COMMUNITY, LAW, AND JUSTICE: CONFLICT BETWEEN INDIGENOUS PEOPLES' CLAIMS TO SELF-DETERMINATION AND THE TRANSNATIONAL ECONOMIC INTERESTS IN PERU AND CANADA

Elena Cirkovic

A dissertation submitted to the Faculty of Graduate Studies in partial fulfillment of the requirements for the degree of Doctor of Philosophy

Graduate Program in Law Osgoode Hall Law School York University North York, Ontario

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•+• Canada ABSTRACT

This dissertation assesses the doctrine of sovereignty in international law and the manner in which it has defined human rights as forwarded by indigenous peoples, especially through their invocation of the right to 'self-determination.' The starting point of this observation is the argument that the state's role has changed, rather then 'disappeared', in so far as the state has become a facilitator of private investment. In this sense, the constitution of the polity has also created boundaries that regulate private interactions.

This study's analysis will include a proposal for a critique and re-imagining of various communities and their corresponding laws (the sovereign state, community of nations, transnational commercial community, etc.) in such a way so as to displace the absolutism of the state and politics of market economics as the most prevalent consideration in the evaluation of human rights concerns. It is a deconstruction of the totalitarian logic embedded in the creation of community and particular conceptions of communications.

The first chapter looks at the concept of community as an imagined totality and represented through 1) sovereignty and the nation, 2) international community of sovereign nations, or 3) transnational communities representing corporate interests. The second chapter observes the evolution of the principle and right to self-determination in international law and centers on the contemporary sovereignty claims of indigenous peoples. The third chapter discusses principles of indigenous peoples' permanent sovereignty over natural resources and free, prior, and informed consent (FPIC), as well as the complaint procedures for the U.N. Human Rights Committee and Individual Communications under the Optional Protocol to the ICCPR; the Inter-American System and; complaint procedures connected to ILO Conventions. The fourth chapter looks at the cases of domestic legislation surrounding indigenous land rights in Peru and Canada. The fifth chapter examines the questions concerning the nature and parameters of the human, as they are regulated through state and private and corporate interests. It addresses the processes of consultation with indigenous communities and environmental assessments first in Canada, and then Peru, in relation to development and extractive projects.

IV ACKNOWLEDGEMENTS

I would like to thank Professor Allan Hutchinson for agreeing to supervise this project. I am indebted to Professor Obiora Okafor for being a member of my supervisory committee and providing guidance at different stages of my dissertation. I would also like to thank Professor David Szablowski for joining my supervisory committee. I am grateful to Professor Liisa North for being a friend and a teacher along the way. Dr. Dawn Patricia Mills provided me with knowledge, help, and support during my research in British Columbia.

I received financial support for the writing of this dissertation from the Social Sciences and Humanities Research Council of Canada (SSHRC) and the Ontario Graduate Scholarship (OGS). Further financial support was provided by Osgoode Hall Law School through a Harley D. Hallett Graduate Scholarship and the Nathanson Centre on Transnational Human Rights, Crime and Security Fellowship.

Special thanks go to all the people who have helped me shape and realize this project simply through inspiration. This includes my teachers, friends, and people I met during my work, travels, and study. My most heartfelt thanks go to Javier Munarriz for his friendship and all the help with my fieldwork in Peru.

I am grateful for the support of my friend and colleague Gerardo Munarriz for support, guidance, and insight. Dr. Lauren Lydic, friend and colleague, provided me with invaluable commentary and editing especially at the final stages of my work. And finally, thank you for understanding, to Ulas Ayaz.

v TABLE OF CONTENTS

Abstract iv

Acknowledgments v

Introduction 1

Chapter 1 Community, Law, and Justice Introduction 16 I. Community and Plurality 18 A. Communities, communication and law 20 B. Human rights and exclusion 28 II. State-economy nexus, human rights and the environment 36 III. Universality and plurality of international law: historical background 45 A. Francisco de Vitoria and the colonial origins of international law 46 B. Waman Poma de Ayala and the other side of colonialism 59 IV. Conclusion 64

Chapter 2 Indigenous Peoples' Right to Self-Determination in International Law Introduction 66 I. Human Rights and Sovereignty 68 II. Indigenous Rights in Modern International Law 80 III. Self-determination and Statehood 89 IV. Development of Self-determination in International Law 92 A. The Right to Self-determination under the Charter of the United Nations and UN General Assembly Declarations and Resolutions 99 B. The Right to Self-Determination in the 1966 International Covenants 107 C. The definition of 'peoples' entitled to self-determination 109 D. Approaches to the content of self-determination 115 V. Conclusion 121

Chapter 3 Indigenous peoples' right to permanent sovereignty over their lands and resources Introduction 124 I. Indigenous peoples' rights to lands, territories, and resources 127 A. The United Nations instruments 132 B. The Inter-American human rights law 137

VI C. International Labour Organisation 145

II. The Principle of Free, Prior, and Informed Consent 148 A. Inter-American Human Rights Law 151 III. International Complaint Procedures 155 A. The U.N. Human Rights Committee and Individual Communications under the Optional Protocol tothelCCPR 156 B. The Inter-American System 158 C. Complaint Procedures Connected to the ILO Conventions 160 IV. Conclusion 161

Chapter 4 Peru, Canada, and the making of sovereignty Introduction 163 I. Living together: foundations 164 II. The position of 'indigenous' in Peruvian society 167 A. Constitutive violence 168 B. The legal context 173 C. Post Conflict Reconciliation 188 III. Canadian histories and indigenous peoples 197 A. Reconciliation and sovereignty 203 B. Aboriginal Rights and Title in Canada 210 IV. Conclusion 216

Chapter 5 Human Rights, Environment and Economics in Canada and Peru Introduction 218 I. Sovereignty and transnationalism 219 A. Increased privatisation and the role of the state 223 B. Coming together or coming apart: hierarchy or heterarchy in international law 232 C. Human rights, environment, and economic interests 240 II. Consultation and Environmental Impact Assessment in Canada 252 A. Duty to Consult 254 B. Environmental Assessment 264 C. Indigenous Rights and Environmental Concerns in Canada: Brief conclusions 267 III. The case of Peru: Indigenous Peoples and Environmental Concerns 270 A. Situation of indigenous peoples in the provinces of Bagua and Utcubamba 277 B. Indigenous Land Rights 282 C. Environmental Regulation 285 D. Impacts of Canada-Peru Free Trade Agreement

vn on Indigenous Rights and the Environment 287 IV. International and Transnational Framework 290 V. Possibilities for human rights protection? 297 VI. Conclusion 305

Conclusion 310

Bibliography 322

Vlll Introduction

The contemporary conflict between local and indigenous communities,1 state entities, and transnational corporations necessitates rethinking the absolute understanding of human nature, cognition, and reasoning. These conflicts have played out at different levels: local, state, international, and transnational. In the same regions claimed by indigenous peoples, transnational corporations have pursued economic interests autonomously, in collaboration with domestic governments, through Bilateral Investment

Treaties (BITs), or empowered by international treaties and international organizations, such as the North American Free Trade Agreement (NAFTA) or the World Trade

Organisation (WTO).

The international human rights system has recognized individuals and other non- state entities as subjects who would be able to assert their rights before international law in their own capacity. Different human rights bodies have capacities to monitor national governments' respect for human rights and to investigate claims of violations of indigenous rights. However, private agents, such as transnational corporations,

1 I wish to emphasize at the beginning that—for the purposes of my project, which takes into an account the context of contemporary local, national, international, and transnational levels—the concept of indigeneity does not in any way have an a priori content or scope. Moreover, the manner in which indigeneity has been defined and utilized not only by indigenous peoples, but also among others (the state, non-governmental organizations, international financial institutions, and transnational corporations) has revealed that the concept is yet another tool or forum for the contestation of a variety of interests that also exclude or include others, especially those peoples who wish to claim under this category. I use the term 'indigenous', or 'indigenous rights' (as identity-based rights), with caution, recognizing that the terminology in and of itself does not have inherent emancipatory properties.

2 Philip Alston ed., Non-state actors and human rights (Oxford; New York: Oxford University Press, 2005).

3 For instance, The UN Human Rights Committee (UNHRC) and the UN Committee on the Elimination of Racial Discrimination (CERD).

1 frequently have continued to violate the interests protected by constitutional and human rights. At the same time, the enforcing mechanisms of the international human rights bodies have been limited by various factors, including: the primacy of the doctrine of territorial integrity; the enforceability and applicability of human rights norms to non- state actors; or conflicts among the rules of non-intervention and those of state responsibility.

The above described challenge shows that, on one level, we can identify international law's plurality and fragmentation in the emergence of specialized and relatively autonomous legal sub-systems such as "human rights law", "trade law", or

"environmental law"—each with their own principles and institutions. Different sub- disciplines develop and function in certain tension with legislative and institutional activities occurring in their adjoining fields and the general principles and practices of international law. These spheres of regulation have emerged in response to particular concerns and interests that, through law, aspire to legitimacy and universality.4 In particular, the free market ethos has favoured the process of diversification, the devolution of power, and self-organization.

This dissertation assesses the doctrine of sovereignty in international law and the manner in which it has defined human rights as forwarded by indigenous peoples, especially through their invocation of the right to 'self-determination.' The starting point of this observation is the argument that the state's role has changed, rather then

Koskenniemi, Martti, "International Law and Hegemony: A Reconfiguration" (2004) 17 Cam. Rev. Int'l Aff. 2.

2 'disappeared', in so far as the state has become a facilitator of private investment.5 In this sense, the constitution of the polity has also created boundaries that regulate private interactions.

This study's analysis will include a proposal for a critique and re-imagining of various communities and their corresponding laws (the sovereign state, community of nations, transnational commercial community, etc.) in such a way so as to displace the absolutism of the state and politics of market economics as the most prevalent consideration in the evaluation of human rights concerns. It is a deconstruction of the totalitarian logic embedded in the creation of community and particular conceptions of communications. I address a general question of value that may form a connectivity and discourse of a community through an analysis of human rights protection and the distinction between absolute and relative values. My argument insists on the assumption of ontoaxiological responsibility for the infinite finitude (the infinite requirement for some type of an absolute) and absolute relativization (a requirement for consideration of plurality) entailed by co-existence. The thesis also is premised upon a normative view that human rights and interests cannot be distinct from one another (such as the distinction from particular economic rights and interests and social and political rights).

Nor can the importance of human rights differ from the public to the private arena.

Rather, they emerge out of a need to recognize and protect certain human interests. The merit in my approach lies in its openness. My argument is that once determined position

Robert Wai, "Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization" (2002) 40 Columbia J. T. L. 212 215

3 on the definition of the good for a community creates the clear boundary between inclusion and exclusion. In other words, I step away from clear proposals for the manner in which indigenous peoples' human rights can be advanced in international law. Any such proposals demand a definition of who is indigenous or what constitutes human rights. Leaving possibility for constant and open negotiation ensures the prevention of totalitarian tendencies.

Indigenous peoples represent polities, which a) are not sovereign nation states and b) are entities subordinated to a nation-states. In particular, 'indigeneity,' or the status of difference, has been recognized primarily within the framework of identity-based rights.

The vast majority of the world's indigenous peoples do not have recognized rights to commercially valuable resources or to veto the projects of extractive industries. The attempts to give new foundations to international law and human rights, through the inclusion of historically marginalized non-Western moral-legal systems, has aimed to create the concept of human rights as either truly 'universal' and 'applicable to everyone', or as a plurality of competing visions and dialogue among different approaches. Once re-affirmed as more universal and inclusive, or as a product of continuous dialogue, human rights appear to become a tool for peoples everywhere in their struggles against different forces threatening the annihilation of their environments, cultures, and lives. However the human rights discourses touches a limit, and the limit is the doctrine of state sovereignty as well as the pervasiveness of economic rationality at domestic, transnational, and international levels of regulation.

4 My research is concerned with the possibilities for respect of basic values of

'fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women' and the tension with the need to constantly negotiate and re­ negotiate the definition of human rights. This will depend also on the extent to which international law and the sovereign can recognize their own pluralisms, as well as the pluralism of the sovereign, through a process of self-recognition, thus abandoning the image or an idea of homogeneity and unity.

Developments regarding the protection of indigenous peoples' rights reveal a tension between the diversification of the international legal system; the continuing pervasiveness of the doctrine of sovereignty in international law; and the integration of economy and politics. International law's centering around the territorial sovereignty of nation states—in conjunction with the integration of economy, politics, and the leading role of individual states in promoting of extractive industries at domestic and global levels—have negatively affected indigenous peoples' attempts at self-governance and management of lands and resources.

International law has sought to reaffirm, on the one hand, its legitimacy through greater inclusiveness and recognition of legal pluralisms, and on the other, the fait accompli status of its colonial past through which indigenous peoples lost their

sovereignty. For instance, the premise underlying the United Nations Declaration on the

Rights of Indigenous Peoples (UNDRIP) is that the form of international law, which had

5 become universal through the period of colonization (as law among sovereign nations), also became the definitive global system of law and governance.6

This research approaches sovereignty as a totality that emerges from a particular epistemological framework. My analysis will rely on the extensive scholarship on the development of statehood in the modern international system,7 and its embeddedness in

o political history. It also focuses on how questions of economic interests and the need for control over lands and resources relate to the concept of sovereign control.

