furthermore, for the purpose of the present analysis it is of paramount importance that the right “to take part in the government of [one’s own] country, directly or through freely chosen representatives” is included among fundamental human rights by nearly all pertinent international instruments.²⁹ Such a right, as pointed out by the Universal Declaration of Human Rights, becomes effective when

[t]he will of the people [is] the basis of the authority of government; this will [is to] be expressed in periodic and genuine elections which [must] be by universal and equal suffrage and [must] be held by secret vote or by equivalent free voting procedures.³⁰

In the light of the preceding observations, it appears that the question of whether a government is democratic or dictatorial is no longer a matter laying “essentially within the domestic jurisdiction of any state,”³¹ and that, a fortiori, although an international rule proclaiming the obligation for governments to be founded on the free choice of their citizens does not yet exist ex se, the absolute denial of any kind of democratic participation of the citizens in the life of the country is no longer being tolerated by the international community. It is not just a problem of democracy in a strict sense, but it is a matter that also invades the realm of fundamental rights. The 2005 elections in Iraq, with the Iraqi people risking their lives under the bullets of the rebels just for the opportunity to exercise their right to vote,³² demonstrated how the right to participate in the choice of their own government is perceived as fundamental by all the peoples of the world.
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III. Indigenous Sovereignty

The observations developed in the previous sections serve primarily to define the general context in light of which claims for “indigenous sovereignty,” increasingly being raised in present times, are to be evaluated. This survey generally indicated that sovereignty is commonly understood as an attribute of statehood, as a result of the very nature of international law, which, having been created by Western States, is mainly an expression of their interests and conceptions. If one looks at the whole matter from a “conservative” perspective, one will conclude that, in principle, this depiction of sovereignty has not significantly changed in the present times, despite the development of certain principles, such as the self-determination of peoples, which have only been capable of giving rise to specific exceptions to the principle of sovereignty applicable solely to well-defined and limited circumstances (i.e., in the event of colonial foreign domination). The contemporary international legal order thus appears particularly impervious to claims, like those of indigenous peoples, which threaten to disrupt the unfettered exercise of State sovereignty.³³ At the same time, the international community is progressively recognizing the legal relevance of a number of values (including the right of people to participate in the government) that actually erode the traditional idea of sovereignty as the unconditioned prerogative of the State.

In addition, an objective assessment of the inherent characters of most indigenous nations³⁴ demonstrates that they possess the qualities necessary for qualifying an entity as a State according to international law, as defined by scholars³⁵ and relevant practice:³⁶ a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other States (i.e., independence).³⁷ There is no doubt that most indigenous peoples have always retained permanent populations and, at the time of their defeat, controlled a defined territory. With regard to the second requirement, the fact that the frontiers of their respective territories were often not precisely defined does not preclude that requirement from being satisfied, provided that they had a defined political community.³⁸ Some doubts could be raised with regard to nomadic tribes or peoples, on account of their lack of a stable and “defined territory.”³⁹ However, the concept of statehood is to be contextualized at the time which is relevant with respect to establishing whether a given entity could be considered as sovereign when it was occupied by foreign invaders. In the case of the tribes inhabiting the Western Sahara, the International Court of Justice (ICJ) emphasized that “sovereignty was not generally considered as effected through occupation, but through agreements concluded with local rulers.”⁴⁰ This can be applied to most indigenous peoples at the time when they were defeated by foreign settlers. Under this perspective, even those indigenous peoples that were nomadic at the time of the occupation of their own lands by foreign colonizers could meet the necessary requirements for being considered “States” according to international law applicable at the relevant time. In addition, the third criterion of statehood was certainly possessed by most indigenous peoples as long as they retained control on their lands, as has been confirmed by the ICJ in the Western Sahara case, although they used “schemes” of government not recognized as such by the European settlers at the relevant time.⁴¹ Finally, their independence, i.e., their ability to enter into relations with other States, is demonstrated by the myriad of treaties concluded by such peoples with other sovereign States.⁴²

However, it was on account of the presumed lack of sovereignty of indigenous peoples over the lands traditionally occupied by them that, at the time that the European colonizers placed their feet on the new lands the doctrine of discovery was developed, based on the fictional status of terra nullius (i.e., owned by no one, free of any internationally-recognizable legal authority), used for justifying in “legal” terms the legitimacy of the occupation of the territories newly discovered. Such legitimacy was sanctified by the Pope Alexander VI in the Bull Inter Caetera of May 3, 1493, which recognized Spain’s sovereignty over all territories discovered after Christmas 1492 that were located West of an imaginary line drawn through the Atlantic Ocean from the Artic Pole to the Antarctic Pole (to be distant one hundred leagues towards the west and south from the Azores and Cape Verde), while granting Portugal sovereignty upon whatever it discovered in Africa.⁴³

The fiction of terra nullius continued to be applied for a number of centuries, until the end of the geographic discoveries, allowing the Europeans to colonize all the newly discovered worlds. The only significant exception, at least in principle, to such kind of practice was represented by the Treaty of Waitangi, which was signed on February 6, 1840, in New Zealand between the chiefs of the Confederation of the United Tribes of New Zealand and other Maori tribal leaders on one side and the British Crown on the other side.⁴⁴ Although the correct interpretation of the Treaty has always been debated on account of the different meaning of the terms used in the English version and in the Maori translation, the main content of the treaty may be summarized as follows: the first article grants the Queen of the United Kingdom “governorship” (kawanatanga) over New Zealand, while, according to the second, the Maori chiefs retain rangatiratanga, which literally means “chieftainship,” but in the light of the concrete meaning assigned to it by the Maori it may also mean “absolute sovereignty,” “self-determination” or, to a certain extent, “independence.”⁴⁵ In any event, it embraces the spiritual link the Maori have with Papatuanuku (Earthmother or Mother Earth), and recognizes a certain degree of Maori sovereignty over their ancestral lands.

