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.

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 peoples 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.”  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 law, 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.”

There does exist precedent for a Communication to the HRC on this basis, and the elements of a possible Gorgian claim will be considered with respect to relevant views previously expressed by the HRC in relation to article 27. Ilmari Lansman et. al. v. Finland, a Communication submitted to the HRC by members of the Muotkatunturi Herdsmen’s Committee, can be regarded as encouraging precedent for the Gorgians. The authors were an ethnic Sami group, indigenous mainly to northern Scandinavia, whose main means of subsistence was reindeer herding. They challenged the decision of Finland’s Central Forestry Board to enter into a contract with a private company for the quarrying of stone on the basis that the quarrying and the transport of the rock would diminish their ability to herd the reindeer effectively. Such a disadvantage, it was argued, was a breach of their article 27 right to enjoy their own culture. There are strong parallels between the facts of this case and the circumstances faced by the Gorgians, and indeed by the Lubicon Lake Band. Essentially, all these cases involve government action reducing the ability of an indigenous people to make their living in the traditional way. The decisions and logic of both cases suggest that the Gorgians have a strong chance of success if they placed a communication before the HRC based on the facts in the question.

One issue to be addressed here is that of who can actually submit the Communication. Article 27 explicitly applies to minorities and both the Sami and the Gorgians would seem to be indigenous peoples. It was, however, made clear in the Lansman judgement that the applicants were “members of a minority within the meaning of article 27 and as such have the right to enjoy their own culture”. Thus the Sami, and by extrapolation the Gorgians, can seek to enforce their rights through the minorities provision under article 27.

The claim would, in substance, be one of the denial to the Gorgian community as a whole of the ability to maintain their culture. Article 27, however, grants individual rights so in form the complaint would have to be made by an individual or individuals, as was the case in Lansmann. It was noted in Ominayak v. Canada that there was “no objection to a group of individuals … collectively to submit a communication about alleged breaches of their rights.” This is a less satisfactory position than if there were an enforceable group right, which would better reflect the nature of cultural rights generally and the outlook of the Gorgians in particular, apparent with regard to their system of communal property. The Gorgians, however, will doubtless be more concerned with obtaining an effective remedy and, in this regard, the individual right conferred by article 27 represents their best chance of placing a Communication before the HRC which would result in their view advocating the overthrow of the 2001 treaty to secure the cultural integrity of the Gorgians.

The individual claimants would have to show that they had suffered loss of their livelihood, and therefore ability to enjoy their culture, as a result of the 2001 treaty. In relation to the claim of the Lubicon Lake Band, the HRC held that the cultural rights provided in article 27 did extend to “economic and social” activities where these were relied upon by the group. A contract concluded by the provincial government of Alberta with a private company resulted in drilling and development on the aboriginal territory of the band. This reduced their ability to provide for themselves through their traditional economic and social activities, inextricably linked to their culture, and was therefore held to be a breach of their article 27 rights.

In light of the Lansman decision, it can now be said with certainty that article 27 does not apply only to traditional means of livelihood. A contention from Finland that the more modern methods used by the herders, involving the use of snowmobiles, rendered the article inapplicable was rejected. The question is silent on this point, but it is clear, then, that even if the Gorgians were using relatively modern methods of fishing, this would not necessarily remove their right to protection.

In Lovelace v. Canada, the Committee noted that "not every interference can be regarded as a denial of rights within the meaning of article 27 ... (but) restrictions must have both a reasonable and objective justification and be consistent with the other provisions of the Covenant." In the Lansman case, the Committee decided that the impact of quarrying was not so substantial as to remove the authors’ ability to provide for themselves in the traditional way, and therefore did not breach article 27. While the quarrying may have caused some inconvenience or disruption to the authors, it could not be said to be an effective threat to their way of life. If the Gorgians were using modern methods of fishing, and the Torban fishermen were merely providing competition, rather than completely or largely removing the ability of the Gorgians to make a living, then this may not be a violation of article 27 at all. The Gorgians, therefore, would have to show that the 2001 treaty did constitute such a threat to their way of life: either that the methods used by the Gorgians were traditional so that they could not compete with the more advanced Torban fishing techniques; or that the competition lead to over-fishing to the extent that their way of life was no longer viable. One factor which helped the Lubicon Lake Band’s case was the effect that the removal of their traditional means of subsistence had on the people of the Band. There were submissions to the effect that “the spectre of alcoholism, previously unheard of in this community … is now overwhelming it.” Perhaps exactly the same standard of damage would not be required for the success of the Gorgian claim, but certainly the HRC would require a higher level of damage to the community than could be demonstrated in the Lansman case.