I seek through this dissertation to contribute to the literature in international legal theory by presenting as essential the need to think differently about established legal principles of international law, such as the doctrines of sovereignty and territorial integrity. In addition, the deconstruction of the economic absolute requires a different ontology, which recognizes its limits and need for sustainability through principles of human rights and values of an environmental rationality, rather then endless appropriation. My method involves a deconstruction of the community as an absolute that

Significantly, the Declaration provides precepts for a process of'belated state-building,' which would enhance its legitimacy through engagement with other forms of community and accommodation of pluralism and multiple identities. This approach to enduring relations between states and indigenous peoples also could consider variations in the types of autonomy and governance of indigenous peoples, as well as the geographical and demographic settings. See further, Erica-Irene Daes, "Some Considerations on the Right of Indigenous Peoples to Self-Determination," (1993) 3Trans'l L& Contemp. Probs. 1 at 9.

7 In general, Arthur Nussbaum, A Concise History of the Law of Nations (New York, 1954); James Crawford, The Creation of States in International Law, 2n ed. (Oxford: Oxford University Press, 2006).

Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge: Cambridge University Press, 2001). For extensive discussion on indigenous peoples and international law see James Anaya, Indigenous Peoples and International Law 2nd Ed., (Oxford University Press, 2004); Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester University Press, 2002).

6 defines what is 'good' or 'evil' in the name of some higher purpose.9 In order to step away from the totalitarian tendencies of the absolute, it is necessary to turn away from any eschatological finality.10

As indigenous peoples put forward claims to ownership and management of lands and resources and political self-determination, their interests collide with claims to the sovereignty of states that see their territorial integrity challenged, as well as the interests of transnational and multinational corporate actors, whose importance has been increasing with regard to their economic and political power vis-a-vis governments and societal actors. The examples of domestic legislation and its treatment of indigenous rights to land ownership and management in Peru and Canada, illustrate the role of the state in these discussions and its consideration of indigenous peoples' rights in view of both international human rights law and domestic law.

Part of the scholarship focusing on transnational commercial activities and corporate social responsibility has observed the activities of multinational (MNC) and transnational (TNC) corporations as operating beyond the regulatory reach of states and binding international human rights (or environmental) legal instruments." However, the focus on the self-regulation of MNCs and TNCs and the insistence on the voluntary adoption of human rights obligations, or the need for multilateral agreements, do not

9 Jean-Luc Nancy, The inoperative community, ed. by, trans, by Peter Connor, Lisa Garbus, Michael Holland, and Simona Sawhney (Minneapolis: University of Minnesota Press, 1991).

10 Here, I rely on Emmanuel Levinas' demand for constant self-reflection in order to step away from positive religion. Emmanuel Levinas, Totality and infinity: an essay on exteriority, trans, by Alphonso Lingis (The Hague ; Boston : M. Nijhoff Publishers, 1979). Gunther Teubner ed., Juridification of social spheres : a comparative analysis in the areas of labor, corporate, antitrust and social welfare law (New York : De Gruyter, 1987).

7 recognize the existing role of state regulation. Further studies have recognized the interconnectedness of transnational corporate conduct and the interests of individual states. While, as Wai argues, non-state based systems may have become a more significant force in the regulation of global economy, "there is some ability for national authorities not just to abandon state laws in the face of these other normative systems, but rather to use the remaining leverage of private law as site for international regulation."12

The influence of this concept of state sovereignty has been particularly evident in the inability of transnational litigation to overcome some obstacles emerging from a persistently statist approach, which has manifested itself through procedural and substantial obstacles.13

The structural violence experienced by various peoples worldwide has been justified, among other reasons, for the purposes of modernization or markets and

fostering of economic growth. The interests of the sovereign lie in self-perpetuation through the demarcation of territory, rights and duties, the exclusion and inclusion of peoples, as well as imperial expansion. Conversely, in the face of state and corporate claims, indigenous and other affected communities see their interests in the preservation of a way of life and the environment, or securing their own economic interests and development. The state traditionally has had an exceptional power by virtue of its

12 Wai, supra note 5 at 264.

13 On transnational civil litigation see Craig Scott, ed., Torture as Tort: Comparative Perspectiveson the Development of Transnational Human Rights Litigation (Oxford and Portland: Hart Publishing, 2001). For history of convergence in interests between economic actors and those of states see Claire A. Cutler, Private power and global authority: transnational merchant law in the global political economy (Cambridge, UK; New York: Cambridge University Press, 2003) at 11.

8 monopoly over the use of coercive force, but this power has also been extended to private actors, through decision-making at the level of the sovereign.

The legitimation of violence requires a general understanding of what is legitimate and illegitimate—or, more specifically, holistic (monist) views of acceptable forms of human behavior and existence and the perceived impossibility of co-presence of different epistemologies. However, the result is paradoxical: the simultaneous existence of a unitary image of the good, which is legitimized and universalized, and the violence in its margins. Violence then becomes either a means to an end of achieving a greater good, a proportionate punishment, or a meaningless reality of human nature. The concept of the absolute, especially as embodied in the enlightened reason of modernity, has become complicit in the 'irrationality' of mass violence.14 The claim to universal good is implicated in the violence of that logic. The state, as it strives to attain a political good, denies the existence of the other.

In providing an alternate approach to limiting national considerations and internationally protected political borders, I wish to delineate a variety of links and interests, a complex nexus of fragmentation and centralization as evidenced in international and transnational law, as well as the claims to universality and visions of particular models of practical reasoning, which emerge out of different fragments. Each fragment, its area of knowledge production, and its desire for attaining universality and the absolute, seeks to provide some reconciliation of good and evil or legal and illegal in the name of a higher purpose, and as such is complicit with the logic of totality. Abstract

14 Zygmunt Bauman, Modernity and the Holocaust (Ithaca, N. Y.: Cornell University Press, 2000).

9 visions or totalizing categories of human existence and relationships tend to emerge from different proposals for future developments in the human rights system, including proposals for plurality and cross-epistemic dialogue.

Rather then seeing plural worlds and knowledges as opposing absolutes, I interpret them as multiple syncretic relations with various outcomes. Thus, following Nancy, instead of falling into the new nihilism of fragmentary absolutes, the presentation itself of an event is a "fractal ex-position: presentation as fragmentation."15 An act of recognition in itself provides a critique of the absolute in its manifest forms. The recognition of both unity and polycontexturality, in each conflict and discursive complexity, is part of any attempt at conflict resolution. In part, my research aligns with recent studies on counter- hegemonic strategies as involving recognition of alternative epistemologies. However, I differ in the insistence on re-defining the concepts of the "good" or "just", in that I insist on constant openness and self-reflectivity as a strategy to achieving greater inclusiveness and reconciliation among differing positions. Boaventura de Sousa Santos writes of "a monotheistic God" as "making a plea for polytheism as the only solution." The polytheistic God would be the subaltern God: "The subaltern's God idea would be that only polytheism allows for an unequivocal answer to the crucial question: which side are you on?"16 Instead, my objective in this thesis is to fragment the polytheisms. By this I seek to avoid a multiplicity of absolutes, and ask rather, for self-interrogating multitudes

15 Jean-Luc Nancy, supra note 9 at 126. 16 Boaventura de Sousa Santos, "If God Were a Human Rights Activist: Human Rights and the Challenge of Political Theologies" (2009)1 Law, Social Justice & Global Development Journal (LGD) at 29 online: http://www.go .warwick.ac.tik/eli/li;d/2009 1/santos

10 that do not mutually exclude. In this way I would avoid the question of "which side are you on?" and hence the binary of exclusion and exclusion. Question underlying my thesis is: How do we relate to each other and what is it that separates us, or brings us together?

Jean-Luc Nancy's concept of an 'inoperative community' is helpful in this. He writes

Generations of citizens and militants, of workers and servants of the States have imagined their death reabsorbed or sublated in a community, yet to come, that would attain immanence. But by now we have nothing more than the bitter consciousness of the increasing remoteness of such a community, be it the people, the nation, or the society of producers. However, this consciousness, like that of the 'loss' of community, is superficial. In truth death is not sublated. The communion to come does not grow distant, it is not deferred: it was never to come; it would be incapable of coming about or forming a future. What forms a future, and consequently what truly comes about, is always the singular death ...n

Community is an image of something complete, or an autonomous and exclusive order. I propose that a challenge to exclusion and violence lies in the interrogation of such an image.

The overall argument of this thesis will be divided into four themes and chapters.

The first part of the dissertation sets out the theoretical and historical background to the contemporary conflicts between indigenous peoples, states, and transnational extractive industries. Chapter one develops two themes that serve to interrogate the mutual constitution of sovereignty and international law, and its contemporary relationship with transnational capital. It deconstructs the narrative of law's foundation and sovereign decision at the time of colonization by counterposing the juridical, historical and theological literature of Francisco de Vitoria and Andean author Felipe Waman Poma de

17 Nancy, supra note 9 at 13.

11 Ayala, with their respective versions of the Spanish conquest history and reliance on natural law. Both ground their writing in the absolute of natural law, but Waman Poma asserts the existence of a plurality of perspectives. This section questions the moment, which established the community of sovereigns under natural law, as well as the establishment of unitary sovereign as the creator of community and law. The colonial violence that sought to eliminate the plurality of relationships, and the existence of indigenous populations, remained and became repeated through the self-assertion of unity.

The second section of the first chapter considers the interrelationship of sovereignty, capital, and the protection of human rights. It focuses on conflicts between, on the one hand, the economic interests of states and a network of actors, international and transnational organisations, and enterprises, and on the other, indigenous and other communities. It focuses on the implications of this conflict for the promotion of human rights and considers, through Nancy's concept of being singular-plural a possibility of developing new relationships based on thinking of justice outside of the framework and interests of either unitary community, or the single individual. That which exists, each being, is immediately singular and plural because it "coexists because it exists."

According to Nancy absolute isolation is impossible, and what constitutes the world is the coexistence that puts different existences together.19 Building on this, I argue that the experience of humanity through proximity to annihilation requires that there is no definite l8Jean-Luc Nancy, Being Singular Plural, trans, by Robert D. Richardson and Anne E. O'Byrne (Stanford: Stanford University Press, 2000) at 29.

19 Ibid.

12 and absolute meaning of being human. Rather, it requires constant interruption to recognize and respect the singularity of each human.

Chapter two observes the evolution of the principle and right to self-determination in international law, centering on the contemporary sovereignty claims of indigenous peoples. It focuses on the clash between the doctrine of state sovereignty and indigenous peoples' human rights claims. Indigenous peoples' claims to the right to self- determination enter not only into multi-polar conflicts, playing out on different levels of government and involving an intricate policy mix of public and private actors and constituencies, but also into broader debates on the status of self-determination in international law as a principle and a right, as well as the issue of who are the 'peoples' that can lay claim to it. This situation also reveals the problem of universality within human rights, their relation to alternate moral legal systems, and conflicts among interests of particular states. The definition and scope of self-determination has remained ambiguous, and is one of the most controversial topics in international law. Its protean character also has raised questions of exceptional 'hard cases', which continue to challenge the stability and predictability of international law.

Chapter three will discuss principles of indigenous peoples' permanent sovereignty over natural resources and free, prior, and informed consent (FPIC), which underlines indigenous peoples' right to self-determination, as well as the complaint procedures for the U.N. Human Rights Committee and Individual Communications under the Optional

Protocol to the ICCPR, the Inter-American System, and the complaint procedures

connected to ILO Conventions. The principle would imply an overture of communication

13 and reconciliation of interests between indigenous peoples and the state. The chapter addresses the lack of enforceability of these instruments, further questioning the role of sovereign states in addressing indigenous claims at both domestic and international levels.

In chapter four, through case studies of Peru and Canada, I observe how each of the two sovereign states has affirmed the unitary conception of sovereignty through a continuous exclusion of indigenous peoples. In both cases, I situate the contemporary conflict, the juridicocommercial position of the state, and the accompanying exclusion of indigenous peoples from the project of social contract and rights-protection, as framed in the totalizing logic of the nation state. However, this comparison also points to the residual problem of international relations among states in the 'global north' and the

'global south'—as well as historical relationships among indigenous peoples and the state.

Chapter five builds on this comparison and observes how the state-corporate alliance establishes a framework that serves to further the interests of extractive industries, often at the expense of environmental and human rights concerns. It interrogates forms of transnational governance, which serve to facilitate free trade and investment, and their relationship to human rights. The pressure on developing countries to deregulate markets and industries has made it easier for multinational and transnational corporations to have greater presence among some of the world's most vulnerable communities, including indigenous communities. I argue that the division of public and private regulation, and the enhanced significance of the private sphere in both the

14 creation and enforcement of international commercial law, takes place in combination with "public" notions of authority. The now universal model of economic reasoning assumes a complete understanding of human nature and practical reason. The overall purpose of this chapter is to point out the problems of adopting human rights principles within the international economic regime.

