International law guarantees rights to indigenous peoples regarding traditional lands, knowledge, cultural preservation, and human security. This paper will examine the sources of these rights and legal remedies for violations of law. Protection of indigenous peoples’ cultures and resources contribute to the protection of the global environment.

We explore two special challenges indigenous peoples pose to the idea of sovereigns as trustees for humanity. The first challenge is rooted in a colonial history during which a trusteeship model of sovereignty served as an enabler of paternalistic colonial policies. The challenge is to show that the trusteeship model is not irreparably colonial in nature. The second challenge, which emerges from the first, is to specify the scope and nature of indigenous peoples’ sovereignty within the trusteeship model. (...) Whereas the interaction between states and foreign nationals is the locus of cosmopolitan law, the relationship between states and indigenous peoples is distinctive. In the ordinary cosmopolitan case, foreign nationals do not purport to possess legal authority. Indigenous peoples often do make such a claim, pitting their claim to authority against the state’s. We discuss how international law has attempted to come to grips with indigenous sovereignty by requiring states to include indigenous peoples in decision-making processes that affect their historical lands and rights. A crucial fault line in the jurisprudence, however, separates a duty to consult indigenous peoples from a duty to acquire their free, prior and informed consent. The latter but not the former recognizes that indigenous peoples possess a veto over state projects on their lands, in effect recognizing in them a limited co-legislative power. We focus on recent jurisprudence from the Inter-American Court of Human Rights, and consider whether either the duty to consult or FPIC are enough to dispel the shadow of the trusteeship model’s colonial past. We suggest that they are a move in the right direction, and that implicitly they represent international law’s recognition that states are no longer the sole bearers of sovereignty at international law. In limited circumstances, international law recognizes indigenous peoples as sovereign actors. (shrink)

In India, Dalits faced a centuries-old caste-based discrimination and nowadays indigenous people too are getting a threat from so called developed society. We can define these crimes with the term ‘atrocity’ means an extremely wicked or cruel act, typically one involving physical violence or injury. Caste-related violence has occurred and occurs in India in various forms. Though the Constitution of India has laid down certain safeguards to ensure welfare, protection and development, there is gross violation of their rights such (...) as killing, murder, torture, burning, abduction, rape and molestation. According to a report by Human Rights Watch, “Dalits and indigenous peoples (known as Scheduled Tribes or adivasis) continue to face discrimination, exclusion, and acts of communal violence. Laws and policies adopted by the Indian government provide a strong basis for protection, but are not being faithfully implemented by local authorities.” Human rights issues are very often understood and analyzed from socio-political and cultural perspectives. Apart from such perspectives, the issue of human rights also can be analyzed from a strictly philosophical perspective, which implies that the idea of human rights is centered on the inspiration of human dignity. Several studies on the situation of human rights of Dalits in several parts of India show more reports on violation of human rights than on protection of them. Dalits are discriminated against, denied access to land, forced to work in degrading condition, and routinely abused at the hands of the police and higher-caste groups that enjoy state protection. For example, Dalit women are regularly subjected to sexual violence as a result of their lower caste status-often in response to their demands of basic rights. Hate crimes towards indigenous peoples is a daily reality in many countries across the globe. The challenge is to change such a dehumanized situation. The challenge is to each one of us that whether engaged in governance of the civil society or voluntarily engaged in social and economic development of society, one thing to remember is that leaving behind the vulnerable units of our society – Dalits and indigenous peoples – will not take us to a prosperous society. This paper is an attempt to study the situation of human rights of two most neglected segments of society namely, Dalits and STs as a serious international human rights issue. (shrink)

Over the past few decades, Indigenous communities have successfully campaigned for greater inclusion in decision-making processes that directly affect their lands and livelihoods. As a result, two important participatory rights for Indigenous peoples have now been widely recognized: the right to consultation and the right to free, prior and informed consent (FPIC). Although these participatory rights are meant to empower the speech of these communities—to give them a proper say in the decisions that most affect them—we argue that (...) the way these rights have been implemented and interpreted sometimes has the opposite effect, of denying them a say or ‘silencing’ them. In support of this conclusion we draw on feminist speech act theory to identify practices of locutionary, illocutionary, and perlocutionary group silencing that arise in the context of consultation with Indigenous communities. (shrink)

RESUMEN: El presente trabajo propone un análisis de los Derechos Fundamentales de los pueblos indígenas a la luz de los principios internacionales de Libre Determinación y Consulta Previa, como fundantes y presupuestos de los demás Derechos Indígenas. En consecuencia, se analiza el Derecho a la Consulta, que debe ser previa, libre, informada, de buena fe, culturalmente adecuada y con el propósito de obtener el consentimiento; donde todas éstas características son el estándar mínimo a cumplir en cualquier proyecto de desarrollo o (...) extractivo que afecte a pueblos indígenas, por lo que debe explicarse también el extractivismo al interior de los estados-nación y su modus operandi, que ha provocado la existencia de zonas y regiones que algunos autores caracterizan como “estados de excepción” o estados de “de no-derecho”. El análisis propuesto contrasta las bases mencionadas con algunos casos llevados ante la jurisdicción del Sistema Interamericano de Derechos Humanos, cuya última fase descansa en las sentencias de la Corte IDH.ABSTRACT: The present paper proposes an analysis of the Fundamental Rights of the indigenous peoples in the light of the international principles of Free Determination and Prior Consultation, as foundations and budgets of the other Indigenous Rights. Consequently, the Right to Consultation is analyzed, which must be prior, free, informed, in good faith, culturally appropriate and with the purpose of obtaining consent; where all these characteristics are the minimum standard to be met in any development or extractive project that affects indigenous peoples, so the extractivism within the nation-states and its modus operandi, which has caused the existence of zones and regions that some authors characterize as "states of exception" or "non-right" states. The proposed analysis contrasts the mentioned basis with some cases brought before the jurisdiction of the Inter-American Human Rights System, whose last phase rests on the judgments of the Inter-American Court.PALABRAS CLAVE: Libre determinación y consulta, Derechos Fundamentales, pueblos indígenas. KEYWORDS: Free determination and consultation, Fundamental Rights, indigenous peoples. (shrink)

