Intersections of indigenous peoples with international law (IL) and politics can be examined through a variety of lenses.
The focus here is on human rights and international political-economy.
Nation-state legal systems exist in a dynamic relationship with international law, marked by overlap and tension. Each
state system has a distinct relationship to international law and each state is responsible for applying international law
within its legal system. In this sense, the nation-state system is the institutional infrastructure of IL.
Indigenous peoples -- as identifiable groups with common histories, languages, cultures, and forms of sovereignty -- long
predate nation-states and their systems of laws; nevertheless, state laws and politics have historically been used to subsume,
defeat, and subjugate these peoples. United States history, for example, shows that the sovereignty of indigenous peoples
was subsumed within nation-state sovereignty through military enforcement of U.S. legal doctrines that denied full international
status to indigenous peoples.
Indigenous peoples are increasingly challenging the exclusivity of the nation-state system in IL, asserting their own sovereignty
as a basis for inclusion. They reject the status of "wards" of nation-states and other forms of subjugation to state political
processes. These conflicts are articulated directly in IL arenas and in state legal and political systems. As sovereignty
is reconstructed by indigenous peoples relative to their nation-state antagonists, they intend to become full participants
in IL.
Treaties between indigenous peoples and nation-states lend support to the contention that indigenous peoples are legitimate
participants in IL. Many indigenous peoples subsumed within the United States are attempting to reassert the political and
legal status quo that existed when the U.S. Congress ratified treaties with them.
Indigenous peoples also exert political pressures within state law systems -- invoking principles such as equality, fairness,
due process, contract, and treaty enforcement to support their positions. In some instances, this has the effect of placing
indigenous peoples inside state law systems for some purposes, while for other purposes they insist on independence from the
state.
International organizations, most notably the United Nations and the International Labor Organization, are
the major IL arenas where indigenous peoples voices are heard. Treaties, resolutions, conventions, and declarations of these
bodies are vehicles for bringing indigenous issues to the fore, largely through the discourse of human rights. For instance,
the UN Commission on Human Rights and its efforts regarding the Draft Declaration of the Rights of Indigenous Peoples
have provided a venue for discussing a variety of indigenous peoples' issues.
Though there are relatively few agreements by way of treaty or custom which definitively support the independent legal
and political status of indigenous peoples, discussion of proposals brings together nation-state representatives and indigenous
peoples to discuss policies and specific conflicts. It is widely believed that raising indigenous peoples' issues in such
arenas is significant, because persistent articulation of indigenous peoples' views -- of self determination, cultural integrity,
territorial connections and possession, rule of law with due process, and a deliberative political process with rights of
participation -- builds political consciousness, focuses attention on existing treaty provisions, and tends toward the emergence
of new customary norms of international behavior.
Political-economy is a major arena of conflict and struggle for indigenous peoples. Economic "development" is a hallmark
of international discourse. Development theory, critiqued as biased toward western interpretations of "progress," has been
incorporated into theories of economic "globalization" and "free trade." These theories and the international market politics
which surround them put indigenous peoples at risk.
Indigenous peoples are often left out of general economic development, or, more importantly, are further subjugated because
of it. "Open markets" translates to open borders, where capital investment and extractive economics may enter formerly isolated
regions, disrupting and destroying indigenous subsistence economies in the process. Resource extraction -- from crude oil
and ores to food crops and genetic materials -- is the aim of "development" in such places. International enforcement of "free
trade" -- by nation-states and their corporate partners -- erases the possibility for domestic and local protection of land
and other resources that the global economy seeks to exploit.
