Humphrey Sipalla*
The view that the right to self-determination ought only to be exercised by developing 'inhabitants of trust territories' to Eurocentric Westphalian state self-government constitutes the premier practice of international law from 1945. This prevalence of practice established the invisibility of the indigenous peoples claim to rights based on self-determination. This view then pits indigenous people's self-determination as a necessary opponent to state-centric self-determination, and more so, makes indigenous peoples a particular threat to the post-colonial state.
The UN Charter takes it for granted that then colonised peoples ought to aspire to develop into Eurocentric Westphalian states as practice of their exercise of self-determination, and then re-establishes – the Mandate system of the League of Nations, the precursor to the UN system – as trusteeship organs to facilitate their instruction by their colonisers towards this presumed form of self-determination.
Even the human rights treaties emerging precisely from the benefits of decolonisation – such as the international bill of rights – continue with this state centric assumption that exacerbated the invisibility and marginality of indigenous peoples:
The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.[i]
Two concurrent iterations of this paternalistic assumption dominate international law making in the decolonisation era.
The first is addressed to sufficiently advanced backward peoples who have achieved acceptable development as to be allowed self-determination including to form their own states recognisable to the West. These can then be welcomed into the world of friendly relations among equal sovereigns. This worldview we will call … the UN system worldview.[ii] …
[The] International Labour Organisation (ILO) … [demonstrates] the second worldview of self-determination rights for those indigenous or tribal peoples who, one can only surmise, were not expected to 'develop into states' so are best protected by integration into the existing state.[iii]
Take the African case, for instance. Prior to the conclusion of the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR), newly independent African states came together to conclude the Charter of the Organisation of African States. To these, the trusteeship system was but a ruse to prolong colonial rule. At the 25 May 1963 Conference of independent African States, only 32 formerly colonised territories are present in Addis Ababa as founding signatories to the OAU Charter. A further twenty-three colonial territories at this time are yet to be independent.[iv] It is therefore not surprising that the OAU Charter expresses a more forthright understanding of the right to self-determination that is definitively anti-colonial, and clearly aimed at the elimination of colonial rule rather than couching colonial rule in advancement of the inhabitants' language:
Determined to safeguard and consolidate the hard-won independence as well as the sovereignty and territorial integrity of our states, and to fight against neo-colonialism in all its forms, and, as purpose of the OAU, 'to eradicate all forms of colonialism from Africa'.[v]
In the context of these competing worldviews, Common Article 1 of the ICCPR and ICESCR navigate the consensus building typical of treaty negotiation by seemingly 'allow[ing] two oppositional views to co-exist. Colonial powers, then responsible for non-self-governing peoples, saw in that language flexibility to either ''grant'' independence or ''allow'' internal self-determination. Meanwhile, the formerly colonised … peoples, including the tens of newly independent African states saw in the very same Common Article 1 language, the full decolonisation rights asserted in their already existing Charter of the Organisation of African Unity of 1963 (OAU Charter).'[vi]
To be clear, indigenous people as a distinct category is absent in the language of UN based international law making of the era. These minorities within minorities can only then suffer a deeper marginality than the dominant/mainstream minorities in this rush to state centric self-determination.
Although paternalistic and parsimonious[vii] of minority rights, the UN worldview still did anticipate a people in full exercise of self-determination, albeit illogically expectingcolonial powers to nurture such self-determination. 'Here, the aim of decolonisation was explicit and unequivocal, even though arrogant.'[viii] This system 'endorses the assimilation of minorities into the ''universal state'' and ''in this respect, 'the minority treaty system of the League of Nations provided minorities with more significant rights.'[ix]
The International Labour Organisation (ILO), on the other hand, also engaged in international law making relevant to indigenous peoples during the decolonisation era. Its law-making manifests the second competing worldview of international law making and indigenous peoples. It is instructive that ILO law-making is dominated by states of the American continent[x] for whom the state form had been the primary and stable form of self-government for at least one and a half centuries at the time. It is not unusual that the Convention of the Rights and Duties of States is an American treaty, concluded in 1933 at a time when stability of the state form in Europe was a far aspiration for only the most idealistic.
