Author: Raghavi Viswanath

Required knowledge: Decolonization; sources of international law; States;

Learning objectives:

To understand how international law has come to understand indigeneity and indigenous peoples;

To identify the logics used in international legal discourse to undermine the legal personality of indigenous peoples;

To learn about the current lexicon of rights afforded to indigenous peoples and the ways in which rights vocabulary may be limiting;

To familiarize oneself with indigenous epistemologies and their growing relevance to legal research and law-making;

To understand how indigenous epistemologies differ from Western epistemologies

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Introduction edit

International law, as Ntina Tzouvala notes, was and continues to be constituted by argumentative patterns around the 'standard of civilization'. These arguments oscillate between a 'logic of biology' invoking and blatantly racist notions of a supposedly natural 'backwardness' of peoples deemed to be 'uncivilized' and a 'logic of improvement', invoking more subtle but equally racist notions of inferiority combined with the promise of conditional inclusion in the family of 'civilized nations'.[1] This discourse shows its violent face in international law’s engagement with indigenous peoples. As colonialism expanded in the 16th century, those whose lands were encroached came to be labelled as 'indigenous', 'native', 'indian', or 'tribal'. Each of these terms were constructed to convey a lower degree of civilization of such peoples.[2]

The association of the term “Indians” to indigenous communities in the Americas was, in fact, the result of a misattribution by Christopher Columbus upon his landing in the Caribbean in 1642, when he erroneously thought that he had reached the Indies after sailing westward from Europe. Columbus’s encounter with the Arawaks, as documented by Noble and Carroll, was a telling example of the drastically different worldviews of the native Arawaks and the Europeans.[3] “They believe very firmly,” wrote Christopher Columbus after his first voyage to the Americas, “that I, with these ships and people, came from the sky.”[4] This assumption of intellectual and biological superiority by Columbus was fashioned first as a retort, and later as a grim dismissal of the humanity of Native Americans. People of the likes of Vespucci and Winthrop dehumanized indigeneity and justified European invasion of indigenous land and the violent erasure of their worldviews by citing their non-conformity with European modes of religion, habitation, and land ownership.[5]

This discourse, without much protest, crept into the vestiges of international law and soon became the bedrock of modern international law. Early proponents of international law such as Vitoria infamously remarked that while Indians were capable of holding rights and dominion over land, they were “unfit to found or administer a lawful state up to the standard required by human and civil claims”.[6] To Vitoria, sovereign status was contingent on conforming to Christian norms. Differently, for Grotius, 'people who have passed under the sway of another people' are excluded from sovereignty. At first, this birthed what came to be known as the 'terra nullius' doctrine. By the application of terra nullius, land was considered vacant if it was not occupied by Christians. 'Vacant' land could be defined as “discovered” and as a result sovereignty, title and jurisdiction could be claimed. The doctrine was first used at the turn of the 20th century to justify occupation of aboriginal lands in Australia. As criticism of the doctrine mounted after the World Wars, the doctrine fell into disuse. But similar vestiges of this biological logic to exclude indigenous peoples remained. Case in point is the trusteeship model that was devised to justify the widespread colonialism from the late 18th century onwards and later codified in Chapter XII of the United Nations Charter.

In effect, these narratives of civilizing all worked to exclude indigenous peoples from recognition under state regimes. As Marcelle Burns shows, only some societies were considered fit to hold sovereign power. These societies were selected using what Tzouvala calls the "logics of biology". Sovereignty came with the power to make and sign treaties, and power to wage just wars. Indigenous peoples fell outside the category of sovereigns. According to both Grotius and Vitoria, this meant that their resistance to colonialism was unjustified.[7] However, sovereigns are not the only actors who constitute international law. International law is also made up of non-sovereign actors such as companies and civil society. For long, indigenous peoples did not feature even as actors involved in international law-making. Illustratively, no indigenous peoples were consulted during the making of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. It was only as formal decolonization processes started to succeed in the 1960s did indigenous peoples start to emerge as actors within international law-making. Nonetheless, even after gaining visibility, indigenous peoples remained trapped in State-created grammars such as sovereignty and national borders.

This chapter is an attempt to trace the historical struggles of indigenous peoples to be recognized as actors in international law. The chapter introduces readers to indigenous peoples' encounters with international law, and the ways in which international law has responded to indigenous demands for legal status and sovereignty. The chapter also traces the continuities between historical discourses and contemporary logics. The discussion then zooms into specific debates surrounding the identification of indigenous peoples and the contestations relating to rights enjoyed by indigenous peoples. The final part focusses on indigenous resistance to material and epistemic gatekeeping in international law.