Environmental degradation and extractive industry are inextricably linked, and the industry’s adverse impact on air, water, and ground resources has been exacerbated with increased demand for raw materials and their location in some of the more environmentally fragile areas of the world. Historically, companies have managed to control calls for regulation and improved, i.e., more expensive, mining technologies by (a) their importance in economic growth and job creation or (b) through adroit use of their economic power and bargaining leverage against (...) weak national governments, regional and international regulatory bodies. More recently, the industry has had to contend with another set of challenges that involved treatment of indigenous people and their traditional land rights, fair treatment of workers, human rights abuses, and bribery and corruption involving local officials and political leaders. These challenges currently fall outside the traditional areas of regulation and control. Nevertheless, they pose serious threat to the industry’s business practices because of their global scope, threat to company’s reputation, and long-term risks of political instability leading to increasing cost of capital. Industry has responded to these challenges by creating voluntary codes of conduct that would signify their intent to comply with higher standards of conduct, and assuage public opinion that no further action is called for. These codes, however, lack any monitoring mechanism and reporting integrity to assure the public that the industry members are indeed meeting their commitments. Consequently, pressure on the industry continues unabated and with ever increasing calls for mandatory regulation and oversight. This article examines the activities of one mining company, Freeport-McMoRan Copper & Gold, Inc., which has taken a radically different approach in responding to these challenges at its mining operations in West Papua, Indonesia. While cooperating with industry-based efforts of voluntary codes of conduct, Freeport also initiated a radically different response through its own voluntary code that would directly focus on issues of human rights, treatment of indigenous people on whose traditional land its mine was located; economic development and job creation and, improvements in health, education, and housing facilities, to name a few. Additionally, the company earmarked large sums of money and involved representatives of the indigenous people in their management and disbursement. The company took an even more radical action when it committed itself to independent external audits of the company’s compliance with the code, and that these findings and company’s responses would be made public without prior censorship by the company. We analyze the nature of corporate culture, vision and risk-taking propensities of its management that would impel the company to embark on a high risk strategy whose outcomes could not be predicted with any degree of certainty before the fact. The parent company also had to confront discontent among the management ranks at the mine site because of cultural differences and management styles of expatriates and local (Indonesian) managers. Finally, we discuss in some detail the extensive and intensive character of a two phase audit conducted by the outside monitors, their findings, and the process by which they were implemented and reported to general public. We also evaluate the strengths and challenges posed by such audits, their importance to the company’s future, and how such projects might be undertaken by other companies. (shrink)

Indigenous Peoples, Consent and Benefit Sharing is the first in-depth account of the Hoodia bioprospecting case and use of San traditional knowledge, placing it in the global context of indigenous peoples’ rights, consent and benefit-sharing. It is unique as the first interdisciplinary analysis of consent and benefit sharing in which philosophers apply their minds to questions of justice in the Convention on Biological Diversity (CBD), lawyers interrogate the use of intellectual property rights to protect traditional knowledge, (...) environmental scientists analyse implications for national policies, anthropologists grapple with the commodification of knowledge and, uniquely, case experts from Asia, Australia and North America bring their collective expertise and experiences to bear on the San-Hoodia case. -/- While much of the focus is on bioprospecting and natural product development, Indigenous Peoples, Consent and Benefit-Sharing also draws important lessons about informed consent and benefit-sharing from the health sciences and sectors such as mining. Policymakers around the world are under significant pressure to resolve the challenges of implementing the CBD. This book’s analysis and recommendations will help them. -/- ‘It is good to see philosophers engaging with the UN Convention on Biological Diversity, and doing so by looking in depth at a real situation in which it has been invoked.’ Peter Singer, Ira W. DeCamp Professor of Bioethics in the University Center for Human Values, Princeton University . (shrink)

The new science of genomics endeavors to chart the genomes of individuals around the world, with the dual goals of understanding the role genetic factors play in human health and solving problems of disease and disability. From the perspective of indigenous peoples and developing countries, the promises and perils of genomic science appear against a backdrop of global health disparity and political vulnerability. These conditions pose a dilemma for many communities when attempting to decide about participating in genomic research (...) or any other biomedical research. Genomic research offers the possibility of improved technologies for managing the acute and chronic diseases that plague their members. Yet, the history of particularly biomedical research among people in indigenous and developing nations offers salient examples of unethical practice, misuse of data, and failed promises. This dilemma creates risks for communities who decide either to participate or not to participate in genomic science research. Some argue that the history of poor scientific practice justifies refusal to join genomic research projects. Others argue that disease poses such great threats to the well-being of people in indigenous communities and developing nations that not participating in genomic research risks irrevocable harm. Thus, some communities particularly among indigenous peoples have declined to participate as subjects in genomic research. At the same time, some communities have begun developing new guidelines, procedures, and practices for engaging with the scientific community that offer opportunities to bridge the gap between genomic science and indigenous and/or developing communities. Four new approaches warrant special attention and further support: consulting with local communities; negotiating the complexities of consent; training members of local communities in science and health care; and training scientists to work with indigenous communities. Implicit is a new definition of “rigorous scientific research,” one that includes both community development and scientific progress as legitimate objectives of genomic research. Innovative translational research is needed to develop practical, mutually acceptable methods for crossing the divide between genomic researchers and indigenous communities. This may mean the difference between success and failure in genomic science, and in improving health for all peoples. (shrink)

ABSTRACT This article explores the development in Bolivia under president Evo Morales, through a critical postcolonial approach. From a traditional liberal perspective, this article concludes that the liberal democratic system under Morales has not been deepening, though certain new participatory aspects of democracy, including socio-economic reforms have been carried out. In contrast, this article analyses to what extent the presidency of Evo Morales may be seen as the end of the postcolonialism, and the beginning of a new era in (...) which Bolivia’s indigenous people finally have been incorporated into the forward development of a multi-ethnic society. By analysing issues such as time, nation, land, space, globalization and language, the conclusion is that the new constitution marks a fresh beginning, one beyond the colonial and postcolonial eras, for indigenous groups, but it will not bring back the old indigenous societies as was dominating the territory of today’s modern state. (shrink)

The need to regulate access to genetic resources and ensure a fair and equitable sharing of any resulting benefits was at the core of the development of the Convention on Biological Diversity (CBD). The CBD established a series of principles and requirements around access and benefit sharing (ABS) in order to increase transparency and equity in the international flow of genetic resources, yet few countries have been able to effectively implement them and ABS negotiations are often paralysed by differing (...) interests. -/- This book not only examines these complex challenges, but offers workable, policy-oriented solutions. International contributors cover theoretical approaches, new significant national legislation, the concept of traditional knowledge, provider and user country measures and common solutions. Exploring specific, salient examples from across the globe, the authors provide lessons for national regulation and the ongoing negotiations for an international ABS regime. Uniquely, this book also looks at the potential for 'horizontal' development of ABS law and policy, applying lessons from bilateral approaches to other national contexts. (shrink)

Despite the tremendous progress in the development of scientific knowledge, the understanding of the causes of poverty and inequality, and the role of politics and governance in addressing modern challenges, issues such as social inclusion, poverty, marginalization and despair continue to be a reality across the world - and most often impact Indigenous Peoples. At the Margins of Globalization explores how Indigenous Peoples are affected by globalization, and the culture of individual choice without responsibility that it promotes, while (...) addressing what can be done about it. Though international trade and investment agreements are unlikely to go away, the inclusion of Indigenous rights provisions has made a positive difference. This book explains how these provisions operate and how to build from their limited success. (shrink)

