metadata: authors: 0: author: Narh,Bernice Nuerkey
1: author: Woolcock,Michael
count: World
docna: 0: docna: Reconciling Multi-Level Rights-Based
            Commitments in Development : Assessing the Legal and
            Administrative Imperatives of Responding to Education,
            Health Care, and Environment Protection Challenges
docty: Policy Research Working Paper
abstracts: cdata!: The principles of sovereignty, equality,
            and self-determination &#x2013; which have long been the
            basis for nonintervention in the affairs of sovereign states
            &#x2013; have more recently been widened to condemn
            outside interference by national governments in the affairs
            of indigenous communities within their territories. These
            same principles, however, may equally be employed as
            arguments by sovereign states to justify their engagement in
            the affairs of indigenous communities residing within their
            borders, thereby creating the potential for considerable
            legal, ethical, and political tension. States are urged to
            respect the autonomy of indigenous people as well as their
            right to develop, preserve and transmit their history,
            traditions, and values to future generations; yet states
            also owe obligations towards indigenous people to facilitate
            their enjoyment of certain established rights, even as the
            provision of these obligations may be incompatible with
            indigenous peoples&#x2019; established practices,
            values, interests, priorities, and beliefs. Multilateral
            agencies face a similar dilemma in their engagements with
            national governments: when to respect the sovereignty of
            national governments and when to champion international law
            and covenants (e.g., regarding the rights of women and
            sexual minorities)? Drawing on cases from education, health
            care, and environment protection, this paper proposes an
            analytical framework for articulating and reconciling
            competing rights-based development commitments in low-income
            countries, where the presence of multilateral agencies and
            intensifying imperatives to attain global development goals
            generates forces exacerbating (potentially) competing
            national and sub-national commitments.
display_title: Reconciling Multi-Level Rights-Based
            Commitments in Development : Assessing the Legal and
            Administrative Imperatives of Responding to Education,
            Health Care, and Environment Protection Challenges
listing_relative_url: /research/2024/11/34424820/reconciling-multi-level-rights-based-commitments-development-assessing-legal-administrative-imperatives-responding-education-health-care-environment-protection-challenges
topicv3: Indigenous Peoples m1326947 749
publishtoextweb_dt: 2024-11-19T00:00:00Z
dois: 10.1596/1813-9450-10979
origu: Off of Sr VP Dev Econ/Chief Econ (DECVP)
no_of_pages: 24
author_keys: 0: author_key: 2364020
1: author_key: 166689
model_extractions: Policy Research Working Paper 10979 Reconciling Multi-Level Rights-Based Commitments in Development Assessing the Legal and Administrative Imperatives of Responding to Education, Health Care, and Environment Protection Challenges _Bernice Nuerkey Narh Michael Woolcock_ Development Economics Development Research Group November 2024
Policy Research Working Paper 10979

# **Abstract**

The principles of sovereignty, equality, and self-determination – which have long been the basis for nonintervention in the affairs of sovereign states – have more recently been widened to condemn outside interference by national governments in the affairs of indigenous communities within their territories. These same principles, however, may equally be employed as arguments by sovereign states to justify their engagement in the affairs of indigenous communities residing within their borders, thereby creating the potential for considerable legal, ethical, and political tension. States are urged to respect the autonomy of indigenous people as well as their right to develop, preserve and transmit their history, traditions, and values to future generations; yet states also owe obligations towards indigenous people to facilitate their enjoyment of certain established rights, even as the provision of these obligations may be incompatible with indigenous peoples’ established practices, values, interests, priorities, and beliefs. Multilateral agencies face a similar dilemma in their engagements with national governments: when to respect the sovereignty of national governments and when to champion international law and covenants (e.g., regarding the rights of women and sexual minorities)? Drawing on cases from education, health care, and environment protection, this paper proposes an analytical framework for articulating and reconciling competing rights-based development commitments in low-income countries, where the presence of multilateral agencies and intensifying imperatives to attain global development goals generates forces exacerbating (potentially) competing national and sub-national commitments.

This paper is a product of the Development Research Group, Development Economics. It is part of a larger effort by the World Bank to provide open access to its research and make a contribution to development policy discussions around the world. Policy Research Working Papers are also posted on the Web at http://www.worldbank.org/prwp. The authors may be contacted at bnarh@worldbank.org and mwoolcock@worldbank.org.

_The Policy Research Working Paper Series disseminates the findings of work in progress to encourage the exchange of ideas about development issues. An objective of the series is to get the findings out quickly, even if the presentations are less than fully polished. The papers carry the names of the authors and should be cited accordingly. The findings, interpretations, and conclusions expressed in this paper are entirely those of the authors. They do not necessarily represent the views of the International Bank for Reconstruction and Development/World Bank and its affiliated organizations, or those of the Executive Directors of the World Bank or the governments they represent._ Produced by the Research Support Team
# **Reconciling Multi-Level Rights-Based Commitments in Development: Assessing the Legal and Administrative Imperatives of Responding to Education, Health Care, and Environment Protection Challenges**

Bernice Nuerkey Narh (World Bank) and Michael Woolcock (World Bank)<sup>1</sup> _Key words_ : rights-based development, sovereignty, indigenous people, international agencies _JEL codes_ : K3, O1

> 1 The views expressed in this paper are those of the authors alone, and should not be attributed to the World Bank, its executive directors, or the countries they represent. The authors do not seek to advance a particular ideological agenda or resolve a technical conundrum, but rather provide an overview for development professionals of the key legal foundations shaping the conditions under which nation-states engage with sovereign nations within their borders, and the nature and extent to which those same nation-states engage with multilateral organizations. We are grateful to Vikram Raghavan, Kwabena Oteng Acheampong, and Harum Mukhayer for helpful comments on an earlier draft, and to the World Bank’s Research Support Budget for partial funding. All remaining errors of fact and/or interpretation are solely ours. Address for correspondence: bnarh@worldbank.org and mwoolcock@worldbank.org
# **1. Introduction**

The principle of equality of states is the bedrock of international law and international cooperation. Yet even though states are equally sovereign, they possess different economic and human development capacities. Similarly, different groups, tribes, and nations within and across states also possess varying degrees of economic, human, and social development. Development interventions are often the first-choice tools for redressing economic and social disparities among otherwise equally sovereign yet economically unequal states, communities, societies, and groups. The adoption of global development goals by national governments confirms their commitment to bridging existing socioeconomic gaps between different countries and social groups within them, thereby providing impetus for various forms of development intervention. This global objective, initiated in 2000 with the relatively modest Millennium Development Goals, presently finds expression in the United Nations’ vastly more ambitious Sustainable Development Goals (SDGs), announced in 2015 with an expected attainment date of 2030. Declared to be universally applicable to and endorsed by all 193 signatory countries, and the product of an unprecedented world-wide consultative process,<sup>2</sup> the SDGs impose responsibility on states to foster sustainable development by implementing development initiatives to address issues ranging from economic growth to social inclusion and environmental protection. The SDGs are embodied in 17 goals and 169 targets that aspire to, among other objectives, end poverty, eradicate hunger, ensure universal lifetime access to quality education and health care, attain gender equality, generate inclusive and sustainable economic growth, enhance employment opportunities, and promote peace, justice, and strong institutions “for all.”<sup>3</sup> States are expected to meet the SDGs by establishing their own national framework, policies, and programs, and by creating a corresponding array of national indicators against which to monitor progress made on attaining the goals and targets.<sup>4</sup> By claiming to be universal, the SDGs invite an inquiry into whether their objectives are indeed shared by all countries and peoples, whether all countries and indigenous peoples were involved in the consultative process that resulted in the adoption of the specific goals and targets, whether all societies desire to organize their societies in line with the SDGs, and whether they have indicated their commitment to these goals. Without pre-empting later discussions in this paper, the SDGs were clearly and appropriately adopted by member countries of the United Nations, but this process primarily involved formal systems of national government rather than traditional and indigenous peoples.<sup>5</sup> As such, how do we reconcile the singular objectives of the SDGs with the wide array of (potentially

> 2 United Nations sustainable development agenda, https://sdgs.un.org/goals (last visited Mar 25, 2024). Indeed, the UN itself declares that “ <mark>[t]he 2030 Agenda is the result of the broadest and most participatory consultation process in the history of the United Nations...”, as cited in https://www.cepal.org/en/topics/2030-agenda-sustainable-</mark> <u><mark>development/about-2030-agenda-sustainable-development (last visited Mar 27, 2024).</mark></u>

> 3 The SDGs explicitly pledge a commitment to ensuring health care (SDG 3), education (4), and justice (16) “for all”. 4 That so many low-income countries are currently deemed to be disconcertingly “off track” to attaining these goals by 2030 (see United Nations [2024] _The Sustainable Development Goals Report 2024_ . New York: United Nations. <u>https://unstats.un.org/sdgs/report/2024/The-Sustainable-Development-Goals-Report-2024.pdf) has prompted recent</u> initiatives seeking to secure trillions of dollars in additional financial support from private sector actors. Much of the analytical imperative on which the credibility of this initiative rests assumes the presence of comprehensive, detailed, accurate, and readily available data on which enhanced “progress” attained via this financing mechanism can be clearly generated. For present purposes, we suggest that such initiatives – including both the scale of the potential funding and the strong imperative to empirically document progress – only intensify the nature and extent of the competing commitments to economic development that many poor, resource-scarce countries face.