Indigenous peoples and the State edit

Until the 1900s, international law was fully bound up by the precepts of a very restrictive European grammar of statehood. This linkage worked in two ways. At once, states were both the beneficiaries of the sovereign benefits accruing out of international law, as well as the sole duty-bearers tasked with upholding the preserve of international law.[8] But as the club of statehood begrudgingly opened up to members outside of Europe, international law’s own vocabulary started to evolve. In 1945, upon the setting up of the League of Nations, human rights principles were formally introduced into international law. Human rights, even in their rudimentary form, fiercely tugged at the statist form of international law.[9] By recognizing the rights of individuals and creating openings for rights of communities, human rights started to unshackle international law from its avowed commitment to states as sole actors. However, it was not long before human rights were also fashioned by states as components of their prerogative. This was on clear display during the early successes of decolonization, which only effected a change in hands without disrupting the rubrics of statehood. As Kodjoe notes, the “salt water thesis” ensured that decolonization was not made available to enclaves of indigenous communities living within independent states.[10] The thesis posited that colonies located across the "salt-water" (or the ocean) could gain independence without disrupting the territorial integrity of existing nation-states while independence for domestic non-self-governing territories had the potential to cause a severe disruption.[11] Even the first effort to codify rights of indigenous peoples, in the Convention No. 107 of 1957 - adopted within the International Labour Organization - only paid lip service to the material ways in which indigenous peoples’ demands militate against State sovereignty. Convention 107 was adopted with a view to "redress the isolation and marginalisation of indigenous peoples and to ensure that indigenous peoples benefited from development programmes".[12] The Convention addressed a wide range of rights of indigenous peoples including education, health, and social security. Interestingly, the Convention does not use the term “indigenous peoples” even once. It only refers to them as “indigenous populations”.[13] The Convention employs a strong grammar of assimilation – cultural and legal – of indigenous identity within State units, and then dressed this in the rhetoric of recognition of indigeneity.[14] Tzouvala calls this a "logic of improvement" where certain actors were denied personhood or only seen as entitled to limited personhood until they were able to "improve" themselves to fit Eurocentric moulds of personhood. "Uncivilized peoples" were required to conform with imperialism in order to able to enjoy the privileges that come with personhood. Illustratively, Article 3 of the Convention enjoins State parties to create “economic, social, and cultural conditions” for indigenous populations to enable them to enjoy the general laws of the “country where they belong”. This provision reduces the separate and collective cultural identity and political autonomy of indigenous peoples into a sub-strata unit of the State infrastructure.

The tussle between indigeneity and statehood continued well until the 1990s. This was the period during which ILO's Convention No. 169 concerning Indigenous and Tribal peoples in Independent Countries was adopted. The Convention was conceived in response to the "developments in the situation of indigenous peoples", presumably a response to the social capital acquired by the global indigenous peoples movement in the 1970s. The Convention was predicated on the need to consult indigenous peoples in development-related decisions. The Convention was also more alive to the colonialist undertones of categories such as "semi-tribal populations", unlike its predecessors.[15] Still, during the drafting of the Convention No. 169, for instance, despite the overwhelming consensus, States expressed much apprehension about the use of terms such as "territory" as such words were traditionally associated with independent statehood. A similar resistance was expressed towards recognition of the right to self-determination of indigenous peoples. States such as Canada and United States feared that self-determination would become a sanction for external secession, thereby threatening State sovereignty.[16]

In contemporary times, statehood functions are increasingly delegated to non-state actors such as international organizations, companies, and even individuals. However, as Usha Natarajan rightly notes, even this delegation of State sovereignty to non-state actors only facilitated a change of hands from imperial offices to postcolonial authorities. This change of hands ensures that the disenfranchisement of marginalized communities persists. Case in point is the development discourse. The development discourse provided the political basis for the decolonization efforts of the former Third World countries. As Rajgopal notes, "development came to include everything that is seen by the ruling classes as desirable or necessary for the catching up of the Third World with the West: economic growth, poverty alleviation, anti-corruption and transparency, environmental sustainability, and even democracy and freedom/right." Development therefore works in the same way as Tzouvala's understanding of improvement. Using this frame, postcolonial States started to implement industrial projects that would help them meet economic growth metrics, without watching over the concerns of marginalized communities living within their territories. Companies, for instance, would prioritize development agendas despite knowing that such projects would displace indigenous peoples from their land. International organizations such as the World Bank and the UNESCO have also conventionally overlooked the ways in which industrial projects adversely affect the environment and land claims of indigenous peoples. In her work, Sutapa Chattopadhyay observes that states changed their position from using "a total subordination of land and indigenous peoples to an expansive development agenda which requires the theft of indigenous land, for which the appropriation of nature and its surplus communities as the labouring bodies was instrumental".[17] Interestingly, the same grammar of development finds legs in the Global North(s) as well as the Global South(s) and compounds to displace indigenous communities. This is best illustrated by the fact that 40% of indigenous communities are displaced by development projects in India alone.[18]

Importantly, development started to push the language of sovereignty to the fringes. This is because sovereignty foregrounded the special claims of indigenous peoples to land. As Watson notes, indigenous peoples, being the first inhabitants, have a deeply spiritual, cultural, social, and economic relationship with land. Their subsistence activities rely on land. In fact, land is treated as a living relative of the community. For instance, the Endorois community in Kenya worship Lake Bogoria and believe that the land is a member of the community and home to their ancestors and future generations. Because sovereignty feeds this special relationship with land, it has gradually been replaced with the narrative of development.

Development is also seen as "removed" from the indigenous worldview, which the State frames as interested in the preservation of the 'primitive'. In his poignant work, Mangal Murmu writes about how indigenous dance and music – which are indeed central to indigenous existence – give birth to urban romanticized stereotypes of indigenous peoples as the "Other".[19] In Murmu words (reflecting on his lived experiences as a Santhal in India), "we are like toys – someone presses our ‘ON’ button, or turns a key in our backsides, and we Santhals start beating rhythms on our tamak and tumdak, or start blowing tunes on our tiriyo while someone snatches away our very dancing grounds”.[20] This rhetoric of backwardness is repeatedly invoked to remove indigenous peoples from decision-making spaces.