Nowadays, the starting point of claims for indigenous sovereignty lies exactly in the fact that indigenous peoples were, at the relevant time, illegitimately deprived of the lands ancestrally occupied and governed by them as entities actually owning the attributes of sovereignty pursuant to international law. The original perception that such lands were to be considered as freely occupiable has in fact significantly changed in more recent times.⁴⁶ The fact that, for example, Native American tribes were sovereign over their territories when they were subjugated by the Europeans was already recognized in the early nineteenth century by Chief Justice Marshall of the U.S. Supreme Court, in Johnson v. M’Intosh, by affirming that, at the time that it was discovered by Columbus,

North America . . . was held, occupied, and possessed, in full sovereignty, by various independent tribes or nations of Indians, who were the sovereigns of their respective portions of the territory, and the absolute owners and proprietors of the soil; and who neither acknowledged nor owed any allegiance or obedience to any European sovereign or state whatever.⁴⁷

Today, the concept of “indigenous sovereignty” (i.e., “tribal sovereignty”) is generally meant as self-government (which may be considered as equivalent to “internal self-determination”), the extent of which varies in the different States but, in any event, would never be so wide as to override the supreme sovereign powers of the national government. In other words, any “sovereign” prerogative recognized to indigenous peoples would always be subjected to the control of the territorial State, which may constantly limit or condition, pursuant to its own relevant constitutional or legislative rules, the effective exercise of such prerogatives. The notion of “indigenous sovereignty” is strictly linked to that of “aboriginal title,” which focuses on the ownership by indigenous peoples of the lands occupied by them before the arrival of foreign settlers. The latter concept is based on the assumption that when a colonizing power has acquired sovereignty over a land belonging to indigenous peoples, it would only mean that such power has gained the imperium (right to govern), but not the dominium (ownership right), over such land.⁴⁸ Such dominion would be retained by the indigenous communities concerned unless “expressly extinguished by statute or by voluntary sale or cession.”⁴⁹

The fact that the title in point may be extinguished by statute means that it may be unilaterally extinguished by the State. This observation may apparently be extended to indigenous sovereignty in general, in the sense that, up to the present, its effective enjoyment has been generally based on the determination of the government of the State in which the indigenous communities concerned are located, with the implication that the government could always withdraw any sovereign prerogative to those communities.

The main purpose of the following sections is to ascertain whether this apparently unconditional freedom of national governments to determine the scope of indigenous sovereignty (inclusive of the power to absolutely deny any sovereign prerogative to indigenous peoples) is today limited by international law, on account of the most recent developments achieved by such law in the fields of human and peoples’ rights and of relevant State practice. In other words, does international law, and to what extent, support the legitimate aspiration of indigenous peoples “to choose what their future will be,” as indigenous sovereignty has been efficaciously summarized by a scholar?⁵⁰
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IV. Major Potential Titles of Indigenous Sovereignty

In light of the identification of the elements of the concept of sovereignty and of the principles which may interfere with the determination of the extent of this concept, summarily made in the previous sections, it is now possible to try to ascertain what potential legal titles may be invoked for maintaining the existence of sovereignty rights belonging to indigenous peoples under international law.

At a preliminary stage, it is necessary to emphasize that, according to the notion of sovereignty followed in the present work, sovereignty of indigenous peoples may only exist if, and to the extent that international law binds States, to grant them the exercise of certain sovereign powers that indigenous peoples themselves are in principle entitled to claim and possibly enforce, to whatever extent, at the international level. The degree of indigenous sovereignty corresponds to the scope that such sovereign powers, if existing, are protected by international law, in that it prevents States from having the opportunity of legally interfering with their exercise, which is thus not subject to the decisional power of the territorial government. In other words, States would not be able to condition the autonomy, although limited, of indigenous peoples, by relying on their domestic law, and would thus be compelled to respect the degree of sovereignty granted to them by international law without interfering with its exercise. In the event, and to the extent that, it exists, such kind of sovereignty would be parallel to that held by the territorial State, in the sense that it could not invade the competences of the latter which, for its part, could not inhibit indigenous peoples from enjoying their sovereign powers as recognized by international law.

A. Recognizing the Invalidity of the Original Title of Indigenous Lands Occupation and of the Native Title’s Legal Significance

1. The Relevant Practice

The “original sin” which led to the “occupation” by foreign settlers of the ancestral lands of indigenous peoples lies, as previously emphasized, within the fiction of terra nullius. At the time of the discovery and occupation of those lands, the European colonizers claimed the legality of their conduct on the basis of the alleged fact that no legal organization existed which governed such territories.⁵¹ As previously noted, this fiction was continued for a number of centuries, but in recent times its legality has been strongly challenged, and eventually, denied.

At the international level, the invalidity of the principle of terra nullius has been proclaimed by the ICJ in its 1975 Advisory Opinion on the Western Sahara, stating that at the time of colonization by Spain the territory was not a land belonging to no one, since it “was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them.”⁵² It is indisputable that at the time of the European occupation of the lands ancestrally belonging to indigenous peoples virtually all these peoples were politically organized in the sense explained by the ICJ.

A similar doctrine has been developed at the domestic level by most States where indigenous communities live. In the United States, for example, the original title of sovereignty of indigenous peoples has been recognized since the first half of the nineteenth century, with the historical findings of Chief Justice John Marshall of the United States Supreme Court.⁵³ In the two historical cases Cherokee Nation v. Georgia and Worcester v. Georgia, Chief Justice Marshall introduced a narrative of the Indian tribes as nations, although “domestic dependent nations,” clearly denying that their traditional lands were nullius at the time of their occupation by the Europeans.⁵⁴ In the words of Justice Marshall, those nations had been admitted by the U.S. Constitution “among those powers who are capable of making treaties . . . We have applied [the words ‘treaty’ and ‘nation’] to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.”⁵⁵

From this sentence it appears the Indian nations had sovereign rights comparable to those owned by foreign States. Nevertheless, the fact that the native peoples were recognized as “domestic dependent nations” implied that they were permanently subordinated to Congress as a matter of American law and that, as the majority of the Court held, “an Indian tribe or nation within the United States is not a foreign state in the sense of the constitution, and cannot maintain an action in the courts of the United States.”⁵⁶

In more recent times, the Supreme Court explicitly recognized that “&391;b&393;efore the coming of the Europeans, the tribes were self-governing sovereign political communities,”⁵⁷ and their powers are, in principle, “inherent powers of a limited sovereignty which has never been extinguished,”⁵⁸ although they are “no longer ‘possessed of the full attributes of sovereignty.’”⁵⁹ Thus, in the words of the Supreme Court,

[the] incorporation [of Indian tribes] within the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised . . . . In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.⁶⁰

These findings have been ultimately confirmed in the recent case of United States v. Lara, when the Court defined the power of Indian tribes over their land and people as “inherent sovereignty.”⁶¹ According to Justice Stevens, this is based on the circumstance that such tribes “governed territory on this continent long before Columbus arrived.”⁶² But the Court was very careful in confirming that Congress has “plenary and exclusive powers over Indian affairs . . . .”⁶³ In concrete terms, the sovereign prerogatives of Indian nations entail, “in addition to the power to punish tribal offenders, the . . . inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members”;⁶⁴ that is, the power of legislating with regard to the matters of tribal competence and the corresponding authority to enforce respect of the relevant rules within their jurisdictional limits, through the use of the means typical of any governmental authority, including tribal courts (existing since 1883). Although such courts do not have full jurisdiction over non-Indians,⁶⁵ they may exercise civil authority over non-members within tribal lands to the extent necessary to protect health, welfare, economic interests, or political integrity of the tribal nation.⁶⁶ In addition, as stated by the U.S. Supreme Court in 1990, they “possess their traditional and undisputed power to exclude persons who they deem to be undesirable from tribal lands . . . . Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain and transport him to the proper authorities.”⁶⁷

