Indigenous peoples, almost without exception, have been dispossessed and disregarded by those who 'discovered' them, and their assimilation, or eradication, has been a stated policy of many a government. Historically, international law has done very little to redress the balance or protect or acknowledge indigenous interests. Even in the current epoch of international law with its focus on human rights, these rights have generally been conceptualised on an individual basis, not fitting easily with the inherent group nature of the indigenous people and their claims to self-determination.
One manifestation of this clash of cultures is in the approach to rights over land and natural resources: where the Western system of individual ownership has worked to invalidate and subsume the communal group title of the indigenous, based on ancestry, the good of the whole community and a deep spiritual link to that which sustains them. Recently, however, indigenous communities have found their voice on the international stage and there has been more awareness of and respect for their rights.
The way of life long enjoyed by the people of Gorgia has been threatened by the removal of their means of subsistence and, thereby, their right to self-determination. The current climate of sympathy, or perhaps shame, felt in relation to indigenous people does provide hope that an effective remedy for the problem of the Gorgian people may be found in international law, where none has been overtly provided. Assumptions/Background The concept of indigenous people is notoriously difficult to define and its definition is not necessary for the purposes of this essay so, in true judicial spirit, I will not attempt to do so.
However, the retention of distinct customs and "ancestral communal property" rights, their distinct judicial system and reliance on the land for subsistence would all point towards inclusion of the Gorgians as an indigenous people, whichever of the main definitions is chosen1. The question leaves unsaid whether the Gorgian judicial system has exclusive jurisdiction, but it would seem likely that there be some higher Beotian court whose jurisdiction they are subject to, bearing in mind that Beotia has the competence to sign treaties which effect Gorgia.
In any case, all available domestic remedies – both Gorgian and Beotian – must have been exhausted2 before the case will be considered by the Human Rights Committee (the HRC) and this will be presumed. It may not be necessary, however, that all proceedings initiated by the Gorgians before domestic courts have been exhausted. In Ominayak, Chief of the Lubicon Lake Band v. Canada3, there were still remedies to be pursued and decisions to be reached before the domestic courts, but it was widely accepted that this could take years, years during which the Band would have to suffer from the fate of which they were complaining.
In this situation, it may be better put that a person bringing a communication must take all reasonable steps to pursue a domestic remedy, but where such a remedy is denied or delayed unreasonably, other remedies may be sought. It will be presumed that the case is not being considered before another international body as, in this situation, the HRC will not consider the communication4. Another presumption will be that neither Beotia or Torba has made any reservations to either the International Covenant on Civil and Political Rights (ICCPR) or First Optional Protocol.
Because of the constraints on word length, the possible remedies discussed will be restricted to those provided by the ICCPR and the first Optional Protocol (the first OP), as well as by customary international law. Part (a) Both Beotia and Torba are parties to the ICCPR which, by article 28, creates an enforcement mechanism: the HRC. Beotia and Torba have both ratified the first OP to the Covenant, which allows Communications to be brought against them by individuals5. This allows the Gorgians, either singly or as a group of individuals, to place a Communication before the HRC alleging a violation of the rights guaranteed by the ICCPR.
While not legally binding upon states, their "views" do carry significant political and moral weight and are as close as is available to the Gorgians to an international judicial remedy. The next question to be answered is how best to frame their Communication. The two possibilities would seem to be a breach of their article 1 right to self-determination, or breach of their article 27 right to pursue their culture, and these will be considered in turn. The first two paragraphs of article 1, common to both 1966 covenants, provide as follows:
"1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, 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 economic 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. "
This article, in particular the last sentence of paragraph two, seems to apply to the predicament of the Gorgians perfectly. An action of the Beotian government, in failing adequately to take account of their culture as a people, has resulted in excess competition, removing their ability to provide their means of subsistence. The fisheries treaty looks more like appeasement of a foreign government than international economic co-operation, especially in view of the inclusion of article 47 in the final draft which removes at least some emphasis from it.
Therefore the rights provided to the Gorgians under article 1(2) may well have been breached. There may be another claim under article 1. The Gorgians were not, from the facts provided in the question, consulted with regard to the 2001 treaty. In fact, the effect of the 2001 treaty on them seems to have been completely ignored. They have thus been denied the right to pursue their "economic, social and cultural development", as provided by paragraph (a) of article 1.
They may also have been denied the right, provided them by article 25 (a), "to take part in the conduct of public affairs, directly or through freely chosen representatives", public affairs which undoubtedly have effected them. Initially, then, it may seem to the Gorgians their problems can be solved by placing a Communication before the HRC on the basis that their art 1 right to self-determination, one of the fundamental tenets of the ICCPR, has been breached and that the only just outcome is the overturning of the 2001 treaty.
Many states, however, have cited fears in using the term indigenous peoples because of the connotations of the term peoples6 and in extending the right of self-determination to individual petition under the first OP, mainly because of a feeling that it is both a breach of sovereignty and a threat to territorial integrity to have an outside body adjudicating upon claims of self-determination.
It is now settled that article 1 of the ICCPR is not actionable under the first OP and, precisely because of these fears of states, the Gorgians cannot enforce the provision which is supposed to protect the fundamental human right of self-determination. The claim of the Lubicon Lake Band stumbled at this hurdle when their chief, Ominayak, attempted to bring a case against the government of Canada on the Band's behalf.
The Communication alleged that, by concluding commercial contracts for oil exploration which necessitated drilling and the construction of a road on what they considered to be their lands, the provincial government of Alberta had drastically reduced their ability to provide for themselves in the traditional way and had thereby derogated from its duties under the ICCPR. The Commission was willing to consider their case under article 27, but not under article 1, and it was noted that "the Optional Protocol provides a procedure under which individuals can claim that their individual rights have been violated.
These rights are set out in part III of the Covenant, articles 6 to 27, inclusive. " 7 The effect of this pronouncement can only be to remove article one rights from the scope of the OP. Indeed it may be considered anomalous to consider self-determination a right at all, at least in a traditionally accepted legal sense; arguably it can be more aptly described as a goal. A goal of the Human Rights Committee, of the United Nations, and of the international community generally.
After all, the fundamental corollary of a right is an obligation, and while a State may be under moral, social or political obligations with respect to a valid self-determination claim such as is at issue here, it is not admissible even to the relatively toothless adjudication of the HRC. It would be wrong, however, to conclude from this that there is no legal force whatever behind such a claim. International law is not black and white, often there is no document which can be held up as declarative of the law in the same way as might be expected in a domestic legal system.
It can be said with some confidence that elements of state treatment of indigenous peoples have crystallised into customary international law8, including some rights to their traditional territories, and claims like that of the Gorgians are all the stronger when placed against such a backdrop. Despite initially appearing tailor made to the case of the Gorgian people, however, self-determination under article 1 does not provide the basis for overturning the 2001 treaty.
A Communication challenging the 2001 treaty under ICCPR article 27 would have more chance of success and this would be the route I would recommend to the Gorgian representatives. Article 27, which provides for individual rights which may be exercised in community with others, as opposed to group rights per se, provides that: "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. "