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Self-Determination

• Genuine cultural diversity demands more than


the mere preservation of colourful artistic
facets. A nation's right to its own culture
presupposes the safeguard and the
opportunity to exercise the nation's right to
freely shape its life according to its own
traditions, conditioned only by the full respect
of human rights
• It is a notion that brings together the interests
of the individual and relates them to the
interests of the group.
• The interests of both the individual and the
group concentrate on the ability to exercise
their selections about how they wish to live
their lives and to be free from the interference
and imposition of others.6
• Croatian Constitution of 1990 speaks of "the
generally accepted principles in the modern
world and the inalienable, indivisible,
nontransferable, and inexpendable right of
the Croatian nation to self-determination and
state sovereignty, including the inviolable right
to secession and association.""
• The French Constitution of 1958 speaks of
"government of the people, by the people,
and for the people."
• In the 1949 German Constitution, the people
declare that they "have achieved the unity
and freedom of Germany in free self-
determination.
Development
• Recognized after WWII
• Before, it was not recognised as a right under
the international law.
• League of Nations successor, The UN which
came into force after WWII recognsed self-
determination as a legal concept.
• UN Charter stresses the respect for equal
rights and self-determination of people. (but
this alone was not sufficient)
• => The Declaration on the Granting of
Independence to Colonial Territories and
Peoples was adopted by the UN general
Assemply
• Subjugation, domination and exploitation of
people constitute a denial of human rights
and is contrary to the UN charter/
• Problem?- non binding(not treaty)
• Common Article 1 of ICCPR and ICESCR recognise all peoples right
to self-determination.

• Article 1. 1. All peoples have the right of self-determination. By


virtue of that right they freely determine their political status and
freely pursue their eco nomic, social and cultural development.

• 2. All peoples may, for their own ends, freely dispose of their
natural wealth and resources without prejudice to any obligations
arising out of international eco nomic co-operation, based upon the
principle of mutual benefit, and international law. In no case may a
people be deprived of its own means of subsistence.

