Chapter in The Max Planck Encyclopedia of Public International Law (Wolfrum ed. 2012)

Indigenous Peoples

Benedict Kingsbury

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1. Indigenous peoples issues have increasingly been articulated in the language of law and legal rights, and addressed through legal institutions, in a process of juridification that has intensified rapidly since the 1980s (Anaya [2004] and [2009]; Lenzerini; Charters and Stavenhagen). Struggles over the broad approaches and concrete policies of State and international institutions on issues affecting indigenous peoples are framed in the language and concepts of law in an ever more diverse range of places and situations (McHugh; Lenzerini), at times representing not only a new politics of inclusion or recognition or decentralization, but a new self-understanding of State and nation. Claims by indigenous peoples are made with growing frequency to, and adjudicated by, courts and other juridical institutions, in processes which can shape indigenous organization and the self-understanding of indigenous groups (Gover; Charters, Malezer and Tauli- Corpuz). This juridification is highly uneven, and its multivalent consequences may frequently be assessed as equivocal. Grotesque incongruities are frequent, where for example an elegantly juridical process of prior consultation between a mining company and a forest people is conducted during a brief intermission before paramilitary death squads return (Rodríguez-Garavito). The juridical stratum may be isolated from material practice—not simply through conscious disregard, but more fundamentally in many situations where concepts and approaches embodied in legal texts are utterly unknown to the legislators and bureaucrats and local political and community leaders whose actions and powers shape daily life. Yet juridification has been important, in some contexts transformative, and international law and institutions have been and remain a significant venue and driver for this process.

2. This juridification has cemented the proposition that indigenous peoples are → subjects of international law, in a distinctive way. Earlier controversy about this issue was largely resolved by global inter-governmental bodies through adoption and partial implementation of key juridifying texts and institutions specifically recognizing legal rights of indigenous peoples. (These materials have not, however, resolved related questions such as how the practice of indigenous peoples may be relevant to the development of customary international law.) The most important instrument, certainly in terms of its symbolic and ontological significance, is the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly in 2007 (‘UN Declaration’). While the Declaration is of particular importance, in many situations involving indigenous peoples the applicable positive international law derives in substantial part from other legal materials. A full discussion of this topic would thus require extended discussion of materials on the customary international law, general principles, and treaties bearing on human rights, discrimination, war, territory, fisheries, cultural property, development, and many other matters, as well as the institutions, governance dynamics, and major forces and interests affecting them. The present work, however, has a much narrower focus. It begins with a note on the international legal concept of indigenous peoples, then provides an inventory of some of the international legal instruments and institutions principally focused on indigenous peoples issues. It then outlines some of the key legal issues raised in claims by indigenous groups or their members, under five rubrics.