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Indigenous Recognition in International Law: Theoretical Observations Michigan Journal of International Law Volume 30 Issue 1 2008 Indigenous Recognition in International Law: Theoretical Observations Patrick Macklem University of Toronto Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Indian and Aboriginal Law Commons, and the International Law Commons Recommended Citation Patrick Macklem, Indigenous Recognition in International Law: Theoretical Observations, 30 MICH. J. INT'L L. 177 (2008). Available at: https://repository.law.umich.edu/mjil/vol30/iss1/3 This Essay is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. ESSAY INDIGENOUS RECOGNITION IN INTERNATIONAL LAW: THEORETICAL OBSERVATIONS PatrickMacklem * At the height of the Second World War, Hans Kelsen, one of the world's leading proponents of the view that there exists a sharp distinc- tion between politics and law, published an essay entitled "Recognition in International Law: Theoretical Observations" in The American Jour- nal of International Law.' What Kelsen meant by recognition was the recognition of a State and its government in international law. In classic Kelsenian fashion, he argued that "the term 'recognition' may be said to be comprised of two quite distinct acts: a political act and a legal act. ' Political recognition, such as the establishment of diplomatic relations, means that the recognizing State is willing to enter into a political rela- tionship with the recognized community. But this willingness, even if reciprocal, does not turn the community in question into a State in inter- national law. In contrast, legal recognition is constitutive of statehood. It is a legal conclusion-Kelsen calls it "the establishment of a fact"'-that a community meets international legal requirements of statehood. Ac- cording to Kelsen, "by the legal act of recognition the recognized community is brought into legal existence in relation to the recognizing [S]tate, and thereby international law becomes applicable to the relations between these [S]tates."' Contemporary accounts of recognition in international law treat rec- ognition in declaratory terms, as an act by one State that affirms the legal * William C. Graham Professor of Law, University of Toronto; Louise and John Steffens Member, Institute for Advanced Study (2007-08). 1. Hans Kelsen, Recognition in InternationalLaw: Theoretical Observations, 35 AM. J. INT'L L. 605 (1941). Kelsen's article sparked a lively debate. See Edwin Borchard, Recogni- tion and Non-Recognition, 36 AM. J. INT'L L. 108 (1942); Herbert W. Briggs, Recognition of States: Some Reflections on Doctrine and Practice, 43 AM. J. INT'L L. 113 (1949); Philip M. Brown, The Effects of Recognition, 36 AM. J. INT'L L. 106 (1942). 2. Kelsen, supra note 1, at 605. 3. Id. at 607. 4. Id. at 609. One of Kelsen's contemporaries, Hersch Lauterpacht, argued in 1948 that the constitutive account yields recognitional rights and duties. See HERSCH LAUTER- PACHT, RECOGNITION IN INTERNATIONAL LAW (1948); see also TI-CHIANG CHEN, THE INTERNATIONAL LAW OF RECOGNITION: WITH SPECIAL REFERENCE TO PRACTICE IN GREAT BRITAIN AND THE UNITED STATES (L.C. Green ed., 1951) (giving a declaratory account of recognition in international law that includes recognitional rights and duties); Josef L. Kunz, Critical Remarks on Lauterpacht's "Recognition in InternationalLaw", 44 AM. J. INT'L L. 713 (1950) (critiquing Lauterpacht's thesis). Michigan Journalof InternationalLaw [Vol. 30:177 existence of another State.5 On a declaratory account, whether a State exists in international law does not turn on whether other States recog- nize it as a State; instead, it turns on whether it possesses the objective attributes of a State. Despite their differences, what declaratory and con- stitutive accounts of recognition share is the insight, eloquently articulated by Kelsen in 1941, that international law itself supplies the criteria for determining the international legal existence of a State. This insight assumes renewed relevance in light of the fact that international law increasingly structures and regulates relations between States and individuals and groups. Numerous international legal instruments as- sume that individuals belong to certain communities. In some circumstances, communities themselves exist in international law-not as States, but as international legal actors in their own right.6 In Kel- senian terms, what criteria does international law provide to determine the legal existence of a community that is legally distinct from the State in which it is