Identifying indigenous peoples edit

The act of defining "indigenous peoples" or "indigeneity" was widely understood as a significant dent to State sovereignty. In the 1960s, as decolonization efforts became more successful, there was growing consciousness of the special cultural identity of indigenous peoples and their relationship with land. Mobilization by indigenous peoples internationally became more systematic and visible. The capstone of this mobilization was the International Non-Governmental Organization Conference on Discrimination against Indigenous Populations in the Americas in 1977. The conference brought together indigenous representatives, from the Western world, who discussed strategies to forge a transnational indigenous front and a set of sovereignty demands. From the late 1980s onwards, indigenous peoples won consultative status at several UN forums. This mobilization started to bear fruit, with the United Nations starting to take steps to recognize indigeneity and think about protective regimes for indigeneity in particular.

The first of such steps was the report of former Special Rapporteur Martinez Cobo. The report noted that:

“Indigenous populations are composed of the existing descendants of the peoples who inhabited the present territory of a country wholly or partially at the time when persons of a different culture or ethnic origin arrived there from other parts of the world, overcame them, by conquest, settlement or other means, reduced them to a non-dominant or colonial condition; who today live more in conformity with their particular social, economic and cultural customs and traditions than with the institutions of the country of which they now form part, under a state structure which incorporates mainly national, social and cultural characteristics of other segments of the population which are predominant. (E/CN.4/Sub.2/1986/Add.4)”[21]

The report, as Chidi Oguamanam explained, “set the stage for entrenchment of the indigenous question on the international agenda”.[22] The report’s criteria for indigeneity were hinged on historical occupation of land and cultural distinctiveness. These criteria were also attached to marginalization afflicted by colonization. Cobo's focus, however, was on peoples disenfranchised by settler colonialism. In Cobo's report, settler colonialism was understood as the occupation of territory and resources by foreign peoples and the displacement of indigenous sovereignty and legal orders by the settlers.[23] Scholars were quick to show that the Cobo conditions were misplaced for communities in Africa and Asia.[24]

Africa, in many ways, defies reifications of indigeneity. European colonialism was enforced in settler and non-settler forms. Since African colonies were fully occupied, there was no land for European colonizers to occupy. Control was established over language, resources, and modes of production. Instead of occupation of land, imperial force was exerted through what Kenyan scholar Ngtigi wa Thiong’o calls the ‘cultural bomb' that "annihilate [s] a people’s belief in their names, in their languages, in their environment, in their heritage of struggle, in their unity, in their capacities and ultimately in themselves," thus "mak[ing] them want to identify with that which is furthest removed from themselves." This hybrid form of colonialism immensely benefited the African elites, who led decolonization movements and were able to successfully occupy the positions of authority previously held by imperialists. Because of this complicated model of colonialism, tracing indigeneity in Africa is far from easy. Most people can draw links with pre-colonial inhabitants.[25] A community that is dominant in one region, is under-represented in another. Cobo’s reading of indigeneity also presumes that there is a central, dominant, often European culture, that indigenous culture departs from. This reading carries forward the same understanding of “civilization” that statehood was founded on.

But this baseline is non-existent or perennially moving in Africa. For one, there is no central culture in the sense suggested by Cobo. While the culture of the San of South Africa is distinct from that of Europe, the San live in South Africa with other African peoples such as the Zulu and Xhosa whose cultures are equally distinct from European culture.[26] The dominant communities are African peoples, who benefited from colonization. These were the “elites of colonization”.[27]

This is also true of indigeneity in Asia, where everyone has an equal claim to being indigenous. In their fantastic work on nomadic and denotified tribes in India, Bhukya and Surepally write about how the colonial State was threatened by the nomadic lifestyle of tribal communities and the ways in which they challenged colonial control over forest resources.[28] Such communities were subjected to constant surveillance, their hereditary lifestyles were branded as criminal, and they were forced out of their forested lands. Interestingly, the Criminal Tribes Act of 1871, which effected these suppressions, was carried forward in postcolonial India.[29] The Constitution of independent India recognized only a small percentage of such communities are recognized as “tribes”, that too for dehumanizing reasons such as their “primitiveness” and their “geographical isolation”.

Responding to this line of critique, more efforts were launched to construct more reflexive definitions of indigeneity. In 1989, the ILO Convention No.169 utilized the term “peoples”. Peoples was a nod to the autonomy of indigenous communities and their demands for political and legal sovereignty. The Convention also differentiated between tribal peoples and indigenous peoples, with the former being units that socially and culturally distinct from the majority and are organized by customary rules of clanship and being.[30] A different approach was adopted by the Working Group on Indigenous Populations, which was set up by the Economic and Social Council (ECOSOC) to propose minimum standards that would protect indigenous peoples. In 1993, the UN Working Group of Indigenous Populations chose not to define indigeneity. In the chairperson Erica Irene Daes’s words, “historically, indigenous peoples have suffered, from definitions imposed by others” and as a result, in certain countries many indigenous peoples have been declassified.[31] A similar diversity in approaches to “defining” indigeneity can be seen in domestic settings too.

Yet, despite this diversity, indigeneity has acquired a powerful social meaning. It has become "a shared experience of loss of forests, alienation of land, displacements by development projects, and much more."[32]  This has allowed for cross-border legal and social mobilization amongst indigenous communities. 