The conclusion summarizes this dissertation and presents my argument regarding the process of understanding and resolving the prevasiveness of conflicts between the transnational corporate industry and indigenous and local communities. I propose a re­ thinking of the unitary community embedded not only in the sovereign, but also in

international law. If a community can be continuously interrupted, then there can be no

absolute destinies as described in political and economic terms. I remain skeptical about the procedure by which the co-existence of pluralities can be persuaded to live together,

as well as the significance of living together. Instead, I argue for a model that would

resist totalizing frameworks of participation, identity, community, and law. Thus, there is

an element of ambiguity to my argument. In order for human rights to exist as a common

or ethical reference point for humanity, it also requires an element of the contradiction

and indeterminacy that is a requirement for incessant self-reflection.

15 CHAPTER 1

Community, Law, and Justice

Introduction

Different sites of law-making rest on their own pre-determined value assumptions, which define the understanding of right and wrong, rights and responsibilities particular to that system, and the very organization and purpose of law.

With such a plethora of voices, there will always remain the question of their respective visions of law and its origins. The endless expansion of differences (or self-perceptions of differences) within each ontology, including the juridical and the political, bring forward the question of possibility and/or desire for reconciliation among them (for instance, adoption of human rights or environmental protection within market-driven, international economic institutions), as well as the distinction between 'ethics' and 'ought' on the one hand, and 'given' and 'innate' on the other. As Lacan posits "If God is dead, everything is permitted, then the conclusion imposing itself within the text of our experience is that the response to God is dead, is nothing is any longer permitted."2

This chapter looks at the concept of community as an imagined totality represented in the sovereign and the nation; international community of sovereign nations; or transnational communities representing corporate interests. By community I

1 Letter from Alexandre Kojeve to Leo Strauss (29 October 1954) in Leo Strauss, On Tyranny: Including the Strauss -Kojeve Correspondence, ed. by Victor Gourevitch and Michael S. Roth, (Chicago: University of Chicago Press, 2000) at 261-262.

2 Jacques Lacan, Le seminaire. Livre XVII: L 'envers de lapsychanalyse, 1969-1970, trans, by Jacques Alain Miller (Paris: Seuil, 1991) at 139.

16 understand coming together of individuals and groups with an idea, or a shared ethos.

Sovereignty, for instance, has been the political term for defining community in international law. Law has played a role as a linkage mechanism among individuals and sovereigns at the international level, and as such has been a product of a variety of relationships and politics. The question is then posed in regard to law's response when faced with demands of justice. The dispute between the recognition of human rights

(including indigenous rights), and corporate interests unravels not only a fragmentation of visions regarding law's purpose and structure, but also the interplay and possibilities (or lack thereof) for mutual accommodation among different moral-legal systems.

The demands of justice consist of an interruption of belief in the absolute. The absolute to which I refer here appears in the form of concepts, images, ideas manifested through real power of the sovereign, the rule of law, the economy, or other forms of identity (race, ethnicity, nationality) that assume a common purpose and destiny. I locate the irrationality of the absolute and its tendencies for violence in both natural law theories as they manifested in the sixteenth century writings on international law, as well as the secularizing attempts to establish reason as the basis of Western, and consequently global human identity.

The first section of the chapter elaborates on the problematic of the concept of communities as organized around a common identity or interests, which are understood as being natural or pre-given. I look at Jean Luc Nancy' proposal for the ontology of

'being with', as well as possibilities for a communicative praxis that is not rooted in any definite logic or subjectivity. Second section considers the interrelationship of

17 sovereignty and transnational capital, and its balancing of human rights and environmental protection concerns against economic interests. Third section observes, through a theoretical-historical approach, the situation of 'being-with' both within origins of international law and the sovereign. It deconstructs the narrative of law's foundation and sovereign decision at the time of colonization by counterposing the juridical, historical, and theological literature of Francisco de Vitoria, and Andean author Felipe

Waman Poma de Ayala, with their respective versions of the Spanish conquest history and reliance on natural law.

I. Community and Plurality

In its contemporary form, the sovereign state has continued to affirm its aspirations to unity and territorial integrity though effacing and denying the plural origins of its formation. In other words, the pluralities have consisted of diverse communities

(sovereign, nation, people, and so on), laws, and governance, which through processes of coercion and persuasion became engulfed within a unitary sovereign state. The doctrine of indivisibility of state sovereignty has been premised on a unitary view of sovereign state as having prima facie exclusive jurisdiction over a territory and its permanent population; a duty of non-intervention in the area of exclusive jurisdiction of other states; and the dependence of obligations arising from customary law and treaties on the consent of the obligor.3 The interests of the sovereign thus lie in self-perpetuation through demarcation of territory, rights and duties, exclusion and inclusion of peoples, as well as its imperial expansion.

3 Ian Brownlie, Principles of Public International Law (Oxford; New York: Oxford University Press, 2008) at 287.

18 Sovereignty without foundation cannot sustain itself, hence the modernity has formed the "theologico-political" foundation "that leads to politics of the modern subject

(to the Nation State), where a laicized theology, or ...a romanticized theology, of the

"people," "history, and "humanity" substitutes itself for "sacred" theology.4 Thus community is not based only on "the formal autotelelology of a "contract," but also a theologicipolitical essentiality. The existence of different epistemological frameworks within same borders provides a direct challenge to that essentiality.

The tendency of a community to think of itself as being natural, or as a race given by nature, gives it an absolute right to wage war against those within and outside of its borders, who challenge its existence and justification. The right to wage war is thus a

sovereign decision. War, however, is susceptible to creating new laws and new

distribution of sovereigns. As Nancy argues, it stands at the origin of the majority of our

national and state sovereignties or legitimacies. Violence correlates to an attempt to preserve a particular image, the origins of which exist as both part of secularity and

theocracy. The distinction between secularity and theocracy is real. It consists of a

change from a discourse grounded on a divine being, to a discourse grounded on human

reason. The former consciously locates its origins (in omnipotent God), while the latter

denies and simultaneously retains its grounding. Secular discourse retains the absolute,

which, however, becomes the immanent cause of all things.

Jean-Luc Nancy, The creation of the world or globalization, trans, by Francois Raffoul and David Pettigrew (Albany: State University of New York Press, 2007) at 105.

5 Ibid, at 106.

6 Ibid, at 107.

19 Co-existence of pluralities demands the question of how individuals and/or groups are all persuaded to live together, and what living together signifies. In other words, co­ existence seeks a solution that would ground social cohesion. Nancy proposes communication, which would not consist in a particular message or an idea for the community.71 argue that any proposal for a sharing or co-exposition, communication, or recognition, leaves open the procedural problem of finding a commonality, without at the same time discovering an essence of a community, especially with consideration of power and conflict. Finding of a commonality requires another myth, which terminates the discussion of the problem, rather then resolve the problem.

A. Communities, communication and law

The starting problem in any critique of a community lies in the very concept of community as a unity possessing a certain essence, or as an expression of identity.

Pluralist approaches to co-existence challenges the idea of commonality, while seeking a more constant but incessantly self-interrogating form of 'being with'. Every perspective demands its own independence. For Emmanuel Levinas, the capacity to recognize the

Other, while leaving the otherness intact, requires a 'responsible answer', and 'other- oriented' thought. The communication needs to emerge among different understandings and conceptualizations of the world. Responsibility towards the Other involves a communication instead of an attempt to absorb and unify the Other. However, while all

7 Jean-Luc Nancy, The Inoperative community, ed. by, trans, by Peter Connor, Lisa Garbus, Michael Holland, and Simona Sawhney (Minneapolis: University of Minnesota Press, 1991).

Emmanuel Levinas, Totality and infinity: an essay on exteriority, trans, by Alphonso Lingis (The Hague; Boston: M. Nijhoff Publishers, 1979).

20 beings understand themselves as persons, the way in which they are seen by other beings depends on the ontology of both observer and observed.

There have been different attempts to universalize a type of dialogue among different pluralities. One such attempt has remained bound up with a tension between modernity against conventionality and traditionality.9 For instance, the debate over the universality of human rights has been positioning human rights as the modernizing force in disregard of alternate moral-legal systems. The requirement of universality conflicts with the contextual and historically embedded nature of the actual practice in which the universal principle is to be realized.

Aspirations to the attainment of the absolute, as well as the understanding of good and evil rooted in a higher purpose, are complicit with the logic of exclusion and totalitarianism. In order to escape potential for totalitarianism, a language on living together would need to cease its drive to universalism, and recognize that no knowledge is complete. On the contrary, every language of the imagined absolute is already interrupted, consisting of, and being- in- relationship -with something else.10 This interruption exists as the unconscious of an individual or intersubjectively.

Communication among different individuals and interests cannot only involve an understanding of the Other. It also requires a self-critique of one's own interests. Tension

Jiirgen Habermas, The Theory of Communicative Action. Vol. 1, Reason and the Rationalization of Society, trans, by Thomas McCarthy (Boston : Beacon Press, 1984); John Rawls, A Theory of Justice, 2nd Edition (Cambridge, MA: Harvard University Press,1999) at 20.

For an important critique of modernity as the new Absolute and its correlation with technological rationality, which the Nazis yoked in the service of their 'irrationality' see Zygmunt Bauman's critique of enlightened reason in Modernity and the Holocaust (Cambridge: Polity, 1989).

21 emerges between the requirement for some criteria that would allow different interlocutors to bring their interests to the table in good faith on the one hand, and irreducibility of heterogeneity on the Other. Nancy's proposal for thinking of communication without a message for a community still requires a message which has to be accepted because co-existence of pluralities implies some reasoning behind living together. Thus, any proposal for sharing or co-exposition, communication, or recognition, leaves open the procedural problem of how individuals/groups arrive to co­ existence/living together.

The connecting 'with', however, is not nothing; it exists in form of shared interests, nationalities, values, religions, which are also held together by their own laws.

Nancy writes, "... the city has no deeper sense: it is related to no signified other than its own institution, the minimal signified of the city's mere contour, without other 'identity',

'mission', or 'destiny' to conquer or to expand. The in-common of the city has no identity other than the space in which the citizens cross each other's paths, and it has no unity other then the exteriority of its relations."11 While Nancy seeks to point to the being-together of singularities, it is difficult to imagine such co-existence without the connectivity imagined and constructed by the community. Establishment of law creates a connection among co-existing singularities. As each people cannot be as autonomous as it aspires to be, it always exists in relation to others. The law sums up the values and interests of the community and regulates the interactions within this community. As a

1' Nancy, supra note 4 atl04.

22 regulator of external relations it encounters other sets of laws, but its primary role is to preserve the one community.

While justice is always in the infinite coming, the messianic wait for the future

does not resolve conflict of the present. Each different discourse, or model of practical reason, tries to assume a complete understanding of human nature, reasoning, and

decision-making. The demand from law to have a degree of formality and consistency

clashes with multiple claims to justice. Legal reasoning as non-metaphysical becomes in

itself the ideal form and yet another transcendental. Demands for justice are infinite but

have to be encoded into a finite legal decision, thus rendering juridical justice as

impossible.13 The definition of justice itself is an unlimited expansion of its forms- as

Tightness, equity, restoration, punishment and so forth. Legal paradox lies in the tension

between limitations and containment of its institutional and normative limitations on the

one hand, and the infinite claims to juridical justice, on the other.14

Through its function of regulating human relations, the law can at the same time

be oppressive and emancipatory. Claim to autonomy of law gives focus to particularities

of modern law's function; however, value hierarchy, which determines law's binary of

legal/illegal, does not vanish. Through this binary, the law has a capacity to include and

exclude. Secularism of the legal positivism creates an illusion of being freed from the

12 Oren Perez, Ecological Sensitivity and Global Legal Pluralism: Rethinking the Trade and Environment Conflict (Oxford and Portland Oregon: Hart Publishing, 2004) at 24.

13Jacques Derrida, "Force of Law: the "Mystical Foundation of Authority"" (1989-1990)11 Cardozo L. Rev. 920.

14 Ibid, at 949.

23 transcendental origins of law.15 The creator of law becomes ambiguous and all that is left is law performing its societal function. As Fitzpatrick points out, if law is at the origin then it does not have an origin outside itself. Law, in the positivist sense, appears as a secular mechanism for conflict resolution reacting through its operational specificity, arguments, and rules, and not through particular transcendental vision of justice. The extension of law's binary code of legal/illegal to the society as a whole creates new injustices through its attempts to generalize all such experiences. What remains is nothing but an infinite search for new criteria of justice, and these very constructions create new types of injustice.

As Nancy points out, "A world "viewed," a represented world, is a world dependant on the gaze of a subject of the world [sujet du monde]." Such a subject cannot be entirely outside of the world without becoming a transcendental image; even without religious representation such imagery perpetuates the position of the creator of the world.18 And what are the possibilities for "good" vision of the world, as emerging from the world itself? Nancy argues further, justice does not come from the outside source, because there is no outside. Justice is "given with the world, in it and as the very law of its givenness."19 It is inseparable from the existence of the world. This is why

15 H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1994).

16 Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge ; New York : Cambridge University Press, 2001) at 71.