located? This Essay addresses this question in the context of the evolving status of indigenous peoples in international law. International instru- ments vest rights in indigenous peoples, and establish indigenous peoples as international legal actors to whom States and other interna- tional legal actors owe legal duties and obligations. These developments began between the First and Second World Wars, when the International Labour Organization (ILO) began to supervise indigenous working con- ditions in colonies. They continued after the Second World War with ILO Conventions No. 107 and 169, which vested rights in indigenous populations located in States that are a party to their terms. More re- cently, the U.N. General Assembly enacted the Declaration on the Rights 5. See, e.g., Opinion No. 1 of the Arbitration Commission of the Peace Conference on Yugoslavia (Nov. 29, 1991), reprinted in 31 I.L.M. 1494, 1495 (1992) ("[T]he existence or disappearance of the State is a question of fact; that the effects of recognition by other States are purely declaratory."). See generally JAMES CRAWFORD, THE CREATION OF STATES IN IN- TERNATIONAL LAW 1-28 (2d ed. 2006) (detailing a comprehensive overview of the debate). 6. International organizations also possess the capacity to acquire international legal personality. See Reparation for Injuries Suffered in the Service of the United Nations, Advi- sory Opinion, 1949 I.C.J. 174, 179 (Apr. 11) ("[The United Nations] is a subject of international law and capable of possessing international rights and duties, and ... it has ca- pacity to maintain its rights by bringing international claims."). 7. International Labour Organization (ILO), Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), June 27, 1989, 1650 U.N.T.S. 383, reprinted in 3 INT'L LABOUR ORG., INTERNATIONAL LABOUR CONVENTIONS AND RECOM- MENDATIONS, 1977-1995 324-36 (1996) [hereinafter Convention No. 169]; ILO, Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (ILO No. 107), June 26, 1957, 328 U.N.T.S. 247, re- printed in 2 INT'L LABOUR ORG., INTERNATIONAL LABOUR CONVENTIONS AND RECOMMENDATIONS, 1952-1976 99-108 (1996) [hereinafter Convention No. 107]. Fall 20081 Indigenous Recognition in InternationalLaw of Indigenous Peoples,8 which declares that indigenous peoples possess a wide array of rights, including the right to self-determination. It affirms the international legal existence of indigenous peoples by recognizing them as legal subjects, and it renders international law applicable to their relations with States. Some of these international instruments, such as conventions adopted by the ILO, legally bind States that are a party to their terms. Others, like the U.N. Declaration, do not, strictly speaking, legally bind international legal actors, but they nonetheless have diffuse legal consequences for the development of both international and domes- tic law. If state recognition may be said to be "comprised of two quite dis- tinct acts: a political act and a legal act,"9 what legal act of recognition brings indigenous peoples into existence in international law? What cri- teria does international law provide to determine the international legal existence of indigenous peoples? Some international legal instruments provide guidance on what constitutes an indigenous population or peo- ple, but they are not explicit about what constitutes its international legal status.' ° Others, such as the U.N. Declaration on the Rights of Indige- nous Peoples, specify no criteria for determining whether a community constitutes an indigenous people in international law. In this Essay, I ar- gue that questions regarding indigenous recognition in international law ought to be approached in light of the nature and purpose of international indigenous rights. Indigenous rights in international law mitigate some of the adverse consequences of how the international legal order contin- ues to validate what were morally suspect colonization projects by imperial powers. Indigenous peoples in international law are communi- ties that manifest historical continuity with societies that occupied and governed territories prior to European contact and colonization. They are located in States whose claims of sovereign power possess legal validity because of an international legal refusal to recognize these peoples and their ancestors as sovereign actors. What constitutes indigenous peoples as international legal actors, in other words, is the structure and opera- tion of international law itself. I develop these claims by engaging with several issues
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