Rights of indigenous peoples edit

As the status of indigenous peoples as actors within international law solidified, the demands for recognition and systematization of indigenous peoples rights also grew louder. As Patrick Macklem explains, the demand for rights springs from the legal recognition of indigenous peoples as subjects of international law.[33] In the case of indigenous peoples, these rights were both features of their legal existence within international law as well as safeguards against affronts by States. This explains why rights protections have been so important to indigenous peoples. Shortly after the Second World War, it was the International Labour Organization that invested its attention in the cause of indigenous peoples. The ILO adopted a series of instruments that recognized the labour rights of indigenous peoples. The most important of these was Convention No. 107 (Indigenous and Tribal Populations Convention), which significantly expanded the scope of international legal protection of indigenous populations beyond what existed in the inter-war period to include protection of indigenous peoples' land, social security, work protections, education, and health. After the adoption of the Convention, these rights have been continuously revisited by domestic and international tribunals, all of which have added to its ambit (as shown below). Nonetheless, these interpretations remained dispersed and unconsolidated. It was in 2007 that the United Nations and indigenous peoples' movements succeeded in consolidating indigenous peoples rights. On 13 September 2007, the General Assembly of the United Nations adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).[34] Unlike past UN efforts, the Declaration was constructed in consultation with an intergenerational set of indigenous stakeholders. Although not a binding document, the Declaration was signed by over 150 States. In essence, the Declaration ushered ‘a framework for new Indigenous-state relationships grounded in mutual respect, not state domination’.[35] Combining legal vocabularies from its predecessors with a new ethos of recognition of the human rights affronts afflicted on indigenous peoples, the Declaration contains 46 articles that address the standards for the minimum dignity, well-being, and cooperation of indigenous peoples.[36] These standards are anchored in the notion of collective rights. Importantly, the Declaration eschews definitions of indigeneity and endorses self-identification as the basis for indigenous status. As Chua and Idrus note, “these processes boosted existing indigenous rights movements, created new internationally sanctioned channels for indigenous claim-making, but also exacerbated or created new tensions and inequalities.”[37]

Nature of rights-holders edit

For as long as efforts to garner international recognition of indigenous identity have been active, such mobilizations have dominantly employed the vocabulary of rights. That said, formal recognition of indigenous peoples rights took a long time. The first contemporary human rights instrument – the Universal Declaration of Human Rights – referenced the rights of cultural minorities in Article 27. This provision was later read to include indigenous peoples. The ILO Convention No. 107 of 1957 recognized the economic, social, and cultural rights of indigenous peoples. However, these rights were contingent on the assimilation of indigenous peoples into the dominant population, and they were individual rights by design.  

The twin Covenants – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights – spelled out minority rights in more detail.  Glaringly, Article 27 of the International Covenant on Civil and Political Rights was not accompanied by any clarification of what the terms “culture” and/or “minorities” means.[38] Buergenthal and Thornberry,[39] amongst many others, have criticized Article 27 for using limiting individualistic language by exclusively recognizing cultural rights of  “persons” belonging to minorities, instead of groups as a whole.[40] Moreover, the travaux preparatoires of the Covenants suggests that the term “minorities” was understood in a restrictive sense as well-defined stable groups that enjoyed a distinct culture and were numerically disadvantaged.[41] The cultural rights protections granted to minorities were not intended to even mildly threaten majority regimes[42] or benefit groups that entered States through immigration.[43] It has been suggested that indigenous peoples were deliberately kept removed from the drafting of the Covenants because States feared “that this might cause political destabilization” and lend credibility to secession demands.[44]

With time, there was gradual recognition of the collective dimension of indigenous peoples’ rights. Lowitja O’Donoghue acknowledges the necessary recognition of collective rights in that:

it is precisely because the collective rights have not been acknowledged that the individual rights of indigenous persons, for example the right to equality of opportunity in the provision of education, employment and health care—have not been realized in any nation in the world. Only when our collective identities have been recognized will the appalling disadvantages that we suffer as individuals be redressed.[45]  

This changed with the jurisprudence of international tribunals, several of which acknowledged the collective identity of indigenous peoples. In nearly all of its communications and in General Comment 23, the HRC has recognized cultural rights as accruing to indigenous peoples as a collective, whether it is protection of their way of life or their traditional subsistence activities.[46] The Inter-American Court in the Awas Tingni case[47] and the African Court in the Endorois case also found that the term “peoples” embodied a collective beneficiary dimension.[48]  

Self-determination edit

The recognition of self-determination has been tied to the recognition of “peoples”. Early documents such as the reports of the Working Group shuffled between the use of the terms “populations” and “peoples”. The former was preferred since it did not trigger any valid claims of secession. With the term 'peoples', the worry is that it could lend itself to claims of internal and externall. In the Endorois case, the African Commission identified that a “people” share a common historical tradition, racial or ethnic identity, linguistic unity, religious and ideological affinities, and a territorial connection.[49]

The right to self-determination finds mention in the UDHR and the twin Covenants. The contents of this right have been differently interpreted in different treaty regimes. The UN General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples (Res. 1514 (XV)) defines the right of self-determination to mean that:

All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development  

This was followed by the 1970 UN Declaration of Friendly Relations and Cooperation among States which stressed on the external element of self-determination, which could translate into integration/association with an existing State or the establishment of a newly independent State. This external dimension, understandably, did not augur well with States. Several treaty regimes doubled down on restrictions on the exercise of the external right to self-determination.