5 That said, the SDGs make six explicit references to Indigenous Peoples, most prominently in Goals 2 (agriculture, output) and 4 (education, equal access).

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competing) beliefs, interests, and practices of indigenous groups? Furthermore, can states, having undertaken to implement these goals, use that as a basis to intervene in the affairs of sovereign states and indigenous groups with the view of fostering development? More broadly, to what extent can multilateral development agencies exert similar development-oriented pretexts for engaging – or not engaging – in national states?

This paper outlines an analytical framework by which potentially competing imperatives by national governments to engage or not with sovereign indigenous groups – and by multilateral agencies to engage or not with national governments – might be at least partially reconciled. It proceeds as follows, seeking to summarize the key legal and administrative issues shaping these dynamics, for both legal specialists and development professionals more generally. Following this introduction, section 2 provides an overview of the scholarly and legal foundations on which national governments are restricted from engaging in the affairs of sovereign indigenous peoples that reside within that state’s borders. Section 3 summarizes corresponding arguments for identifying when and why such governments _should_ so intervene, arguing that both sides of this apparent tension are in fact grounded in similar legal foundations. Section 4 extends the logic of these arguments to the global stage, assessing whether and how international law informs decisions about whether multilateral development agencies should or should not engage with sovereign national states. In section 5, we seek to articulate an analytical framework that reconciles these seemingly competing claims and imperatives. Section 6 concludes, assessing the implications and applications of the framework provided for ongoing policy deliberations.

# **2. Arguments against interventions by national governments in sovereign Indigenous groups**

For present purposes, development interventions can be conceived on two scales – the national level or the transnational level. At the transnational level, intervention may involve multilateral agencies or foreign states engaging with the domestic affairs of other sovereign states, often with the intention of influencing the domestic policy of those particular states,<sup>6</sup> including how the states should relate to indigenous communities within their borders. Multilateral agencies may also influence domestic affairs through the granting of development assistance. States may solicit direct or indirect assistance from development partners, thereby imbuing legitimacy for multilateral institutions or other agencies to engage in specific ways in their internal affairs. Development assistance from multilateral organizations may be laden with aid conditionalities, however, sometimes mimicking foreign political and economic requirements which developing countries must meet.<sup>7</sup> These conditions may require states to adopt formalized administrative systems or policy reforms mandated to implement programs presumed to be grounded in universally applicable development strategies.

> 6 Raymond Plant (1993), ‘Justifications for Intervention: Needs Before Context’, in Ian Forbes and Mark Hoffman (eds.) _Political Theory, International Relations and the Ethics of Intervention_ , at 105 (St. Martin’s Press). More broadly, see also the extensive collection of essays in <mark>Dwight Newman, ed. (2022),</mark> _<mark>Research Handbook on the International Law of Indigenous Rights</mark>_ <mark>(Edward Elgar Publishing)</mark>

> 7 Caroline Thomas (1993), ‘The Pragmatic Case Against Intervention’, in Ian Forbes and Mark Hoffman (eds.) _Political Theory, International Relations and the Ethics of Intervention_ 91 at 98 (St. Martin’s Press).

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In the national sense, intervention involves the government or state apparatus interfering in the affairs of its own people,<sup>8</sup> including indigenous peoples within its own borders. In contrast with the indirect approach assumed by multinational agencies, state governments take a more direct approach when engaging in the affairs of indigenous groups and tribal nations residing within their territorial boundaries. In a bid to assimilate indigenous groups with the mainstream population, states have intervened by forcefully removing indigenous groups from indigenous lands<sup>9</sup> , by designating indigenous lands as reservations and forcing indigenous peoples to comply with state preservation laws<sup>10</sup> and language requirements, by outlawing hunting and gathering<sup>11</sup> , or otherwise introducing new laws to entrap indigenous people. Arguments against the forceful imposition of national policies may be rationalized on the basis that they undermine the values of the indigenous peoples upon which such policies are imposed, doing so by arbitrarily transposing the beliefs and ideals of the nonindigenous population with little regard for the particular values and ideals upon which that indigenous society itself is organized.

Whether through direct or indirect influence, interventions are undertaken with the view to foster “development.” As evidenced by the SDGs, the universal mission to maintain uniform standards of living by improving socio-economic conditions and vetting cultural practices around the world are informed by this concept of development. Antagonism towards Western-influenced development policies fuel the cry against its imposition on different cultures. Critiques of foreign development policies acknowledge that development policies need to be tailored to suit the different societies in which they are sought to be applied. When used in reference to indigenous people, however, the term ‘development’ invites a more focused inquiry into whose living standards should be employed when measuring the level of progress or change.<sup>12</sup> Against whose experiences should the level of development of an indigenous nation be measured? On the one hand, the right of indigenous people to determine their own concept of development according to their own values, priorities, and needs is recognized; on the other hand, indigenous groups are deemed to be economically and socially backward<sup>13</sup> and thus in need of – indeed have a formal right to receive – development interventions. Where should the proverbial line in the sand be drawn between leaving indigenous communities to organize themselves and determine their affairs as they wish (including how they assess their welfare), and ‘nudging’ them to adopt a modern way of life? In analyzing whether the arguments for and against

> 8 Michael Hibbard (2022), ‘Indigenous Planning: From Forced Assimilation to Self-determination’ _Journal of Planning Literature_ , 37(1), 17-27. https://doi.org/10.1177/08854122211026641. See also ‘Indigenous Peoples’ Rights’, Amnesty International, (2024) https://www.amnesty.org/en/what-we-do/indigenous-peoples/ (last visited Aug 27, 2024). 9 Indigenous Peoples’ Rights, Amnesty International, supra note 8.

> 10 Jeremie Gilbert (2017), ‘Land Grabbing, Investments and Indigenous Peoples’ Rights To Land And Natural Resources: Case Studies And Legal Analysis’, <mark>IWGIA</mark> Report 26. https://www.iwgia.org/images/publications/new- - - - <u>publications/land grabbing indigenous peoples rights.compressed.pdf</u> 11 Id.

> 12 The ontological and epistemological basis on which indigenous communities discern the nature and extent of human welfare may differ in fundamental ways from approaches characteristically deployed by international agencies. Where the latter may seek to measure and compare ‘progress’ against standardized money-metric ‘poverty lines’, for example, the former may cite the importance of appeasing ancestors and retaining wholistic engagement with nature.

> 13 Indigenous people are estimated to account for approximately 5 percent of the world’s population, 15 percent of the world’s poor and one-third of the world’s 900 million extremely poor rural people. See ‘Economic and Social Development: United Nations For Indigenous Peoples’. <u>https://www.un.org/development/desa/indigenouspeoples/mandated-areas1/economic-and-social-development.html</u> (last visited Apr 18, 2024)

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development are justifiable under international law, and whether development should be rejected by or imposed on “uncontacted groups” such as the Sentinelese and indigenous tribes such as the Nukak<sup>14</sup> and the Maasai,<sup>15</sup> we need to identify who qualifies as an indigenous group, as well as the protections that exist under both national and international law for these populations.

# _Indigenous Groups and Legal Protections_

Indigenous people in the world number about 476 million across 90 countries, consist of about 6 percent of the global population and together speak over 4,000 of the world’s 7,000 languages.<sup>16</sup> Curiously, despite these statistics, there is no formally accepted definition for the term “indigenous people.”<sup>17</sup> The UN Declaration on the Rights of Indigenous Peoples does not adopt a definition for indigenous people on the basis that self-identification is critical to a person’s status as a member of an indigenous group and is fundamental to the right of self-determination. It defers to the group itself to determine their own identity and membership based on their identities and beliefs.<sup>18</sup> Most commonly, however, indigenous people are identifiable by their unique traditions, languages, practices, and beliefs, and their retention of social, cultural, economic, and political characteristics distinct from those of the dominant societies in which they live.

The Sentinelese<sup>19</sup> are an indigenous community and arguably the most isolated tribe in the world. They are estimated to number between 50 and 200<sup>20</sup> people, and occupy the North Sentinel Island, one of the Andaman Islands in one of the eight Union Territories of India. For over 55,000 years, they have forcefully resisted contact from the outside world and succeeded in not falling victim to colonial and imperial expansion. They maintain a paleolithic lifestyle. Due to their peculiar practices and way of life, they have been described as “the world's last and most isolated stone age tribe,”<sup>21</sup> as well as “socially and economically backward.”<sup>22</sup> The lifestyle of the Sentinelese conforms to neither the Western model of modernity nor the lifestyle of the majority of the Indian population. At their insistence, the Sentinelese have mostly remained undisturbed by the international community and local people. While many people support this stance, there have also been calls for the state of India to interfere with their way of life in order to, at the very least, incorporate them into national life.

> 14 Survival International, _Nukak_ , https://www.survivalinternational.org/tribes/nukak (last visited Dec 12, 2023).

> 15 Survival International, _Maasai,_ <u>https://www.survivalinternational.org/tribes/maasai</u> (last visited Aug 27, 2024). 16 ‘Indigenous peoples rights are human rights’, Amnesty International, https://www.amnesty.org/en/what-we- <u>do/indigenous peoples/</u> (last visited Apr 18, 2024)., Indigenous Peoples, World Bank, https://www.worldbank.org/en/topic/indigenouspeoples (last visited Apr 18, 2024). About indigenous peoples and human rights, OHCHR, https://www.ohchr.org/en/indigenous-peoples/about-indigenous-peoples-and-human-rights (last visited Apr 18, 2024).