Similar developments have characterized the evolution of the legal recognition of the original title of indigenous sovereignty outside the United States. In Australia, the turning point which led to a break with the past was the landmark decision pronounced by the High Court in the 1992 case Mabo v. Queensland [No.2], when the Court debunked the fiction of terra nullius as historically invalid and not in accordance with modern standards of human rights and justice.⁶⁸ The Court recognized the survival of common law Native Title, in co-existence with the radical (that is to say “sovereign,” or “plenary”) title of the British Crown, as implying the right of aboriginal peoples “as against the whole world to possession, occupation, use and enjoyment of” any portion of the lands owned by them prior to the establishment of the British Colony of New South Wales in 1788, except in the case that such title has been legally extinguished.⁶⁹ It is a title that, in any event, may be legally extinguished by the competent governmental authorities “by valid exercise of their respective powers.”⁷⁰ The principle proclaimed by the Court has successively been taken in by national legislation, through the enactment of the Native Title Act of 1993⁷¹ and, following another important decision of the High Court, Wik v. Queensland of 1996,⁷² the Native Title Amendment Act of 1998.⁷³ Unfortunately, in drafting such legislation, the Australian Parliament devoted primary attention to a preoccupation with placating the interests of non-aboriginals on indigenous lands threatened by the Court’s recognition of the aboriginal title.⁷⁴ Also, thanks to the fact that the High Court failed to address in concrete terms the issue concerning the specific titles on the land, which could lead to the extinction of the Native Title,⁷⁵ the Australian Parliament recognized that, in the event of conflict between the Native Title and other titles granted by the Crown, the latter prevail.⁷⁶ More recently, in the 2002 judgments of Ward (also known as Miriuwung Gajerrong)⁷⁷ and Wilson,⁷⁸ the High Court confirmed that the Native Title may be partially or totally extinguished by competing titles granted by the Crown, such as pastoral and mining leases.⁷⁹

In Canada aboriginal rights, including the Native Title, have been recognized at the constitutional level since 1982, by the Constitution Act, stating that “[t]he existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognised and affirmed.”⁸⁰ By virtue of this provision, all native rights existing at the time of the adoption of the constitutional amendment, whether derived from common law or treaty, are protected, while those that had been previously extinguished have no constitutional protection. This protection is not absolute, and may be overridden in the presence of certain conditions, which were defined by the Supreme Court in the 1990 judgment concerning the case of Sparrow v. The Queen.⁸¹ In particular, according to the Court, “[l]egislation that affects the exercise of aboriginal rights will be valid if it meets the test for justifying an interference with a right recognized and affirmed” under the 1982 Constitution Act.⁸² Thus, any legislative objective “must be attained in such a way as to uphold the honour of the Crown and be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada’s aboriginal peoples.”⁸³

To meet this condition it is necessary that, first, a prima facie interference by the legislation enacted by the Crown giving rise to an adverse restriction of the exercise of the constitutionally protected natives’ rights is found;⁸⁴ and, second, the interference must be justified.⁸⁵ The “justification test” involves two steps: the existence of a valid legislative objective must be ascertained and, if such objective is found, “the special trust relationship and the responsibility of the government vis-à-vis aboriginal people” must be considered.⁸⁶ That is, the legislative objective is to be balanced with the special trust relationship between the Crown and aboriginal peoples.

In 1995, the Canadian Government explicitly recognized the inherent right of self-government of indigenous peoples, which

is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources.⁸⁷

And while differing views exist, “the Government acknowledges that the inherent right of self-government may be enforceable through the courts.”⁸⁸

The Supreme Court’s 1997 judgment concerning the case Delgamuukw v. British Columbia⁸⁹ is also of great importance, representing a clear step forward, “in a more expansive and culturally sensitive way,”⁹⁰ with respect to the jurisprudence of the High Court of Australia concerning the Native Title. In particular, the Court emphasized that the aboriginal title “encompasses the right to exclusive use and occupation of land.”⁹¹ The “content of aboriginal title is not restricted to those uses which are elements of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right,”⁹² but also incorporates modern uses of the land, including mineral rights and the exploitation of minerals.⁹³ In addition, the Court considered the aboriginal title as inalienable, affirming that it “cannot be transferred, sold or surrendered to anyone other than the Crown and, as a result, is inalienable to third parties.”⁹⁴ Also, the Court placed emphasis on the opportunity to resolve disputes involving conflicting interests connected to the aboriginal title through recourse to negotiations, by recalling what it had previously said in Sparrow v. The Queen, that section 35(1) of the 1982 Constitution Act “provides a solid constitutional base upon which subsequent negotiations can take place.”⁹⁵ In this context, “the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith.”⁹⁶ Finally, with respect to the decisions taken by the Crown concerning aboriginal lands, the involvement of aboriginal peoples is always to be ensured. This implies:

There is always a duty of consultation . . . . The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.⁹⁷

