Right to self-determination

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the right to self-determination?

While there is no universally accepted agreement as to the content of the right to self-determination, it is agreed that at a minimum, it entails the entitlement of peoples to have control over their destiny and to be treated respectfully. This includes peoples being free to pursue their economic, social and cultural development.

Where does the right to self-determination come from?

Australia is a party to seven core international human rights treaties. The right to self-determination is contained in article 1 of the International Covenant on Civil and Political Rights (ICCPR) and article 1 of the International Covenant on Economic, Social and Cultural Rights.

This right is also contained in Article 3 of the Declaration on the Rights of Indigenous Peoples . The Declaration does not create legally binding obligations, but informs the way governments engage with and protect the rights of Indigenous people.

When do I need to consider the right to self-determination?

Self-determination is a right that pertains to groups of people, not individuals. In Australia, it is particularly relevant to Aboriginal and Torres Strait Islander peoples.

You will need to consider the right whenever you are working on legislation, a policy or a program that will have a particular impact on Aboriginal and Torres Strait Islander peoples or other peoples with a common racial, ethnic or cultural identity which has been built up over a long period of time. The people impacted should be closely involved in the development and implementation of policies and programs that impact on them and with consultation and engagement strategies that facilitate this. The establishment of the National Congress of Australia's First Peoples is a leading example of this.

What is the scope of the right to self-determination?

It is generally understood that the right to self-determination accrues to 'peoples'. The UN Human Rights Committee has declined to consider individual complaints about the right under the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).

The UN Committee on the Elimination of Racial Discrimination has stated that the right to self-determination involves 'the rights of all peoples to pursue freely their economic, social and cultural development without outside interference' and that 'Governments are to represent the whole population without distinction as to race, colour, descent or national or ethnic origin'.

The Australian Government believes that individuals and groups, particularly Aboriginal and Torres Strait Islander peoples, should be consulted about decisions likely to impact on them. This includes ensuring that they have the opportunity to participate in the making of such decisions through the processes of democratic government, and are able to exercise meaningful control over their affairs.

Aboriginal and Torres Strait Islander peoples also have the right to preserve their group identity and culture. The importance of consultation is manifested in the establishment of the National Congress of Australia's First Peoples.

Self-determination is widely understood to be exercised in a manner that preserves the territorial integrity, political unity and sovereignty of a country.

Declaration on the Rights of Indigenous Peoples

The international community has recognised the significance of the right to self-determination to Indigenous peoples in the Declaration on the Rights of Indigenous Peoples, which was supported by the Australian Government in April 2009. In Australia's response to the Universal Periodic Review recommendations in June 2011, the Australian Government stated that it supports promotion of and respect for the principles in the Declaration.

The Declaration is not binding in international law, in the way that a treaty binds countries that are party to it. However, the Declaration reflects how a number of existing human rights standards under international law apply to the particular situation of Indigenous peoples.

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Can the right to self-determination be limited?

Derogation

Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.' While derogation to article 1 is not explicitly precluded, such derogation may be inconsistent with Australia's 'other obligations under international law', given that article 1 of the Charter of the United Nations refers to 'the principle of equal rights and self-determination of peoples' when enumerating the purposes of the UN.

Limitation

For the same reason, it would be difficult to justify any restriction on the right to self-determination in the ICESCR.

Which domestic laws relate to the right to self-determination?

Section 3 of the Aboriginal and Torres Strait Islander Act 2005 states that the objects of the Act include to ensure the maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them and to promote the development of self-management and self-sufficiency among Aboriginal and Torres Strait Islander peoples.

What other rights and freedoms relate to the right to self-determination?

The right to self-determination may also be relevant to:

  • right to take part in the conduct of public affairs in article 25 of the ICCPR
  • rights of ethnic, religious or linguistic minorities to enjoy their own culture, religion and language in article 27 of the ICCPR
  • right to be free from all forms of racial discrimination in articles 2 and 5 of CERD.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 1

International Covenant on Economic, Social and Cultural Rights

Article 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.
  • 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.
  • The States Parties to the present Covenant, including those having responsibility 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.

Where can I read more about the right to self-determination?