In the specific context of indigenous peoples, the 2007 Declaration clarified that the right to self-determination does not include secession. In fact, States like Australia, New Zealand, Canada, and the United States did not sign the Declaration, citing their discomfort with recognizing the right to self-determination of indigenous peoples. Although these States have now reversed their position, their discomfort with self-determination has not dampened. Tribunals have also continued to be uncomfortable with recognizing indigenous peoples' right to external self-determination. The Poma Poma v. Peru case before the Human Rights Committee is a useful example of this. In this case, Angela Poma Poma challenged the Peruvian government’s decision to sanction a project which led to the drying up of pastures that were integral to the alpaca rearing livelihood of the Aymara community, to which the complainant belonged. Cognizant of how the measure denied the Aymaras their right to determine the use of land that they had traditionally occupied, Poma Poma based the complaint on – inter alia – Article 1 of the ICCPR which protects the right to self-determination.  The invocation of self-determination was well-considered here, given that the authors claimed remedies for the complete loss of economic livelihood. In its examination, however, the Committee rejected the use of self-determination under Article 1 as the admissibility basis for Poma Poma’s complaint, citing reasons of self-determination not being an individual right as required by the Optional Protocol. Much like this case, in all other cases where self-determination as a right has been invoked, the Committee has not found violations to have occurred, choosing instead to situate the facts within other types of rights.

Rights of nature edit

Recognition of indigeneity has gradually begun to challenge the restrictions built into the vocabulary of rights itself – predominantly by confronting the anthropocentrism of rights. Typically, the right to environment centres and thereafter regulates human use of the environment. Such a reading erases the subjectivity of environment and natural resources themselves, placing it in conflict with several indigenous cosmologies where humans are only custodians and symbiotic partners within nature. Inspired by these epistemologies, the Ecuadorian constitution codified the rights of Pacha Mama, the Andean earth goddess as known in the Quichua and Aymara indigenous languages, in 2008.[50] The Constitution now commits to protecting the sumak kawsay (the "good way of living" or "buen vivir" in Spanish), which also reinforces the State's obligations towards restoration and preservation of the functions of nature.[51] States like Bolivia and Uganda have followed suit.[52] Importantly, the Bolivian constitution does not entrench the rights of nature, but frames such rights as stewardship of humans towards nature and "other living things".[53] Rights of nature are contained in another statute.[54] In India, for instance, rights of nature are recognized in a patchwork of judge pronouncements which have declared nature to have rights, liabilities, and duties.[55] In other states, rivers and national parks have been recognized as legal persons. Case in point is the Whanganui River in New Zealand,[56] and the legal status of the Sukhna River near India's northeast border with Nepal.[57] Such a reorientation is intended to better serve claims against polluting projects that threaten to damage ecologies. However, the retention of the language of rights – often alien to indigenous epistemologies – still allows balancing exercises to lean in favour of capitalistic projects. As Calzadilla and Kotzé note in their piece, often times rights of nature does not translate into actual legislative change. States lap up praise for merely dressing neoliberal development agenda in the language of respect for indigenous ontologies.[58]

Right to free, prior, and informed consent edit

The right to free, prior, and informed consent has been tied to different rights discourses. In the 1990s, General Recommendation No. 23 of the Committee on the Elimination of Racial Discrimination noted that the indigenous peoples enjoy the right to equality and therefore to be consulted before any decision affecting them is taken.[59] In General Comment 21, the Committee on Economic, Social, and Cultural Rights read free, prior, and informed consent with the right to participate in cultural life.[60] Still other forums attached free, prior, and informed consent to demands for restitution of land. The right to free, prior, and informed consent was chiefly concerned with the quality of consent. Free denotes the lack of intimidation or coercion, prior refers to consent taken well in advance of a project, and informed refers to the range of facts offered (nature, size, impact, permissions of project) prior to obtaining consent.[61] The mode of obtaining consent must be aligned with the customary laws of indigenous peoples. Although typically consent is understood as an obligation of conduct, there are some regimes which stress on "obtaining" consent, turning it into an obligation of result.

Indigenous right to land edit

Historically, affronts to indigeneity have been launched on the ancestral lands of indigenous peoples. In her report, former Special Rapporteur Irene-Daes explains why indigenous peoples’ movements extensively relied on the concept of historical sovereignty. Historical sovereignty was understood as a conceptual instrument to reclaim sovereignty over lands and natural resources that were divested of indigenous peoples through colonialism and Western/capitalist encroachment. Case in point is Article 26 of the UN Declaration on the Rights of Indigenous Peoples which recognizes “the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired” (Art. 26). Through land, further claims about cultural distinctiveness and spirituality were woven in. The centrality of land rights has now also been extended to certain other traditional communities who do not identify with the conceptual category of indigeneity.[62]

The right to land was initially situated within the rubric of property rights. However, property rights hinge on grammars of individuality, ownership, and saleability. For indigenous peoples, land cannot be owned or disposed on their own volition. The relationship is one of spirituality, less one of ownership.

