Sovereignty Revisited: International Law and Parallel Sovereignty of Indigenous Peoples

In contemporary times the concept of sovereignty has notably developed in comparison to the idea existing in modern Europe, when the model of Westphalian Sovereignty had emerged from the ashes of the Thirty Years’ War, conceived as supreme authority of a prince or a king within a territory. This idea was based on the principle of non-interference by any sovereign power in the territorial affairs of other States, denoting an uncontested power that even religious authorities were in principle unable to affect. In more recent times the extent of State sovereignty has been progressively circumscribed by the evolution of international law, which has increasingly permeated the area of State domestic jurisdiction for the safeguarding of values of universal relevance, corresponding to interests shared by the international community as a whole. This has resulted in a global context in which State sovereignty is constrained by a number of international principles, in particular those concerning the prohibition of the use of force, the delimitation of the special sphere of powers, the obligations concerning the treatment of aliens, the protection of human rights and, more recently, the protection of the environment and of cultural heritage. Today sovereignty is therefore limited in its scope. Among the rules of international derivation which limit the scope and extent of sovereignty, the right of all individuals and communities to take part in the government of their own country, directly or through freely chosen representatives is included. This right is of particular significance for indigenous peoples, as an essential prerequisite to allow them to preserve their cultural identity as well as to enjoy their internationally recognized right to self-determination and autonomy. The recent evolution of international law concerning indigenous peoples – based on a huge international and domestic practice as well as on the evidence of the existence of the element of opinio juris – demonstrates that a rule of customary international law has come into existence affirming the right of the said peoples to a given degree of sovereignty within the State territory in which their traditional lands are located and, consequently, requiring States to recognize such a degree of sovereignty. According to this rule, indigenous sovereignty entails, at a minimum, the following rights, protected by international law: a) the right of indigenous peoples to live in, and maintain ownership of, their traditional lands (including natural resources); b) the right to maintain their own identity and right to enjoy, manifest, preserve and transmit to future generations their own culture (including political and social systems, traditional customs, medicine, language, and religious beliefs); c) the right to self-government of their internal affairs according to their own customary law, including the right to use their own traditional judicial procedures; and d) the right to effective participation, at all levels of decision-making, in decisions which may affect them.