Finland is currently undergoing a fundamental structural transformation in the forestry sector, with factories closing in the Global North and production being shifted to the Global South (see also Carrere & Lohmann 1996; Cossalter & Pye-Smith 2003). This is accompanied by Finnish mass movements protesting unemployment and demanding corporate social responsibility (CSR) from theforest industry. The difficult domestic situation, however, seems to overshadow the circumstances of the new production regions in the South. What do we actually know about the impacts (...) of the Finnish forestry sector in those societies? The branches of global forest companies may be located in regions that are experiencing various societal conflicts – like in the case of indigenous communities in northeastern Brazil, where the question of land ownership remains unsolved. The aim of our paper is to bring out the perspective of these traditional communities and the legitimacy problems of the Finnish forest industry in Brazil. We also scrutinize the corporate tactics by which companies seek to gain societal acceptability in the region. These range from social programs and campaigns to violent confrontations, even to attempts to deconstruct the identities of indigenous communities. Our general argument is that while companies have outlined their CSR policies in theory, the situation in actual practice is quite different. Companies often fail to take into account the prevailing socioeconomic conditions in the region and some of the more marginal stakeholders like indigenous peoples, who obviously have no economic importance to the company. (shrink)

Research ethics guidelines grew out of several infamous episodes where research subjects were exploited. There is significant international synchronization of guidelines. However, indigenous groups in New Zealand, Canada and Australia have criticized these guidelines as being inadequate for research involving indigenous people and have developed guidelines from their own cultural perspectives. Whilst traditional research ethics guidelines place a lot of emphasis on informed consent, these indigenous guidelines put much greater emphasis on interdependence and trust. This (...) article argues that traditional guidelines are premised on relationships of equal power, and that often the researcher has more power that is not fully equalized by providing information. Where there is a relationship of unequal power, then focusing on interdependence and trust is more likely to achieve ethical safety. We illustrate this thesis by describing the detail of a research project looking at the use of interpreters, where we video-recorded live consultations and then interviewed the patient, interpreter and doctor. We conclude by suggesting that mainstream research ethics guidelines should pay more attention to the development of a trustworthy relationship between subject and researcher, and that, following the lead from clinical medicine, we should develop a culturally competent ethical framework for research on human subjects. (shrink)

Biofuels development has assumed an important role in integrating Indigenous peoples and other marginalized populations in the production of biofuels for global consumption. By combining the theories of commoditization and the environmental sociology of networks and flows, the author analyzed emerging trends and possible changes in institutions and behaviors brought about by the introduction of biofuels as a development option on ancestral lands. Using the Indonesian oil palm and the Philippine Jatropha experiences, the author argues that although there are (...) efforts to integrate smallholder systems to the global integrated biofuels network, the effects of commoditization continue to undermine the more sustainable, less commoditized agricultural practices of Indigenous peoples. Indigenous peoples and their traditional agricultural practices are at risk of being either phased out from or eventually transformed by the global integrated biofuels network to accommodate large-scale, consolidated biofuel plantation systems. However, there are also indications that persistent criticisms of and enduring reforms in the global integrated biofuels network challenge the future of highly commoditized biofuels. This suggests that the coevolutionary trajectory of both highly commoditized biofuels and noncommoditized Indigenous agricultural practices remains uncertain. (shrink)

In this essay, I argue for the “inclusive” advantage of John Rawls’s The Law of Peoples through a critical engagement with the political development of modern China. I start by introducing some recent developments in contemporary Chinese political theory, showing why it is now theoretically difficult to imagine that China can be incorporated into a liberal international order as a liberal society. In the main body of the essay, I conduct a comparative study of Joseph Chan’s Confucian perfectionism, a (...) Confucian-inspired political theory embedded in Chinese cultural tradition and constructed for modern China, and the Law of Peoples. The purpose is to reveal that there has already existed a school of Chinese political thought that will incorporate China into the Law of Peoples as a decent Confucian-inspired society and that such a society will accept its global responsibility designated by the duty of assistance yet reject a global difference principle in the global original position. I conclude by suggesting how this potential “inclusiveness” of the Law of Peoples may help to remove some of new disturbance to the ideal of a just and stably peaceful world. (shrink)

The people of Myanmar were struck by three major human rights disasters during the country's period of democratization from 2003 to 2012: the 2007 Saffron Revolution, the aftermath of Cyclone Nargis in 2008, and the 2012 Rakhine riots, which would evolve into the ongoing Rohingya crisis. These events saw Myanmar's government categorically labeled as an offender of human rights, and three powerful Southeast Asian member states-Indonesia, Thailand, and Malaysia-responded to the violations in very different ways. In each case, their responses (...) to the crises were explicitly shaped by norm conflict, which may be understood as a tension between international and domestic norms. Their reactions were compelled by a need to address conflicting domestic and international expectations for norm compliance regarding human rights protection and non-interference in internal affairs. In Norms in Conflict: Southeast Asia's Response to Human Rights Violations in Myanmar, Anchalee Rüland makes sense of state action that occurs when a governing body is faced with a circumstance that is at once in line with and contrary to its own governing policies. She defines five different types of response strategies to situations of norm conflict and examines the enabling factors that lead to each strategy. Domestic norms are known to evolve as a country's values change over time yet Rüland argues that the old and new norms may also coexist; knowledge of the underlying political context is crucial for those seeking a solid understanding of state behavior. Norms in Conflict challenges the conventional understanding of the logic of consequences in determining state behavior, advancing constructivist theory and establishing a provocative new conversation in international relations discourse. (shrink)

In recent years, two competing methodological frameworks have developed in the study of the epistemology of philosophy. The traditional camp, led by experimental philosophy and its allies, has made inferences about the epistemology of philosophy based on the reactions, or intuitions, people have to works of philosophy. In contrast, multiple authors have followed the lead of Deutsch and Cappelen by setting aside experimental data in favor of inferences based on careful examination of the text of notable works of philosophy. (...) In other words, the debate is split between authors focusing on philosophy’sconsumptionand those focusing on philosophy’sproduction. This paper examines the motivation for focusing on original texts and other evidence of philosophy’s production and finds it lacking. Drawing upon Hills’ distinction between propagation and transmission, I argue that the social epistemology of philosophy does not justify the recent focus on original texts of philosophy. Because the philosophical knowledge of consumers of philosophy is likelyinspiredby producers of philosophy, as opposed to epistemically grounded in the producers’ epistemic states, experimental philosophy had it right all along—if we want to know the epistemic standing of philosophy, we need to look to philosophy’s consumers. (shrink)