> 17 About indigenous peoples and human rights, _supra_ note 14.

> 18 Art. 33 of the UNDRIP. ‘Indigenous peoples rights are human rights’, Amnesty International, _supra_ note 16.

> 19 Also known as the Sentineli. The Last and Most Isolated Stone Age Tribe in the World', <u>https://greekreporter.com/2023/01/25/last-most-isolated-stone-age-tribe-world/</u>

> 20 Adam Goodheart, 2023. ‘Why Uncontacted Tribes Want to Stay Uncontacted’, _The Atlantic,_ <u>https://www.theatlantic.com/ideas/archive/2023/10/north-sentinel-island-tribes-maurice-vidal-portman/675563/BBC</u> ‘American 'killed in India by endangered Andamans tribe'’, https://www.bbc.com/news/world-asia-india-46286215 (Some projections have numbered the Sentinelese are low as 15 or as high as 500). _See_ Survival International, _Sentinelese_ , https://www.survivalinternational.org/tribes/sentinelese (last visited May 3, 2023).

21 ‘The Last and Most Isolated Stone Age Tribe in the World', https://greekreporter.com/2023/01/25/last-most- <u>isolated-stone-age-tribe-world/</u> (last visited May 3, 2024).

> 22 _Id._

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In contrast to the Sentinelese, the Nukak, previously uncontacted, are a hunter-gatherer indigenous tribe traditionally located in the depths of the forest on the fringe of the Amazon basin in Colombia. The Nukak, estimated to number about 800,<sup>23</sup> remained uncontacted until 1988, when a group of Nukaks appeared in neighboring Calamar.<sup>24</sup> In 2005, they were forced out of their ancestral territory by the rebel group Revolutionary Armed Forces of Colombia (FARC) and subsequently housed in resettlement camps.<sup>25</sup> Following their contact with external groups, the Nukak population has declined significantly, prompting calls on the Colombian government to restore ancestral lands to the Nukak to facilitate a return to their indigenous lifestyle. The last of Colombia’s nomadic indigenous tribes,<sup>26</sup> the Nukak have been declared to be at “imminent risk of extinction.”<sup>27</sup> The different views and sentiments surrounding development generally, coupled with the opposing views on when and how the state of India should engage with the Sentinelese or whether the Nukak should be permitted to live in isolation from Colombia’s national economy, require development ethicists to consider at least two central questions.<sup>28</sup> These include what should count as ‘good’ development and who should be responsible for bringing it about.<sup>29</sup> To what extent, if any, should development experts propose visions grounded in a certain conception of material progress or human well-being, and how extensive should this vision be? For many indigenous tribes, answers to these questions often appear to have been pre-determined. Arguments against interference with their way of life have translated into specialized protection under both international law and state law.

At the national level, indigenous people find protection in national constitutions. In some cases, protections exist under specialized legislation, as in case of the Sentinelese. The decisions of constitutional courts have also offered protections for some indigenous populations, The Sentinelese, for example, are legally protected by the Andaman and Nicobar Islands (Protection of Aboriginal Tribes) Act passed in 1956 by the Republic of India to “provide for the protection of the interests of _socially and economically backward_ aboriginal tribes in the Andaman and Nicobar Islands.”<sup>30</sup> The Act places restrictions on the acquisition of land in and entry into the “protected territories”, and prohibits the rest of the state from contacting the Sentinelese by any means.<sup>31</sup>

> 23 Other sources have estimated the Nukak population as ranging between 600 and 900. See _‘_ Indigenous group and locals sign agreement to protect sustainable livelihoods and culture’, _Mongabay Environmental News_ (2022), <u>hhttps://news.mongabay.com/2022/05/indigenous-group-and-locals-sign-agreement-to-protect-sustainablelivelihoods-and-culture/</u> (last visited Dec 12, 2023). See also ‘The Nukak: The last contacted tribe in Colombia fighting - to return home for more than 30 years', _The Royal Scottish Geographical Society_ (2022), https://www.rsgs.org/blog/the <u>nukak-the-last-contacted-tribe-in-colombia-fighting-to-return-home-for-more-than-30-years</u> (last visited Dec 12, 2023).

> 24 It is believed that they may have had contact with Christian evangelistic groups in the 1970s. See _Survival International_ , _Nukak_ , https://www.survivalinternational.org/tribes/nukak (last visited Dec 12, 2023).

> 25 Indigenous group and locals sign agreement to protect sustainable livelihoods and culture, _supra_ note 23.

> 26 ‘Latam Eco Review: Colombia’s last nomadic tribe faces extinction’, _Mongabay Environmental News_ (2018), <u>https://news.mongabay.com/2018/05/latam-eco-review-colombias-last-nomadic-tribe-faces-extinction/ (last visited</u> Dec 12, 2023).

> 27 ‘The Nukak - The last contacted tribe in Colombia fighting to return home for more than 30 years’, _supra_ . 28 David Crocker (nd) 'International Development Ethics', https://www.bu.edu/wcp/Papers/OApp/OAppCroc.htm (last visited May 3, 2023).

> 29 _Id._ Indigenous group and locals sign agreement to protect sustainable livelihoods and culture’, _Mongabay Environmental News_ (2022)

30 Objective of the Protection of Aboriginal Tribes Act (emphasis added).

31 Sections 6 and 7 of the Protection of Aboriginal Tribes Act.

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The Nukak also appear to find protection under Colombia’s constitution and laws. The Constitution recognizes the autonomy of indigenous tribes and their right to self-governance and the need to uphold the cultural, social and economic integrity of indigenous communities.<sup>32</sup> The law enables indigenous peoples to enjoy the expressions of their culture to the fullest extent of the law.<sup>33</sup> These protections translate into the right to govern themselves under their own territories, to exercise jurisdictions appropriate to them, the right to administer their resources, and the right to participate in national revenues.<sup>34</sup>

# _Sovereignty, Equality and the Right to Self-Determination_

At the international level, protection is accorded to indigenous communities under the United Nations Declaration on the Rights of Indigenous People (“the Declaration”), which establishes a framework for member states to relate with indigenous people within their territories. The Declaration, although itself non-binding, reaffirms (among other items) the pre-existing rights of indigenous people to life, dignity, health, education, and work. The Declaration also affirms the right of all indigenous tribes to the fundamental right of self-determination,<sup>35</sup> recognizing the right of indigenous people to be different, to consider themselves different, and to be respected as such. Indigenous groups may independently determine their political status and pursue their own economic, social, and cultural development.<sup>36</sup> These provisions reiterate that indigenous people should be allowed to exercise their right to development in accordance with their own needs and interests. Ultimately, the principle of self-determination supports the view that indigenous tribes are themselves responsible for their economic, social, cultural, and political development and reserve the right to determine what should count as development.

As Barker points out, the right to self-determination is “indelibly linked to sovereignty” such that talking about one invokes the other.<sup>37</sup> The concept of indigenous sovereignty is one of the arguments that have been advanced to justify noninterference with indigenous communities.<sup>38</sup> The notion of indigenous sovereignty is carved out of the broader international law principle of state sovereignty. The principle holds that each state has the legal authority and responsibility to govern and regulate its own affairs without foreign interference.<sup>39</sup> Closely related to the principle of sovereignty is the principle of equality of states, which asserts that all nations and peoples are equal, and as such, no one state can assume political authority over another. State sovereignty, thus, rejects the exercise of control by one state over another and the use of coercion to compel states to act in a certain manner.<sup>40</sup>

> 32 Arts. 287, 329 and 330 of the 1991 Constitution, as amended.

> 33 Id. Art 246.

> 34 Art 287.

> 35 The right to self-determination is a jus cogens norm established under international law and guaranteed by major international treaties including the Universal Declaration of Human Rights, the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political rights as well as the Vienna Declaration and Programme of Action.

> 36 Article 3 and 5 of the UN Declaration on the Rights of Indigenous People.

> 37 Joanne Barker (2005), _For Whom Sovereignty Matters_ ,

https://www.academia.edu/10374722/For_Whom_Sovereignty_Matters_2005_ (last visited Jan 15, 2024).

38 Rashwet Shrinkhal (2021), ‘“Indigenous Sovereignty” and Right to Self-Determination in International Law: A Critical Appraisal’, 17 _AlterNative: An International Journal of Indigenous Peoples_ 71.

> 39 Malcolm N. Shaw (2017), _International Law_ (Eighth edition ed.) (Cambridge University Press).

> 40 Terry Nardin (1983), _Law, Morality, and the Relations of States_ 1. (Princeton University Press).

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In exercising their sovereignty, states have absolute autonomy over their territory and internal affairs as well as permanent sovereignty over their natural resources.<sup>41</sup> According to Varese, indigenous sovereignty involves “the recognition that there is no external supreme and absolute power over the indigenous community but that it is in the community, in the body politic that sovereignty resides.”<sup>42</sup> Shrinkhal writes that indigenous sovereignty grants indigenous people the right to self-governance and self-regulation and “and challenges the political and moral authority of states controlling indigenous population within their territory.”<sup>43</sup> Arguments against non-intervention on the basis of indigenous sovereignty assume that the imposition of “foreign” development policies on the indigenous tribes without regard for their own desires is tantamount to coercion and undermines their sovereignty. This argument is predicated on the understanding that indigenous tribes have some level of political autonomy and that by interfering with how they organize their community, the state apparatus undermines this autonomy.

