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Shimizu, Akitoshi
Indigenous Peoples, Colonialism and ‘Decolonisation’:
The United Nations Declaration on the Rights of
Indigenous Peoples
in International Law
Kaneko, Masanori
A Case Study of Interethnic Marriage and Adat (Custom)
in Pubian Society, Lampung Province, Indonesia

Indigenous Peoples, Colonialism and ‘Decolonisation’: The United Nations
Declaration on the Rights of Indigenous Peoples
in International Law
Akitoshi Shimizu
In September 2007 the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples (GA Resolution 61/295), the first comprehensive instrument of international law on the indigenous rights that the UN decided and issued as its official will. The initial draft of the Declaration was issued as early as in 1993 by a working group of a lowest organisational status in the United Nations (UN). A long period of fourteen years since then was necessary for member states of the UN to arrive at the final agreement on the text of the Declaration. During that time, on the other hand, the initial draft of 1993 has been functioning as a de facto international standard for the indigenous rights. The 1993 draft was broadly accepted as such by academic specialists of international law, by the public in those countries where indigenous peoples were active in their movements, and even by international and national authorities. Indigenous organisations through their movements have invested the draft with influence, to the extent that it now deserve to be called the 1993 Declaration proclaimed by indigenous peoples themselves. Besides those situational conditions, the draft itself is plausible and persuasive in the coherent composition of the text, which elucidates the whole variety of indigenous rights, together with their reasonable bases, in deliberately selected legal language. The 1993 declaration may even be referred to as a standard for assessing the 2007 resolution. This comparison reveals that the latter has received quite a few changes, which reflect the interests and anxieties held by the UN member states concerning their domestic policy on indigenous peoples.
In this paper, I will take up the 1993 Declaration, instead of the 2007 resolution, as the primary data and analyse the structure of the indigenous rights as stated in the declaration. The analysis will focus on three themes: the rights specific to indigenous peoples, the rights equally fundamental to all peoples, and the national and international framework for the implementation of the proclaimed rights. The whole set of those rights should be categorised as the collective right of existence as a distinctive people. The right has been categorically refused to the indigenous peoples. The 1993 Declaration enumerated those rights in a thoroughly comprehensive way, a feature based on the recognition of ethnocide and cultural genocide, the historical experience shared by indigenous peoples. The 1993 Declaration explicitly demands a reform in the current regime of international law circumscribing the indigenous peoples. The 2007 resolution failed to attain this sort of reform. On the contrary, the UN member states successfully obscured the right-claiming structure of the 1993 Declaration by manipulating the language used in the resolution. Thus, the ‘ethnocide and cultural genocide’, representing the whole historical experiences of suppression against indigenous peoples, has been entirely deleted from the final resolution.
As the second objective of this paper, I will trace the historical process, in a retrospective way, how indigenous peoples have been deprived of their rights and made invisible in international law, particularly in the legal instruments enacted by international organisations, the UN and the International Labour Organisation (ILO). One of the crucial points of departure for the subsequent history of deprivation is found in the way the debate on the so-called Belgian Thesis was concluded in the early 1950s in the UN. Through this set of arguments, the Belgian Government contested against the way majority member states liked to implement the program of decolonisation, one of the major missions of the nascent UN. Confronting the ‘anti-colonial block’, the Belgian Thesis unmasked quite a few fundamental features of the decolonisation conducted by the UN. Whereas the Belgian Government requested equal treatments of all ‘non-self-governing indigenous peoples’, the UN decidedly concentrated its efforts of decolonisation on the ‘non-self-governing territories’, i.e. the overseas colonies of imperial powers. The Belgian Thesis suggested that Latin American countries demanded liberation of those colonies just in the way they themselves had been liberated from their metropolises. According to this model, all colonies should attain liberation from the colonial regime; but at the same time, the newly independent states should inevitably inherit from the former regime the colonial rule of indigenous peoples within their domestic jurisdiction. Actually many countries in Asia and Africa that attained independence in the1950s and thereafter followed this model and maintained the colonial rule of indigenous peoples living within their territorial borders. Thus, the program of decolonisation conducted by the UN redefined the idea of the sovereign state, which structurally comprises indigenous peoples under colonial suppression within its territory.
Targeting at those non-self-governing indigenous peoples left aside by the UN, the ILO enacted Covenant no. 107 and proposed a coordinated framework of integration policy for those peoples, who were now identified as ‘indigenous and other tribal and semi-tribal populations in independent countries’. Covenant no. 107 for the first time gave a legal definition to ‘indigenous’ populations in terms of the historical moment of colonial conquest. This definition, which may be named ‘the ILO definition’, has been exerting an enduring influence and constraining even indigenous peoples themselves in their thought on the concept of ‘indigenous’ peoples. The ILO’s policy of integration represented a post-WWII version of colonialism, assigning the role of guardian to the states and guiding them to cultural genocide of the ward , indigenous peoples, by way of ‘integrating’ those peoples into ‘more advanced national communities’.
The 1993 Declaration demands that the history of colonisation, including the policies of decolonisation conducted by the UN and the ILO, should be undone. The historical review conducted in this paper on the rights of indigenous peoples suggests that a revision is necessary for commonly accepted definitions of the term ‘indigenous’ peoples. The ILO definition of the ‘indigenous’ peoples, particularly the reference to the initial moment of colonial conquest, turns out to be irrelevant for conceiving the indigenous peoples. The 1993 Declaration refuses any trial of the states and other external agents to define and identify ‘indigenous peoples’; the definition and identification of ‘indigenous peoples’ should belong to the right of self-determination of the indigenous peoples themselves. At the same time, the 1993 Declaration represents indigenous peoples as those peoples who have been subjected to ethnocide and cultural genocide . The 1993 Declaration connotes a calling to indigenous peoples. As such, it provides indigenous peoples not merely with a tool of indigenous movements. It provides the conceptual framework for their indigenous movements.
Key Words:peoples, the collective right of existence, peoples’ right of self-determination, ethnocide,
cultural genocide, decolonisation, colonialism, the Belgian Thesis, the ILO definition of ‘indigenous peoples’

A Case Study of Interethnic Marriage and Adat (Custom) in Pubian Society,
Lampung Province, Indonesia
Masanori Kaneko
Corresponding to the multiethnic situation in Indonesia, the adat (custom/customary law) regulations of the Pubian society in Lampung province have changed little by little over the last 40 years. The changes reflect the Pubian people’s understanding of the differences among ethnic groups. This research note aims to present another aspect for analyzing the ethnic societies of current Indonesia, each of which is itself multiethnic, by describing the flexible response of the ordinary Pubian people to ethnic differences.
Key Words: Indonesia, ethnicity, transmigration, socio-cultural changes, custom (adat)