Why should sovereign states obey international law? What compels them to owe allegiance to a higher set of rules when each country is its own law of the land? What is the basis of their obligations to each other? Conventional wisdom suggests that countries are too different from one another culturally to follow laws out of mere loyalty to each other or a set of shared moral values. Surely, the prevailing view holds, countries act simply out of self-interest, and (...) they eventually consent to norms of international law to regulate matters of common interest.In this groundbreaking book, Fernando Tesón goes against this prevailing thought by arguing, in the Kantian tradition, that a shared respect for individual human rights underpins not just the obligation countries feel to follow international law but also international laws themselves and even the very legitimacy of nations in the eyes of the international community. Tesón, both a lawyer and a philosopher, proposes that an overlapping respect for human rights has created a moral common ground among the countries of the world; and moreover, that such an outlook is the only one that is rationally defensible. It is this common set of values rather than self-interest that ultimately provides legitimacy to international law. Using the tools of moral philosophy, Tesón analyzes the concepts of sovereignty, intervention, and national interest; the contributions of social contact theory, game theory, and feminist theory; and the puzzles of self-determination and group rights.More than simply outlining his theory, Tesón goes on to give detailed examples of international laws, international institutions, and their human rights foundations, putting his ideas to work and addressing legal reforms called for by the theory. He suggests that treaties, for example, should be considered binding if, and only if, the consent to the treaty was given by a genuinely representative government, one that acts out of interest for the human rights of its citizens. Although the theoretical achievement of this book is to challenge received wisdom on the foundation of international law, the practical ambition is a call to reform the international legal system for the post–Cold War era, to substitute for the old order one that gives primacy to human dignity and freedom over state power. (shrink)

Today's world is post-colonial and post-Cold War. These twin characteristics explain why international society is also riddled with the two major forms of injustice which Nancy Fraser identified as afflicting national societies. First, the economic and social disparities between states caused outcry in the 1950s when the first steps were taken towards decolonisation. These inequalities, to which a number of emerging states now contribute, are still glaring and still pose the problem of the gap between formal equality and true (...) equality. Second, international society is increasingly confronted with culture- and identity-related claims, stretching the dividing line between equality and difference. The less-favoured states, those that feel stigmatised, but also native peoples, ethnic groups, minorities and women now aspire to both legal recognition of their equal dignity and the protection of their identities and cultures. Some even seek reparation for injustices arising from the past violation of their identities and the confiscation of their property or land. In answer to these two forms of claim, the subjects of international society have come up with two types of remedy encapsulated in legal rules: the law of development and the law of recognition. These two sets of rights are neither wholly autonomous and individualised branches of law nor formalised sets of rules. They are imperfect and have their dark side. Yet they can be seen as the first milestones towards what might become a fairer international society; one that is both equitable (as an answer to socio-economic injustice) and decent (as an answer to cultural injustice). This book explores this evolution in international society, setting it in historical perspective and examining its presuppositions and implications. (shrink)

The Laws of Peoples (LP) has a great deal to offer in at least three different respects: as the completion of Rawls's philosophical project, as a guide to foreign policy, and as a different way of understanding international relations (IR). This chapter outlines arguments put forward in respect to these three themes, demonstrating that they represent promising avenues for further debate, while pointing to LP's broader value and merit. It focuses on specific elements of world politics where Rawls's ideas (...) provide promising alternatives. The chapter explains how Rawls's realistic utopianism represents a form of theorizing that could constitute a genuine challenge to more traditional forms of thinking in IR. It examines some of the key ideas of Rawls's international theory through mapping the development of his thought, and indicates how critiques such as Sen's initially represented the predominant response. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Graffiti and Colonial Unknowing:A Comment on Mishuana Goeman's "Caring for Landscapes of Justice in Perilous Settler Environments"Anna Cookin "caring for landscapes of justice in Perilous Settler Environments," Dr. Goeman shows how the NDN Collective's initiatives, Chemehuevi photographer Cara Romero's Tongvaland project, and the works of Gabrieliño Tongva artist Mercedes Dorame "exemplify communities of care" that work toward "the unmapping of settler terrains" ("Caring for Landscapes" 51). Her address highlights (...) how these cartographic art productions are processes of (re)mapping that challenge colonial spatialities. Drawing on Michi Saagig Nishnaabeg scholar Leanne Betasamosake Simpson's poem "i am graffiti," Goeman frames these art works as Indigenous graffiti, insofar as they are everyday acts of resurgence1 that resist erasure and enact rematriation.My comments aim to articulate how Romero's and Dorame's works both reveal and disrupt a colonial unknowing by showing the cracks of settler colonial spatiality. I take Goeman's address to illustrate that the changing of minds and unsettling of settler identity will not occur through argumentation, facts, and figures alone, but rather through aesthetic and cartographic practices that "provide a way of seeing Indigenous futurities and relationalities" ("Caring for Landscapes" 52).Maps as Tools of Settler ColonialismIn order to highlight how these art practices enact a kind of (re)mapping that breaks through the veneer of colonial permanence, we first need to consider the way mapping transforms land into property in the service of Indigenous erasure and land dispossession. In her address, Goeman offers a short history of what is now called Los Angeles through the lens of dispossession that occurs through "international claiming of property and burgeoning US property law" ("Caring for Landscapes" 53). Tovaangar was divided into Spanish (and [End Page 64] then Mexican) land grants that, after 1846, were "registered under the US as property" (Goeman, "Caring for Landscapes" 53; emphasis added). The Land Act of 1851 "established the domestication of the California landscape under US governance" by legitimating existing Mexican land rights and mapping out territory yet "unclaimed" ("Caring for Landscapes" 54). The mapping of this so-called "unclaimed" territory propelled a violent erasure of California Indians by "establishing new and ongoing commerce centers" ("Caring for Landscapes" 53). Land was transferred into property—as a thing owned—without "the consent of those who … lived on the land since time immemorial, following the settler structure of passing land between Christian nations" ("Caring for Landscapes" 53). By showing how property rights legitimate conquest and violence, Goeman illustrates how mapping has been (and continues to be) an "essential settler-colonial tool to domesticate land in Southern California and propel development" ("Caring for Landscapes" 54). While she demonstrates how the mapping of Tovaangar using 493 hand-drawn Diseños maps served to sever Indigenous communities (and their relationships with land, such as the Gabrieliño Tongva with the San Gabriel Mountains), she emphasizes that this is an ongoing process that has not been left in a distant past. Newer maps that may seem more objective and scientific with "better models of scale or a more realist representation" remain, at their core, maps of dispossession ("Caring for Landscapes" 54).The very desire to objectively determine location by assigning latitude and longitude reveals a colonial spatiality, which "territorialize[s] the physical landscape by manufacturing categories and separating land from people" and conceives of space in terms of property logics (Goeman, "[Re]Mapping Indigenous Presence" 296). In addition to Indigenous land dispossession, this colonial spatiality rejects relationality by creating dualist boundaries between human and non-human, in which land is the raw material for human development and the creation of culture. Cherokee philosopher Brian Burkhart speaks of relationality in terms of locality, which he defines as "being-fromthe-land, knowing-from-the-land, and meaning-from-the-land" (Indigenizing Philosophy xvii). The severing of locality can be understood in terms of the transformation of land as relative to inert matter to be acted upon. Mapping serves as a tool of settler colonial erasure insofar as it delocalizes "land as the relational ground of kinship" into "land as a mere object that only has meaning or value in relation to people" ("Indigenizing Philosophy... (shrink)