# _Right to Health_

Another compelling justification for nonintervention is the respect for the right to health. Exposure of uncontacted tribes to other communities poses significant health risks for indigenous tribes.<sup>44</sup> Arguments against non-intervention for health reasons appear to have rationally considered the threat of exposure to pathogens and diseases which indigenous tribes cannot fend off. The recognition of the right to health under the Declaration reinforces this reasoning. Historically, members of isolated (and many not so isolated) tribes have taken ill when they came into contact with modern communities, causing mass deaths.<sup>45</sup> In 1880, following Britain’s declaration of Sentinel Island as a British colonial holding, two elderly people and four children were captured and sent to Port Blair.<sup>46</sup> All six captives fell ill shortly thereafter, resulting in the death of the elderly couple.<sup>47</sup> More recently, in 1996, after a group from the Jarawa tribe, one of the Andaman tribes, came into contact with the surrounding community, their tribe was ravaged by measles and other diseases they are suspected to have been exposed to when they came into contact with the modern community.<sup>48</sup> A more drastic example of the dangers of contact with indigenous people with the foreigners can be found in the instance of the Nukak. Between 1988 and 1998, following their contact with outsiders, more than half

> 41 Shaw, _supra_ .

> 42 Stefano Varese (2006), ‘Witness to Sovereignty: Essays on the Indian Movement in Latin America' (IWGIA - - - International Work Group for Indigenous Affairs), https://iwgia.org/en/resources/publications/305 <u>books/2645 witness-to-sovereignty-essays-on-the-indian-movement-in-latin-america.html</u> (last visited Jan 15, 2024).

> 43 Rashwet Shrinkhal (2021), ‘“Indigenous Sovereignty” and Right to Self-Determination in International Law: A Critical Appraisal’, 17 _AlterNative: An International Journal of Indigenous Peoples_ 71.

> 44 Survival International (n.d.), 'Uncontacted Tribes: The Threats' _Survival International_ ,

> <u>https://www.survivalinternational.org/articles/3106-uncontacted-tribes-the-threats</u> (last visited Dec 20, 2023). 45 Researchers estimate that the population of indigenous people in 1492 declined by 90% over the subsequent century. See <mark>Alexander Koch, Chris Brierley, Mark M. Maslin, and Simon L. Lewis (2019). ‘Earth system impacts of the European arrival and Great Dying in the Americas after 1492.</mark> ’ _<mark>Quaternary Science Reviews</mark>_ <mark>207: 13-36.</mark> 46 Kiona N. Smith (2018), ‘Everything We Know About The Isolated Sentinelese People Of North Sentinel Island’, _Forbes_ , https://www.forbes.com/sites/kionasmith/2018/11/30/everything-we-know-about-the-isolated-sentinelese- <u>people-of-north-sentinel-island/?sh=2cbb590c35a0 (last visited May 5, 2023).</u>

> 47 _Id._

> 48 Michael Safi (2018) ‘Sentinel Island’s 'Peace-Loving' Tribe Had Centuries of Reasons to Fear Missionary’, _The Guardian_ , Nov. 30, https://www.theguardian.com/global-development/2018/nov/30/sentinelese-tribe-who-killed- <u>american-are-peace-loving-say-anthropologists (last visited May 4, 2023).</u>

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of the population died from malaria, measles, and pulmonary infections.<sup>49</sup> In such instances, arguments in favor of non-intervention are justifiable to protect the health of indigenous peoples and preserve their declining populations.

# **3. Arguments for interventions by national governments in the affairs of indigenous groups**

_State Sovereignty and Non-Intervention_ In order to safely justify non-intervention on the bases of equality, sovereignty or self-determination, one must consider that the nature of the relationship between states and multilateral organizations is fundamentally dissimilar to the relationship between a state and indigenous people within that state’s borders. Multi-state relations are established on the principle of sovereign equality<sup>50</sup> referred to in some literature as Westphalian Sovereignty,<sup>51</sup> which implies that states may not legitimately intervene in the domestic affairs of another. Traditional states and non-state actors (including multilateral institutions) acting under international law operate on equal footing, with no one subject wielding superior power over another. States express their consent to be bound by multilateral treaties. Similarly, to be subject to the direction of multilateral organizations or bound by conditions or standards imposed by multilateral organizations, a state must be a member state of that organization or must have signed, ratified, or otherwise subscribed to the institution’s operating agreement. Even in instances where a state is a member of a multilateral organization, that country may still opt out of provisions of an agreement by making a reservation in respect of a particular clause or protocol. Additionally, a state may subsequently withdraw from a treaty to which it had previously subscribed. These prerogatives are enjoyable by states by virtue of the principles of sovereignty, equality, and nonintervention.

By contrast, indigenous tribes do not exist independently of their national governments, nor can they exercise their indigenous sovereignty in a similar manner. Krasner recognizes that in respect of states, sovereignty is also characterized in another form which he refers to as domestic sovereignty.<sup>52</sup> Domestic sovereignty is the ability of a state to maintain the monopoly of the use of force within its territory.<sup>53</sup> More broadly, domestic sovereignty can also be conceptualized as the ability of states to exercise political authority and autonomy over their territories. Indigenous tribes are subject to the political authority of the state in whose territory they live. Laws which are enacted by the legislature of the country apply equally to all citizens within its territory (including indigenous tribes) by default rather than by election or consent. Indigenous nations within the territory of a state must automatically comply with the laws of that state and cannot of their own accord opt out of its application.

> 49 Smithsonian Magazine and Joshua Hammer (2013) ‘The Lost Tribes of the Amazon’, _Smithsonian Magazine_ , <u>https://www.smithsonianmag.com/innovation/the-lost-tribes-of-the-amazon-22871033/</u> (last visited Dec 18, 2023). ‘Nukak dispossession highlights Amazonian tribes’ plight’, BBC News, Sep. 18, 2010, <u>https://www.bbc.com/news/world-latin-america-11331508 (last visited Jan 19, 2024).</u>

> 50 Article 2 of the UN Charter.

> 51 Stephen Krasner (1999), _Sovereignty: Organized Hypocrisy_ (Princeton University Press). The principle of Westphalian Sovereignty derives from the Treaties of Westphalia in 1648 which ended the Thirty Years War. “It is generally held to mean a system of states or international society comprising sovereign state entities possessing the monopoly of force within their mutually recognized territories.” In ‘Westphalian state system’, _Oxford Reference._ Retrieved 1 May 2024, from <u>https://www.oxfordreference.com/view/10.1093/oi/authority.20110803121924198.</u>

> 52 Krasner (1999).

> 53 Id.

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Admittedly, the state may exercise its discretion to exempt indigenous people from complying with certain laws. This election is, however, in most, if not all cases, the preserve of the state rather than the indigenous group. This is so even in pluralistic legal systems: where traditions and customs are allowed to coexist with or are incorporated into the national legal system, their application is made subject to repugnancy clauses,<sup>54</sup> giving the state the authority to modify and redefine indigenous legal systems.<sup>55</sup> More importantly, as Wiesnner notes, the state has the “plenary power” to confer on or withdraw powers from indigenous communities.<sup>56</sup> This confirms that, in a sense, the principle of sovereign equality affords states an element of choice when acting on the international scene which is evidently absent in respect of indigenous peoples acting within a state.

While states, acting in their sovereign capacity, have the choice to elect which conditions to abide by, these same rights do not accrue to indigenous tribes. Indigenous peoples cannot be held to be truly sovereign in the political sense nor are they to be accorded an unqualified right to self-determination. Even in countries with a federal system of government, regional governments are only partially selfgoverning. They do not exist independently of the national government and are not absolutely autonomous. The federal governments reserve some powers for itself, enabling the government to review or veto state laws or actions where appropriate. Equally noteworthy is the fact that, except to the extent allowable by national laws, indigenous tribes do not exercise sovereignty over the natural resources found within their territories. While indigenous tribes may lawfully lay claim to their territories, ownership laws are in fact determined by the state laws. In fact, the issue of whether a group is recognized or treated as an indigenous tribe depends on the concerned government. The Ugandan government, for instance, does not recognize the Karamojong<sup>57</sup> as an indigenous group despite the group’s consistent resistance to outside intervention.<sup>58</sup> Similarly, Kenya and Tanzania oppose the claims of the Maasai and other indigenous tribes to sovereignty and indigenous rights.<sup>59</sup> These outstanding issues make it difficult to conceptualize a political system in which indigenous tribes are completely sovereign and retain an unqualified right to determine their own affairs devoid of state influence. In support of this view, Mayall writes that while the international community subscribes to national self-determination, “It cannot be invoked – at least with any hope of securing widespread support by dissatisfied minorities within existing states.”<sup>60</sup> Indigenous sovereignty appears to only support the right of indigenous groups to maintain their traditional customs and practices and to internally regulate their social relations, rather than an unfettered right to autonomy that justifies non-

> 54 Brian Z. Tamanaha (2011), ‘The Rule of Law and Legal Pluralism in Development’, _Hague Journal on the Rule of Law_ , 3 (1): 1-17.

> 55 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978).

> 56 Siegfried Wiessner (2008), ‘Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples’, 41 _Vanderbilt Journal of Transnational Law_ 1141.

