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.

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. The problem is that it is not a treaty therefore it is not binding.

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 regarded 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 self-determination 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 self-determination – 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 Self- Determination
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: Shared culture(broad range of customs, habits and traditions, social norms, shared history,
language, religion-non exhaustive); Individual must recognise themselves as people of the same group( distinctiveness &
of critical size); intergenerational – stability over several generation; Must have homeland/linked to specific territory;
insititutionalised, and official voice to speak for the peoples (eg: Palestinians, East Timorese, Kosovo)

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: under foreign domination or occupation; was formerly
dominated by another community or no longer dominated but not self-governing; under some internationally sanctioned
trusteeship.

Self -Determibation 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
The Definition of minorities is group of numerically inferior to the rest of the population of the State, 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

The characteristics of minorities are non-dominant position; must share ethnic, religious or linguistic identity –
distinguished from the mainstream; implicitly or explicitly reveal a a sense of solidarity towards preservation of its
identity.

Art 27 of ICCPR stated 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 is not groups or collective. Art 1 stated 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 definition. 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 Declaration of Rights of Indigenous Peoples(UNDRIP)

Article 25 stated the indigenous people 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 of 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 given the right to enjoy freedom and
equality. Art 3 UNDRIP given people the right to freely determine their political status and freely pursue their economic,
social and cultural development Art 5 UNDRIP stated the 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 stated the 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 integrity. Art 46 of UNDRIP stated 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
Cultural heritage is related to 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).

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. It can be referred in Item 16, 9th Sch, List 1 of Federal Constitution. There are 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 determine whether a person is an Orang Asli; determine the appointment and removal of
Orang Asli headmen known as Batin; exclude undesirable persons from any Orang Asli inhabited areas; and restrict any
written, printed, or photographic matter deemed harmful by the state.

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.