In order to work around the limitations of property rights, land is increasingly read with cultural rights. In General Comment No.23, the Human Rights Committee observed that “culture manifests in various forms, including a particular way of life associated with the use of land resources”. The draft general comment on the right to land also confirms this linkage. In other spaces, rights accruing out of land use – such as the traditional knowledge and fine arts – has been translated into cultural rights.

Indigenous ways of learning and knowing edit

As the previous chapter on the Third World Approaches to International Law notes, international law has excluded the epistemologies of the former Third World from meaning-making processes. The continuation of doctrines such as terra nullius in international law discourse which are founded on the dispossession of colonized peoples was cited as proof of the epistemic bias in international law. That said, although TWAIL confronted the Eurocentrism of international law, it unwittingly resorted to the same Western grammars and metrics that it critiqued. Usha Natarajan, in her chapter in Decolonising Law, rightly notes that “Third World States asserted their post-coloniality only through ignoring indigenous and tribal sovereignty”.[3] By failing to acknowledge that South-South extractivism impoverished and displaced indigenous peoples and women (amongst others).[5]

This was the genesis of what came to be known as the Fourth World Approaches to International Law (FWAIL) The term ‘Fourth-World’ was popularized by George Manuel and Michael Posluns through their book ‘The Fourth-World: An Indian Reality,’ where they showed how indigenous communities have been forced to the margins of law.[7] The book conceptualized the Fourth World as a site of resistance to “neoliberal economies” that is grounded in “the natural economy of inter-human and cross-species relationships”.[8] FWAIL was born out of the failure of TWAIL, to combat the predatory role that international law plays in perpetuating violence against indigenous peoples using the vehicle of statehood.[9] FWAIL, instead, places indigenous peoples at the centre of the re-making of international law. This is what Kenyan author Ngugi calls the “dumping of European thought” to herald “indigenous forms of narrative and drama”.[10]  

The premise of Fourth World approaches is to question the basic assumptions underlying international law; whether it is the idea of the State being an impartial guarantor, the dominance of the English and French languages as the vernacular of international law, or even the criteria on the basis of which personhood is recognized. Fourth World approaches push for the recognition of non-anthropocentric personhoods - of land, of nature, of ancestors, and of ecosystems. Such approaches also expose the colonial motivations behind diminishing the personhood of indigenous peoples. At its root, this opposition stems from the basic difference in epistemology. That is, they highlight the fact that there are different ways of thinking about international law and all these different ways are equally credible and valid.

Framework of relationality edit

Indigenous epistemologies – while incredibly diverse – share certain tenets, the first of which is relationality.

As Cree scholar Shane Wilson notes that as “indigenous people, we ‘are’ our relationships with other people”.[63] Alfred and Corntassel suggest that relationships "are the spiritual and cultural foundations of Indigenous peoples".[64] As a foundation, relationality is how the world is known and how indigenous peoples, country, kin, ethos, stories, and more-than-kin know themselves and their relationship with each other.[65] It is this tenet of relationality that indigenous duties of stewardship of nature, spirits, and all living beings stem from. Relationality also emphasizes the values and lessons endowed by indigenous elders. Increasingly, relationality has emerged as a research method.[66] The excellent edited collection 'Decolonising Law' by Valerie Waboose, Beverley Jacobs, Jeffrey Hewitt, Sujith Xavier, and Amar Bhatia employs the ethos of relationality in its entire making – from the stage of inviting contributors, organizing brainstorming opportunities, scholarship production, to the dissemination.[67] The book also reflects on how Western training in non-relational and extractive ways can hamper the realization of relationality.

Leanne Betasamosake Simpson, the Michi Saagiig Nishnaabeg scholar and artist, writes that “extracting is stealing—it is taking without consent, without thought, care or even knowledge of the impacts that extraction has on the other living things in that environment. That’s always been a part of colonialism and conquest’.[68] Simpson calls the act of taking and converting indigenous ideas into economic capital while removing their ownership ’cognitive extractivism’. Several scholars have written about cognitive extractivism of indigenous knowledges in Australia and settler colonial extractivism in Palestine.[69]

In fact, extractivism demands and sometimes even imposes relationships, eroding the reality of relationships and therefore also the principle of relationality.[70] In practical terms, relationality requires a serious introspection of one's positionality and privilege, and understanding how to surrender and "listen" to indigenous co-collaborators. From a position of doing, the researcher moves to a position of listening. Listening, not only in the biological sense, but as Cahill note, listening in the affective sense.[71]

Sacred and secular edit

Spirituality is a central component of indigenous worldviews. The spiritual is not understood as beyond the purview of rationality. Rather it is seen as informing rationality and meaning-making in the world. According to Hoffman (2013), “Aboriginal ontologies and epistemologies are rooted in worldviews that are inclusive of both the sacred and the secular. [In Indigenous ontologies] the world exists in one reality composed of an inseparable weave of secular and sacred dimensions”.[72] All relationships and all beings are endowed with spirituality - whether it is the land or one's knowledge. Spirituality, in Western legal discourse, is often romanticized and treated as less-than-scientific.[73] In their piece, Townsend and Townsend critique how indigenous elders articulations of their spiritual relationships with territory and nature were not seen as relevant to more scientific assessments about territory apportionment and environmental rights for which an external expert was invited.[74]

