Generally, there is no universally agreed definition of indigenous peoples. While Kymlicka treats indigenous peoples as a sub-category of national minorities, other theorists argue that indigenous peoples should be seen as an entirely distinct category with specific rights (Anaya 1996). There are various justifications for singling out indigenous peoples for stronger rights, such as the scale of their historical mistreatment or their ‘radical’ cultural difference. In various writings, Kymlicka has altered and complemented his initial dichotomy of national minorities and ethnic groups, and has defined various sub-categories. However, the distinction between national minorities and ethnic groups remains a central feature of his theory. In recent works, Kymlicka suggests subdividing national minorities into substate nations and indigenous peoples. In this view, the major difference is the groups’ role in the process of state-formation: “stateless nations were contenders but losers in the process of European state-formation, whereas indigenous peoples were entirely isolated from that process until very recently, and so retained a pre-modern way of life until well into this century” (Kymlicka 2001b: 122). While indigenous peoples existed outside the system of modern nation-states, substate nations aspired to such a state but failed in the challenge and, consequently, do not have a state in which they form a majority. Substate nations find themselves sharing a state with other nations for reasons such as conquer, annexation, ceding, or royal marriage. Indigenous peoples are peoples whose homelands have been overrun by settlers, colonists, or conquerors and who have been involuntarily incorporated into states run by people whom they regard as foreigners. In contrast to substate nations, indigenous peoples do not seek a nation-state with competing economic and social institutions. Rather, indigenous peoples tend to demand the ability to maintain certain traditional ways of life while participating in the modern world in their own fashion. Indigenous peoples demand respect for and recognition of their culture to overcome their status as second-class citizens, non-citizens, or slaves (Moses 2002: 57-68). Kymlicka continues to stress that important characteristics are shared by substate nations and indigenous peoples. In particular, all these groups formed complete societies in their historic homeland prior to being incorporated into a larger state, and they tend to resist state nation-building policies (Kymlicka 2002: 349-55). The following illustration provides an overview of Kymlicka’s typology.
Illustration 3: Pattern of Cultural Diversity, cp. Kymlicka 2002: 348 - 365
In her recent book The Claims of Culture, Seyla Benhabib devotes many pages to criticizing various aspects of Kymlicka’s theory. In particular, she objects to the distinction between national minorities and ethnic groups. Firstly, she insists that a sharp distinction between those classes of groups is hard to sustain on the descriptive level (2002: 61). Other authors, too, argue that there is a range or continuum of different groups with different levels of cultural pervasiveness and institutional completeness that does not fit into these two categories15. Secondly, Benhabib criticizes the distinction between national minorities and ethnic groups on the normative level, stating that it is not static but dynamic. In her view, Kymlicka insists upon the historical genealogy of the integration of groups which she claims is tantamount to cultural essentialism. In her view, Kymlicka’s distinctions alone “cannot suffice for us to differentiate between the recognition claims and aspirations of distinct human groupings” (2002: 64).
Regarding the first criticism, Kymlicka does not claim that his dichotomy represents an eternal law. He agrees that there are hard cases and grey areas and that there are many ethnocultural groups that do not fit into the two categories, like ‘guest-workers’, illegal immigrants, Roma, or African Americans. However, a sharp distinction between immigrants and national minorities can be found in almost any liberal democracy and those types represent the most common types of cultural pluralism. Given the widespread acceptance for this differential treatment, it seems that it does not simply reflect ethnocentric prejudice. Rather, it appears to mirror different aspirations and a different sense of legitimate expectations on the part of the groups in question. Taken together, the distinction describes an important and stable difference between various kinds of ethnocultural groups. Regarding the criticism on the normative level, Kymlicka is aware that his distinction is dynamic and agrees that – in principle – ethnic groups can become national minorities and vice versa. Moreover, while these two classes represent justifiable and fairly successful models of ethnocultural accommodation, virtually all of the cases which do not fit into either category are the result of injustice and unfairness (Kymlicka 2001b: 57). Neither the case of ‘guest-workers’, illegal immigrants, Roma, nor African Americans can be said to offer a successful model of multiculturalism. As will be discussed later, Kymlicka shows that the patterns of ethnic groups and national minorities are compatible with liberal principles of freedom and equality. Furthermore, his theory can help to identify solutions to the hard cases, at least by showing what is distinctive about them. Given that the two models are widespread and fairly successful, it is plausible to assume that they are most relevant for future-oriented policy making. The second part of this paper will show that the distinction also provides a meaningful description of cultural diversity in Cambodia, and that policy recommendations stemming from it with regard to indigenous peoples are largely valid in the Cambodian context.