With regard to the African continent, a recent judgment of the Constitutional Court of South Africa, concerning the Richtersveld indigenous community, is worth mentioning.⁹⁸ In this dispute, the community (belonging to family of the San people) claimed restitution of its ancestral land, of which it had been progressively deprived by the South African government from 1926 onwards (the “expropriation” was completed in 1993) after the discovery of diamonds in its subsurface. The claim was based on section 2(1) of Land Rights Act (Act 22 of 1994), which, in giving effectiveness to section 25(7) of the South African Constitution of 1996, states that a community dispossessed of its own land after June 19, 1913 (the date in which the Natives Land Act 27 of 1913, which deprived black South Africans of the right to own lands and rights in the land in the great majority of South African territory, came into operation), as a result of past racially discriminatory laws or practices is “entitled to restitution of a right in land.”⁹⁹ In dealing with this case, the Court preliminarily ascertained whether the Richtersveld Community could be considered as owning the subject land prior to the annexation of the relevant territory by the British Crown, which took place in 1847.¹⁰⁰ The Court held that, at the relevant time, the “land was communally owned by the community” concerned.¹⁰¹ This conclusion was reached on the basis of indigenous law, i.e., “the law which governed [the] land rights” of the Richtersveld Community at the relevant time,¹⁰² which is to be evaluated in light of the social and philosophical vision and criteria proper of the community, without making the error of “view[ing] indigenous law through the prism of legal conceptions that are foreign to it,”¹⁰³ and particularly, “without importing English conceptions of property law.”¹⁰⁴ Under indigenous law, indigenous land rights included “communal ownership of the minerals and precious stones,”¹⁰⁵ as demonstrated by the fact that the Richtersveld Community commonly used minerals for adornment purposes, that “outsiders were not entitled to prospect for or extract minerals . . . [and] that the Richtersveld Community granted mineral leases to outsiders between the years 1856 and 1910.”¹⁰⁶ In light of this, and after having ascertained that the 1847 annexation of the territory, in which the subject land was located, by the British Crown did not imply the extinguishment of the indigenous title over such land, the Court went on to consider whether, pursuant to section 2(1) of the Land Rights Act, the dispossession of the rights of the Richtersveld Community taking place after 1913 was the result of racially discriminatory laws or practices.¹⁰⁷ The conclusion was that, “given that indigenous law ownership is the way in which black communities have held land in South Africa since time immemorial,” the “inevitable impact” of the dispossession of land rights belonging to the Richtersveld Community, in that it entailed the “failure to recognise indigenous law ownership,” and “was racially discriminatory against black people who were indigenous law owners.”¹⁰⁸ In other words, according to the Court, “the racial discrimination lay in the failure to recognize and accord protection to indigenous law ownership while, on the other hand, according protection to registered title[s]” of white diamond exploiters.¹⁰⁹ The Court thus declared that the Richtersveld Community was entitled to “restitution of the right to ownership of the subject land (including its minerals and precious stones) and to the exclusive beneficial use and occupation thereof.”¹¹⁰

The practice referred to in the present paragraph is not limited to a restricted group of States, since most countries in whose territories indigenous peoples are living have surrendered to the duty of recognizing a given degree of autonomy (i.e., sovereignty) in favor of such peoples. This has happened, for instance, in Norway,¹¹¹ where, since 1971, significant legislative¹¹² and judicial steps have eventually led to the approval, in 1988, of the new article 110(a) of the Constitution, affirming that “it is the responsibility of the authorities of the State to create conditions enabling the Sami people to preserve and develop its language, culture and way of life.”¹¹³ In New Zealand, the Treaty of Waitangi Act of 1975 finally gave effectiveness to the treaty signed in 1840 by the British Crown with the Maori chiefs, by instituting the Waitangi Tribunal and regulating disputes concerning the land and related rights between indigenous and European-originated people according to a scheme not dissimilar to that of intergovernmental negotiations.¹¹⁴ Also, in 1993, the Constitutional Court of Colombia recognized that the exploitation of natural resources in indigenous lands raised a constitutional problem which involved the ethnic, cultural, social, and economic integrity of the communities that live therein.¹¹⁵ Last but not least, in recent years, Malaysian courts have recognized, the indigenous right of ownership of their ancestral land based on customary law, although such right may be terminated by the government, which retains the power to acquire the lands concerned through the payment of adequate compensation.¹¹⁶

2. The Inadequacy of the Recognition of the Invalidity of the Title of Terra Nullius and of the Legal Significance of the Native Title, Ex Se, as Foundation of Indigenous Sovereignty

Having ascertained the existence of a widespread practice, both at the international and (especially) domestic level, that recognizes the original invalidity of the title of occupation (based on the invention of the concept of terra nullius) of the lands originally belonging to indigenous communities, the question which arises concerns the relevance of such recognition in the framework of international law. In other words, is such recognition capable of producing significant consequences at the international level, thus creating some kind of foundation for indigenous claims of sovereignty and corresponding State obligations?

A pragmatic and objective assessment of the whole matter shows quite clearly that the answer to the question, in purely legal terms, is negative. According to international law, sovereignty is linked to the effective control of a territory, and when this effectiveness exists (accompanied by effective independence) it normally amounts to sovereignty, irrespective of the way in which this control has been attained. Relevant practice demonstrates that, also in recent history, the fact that a territory has been acquired by using unlawful means has never constituted an obstacle to the effective acquisition of sovereignty over the territory, except in specific cases, essentially linked to the movement for decolonization. In the contemporary international legal regime, the existing division of sovereignty among States is well-crystallized, and the principle of (external) self-determination of peoples may only attract (with the exception of colonial peoples) new situations generated after the end of World War II.¹¹⁷ It is thus not applicable to the occupation of the lands of indigenous peoples.

It is true that the express denial of the relevance of the original title of terra nullius resulting from the practice illustrated in the preceding paragraph has an indisputable moral significance, which may result in a strong pressure over States aimed at persuading them to recognize a given degree of autonomy in favor of indigenous peoples. Nevertheless, in strictly legal terms, the choice whether such autonomy is to be granted or not, if considered solely under the perspective examined in the present paragraph, lies in the free determination of the sovereign territorial State.

Logically speaking, this conclusion could appear to change when considering the whole matter from the perspective of decolonization, based on the principle of self-determination of peoples. The fact that most indigenous peoples, as peoples originally subject to alien domination, would factually meet the legal requirements for having access to self-determination (in the meaning of the term which led to decolonization) is logically undeniable on the basis of the ICJ’s decision in the Western Sahara case¹¹⁸ and of the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples;¹¹⁹ in addition, the fact that the rejection of the legal fiction of terra nullius, both at the international and domestic level, implies the acknowledgement of the prior occupation by indigenous peoples of their ancestral lands. Nevertheless, the fact remains that the content of international law is determined only by States, which may establish, through their consistent practice and mental behaviour (i.e., opinio juris), whether a given rule exists or not, often at the prejudice of legal coherence. This circumstance was recalled by the U.S. Court of Appeals in the recent judgment United States v. Yousef, when the Court stated that, for determining the content of international law, one must primarily consider “the formal lawmaking and official actions of States and only secondarily . . . the works of scholars as evidence of the established practice of States.”¹²⁰ With this incontestable dogma in mind, prior consideration is to be attributed to the fact that States have always strongly opposed (and continue to oppose) the recognition of the right to self-determination, conceived in its external connotation, in favor of indigenous peoples. This is demonstrated, in particular, by the very first article of the only binding international instrument in force at the universal level specifically dealing with such peoples, the 1989 ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, which makes it clear that “[t]he use of the term ‘peoples’ in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.”¹²¹ In addition, it is a fact that most States, although recognizing a limited degree of indigenous sovereignty, consider such sovereignty as subordinated to the circumstance that the territorial government does not exercise its right to extinguish the aboriginal title within the context of the exercise of its sovereign power over the national territory. Most of the aforementioned judgments have been based on acts, laws, or statutes enacted by the States concerned that, as they have been adopted, in principle, may always be abrogated. Furthermore, in some countries, like Australia, the Native Title, although recognized in principle, is very precarious in practice, and may be easily extinguished by granting alternative titles over the land to non-aboriginals. Consequently, the recognition of such title at the domestic level, within the restricted terms just noted, may not, on its own, be considered as an argument capable of granting indigenous peoples the chance to claim and enforce their sovereign rights under international law against the “plenary” sovereign title of the territorial State.