> 57 See ‘The Karamojong: Uganda Tribes and Culture, the Karamojong People’, Kidepo Valley National Park (Sep. 14, - 2017), https://www.kideponationalpark.com/information/the <u>karamojong/</u> (last visited Jan 10, 2024).

> 58 Colman Ntungwerisho (2022), ‘Karamoja No-Longer Needs to Be Waited for to Develop’, _Medium_ (Jul. 14), <u>https://colmanntungwerisho.medium.com/karamoja-no-longer-needs-to-be-waited-for-to-develop-fa1d4ae10c24 (last</u> visited Jan 10, 2024). 59 Olol-Dapash Meitamei (2010), ‘Maasai Autonomy and Sovereignty in Kenya and Tanzania’ Cultural Survival, <u>https://www.culturalsurvival.org/publications/cultural-survival-quarterly/maasai-autonomy-and-sovereignty-kenya-andtanzania</u>

> 60 James Mayall (1991), ‘Non-Intervention, Self-Determination and the New World Order’ _International Affairs_ 67(3): 421429.

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intervention by the state apparatus. At most, the right to self-determination implies a right to participate in decision making concerning matters that affect them.<sup>61</sup> As recognized by the United Nations, this includes ‘the right to _participate_ in decision-making in matters that would affect their rights and states’ duties _to consult and cooperate_ with them to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures _that may affect them_ .”<sup>62</sup> Consequently, we cannot attempt to justify non-intervention by international organizations in the affairs of nation states and intervention by the state apparatus in the affairs of indigenous peoples on these same grounds. Arguing that indigenous groups within a given state have the same right to maintain their own cultural, political, social, and economic interests parallel to that of the state, devoid of any interference by the state apparatus, indirectly detracts from the right of that nation state to determine its national affairs, exercise its territorial sovereignty or otherwise determine its interests in accordance with its own national identity.

As noted, indigenous sovereignty arouses claims for indigenous groups to exercise physical control over their territories, to control, manage and regulate natural resources found within their territories. However, both the ILO Convention No. 169<sup>63</sup> and the Declaration<sup>64</sup> delegate the protection and preservation of indigenous lands to the state. States are charged with implementing programs to ensure the preservation and protection of indigenous lands. In the wake on increasing global environmental issues, indigenous groups are entitled to both information on and protection against occurrences that are transboundary in nature and are likely to impact their way of life. It is indisputable that indigenous peoples – because they are not absolved from the negative impacts of climate change, environmental degradation, and transboundary atmospheric pollution, among others – are equally entitled to protection against these problems (irrespective of how isolated they may be) and also owe a duty not to cause, contribute to, or exacerbate these issues. While it is conceded that indigenous communities safeguard the environment,<sup>65</sup> rather than engage in industrial activities that exacerbate these environmental challenges and that modern communities are responsible for the pollution they have occasioned, it is also important to note that the effects of these issues can be neither contained nor prevented from impacting indigenous communities.<sup>66</sup> The threatening impact of climate change is reported to be experienced firstly by indigenous communities in the Arctic and the Kalahari.<sup>67</sup> The Karamojong are also reported to suffer from prolonged periods of drought which has affected

> 61 Indigenous Peoples and the United Nations Human Rights System <u>https://www.ohchr.org/sites/default/files/Documents/Publications/fs9Rev.2.pdf.</u> 62 Indigenous Peoples and the United Nations Human Rights System <u>https://www.ohchr.org/sites/default/files/Documents/Publications/fs9Rev.2.pdf.</u>

> 63 Article 7(4) of the ILO Convention.

> 64 Article 29 of the UNDRIP.

> 65 ‘Why protecting Indigenous communities can also help save the Earth’, _The Guardian_ , Oct. 12, 2020, https://www.theguardian.com/climate-academy/2020/oct/12/indigenous-communities-protect-biodiversity-curbclimate-crisis (last visited Jan 19, 2024). See also ‘Indigenous peoples defend Earth’s biodiversity—but they’re in danger', _Environment_ (2018), https://www.nationalgeographic.com/environment/article/can-indigenous-land-stewardship- - <u>protect biodiversity</u> (last visited Jan 19, 2024).

> 66 About indigenous peoples and human rights, _supra_ . 67 UNEP (2023), ‘As Climate Crisis Alters Their Lands, Indigenous Peoples Turn to the Courts’, <u>http://www.unep.org/news-and-stories/story/climate-crisis-alters-their-lands-indigenous-peoples-turn-courts (last</u> visited Jan 19, 2024).

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harvests and intensified food insecurity in the region.<sup>68</sup> Instinctively, states may be forced to introduce policies that redefine how indigenous populations exercise their territorial sovereignty. Thus, even in the absence of obligations, indigenous groups have rights and are entitled to some protections which may justify intervention by both states and international development agencies under appropriate circumstances.<sup>69</sup> This position is reinforced by Article 39 of the Declaration which recognizes that indigenous peoples have the right to have access to financial and technical assistance from states and through international cooperation, for the enjoyment of their rights.

# _Preexisting Rights and Corresponding Duties under International Law_

Notwithstanding the preceding arguments, states have already-existing obligations under international law to guarantee, protect, and fulfil basic rights. These obligations extend to indigenous tribes as it does the rest of the population. That indigenous peoples have a right to self-determination does not detract from the state’s obligation to comply with their obligations under the law. These obligations arise under multiple international instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on the Rights of the Child – and apply to indigenous populations even in the absence of the Declaration on the Rights of Indigenous Peoples. The rights articulated by these instruments are inherent and are ascribed not on the basis of the values of a people or their status, but by virtue of their humanity or existence. Hence, indigenous people also possess these inalienable rights that are guaranteed and protected by these international instruments. The collection of rights includes both negative and positive rights, some of which require specific action by the state and may justify state interference in the affairs of indigenous populations.

In discharging their obligations under these instruments, states must treat all citizens fairly and equitably without discrimination. The principle of equal treatment and non-discrimination prescribes that all persons, regardless of their circumstances, are accrued the opportunity to realize their inalienable human rights. A state must, where necessary, implement measures to ensure that its citizens enjoy the full realization of their rights. Prioritizing other regions and outrightly neglecting the development of indigenous tribes may indicate discrimination against indigenous groups by the state. While non-intervention is remarked as a sign of respect for the right of indigenous people to determine how to organize their social, economic, and political affairs, completely refusing to render aid to or establish relevant institutions for indigenous tribes is overt discrimination. Exemplifying this is the historical relationship between the Ugandan government and the Karamojong, which has witnessed the Karamojong’s exclusion from development processes. Shortly after independence, then Prime Minister Milton Obote was reported to have said, “We shall not wait for Karamoja to develop.”<sup>70</sup> The Ugandan government subsequently neglected the Karamoja by failing to provide the resources needed

> 68 Lindsey Doermann (20230, ‘Karamoja Beset with Drought’, NASA Earth Observatory (last visited Jan 19, 2024). <u>https://earthobservatory.nasa.gov/images/151969/karamoja-beset-with-drought</u> 69 Article 7(4) of the ILO Convention No. 169 provides enjoins Governments to take measures, in co-operation with the indigenous peoples concerned, to protect and preserve the environment of the territories they inhabit.

> 70 ‘Waiting for Karamoja to develop: Of Uganda’s uneven development’, _Monitor_ (2020), <u>https://www.monitor.co.ug/uganda/special-reports/uganda-50/waiting-for-karamoja-to-develop-of-uganda-s-unevendevelopment-1518964</u> (last visited Jan 22, 2024).

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for their economic, human, and social development.<sup>71</sup> With an estimated 66 percent of its total population living in poverty, the region has the reputation of being the least socially and economically developed in Uganda.<sup>72</sup> This provides a clear example of how non-intervention can be exploited by states and governments to avoid the performance of pre-existing duties owed to indigenous peoples.

# _Right to Health_

The right of indigenous people to health has been used as a justification for intervention. The Declaration guarantees the right of indigenous people to health<sup>73</sup> and enjoins states to “take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions.”<sup>74</sup> The state is also required to pay particular attention to the rights and special needs of indigenous elders, women, youth, children, and persons with disabilities.<sup>75</sup> By restricting local people from the Sentinel Islands, India’s Protection of Aboriginal Tribes Act reveals a commitment to protect the Sentinel tribes from diseases. Judging from past events, contact from outsiders is likely to expose them to foreign pathogens and endanger their health, since they have been isolated for over 55,000 years and have not developed resistance against certain diseases.

This is, however, not exhaustive of the measures India can implement to ensure that its indigenous population enjoys the right to health. The Declaration recognizes that indigenous peoples have a right to enjoy the “highest attainable standard of physical and mental health” and enjoins states to work towards the full realization of this right.<sup>76</sup> This imposes a corresponding duty on states to implement measures to ensure that indigenous tribes attain the same standards of health care as the rest of the population. The Declaration also recognizes the need for states to implement programs for monitoring, maintaining, and restoring the health of indigenous people.<sup>77</sup> India’s duty to protect the right of the Sentinelese to health is, for this reason, not discharged by merely restricting access to their territory to prevent the exposure to foreign pathogens and diseases. As with the rest of the population, the state owes a duty to their indigenous populations to provide access to health care services, including, where necessary, the provision of assistive technology for indigenous people with disabilities.<sup>78</sup> Similarly, the full implementation of the Declaration would require Colombia to provide resources to ensure that the Nukak enjoy the highest attainable standard of health care. The Nukak, for example, are reported to be “prone to soil transmitted diseases and impurities in their water sources.”<sup>79</sup> In response, the pragmatic steps that may be adopted by the state in fulfilment of its obligation under the Declaration would include instituting an investigation and monitoring program

> 71 Simon Peter Longoli (2014), ‘Tell the Karamoja Story Right’, _Karamoja Development Forum_ (Jun. 24), <u>https://karamojadf.wordpress.com/2014/06/24/tell-the-karamoja-story-right/</u> (last visited Oct 15, 2024).