Utilizing social semiotic approaches, this article addresses how genetic researchers’ organizing narratives have involved extensive ontological and epistemological violence in their objectification Karitiana Indigenous people of Western Brazil. The paper analyses how genetic researchers have represented the Karitiana in the US and Canadian courts, post-9/11 forensic identification technology development, and patents. It also considers disputes over the sale of Karitiana cell lines by the US National Institutes of Health-funded Coriell Cell Repositories. These case studies reveal how the prominent population (...) geneticist Kenneth K. Kidd of Yale University and other genetics researchers have constituted the Karitiana as Extreme Other; liminal figures who define the boundaries of humanity. Originally sampled in 1987 by a Yale University epidemiologist, forensic genetic researchers have since utilized Karitiana cell lines to metonymically represent the Karitiana. The practices of objectification have imposed a genetically distinct special status upon the Karitiana that restricts recognition of their self-determination, rights and dignity, and which imposes onerous obligations to serve as research objects for the greater good of Humanity. The Karitiana are included as biological labour, but excluded from decision-making or asserting any other claims. Scientists have organized and maintained biotechnologically-mediated colonial relationships in which they and their institutions extract nearly all immediate and tangible benefits. The fusing of genetic research’s ontological and epistemological violence with the violence of state legal institutions raises important questions about the scope and practices of sovereignty, particularly in determining and enforcing states of exception through violence. (shrink)

This article tries to explain why it was impossible for Rawls to develop a normative theory of justice for international relations; something that has been demanded by some rawlsian thinkers (Beitz, Pogge, etc.). There were two obstacles for such an enterprise. On one hand, the link established by the philosophical tradition between justice, as a political virtue, and the political unity (polis, national-state, etc.). On the other hand, Rawls’ meta-philosophical decisions, which make his a ‘post-metaphysical’ and ‘strictly political’ theory (...) of justice. (shrink)

This paper explores a colonial controversy: the imposition of state rules to limit salmon fishing in a Scandinavian subarctic river. These rules reflect biological fish population models intended to preserve salmon populations, but this river has also been fished for centuries by indigenous Sámi people who have their own different practices and knowledges of the river and salmon. In theory, the Norwegian state recognizes traditional ecological knowledge and includes this in its biological assessments, but in practice this does (...) not happen, so Sámi fishing practices and the realities that they enact are disappearing. This paper explores how to conceptualize colonial differences in knowing. Drawing on recent anthropology, it asks how “settler” and “nomadic” enact worlds and their realities, suggesting that, unlike the latter, the former create a single reality intolerant of alternatives. The focus is thus on a “politics of how” and the ways in which colonial realities and knowledges might intersect less destructively. (shrink)

This special issue is the outcome of a collaborative venture – a three-day workshop between La Trobe University and Ateneo de Manila University, held in Manila. It brought together indigenous and non-indigenous researchers from both the Philippines and Australia and included aboriginal researchers in business studies, history, literature and anthropology, and non-indigenous researchers working on themes of indigenous history, material culture, film studies, literature, the visual arts, law and linguistics. The ‘indigenous’ peoples of the Philippines (...) are very different to Australian Aborigines or Torres Strait Islanders. Nevertheless, they have common quests for political autonomy, protection of indigenous customary laws, traditions and knowledge, biodiversity, and development of independent self-governance structures for health, education and community development. These concerns involve analogous and overlapping political struggles with nation-states and in the forums of the UN, regional associations, global consortia, and the international courts. The papers in this issue are based on a roundtable in which the participants showcased their own research projects and interests on indigenous pathways, cultural pluralism and national identities; socio-economic development; and representation of indigenous identities in creative and visual arts. (shrink)

This article examines the social development of Hong Kong's cultural and national identity since its return from the UK to the People's Republic of China nearly six years ago, focusing on the extent to which Hong Kong students are now inculcated in traditional Chinese music and express their devotion to the PRC through singing the national anthem. Hong Kong music teachers experience conflicts concerning their roles as music teachers and as purveyors of values education. These observations raise fundamental questions (...) concerning the sociopolitical function of values education in the music classroom. (shrink)

This syllabus engages dialogue about indigenous philosophical ideas and issues that frame contemporary global indigenous thought, perspective, and worldview. We explore how presuppositions of indigenous philosophy, including epistemology (how/what we know), metaphysics (what is), science (stories), and ethics (practices), affect global research programs, intellectual cultural property, economic policies, ecology, biodiversity, taxonomy, health, housing, food, employment, economic sustainability, peace negotiations, climate justice, human/treaty rights, colonial law, refugees and incarceration, self-determination, sovereignty, nation building, and digital information. Readings provide an (...) understanding of traditional and contemporary indigenous philosophical frameworks of interpretation, developments of the 1994-2004 United Nations Decade of Indigenous Peoples, the UN Permanent Forum of Indigenous Peoples, and the recent Indigenous Conference in Cancun (philosophical importance of the World Trade Organization [WTO], the World Bank [WB], the International Monetary Fund [IMF], and NAFTA). (shrink)

Aboriginal Australians have traditionally enjoyed little protection from the law. The matter of land has been at the heart of white settler/Aboriginal relations since the nation was first founded. It is only recently that recognition has been given to the land rights of Australian indigenous people. This recognition was finally made at the property law level in 1992 through the High Court decision in Mabo v. Queensland (n. 2) ([1992] 175 CLR 1). The 1993 High Court decision in The (...) Wik Peoples v. Queensland ([1996] 71 ALJR 173) reinforced that recognition. It did so through the principle that pastoral lessees' and native title holders' rights might co‐exist except that, in the event of any inconsistency, the pastoralists' rights were to prevail, provided pastoral activity was being pursued. The most recent legal change is the parliamentary revision of the Native Title Act so that the Wik co‐existence principle was put to rest, mainly through permitting the State governments to upgrade pastoral holdings to a form of freehold, thus immunising them from native title claims, and minimising the payment of compensation. In this paper we argue that the country must consider what has been lost in this about‐turn from the recognition of native title to land in Mabo. We argue that the nation must consider the emphases in the Mabo judgments upon the significance of international law and the need for the common law not to be locked into a racist past. From that point, we contend for the need to recognise not only native title to land but what lies beyond that: indigenous political and human rights. (shrink)