17 Nancy, supra note 4 at 40.

18 Ibid. 40.

19 Ibid.

24 justice is the demand for justice, "the complaint and protestation against injustice, the call that cries out for justice, and the breath that exhausts itself for it."20

Attempts to do justice emerge out of every relationship that at the same time constitutes the world, and self-reflection lies in every consideration of the Other. In the case of suffering, this means to be affected by it, and to have a response to it, but without a clear understanding why this is so. World and justice are intertwined in the same and unique law of absolute sharing. Not everything dissolves into interplay of pluralities; there also are claims to justice and responsibility towards each other, which emerge out of the very situation of being-in-relationship with the Other. Communication always involves the Other, or what Derrida termed as the coming or 'in-coming' (1'invention) of the Other.21

The conversation always also involves oneself -1 am also imagined under the gaze of the Other.22 The secular assumption (or in the aftermath of the Enlightenment) is that the subject has left behind all theological supernatural fictions and is capable to ascertain his or her own good (which can also be regarded as self-interest). I observe and imagine the gaze of the Other and his or her values, and the Other does the same in return. In a secular situation, we can at best imagine and assume each other's mandates. It

21 Jacques Derrida, Psyche: Inventions of the Other, Volume I, ed. by Peggy Kamuf and Elizabeth Rottenberg (Stanford University Press, 2007) at 45.

22 Jacques Lacan, The four fundamental concepts of psychoanalysis, ed. by Jacques-Alain Miller, trans, by Alan Sheridan (New York: W. W. Norton, 1998) at 81.

25 is "an 'absorption' fraught with false trails." In order to engage and understand the

Other, exposing oneself in communication, also puts one's own interests at risk. It is also a risk of being judged through the binary of "good" and "bad" as established through a different system of values-values of the Other. For Levinas, language and word of the

Other takes the form of 'transcendence' or 'transascendence' of human responsibility in communication.24 I argue that this requires some presupposition of ethics, instead of different value systems. For Derrida this is friendship,25 and Gadamer calls it good will.26

But it is never clear why and how the overture of good will appears in the first place.

In The Politics of Friendship, Derrida analyzes this possibility in reference to a quote attributed to Aristotle 'O my friends, there is no friend.'27 If the address to the

Other is an act of good faith, then each address would begin with 'O my friends,' and where 'there is no friend' would mean that there is no particular friend that belongs to the same community, but where friendship is extended to all. The address to a friend can, however, also imply the exclusion of an enemy in the dialogue, or it can be an address to an already existing community to expand its horizons. Derrida proposes a model of friendship based on openness towards others and their specificities. He writes

We know that there are no friends, but I pray you, my friends, act so that henceforth there are. You, my friends, be my friends. You already are,

23 Ibid, at 43.

4 Emmanuel Levinas, supra note 8.

25 Jacques Derrida, Politics of Friendship, trans, by George Collins (London and New York: Verso, 1997).

6 Hans Georg Gadamer, Dialogue and Deconstruction: The Gadamer-Derrida Encounter, ed. by Diane P. Michelfelder and Richard E. Palmer (Albany, NY: SUNY Press, 1989) at 33.

27 Derrida, supra note 25.

26 since that is what I am calling you. Moreover, how could I be your friend ... if friendship were not still to come, to de desired, to be promised? ... If I give you friendship, it is because there is no friendship (perhaps); it does not exist presently.28

Such an act of friendship, requires an order of faith that one intends to speak the truth and that the Other will be willing to listen and trust. However, without a particular and universal grounding, future remains open to different possibilities: dialogue among friends, or conflict among enemies.

An idea of a community as a totality presupposes an already given or constructed coexistence. In other words, such an idea evokes a myth, the existence of something that cannot be observed, but which has given the identity and sense of history to the community. Nancy thus argues: "There is no given or constructed coexistence."29 It is sustained by nothing other then the in between or the-with of the being-together of singularities. This identity creates itself, for it has no exterior value or foundation. There is no cohering 'one' that keeps the community together, except for the one that is created by the community itself. Furthermore, "The nothing 'with' is the non-cause of the world, material, efficient, formal, and final. This means both that the world is simply there (It is, or it permeates its "there", its spacing) and that it is the coexistence that it does not contain but that on the contrary "makes" it."30 The distinction between the nothing of the

'with' vs. a particular myth, or idea, also establishes the distinction of the 'anyone' and a

'proper one.' Thus, 'anyone' is the every day image of a person (anonymity, ahistorical,

M Ibid, at 235.

29 Nancy, supra note 4 at 73.

27 who does not belong) versus mutual recognition through some union, or destiny

(historicity, common purpose).

What remains disconnected or beyond communication is the 'anonymous one' against whom war and violence becomes justified, as punishment for a threat to, or difference from a community. As the Other leaves the position of anonymity, and becomes part of a recognizable entity, he or she can either remain in exteriority, as part of another community, or become part of the 'the people', interior to a community. Such polarization discounts the multiplicity of associations and interest of individuals.

Recognition of multiple connections of individuals and groups would disperse the allegiance to 'one', and therefore the absolute. Thinking of multiple and constantly changing points in different networks requires greater effort of imagination that would remove itself from the familiar, repetitive, unitary and ultimately exclusionary.

B. Human rights and exclusion

The paradox of human rights is related to the ambivalence of the universal, transcendental, and abstract human being upon which international human rights have been constructed. If the only entitlement to human rights is being human, then these rights need to reflect something essential about humanity. However, if there is no essential conception of human beings, then universal human rights cannot exist. As

Hannah Arendt points out,

31 Jean-Luc Nancy, "The being-with of being-there" (2008) Cont Philos Rev 41.

28 the conception of human rights based upon the assumed existence of a human being as such, broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had indeed lost all other qualities and specific relationships - except that they were still human. The world found nothing sacred in the abstract nakedness of being human.

As Arendt further describes, the refugees, the survivors of the extermination camps, the inmates of concentration and internment camps, "could see that the abstract nakedness of being nothing but human was their greatest danger. Because of it they were regarded as savages.. .Because only savages have nothing more to fall back upon than the minimum fact of their human origin.. ,"33 The abstract and unpoliticized human beings became revealed as having no rights. The truly universal rights, would be rights of what Giorgio

Agamben calls homo sacer, or a person deprived of their rights, excluded from the political community, reduced to the condition of bare life, and treated as inhuman.34 But if human beings can be deprived of their rights, then human rights do not exist as pertaining to all humans. The definition of human nature emerges from the humanity itself, but is also impossible from the outset, for non-subjectivity would have to be located apart from humanity. Mere recognition of plural subjectivities is nothing more then recognition of multiple universals, all of which assume a complete understanding of human nature.

Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1973) at 300.

33 Ibid, at 300.

34 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1998).

29 If human rights belong to human 'beings', they require, I argue, a continuous capacity for self-scrutiny and expansion of their meaning and scope. This continuity is necessary for fragmentary pluralism that would stem from recognition that human mind is limited in understanding itself and its surroundings. Comparison of different paradigms depends on an assumption that the human mind is capable at some point of perceiving nature as it truly is. At the same time, the infinity of such condition results in a negativity: something that is always to come, and never exists in the present.

The positing of those who have human rights, against the Others who "have nothing more to fall back upon than the minimum fact of their human origin"35 eliminates the universality of human rights. Those who are deprived of their political and human rights are equated with the 'naked savage', implying also the criteria for savagery and inhumanity.36 Human rights law, as law, requires containment- a criteria for the description and scope of those rights. However, because human rights belong to human

'beings', they also contain a possibility of continually expanding and liberatory 'human' of human rights. The tension is between the demand, assertion, and concession or refusal. Who defines the scope of human rights? Any establishment of what it means to be human is impossible from the outset, for any such discussion would have to take place apart from humanity. As rights, human rights and the designation of what it signifies to be human need to be enclosed in law with determinate content. The content of rights,

35 Arendt, supra note 32 at 300-302.

36 Ibid, at 300.

Ibid, at xvi.

30 however, remain contingent, as there is always a possibility that they will have to become something else thereafter.

As Koskenniemi argues, notions and principles of justice' and 'human rights', within international law, have helped "redescribe individuals and groups [such as indigenous peoples and women] as claimants or beneficiaries of entitlements and in so doing it provided them with an identity that they may assert against the homogenizing pull of formal law."38 And further,

law is not only about governing things - indeed, governing things will remain a matter of power and policy, utilitarian calculations, expert vocabularies and the existential decision - but it is - an perhaps above all - about constructing a public space within which diverse social groups whose interests are not well represented in governance bodies receive a voice. It enables those groups to articulate their claims not as claims of individual interest but as the interests of the (international) society. In invoking law such groups articulate their claims in universal terms.39

Indeed, the emergence of human rights has recognized individuals and other non-state actors as subjects who would be able to assert their rights before international law in their own capacity. Still, human rights law remains dependent on the primacy of the sovereign. The law itself has inscribed the colonial foundation and the sovereign event into law. Thus, emerging out of colonial foundations, the decision to produce law does

Martti Koskenniemi, "What is International Law For?" in M. Evans ed., International Law (Oxford: Oxford University Press, 2003) at 106.

39 Martti Koskenniemi, "Global Governance and Public International Law" (2004)373 Kritische Justiz 3 at 253.

Philip Alston, ed., Non-state actors and human rights (Oxford; New York: Oxford University Press, 2005).

31 not need to be based in law. Derrida argues that the impermanence of the sovereign reveals to us this relationship between sovereignty and law. What does this speak of the constitution of the sovereign and its subject?

Critical and post-colonial theories of international law point to a duality within international law, which consists of simultaneous inclusion and exclusion of the 'other' that it has itself constructed.42 The self-constitution of this identity rests in a "defining exclusion of certain existent peoples accorded characteristics ostensibly opposed to that identity."43 In the civilization narrative of international law, the Other has included

"savages and barbarians, or even those of the West less occidental than they should be."4"

This negative definition then results in a paradoxical situation of international law and universality, because for it to exist as universal, the Other would have to either cease to

exist or become assimilated.

The peoples who constitute the Other were "torn between exclusion as something

radically different to the West and the demand to join and become the same as it."45 For

this reason, the international legal system contains both an imperial and a potentially

emancipatory quality. A contradiction between humanism and violence has been one of

41 Carl Schmitt, The concept of the political, trans, by George Schwab (Chicago : University of Chicago Press, 2007).

42 Anibal Quijano, Modernidad, Identidady Utopia en America Latina (Lima: Ediciones Sociedad y Politica,1988); Fitzpatrick, supra note 16.

43 Eve Darian-Smith and Peter Fitzpatrick, "Laws of the Postcolonial: An Insistent Introduction", in Eve Darian-Smith and Peter Fitzpatrick eds., Laws of the Postcolonial (Ann Arbor: University of Michigan Press, 1999) at 1.

44 Ibid.

45 Ibid, at 2.

32 the critiques of liberal humanism. This also explains the difficulty in international law's acceptance of alternative knowledges and claims within its system, beyond the simple

'revalorization' of the 'other', as for instance represented by indigenous peoples. The law, grounded in particular time and space, histories, and cultures, becomes the site of hegemonic and counter-hegemonic struggles, which do not promise a clear outcome. The decolonization process did not signify the departure from particular normative biases, as it "was only available on narrow terms, to entities that resembled the modern European nation-state."47

Rather then moving in a simple dialectic, different struggles in international legal arena represent a nexus of multiple interests and knowledge systems. Attempts to describe the relationship among different legal orders and legal cultures as merely provisional and contingent on the one hand, or through the lens of a universal paradigm on the other, cannot escape particular grounding, even if the universal is recognized in the existence of infinite pluralities. What remains, is the recognition and subjective appraisal of specific relationships and conflicts, and their outcomes. Plurality has always been present in experiences and relationships that have emerged in colonial situations. Variety of syncretic relations among the colonized and the colonizer have resulted in different outcomes, however often mired in violence. Given the historical schism between

46 Martti Koskenniemi, From apology to Utopia: the structure of international legal argument (Helsinki : Finnish Lawyers' Publishing Company, 1989).

47 Dianne Otto, "Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference" (1996) 5 Social and Legal Studies 337 at 343.

48 Frantz Fanon, The wretched of the earth, trans, by Richard Philcox (New York: Grove Press, 2004).

33 different epistemologies, where lies the possibility of just relations and dialogues among different pluralities?

Any such discussion would have to, again, account for questions of ethics in

dialogue. The idea of the social contract is rooted in the general will, which desires the

common good, premised on Jean Jacques Rousseau's understanding of human nature. For

Rousseau, 'sovereign power' is limited by the 'covenants constituting the social bond.'

This social bond is rooted in the equality of citizens and a generality of rules secured by

laws. Laws are then "nothing other than the conditions on which civil society exists."49

As such, laws cannot depend on the constitution of an already existing sovereign. Rather,

as Rousseau writes, "Gods would be needed to give men laws." Due to the possibility

of influence by particular groups guided by private interests, the general will may not

always decide correctly on what is necessary for promoting social harmony and

cooperation. The general will then, may require the guidance of the 'legislator' whose

only concern is with the public interest, justice and equal citizenship. The origins of the

'lawgiver' remain obscure, as Rousseau cannot escape the procedural problem of how his

body politic is to always arrive to a conclusion guided by interests of justice and equality.

For laws to be effective and lasting they have to come from a quasi-divine lawgiver. The

lawgiver, who stands apart from the 'nation', has to create the lasting social bonds among

individuals that would hold the social contract together.5'

49 Jean Jacques Rousseau, The Social Contract, trans, by Maurice Cranston (London: Penguin, 1968) at 77,81-3.

50 Ibid, at 84.

5]Ibid. at 84-5, 87, 99.