> 72 Uganda [Karamoja Region], ‘IPC Food Security and Nutrition Snapshot’, March - July 2022 (Published on May 31, 2022); see also Uganda, ReliefWeb, https://reliefweb.int/report/uganda/uganda-karamoja-region-ipc-food-security- <u>nutrition-snapshot-march-july-2022-published-may-31-2022 (last visited Jan 22, 2024).</u>

> 73 Article 21 (1) of the UN Declaration on the Rights of Indigenous People.

> 74 Article 21 (2) of the UN Declaration on the Rights of Indigenous People.

> 75 _Id._

> 76 Article 24 of the UNDRIP.

> 77 Article 29(3) of the UNDRIP.

> 78 Franziska Felder, Laura Davy, and Rosemary Kayess (eds). (2022) _Disability Law and Human Rights: Theory and Policy_ (Palgrave Macmillan). https://doi.org/10.1007/978-3-030-86545-0 (last visited Oct 15, 2024).

> 79 Nukak dispossession highlights Amazonian tribes’ plight, _supra_ .

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to analyze the health conditions that are presented by the Nukak, improving access to health care by sick persons and providing safer water sources for consumption by the group.

The nature of the duties imposed on states under the Declaration, however, equally supports arguments that may be made in favor of intervention. Complete non-intervention may render Colombia and India in contravention of their duty to promote and enhance the socio-economic rights of their indigenous populations. Any argument in favor of the status quo may be rebuffed on the basis that it constitutes discrimination against indigenous communities. By insisting on non-intervention by the government and depriving them of access to scientific inventions which have assisted in the diagnosis and treatment of many preventable and treatable diseases, the right of the Sentinelese and Nukak to health is being undermined.

# _Humanitarian Assistance_

Another argument may be canvassed in favor of intervention on humanitarian grounds. States have a legal duty to intervene to mitigate or prevent possible threats to the fundamental human rights of its citizens as well as aliens in their territories. States may realize this duty by providing relief and extending humanitarian assistance in disaster situations. As a complement to national efforts, the international community also coordinates humanitarian relief in areas beyond the relief capacity of national authorities alone.<sup>80</sup> States are duty-bound to avoid discrimination against sections of their population. The ethical principles of non-discrimination, justice, and equity which have been imported into international law prohibit states from treating a section of their population more favorably than others. This means that in the case of the Sentinelese, the obligations owed by the Indian state to other regions in times of disaster extend equally to the Sentinelese. Advocating for non-intervention by the government will render external assistance during disasters difficult or impossible. India’s failure to maintain physical contact with Sentinelese exemplifies this argument. In December 2004, when an 8.9 Richter scale earthquake triggered a tsunami that affected the North Sentinel Island – destroying lagoons and causing a possible loss of shallow water fishing ground for the Sentinelese,<sup>81</sup> who harvest fish and crabs for sustenance – the state sent coast guard helicopters to examine the conditions on the island without making any contact with the Sentinelese.<sup>82</sup> However, the Indian state’s obligation to the Sentinelese goes beyond patrolling the island with coast guard helicopters to actually providing relief items, including food and health care services. In order to reasonably discharge this duty, India may be required to make physical contact with the Island and its inhabitants, thereby violating the manifest intention of the Sentinelese to remain uncontacted. Intervention on this basis requires a balancing of the desires of the group to remain uncontacted against the obligation of the state to guarantee and protect the rights of all citizens without discrimination. States may physically intrude or otherwise intervene in the affairs of indigenous groups in order to facilitate the provision of relief against disasters and other natural occurrences.

Graham and Wiesner suggest that indigenous sovereignty is founded on the aspiration to preserve indigenous peoples’ inherited way of life, preserve their traditions, and allow them to express and

> 80 United Nations (Year), ‘Deliver Humanitarian Aid’, _United Nations_ , https://www.un.org/en/our-work/deliver- <u>humanitarian-aid</u> (last visited May 5, 2023).

> 81 - ‘Tsunami leaves tribal island high in the wa(TEAter’, https://www.esa.int/Applications/Observing_the_Earth/Proba

> <u>1/Tsunami_leaves_tribal_island_high_in_the_water (last visited May 5, 2023).</u>

> 82 Smith, _supra_ .

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modify their cultures as they deem appropriate without any external influence.<sup>83</sup> The debate is whether a state is inclined to guarantee or uphold all indigenous customs and practices regardless of the impact they may have on the population. The state may be required to proscribe harmful indigenous beliefs and practices in order to protect the life and dignity of people affected by indigenous practices. Some indigenous groups, including the Embera and Nasa of Colombia,<sup>84</sup> the Maasai<sup>85</sup> and the Karimojong,<sup>86</sup> are known to practice female genital mutilation (FGM). In all these communities, the practice is regarded as a sacred, purification, and cleansing ritual. Some indigenous communities also practice forced marriages and child marriages. All these practices are internationally recognized human rights violations.<sup>87</sup> It is the responsibility of the state to rectify those infractions and take steps to prevent vulnerable members of the group from being subjected to the practice.<sup>88</sup> Allowing the full expression of cultural beliefs and practices will ultimately embolden indigenous groups to continue engaging in harmful cultural practices. In response, laws may be imposed by the state to outlaw manifestly harmful indigenous cultural practices, necessitating intervention. State intervention is, therefore, justifiable in this instance to prevent indigenous groups from perpetuating harmful practices which undermine human rights of vulnerable members of their population.

Additionally, the right of the indigenous children to education and information as recognized under the Declaration may justify intervention under the appropriate circumstances. The Declaration reemphasizes the obligation of states under the Convention on the Rights of the Child (CRC). All indigenous groups have the right to retain shared responsibility for the upbringing, training, education, and well-being of their children under the Declaration. However, this right is contingent on the premise that the measures adopted must be consistent with the rights of the child under international law.<sup>89</sup> The CRC affirms that the paramount consideration when making determinations likely to impact a child is the best interest of the child.<sup>90</sup> The Convention further guarantees the rights of all children, including indigenous children, to education.<sup>91</sup> Moreover, the Declaration guarantees that indigenous children have the right to all levels and forms of education of the State without discrimination, as well as a right to have an education in their culture.<sup>92</sup> These rights are not mutually exclusive; the state must take steps to ensure that indigenous children have access to the resources needed to pursue the highest attainable standards of education. States are also required to take specific measures to protect indigenous children from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral, or social development,

> 83 Lorie M. Graham and Siegfried Wiessner (2011), ‘Indigenous Sovereignty, Culture, and International Human Rights Law’, 110 _South Atlantic Quarterly_ 403.

> 84 ‘Cut with a blade’: Colombia indigenous groups discuss FGM, BBC NEWS, Oct. 12, 2016, <u>https://www.bbc.com/news/world-latin-america-37374006 (last visited Jan 22, 2024).</u>

> 85 Samuel Muhula et al. (2021), _The Impact of Community Led Alternative Rite of Passage on Eradication of Female Genital Mutilation/Cutting in Kajiado County, Kenya: A Quasi-Experimental Study_ , 16 PLOS ONE e0249662.

> 86 Uganda, _United States Department of State_ , https://www.state.gov/reports/2022-country-reports-on-human-rights- <u>practices/uganda</u> (last visited Jan 22, 2024).

> 87 - ‘Harmful practices’ UNICEF, https://www.unicef.org/protection/harmful <u>practices</u> (last visited Jan 22, 2024). 88 Article 19 of the CRC

89 Preamble to UNDRIP, p.5.

90 Article 3 of the CRC 91 Article 28 of the CRC

> 92 Article 14 of UNRIP.

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considering their special vulnerability and the importance of education for their empowerment.<sup>93</sup> Evidently, the state’s duty to provide access to education to indigenous children cannot be discharged effectively if the state is expected to take a hands-off approach in the affairs on indigenous people. Thus, it may be reasonably argued that it is in the best interest of indigenous children for the state to ‘interfere’ in the affairs of indigenous peoples in order to establish measures to enhance their access to quality education. That certain indigenous communities may explicitly reject the state’s formal educational curriculum and content, its pedagogical modes of delivery, and its insistence upon classes being conducted in a national language (but thereby compromising the integrity of their native tongue<sup>94</sup> ) creates legitimate claims that are directly in tension with countervailing rights and responsibilities. It is inherently unclear which of these should prevail.

# **4. When and how does international law inform decisions about whether multilateral development agencies should or should not engage with sovereign national states?**

In multilateral decision-making systems, states and non-state actors operate on consent. States express their consent to be bound by an international law, agreement or other condition through their plenipotentiaries who are vested with full powers.<sup>95</sup> Until a state has expressed such consent, it cannot be bound by the treaty in question. Even more, a state may decide to withdraw their consent at any time and unilaterally renounce their membership or withdraw from a treaty signaling their extensive autonomy. This consent-based decision-making system is predicated on the principle of sovereign equality which underpins inter-state relations and requires states to exercise restraint when dealing with other countries to avoid undermining their sovereignty. This further dictates the principle of noninterference or non-intervention, a corollary of the principle of sovereign equality. Both principles, rooted in customary international law, prohibit states from intervening in the internal and external affairs of other states.