However, the most recent developments concerning the matter at issue could support the inference that this conclusion should be subject to change. In particular, twelve years after its approval by the Sub-Commission on the Promotion and Protection of Human Rights (formerly “Sub-Commission on Prevention of Discrimination and Protection of Minorities”), in June 2006, the Human Rights Council was finally able to adopt the U.N. Draft Declaration on the Rights of Indigenous Peoples, which had previously been delayed for such a long time due to the very fact of the use of the term “peoples” in the draft text and the implications associated to this term in international law.¹²² The Declaration expressly recognizes the right of indigenous peoples to self-determination, encompassing the right to freely determine “their political status and freely pursue their economic, social and cultural development” (article 3), “the right to autonomy or self-government in matters relating to their internal and local affairs” (article 4), and “the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions” (article 5).¹²³ May the adoption of this Declaration be considered as evidence that States have surrendered to the need of recognizing indigenous sovereignty? It is too soon, at the moment of writing, to provide an answer to this question. The adoption of the Declaration is certainly a very significant development in this respect, but one cannot ignore that certain major countries (including Australia, Canada, and the United States) have opposed its approval—preventing its final adoption by the General Assembly so far—and in any event only time will tell whether it will attain a relevant role in the context of pertinent international practice. For this reason, at the moment, legal caution suggests supporting the conclusion that neither the recognition of the invalidity of the original title of occupation of the ancestral land belonging to indigenous peoples nor the principle of self-determination may be invoked, in themselves, as legal bases for claims of indigenous sovereignty, although this implicates a clear lack of coherence between international norms that would be unacceptable in any “advanced” domestic legal regime.

Having said this, even at the present stage, the adoption of the Declaration by the Human Rights Council may be considered as an important manifestation of State practice, and it thus raises the question whether customary international law has evolved toward the recognition of indigenous sovereignty. This idea would be strongly reinforced in the event that the recognition by most countries of the Native Title could be considered as the result of the implementation of an international obligation binding States to take such conduct or as the element of diuturnitas progressively leading to the shaping of such an obligation, to recognize a given degree of sovereignty in favor of indigenous peoples. In these cases, an international customary provision having such content should be considered, respectively, as actually established or in the process of being crystallized in its definitive shape. We will try to asses the existence and nature of the norm below.

B. Delegation of Powers by the State

1. The Practice of the Delegation of Sovereign Powers by States in International Law

In abstract terms, another possible title for indigenous sovereignty could be the one resulting in the delegation of powers by territorial States, handing over certain sovereign prerogatives to indigenous communities. It is a model which is currently practiced in the context of international law, and is capable of limiting State sovereignty in favor of alternative sovereign powers that, in certain circumstances, may be imposed upon the same States which have transferred them to the non-State sovereign entity concerned. That is the model of international organizations, to the extent that they retain binding powers. These powers are delegated by member States through the ratification of the agreements instituting such organizations or additional ad hoc treaties, sometimes to the extent that the organization concerned owns the exclusive authority of legislating with regard to certain matters, imposing the results of such authority upon the member States. The main example of this reality is given by the European Community, in the context of which the Council of Ministers (which often needs the approval of the European Parliament) retains the primary legislative authority with respect to the matters of competence of the Community, while member States may exercise their outstanding normative powers only to a limited extent and always in accordance with the rules adopted by the Council.

In this context, one could certainly object that, in any event, the sovereignty of international organizations is never of absolute character, since member States always retain the power of withdrawing from any organization they are member of, thus revoking the powers previously delegated. Even the Constitutional Treaty of the European Union (not yet in force at the time of writing) takes a clear position on this previously unresolved problem by affirming that “[a]ny Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”¹²⁴ This notwithstanding, the effectiveness of this kind of sovereignty is undeniable, as it is indisputable that it actually supersedes the determination of the States concerned, which may even be constrained to accept it against their own will.

2. The Lack of Relevant Practice Concerning the Delegation of Sovereign
Powers by States to Indigenous Peoples

In general terms, this method of acquisition of sovereignty does not apply to the case of indigenous peoples according to the contemporary international practice. Although certain limited sovereign powers may be delegated to them by States, they are usually confined to the realm of domestic law, where the government concerned retains the supreme authority for regulating, limiting, and eventually withdrawing such powers under its domestic law. Consequently, as noted in the previous paragraph, the powers granted to indigenous peoples by States are generally not enforceable at the international level, in the sense that such peoples may not rely on them for asserting the existence of international obligations binding territorial States to grant them a given degree of autonomy.

This conclusion could only change where certain sovereign powers were delegated to indigenous communities pursuant to an international treaty; in that case, ratifying States would be bound to respect their international obligation, vis-à-vis their consociates, of recognizing and granting in favor of indigenous peoples the effective exercise of the rights and powers contemplated by the agreement(s) concerned. In that case, it would be possible to properly talk about indigenous sovereignty as the result of delegation of powers by States.

At present, the foremost multilateral treaty concerning indigenous peoples is the 1989 ILO Convention (No. 169).¹²⁵ The main purpose of the document was to remove the “assimilationist orientation” of the previously adopted Indigenous and Tribal Populations Convention (No. 107) through the partial revision of its provisions.¹²⁶ The aspirations of indigenous peoples “to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live” are thus recognized, acknowledging their right, to a certain level of autonomy as well as to participate in decisions concerning their own interests.¹²⁷ In any event, it does not seem that the Convention grants effective attributes of sovereignty in favor of indigenous peoples. Part I recognizes their right to be consulted with regard to “legislative or administrative measures which may affect them directly” and to participate (“to at least the same extent as other sectors of the population”) at all levels of decision-making concerning programs or policies affecting them directly.¹²⁸ They also have the right to decide their own priorities “for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the land they occupy or otherwise use,”¹²⁹ as well as the right to have their customs with respect to penal matters, “taken into consideration” by the judicial authorities dealing with such matters.¹³⁰ It does not seem that these may be considered as attributes of sovereignty, but rather as rights that are recognized by citizens in any democratic State. The main theme that emerges from Part I of the Convention is the goal of ensuring that members of indigenous communities receive the same treatment granted to other “sectors of the population,” taking into account their own peculiar customs and traditions.¹³¹