• 3. The States Parties to the present Covenant, including those


having respon sibility for the administration of Non-Self-Governing
and Trust Territories, shall promote the realization of the right of
self-determination, and shall respect that right, in conformity with
the provisions of the Charter of the United Nations.
• Its regardedd as a fundamental right
• Int Court of Justice regarded it as erga omnes
(obligations are owed toward all)
• Serve to dismantle the colonial powers and
enable the colonised people to gain their
freedom and independence.
Definition
• Suffers from a definition crisis
• But the generally accepted definition: rights of
peoples to determine their own political,
economical, social and cultural destiny. ( TWO
FORMS OF SELF DETERMINATION-internal and
external)
• Internal – participatory democracy: the right
to decide the form of government and the
identity of rulers by the whole population of a
State.
• Right to exercise cultural, linguistic, religious
autonomy.
• In short, it means that peoples of a defined
territory have a set of right within their central
state
• External – aka as fuill self-determination
• Right to decide on the political status of a
people and its place in the international
community
• Including the right to separate from the
existing State
• Protection of its territorial integrity under
international law
“Peoples” and S.D
• Word Peoples found in Article 1 of the Twin
Covenant but no definition
• Johan Rochel (2009) defines people as group of
individuals sharing five criteria:
1) Shared culture(broad range of customs, habits
and traditions, social norms, shared history,
language, religion-non exhaustive)
2) Individual must recognise themsleves as people
of the same group( distinctiveness & of critical
size)
3.intergenarational – stability over several
generation
4.Must have homeland/linked to specific
territory
5. insititutionalised, and official voice to speak
for the peoples
(eg: Palestinians, East Timorese, Kosovo)
Decolonisation and S.D
• Realisation of the right of self-determination
or the right of self-determination or the
achievement of sovereignty and
independence. (India from British (1947)
• The rights to external self-determination can
easily be invoked by a coherent community
whose members are legit residents, not
migrants or refugees of a territory which is
either:
i) Under foreign domination or occupation
ii) Was formerly dominated by another
community or no longer dominated but not
self-governing
iii) Under some internationally sanctioned
trusteeship
SD Today
• Internal- may be claimed by anyone who falls
within the def of peoples
• External- only for colonial peoples or people
under foreign occupation
Minorities
• Def: group of numerically inferior to the rest
of the population of theState, in a non-
dominant position, whose members being
national of the State-posses ethnic, religious
or linguistic characteristics differing from the
rest population and show, if only implicitly a
sense of solidarity directed towards preserving
their culture, religion or language
• 1) non dominant position
• 2) Must share ethnic, religious or linguistic
identity –distinguished from the mainstream
• 3) implicitly or explicitly reveal a asense of
solidarity towards preservation of its identity
• Art 27- ICCPR- persons belonging to such
minorities shall not be denied the right to
enjoy their culture, profess and practise their
religion and use their own language
• Individual right not groups/collective
• Art 1- all peoples( everyone in the state-
hence collective right of minorities for self
determination is not available)
• The Declaration on the Rights of Person Belonging to
National or Ethnic, Religious and Linguistic Mninorities
(Dec on Minorities/ UNGA 1992) Art 8(4)- nothing to
suggest self determination for minorities( “nothing can
be construed contrary to sovereign equality, territorial
integrity and political independence of States) .
Nothing to interfere with States’ territorial integrity.
• So long as minorities are protected- political unity and
independence of the State must be preserved.
Indigenous Peoples
• Yet to be given a universally accepted def.
• Martinez Cobo(1983)- Indigenous communities,
peoples and nations are those which, having historical
continuity with pre- invasion and or their territories,
consider themselves distinct from other sectors of the
societies now prevailing in those territories or parts of
them. They form a present non-dominant sectors of
society and determined to preserve, develop and
transmit to future generations their ancestral
territories and their ethnic identity and the basis of
their continued existence as people in accordance with
their own cultural, patterns, social institutions and
legal systems.
• In short- those who used to inhabit, continue
to inhabit and with to keep their strong
attachment to defined territory.
Rights Claimed by the Indigenous
1) Rights to be on ancestral lands and enjoy the
benefit thereof- to enjoy the benefits of
their lands because they are culturally and
spiritually connected to the lands in
question.
- UN Dec of Rights of Indigenous
Peoples(UNDRIP)- Article 25-s the indigenous
peoples distinctive spiritual relationship with
their land.
• Art 26 UNDRIP- reaffirms indigenous peoples right to
lands, territories and resources which thy have
traditionally owned, occupied or otherwise used or
acquired and their right to own, use develop and
control the lands territories and resources that they
possess by reason of traditional ownership or other
traditional occupation or use, as well as those which
they have otherwise acquired.
• Also mandates States to give legal recognition and
protection to these lands, territories and resources.
Such recognition shall be accorded with due respect to
the customs, traditions of the land tenure systems of
the indigenous peoples concerned.
• States often exploit indigenous peoples lands
or territories for the benefit of the
mainstream society.
• Destroys the livelihood of the people. (case of
Kajing Tubek- DO U THINK GOPAL SRI RAM’s
judgment was right??)
• Article 18- UNDRIP guarantees the indigenous
peoples rights to participate in decision-making in
matters which would affect their rights.
• Art 19 and 32 impose obligations on States to
consult and cooperate in good faith with the
indigenous peoples concerns to obtain their free,
prior and informed consent to legislative and
administrative decision that may affect them.
• 2) The economic, social and political rights of
the indigenous peoples.
- To secure their own means of subsistence and
development and to engage freely in all their
traditional and other economic activities.
- Art 1 & 17 of UNDRIP entitles peoples to all
human rights
- Art 2- to enjoy freedom and equality
• Art 3 UNDRIP- to freely determine their political
status and freely pursue their economic, social
and cultural development
• Art 5 UNDRIP- right to maintain and strenghten
their distinct political, legal, econimic, social and
cultural insittution, while retaining their right to
participate fully if so choose in the political,
economic, social and cultural life of the State.
• ART 4 UNDRIP- right to autonomy or self-
government in amtters relating to their internal
local affairs
• 3) Right to S.D
• Not in its external sense.
• Would damageState soverignty and territorial integirty
• Art 46 of UNDRIP- nothing in this Declaration may be
interpreted as implying for any State, people, group or
person any right to engage in any activity or to
perform any act contrary to the Charter of UN or
construed as authorizing or encouraging any action
which could dismember or impair , totally or in part
the territorial integrity or political unity of sovereign
and independent States
• Indigenous peoples may also be minorities
and may be entitled to protection under ICCPR
if they fulfill the requirements.
• 4) Cultural heritage
-languge, art, music, dance song, ceremony,
agricultural activities
Rights to protect their intellectual property even
against scientific or commercial purposes (WTO-
Trade-Related Aspects of Intellectual Property
Rights (TRIPS)- are the indigenous affected?)
Research and pharmaceutical companies-
commit biopiracy?
Orang Asli
• the Malaysian population while Orang Asli
account for close to 0.7 per cent.
• Orang Asli, who largely reside in rural areas, have
a much higher poverty rate than the national
rural poverty rate.
• ‘Orang Asli’ is a term used to collectively describe
the 18 official and distinct ethnic aboriginal sub-
groups in Peninsular Malaysia, classified into
three broad categories of Negrito, Senoi and
Aboriginal Malay.
• Literally translated, the term means ‘natural
people’ and is now also taken to mean
‘original’ or ‘first’ people. (Leonard V Andaya,
2002)
• ‘Sakai’ used to describe this population had
been viewed as derogatory.
Orang Asli and Indigenous
• Notwithstanding the fact that Orang Asli may well
fulfill international definitions for ‘Indigenous
peoples’, ‘Indigeneity’ as constructed
domestically has its own contextualised meaning.