One of the basic tenets of self-determination of indigenous peoples is the right to be consulted on measures which will effect them. This treaty seems, from the information given, to have been considered and signed without any consultation with the Gorgians and it has undoubtedly affected them. One of the reasons given by the court in finding against the authors in the Lansmann case was that there has been consultation with those affected and the decision had been made in light of this consultation. If the 2001 treaty had been entered into after consultation and, for example, a part of the coastal waters sufficient for the Gorgians to continue their way of life had been excluded from the treaty and the rest opened up to Torban fishermen, then this would sound analogous with the situation in Lansman and the HRC could be expected to come to the same conclusion. But the apparent lack of consultation and the resulting claim of threat to their whole way of life would distinguish the current situation from that of Lansmann and possibly push the scales in favour of the Gorgians.

The views of the HRC are exactly that: views. Assuming that the Beotians were willing to co-operate with the view reached, their implementation would require negotiations between the Gorgians and the Beotians. Any remedies would then be implemented between those two parties. The Gorgians may wish to consider asking for compensation for the time the 2001 treaty was in force and their livelihoods thereby effected. This would depend upon the strength of the views from the HRC and the suffering experienced by the Gorgians, but may be worth considering if proceedings reached this stage.

Part (b)

“no right anywhere exists to hand peoples about from sovereignty to sovereignty as if they were property” Woodrow Wilson

The people of Gorgia can take heart from Woodrow Wilson’s statement, seemingly prescient of the trend of decolonisation that seems to have largely defined and limited the right of self-determination for the remainder of the twentieth century. The importance of self-determination as a principle cannot be overstated, it is undoubtedly part of customary international law and, it is widely accepted, also of jus cogens. This adds considerable legal force to a claim which has, in the past, been classified by some more as a political ideal than a legal right. States cannot derogate from principles of jus cogens because they are the peremptory norms around which international law is built. Any treaty that purportedly derogates from such a principle is void. It may be claimed that the 2001 fisheries treaty is void to some extent but, as discussed in part (a), enforcement by an individual is best approached through article 27, because of the contortion of economic self-determination into an individual right. Decolonisation, on the other hand, is the right of a people collectively. There can be little doubt, as long as it is accepted that Gorgia is under Beotian sovereignty, that their situation is colonial. They are ruled, at least to some extent, by the geographically separate and ethnically distinct Beotia. Three possible implementations relevant to a colonial territory might be, “(a) [e]mergence as a sovereign independent State; (b) [f]ree association with an independent State; or (c) [i]ntegration with an independent State”. It should be noted, however, that the categories on this list leave much still to be decided and a nuanced, context-specific solution to suit the Gorgians may be required.

Secession and formation of an independent sovereign state is one, but the most extreme, remedy in cases of the denial of self-determination to a people. However, the misconception that any acknowledgement of self-determination will or is likely to have this outcome seems to have been one of the main factors hindering the development of an effective right. After all, the Gorgian people may well have existed perfectly happily as an autonomous region of Beotia prior to the coming to power of the new Torban government in 2001. Their right of self-determination would then have been fully exercised in securing their status as such, and would continue to be fully exercised until a majority of their people decided upon the alteration of that status. As an indigenous people, their right of self-determination will not usually stretch to its external aspect, in other words determination of their international status, which might include secession and formation of a Gorgian state. Their status as a colony, however, clearly does afford this right if this can be shown to be the freely expressed will of the people. That the Gorgians do not wish to be transferred to Torban rule is clear and, in light of the apparent motives of the Torban government with regard to the 2001 treaty, understandable. Secession, however, is not the inexorable conclusion. As a precursor to pursuing their claim, the Gorgian representatives must establish what the will of the people actually is, and this can best be determined through a free referendum or plebiscite. It must also be noted that it may be that not all of the Gorgian population are be indigenous people, some may be in favour of cession to Torba, and these views carry as much weight as those against cession.

The most sensible starting point for their claim is by attempting to open negotiations with Beotia, under whose sovereignty they appear to fall as things stand – on the basis of the Treaty of Froth. Their sovereignty is based on the principle of terra nullius, that there was no effective order in Gorgia before it was “discovered” by Torba and so it was brought within Torban sovereignty. This doctrine upheld the colonial era for centuries, but it has been superseded by the doctrine of the native title of the original inhabitants rendering the subsequent imposition of foreign title to the land void. Regardless of the wording of the Treaty of Froth, however, Beotia may claim sovereignty on the basis of acquisitive prescription. Once the will of the Gorgian people has been established in terms of the best way in which to exercise their right to self-determination, Beotia is duty bound to work towards its realisation. One simple outcome of the whole situation would be that the Gorgians make representations to the Beotian government, on the basis of the freely expressed will of the people, asserting their wish to remain as an autonomous region under the sovereignty of Beotia, the status quo, or else some change in their status which did not involve cession to Torba. The strength of the principle of self-determination with respect to colonial territories would seem sufficient to force any rational government to the negotiating table, from an international political if not a moral point of view. Were the Beotian government to show itself unwilling to facilitate realistic resolution via bilateral negotiations, which could be considered unlikely in light of the huge precedent of decolonisation in the twentieth century, other options may have to be considered.