This conclusion could appear rather different when looking at Part II, which deals with land rights. Article 14 proclaims the obligation of recognizing “[t]he rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy,” adding that “measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities.”¹³² Article 15 even recognizes the right of indigenous peoples, to be “specially safeguarded” to the natural resources pertaining to their lands, which includes the right “to participate in the use, management and conservation of these resources.”¹³³ Nevertheless, paragraph 2 of the same article, although providing the right of the peoples concerned to be consulted and to participate in the benefits drawing from “programmes for the exploration or exploitation of such resources pertaining to their lands,” in the end authorizes State parties to perform such activities in any case, subject only to the condition to grant “fair compensation” in favor of the autochthonous communities which sustain damages as a result of the said activities.¹³⁴ In addition, according to article 16, such communities may even be removed from their ancestral lands, although only in exceptional cases (the exceptionality of which is in any case decided by the State concerned) and following special procedures.¹³⁵ In such cases, the peoples concerned have the right to return to their traditional lands “as soon as the grounds for relocation cease to exist.”¹³⁶ But, when the return is not possible (again, it is up to the State to decide) the State concerned is only obliged to grant them full compensation for “any resulting loss or injury.”¹³⁷ As a consequence, it is pretty clear that land rights provided for by Part II of the Convention amount, rather than to sovereign powers, to a mere right of ownership that is generally recognized by most States in favor of any citizen (despite that in the case of indigenous peoples such right is of a collective character), a right that may be expropriated when it is required by public needs, subject only to the granting of fair compensation in favor of the expropriated person(s). There is no delegation of sovereignty, as this term is understood in international law, made by States in favor of indigenous peoples.

There is no need to emphasize the scarce impact of ILO Convention (No. 169) in the framework of the international legal order, on account of the fact that, to date, only seventeen countries have ratified this Convention, with the exclusion of key countries such as Australia, Canada, New Zealand, all African States, and the United States.¹³⁸

The content of ILO Convention (No. 169) reflects the typical scheme of contemporary State practice in the field of indigenous peoples, mainly consisting of granting to such peoples certain participatory or local rights, which never amount to actual internationally relevant sovereign powers (that is to say sovereign powers claimable at the international level by whatever entity against a State); such rights are ultimately subject to the supreme authority of the territorial government. It is thus not possible, in the present state of international law, to assert that there actually is a model of delegation of powers by States in favor of indigenous peoples which may effectively be considered as a title of indigenous sovereignty.

C. Rules of Customary International Law

1. The Growing Interest of International Law for the Protection of the Identity and the Rights of Indigenous Peoples¹³⁹

In the framework of international law, the various legal and judicial approaches taken by States with regard to indigenous peoples (as discussed earlier),¹⁴⁰ as well as ILO Convention (No. 169), are certainly to be considered as examples of international practice. As is well known, practice is, together with opinio juris, one of the two constitutive elements of customary international law. It is thus opportune to investigate whether such practice—which has today reached a worldwide dimension and is rather constantly reiterated—is accompanied by the other element of customary international law, i.e., opinio juris—with the purpose of ascertaining whether an international principle exists (or is at least emerging)—in the form of an international customary obligation, one which (all) States are bound to observe, establishing the right of indigenous peoples to actually enjoy a given degree of sovereignty within the territory in which they live. In practical terms, it is necessary to ascertain whether the practice is to some extent the consequence of the perception, by the States concerned, of the necessity to comply with applicable international law or, on the contrary, it is simply the result of the natural evolution of their internal law irrespective of the existence of any related international obligation. In order to fulfill this task, the first task is to determine whether indigenous peoples represent an “element” of interest of international law, as well as the “terms” according to which such interest has evolved.

It is indubitable that in the last two decades the international community has drastically modified its approach towards indigenous peoples. They have turned from the characterization of obstacles to the fulfilment of State interests, into a “value” perceived as worth protecting in its own idiosyncratic nature by all relevant actors of international law. This is definitely indicated by pertinent practice. For example, as already stressed, in 1989, the International Labor Organization revised its assimilationist Convention (No. 107) by adopting the more progressive Convention, No. 169, which recognizes the right of indigenous peoples to preserve their own identity and to develop according to their way of life and to their beliefs. Also, in 1993 the U.N. General Assembly launched the First International Decade of the World’s Indigenous People (1994-2004) with the main purpose of strengthening international cooperation for the solution of the main problems faced by indigenous peoples in areas such as human rights, environment, development, education, and health.¹⁴¹ Although the Decade did not reach its main purpose, i.e., the adoption of the Draft Declaration on the Rights of Indigenous Peoples, the Declaration was later adopted by the Human Rights Council in June 2006,¹⁴² during the Second International Decade of the World’s Indigenous People (starting from January 1st, 2005) which was proclaimed in 2004 by the General Assembly.¹⁴³ Still, at the U.N. level, a Working Group on Indigenous Populations (established by ECOSOC Res. 1982/34) has existed since the early 1980s as a subsidiary organ of the Sub-Commission on the Promotion and Protection of Human Rights, carrying out a twofold mandate consisting of reviewing developments pertaining to the promotion and protection of human rights and fundamental freedoms of indigenous peoples and devoting attention to the evolution of international standards concerning indigenous rights.¹⁴⁴

Outside the U.N., the activity of the World Bank in the field of indigenous peoples’ rights is worth mentioning. In particular, the Bank’s Draft Operational Policy 4.10, ultimately revised in 2004, has the main purpose of contributing to the Bank’s “mission of poverty reduction and sustainable development by ensuring that the development process fully respects the dignity, human rights, economies, and cultures of Indigenous Peoples.”¹⁴⁵

On account of these (and other)¹⁴⁶ developments, it is logical to maintain that indigenous peoples have finally emerged as a distinct subject of international law, and are thus holders of rights (and, of course, duties) under this legal regime.

2. The Foundations of the Existence of a Norm of Customary International Law Concerning Indigenous Sovereignty

Having ascertained this, it is now time to assess whether the existence of binding rules in some way relating to indigenous sovereignty may be found within the contemporary system of international law. With this purpose in mind, one could refer to the ICJ’s 1975 Advisory Opinion on Western Sahara.¹⁴⁷ With its finding on the fiction of terra nullius, the Court “destroyed” the foundations on which the assumed legitimacy of the possession of traditional indigenous lands by modern governments is based. Although, as already noted, this is not in itself sufficient for challenging the integrity of State sovereignty from a strictly legal perspective, it does provide a strong “moral” basis to the argument that indigenous peoples should somehow be “compensated” for the illegitimate appropriation of their ancestral territories through the recognition of a given degree of autonomy in their favor. This argument is supported by the most recent developments of relevant international law.