34 Contemporary situation of multiple law-making sites encounters the same procedural problem. What is unknown is the deliberative process leading to the consensus on the interests of a 'good society.' Without the quasi-divine sources, the definition of 'good' somehow emerges out of the world of realities and experience. The experience itself, however, can be disputed, which brings the argument back to the question of subjectivity. The grounding is heterogeneous, emerging out of plurality of intertwined experiences, which also include conflict.5

If we accept Rousseau's description of the sovereign people as people who constitute themselves as subjects of the sovereign, what happens before this constitution?

Specifically, what happens to any previous institutions and laws, such as the pre-colonial governance institutions of indigenous peoples? With its founding myths of unity, the new sovereign erases the founding violence through the act of self-legitimation, which subdues other sovereignties preceding its formation. For Agamben, the law presupposes the nonjuridical violence of the state of nature, as that with which it maintains itself in a potential relation in the state of exception. Thus, as Derrida argues "that which threatens law already belongs to it, to the right to law (au droit au droit), to the origin of the law."53

It gives legitimacy to the violence that has produced, among others, discourse of its self- legitimation. In the situation of settler societies, the singularity of sovereignty first denies the pre-existing sovereignty of indigenous peoples, and second, the continuing plurality of law and sovereignties. Contemporary indigenous claims thus challenge the very

52 Jean Luc Nancy, The Birth to Presence (California: Stanford University Press, 1993) at 162.

Derrida, supra note 13.

35 constitutional framework of the state as their stance demands also the recognition of their sovereignty and capacity to own and manage their lands and resources.

Recognition of suffering that results from some experience of an individual or a people, which diminishes their humanity, also requires a particular moral understanding of its meaning and consequence. For this reason, human rights claims require an embedded normative content or transcendentalism in law. Legitimation or de- legitimization of human rights abuses reveals particular transcendentals of the new polytheisms, such as, for instance, the primacy of market economics. In such context, descriptive legal pluralism and assumption of dialogue among different pluralities cannot be divorced from daily experiences of violence and asymmetry among different frameworks. But these experiences also require reflection on part of the self, as well as the collective. The normative content cannot avoid being exclusionary without such self- interrogating and constantly vigilant and active thought process. In other words, acceptance of some absolute, as an understanding of universal human rights, the repetition of the same, and lack of openness to constant challenges, would results perpetually in some form of exclusion.

II. State-economy nexus, human rights and the environment

Decisions over the importance of an economic value system potentially in conflict with human rights take place in the political realm and are translated into law. Particular values become translated and hidden in the operational specificity of law. The transcendental never disappears. What remains, is conflict among different interests and their respective fictions. This recognition is necessary also to account for the outcomes of

36 such conflicts, which can result in violence. The extra-legal violence becomes legal within new institutions, and is in turn challenged by potential illegalities that threaten to establish a new order of law. The search for juridical justice combines oscillating indeterminacy and containment. Within the area of the blind spot of law remain daily experiences of conflict and violence, which are neither just nor unjust before the law.

The contemporary conflict involving indigenous peoples and transnational corporations points to different levels of the dispute. On the one level it reveals both fragmentation and reaffirmation of sovereignty: fragmentation manifested through the existence of multiple non-state actors who produce norms according to their own absolute realty; and reaffirmation, evident in the manner in which the state continues to diminish the decision making powers of its indigenous populations in the name of broader interests and essence of the community. Thus the questions of race, identity and economics have all converged in the project of a sovereign image in its attempt to sustain itself. The driving telos for colonial societies has been the linear development to modernity and unity of a nation, which has justified the existence of violence against indigenous peoples who have resisted this process.

This nexus of conflicts, including the state, indigenous peoples, private-non state actors and so on, is often a situation of open violence, and they play out at local, national, international and transnational levels. Rather then defining how different structural attributes of each knowledge system define the rational and irrational, and therefore the irrational or permissible violence, I observe this violence as a concrete experience and manifestation. The violence stems from what is understood as rational, and in this case

37 from the imposition of economic rationality. As Nancy points out, "But on earth there is only the sufficiency of capital, its indefinite "self-preservation" and "self-valorization".

Can one think of politics of nonselfsufficiency?"54 The conflict among different values and multiple sets of relations play out within the legal field. Such rethinking requires the deconstruction of law as a representative, or an imprint, of particular sets of expectations and interests.

A segment of legal literature has supported economic efficiency as a basic ethos of the modern society: strong reliance on technology, free market structures, and its endless desire for growth.55 This is evident in the pervasiveness of the traditional economic logic of profit maximization-to the narrative of homo economicus.56 Once the conflict between human rights (and for this research, indigenous rights) and economic interests is evaluated through the terms of neo-classical economics and its regulatory system, the conflict itself disappears, because trade liberalization for instance, is seen as contributing to the efficient use and generation of resources.

Despite the adoption of human rights and environmental questions within the global economic regime, detailed analyses of different transnational domains, expose obstacles to the development of, for instance, better environmental protection in a variety

Jean Luc Nancy, The Sense of the World, trans, by Jeffrey S. Librett (London, Minneapolis: University of Minnesota Press) at 111.

55 Ernst-Urlich Petersmann, International and European Trade and Environmental Law After the Uruguay Round (London: Kluwer Law International, 1995).

56 John Stuart Mill, "On the Definition of Political Economy, and on the Method of Investigation Proper to It," London and Westminster Review, October 1836. in Essays on Some Unsettled Questions of Political Economy, 2nd ed. (London: Longmans, Green, Reader & Dyer, 1874) essay 5, paragraphs 38 and 48.

38 of transnational institutions. Claims to human rights protection have conflicted with competing claims to economic profit and development. Constant balancing between human rights or environmental protection on the one hand, and economic profit and development on the other, demonstrates the primacy of the rationality of the market. The world of market rationality, however, also comprises of plural associations and interests, including culture, or morality and other presumably 'non-economic relations.' Economic calculation is then also an expression of particular value, through which the Other is approached, but almost always as an expression of self-interest.

With the introduction of indigenous interests, the nexus becomes even more complex due to their non-sovereign status in both domestic and international law, and in both 'developed' and 'developing' world. In what are termed as 'developing' countries, the sets of relations are not only between indigenous peoples, corporations, and the state, but also, the influence of the transnational governance system, and the interests of

'developed' countries have in the 'developing' world. The role of transnational entities in how developing nations are governed has increased significantly in recent decades.

As Antony Anghie describes, international institutions have emerged out of a system already complicit with colonialism and imperialism.58 Various other studies have also addressed how transnational entities such as the International Financial Institutions

(IFIs), transnational corporations, and both industrialized and developing states, often all

Perez, supra note 12 at 14. 58 Anthony Anghie, Imperialism, sovereignty and the making of international law (Cambridge, UK; New York, NY: Cambridge University Press, 2004).

39 in coordination with each other, affect indigenous peoples. The collaboration between international institutions and major corporations has focused on creating profit-making opportunities for the latter, also with increasing interest in human rights and public good.

However, the questions of human rights or environmental protection have been co-opted within the broader ethos and objective of economic gain. States, International Financial

Institutions, Non-Governmental Organisations, and so on, have given justification for increased resource extraction as a necessary means to poverty alleviation and development, and thus also beneficial for local communities. The broader vision of the

"good" through economic development is thus evaluated against indigenous demands for respect and protection of their lives and livelihood.

The relationship among different epistemologies can stand in opposition or co­ exist through syncretic relations. The latter is evident in the attempts of indigenous peoples to engage with international law by bringing forward their claims. Social regulation has existed as part of human society through different rituals and forms, as well as diverse relationships between law and governance. Relevance of this difference has become more and more apparent as alternate conceptions of knowledge and diversity of cosmologies have come to challenge the concepts of law and governance as products of Western modernity. The alternative sites of norm production have unveiled the

Suzana Sawyer and Edmund Terence Gomez, "Transnational Governmentality and Resource Extraction, Identities" Conflict and Cohesion Programme Paper Number 13, United Nations Research Institute for Social Development, September 2008.

40 instability of the grounds of law, and the lack of determinate transcendent reference beyond law.60

The challenge, however, is to avoid the re-establishment of new mythos in the ideas of the origin of law. Recognition that law always originates in particular situations and in response to certain interests, could either provide another postulated origin, or result in a type of nihilism, with nothingness as the foundation. But in the place of nothingness, the return can only be to another myth, a discourse about that, which is absent. The unity of sovereignty, the social contract, and its presumed self-sufficiency have been organized around the sufficiency of capital.

The now universal model of economic reasoning is assuming a complete understanding of human nature and practical reason. The presumed rationality of economic interests has resulted in mass violence against human beings and their environments. The 'other' experiences exclusion based on gender, race, nationality and so on, but there are also attempts to appropriation of his or her existence. Plato finds the origins of war in the desire to appropriation; desire for more power or territory

(pleonexia).62 Conflict emerging out of such desires has created friends and enemies both within the national borders, and among different peoples through conquest, domination, or empire.

Fitzpatrick, supra note 16.

61 Nancy, supra note 54 atl 10.

62 The Republic of Plato, trans, by Allan Bloom (New York: Basic books 1991) Book U, 373e.

41 Here, both the human and the environment become the subject of a classifying gaze. Their use value is determined by the Other (the mutual gaze), but also classification as "good" or "bad." Once the community has determined its content and what is good for its self-interest, it must exclude what is foreign or potentially threatening to that content.

At the same time it evaluates the value of the Other in maintaining the self, as it views itself, rooted in a particular value. I refer specifically here to the perceived values of the rationality of the market. Ethics, I argue, remain outside of such an encounter- the value of human or the environment, to whom or what they belong, becomes determined through the a priori judgements, pronunciations, and actions.

The concept of knowledge has played an important part in development of rationality that allocated some human beings and the environment to the subjugated position. In this relationship the Other ceases to be the Other, but rather becomes an unthinking object. Through the Cartesian cogito the rational self came to view the non - rational or somehow flawed beings, whose rationality can be devalued in its relation to the rational self, as the outsiders or as easily appropriated for their use/value.

One such presupposition of an absolute truth is embedded in economic rationality that seeks humans as fundamentally self-interested beings, seeking economic gains. This approach also evaluates the non-human or natural world in terms of economic value and goods and services it provides. As I seek to argue in the following section, human beings have employed such attitudes towards other human beings. The question of "In what respect is animal and plant life "strange", has extended to relationships and encounters between different epistemologies. The assumption of rationality denies the capacity to

42 self-reflection as it presupposes that knowledge is complete.

Attitudes to nature, or the non-human, have been fairly consistent in Western philosophical and religious writings. Nature was not sacred, as it was man whom God made in his own image. The asserted difference stems from the difference in capacity to reason between humans and beasts and allows that humans use animals for human ends.

Aristotle, for example, argues in his Politics that the rule of "the rational element over the passionate is natural and expedient; whereas the equality of the two or the rule of the inferior is always hurtful. The same holds good of animals in relation to men," adding,

"Now if nature makes nothing incomplete and nothing in vain, the inference must be that she has made all animals for the sake of man. And so . .. hunting [is] an art which we ought to practice against wild beasts."63 In the Judeo-Christian religious tradition,

Genesis relates, for example, that God commanded Adam to "have dominion over the fish of the sea and over the birds of the air and over every living thing that moves upon the earth."64 In his understanding of reason and humanity Thomas Aquinas relies on

Aristotle:

The very condition of the rational creature, in that it has dominion over its actions,

requires that the care of providence should be bestowed on it for its own sake: whereas the condition of other things that have not dominion over their actions shows that they are cared for, not for their own sake, but as being directed to other things.65

Tom Regan and Peter Singer, eds. Animal Rights and Human Obligations (Englewood Cliffs, NJ: Prentice Hall, 1989) at 5.

64 Genesis 1:28.

65 Thomas Aquinas, Summa theologiae: question on God, ed by Brian Davies and Brian Leftow (Cambridge; New York: Cambridge University Press, 2006) at 3.2.112.

43 The presumption of both Aquinas and Aristotle is that humans are governed by a higher principle of reason. Non-human beings are inferior and hence ought to be regarded as instruments for man's use. The grounding of his argument is absolute, not only is man to make use of animals, but is expected, and required, by the divine. While the collision of this tradition with Darwin's theory of common descent diminished the difference between human and animal, it brought on a different understanding of human nature, as well as human to human, and human to non-human relationships. If humans are equated with animals they can be treated as slaves, for instance, because they are purportedly lower on the evolutionary chain. I am here specifically interested in the treatment of beings deemed as non-rational, for as I describe below, a significant number of the world's population fell under this category with the advent of colonial relations.

With this in mind the following section observes the historical background to contemporary situation of indigenous peoples in international law. Various forms of pluralism have been produced through colonization, when Western European colonizers transplanted legal regimes abroad. These historical contexts set the stage for contemporary legal pluralism, which combines the legacy of this past with more recent developments connected to the processes of globalization. The very notions of

"customary" or "traditional" or "indigenous" were creations of and reactions to colonization and postcolonialism, in which the norms and institutions of indigenous societies were marked (for various purposes) as distinct from the transplanted norms and systems of the colonizers.