As such, the ILO worldview represents the situation of American states who do not see their state form in colonial terms. Since their thinking is evidently still dominated by the view of self-determination is at its zenith a Westphalian state, they do not see self-determination of indigenous peoples as a question applicable to them in quite the same terms as expressed in the UN Charter.
ILO Convention 107 of 1957 simply limits participation rights of these indigenous and other tribal and semi-tribal populations in independent countries to concordance with national laws.[xi] This ILO system worldview, that lasts from 1957 to 1989 does not expect these tribal peoples to grow into the 'maturity' acceptable to have a state and as such must perpetually be cared for along the lines of a long standing 'honourable Western tradition' of seeing the 'native' as a perpetual child who is best protected by 'not forcing her institutions into an alien European mould'.[xii]
Convention 107 also draws no distinction between tribal and indigenous peoples in its grant of rights – both groups are so entitled under the Convention. 'Special rights attach to both groups'. Critically, an experience of oppression or discrimination is not a defining criterion.[xiii] While the Convention defines both groups as bearing cultural distinctiveness, it distinguishes them with a history of 'conquest or colonisation'. This itself then is an interesting approach characteristic of contemporaneous mainstream anthropological fascination with defining and categorising peoples.
Despite evidently having been drafted without input from indigenous peoples,[xiv] Convention 107 is not without its progresses. Its Article 11 affirms a right of ownership of indigenous peoples over traditionally occupied lands, either individually or collectively.
In 1986, Special Rapporteur José Cobo Martínez noted the following:
Convention 107 has not proved very effective in protecting and developing the human rights and fundamental freedoms of indigenous populations in countries which are parties to it, since today, more than 25 years after its adoption, there is little difference between the countries which are and which are not bound by it … ILO should be supported in its efforts to effect a revision of Convention 107 and Recommendation 104, both dated 1957, so as to take into account the wishes and demands of indigenous populations … in substantive terms, stress must be placed on ethno-development 'and independence or self-determination, instead of on 'integration and protection'.[xv]
Yet, sinister as it is, it is the ILO that leads the UN system with updating its legislation on indigenous peoples claims to self-determination. The 1989 ILO Convention 169 drops the terms 'semi-tribal and tribal'. It represents a marked departure from the philosophy of integration or assimilation underlying the 1957 ILO Convention,[xvi] as indicated by its preamble, which recognizes 'the aspirations of [indigenous] peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live.'[xvii] Substantively, it recognises the agency of indigenous peoples, not merely backwards peoples in need of paternalistic care. The obligation to consult indigenous peoples is legislated into international law. Such consultations ought be done 'in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures'.[xviii]
These developments in Convention 169 are themselves unsurprising considering the progress in organisation, advocacy before international fora and growing acceptance of the self-determination basis of indigenous peoples claims as had progressed in the 1970s and 1980s. Moreover, unlike in the 1950s, in the late 1980s, indigenous peoples groups participated actively in advocacy and consultation before the ILO during the elaboration of Convention 169.[xix]
In the aftermath of the decolonisation era, the claims of long-running decolonisation may yet offer indication of the trajectory of international law in recognising and redressing the invisibility of indigenous peoples in international treaty making. The Court of Justice of the European Union (CJEU), Luxemburg, in the Commission & Council v Front Polisario case ruled that for a treaty between the EU and Morocco to be valid, the requirement 'derived from customary international law' of 'a people holding the right to self-determination' to give either express or implied 'consent' to 'an international agreement in respect of which it has the status of a third party' is a separate and independent legal requirement for the EU.[xx]
The progression of international law making in the decolonisation era indicates a slow move towards recognising the full humanity and therefore legitimacy of the peculiar self-determination claims of indigenous peoples. Tracing from the UN Charter, the ILO Convention 107, the 1963 OAU Charter, the 1989 ILO Convention 169, the 2002 Constitutive Act of the African Union, and the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), one can see a progressive dismantling of the Hegelian claim of the sub-humanity of non-European peoples that gives birth to paternalistic notions of such peoples needing guidance and education towards self-determination. It also reveals an unsurprising contestation between Global North and South views of what self-determination in international law could mean, as evidenced in the line of cases on similar or related self-determination questions.[xxi]
* Humphrey Sipalla is a university teacher, editor and scholar. He is the founding Editor-in-Chief of Kabarak University Press, having served in various editorial roles since 2000. He also teaches at Kabarak University School of Law. Humphrey is a graduate of Kenyatta University (Nairobi) and UN Mandated University for Peace (San Jose, Costa Rica). He is currently undertaking his doctoral studies at the University of Pretoria, appraising the life and works of Kéba Mbaye as a method of analysing African approaches to international law.