Resource extraction companies worldwide are involved with Indigenous peoples. Historically these interactions have been antagonistic, yet there is a growing public expectation for improved ethical performance of resource industries to engage with Indigenous peoples. (Crawley and Sinclair, Journal of Business Ethics 45, 361–373 (2003)) proposed an ethical model for human resource practices with Indigenous peoples in Australian mining companies. This paper expands on this work by re-framing the discussion within the context of sustainable development, extending it to (...) Canada, and generalizing to other resource industries. We argue that it is unethical to sacrifice the viability of Indigenous cultures for industrial resource extraction; it is ethical to engage with indigenous peoples in a manner consistent with their wishes and needs as they perceive them. We apply these ideas to a case study in the coastal temperate rainforest of Clayoquot Sound, British Columbia, Canada. In this case a scientific panel comprised of Nuu-Chah-Nulth elders, forest scientists and management professionals, achieved full consensus on developing sustainable forest practice standards by drawing equally on Indigenous traditional ecological knowledge and Western science in the context of one of the most heated and protracted environmental conflicts in Canadian history. The resulting sustainable forest practice standards were later adopted by leading forestry firms operating on the coast. Our analysis of this scientific panels success provides the basis for advancing an ethical approach to sustainable development with Indigenous peoples. This ethical approach is applicable to companies working in natural resource industries where the territories of Indigenous peoples are involved. (shrink)

The continuing existence and operation of the traditional law of Aboriginal and Torres Strait Islander peoples has – relatively recently – been explicitly acknowledged in Australian law. In emerging case law on the subject, the High Court of Australia has confirmed the common law recognition of the survival of Indigenous Australian law. However, in determining what it is that is recognized by the common law – in interpreting Indigenous Australian ‘traditional laws and customs’ – the (...) High Court has disregarded the knowledge reposed in those with authority or expertise in Indigenous Australian law, relying instead upon concepts and assumptions from the jurisprudence of English legal philosopher, HLA Hart. The influence of Hart’s theory in the Australian High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’ is problematic, because it contains an obvious pre-legal–legal dualism reminiscent of the ‘state of nature’ – ‘civil society’ mechanism that was instrumental in the application of terra nullius to Australia. At the heart of The Concept of Law lies the notion of progression from a ‘primitive community’ with only primary rules, to an advanced legal system with a combination of both primary and secondary rules. In this article, I investigate how Indigenous Australians are positioned in relation to Hart’s pre-legal–legal dualism. I examine the ‘primitive’, pre-legal society in The Concept of Law, and its counterpart, the advanced legal system, to analyze the position of Indigenous Australian societies and law in Hart’s scheme. Finally, I analyze the construction of the dualism and consider its impact on the High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’. (shrink)

BackgroundAfrica continues to bear a disproportionate share of the global HIV/AIDS, tuberculosis (TB) and malaria burden. The development and distribution of safe, effective and affordable vaccines is critical to reduce these epidemics. However, conducting HIV/AIDS, TB, and/or malaria vaccine trials simultaneously in developing countries, or in populations affected by all three diseases, is likely to result in numerous ethical challenges.MethodsIn order to explore convergent ethical issues in HIV/AIDS, TB and malaria vaccine trials in Africa, the Ethics, Law and Human Rights (...) Collaborating Centre of the WHO/UNAIDS African AIDS Vaccine Programme hosted a consultation on the Convergent Ethical Issues in HIV/AIDS, TB and Malaria Vaccine Trials in Africa in Durban, South Africa on the 10-11 February 2009.ResultsKey cross cutting ethical issues were prioritized during the consultation as community engagement; ancillary care obligations; care and treatment; informed consent; and resource sharing.ConclusionThe consultation revealed that while there have been few attempts to find convergence on ethical issues between HIV/AIDS, TB and malaria vaccine trial fields to date, there is much common ground and scope for convergence work between stakeholders in the three fields. (shrink)

Trade treaties and legal agreements generally left Indigenous peoples and colonized communities out of negotiations that directly impacted them. Using Critical Discourse Analysis, informed by decolonial thinking and Nishnaabeg epistemology, this research study analyzed the language of five public documents, published by the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO), surrounding the protection of Traditional Knowledge (TK) through the _sui generis_ legal figure and its connection to the development of digitization TK. As TK is (...) largely uncommodifiable, the ability to identify and protect TK through Intellectual Property Rights within the WIPO and the WTO is encumbered. The research analyzed and explored how language and knowledge shape policy and ideology against historically marginalized people and communities through discourse enacted by the WIPO and the WTO. (shrink)

According to the traditional textbook account, the coming into existence of States is a fact, depending on the realization of effective government over territory and people. Against this background, the present contribution argues that while the formation of States is a predominately fact-based phenomenon, it is not limited to a mere test of effectiveness. The formation of States has always incorporated elements of legitimacy and even more so by virtue of the development of international law in the wake (...) of World War II. Issues of legitimacy become relevant in particular in extreme situations, i.e. in the event that the foundational principles of the contemporary international legal order as manifested in the concept of peremptory norms of general international law are at stake. (shrink)

The right of Australian Indigenous groups to own traditional lands has been a contentious issue in the recent history of Australia. Indeed, Aborigines and Torres Strait Islanders did not consider themselves as full citizens in the country they had inhabited for millennia until the late 1960s, and then only after a long campaign and a national referendum (1967) in favour of changes to the Australian Constitution to remove restrictions on the services available to Indigenous Australians. The concept (...) of terra nullius, misapplied to Australia, was strong in the popular imagination among the descendants of settlers or recent migrants and was not definitively put to rest until the Mabo decision (1992), which also established a firm precedent for the recognition of native title.This path to equality was fraught and made lengthy by the fact that the worldviews of the Indigenous Australians (i.e. Aborigines and Torres Strait Islanders) and the European (mainly British and Irish) settlers were so different, at least at a superficial level, this being the level at which prejudice is typically manifested. One area where this fact is particularly evident is in the area of the conceptualisation of property and especially the notion of land “ownership” and “use”.In this paper, we will focus on these terms, examining the linguistic evidence of some of the Australian languages spoken traditionally by Indigenous Australians as one means (the only one in many cases) of gaining an insight into their worldview, comparing it with that underlying the English language.We will show that the conceptualisations manifested in the two languages are contrasting but not irreconcilable, and indeed the ability of both groups of speakers (or their descendants in the case of many endangered Australian languages) to reach agreement and come to develop an understanding of the other’s perspective is reason for celebration for all Australians. (shrink)