44 II. Universality and plurality of international law: historical background

As postcolonial and critical approaches to international law point out, certain aspects of the European experience came to be represented as universal through imperialism, including the development of the modern nation state and capitalism.66 In the present, 'liberating' or 'civilizing' missions continue under the banner of development and modernity.67 Anibal Quijano explains how various systems of exploitation, from the sixteenth century on- slavery, serfdom, and/or forced labour- were all intentionally organized to produce commodities for the world market.68 For this reason, Quijano, as well as other post-colonial scholars, debunk the linear progression of time and relationships in colonial spaces. Different forms of exploitation, as well as social, cultural and political interactions, have existed simultaneously in complex and multiple relationships in different historical periods, thus deviating from unilinear, chronological, and dichotomous conceptions that have dominated contemporary social and political thinking. The post-colonial experience has consisted of the persistence of

Anibal Quijano, Dominacion y cultura : Lo cholo y el conflicto cultural en el Peru (Lima, Peru : Mosca Azul Editores, 1980); Dipesh Chakrabarty, Provincializing Europe : postcolonial thought and historical difference (Princeton, N.J. : Princeton University Press, 2000); Partha Chatterjee, The Nation and Its Fragments: Colonial and Post-colonial Histories (Princeton, New Jersey: Princeton University Press, 1993).

67 Anghie, supra note 58.

68 Anibal Quijano, "Coloniality of Power and Eurocentrism in Latin America" (2000)15 International Sociology 2 at 215.

45 multiple histories and memories that have co-existed with the 'dominant' history that arose with the emergence of the modern world and the spread of capitalism.

This section deconstructs the narrative of law's foundation and sovereign decision at the time of colonization. It counterposes the juridical, historical and theological literature of Francisco de Vitoria, a Dominican cleric and professor of theology at the

University of Salamanca,70 and Andean author Felipe Waman Poma de Ayala. Both ground their writing in the absolute of natural law. Through the deconstruction of the relationship between sovereignty and international law, I observe the tension between the particularity of interests that are manifest through affirmation of the doctrine of state sovereignty and the claim and aspiration to universality in the natural law tradition of modern human rights. Does the sovereign remain inside or outside of the juridical order?

When can the sovereign decision transgress the universal law?

A. Francisco de Vitoria and the colonial origins of international law

While the legal discipline remains delineated by its inner language and binaries understood as legal or illegal, those boundaries have been blurred in the face of how different systems of thought defined the very essence of human existence and the resulting modes of societal organization. The relation of inclusion and exclusion of conquered peoples through marginalization, assimilation, or alienation, validated the

691 presuppose that 'dominance' is a contingent concept primarily because I also argue that relationships always involve a degree of mutual influence and syncretism. In this way, my objective is also to shift the image of the 'dominated' or the 'victims' into a position of active participation.

See for example, Robert A. Williams Jr., The American Indian in Western Legal Thought: The Discourse of Conquest (New York: Oxford University Press, 1990); Antony Anghie, "Francisco De Vittoria and the Colonial Origins of International Law" (1996) 5 Soc. & Leg. St. 321.

46 already present European and Christian origins of international law as superior and universal.71 The paradox of international law—it's capacity to exist as universal, only if the Other either ceased to exist or became assimilated to criteria of particular pre-existing origins—allows us to see in international law both an imperial and a potentially liberating quality.

How different actors make decisions, and make sense of their identity and meaning of particular relationships and events, produces a reality that always coexists with another imagined reality, as well as a reality that seemingly persists outside of this imagination. In other words, imagining international law and the sovereign as homogenous constructs, denied not only the existence of other peoples, but also that despite aspirations to homogeneity, international law could not abandon the actual reality of pluralism, for its very existence emerged out of this situation. Plurality of relationships and conflict between conquered peoples, as well as the aspirations to unity of both international law and the sovereign, also became part of this universality. Desire for a unitary society revealed an awareness of existing plurality that needs to be overcome. For this reason, international law became both universal (as law applicable to all peoples), and particular (emerging from the specific practice among peoples of the world).

The act of conquest could not legitimize itself, but had to be imposed through notions of some pre-existing right to wage a just war. Force had become a right as part of a broader universality, as a means to an imagined end of the good (world) society. The conquest of the Western Hemisphere brought on the questions of the novel situation that

7 Quijano, supra note 42.

47 posed the problem of applicability of the universal law of jus gentium to peoples of different cultural background as well as its justification of violent settlement patterns in the Americas. The debates among Spanish jurists and theologians were by no means uniform. Some notable expressions forced the debate to "stare into the unsayable."72

Nonetheless, the conclusions on the position of indigenous peoples in international law presented both the embeddedness and careful rationalization of violence in the international legal system.

Vitoria formed part of the so-called School of Salamanca that had been established in 1218 and became the centre of Thomistic and natural law studies.

Theologians and jurists who were part of the school, focused on the teachings of St

Thomas Aquinas (1224/5-1274) and the question of how to reconcile the presence of the divine with natural law philosophy. In 1550-01, debate took place at Valladolid, between the Dominican cleric Bartolome de Las Casas, and Juan Gines de Sepulveda, humanist scholar, Chaplain to the emperor, and court historian, which centered on the status of indigenous peoples of the Americas. Relying on the theory of natural slavery as elaborated by Aristotle74 Sepulveda had justified the conquest based on naturally

Giorgio Agamben, Remnants of Auschwitz (New York: Zone Books, 2002) at 33.

73 Antonio E. Perez Luno, La polemica sobre el Nuevo Mundo-Los clasicos espanoles en la Filosofia del Derecho, 2nd ed., (Madrid: Editorial Trotta,1995); Martin Mangus, ed., La escuela de Salamancay el Derecho Internacional en America (Salamanca: Consejo Social de la Universidad de Salamanca, 1993).

74 Aristotle, The Politics, trans, by Carnes Lord (The University of Chicago Press, 1984) at 1253bll5- 1256al.

48 deficient personality of indigenous peoples. Sepulveda made several references to

Francisco de Vitoria's doctrine on jurisdiction. In contrast, Las Casas, who had spent several years as a Roman Catholic missionary in the Americas, wrote extensively criticizing the violent nature of the conquest, and the extinguishment of indigenous title.

Las Casas criticized Vitoria's treatment of possible titles to Spanish jurisdiction in the

Americas, which have provided for the extinguishment of indigenous title.

Las Casas' concern was the Spanish encomienda system, which granted Spanish conquerors and colonists parcels of lands and the right to the labor of the Indians living on them. The royal lawyer Juan Lopez Palacios, had prepared an official juridical declaration, known as the "Requirement" or Requirimiento, which required indigenous people to acknowledge the Church and the Pope as the ruler and superior of the whole world, and in his name, the Spanish King and Queen as superiors, lords, and kings of the

"new world." If the indigenous peoples failed to accept these requirements the document warned: "We shall take you and your wives and your children, and shall make slaves of them, and as such shall sell and dispose of them, as their Highness may command; and

For a more detailed discussion on the effects of colonialism on South America see Gerardo Munarriz, A Comparative Analysis of the UN and OAS Failures to Positively Affect the Human Rights Situation in Peru (LLM Thesis, York University, 2004) at 113-134.

76 See generally, Lewis Hanke, All Makind is One: A Study of the Disputation Between Bartolome de Las Casas and Juan Gines de Sepulveda in 1550 on the Intellectual and Religious Capacity of the American Indians (Dekalb: Northern Illinois University Press 1974). Hanke discusses the work of Las Casas as a supporter of indigenous rights, in particular his attack on the encomienda system. Also in Leslie C. Green and Olive Dickason, The Law of Nations and the New World (Edmonton: University of Alberta Press 1989) at 201-14. While Las Casas was actively in opposition to the violence in the colonies, he still advocated for a conversion to Christianity. For a more critical view of Las Casas' engagement with the Spanish colonial activity, see Bartolome Clavero, La destruccion de las Indias, ayery hoy (Madrid: Marcial Pons, 2002) and Daniel Castro, Another Face of Empire (Durham and London: Duke University Press, 2007).

49 we shall take your goods, and shall do all the harm and damage that we can, as to vassals that do not obey."77

The emerging doctrine of discovery has relied on a papal document issued in

1452, forty years before the arrival of Columbus to the Americas. Pope Nicholas V issued to King Alfonso V of Portugal the bull Romanus Pontifex, declaring war against all non-

Christians throughout the world, and specifically sanctioning and promoting the conquest, colonization, and exploitation of non-Christian nations and their territories.

Under various theological and legal doctrines formulated during and after the Crusades, non-Christians were considered enemies of the Catholic faith and, as such, less than human. Accordingly, in the bull of 1452, Pope Nicholas directed King Alfonso to

"capture, vanquish, and subdue the saracens, pagans, and other enemies of Christ," to

"put them into perpetual slavery," and "to take all their possessions and property."78

Acting on this papal privilege, Portugal continued to traffic in African slaves, and expanded its royal dominions by making "discoveries" along the western coast of Africa, claiming those lands as Portuguese territory.

Thus, Columbus was authorized to take possession only of lands that he discovered and which were not already under the dominion of other Christian rulers.

After Columbus returned to Europe, Pope Alexander VI issued a papal document, the bull Inter Cetera of May 3, 1493, granting to Spain - at the request of Ferdinand and

Isabella - the right to conquer the lands which Columbus had already found, as well as

11 Hanke, ibid, at 35-36.

Frances Gardiner Davenport, European Treaties bearing on the History of the United States and its Dependencies to 1648, Vol. 1 (Washington, D.C.: Carnegie Institution of Washington 1917) at 20-26.

50 any lands which Spain might "discover" in the future. The Inter Cetera document sanctioned the subjugation and conversion of the "discovered" people, which was also the means for propagation of the "Christian Empire. " Papal donation was an important basis of Spanish justification for colonial expansion in the Americas. The pope divided the world into Spanish and Portuguese spheres, recognizing the sovereign's rule as legitimate only if sanctioned by religious authority.

By the fifteenth century, however, the Pope's temporal powers had come to be resisted by the rulers in Europe. The more effective basis of the Pope's authority to create

exclusive rights in the New World was his spiritual role, as head of Christendom, to encourage conversion of non-believers. To this end, the Pope could assert control over temporal matters. Thus, his control over the territory was only incidental to the stated

main purpose, conversion of the heathens. In an attempt to delineate this new relationship, Francisco de Vitoria posited precepts on the law of war and the rights of

dependent peoples, which came to have an enduring influence on subsequent theories of

the developing law of nations.

Vitoria's two lectures On the Indians Lately Discovered and On the Law of War

Made by the Spaniards on the Barbarians (1532)80 constituted a part of the broader

debate in Spain among legal scholars and theologians over the legality and morality of

claims to the Americas, as well as the violent settlement patterns. For the purposes of this

argument, my intent is not to provide a definitive explanation of Vitoria's writings, but

79 Greg C. Marks, "Indigenous Peoples in International Law: The Significance of Francisco de Vitoria and Bartolome De Las Casas"( 1990-1991) 13 Aust. YBIL 19 at 61. 80 Francisco de Vitoria, Political Writings ed. by Anthony Pagden and Jeremy Lawrence (Cambridge: Cambridge University Press) at 250-251.

51 rather understand their concrete impact in debates and practice of the Spanish conquest.

Vitoria's reference to Aquinas's understanding of natural and eternal law, justice, and right, had carried over into the subsequent framing of international law and universalism.81

In 1534 Vitoria wrote a letter denouncing Francisco Pizzaro's conquest of Peru and refuted the theological arguments in favor of the conquest. At the beginning of his

Relectio de indis Vitoria asserts that the question of international jurisdiction and the relationship between Indians and the Spaniards, cannot be considered within the context of human law, but rather divine and natural law, as indigenous peoples were not under

European jurisdiction. Although not all human law was derivative of divine law (Vitoria makes a distinction in how the law is made), it was binding only when in accord with the divine order.82 His understanding of the distinction of responsibility between the church and the state, as well as his conflation of moral and legal orders, is crucial in understanding his treatment of indigenous and Spanish title, and the law among sovereigns. Vitoria differentiated between positive and natural law, distinguishing them by nature of the authorities creating them. He established that obedience to natural law arrived through the process of reason, while positive law constructed a second body of

81 Keeping in mind, also, the difference between the Catholic and Protestant understanding of the natural law and revealed knowledge of God. Catholics are generally inclined to recognize a continuum between natural theology, that which is known of God by the light of natural reason, and revealed theology. In contrast, many Protestants tend to accentuate the distinctiveness of natural and revealed knowledge of God at this point. These are the two traditions on natural rights: the older Christian understanding of man as created in God's image and therefore worthy of particular rights and treatment, and the other tradition rooted in the state of nature, mired in conflict among individuals for self-preservation, from which other types of rights emerged.

82 David Kennedy, "Primitive Legal Scholarship" (1986) 27 Harv. Int. L.J. 14.

52 law based on custom of "the whole world". Consequently jus gentium emerged as positive law from the consensus of the whole world, rather than natural law, but equally binding.

The relationship between divine and natural law follows from Aquinas' teachings.

According to Aquinas, the natural law was the manner in which human beings were able to grasp through practical reason their share in the eternal law and act on it accordingly.