Reciprocity as epistemology edit

Several indigenous epistemologies rest on the notion of reciprocity. As Kovach notes, "they say that we traditionally knew about portal, the doorway, how to get knowledge and that it was brought to the people by sharing, by community forums, by sitting in circles, by engaging in ceremony, by honouring your relationship to the spirit. When we do that, the spirit will reciprocate and we will be given what we are needed."[75] Reciprocity is applies for insiders and outsiders and those in-between. Indigenous cultures - unlike Western epistemologies - do not attach neutrality to people situated outside indigenous cultures. They see the all worlds as being interconnected and each individual and community responsible for changes affecting peoples everywhere. Internal positions are also equally problematized. As Tuhiwai-Smith notes, insiders often take their familiarity for granted. However, in indigenous epistemologies pin critical reflexivity on insiders too.[76] These ideals are not only embedded in stories and myths, but also in songs, rituals, and dance. Welch writes about how movements in Native American dances convey lessons in reciprocity.[77] Hansda writes about how for indigenous communities in India, dance serves both to reinforce indigenous epistemologies of reciprocity and to resist the assimilationist strategies of the postcolonial State.[78]

Conclusion edit

This chapter looks to understand why and how international law has worked to disenfranchise indigenous peoples and how indigenous peoples have responded to affronts by international law over the past decades. The latter parts of the chapter canvas the historical status labels associated with indigenous peoples and the growing body of rights that such peoples currently enjoy. The final part of the chapter offers a brief explanation of indigenous epistemologies and the ways in which rights and justice are imagined in such epistemologies.

Further readings edit

  • Chidi Oguamanam, Indigenous Peoples and International Law: The Making of a Regime, 30 Queen's L.J. 348 (2004-2005).
  • Sheryl Lightfoot, The Declaration on the Rights of Indigenous Peoples, in Global Indigenous Politics (Lightfoot, Routledge, 2016).
  • Kathleen Absolon, Kaandossiwin: How We Come to Know: Indigenous Re-Search Methodologies (Fernwood Publishing, 2022).
  • Venne, Sharon Helen. Our Elders Understand Our Rights: Evolving International Law Regarding Indigenous Peoples. Penticton, BC: Theytus, 1998.
  • Anaya, James. Indigenous Peoples under International Law. 2d ed. Oxford: Oxford University Press, 2004.

