Territoriality and Human Rights: Rights-Holders, Not Stakeholders

This section describes how the loss of territoriality impedes the capacity of Alaska tribes to assert their collective human right to self-determination and fails to recognize tribal rights to self-governance. The Arctic region where this case study exists is governed by “domestic laws and policies of general application, and by international treaties and customary norms . . . includ[ing] human rights covenants (Bankes and Koivurova 2014, 226). Such laws and norms call for the recognition of tribal self-governance, and yet tribes remain unable to meaningfully exercise these rights for the reasons described in preceding chapters. The practical effect of this is that tribes are not regarded as “rights-holders” and therefore lack the mechanism to engage in decision-making processes as governments. Instead, tribal participation is tantamount to that of a stakeholder, where tribal members as individuals participate in decision-making processes alongside the general public. The failure to recognize tribes as rights-holders has negative consequences for the capacity to assert the right to collective self-determination.

“Human rights can be a means of attaining the rights to determination, self-government, the maintenance and development of culture, and holding land collectively” (Iyall

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Smith 2008, 1821). A variety of international instruments embody these rights. In 2007, the United Nations adopted the U.N. Declaration on the Rights of Indigenous Peoples (United Nations 2007). Initially, the United States voted against adopting the UN DRIP, but has since endorsed it, with “concerns” (Bankes and Koivurova 2014, 236).

This Declaration contains important provisions regarding the governance rights of indigenous communities. Among the many articles that support governance and self-determination, Article 3 specifically recognizes self-determination as a right to freely determine political status, and to freely pursue economic, social and cultural development (United Nations 2007). Article 4 describes the right of indigenous peoples to self-government “relating to their internal or local affairs” as a function of the right of self-determination (UN DRIP 2008). Article 5 recognizes the rights of indigenous peoples to maintain and strengthen their distinct political, legal, economic, social and cultural institutions while fully participating in those same institutions of the state in which they reside (UN DRIP). Article 18 states that indigenous people have the right to participate in decision making through their own representatives, and the right to maintain and develop their own indigenous decision making institution (United Nations 2007). Article 26 recognizes the importance of governing traditional lands and resources for indigenous communities, and articulates the on-going rights to own, use, develop and control the lands they possess (United Nations 2007). Although this instrument is a declaration and does not have the force of law, several domestic courts have referred to the UN DRIP within proceedings, including courts located throughout the Arctic (Bankes and Koivurova 2014). Similarly, the Declaration is relied on within international debates over international whaling (Bankes and Koivurova 2014).

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The International Labor Organization (ILO) Convention No. 169 of 1989 is a binding treaty agreement that establishes the right of indigenous peoples to maintain and develop their societies and calls on other governments to “develop, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples” (ILO 1989, at art. 2(1)). It articulates an obligation on the part of nation-states to adopt special measures to safeguard “their persons, institutions, property, labour, cultures and environment” (ILO 1989, at art. 4(1)).

In 2014, the U.N. General Assembly adopted an “Outcome document of the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples” (United Nations 2014). Through this document, the UNGA reaffirmed support for the UN Declaration on the Rights of Indigenous Peoples, and urged states that have not yet ratified the ILO 169 to do so.

The Organization of American States (OAS) is likewise in the process of preparing a legal instrument to protect the human rights of indigenous peoples (Bankes and Koivurova 2014). The OAS and its associated Inter-American Commission on Human Rights (IAHCR) has taken an active role in protecting land and resource rights of indigenous groups in South and Central America (Bankes and Koivurova 2014). Similarly, the Inuit have brought one petition before the IACHR arguing that their human rights were violated as a result of climate change (Bankes and Koivurova 2014). This petition was unsuccessful, but brought Arctic issues into this regional human rights framework for the first time.

Protecting the rights of indigenous Alaskans through this channel will not be easy because the United States is not a party to the Inter American Convention on Human Rights

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(AHDR II). Koivurova and Bankes argue that although the United States is not a party to that convention, the IACHR may still impact on U.S. policies

“…it is clear that the decisions of the [Inter-American Court of Human Rights] influence the [Inter-American Commission on Human Rights] in its deliberations and in its interpretation of the cognate provisions of the American Declaration of the Rights and Duties of Man. The United States [is] subject to the jurisdiction of the Commission with respect to the Declaration by virtue of their membership in the OAS” (Bankes and Koivurova 2014).