The question over the extent to which God may be known through the natural law was part of natural theology, which emerged out of the growing need for dialogue between natural sciences and Christian theology. In Aquinas's Summa contra Gentiles, written during the period 1259-61, one of the most significant discussions focused on the manner of understanding how God may be related to the creation. Aquinas analysed this relationship through Aristotelian categories of causality: by virtue of being God's creations, all creatures recognized as humans possessed to an extent the quality of perfection possessed by God. Natural law thus constituted principles of practical rationality, by which human action was judged as reasonable or unreasonable.84

For Aquinas, the right, or the just, is a work that is adjusted to another person according to a notion of equality. This, however, depends on what is due to another, or one's right, and what is necessary for a man to move closer to perfection, which he possesses as God's creation. What is due to another is that which one possesses morally and legally. In other words, according to Aquinas' teleological framework, what is man's

^ Ibid, at 19.

Thomas Aquinas, On the truth of the Catholic faith. Summa contra Gentiles trans, by Anton C. Pegis (Garden City,N.Y:Hanover House,1955).

53 own is his potential and self-fulfillment, and what is due to a man is that, which assists him in the process of becoming. 5 Man is not perfect, but must move toward the qualities he possesses as God's creation and that which is required for perfection is what is due to each. Natural right is the right to perfective goods that would allow an individual to achieve the fullness of being.

In sum, Aquinas sees natural law as constituted by the basic principles of practical rationality, which also implies that the precepts of the natural law were universally binding and knowable by nature. The concept of ownership or dominium was based on man's capacity to reason, and therefore, even the infidels and children has capacity for ownership. However, the concept of perfective goods, or what is owned, also relates to

Aquinas' theory on just war. In reference to Augustine, he delineates three conditions necessary for a just war: first, the authority of the sovereign by whose command the war is to be waged; secondly, a just cause is required, namely that those who are attacked, should be attacked because they deserve it on account of some fault; and finally it is necessary that the belligerents should have a rightful intention, so that they intend the advancement of good, or the avoidance of evil. The universal precepts on rights and justice had an objective to establish a state of equilibrium among men: war in itself is not just, unless it is waged to attain some notion of the good. The seeming contradiction in

Vitoria's writings stems from the principle of just war; he can justify the Spanish conquest only in so far as he can prove that indigenous peoples have violated the precepts of natural law.

85 Aquinas, supra note 65.

54 Vitoria, following Aquinas, asserts that indigenous peoples are rational beings, since they have an ordered society, cities, marriage, magistrates, laws, artisans and markets, all of which require the use of reason. As such, they also had ownership of their lands. Since the distinctive characteristic of human beings is reason, the Indians are human beings and no one has the right to deprive them of their property. Vitoria distinguishes between spiritual and temporal authority, on the one hand, and ecclesiastical and civil power on the other. He displaces the Pope as the administrator of universal law among peoples, and favors natural law administered by a secular sovereign.

In reference to Aquinas, he allocates the question of ownership and property to the sphere of natural or human law, rather than divine law, concluding that the Indians could not be barred from being true owners in both public and private law solely on the basis of their status as unbelievers or heretics.

In the fourth part of De Indis, Vitoria refutes unjust claims, which were used to prove the legality of Spanish conquest. The difference between the indigenous and the

Spaniards, evident in the respective diversity of customs and social practices, could be overcome through the system of jus gentium and the understanding of indigenous peoples as possessing universal reason, and therefore capable of understating and being bound by this universal law.86 Consequently, emperor's supposed lordship over the world, and

Spanish claims to indigenous land on the basis of 'discovery' or divine law, could not violate the inherent rights of indigenous inhabitants.

Vitoria, supra note 80 at 250-251.

55 After having established the illegitimate Spanish claims over the New World, in the fifth part of De Indis Vitoria proceeds to present a set of legitimate claims of the

Spaniards and instances in which war against indigenous peoples is justified. If either party was found to be in breach of those legitimate boundaries, the violation of the law of nations could lead to the loss of the public title through just war. The epilogue is equally ambiguous in its commentary on the necessity for Spaniards to remain in the New

World.87

Vitoria establishes that under the law among nations, all peoples and including the

Spanish had expansive rights to the right to travel and sojourn as part of natural partnership and right to communication ("so long as they do not harm the barbarians, and cannot be prevented by them from doing so"),88 migration, and to freely engage in trade and commerce with all peoples. He also adds a right to proselytize without interference in the provinces of the New World. If indigenous peoples transgressed these universally binding norms, the Spaniards were justified in conquering and governing them "partly as slaves."89 However, only a sovereign had authority in declaring a war. He defines the sovereign as "a perfect State or community.... one which is complete in itself, that is, which is not a part of another community, but has its own laws and its own council and its own magistrates, such as is the Kingdom of Castile and Aragon and the Republic of

Venice and the like...Such a state, then, or the prince thereof, has authority to declare

87 Ibid, at 291-292.

88 Ibid, at 278. i9Ibid.aX29\.

56 war, and no one else". Throughout the writings on the law of war Vitoria makes a distinction of jus in bello and. jus ad bellum, for even if Spaniards were justified in waging the wars against the Indians, they could not go "beyond the limits which the necessities of warfare demand, and the legitimate customs of war permit."91

I argue that Vitoria's epilogue to De Indis reveals both his reservations with the situation in the colonies, as well as his pragmatism and recognition of Spanish imperial interests. He writes, "The conclusion of this whole dispute appears to be this: that if all these titles were inapplicable, that is to way if the barbarians gave no just cause for war and did not wish to have Spaniards as princes, the whole Indian expedition and trade would cease, to the great loss of the Spaniards. And this in turn would mean a huge loss to the royal exchequer, which would be intolerable."92 This initial conclusion recognizes the irreconcilability between following the rules of natural law and the interests of Spain, for if he could prove that the war against the Indians is not justified, conquest would have to cease to the detriment of Spanish interests. He qualifies this by explaining that the trade would not have to cease for "barbarians have a surplus of many things, .. .they have many possessions, which they regard as uninhabited, which are open to anyone who wishes to occupy."93 The Portuguese for instance, succeeded in carrying on a "great and

™ Ibid, at 301.

91 Ibid, at 293-327.

92 Ibid, at 291.

57 profitable trade war with similar sorts of peoples without conquering them." Vitoria proposes a tax system to be imposed on the gold and silver brought back from the barbarian lands. Finally, however, he concludes that the Spaniards would have to continue the administration of those territories once a large number of barbarians have been converted. He does not see the possibility in a reversal of the situation, and seeks to qualify and legitimize Spanish colonial rule.

Vitoria thus provides a mix of force and persuasion, natural rights and subjective pragmatism, sovereign and law among nations. I argue that he allocates the sovereign decision to the realm of exception to natural law precepts. Rather then being a contradiction in Vitoria's argument, the latter part of De indis is a contradiction between normative universalist precepts of natural rights, and politics. In his critique of the conquest, Vitoria refers to universal natural rights, which he then uses to justify the imperial interests of Spain. Without an apology for the Spanish conquest in the latter part of his writing, violence of conquest would remain banished as illegitimate, as Vitoria recognizes in his conclusion. He thus finds a justification for Spanish interests within the existing universal precepts and understanding of the good. Vitoria locates this justification in delimiting certain practices of indigenous peoples in the Americas as inherently in violation of the natural law, and the good. A violation of the good, justifies punishment.

Nonetheless, as both Vitoria and Aquinas delineate, the punishment would have to obey the laws of war. Vitoria cannot and/or is unwilling to repeal the conquest, he

Ibid, at 291-292.

58 does, however, seek to lessen the impacts of the atrocities, and propose a controlled trade.

An escape from the apologetic position of international law would have involved granting international law a different type of normative purpose and universalism; a recognition of a transcendental normative order with a different understanding of good and evil, where evil is not just a means to an end in punishment, or a contradiction to the good (theodicy), but associated with violence and suffering, and combated through law.

Possibilities within international law have been dependant since its inception on different relationships and interests at various levels: local, national, international, and transnational, the consequences of which have come to shape international law in particular ways. International law became related to the empire, because it developed in a certain way through empire. The consequences of various relationships and interests at local, national, and international levels had come to shape international law in particular ways. It is necessary to look at both: the theoretical debates over international law as well as specific circumstances on which they were based.

B. Waman Poma de Ayala and the other side of colonialism

For Jean Luc Nancy, a community is constitutionally founded in its fundamental divisions. He describes the simultaneous presence of identity and difference as 'partage' meaning both identity and difference. It is through the relational differences that lives are shared meaningfully. Meaning is a sharing of limits, where sense opens iteratively. As he writes, "The alterity of the other is its being-origin."95 The 'other' is not the 'essential

95 Jean-Luc Nancy, Being singular-plural, trans, by Robert Richardson and Anne E. O'Byrne (Stanford: Stanford University Press, 2000) at 11.

59 stranger who is simply opposed to what is proper' but rather, "one of the two." The stranger is also not a silenced partner in history.

The Spanish invasion and conquest were a coexistence of origins. There were alternative views to Vitoria's argument provided by native authors of the Americas.

Waman Poma de Ayala, Andean author and historian, wrote his El Primer Nueva

Coronica y Buen Gobierno (The First New Chronicle and Good Government) in form of a letter to King Philip III of Spain around 1615, in an attempt to provide another version of history encompassing the period from early stages of humanity to the times of Spanish colonial rule. Waman Poma's use of Spanish language and reference to writing style of his time was an attempt to use what he thought was a form of communication recognizable to the Spanish.

Waman Poma does not write outside of the Spanish epistemic framework. He complements it with a narrative of the experience of the conquest in the Americas that addresses the situation as a reversal of the proper order of things "el mundo al reves"

("the world upside down"). Referring to violence committed against the native peoples he writes, "From here until twenty years from now, there will be no Indian in this kingdom by which your royal crown and the defense of our holy Catholic faith might be served.

Because without the Indians, your Majesty is not worth anything. Because one must remember that Castile is Castile because of the Indians."97 Waman Poma echoes Vitoria's

Felipe Guaman (Waman Puma) de Ayala, El primer nueva coronica y buen gobierno edition critica de John V. Murra y Rolena Adorno ; traducciones y analisis textual del quechua por Jorge L. Urioste (Mexico, D.F. : Siglo Veintiuno, 1980) at 982.

60 pragmatism about the conquest, but from the Andean perspective. As becomes evident throughout the book, he has little hope that things will change for his people, however, his intent is to outline the illegitimacy of violence and exploitation using the very moral precepts forwarded by Spanish jurists and theologians. Waman Poma points to the syncretic nature of the conquest and significantly the role of the Americas in as Quijano explains, the creation of modernity.

The purpose of Nueva Coronica was to persuade and defend the rights of Andean people using their oral histories in conjunction with Spanish historical accounts of the conquest. Appealing to Vitoria, and the notion of natural law, Waman Poma asserts that the Andean people were not slaves in the Aristotelian sense, but free under God and

legitimate owners of their lands. He writes, "That you must consider that all the world is

Gods, and thus Castile belongs to the Spaniards and the Indies belongs to the Indians, and

Guinea, to the blacks. That each one of these is a legitimate proprietor, not only

according to the law, as St. Paul wrote, who for ten years resided [in Rome] and called himself a Roman." Assertion that Andean people have sole jurisdiction over their lands,

would oblige Spaniards to obey the Andean authorities while in the sovereign kingdom of

Peru. Each one in his own kingdom has legitimate ownership through God's justice.

Waman Poma points out that Jews and Moors who reside in Castile, are subject to the

laws of the land. Spaniards who are living in Peru are considered foreigners, or mitmaq

"in the language of the Indians" and as such they must obey Andean, not Spanish law."

98 Ibid, at 929.

61 He thus asserts Andean governance structures and laws; legal pluralism in the Americas; and the existence of boundaries and capacity of Andean laws to manage foreigners within the territory, much like the Spaniards.

Waman Poma's arguments counter the Spanish assertion that the military conquest of Peru took place. He accuses the Spaniards of having acted illegally: "And thus you must consider and conclude this: That there is no encomendero nor lord over the land but rather we are the legitimate proprietors of the land, by the right of God and of justice and the laws."100 He refutes Spanish argument that native Americans provided just cause whereby the Europeans could have waged a just war against them. First, he argues that Christianity was established in Peru prior to the arrival of the Europeans invalidating the title concerning the right of the Spanish to spread the gospel. He does so by attributing the presence of the historical Cross of Carabuco to the visit of St.

Bartholomew in apostolic times, "And thus we Indians are Christians, on account of the redemption of Jesus Christ and of his blessed mother, St. Mary, patroness of this kingdom and by the apostles of Jesus Christ, all of which arrived in this kingdom before the Spaniards. Because of them we are Christian and we believe in only one God of the

Holy Trinity."101 Second, he denies the cause of just war due to Incas' violent resistance because Indians had never usurped Christian lands nor done Christians any harm nor intended to do so; they had never been subjugated by any Christian prince or any member of the church. In contrast, he argues that the Incas freely accepted Spanish rule, which as

100 Ibid, at 972.

101 Ibid, at 378.

62 Adorno argues "lends historical dignity to his people and defends the civilized image of the contemporary Andean that he strives to create."102

Waman Poma's work is not merely a countering of Spanish colonial debates; it is an evidence of the duality, which Spanish jurists and theologians faced, and then attempted to deny or obliterate through an imposition of their own juridical, historical, and theological notions. He does not deny those notions, he uses them to assert the presence of Andean peoples and claim their sovereignty. He appeals primarily to the universal morality of Catholicism and the divine precepts of natural law and ordering.