In this sense, the practice of the Human Rights Committee concerning the interpretation of article 27 of the International Covenant on Civil and Political Rights (ICCPR) emerges.¹⁴⁸ It is true that the Committee, in the famous case of the Lubicon Lake Band v. Canada¹⁴⁹ and in its General Comment on article 27 of the Covenant,¹⁵⁰ found that an individual author is unable to claim a violation of the right to self-determination under article 1 of the ICCPR because the right is conferred upon peoples, not individuals.¹⁵¹ But what is important for the present work is that the Committee proclaimed the principle that article 27 binds States to carry out certain activities in their territory, which could be capable of impairing the right of indigenous peoples to enjoy their culture, according to modalities which ensure the full enjoyment of such right by the peoples concerned.¹⁵² In the words of the Committee, “measures whose impact amount to a denial of the right [of a member of a minority to enjoy his culture] will not be compatible with the obligations under article 27.”¹⁵³ In the practice of the Committee, the scope of this provision regards, in particular, the exploitation of natural resources and, more generally, the use of land, and it grants indigenous peoples a limited sovereignty over such assets (restricting, at the same time, State sovereignty), since the concrete effect of the obligation in point is that the territorial government is actually prevented from performing activities which may have the effect of impairing the right of indigenous peoples to enjoy their own culture (except in the event that such peoples give their prior and informed consent to the above activities).

In addition, the implementation of article 27 may also bind States parties to take positive measures having the effect of granting a limited degree of sovereign prerogatives to indigenous peoples:

[C]ulture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of these rights may require positive legal measures to ensure the effective participation of members of minority communities in decisions which affect them . . . . The protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole.¹⁵⁴

The recognition of cultural rights of peoples represents one of the main concerns of the international community; the duty or the obligation to grant the involvement of interested (indigenous or not) communities in the management of cultural heritage is increasingly recognized in the relevant international instruments. This kind of obligation is, for example, proclaimed, although in soft terms, by the 2003 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage, which states that in the context “of its safeguarding activities of the intangible cultural heritage, each State Party shall endeavour to ensure the widest possible participation of communities, groups and, where appropriate, individuals that create, maintain and transmit such heritage, and to involve them actively in its management.”¹⁵⁵ Also, the recent conclusion of the controversy concerning the uranium enclave of Jabiluka, located in the Australian Kakadu National Park (sacred land of the Australian aboriginal people Mirrar, also inscribed in the World Heritage List¹⁵⁶) is further evidence that States may no longer ignore the interests of indigenous peoples, and that their sovereign powers are effectively limited by parallel powers that are consolidating in favor of culturally distinct communities. This controversy was triggered by the decision of the Australian government, in 1991 (based, in part, on the alleged consent given by the Aboriginal traditional owners of the land), to transfer to the firm Energy Resource of Australia (ERA) the lease on the Jabiluka enclave for the extraction of uranium. The Mirrar, who did not recognize the validity of the consent given by indigenous representatives, have fought for more than a decade for the preservation of their motherland. Finally, in 2003, the government of the Northern Territory of Australia (where the Kakadu National Park is located) approved a plan for terminating the controversy which provided that the ERA would backfill the 1.2 kilometre decline caused by the excavations of the Jabiluka site with 47,000 tons of uranium and non-mineralized rock, thus re-establishing the original state of the place.¹⁵⁷ This operation was terminated in late 2003, and, on February 25, 2005, the ERA, although retaining the lease on the mine, ensured that no future mining development at Jabiluka will be carried out without the explicit permission of the Mirrar people.¹⁵⁸ The added value of the present case for the present work is that the described outcome has mostly been the result of constant international pressure, demonstrating the perception by the international community of the existence of an obligation to grant indigenous peoples the control of their lands.

The denial of a reasonable degree of sovereignty allowing indigenous peoples to enjoy their individual and collective rights may also entail State responsibility for racial discrimination. According to the Committee on the Elimination of Racial Discrimination (CERD), the violation of such rights is the consequence of the fact that “the preservation of their culture and their historical identity has been and still is jeopardized” due to the loss of their lands to “colonists, commercial companies and State enterprises.”¹⁵⁹ States are thus called to “[e]nsure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent,”¹⁶⁰ to “[e]nsure that indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs and to preserve and to practise their languages,”¹⁶¹ and, especially

to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories.¹⁶²

The legal obligation to guarantee an acceptable degree of sovereignty to indigenous peoples within their ancestral lands has also been proclaimed at the regional level. In particular, the 2001 decision of the Inter-American Court of Human Rights in the case of the Mayagna (Sumo) Community of Awas Tingni v. Nicaragua, concerning a concession granted by the Nicaraguan government to a private corporation for exploiting natural resources on the lands used and occupied by the Awas Tingni indigenous community, is worth mentioning.¹⁶³ In this regard, the first point to be highlighted is that, concerning the right to property as established by the American Convention on Human Rights,¹⁶⁴ the Inter-American Commission on Human Rights, in its lawsuit filed before the Court against Nicaragua, asserted that, “there is an international customary international law norm which affirms the rights of indigenous peoples to their traditional lands.”¹⁶⁵ In replying to the arguments raised by the Commission, the government of Nicaragua did not refute the existence of such a norm, but, on the contrary, broached a number of arguments (including the alleged lack of ancestrality of the lands owned by the Awas Tingni community, the alleged recognition of the indigenous title to land by domestic legislation, the alleged disproportionate extension of the land concerned to the number of members of the community and the alleged fact that the debated activities were restricted to areas not included within the traditional lands of the Awas Tingni)¹⁶⁶ which implicitly showed its acquiescence with the assumption of the Commission. Also, the Court stated that, on the basis of “an evolutionary interpretation of international instruments for the protection of human rights,”¹⁶⁷ the right to property includes, “among others, the rights of members of the indigenous communities within the framework of communal property . . . .”¹⁶⁸ Such a collective property right is to be appraised under the perspective of the holistic vision of life of indigenous peoples,

in the sense that ownership of the land is not centered on an individual but rather on the group and its community. Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.¹⁶⁹

In light of this, “the members of the Awas Tingni Community have the right that the State carry out the delimitation, demarcation, and titling of the territory belonging to the Community; and . . . abstain from carrying out, until that delimitation . . . actions that might lead the agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the property located in the geographical area where the members of the Community live and carry out their activities,”¹⁷⁰ “in accordance with their customary law, values, customs and mores.”¹⁷¹ The Court thus found that Nicaragua violated “the right of the members of the Mayagna Awas Tingni Community to the use and enjoyment of their property,”¹⁷² which includes the resources located in the relevant area.¹⁷³ Although the Court did not use the term sovereignty, it clearly appears from the words used in defining the nature of the right of indigenous peoples over their traditional lands that such right encompasses a certain degree of sovereign powers, since it is not at the unreserved disposal of the territorial government as “ordinary” property (which may normally be expropriated for legitimate public grounds).

