Australia's position

8. In Australia's view, self-determination is not a static concept, but rather an evolving right which includesequal rights, the continuing right of peoples to decide how they should be governed, the right of people asindividuals to participate fully in the political process (particularly by way of periodic free and fair elections) and the right of distinct peoples within a state to make decisions on and administer their own affairs (relevantboth to indigenous peoples and to national minorities). This proposition finds support in the words of the Article 1 of the Covenants (infra), together with Article 21 of the Universal Declaration on Human Rights' [6] and Article 25 of the International Covenant on Civil and Political Rights. [7] Australia has also repeatedly stressed the point madeabove that the right of self-determination does not, except in the most exceptional circumstances, equate to a rightof secession. 
9. We have also argued strongly that self-determination, although a central human right, cannot be used to justify abuse of other rights, foremost among which is the right to life. The application of the principle of self-determination to distinct peoples living within independent states, cannot be used to absolve those peoples or national governments from their responsibilities to protect the rights set out in existing international human rights law, both civil and political and economic, social and cultural.10. The Australian Government is not a lone voice on this issue. This position is accepted by a number of, although not yet a majority of, governments [8] and by writers in international law. [9] In an explanatory note concerning the Draft Declaration on the Rights of Indigenous Peoples, [10] the Chairperson of the Working Group on Indigenous Populations, Professor Daes, has expressed the view that: 


"The concept of "self-determination" has accordingly taken on a new meaning in the post-colonial era. Ordinarily, it is the right of the citizens of an existing, independent State to share power democratically. However, a State may sometimes abuse this right of its citizens so grievously and irreparably that the situation is tantamount to classic colonialism, and may have the same legal consequences" (para. 23).
11. This concept of self-determination sits well with the present emphasis on peace-building and preventive diplomacy. Australia's statement to the 51st Session of the Commission on Human Rights contained a strong affirmation of the message that violent intra-state conflict, which is a major problem for international and human security, needs to be addressed by the international community. A comprehensive and constructive interpretation of the concept of "self-determination" for peoples within existing states is needed. Sovereign independence for every self-defined "group" is not feasible. Rather, the demands by peoples for internal self-determination, generally expressed as the maintenance of their cultural identity, including their language and spiritual beliefs, should be capable of accommodation by national government. [11] Finally, it needs to be said that there is no single "model" of self-determination which is suitable for all states. The application of the principle will, depending upon the internal situation of each state, result in different outcomes and structures. The important element is that the principle should contribute to and inform the domestic political debate. 

Self-determination for indigenous peoples

12. The content of the right of self-determination for indigenous peoples is consistent with the approach outlined in paragraph 14. It is not simply a right to participate in national affairs on an equal basis with other citizens of the state. To indigenous peoples, such an approach smacks of assimilation. Indigenous peoples' advocacy of self-determination has principally been in terms of preservation of culture, distinct identity and language, together with a power to take decisions over their own affairs. In Australia, governments have in recent times clearly applied self-determination to our indigenous peoples in a far wider sense than simple participation in national affairs.
Where to from here?

13. It is clear that a number of governments are uneasy with any view that self- determination is a principle of any application to their people (the issue is a problem for governments of states with indigenous peoples and minorities). This stems from their concern that a right of self-determination may equate to a right of secession. In an attempt to deal with the concerns of those governments, the 1993 draft of the Declaration included the following formulation for Article 3:
"Indigenous peoples have the right of self-determination, in accordance with international law, subject to the same criteria and limitations as apply to other peoples in accordance with the Charter of the United Nations. By virtue of this, they have the right, inter alia, to negotiate and agree upon their role in the conduct of public affairs, their distinct responsibilities and the means by which they manage their own interests. An integral part of this is the right to autonomy and self-government."

However, that formulation was replaced with the present formulation as a result of strong statements by indigenous peoples' organisations. 
14. It is equally clear that "self-determination" for indigenous peoples is widely accepted within the Australian community. The extent of that right rightly remains a matter of political debate, particularly where autonomy or self-government for our indigenous peoples may be seen to conflict with the rights of others within the Australian community or with overall governmental responsibility to achieve particular outcomes. Our advocacy of a broad view of self-determination advances wider foreign policy interests in the promotion of democratisation and the reduction of intrastate conflicts which can threaten international peace and security. 
15. Australia therefore sees value in viewing self-determination as an evolving right which is the wellspring of concepts of democracy and other human rights within the international community.
The Australian domestic context16. Self-determination for Australia's indigenous peoples has been Government policy since 1972. [12] The present emphasis on the term dates from 1987, when then Minister for Aboriginal Affairs, Mr Hand, stated that he saw self-determination as a "vital issue", which must ensure "that Aboriginal and Islander people are properly involved in all levels of the decision-making process in order that the right decisions are taken about their lives". [13] The principle has since been endorsed by Governments, both State and Federal, and of varying political persuasions, in their response to the Royal Commission into Aboriginal Deaths in Custody.l4 The Minister for Aboriginal and Torres Strait Islander Affairs, Mr Robert Tickner, has repeatedly endorsed the principle of self-determination for Australia's indigenous peoples in his statements to the UN's Working Group on Indigenous Populations. Mr Tickner has stated that he sees the Aboriginal and Torres Strait Islander Commission (ATSIC) and the Torres Strait Regional Authority as significant steps towards self-determination, [15] a view shared by the Prime Minister. This articulation of self-determination is therefore a reflection of the endorsement of its broad application in the domestic context. 
17. In 1990 the House of Representatives Standing Committee on Aboriginal Affairs defined self-determination as:
"... Aboriginal control over the decision-making process as well as control over the ultimate decision about a widerange of matters including political status, and economic, social and cultural development. It means Aboriginal peoplehaving the resources and capacity to control the future of their own communities within the legal structures common to all Australians" [16] (italics added).