[i] International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 and International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, Common Article 1(3). [emphasis mine]
[ii] Humphrey Sipalla 'A human rights consistent apartheid: Constitutional design of the African state, indigenous peoples' self-determination and the 'other native' question' in Humphrey Sipalla, J Osogo Ambani (eds) Furthering constitutions, birthing peace: Liber Amicorum Yash Pal Ghai, Strathmore University Press, ,2021, 247.
[iii] Sipalla 'A human rights consistent apartheid' 248; see also SJ Anaya, 'The evolution of the concept of indigenous peoples and its contemporary dimensions' in Solomon Dersso (ed) Perspectives on the rights of minorities and indigenous peoples in Africa, Pretoria University Law Press, 2010, 31-4.
[iv] This list includes the Sahrawi Republic, which is a full member of the OAU/AU, in equal sovereign vote before AU instances despite its obvious self-determination challenges with Morocco.
[v] Charter of the Organisation of African Unity, 479 UNTS 39, 25 May 1963, Preamble 6 and Article II(d). [emphasis mine]
[vi] Sipalla, 'A Human Rights Consistent Apartheid' 247.
[vii] Yash Pal Ghai 'Ethnicity and autonomy: A framework for analysis' in Yash Pal Ghai (ed) Autonomy and ethnicity: Negotiating competing claims in multi-ethnic states (Cambridge: Cambridge University Press, 2000) 3, describing Article 27 of the ICCPR.
[viii] Sipalla, 'A human rights consistent apartheid' 248.
[ix] Antony Anghie, Imperialism, sovereignty and the making of international law, Cambridge University Press, 2004, 206.
[x] See ILO, 'Ratifications of C107 - Indigenous and Tribal Populations Convention, 1957 (No 107)' <https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO::P11300_INSTRUMENT_ID:312252> on 22 July 2025. The states that automatically denounce ILO Convention 107 by ratifying ILO Convention 169 are exclusively American states.
[xi] ILO Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (ILO Convention No 107) 1957, 328 UNTS 247.
[xii] See Mahmood Mamdani, Citizen and subject: Contemporary Africa and the legacy of late colonialism, Fountain/David Phillip/James Currey, 1996, 4ff.
[xiii] Erica-Irene Daes 'On the Concept of Indigenous People: Working Paper by the Chairperson-Rapporteur of the United Nations Working Group on Indigenous Populations' 10 June 1996, E/CN.4/Sub.2/AC.4/ 1996/2, para 22.
[xiv] Benedict Kingsbury 'Indigenous peoples' Max Planck Encyclopaedia of Public International Law, Last updated November 2006, para 19.
[xv] José Martínez Cobo, Study of the problem of discrimination against indigenous populations by Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities (E/CN.4/Sub.2/1986/7/Add.4), Chapter XXII – Proposals and Recommendations, para 335-37.
[xvi] 'The emergence of customary international law concerning the rights of indigenous peoples' in René Kuppe and Richard Potz (eds) 12 Law and anthropology: International yearbook of law and anthropology (2005) 127-139, 130.
[xvii] ILO Convention (No 169) Concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989 27 June 1989, 1650 UNTS 383, Preamble.
[xviii] ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No 169), Article 6(2).
[xix] Richard Siddle, Race resistance and the Ainu of Japan, Routledge, 1996, 2001, 185.
[xx] Joined Cases C-779/21 P and C-799/21 P, Commission & Council v Front Polisario, the Court of Justice of the European Union (Grand Chamber), Judgment (4 October 2024), paras. 139 & 93.
[xxi] South West Africa cases (Ethiopia and Liberia v South Africa), Preliminary objections, Judgment of 21 December 1962, ICJ Report 1962, 319; South West Africa, Second Phase, Judgment, ICJ Reports 1966, 6; Western Sahara, Advisory Opinion, ICJ Reports 1975, 12; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, 403; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, ICJ Reports 2019, 95.