North America and New Zealand were colonized by England under an international legal principle that is known today as the Doctrine of Discovery. When Europeans set out to explore and exploit new lands in the fifteenth through the twentieth centuries, they justified their sovereign and property claims over these territories and the Indigenous people with the Discovery Doctrine. This legal principle was justified by religious and ethnocentric ideas of European and Christian superiority over the other cultures, religions, and (...) races of the world. The Doctrine provided that newly-arrived Europeans automatically acquired property rights in the lands of Native people and gained political and commercial rights over the inhabitants. England was an avid supporter of the Doctrine and used it around the world. The English colonial governments and colonists in New Zealand and America, and later the American state and federal governments and New Zealand governments, all utilized Discovery and still use it today to exercise legal rights to Native lands and to control their Indigenous people. In this article, the authors, an American Indian and a New Zealand Maori, use a comparative law methodology to trace and compare the legal and historical application of Discovery in both countries. The evidence uncovered helps to explain the current state of United States Indian law and the New Zealand law relating to Maoris. While the countries did not apply the elements of Discovery in the exact same manner, and at the same time periods, the similarities of their use of Discovery are striking and not the least bit surprising since the Doctrine was English law. Viewing American and New Zealand history in light of the international law Doctrine of Discovery helps to expand one's knowledge of both countries and their Indigenous peoples. (shrink)

This series of three articles describes the history of land law shared by the British and American legal systems, and how and why these legal traditions have diverged from each other in modern times. This Article - part 1 in this series - describes the emerging customs and laws regarding land rights among early inhabitants of Britain, and how succeeding invasions and occupation by Celtic, Roman, Germanic, and Norman peoples altered these customs and laws. The Article details the profound changes (...) in land law worked by massive economic changes in early British society, including sociological occurrences such as the Black Death, and the adoption of laws, such as the Statute of Uses in 1536. (shrink)

Historically, culture has been treated as an object in international documents. One consequence of this is that cultural rights in international law have been understood as rights of access and consumption. Recently, an alternative conception of culture, and of what cultural rights protect, has emerged from international documents treating indigenous peoples. Within these documents culture is treated as an activity rather than a good. This activity is ascribed to peoples as well as persons, and protecting the (...) capacity of both peoples and persons to engage in culture is taken to be as basic a component of human dignity as are freedom of movement, freedom of speech, and freedom from torture. It is not an accident that this treatment of culture has emerged from international documents treating indigenous peoples. However, the value of this treatment of culture extends beyond the human rights of indigenous peoples. Treating culture as an activity establishes an understanding of what cultural rights protect that clarifies the relationship between cultural rights and other mechanisms for protecting minorities and frames the role of cultural communities in the realization of human dignity as an important physical and political issue, not just a psychological one. For these reasons, the norms regarding cultural rights that are emerging from international documents treating indigenous peoples are a much-needed step forward for peoples' rights more generally. (shrink)

Mythology about Africa still persists. It served colonial interests to portray African natives as "savages" with no history and their indigenous institutions as "backward and primitive." Therefore, colonialism was "good" for them as it "civilized" them and freed them from their "terrible and despotic" traditional rulers. Of course, much of this mythology has been tossed into the trash bin. African natives not only had history but also viable traditional institutions which enabled them to survive through the centuries. (...) Ghana, Mali, Songhai and Great Zimbabwe were empires they built that lasted for centuries. Nor were their rulers terrible and despotic. Chiefs and kings were held accountable at all times and removed from office for dereliction of duty-not after every four or so years. However, mythology about Africa still persists-this time among Africa's own post colonial leaders! Believing that African natives had no history, no viable institutions, and no knowledge of such concepts as "democracy," "accountability" and "rule of law," the post colonial leadership imposed on their people alien systems and ideologies that have led to the ruination of Africa. The continent is littered with the putrid carcasses of these imported systems. Sankofa is the only route to take for Africa's salvation. The solutions needed to extricate Africa from its current economic malaise and political miasma are already embedded in its own traditional institutions and heritage. And the leadership should just "go back and get them.". (shrink)

This book examines the concepts of international law and international relations as they are developed in the social and political philosophy of G.W.F. Hegel. Hegel has a vision of a single modern social world, in which peoples and nation-states can co-exist under conditions of peace, justice, mutual respect, and prosperity.

Despite the United Nations Declaration of the Rights of Indigenous Peoples, assimilationist policies continue, whether official or effective. Such policies affect more than the right to group choice. The concern is whether indeed genocide or “only” ethnocide (or culturecide)—the elimination of a traditional culture—is at work. Discussions of the distinction between the two terms have been inconsistent enough that at least one commentator has declared that they cannot be used in analytical contexts. While these terms, I contend, have (...) distinct senses, yet in cases of governmental and other institutional assimilationist policy for indigenous peoples, such ethnocide effectively entails genocide. Insofar as any people’s cultural practices and beliefs are essential for life and health, individuals in groups value, if tacitly, their culture as highly as their language or any artifact: Thus, attempts to eradicate a culture through assimilation in fact eradicate individuals’ lives and health and so are effectively murderous. Acknowledgement by worldwide organizations that assimilationist ethnocide is effectively genocide should affect policy concerning indigenous peoples and thus has significance for international law. (shrink)

Much of the debate around requirements for the free, prior, and informed consent of indigenous peoples has focused on enabling indigenous communities to participate in various forms of democratic decision-making alongside the state and other actors. Against this backdrop, this article sets out to defend three claims. The first two of these claims are conceptual in nature: (i) Giving (collective) consent and participating in the making of (collective) decisions are distinct activities; (ii) Despite some scepticism, there is a (...) coherent conception of collective consent available to us, continuous with the notion of individual consent familiar from discussions in medical and sexual ethics. The third claim is normative: (iii) Participants in debates about free, prior, and informed consent must keep this distinction in view. That is because a group’s ability to give or withhold consent, and not only participate in making decisions, will play an important role in realising that collectives’ right to self-determination. (shrink)

International economic law is peculiar. It claims universal character, yet eschews engagement with many, if not all, the racialised features of the global political economy. Its scholars mostly ignore imperialism, colonialism, and capitalism; they exclude slavery, predation, and racism altogether. In the following article, we draw upon Walter Rodney’s dialectics of development to offer a racial capitalist critique of international economic law. The disciplinary boundaries and operative logic normalised by its denizens corral us in a white, Eurocentric episteme. (...) Ahistoricism, decontextualisation, and externalisation are three epistemic devices at the forefront of the exclusionary discourse of IEL. In this space, the histories and epistemologies of Black peoples are ghettoised, treated as alien to the framework. After identifying this bias, we use the Black Radical Tradition to evaluate IEL’s amenability to the racial capitalism critique. (shrink)