Finally, a considerable number of soft law instruments dealing with various matters proclaim the duty of States to respect the identity and autonomy of indigenous peoples, implying a more or less limited recognition of sovereign powers in their favor. To cite just one example, the 1992 Rio Declaration on Environment and Development states that

Indigenous peoples and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.¹⁷⁴

In sum, the recent evolution of international law concerning indigenous peoples demonstrates that a principle has emerged requiring States to recognize a given degree of sovereignty in favor of such peoples. The fact that nearly all States concerned have adjusted their relevant internal law to the above principle and have accepted rules which often go against their own interests (since the recognition of indigenous autonomy may generate serious obstacles to the exercise of certain governmental prerogatives, such as the exploitation of natural resources), confirms that they actually feel themselves bound to conform to such international obligation. In other words, the evidence shows that States feel compelled to grant a certain degree of sovereignty in favor of indigenous peoples, so as to conform their domestic law to international law. Thus, the relevant practice is accompanied by the “evidence of a belief that [it] is rendered obligatory by the existence of a rule of law requiring it.”¹⁷⁵ It is the element of opinio juris, which represents the second necessary element, together with practice, shaping a norm of customary international law recognizing indigenous sovereignty.
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V. The Nature and Extent of Indigenous Sovereignty Under Customary International Law

On the basis of the relevant practice, customary international law affirms the right of indigenous peoples to a given degree of sovereignty within the State territory in which their traditional lands are located, customary law also prescribes a corresponding obligation upon national governments to recognize and ensure the effective enjoyment of such right by the indigenous communities concerned.

As for the nature and the extent of such sovereignty, the practice referred to above demonstrates that the provision does not define exactly the degree of sovereignty that must be granted to indigenous peoples. The fact that most States have not ratified the ILO Convention (No. 169)¹⁷⁶ demonstrates that they do not want to be bound by precise and strict requirements concerning such sovereignty, but that they rather wish to retain autonomy over the definition of its concrete terms and conditions. This does not mean that States may without limit restrict indigenous sovereignty. It is true that the customary norm ensuing an obligation of result simply binds States to ensure that indigenous peoples may actually exercise a given degree of sovereignty over their ancestral territories and internal affairs without defining such degree, but it must in any case amount to effective sovereignty, because the norm would otherwise be void and nonsensical. As a consequence, it may actually be limited by the State, in the exercise of its “plenary” sovereignty, pursuant to its own constitution and internal legislation, but the restrictions to indigenous sovereignty made by the national government cannot go beyond a minimum limit which ensures that indigenous peoples have a reasonable degree of effective—and not factually void—sovereignty. The circumstance that in June 2006 States finally accepted the adoption by the Human Rights Council (although not yet by the General Assembly) of the U.N. Draft Declaration on the Rights of Indigenous Peoples (which expressly recognizes the most significant elements of indigenous sovereignty, including the right to autonomy or self-government in matters relating to their internal and local affairs and the right to maintain and strengthen their distinct political, legal, economic, social, and cultural institutions),¹⁷⁷ supports this conclusion. In light of this, indigenous sovereignty entails, at a minimum, the following rights, protected by international law: a) the right of indigenous peoples to live in, and maintain ownership of, their traditional lands (including natural resources) with no external interference (except in strictly and objectively exceptional cases and/or pursuant to their effective, prior, free and informed consent); b) the right to maintain their own identity and right to enjoy, manifest, preserve and transmit to future generations their own culture (including political and social systems, traditional customs, medicine, language, and religious beliefs); c) the right to self-government of their internal affairs according to their own customary law, including the right to use their own traditional judicial procedures (providing that they are consistent with internationally recognized human rights); and d) the right to effective participation, at all levels of decision-making, in decisions which may affect them.

When these minimum requirements (which represent the essential core of effective sovereignty) are not satisfied, there is a violation of international law by the territorial government, which, if interpreted extensively, could even lead to the possible configuration of a right to secession for the peoples concerned. As summarized by the Supreme Court of Canada in 1998 (in a judgment concerning the possible secession of Quebec from that State), in contemporary international law,

a right to secession only arises under the principle of self-determination of people at international law where “a people” is governed as part of a colonial empire; where “a people” is subject to alien subjugation, domination or exploitation; and possibly where “a people” is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state.¹⁷⁸

Although the Court points out that “it remains unclear whether [the] third proposition actually reflects an established international law standard,” it does not exclude that this may correspond to reality, by stating that “the international law right to self-determination . . . generates, at best, a right to external self-determination . . . where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development.”¹⁷⁹

The reconstruction of indigenous sovereignty is not affected by the fact that such sovereignty is to be exercised within the context of the wider area of the sovereignty of the (territorial) State, due to the relative characterization of the concept of sovereignty as accepted in the framework of the contemporary international legal system.¹⁸⁰ At the same time, indigenous sovereignty is to be considered parallel to that held by the State, in the sense that the national government, pursuant to international law, may interfere with its exercise only in the presence of certain conditions and, in any event, to a limited extent.¹⁸¹
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VI. Conclusion

The present work is based on the assumption that the concept of sovereignty, as defined and shaped by the evolution of international law at the rise of the twenty-first century, can no longer be conceived in the absolute terms of Westphalian sovereignty, but is today considered to be a more dynamic concept applicable not only to the State as such but also, although to a more limited extent, to other sovereign entities within the State itself. It is true that, as pointed out in section III, international law, being originally the creation of Western States and, therefore, basically an expression of their interests, is traditionally impervious to claims threatening to disrupt the exercise of State sovereignty. To use the words of an Australian scholar, “the international norms are manipulated to support a dominant world view that accepts global inequalities as inevitable and seeks to divest law of a role in the redistribution of world power.”¹⁸² This notwithstanding, the spread of contemporary practice favorable to the recognition of indigenous autonomy seems to demonstrate that, to a certain extent, the idea of indigenous sovereignty, as parallel to State sovereignty (that is to say that the territorial State, pursuant to international law, can, to a certain extent regulate, but not preclude, its exercise), has emerged in the context of the international legal order, giving rise to a provision of customary law binding States to grant a reasonable degree of sovereignty to indigenous peoples. Although such sovereignty is to be exercised within the realm of the supreme sovereignty of the territorial State, it actually produces the result of shifting some aspects of State sovereignty, providing indigenous peoples with some significant sovereign prerogatives that previously belonged to the State and that, at least in principle, may be opposed to the State itself under general international law. This outcome certainly represents an excellent step forward in the context of the evolution of international law towards a just, fair, and “pluralistic” legal system.

Footnotes

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