• Uncertainties still loom in domestic legislation


and discourse as to whether Orang Asli claiming
Indigenous rights as developed in the
international fora are deserving of these rights.
No mention of Orang Asli
• Article 153 of the Malaysian Constitution obliges
the Yang Dipertuan Agong to safeguard the
‘special position of the Malays and natives of any
of the States of Sabah and Sarawak’
• article 161A extends to the natives of Sabah and
Sarawak the same ‘special privileges’ as the
• Malays.
• Any amendment to article 153 can only take
place with a two-thirds majority of both
• houses of Parliament and the consent of the
Conference of Rulers of the Malay States.
• The Orang Asli do not enjoy equivalent
constitutional rights but instead, are
dependent on the federal government for
their welfare.
(Ref: ITEM 16, 9th Sch ,List 1)
NO mandatory protection for the people
The Aboriginal Peoples Act 1954
(‘APA’).
• The APA is the principal statute governing the
administration and rights of Orang Asli. The
• preamble describes the APA as an act for the
protection, well-being and advancement of the
Orang Asli.
• However, the APA’s orientation denies Orang Asli
self-determination over their identity,
institutions, lands and lives, all important aspects
of the
• UNDRIP.
• The APA confers extensive powers on the federal
and state executive arms of government. Some
• of the more questionable powers include the
powers to:

• (i) determine whether a person is an Orang Asli;


• (ii) determine the appointment and removal of
Orang Asli headmen known as Batin;
• (iii) exclude undesirable persons from any Orang
Asli inhabited areas; and
• (iv) restrict any written, printed, or photographic
matter deemed harmful by the state.60
• In relation to land, the provisions of the APA
grant to Orang Asli a limited form of state-
controlled occupancy and use of Orang Asli
lands and resources.
• the popular ideology in Malaysia is that
private land is a finite and valuable resource
that should be put to productive economic
use. (Colin Nicholas, 2002)
• The extensive power that the federal
executive possesses over the appointment
and removal of Orang Asli headmen or Batin
under s 16 pays is arguably incompatible with
the right of Indigenous peoples ‘to maintain
and develop their own indigenous decision-
making institutions’. – compromise Orang Asli
interests.
• Are there any reasons to the hindrance of the
ORANG ASLI’s Rights?

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