Background Many indigenous people have died or been harmed because of inadequately monitored research. Strong regulations in Human Research Ethics (HRE) are required to address these injustices and to ensure that peoples’ participation in health research is safe. Indigenous peoples advocate that research that respects indigenous principles can contribute to addressing their health inequities. This scoping literature review aims to analyze existing peer reviewed and grey literature to explore how indigenous values and principles from countries of (...) Oceania are incorporated into HRE and the governance of research involving human participants. Methods A scoping literature review framework was used for this study. A search for peer reviewed and grey literature from Google, bibliographies, and electronic databases such as SCOPUS, SPRINGER, Medline (Ovid) and JBI Database of Systematic Reviews was conducted, limited to the years 2002–2020. Sixty (60) documents that focused on indigenous knowledge from Oceania region and HRE were included, from which key findings and themes were synthesized. Results Charting the data showed that more than half the eligible documents were peer-reviewed journal articles (54%). Other sources included: International Declarations on Human Research (8%); book chapters (8%); government documents (8%); HRE Guidelines or protocols (13%); news articles (7%) and PhD thesis (2%). The literature was from Australia, Cook Islands, Guam, New Zealand, Fiji, Samoa, Tonga and Vanuatu, some of which focused specifically on HREs in the Pacific Region. Issues emerging from the literature were grouped into five themes (i) indigenous and cultural principles of HRE; (ii) informed consent in indigenous settings in Oceania; (iii) vulnerability and minority status of indigenous populations exploited for research; (iv) research ethics governance for Oceania indigenous peoples; and (v) research ethics committees in Oceania. Respect, relationship building, and trust were priority indigenous HRE principles that encompass the principles of partnership, capacity building, reciprocity, and equality. Relationship building and trust imply the equal distribution of benefits for indigenous population and researchers. Conclusion Indigenous principles of HRE identified were interconnected and interdependent. Recommendations were to incorporate indigenous principles of research in HRE regulations and processes of all countries with indigenous populations. This is especially pertinent for emerging national research committees in LMIC countries, including Fiji and Tonga. Relationship building among researchers and indigenous populations is key to successful research with indigenous populations. HRE principles important for relationship building include respect that is reciprocal among researchers and indigenous people. Elements of the principle of respect highlighted are empathy, collaboration, sharing of benefits, reciprocity, appreciation, empowerment, protection, safety and awareness of culture and languages. Indigenous ontology from the Oceania region involves spirituality, connectedness to land, religious beliefs and a participatory approach to HRE and should be respected in research. An ethical governance mechanism of HRE is one that incorporates indigenous principles and applications for the purpose of maximizing the protection of the dignity and rights of indigenous peoples of Oceania. (shrink)

According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role (...) in international law is a contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but important role for actual consent in legitimating international law. While actual consent is not necessary for justifying the enforcement of jus cogens norms, at least when they are narrowly understood, this leaves much of international law unaccounted for. By drawing on a Lockean social contract account, I show how, given the ways that international cooperation is different from cooperation in the domestic sphere, actual consent is both a possible and an appropriate legitimating device for much of international law. (shrink)

The 1970s and 1980s meant an ethnic politicization of the indigenous movement in Ecuador, until this moment defined largely as a class-based movement of indigenous peasants. The indigenous organizations started to conceptualize indigenous peoples as nationalities with their own economic, social, cultural and legal structures and therefore with the right to autonomy and self-determination. Based on this conceptualization, the movement developed demands for a pluralist reform of state and society in order to install a plurinational state (...) with wide degrees of autonomy and participation for indigenous nationalities. A part of those demands was the double strategy to fight for legal pluralism while already installing it at the local level. Even if some degrees of legal pluralism have been recognized in Ecuador since the mid-1990s, in practice, the local de facto practice prevails until today. Another central part of the demand for plurinationality is the representation of indigenous peoples in the legislative organs of the state, developing since their first appearance in the 1940s in a complex way. This article will analyze the development of right-based demands within the discourse of the indigenous movement in Ecuador, the visions of the implied state-reform and the organizational and political background and implication they have. Based on an analysis of the central texts of the indigenous organizations, conceptualizations of rights and laws and their appropriation within an autonomist discourse and a local practice will be highlighted. (shrink)

This article contends that the environmental release of genetically engineered (GE) animals with heritable traits that are patented will present a challenge to the efforts of nations and indigenous peoples to engage in self‐determination. The environmental release of such animals has been proposed on the grounds that they could function as public health tools or as solutions to the problem of agricultural insect pests. This article brings into focus two political‐economic‐legal problems that would arise with the environmental release of (...) such organisms. To address those challenges, it is proposed that nations considering the environmental release of GE animals must take into account the underlying circumstances and policy failures that motivate arguments for the use of the modified animals. Moreover, countries must recognize that the UN International Covenant on Civil and Political Rights and the UN International Covenant on Economic, Social and Cultural Rights place on them an obligation to ensure that GE animals with patented heritable traits are not released without the substantive consent of the nations or indigenous peoples that could be affected. (shrink)

ABSTRACT The Plurinational Constitutional Court is the final arbiter of legal disputes involving the interpretation and application of the Political Constitution of the Plurinational State of Bolivia (2009) (BC). Its role is especially important given that the BC follows a type of decolonial ‘hybrid’ constitutional model that incorporates the Indigenous concept of Vivir Bien (VB) as part of their legal paradigm. Using tools from Case Law Analysis and Critical Discourse Analysis, this article explores the Court’s judicial interpretation and application (...) of VB and its principles to a legal dispute regarding Indigenous Peoples’ constitutional right to be consulted over government measures impacting their ancestral territories. The results indicate that the judges would foreground and background different aspects of the VB principles to support their views, resorting to their use in a hierarchical form that is not mandated in the BC. This shows a gap between formal incorporation and the practical application of the VB principles. This research informs the fields of legal studies, decolonial thought, and discourse studies. (shrink)

The present paper examines conventional wisdom on the subject of the justification of indigenous peoples' intellectual property rights, and offers an alternative approach. The examination is achieved by a critique of two such conventional approaches in terms of the strength of each argument employed, and in terms of the efficacy of each in the roles allotted to them. The first such argument is Stenson and Gray's application of Kymlicka's individualist theory advocating national minority autonomy. The second argument is the (...) labour entitlement theory of property acquisition, as advanced by Locke and Nozick. These theories only explain how a liberal social contract theorist would construct justifications from the outside. That this is inadequate is shown by reference to a case study involving indigenous claims against Australian law based on indigenous customary law. There, appeals are not made to abstract theory, but to tribal imperative. This observation finds sympathetic support in a reading of Hegel's philosophy of history. Hegel finds spirit in all peoples at all times. To Hegel, non-state peoples are developmentally prior to states; this means that states have developed dialectically from such peoples and cannot therefore deny them without self-contradiction. This places an onus upon a state that has subsumed an indigenous people to accommodate its laws and ways. (shrink)