Interestingly, Benhabib does not address the situation of indigenous peoples throughout most of her book. Only at the very end does Benhabib mention that “… there are peoples whose cultural identity is rooted in ways of life attached to a particular region, territory, or hunting and fishing domain. These peoples are seeking not to preserve their languages, customs, and culture alone but to retain the integrity of ways of life greatly at odds with modernity … I think that from the standpoint of deliberative democracy, we need to create institutions through which members of these communities can negotiate and debate the future of their own conditions of existence. I follow Kymlicka … in advocating certain land, language, and representation rights for indigenous populations” (2002: pp. 184). In Benhabib’s book, it remains unclear what reason justifies this surprising move. Why create institutions through which members of indigenous peoples can negotiate their future but deny such institutions to members of stateless nations? Is it because the ways of life of indigenous peoples are ‘attached to the land’ or because those ways of life are ‘greatly at odds with modernity’? There does not seem to be any reason inherent in Benhabib’s theory of deliberative democracy that would support granting specific rights to indigenous peoples. Moreover, it seems that she falls into the trap of cultural essentialism herself, by indicating that attachment to land and premodern ways of lives are essential features of indigenous societies. In this view, members of indigenous peoples stop being indigenous as soon as they modernize their ways of life, lets say: drive cars, use cell phones, or live in cities. This does not correspond to the aspirations of indigenous peoples, who in most instances desire to incorporate elements of modernity into their cultures and yet demand recognition and protection of their existence as separate societies. Taken together, Benhabib’s theory of deliberative democracy does not allow for a systematic understanding and explanation of the different aspirations of various groups. Moreover, the specific political implications of her model remain unclear. In contrast to Benhabib’s concept, Kymlicka’s theory is particularly well suited to discuss and analyze cultural diversity because it is comprehensive and capable of integrating and justifying the rights of different classes of groups within a single and consistent theoretical framework. This case will be strengthened during the following sections.
In line with both Benhabib’s and Kymlicka’s theory, current and emerging international law grants considerable levels of political autonomy to indigenous peoples. Consistent with Benhabib’s theory and in contrast to Kymlicka’s, there is a strong tendency in international law to strictly separate questions of indigenous rights from the rights of stateless nations and other cultural minorities (Anaya 2002). Generally, the relevant declarations grant considerably stronger cultural rights – such as land claims and customary law – to indigenous peoples than to any other class of group. Under present international law, the specific rights of indigenous peoples are found only under ILO Convention No. 169. This convention does not define indigenous peoples. Rather, it contains a statement of coverage and a subjective criterion, stressing the self-identification of groups as indigenous peoples. However, the statement of coverage underlines that indigenous peoples have lived in historical continuity in a particular area since before the establishment of modern states, maintain a way of live different from other segments of the society, and retain their own institutions and organizations16. Thus, it seems that the convention’s statement of coverage and Kymlicka’s distinctions are very likely to identify the same groups as indigenous peoples. The specific rights of indigenous peoples contained in Convention No. 169 are considerably different from human rights and other minority rights in that they are intended to allow for a high degree of autonomous development and to allocate authority to those groups so that they can make their own decisions (Eide and Daes 2000: 8). Although referring to peoples, Convention No. 169 does not deal with the question of whether indigenous groups have the right to self-determination. More far-reaching rights are proposed in the UN’s draft Declaration on the Rights of Indigenous Peoples. If ratified by the General Assembly, this declaration will determine in its Article 3 that indigenous peoples have the right to self-determination and, by virtue of that right, are entitled to determine freely their political status and pursue their economic, social, and cultural development. In its political implications, Kymlicka’s theory is consistent with both Convention 169 and the UN’s draft Declaration on the Rights of Indigenous Peoples. It is worth mentioning that the World Bank and the Asian Development Bank have adopted policies designed specifically to provide guidance to staff in dealing with indigenous peoples, in particular because both organizations have considerable operations in Cambodia. And the definitions in both policies are likely to identify the same groups as indigenous peoples as Kymlicka’s typology does17. The objective of the World Bank’s policy is to ensure “full respect for [indigenous peoples’] dignity, human rights, and cultural uniqueness” (World Bank 1991: Article 6). It would not be consistent to respect indigenous peoples’ ‘cultural uniqueness’ and yet promote their integration. Thus, the World Bank’s policy appears to promote the cultural integrity and survival of indigenous peoples, similar to the other positions discussed in this section.
Again, while Kymlicka treats indigenous peoples as a sub-category of national minorities, other theorists, as well as international law, tend to treat indigenous peoples as a distinct and separate category. However, this paper will not discuss that difference in depth because it has little bearing on the Cambodian case. To anticipate an important insight of the second part of this thesis: applying Kymlicka’s typology to cultural diversity in Cambodia leads to the conclusion that there are no national minorities other than indigenous peoples. In other words, there are no sub-state nations. In Cambodia, all the theories and positions introduced in this section – namely: Kymlicka’s typology, Benhabib’s theory, Convention 169, the UN’s indigenous declaration, and World Bank policy – would single out hill tribes as indigenous peoples and grant rights to sustain their distinct existence exclusively to these groups. While the last sections dealt with different classes of groups, the next section will deal with different classes of group-specific rights.