Therefore, while the U.S. may not be directly subjected to jurisdiction of a future IACHR instrument that protects the human rights of indigenous peoples, if the IACHR does implement such an instrument, this could potentially guide international policy development throughout the Americas.

Human rights norms “of general application” (i.e., not specific to indigenous communities) also provide a basis from which to analyze the rights of Alaska Natives to self-determination. The right of self-determination, or “the right of peoples to freely determine their political status and to pursue their economic, social and cultural development” is guaranteed in a variety of international legal instruments. The International Covenants on Civil and Political Rights (ICCPR) (United Nations 1966) and on Economic, Social and Cultural Rights (ICESCR) (United Nations 1966b) address issues of collective rights that impact on indigenous peoples.

The ICESCR includes a provision recognizing that all peoples have a “right to freely pursue their economic, social and cultural development” and the ICCPR acknowledge the rights of minority groups to “enjoy their own culture and use their own language” (Carpenter and Riley 2014, 173).

Increasingly, in light of the principles expressed in the UN Declaration of Human Rights, the UN bodies that implement the ICESCR and the ICCPR are specifically addressing indigenous issues, and have adopted a consistent practice of requiring states to address indigenous rights within

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their regular reports to the U.N. Human Rights Committee (Bankes and Koivurova 2014). This not only “mainstreams” the significance of the UNDRIP in international human rights law, but also solidifies its significance as a human rights norm (Bankes and Koivurova 2014).

Even as international instruments are increasingly recognizing indigenous rights as human rights, most Arctic states have “not done much to advance [these] rights on the basis of international law standards at home” (AHDR II). The Arctic Governance Project found that Arctic states fail to live up to international good governance standards (Alfredsson 2013, 195).

Six of the eight Arctic countries have not ratified the ILO Convention No. 169 that could serve as a legal basis for integrating tribes as rights holders into governance frameworks. The AHDR II identifies the issues of national governments incorporating human rights standards into domestic law, particularly as those rights involve indigenous communities and issues of natural resources governance (Bankes and Koivurova 2014).

In addition, the international community and domestic governments could take an approach to policymaking adopted in the international development arena. In that arena, the United Nations recognizes the value of adopting a “rights-based approach.” In 2003, the UN Development Group adopted the UN Statement of Common Understanding on Human Rights Based Approaches to Development Cooperation and Programming. The “Common Understanding” is founded on three basic principles:

1. All development programs should further the realization of human rights;

2. Human rights standards guide development cooperation and programming; and 3. Development cooperation contributes to the development of the capacities of “duty

bearers” to meet their obligations of “rights holders” to claim their rights.

The UN describes a human rights based approach (HRBA) as determining the relationship between individuals and groups with valid claims (rights holders) and state and non-state actors with correlative obligations (duty bearers) (United Nations n.d.). The nature of a

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HRBA is to strengthen the capacities of rights holders to make their claims, and duty bearers to meet their obligations. Governments have three levels of obligations: (1) to respect a right; (2) to protect that right; and (3) to fulfill that right (United Nations n.d.).

A rights-based approach transforms the tenor and language of governance from that of

“stakeholder” to “sovereign” or rights-holders, and from “clientelism” to “citizenship” (Davis 2009, 181). It likewise allows indigenous tribes to claim their right to govern based on a statutory and constitutional “government-to-government” that is likewise consistent with obligations under international human rights treaties and instruments.

The Alaskan experience, particularly that of the YRITWC, illustrates an imbalance in governance that can be analyzed, understood, and remedied by applying a “rights based”

approach to governance, one that acknowledges that tribal governments are sovereigns, not stakeholders. This approach is consistent with international human rights law on the rights of indigenous peoples to self-determination and self-governance. Self-determination is a legal principle and right of every sovereign in the international legal community, including indigenous communities, as they exist within external nation-states (Henriksen 1999).

The lack of enforceable international instruments acknowledging the collective rights of indigenous communities to self-determination and to governing traditional lands makes it even more critical that states affirm these rights on their own accord. Just as a human right to development is increasingly taking hold in development discourse, acknowledging a human right to governance over lands and resources as a component of the collective right of self-determination for indigenous communities is one avenue for doing so. In addition, this approach is consistent with the Arctic human development “fate control” goal and measure as described in the next section.

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Alaskan tribes, as sovereigns, have a right to self-government and self-determination.

The state has a commensurate obligation to respect, protect and fulfill those rights. By integrating tribal governments as full partners in managing the resources upon which they depend, tribal communities will be better situated to exercise fate control and the right to self-determination.