The applicability of these principles to non-state actors has been challenged – it has been argued that both the sovereignty principle and the non-intervention principle apply exclusively to states and that non-state actors such as multinational organizations need not uphold them.<sup>96</sup> This view does not accurately reflect the applicability of international law to international organizations. There is conceptually no justification under international law to exempt international organizations from the application of international law. “An organization formed by states will be bound by the obligations

> 93 Article 17 of the UNDRIP; Article 32 of the CRC

> 94 It is empirically well-documented that students learn best in their native language, but in a country such as Papua New Guinea, where over 800 known languages are spoken in a national population of just 12 million people, it is essentially impossible for the state to provide optimal learning environments for _all_ its citizens. Indeed, the state’s pragmatic insistence on having formal education conducted in one or two national languages – not only in PNG but anywhere – is regarded by many observers as a key driver of large-scale language loss (and outright extinction) around the contemporary world (see the discussion in Wade Davis, _The Wayfinders._ House of Anansi Press, 2009).

> 95 See the essays addressing these (and many other) issues as they pertain to development in <mark>Siobhan McInerneyLankford and Robert McCorquodale, eds. (2023)</mark> _<mark>The Roles of International Law in Development</mark>_ <mark>(Oxford University Press).</mark>

> 96 Marko Milanovic (2023), ‘Revisiting Coercion as an Element of Prohibited Intervention in International Law.’ _American Journal of International Law_ , 117(4), 601–650. doi:10.1017/ajil.2023.40 citing <mark>Government of the Netherlands, Appendix: International Law in Cyberspace (July 2019),</mark> at <u><mark>https://www.government.nl/documents/parliamentarydocuments/2019/09/26/letter-to-the-parliament-on-the-international-legal-order-in-cyberspace (official English</mark></u> <mark>translation)</mark>

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to which the individual states were committed when they transferred powers to the organization.”<sup>97</sup> In fact, international organizations share similar privileges with states – they are both “independent actors on the international stage” and are “regulated exclusively by international law”.<sup>98</sup> To this end, “international organizations, as subjects of international law, must comply with general public international law in the exercise of their activities.”<sup>99</sup> Proposing that international organizations need not comply with these norms emboldens them to undermine the international legal order which regulates their very existence. Daugirdas correctly articulates that international organizations are not exempt from the application of general international law unless member states specifically contract out of customary international law.<sup>100</sup> In drawing up treaties and governing instruments for international organizations, general international law is presumed to apply unless the applicable treaty or charter excludes the application of any law.<sup>101</sup> For these reasons, we present that multilateral institutions are “transitively bound” by the principle of non-intervention and, as a result, lack the legitimacy to interfere with domestic policies of their member countries.<sup>102</sup> Reinforcing the sovereignty of member states, the constituent instruments of many multilateral institutions explicitly prohibit the organization from meddling in the domestic politics or affairs of member states. This draws heavily on the principle of non-interference, confirming states’ unfettered right to determine how to organize their domestic affairs. This fundamental rule is codified in the UN Charter and remains true in respect of both state and non-state actors of international law. The Charter enjoins the United Nations to refrain from intervening in the domestic jurisdiction of states.<sup>103</sup> This provision, as a result, leaves limited room for other member states, and the United Nations, to unilaterally intervene in the domestic matters of another state without falling foul of Article 2. Similarly, to emphasize the sovereignty of the individual member states, the articles of agreement of the World Bank and the International Monetary Fund specifically restrict the two institutions from meddling with local politics or basing their actions or decisions on the politics of the country in question. In analogous language expressed in the various constitutive instruments of each of its member institutions, the World Bank, for example, affirms this rule by providing that “the Bank and its officers shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the political character of the member or members concerned. Only economic considerations shall be relevant to their decisions, and these considerations shall be weighed impartially in order to achieve the purposes stated in Article I.”<sup>104</sup> These provisions emphasize the distinction between the nature of the relationship between states and the international legal order from

> 97 Henry G. Schermers and Niels M. Blokker (2003), _International Institutional Law_ 995, § 1574 (4th rev. ed.)

> 98 Daugirdas, Kristina. (2016) ‘How and Why International Law Binds International Organizations.’ _Harvard International Law Journal_ 57(2): 325-81.

> 99 Olivier De Schutter (2010), ‘Human Rights and the Rise of International Organisations’, in Jan Wouters et al. (eds.) _Accountability for Human Rights Violations by International Organisations_ 51, 72–73. (Intersentia)

> 100 Daugirdas, Kristina (2016), ‘How and Why International Law Binds International Organizations.’ _Harvard International Law Journal_ 57(2): 325-81. 101 Id.

102 Frederic Megret and Florian Hoffmann (2003), ‘The UN as Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities’, 25 _Human Rights Quarterly_ 314, 318. 103 Article 2 of the UN Charter.

104 Article IV, Section 10 of the IBRD Articles of Agreement; Article V, Section 6 of IDA Articles of Agreement; Article III, Section 9 IFC Articles of Agreement; Article 34 of the MIGA Convention. See also Article IV, Section 6 of the IMF Articles of Agreement which requires the Fund in its operations, to respect the domestic social and political policies of members, and in applying its principles pay due regard to the circumstances of members.

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the relationship between states and indigenous communities in their territories. By virtue of their statehood, states possess an unrestrained right to determine their own domestic affairs without recourse to any superior political power. These principles jointly operate to level the playing field between powerful nations or institutions and their less powerful counterparts, and operates, to some extent, as a barrier that shields states from outside intrusion in the absence of express consent – a feature which is visibly absent in the relationship between states and indigenous nations located in their territory.

Irrespective of the above, multilateral institutions, as well as states, may still exert some influence on the domestic affairs of other states in their engagements with those other states.<sup>105</sup> The scope of the engagement may depend on whether they seek to enforce compliance with a multilateral treaty or international law, or whether they are seeking to enforce the conditions of an agreement between the state and the international organization. Firstly, in the absence of a state’s express consent, it is difficult to conceptualize a situation where any international organization can legitimately invade the territorial space of a state to enforce human rights or international law without undermining a state’s territorial sovereignty, except under limited situations permissible under humanitarian law. Nonetheless, for a multilateral institution to succeed in enforcing international law or treaties against a state in its own jurisdiction, that treaty must first be recognized as law within the domestic system. As previously intimated, the starting point for multilateral engagements is whether the state has expressed its consent to be bound by the treaty or agreement in question through ratification or signature. However, beyond consent, there is the need for a further determination of whether the agreement, treaty, or action is judicially enforceable against the state. With respect to international laws or treaties, international law is only binding if it has been integrated into the domestic laws of the state. Hence, while multilateral institutions may freely negotiate and enter into agreements with states, in accordance with their constitutive instruments, the justiciability of the international agreement rests largely on the domestic laws of the state.<sup>106</sup> The existing framework for integrating international law into the domestic system provides further insight into the extent to whether international law envisages or permits multilateral institutions to intervene in domestic affairs to directly enforce international law. Generally, the status that is ascribed to international law depends entirely on whether the individual state identifies as a monist or dualist state. In monist states, treaties and international agreements, once ratified and accepted, are integrated into the domestic system and form part of the national legal order; treaties and agreements automatically become a source of law and superior to domestic law. However, in dualist legal systems, the state “prioritizes the notions of individual self-determination and sovereignty at the state level.”<sup>107</sup> Dualists espouse that international law exists separately from domestic law and has no bearing on rights and obligations at the national level unless it has been domesticated through a legislative

> 105 Stephen Brown (2023) ‘Visibility or impact? International efforts to defend LGBTQI+ rights in Africa’ _Journal of Human Rights Practice_ 15(2): 506-522 at 511.

> 106 This does not affect the State’s obligation under international law. That an international agreement is not enforceable under domestic law does not absolve the state from liability under international law. A state may still be held to be in breach o its international obligations irrespective of its domestic laws.

> 107 See Madelaine Chian (2018) ‘Monism and Dualism in International Law’ _Oxford Bibliographies_ <u>https://www.oxfordbibliographies.com/display/document/obo-9780199796953/obo-97801997969530168.xml#:~:text=A%20dualist%20system%20treats%20the,application%20of%20that%20international%20norm.  (last</u> accessed October 15, 2024).

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process.<sup>108</sup> International law which has been ratified through a legislative process may be subordinate to and in some cases may be overridden by other national laws.

One of the justifications for this practice is to ensure that treaties and agreement which are executed by the executive arm of the state receive legislative scrutiny from parliamentarians or the legislature who are vested with law-making powers under the national law. This distinction between international law and domestic law ensures that agreements entered with multilateral institutions do not automatically take the force of law and are not judicially enforceable absent a domestication process. Consequently, in dualist countries, even where the proper procedure is followed and a treaty is ratified or an agreement is lawfully executed by the state’s authorized representative, the process is not conclusive of the applicability of the law or agreement at the national level, thereby providing a further barrier against international institutions and other states from intervening in their internal affairs. International organizations may not sidestep internal procedures to demand compliance on the part of a state when legislative due process has not been met, as that will constitute an outright violation of the state’s right to self-determination. Thus, states may be able to justify intervention in the indigenous communities on the basis of their sovereignty or right to self-determination, and at the same time employ these principles as a shield to resist outside intervention in their internal affairs.