If a state decided that another had violated a jus cogens norm, that state could bring their complaint before the International Court of Justice (ICJ) and obtain a judgement as regards the status of that alleged violation. This avenue is not directly open to the Gorgians, either with regard to the fisheries treaty of 2001 or any possible future treaty of transfer to Torba. If, however, the Gorgian people had a kin state, or could convince any other state which may be willing to complain on their behalf about their treatment to the ICJ, this may be an appropriate forum for their claim to be discussed. There would be legally binding obligations upon Beotia in terms of the findings of the court, although the record of compliance with ICJ findings has not been overwhelming.

There are other ways for the Gorgians to get their case heard at their own behest, although it should be noted that the channels through which they can see that their rights are respected lack legal force. Although the views reached by the HRC do not carry any legal weight, they represent an impartial and judicious decision on the facts and, as such, the state on the receiving end of a critical view is under significant pressure to remedy the situation. Other channels will have to be used with regard to their claim to self-determination.

The U.N. Commission on Human Rights and its Subcommission on Prevention of Discrimination and Protection of Minorities possess specific powers to hear and investigate allegations of “gross violations of human rights and fundamental freedoms”. While the committees have investigated the plight of indigenous peoples, their investigatory power is discretionary and, in the vast majority of complaints received, not used.

The U.N. Commission on Human Rights Working Group on Indigenous Populations has, by allowing wide indigenous participation, both written and oral, in its annual public sessions, become some kind of de facto complaints procedure. Practice has developed to allow indigenous representatives to make statements concerning situations they deem worthy of the attention of the committee, thereby bringing them to the attention of the Working Group and the human rights community generally. The Working Group has no investigative or penal powers, but that is not to say that as a forum for debate and censorship they have no coercive value in procuring state action in avoidance of political embarrassment. The denunciation of Beotian conduct by the rest of the international community may also lead to the imposition of sanctions, for example economic or diplomatic sanctions.

Were it to appear to the Gorgians that all options, both domestic and international, promised no effective exercise of their rights, they may wish to consider taking unilateral steps, for example declaring themselves to be an independent state. Should they satisfy the criteria for an effective state and function effectively, they would be recognised as such by the international community and be free from the domination of Beotia, Torba or any other sovereign state. The Palestinian people have attempted to form their own state but their efforts, due to lack of international recognition, have been in vain. A key element of any attempt to form an independent state, the so-called principle of effectivity, relies upon the attitudes of the rest of the international community as to the functioning of the territory in question. This was acknowledged by the Canadian courts in Re Secession of Quebec. In its judgement, the court noted that the constitutional method of pursuing secession would be to attempt to open negotiations pursuant to the expressed will of the people in favour of secession. However, were this right to be denied, or even in the aftermath of a secession illegal under Canadian law, Canada would be forced to recognise the formation of an independent new state if Quebec were allowed to function as such on the international stage. The principle of effectivity may be seen as a pragmatic approach on the part of international law: because it has found no universally accepted method of evaluating and ruling upon claims to self-determination, it allows de facto operation as a state to facilitate de jure status as such.

Were the Beotian or Torban states to oppose this unilateral secession, and conceivably impose military domination upon the Gorgians, the formation of a liberation movement may be the only option available to pursue their rights. The theoretical legitimacy of the use of force by national liberation movements is a subject yet to be settled, but the oppression which would have lead to its use could be seen as justified by the denial of a jus cogens human right. Brownlie sees as a corollary to the right of self-determination that “intervention against a liberation movement may be unlawful and assistance to the movement may be lawful”. Obviously a last resort, recourse to such measures of desperation continues today, even in the light of moves towards recognition of the right to self-determination.

The Gorgian people’s right to self-determination would seem to have been breached in respect of both parts (a) and (b) of the question, and this essay has sought to outline the best course of action available to them. However, the lack of an enforceable legal right which can not only be claimed by the Gorgians as a people with regard to their situation, but also implemented by an international forum whose decisions have binding legal force, is a gaping hole in the fulfilment of human rights. The lack of such a right means the Gorgians must entrust their fate to the benevolence of sovereign states and the pressure which can be brought to bear upon them.

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