The Committee distinguished the concept from that of self-management, which it felt was a narrower term, meaning the implementation of decisions which may have been made by others. 
18. While not wishing to pre-empt the right of indigenous people in Australia to speak for themselves on this subject, it is important to note that Australia's indigenous leaders are strong supporters of the right of self-determination for their peoples. They have also made it clear that they do not see acceptance of the right as having implications for Australia's territorial integrity, although that view is often expressed in political rather than legal terms. The Chairperson of the Aboriginal and Torres Strait Islander Commission, Miss Lois O'Donoghue, has stated:
"The recognition of the right of self-determination for indigenous peoples does not lend additional weight to claims for recognition of independent sovereignty. Certainly for all peoples living within established and recognised nation-states such as Australia, the right is constrained by other considerations, including provisions of the United Nations Friendly Relations Declaration. For Aboriginal and Torres Strait Islander peoples, most would acknowledge that independent sovereignty, in any internationally recognisable sense, really is not a practical option." [17] 

That statement reflects both a legal and a political viewpoint. [18] 

19. Indeed, some indigenous leaders in Australia expressly argue that their peoples' right of self-determination is the same as that of colonised peoples - that is, it includes a right of secession, even if in practical terms that is not presently a viable option. The Australian Government does not agree with this position -- indigenous peoples, like all other peoples in independent states with representative governments, do not have a right of secession, although they do have a right of self-determination. l 


[1] See Article 2(4). 
[2] Hurst Hannum, Autonomy, Sovereignty and Self-Determination: The Accommodation of Existing Rights, University of Pennsylvania Press, 1990, p. 49. 
[3] The recent Vienna Declaration's statement on self-determination contained a similar caveat. 
[4] As in the cases of the dissolution of the former Soviet Union and Czechoslovakia and the secession of Eritrea from Ethiopia. 
[5] Obvious instances of this would be claims by the Quebecois in Canada or the Scots or Welsh in the United Kingdom that their governments were unrepresentative and that therefore they have a right to secession. 
[6] "1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. 
2. Everyone has the equal right of access to public service in his country.
3. The will of the people shall be the basis of the authority of government: this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret ballot or by equivalent free voting procedures."
[7] This Article is in similar terms to the above. 
[8] See for example a statement by Belgian Foreign Minister Willy Claes to a conference on "The Right to Self-Determination of Indigenous Peoples" held on 14-15 January 1994 at the University of Antwerp Denmark is also a strong advocate of self-determination for indigenous peoples. At WGIP 12, the United States delegate endorsed the application of self-determination "within the United States" to native Americans. 
[9] See, for example, Lea Brilmayer "Secession and Self-Determination: A Territorial Interpretation". The Yale Journal of International Law, Vol 16 (1991), at pages 177 ff. Ralph G Steinhardt, book reviews, The American Journal of International Law. Vol 88 (1994) at pages 831-837; Robert McCorquodale, "Self-Determination: A Human Rights Approach", International and Comparative Law, Quarterly, Vol 43. p. 857 ff. Colin Warbrick, book reviews, International and Comparative Law Quarterly,. Vol 43. pp. 965-66. Frederic L Kirgis Jr, Editorial Comment: The Degrees of Self-Determination in the United Nations Era, The American Journal of International Law, Vol 88 (1994) at p. 304-310. 
[10] UN Document E/CN.4/Sub. 2/1993/26/Add. I of 19 July 1993. 
[11] "A distressing feature of recent times has been the emergence of intrastate conflict as a major problem for international and human security. The available evidence strongly suggests that violent intra-state conflict is unlikely to decrease of its own accord in the near or mid-term future. Among the conceptual rethinking on the part of the international community that is needed in order to grapple with these serious security problems is a comprehensive and constructive interpretation of the concept of "self-determination". Sovereign independence for every self-defined "group" is not feasible. The great majority of the world's states are ethnically diverse: indeed, only 20 percent are relatively ethnically homogenous. A large number of states have at least five sizeable ethnic populations. The ideal of ethnically pure states is therefore, in Australia's view, clearly unrealistic ... Australia believes that attempts to actively pursue such exclusive political arrangements lead only to the bloodshed and ethnic cleansing we have seen recently in the former Yugoslavia, the Caucasus and parts of Africa. Rather, the demands by peoples for internal self-determination, generally expressed as the maintenance of their cultural identity, including their language and spiritual beliefs, should be capable of accommodation by national governments." Australian Statement to the 5lst session of the Commission on Human Rights, Geneva, January 1995. This passage was in turn partly derived from a paper delivered by the Minister for Foreign Affairs, Senator Gareth Evans, to the Konrad Adeneur Stiftung in Bonn on 6 July 1994 and an article by Senator Evans entitled "Cooperative Security and Intrastate Conflict" in Foreign Policy, Number 96 (Fall 1994), pp. 3-20.
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