Nonetheless, several avenues exist for multilateral institutions to influence a state’s domestic policy. In section 1, we alluded to the fact that intervention by multilateral organizations, including the World Bank and the International Monetary Fund, assumes a more subtle approach. Contracting is one of such ways through which international organizations may influence the domestic policies of sovereign nations. In their engagement with sovereign nations, these institutions oftentimes enter into agreements with states to provide financial and technical support to developing countries seeking to implement reform initiatives. Although this assistance may constitute advice on macro- and microeconomic and fiscal policies, they may equally well be laden with conditionalities which border on social and political issues, and which the state is required to meet.<sup>109</sup> Although agreements may still have to comply with domestic processes to be valid, it may relatively be less cumbersome for multilateral institutions to enforce conditions of an agreement between the institution and a state than it may be to enforce general international law rules or treaties, in the absence of any contractual relationship. This is because while there may be close to no incentive for a state or its legislature to domesticate an international treaty, the circumstances surrounding international agreements forged with multilateral development institutions may prompt countries to adopt steps to regularize an agreement or conform to the conditionalities required by the agreement. States may also be motivated to comply with certain terms and conditions out of fear that multilateral institutions might sever contractual relations with them.

For instance, in a statement reacting to Uganda’s Anti-Homosexuality Act, the World Bank announced that the legislation, which was subsequently affirmed by the Ugandan Constitutional Court,<sup>110</sup> contradicts its values, and communicated its decision to suspend new public financing to Uganda until additional measures are implemented to ensure that World Bank projects are implemented in

> 108 ibid.

> 109 Ngaire Woods (2006), _The Globalizers: The IMF, the World Bank, and Their Borrowers_ , p. 45. (Cornell University Press)

> 110 Abdi Latif Dahir (2024), ‘Ugandan Court Upholds Draconian Anti-Gay Law’ _New York Times_ <u>https://www.nytimes.com/2024/04/03/world/africa/uganda-anti-gay-law.html. (last accessed November 10, 2024)</u>

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alignment with its environmental and social standards in light of the new legislation.<sup>111</sup> It is arguable whether, in this case, the World Bank’s decision to halt new loans to Uganda constitutes an attempt to interfere with domestic politics, and undermines Uganda’s sovereignty. Perhaps learning from the “sanctions” imposed on Uganda following the passage of its Anti-Homosexuality Act, the Ghanaian government assessed the potential effect of similar legislation, the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, passed by the country’s parliament in February 2024 over concerns that the country could lose up to USD 3.8 billion in World Bank funding over the next five to six years.<sup>112</sup> These cases give a clear indication of how institutions may indirectly influence domestic politics.

As a result of the concept of domestic sovereignty, which is embedded in the principle of sovereign equality, states wield political powers over their territory. Contrasted with national governments exercising control over indigenous communities within their territories, multilateral institutions cannot bypass or override a state’s will or bind those states to any decision or action that affect the latter. International organizations are therefore incapable, on their own, of conferring legitimacy on any rights within any state’s territory.<sup>113</sup> To overcome this theoretical impediment, multilateral institutions, acting within the scope of the powers conferred on them under their constitutive instruments, may execute agreements with states and exercise the contractual liberty to predicate the disbursement of funds on the existence of satisfactory preconditions. Consequently, states may consent to conditions that would otherwise interfere with their domestic affairs, thereby granting legitimacy to multilateral institutions to influence their domestic affairs. The element of consent again prevails, empowering states to rescind such agreements at any time albeit not without consequences.

# **5. Reconciling competing claims and imperatives**

In reconciling the dichotomy between indigenous sovereignty and state autonomy, we must balance the rights of indigenous groups vis-à-vis the obligation of the state and determine which one is paramount under international law.

The concepts of sovereignty, equality, and self-determination, as applicable to States, find their legitimacy in customary international law; they have been codified in treaty and have been affirmed in several decisions by the International Court of Justice. These principles are hard law principles which are binding on all state-parties and can be legally enforced against a state. In contrast, the body of protections that specifically applies to indigenous populations under international law are predominantly soft law rules. Except for the ILO Indigenous Peoples and Tribes Convention, 1989 (No. 169)<sup>114</sup> – which is itself limited in scope and applicability having been ratified by only 24 countries – there are no other treaties that protect indigenous peoples. The most comprehensive body of laws contained in the UN Declaration on the Rights of Indigenous Peoples are merely declaratory in nature. Although there exist a handful of regional treaties, they are too localized in nature to be widely applicable. The collective body of indigenous rights codified by the Declaration are soft law rules and are only persuasive, not binding. A member state can “pick and choose which rights to prioritize and

> 111 <u>https://www.worldbank.org/en/news/statement/2023/08/08/world-bank-group-statement-on-uganda.</u>

> 112 <u>https://www.bbc.com/news/world-africa-68469613.</u>

> 113 Brown _supra_ at 516. 114 C169 replaced the Indigenous and Tribal Populations Convention, 1957 (No. 107).

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how to interpret them.”<sup>115</sup> On the contrary, the obligation of the state to guarantee and enforce the right of indigenous people to education, health, and protection from environmental harm are embodied in treaty laws. Because they are merely soft laws, in terms of hierarchy, indigenous rights are inferior to these universal inalienable rights and obligations. States may choose to prioritize their treaty obligations over unsettled indigenous rights.

To add, the concept of indigenous-sovereignty and indigenous self-determination cannot be examined under the same lenses as state sovereignty. The right to self-determination, equality, and sovereignty as applicable to states arises out of customary international law and treaty law, and hence they prevail over the soft law versions applicable to indigenous populations. While states are free to exercise their political authority without recourse to any other entity, indigenous groups cannot and do not exercise the same powers. Indigenous rights are only exercisable to the extent allowed by the state. States may legitimately subvert so-called indigenous rights to advance their own sovereignty. Elevating the status of the applicable law from a Declaration to that of a binding treaty will persuade states to increasingly recognize indigenous rights.

In respect of intervention by multilateral institutions in internal state affairs, Brown challenges the notion that there is no justification for intervention in domestic affairs. He argues that certain rights, specifically LGBTQI+ rights, confer legitimacy for international involvement, regardless of local resistance or opposition.<sup>116</sup> We contend that this is not so. While we recognize that international organizations have a duty to advance the objectives entrusted to them by member states and have in fact yielded many positive results in the advancement of international human rights, we also recognize that these institutions can only function within the limits permissible under international law. International organizations, as subjects of international law, “are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties.”<sup>117</sup> The identifiable competing interests in this case are the responsibility of international organizations to promote human rights as against the right of states to remain free from external intervention. The ICJ has rejected the notion that the United Nations and, by extension, other international organizations, are super states.<sup>118</sup> States do not relinquish their sovereignty to international organizations by virtue of their membership status. As sovereign entities, states have the right to determine how to govern their territories. International organizations, as such, ought to relate with states as peers rather than as overlords. Cooperation on a fully voluntary basis submits the only justifiable basis for advancing “unsettled” international law and human rights issues. Voluntary cooperation may be achieved through contracting with the imposition of aid conditionalities, or through international support to local actors to redefine the human rights discourse at the national level. International organizations also stand a higher chance of receiving less resistance if they adopt different modalities for advancing

> 115 Brown, supra.

> 116 Id. pg 511.

> 117 ‘Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt, Advisory Opinion, 1980’ _International Court of Justice Report_ . 73, 89–90 (Dec. 20).

> 118 ‘Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949’ _International Court of Justice Report._ 174 (Apr. 11). See also ‘WHO and Egypt Advisory Opinion’. (There is nothing in the character of international organizations to justify their being considered as some form of “super-State.”).

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human rights rather than direct intervention which blatantly undermines the sovereignty of their member states.

# **6. Conclusion**

As noted at the outset, the primary objective of this paper is analytical. It is not an official World Bank position paper, nor a personal treatise seeking to advance a particular ideological agenda or resolve a technical conundrum, but rather a substantive overview for legal specialists and development professionals of the key legal foundations and administrative imperatives shaping the conditions under which nation-states engage with sovereign nations within their borders, and the nature and extent to which those same nation-states engage with multilateral organizations. These are separate legal territories, but recent high-profile events pertaining to gender equity, aid conditionality, and indigenous peoples (of which there are likely to be more in the future) have brought these issues to the fore, and the misgivings to which they have given rise suggest that acquiring a working understanding of the legal foundations shaping these interactions is sorely needed. Even if the formal legal relations across both realms can be readily identified, however, this paper has sought to show that there are certain instances – most notably mainstream development issues such as the provision of state-supported education, health care, and environmental protection – in which prevailing laws, rights, and responsibilities can be working at cross-purposes to one another.

But precisely because these types of issues are inherently highly context-specific, and thus likely to be perpetually challenging for any legal system to credibly mediate, the absence of a clear legal pathway forward should not be seen as a technical weakness in need of technical redress but instead as the provider of the contours and boundaries within which reasoned deliberation and negotiation can be conducted. The legitimacy of the bases on which any such exchanges take place will be crucial to infusing resolutions with the robustness they will need to be upheld over time; part of this legitimacy will be derived from the prevailing laws (informal, national, and international) themselves, but in the most contested cases the decisive component shaping the final outcome will likely be the local contextspecific deliberative processes that produce it.

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