Table of Contents edit

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes edit

  1. Tzouvala, Ntina (2020). Capitalism as Civilisation. Cambridge: Cambridge University Press. ISBN 9781108684415.
  2. Anghie, Antony (2005). Imperialism, Sovereignty and the Making of International Law (1st ed.). Cambridge: Cambridge University Press.
  3. Carroll, Peter; Noble, David (2001). The Free and the Unfree: A Progressive History of the United States (3rd ed.). New York: Penguin. pp. 35–36.
  4. "First Encounters in the Americas | Facing History and Ourselves". Retrieved 2023-04-12.
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  7. Richard Tuck, ‘Introduction’ in Hugo Grotius, The Rights of War and Peace (Richard Tuck ed, Jean Barbeyrac trans, Liberty Fund, 2005) ix, xxix–xxx.
  8. Ian Brownlie, Principles of Public International Law 88-91 (4th ed. 1990) (discussing theories of recognition of statehood).
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  15. ‘Replies received and Commentaries’ in International Labour Conference, Partial Revision of the Indigenous and Tribal Peoples Convention, 1957 (No. 107), 75th Session, Report VI(2), Geneva, 1988, Question 9, 16–17.
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  21. U.N. Docs. E/CN.4/Sub.2/476/Adds.l—6 (1981); E/CN.4/Sub.2/1982/2/Adds. 1-7 (1982); and E/CN.4/ Sub.2/1983/21/Adds.l—7 (1983).
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  29. Surbhi Dayal, ‘Born Criminals: The Making of Criminal Tribes during the Colonial Period in India’, International Journal of Criminal Justice Sciences 14, no. 2 (2019).
  30. Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, International Labour Conference, (entered into force Sept. 5, 1991), reprinted in the appendix, infra [hereinafter ILO Convention No. 169].
  31. Daes, E. I. (1995). Protection of the heritage of indigenous peoples. Final Report of the Special Rapporteur, Mrs. Erica-Irene Daes, in Conformity with Subcommission Resolution 1993/44 and Decision 1994/105 of the Commission on Human Rights. E/C’N.4/Sub.2/1995/26.
  32. Gladson Dungdung, The Pathalgari Movement for Adivasi autonomy: a revolution of India’s Indigenous Peoples, IWGIA, 11 March 2022,
  33. Patrick Macklem, Indigenous Recognition in International Law: Theoretical Observations, 30 MICH. J. INT'L L. 177 (2008).
  34. Jackie Hartley, Paul Joffe, and Jennifer Preston, eds., Realizing the UN Declaration on the Rights of Indigenous Peoples: Triumph, Hope, and Action (Saskatoon: Purich Pub., 2010); and Lightfoot, Global Indigenous Politics, notably Chapter 2.
  35. Sheryl Lightfoot, Global Indigenous Politics: A Subtle Revolution (New York: Routledge, 2016).
  36. Reference the Declaration; G.N. Barrie, The United Nations Declaration on the Rights of Indigenous People: Implications for Land Rights and Self-Determination, 2 TSAR (2013): 296.
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  40. R. Wolfrum, The Protection of Indigenous Peoples in International Law, 59 Heidelberg Journal of International Law 371 (1999).
  41. Sixth session of the Commission of Human Rights, A/2929, paragraph 184 (1950), 8th session (1952), 9th session (1953).
  42. Third Committee meeting, 16th session, A/5000, paragraph 123 (1961).
  43. See Liberia’s proposal at A/C.3/SR.1103 (1961); E/CN.4/L.260.
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  45. Thornberry, P. (2002). Indigenous peoples and human rights. Manchester, U. K.: Manchester University Press.
  46. Lubicon Band in Ominayak v. Canada, Ayyamas in Poma Poma v. Peru, Sami of the Nordic countries in Lansman v. Finland.
  47. Awas Tingni Community v Nicaragua, para.35; African Commission on Human and Peoples’ Rights v. Republic of Kenya, App No. 006/2012, 26 May 2017.
  48. Centre for Minority Rights Development (CEMIRIDE) on behalf of the Endorois Community v. Kenya, Comm. No. 276/2003, Afr. Comm'n on Human & Peoples' Rights (2009). See also E Ashamu, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on Behalf of Endorois Welfare Council v Kenya: A Landmark Decision from the African Commission, Journal of African Law, 55(2), 300-313 (2011).
  49. Centre for Minority Rights Development (CEMIRIDE) on behalf of the Endorois Community v. Kenya, Comm. No. 276/2003, Afr. Comm'n on Human & Peoples' Rights (2009).
  50. Constitucion de 2008, República del Ecuador,
  51. "The Constitution of the Republic of Ecuador: Pachamama Has Rights" (in en). Environment & Society Portal. 2015-06-10. 
  52. "Rights of Nature gain ground in Uganda's Legal System". Gaia Foundation. 2019-04-01. Retrieved 2023-04-14.
  53. Calzadilla, Paola Villavicencio; Kotzé, Louis J. (2018-11). "Living in Harmony with Nature? A Critical Appraisal of the Rights of Mother Earth in Bolivia". Transnational Environmental Law. 7 (3): 397–424. doi:10.1017/S2047102518000201. ISSN 2047-1025. {{cite journal}}: Check date values in: |date= (help)
  54. Law 071 of the Rights of Mother Earth, 21 Dec. 2010; an English version of the law can be found at:
  55. See the Madras High Court's decision covered here:
  56. Whanganui River Deed of Settlement, 5 Aug. 2014, available at: For a discussion see Magallanes, C.I., ‘Reflecting on Cosmology and Environmental Protection: Maori Cultural Rights in Aotearoa New Zealand’, in A. Grear & L. Kotzé (eds), Research Handbook on Human Rights and the Environment (Edward Elgar, 2015), pp. 274–308.
  57. Sukhna Enclave Residents Welfare Association and Ors. v. State of Punjab and Ors., CWP No.18253 of 2009 & other connected petitions, High Court of Punjab and Haryana,
  58. Villavicencio Calzadilla, P., & Kotzé, L. (2018). Living in Harmony with Nature? A Critical Appraisal of the Rights of Mother Earth in Bolivia. Transnational Environmental Law, 7(3), 397-424. doi:10.1017/S2047102518000201
  62. Inter-American Court of Human Rights, Moiwana Community v. Suriname, Judgment of 15 June 2005, paras. 132–133, and Saramaka People v. Suriname, Judgment of 28 November 2007, para. 86.
  63. S.Wilson, ‘Using Indigenist Research to Shape Our Future’, in M.Gray, J.Coates, M.Yellow Bird and T.Hetherington (eds), Decolonizing Social Work (New York: Routledge, 2016), pp. 4–5.
  64. T.Alfred and J.Corntassel, ‘Politics of Identity - IX: Being Indigenous: Resurgences against Contemporary Colonialism’, Government and Opposition, 40, 2005, pp. 597–614.
  65. Tynan, Lauren (2021-10). "What is relationality? Indigenous knowledges, practices and responsibilities with kin". cultural geographies. 28 (4): 597–610. doi:10.1177/14744740211029287. ISSN 1474-4740. {{cite journal}}: Check date values in: |date= (help)
  66. E.Tuck and K.W.Yang, ‘Decolonization is Not a Metaphor’, Decolonization: Indigeneity, Education & Society, 1, 2012, pp. 1–40
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  69. Sumi Madhok, Extractivism and the Coloniality of Knowledge Production, LSE blogs, 21 February 2022,
  70. L.T.Smith, Decolonizing Methodologies: Research and Indigenous Peoples (London: Zed Books, 2012); Tuck and Yang, ‘Decolonization is Not a Metaphor’, pp. 1–40.
  71. C. Cahill, The personal is political: Developing new subjectivities through participatory action research. Gender, Place & Culture, 14(3), 267–292 (2007).
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  75. Margaret Kovach, Indigenous Methodologies: Characteristics, Conversations and Contexts (Toronto: University of Toronto Press, 2009) at 41; Kathleen Absolon, Kaandossiwin: How We Come to Know (Halifax: Fernwood, 2011) at 55.
  76. Linda Smith, Decolonizing Methodologies (Dunedin: University of Otago Press, 1999) at 13.
  77. Welch, Shay (2019). The Phenomenology of a Performative Knowledge System: Dancing with Native American Epistemology. Cham: Springer International Publishing. doi:10.1007/978-3-030-04936-2. ISBN 978-3-030-04935-5.
  78. Hansda, Sowvendra Shekhar. The Adivasi Will Not Dance: Stories. Speaking Tiger, 2017.