Indigenous sovereignty, first denied through the precepts of the divine, became diminished eventually primarily based on the differences in cultural and societal practices among them and the Europeans. Waman Poma wishes to obliterate that difference and assert humanity of Andean peoples. He cannot do this within the framework of the

Andean worldview, which the colonizer has attempted to obliterate. Instead he refers to the dominant Christian morality and law among nations.

With roots in scholastic theology, Spanish jurists had set a measure for the universal law among nations. Natural law was a reference to some version of the good as an objective, which included the justification of war as part of what is owed to all peoples if they are found in breach of the universal law. Vitoria's writing was also an answer to a situation brought on by Spanish colonialism. It demonstrated the plurality of relationships that emerged out of the conquest. Similarly, Waman Poma provides an Andean

102 Rolena Adorno, Guaman Poma: writing and resistance in colonial Peru (University of Texas Press, Austin/Institute of Latin American Studies, 2000) at 30.

63 perspective on the colonial situation. Vitoria's Delndis and Waman Poma's Nueva

Cronica both refer to the moral order of natural law. A particular view of law among nations became universalized through conquest, and appropriated by a counter thought of the impact conquest had on the peoples of the Americas.

IV. Conclusion

The objective of the preceding analysis was to provide a critique of absolute fictions of community. It also exposes the disposition of the origin, syncretism, conflict, and pluralism of international law and the sovereign. Past and present experiences of disparity and conflict remain as an opposition to the abstract myth of the unitary sovereign or origins of law.

Continuous reflexivity is possible and it can provide a challenge to sacrifices in the name of absolutes, and with an understanding that no knowledge is absolute.

However, while justice is always in the infinite coming, the conflict of the present demands recognition. Still, different discourses or models of human reasoning are concerned with specific interests or assume a complete understanding of human nature, reasoning, and decision-making. The mirror image of individuals driven purely by ethics and self-reflexivity is also unlikely, due to multiplicity of relationships and interests.

Without the quasi-divine sources, the definition of'good' somehow emerges out of the world of realities and experience. The experience itself, however, can be disputed, which brings the argument back to the question of subjectivity. The grounding is heterogeneous, emerging out of plurality of intertwined experiences, and conflict. But this does not signify endless relativism, rather, it recognizes different agents who have

64 been appropriated or experienced violence, or who even recognize their own survival as dependant on the survival of their environment.

The presupposition of sharing in a commonality (with content such as culture, language, interests, or religion) underlines the community today. The result is the distinction between our community and those who remain outside. The outsiders, however, are not merely the foreign Other, but also observed by the self and evaluated as someone that can be included, excluded or utilized. In the process the Other's rationality and capacities are questioned, which can result in dehumanizing practices.

What implications does this have for those who become 'dehumanized'? Primo

Levi's 'Shema' poses a question of "Consider if this is a man?" deprived of humanity and who "dies because of a yes or a no."103 If the answer is "no", such dehumanization implies an assault on humanity of others. The decision to dehumanize others undergoes a justification process, which involves a value system and definition of "good" and "bad".

As we come to evaluate the universality of the contemporary language of human rights, the question remains if we can have ethical grounding, which would prevent denial of humanity to others. At the same time, the refusal of the self to become deprived of the power to say "I", results in claims for justice, and in the contemporary setting, in claims for human rights, to self-determination, and re-gaining of the ownership of one's humanity.

Primo Levi, If This Is a Man/The Truce, trans, by S Woolf, (London: Vintage, 1979) at 17.

65 CHAPTER 2

Indigenous Peoples' Right to Self-Determination in International Law

Introduction

Indigenous peoples' claims to self-determination provide a challenge to competing claims to sovereignty not only by nation-states, but also by transnational private actors and thus highlight the complexity of regulatory fields in which states and non-state actors operate. The maintenance of democratic legitimacy and social responsibility - traditionally the sole purview of states - are increasingly contingent upon private forms of regulation managed by transnational enterprises.

The doctrine of state sovereignty, however, remains significant in international law, as becomes evident in its infulence on the status of indigenous peoples' claims in international, transnational, and domestic arenas. The emergence of transnational legal norms does not merely mark the state's lesser role in the law making processes; it indicates the change in the role of the state and the way it takes part in the global economy. The importance of state sovereignly has been reaffirmed in the recent United

Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP affirms the inviolability of the doctrine of state sovereignty, and yet qualifies it by recognizing indigenous rights. Part of the ambiguity of the principle and the right of self- determination in international law and its applicability to indigenous peoples, stems from the myth of underlying sovereignty of settler states. Indigenous peoples' situation before international law thus points to its duality, for while it claims universality international law still remains constricted by the doctrine of state sovereignty.

66 Through a discussion of the right to self-determination, this chapter focuses on the relationship between indigenous peoples and the state, including the extent of state duties and obligations to protect indigenous rights, as well as vertical interrelations among the international human rights protection regime and member states, and the legitimacy of international human rights instruments within domestic law. Indigenous peoples' claims to the right to self-determination enter not only into such multi-polar conflicts, playing out on different levels of government and involving an intricate policy mix of public and private actors and constituencies, but also within broader debates on the status of self- determination in international law as a principle and a right, as well as the issue of who are the 'peoples' that can lay claim to it.

The definition and scope of self-determination has remained ambiguous and is one of the most controversial topics in international law. Its protean character has also raised questions of exceptional 'hard cases', which continue to challenge the stability and predictability of international law.1 Despite the development of the protection of individuals' rights under an expanding human rights regime, international law has continued to prove highly resistant to normatively recognizing subjects outside of the state.2 Hence, indigenous peoples' self-determination claims raise significant classificatory questions with regard to systems and modes of (political) governance. What then is the relationship between self-determination and the doctrine of state sovereignty?

' Martti Koskenniemi, '"The Lady Doth Protest Too Much' Kosovo and the Turn to Ethics in International Law" (2002) 65 Mod. L. Rev. 159; Anne Orford, Reading Humanitarian Intervention in International Law, Human Rights and the Use of Force in International Law (Cambridge, Cambridge University Press, 2003).

2 Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge, New York: Cambridge University Press, 2003).

67 Moreover, how does this apply to indigenous peoples in their attempt to gain control over their territories and resources?

In an attempt to answer these questions, this section will proceed as follows. First, it will look at the position of indigenous peoples' rights within the positivist tradition in international law. Second, it will follow the development of the UNDRIP. Third, it will trace the principle of self-determination to its appearance as a political principle pre-

1945, as well as the contemporary treatment of self-determination through instruments and the practice of international law.

I. Human Rights and Sovereignty

The realities of conflict and co-existence of peoples in settler societies has been contrasted historically by attempts on the part of both international law and the sovereign to erase these pluralities. This erasure became explained as a rational outcome of new conceptualization of what it signified to be human and sovereign. With the advent of positivist bent in international law as well as the transition from natural to human rights, the philosophical grounds changed, placing the sovereign state as the higher secular authority. My objective in this chapter is not to recount numerous studies on the history of rights.31 wish to point to the link between natural and human rights. Natural rights, as human rights, provide some image or possibility of a society that would transcend the present. As such, the concept of human rights cannot escape the need for some rooting, a common element of what constitutes humanity. A definition of humanity, however, creates the criteria that can include and exclude. The concept of human rights, or human

3 See for eg. Costas Douzinas, The end of human rights (Oxford: Hart Publishing, 2000).

68 nature, did not become secular, rather it replaced God with another secular theology.4

Thus, as Douzinas points out "the intertwining with legal positivism meant that the tradition, which created natural and later human rights, has also contributed to the repeated and brutal violations of dignity and equality which have accompanied modernity, like its inescapable shadow."5 With separation of God from nature and the concept of absolute free will, sovereignty became the omnipotent organizational structure. Still, the question of relations among the sovereign never escaped the bent towards transcendental image of the international community.

In contrast to naturalist international law which asserted that a universal international law applied to all peoples who could understand it through reason, the positivist outlook distinguished between civilized states and non-civilized states and asserted that international law applied only to the sovereign states which comprised the civilized 'family of nations.' As Lassa Oppenheim wrote in 1920, "As the basis of the law of Nations is the common consent of the civilized states, statehood alone does not imply membership of the Family of Nations."6 The criteria for civilization were linked to social and political practices of the peoples within a territory. Emmerlich de Vattel, applied his definition of statehood to the indigenous peoples in the Americas concluding that there is a distinction between "civilized Empires of Peru and Mexico" and North

American "peoples of those vast tracts of land [who] rather roamed over them than

4 Ibid, at 66.

5 Ibid, at 68.

6 Lassa F.L. Oppenheim, International Law 3rd ed., ed. by Ronald F. Roxburgh (London and New York: Longmans, 1920) at 134-35.

69 inhabited them."7 Furthermore, once "a people has passed under a rule of another, [it] is no longer a State, and does not come directly under the Law of Nations."8 Statehood then, did not exist in international law until the moment of recognition on the part of the civilized states.9 Act of recognition of a nascent state on the part of the 'family of nations' was necessary for its existence as an international person and a subject of international law. This approach became known as the constitutive theory of recognition of statehood. The law that constituted the sovereign depended and became founded in the decisions of the sovereign.

For the decolonization process and contemporary secession movements, national- liberation became possible only in the form of self-determination as a nation state.

Several state-centric doctrines of international law, such as uti possedetis, ensured that the territorial borders of the new state remained as they were delineated by the colonial powers. As the British publicist M.F. Lindley argued, while non-European "backward" peoples with a certain minimum of what would be considered as political organization did qualify as "political societies", such that their territories could be acquired only by the rules ordinarily applicable to members of the "International Family",11 once a conquest

7 Emmerich de Vattel, The Law of Nations, or the Principles of Natural Law, trans., by Charles G. Fenwick (Classics of International Law Series, 1916) at 38.

8 Ibid.

9 James Crawford, The Creation of States in International Law, 2nd ed. (Oxford: Oxford University Press 2006) at 12-36.

10 Ibid.

1' Mark F. Lindley, The Acquisition and Government of Backward Territory in International Law (London and New York: Longmans Green, 1926) at 45-46.

70 "has become a fait accompli, International Law recognizes its results."12 Contemporary recognition of indigenous peoples' sovereign status would allow for a possibility of a re- carving of international borders. The process of decolonization, however, would also then require recognition of alternate forms of governance, departing from the recognizable image of the sovereign nation state.

Justification for international law's complicity with empire retained a propensity to creation of absolute frameworks. For instance, scientism gave international lawyers a theoretical justification for the avoidance of questions regarding the grounds of international law. In part, this was a response to the very uncertainty of international law's existence. The argument put forward by John Austin in 1832, that international law was not "properly so called",13 spurred the legal scholars to actively search for the authority of international law, which would not be a mere morality. The legal discipline became imagined as a 'science.' For John Westlake, order among nations could be established through classification of "institutions or facts", which could then be arranged in order to develop a coherent and overreaching international law. The scientific methodology relied upon a formulation of categories and rules required for arriving to a correct solution to any particular problem or a crisis.

Legal science in the latter half of the nineteenth century was thus conceived as an ordering mechanism against the chaos of individual preferences, which could be won

12 Ibid, at 47.

John Austin, The Province of Jurisprudence Determined (Hew York: Noonday Press, 1954) at 139.

14 John Westlake, Chapters on the Principles of International Law (Cambridge: Cambridge University Press, 1894) at 12.

71 only by ensuring the autonomy and fixity of law, and establishing its inner characteristics and principles. However, the manner in which this particular mode of classification was established remained confined to a place beyond the reach of historical scrutiny. The blind spot among international lawyers' proposals was the violence that took place in the colonies. They came to view international law as an autonomous system, divorced from its own history. The legal system and its binaries of just/unjust or legal/illegal were applicable only to relationships among European states. As the concept of just or unjust treatment remained ambiguous in the colonies, they were allocated to the position of non- law, and violence.15

Sovereignty became inextricably linked to the control over territory, as well as recognition of membership within the society among other sovereigns, which presupposed the possession of characteristics necessary to belong to the civilized society.

Western settler states formally adopted the colonial principles supporting the doctrine of discovery as part of their domestic law determining indigenous peoples' rights and status.

The manner in which an entity became a state or acquired territory was not significant.

Conquest generally involved militarily defeating an opponent and thus acquiring sovereignty over the defeated party's territory. The colonizing power assumed sovereignty over the non-European territory, and the personality of the non-European was extinguished or diminished. Cession was also considered as a form of incorporating the non-European peoples within the 'family of nations'.

15 Jacques Derrida, "Force of Law: The 'Mystical Foundation of Authority'" in D. Cornell, M. Rosenfeld and D. Carlson, eds., Deconstruction and the Possibility of Justice (New York: Routledge 1992) at 993.

72 The conceptual framework offered by private law, and in particular property law, played an influential role in the jurisprudence regarding the acquisition of territory.

Significantly, the protection or accommodation of Europeans' rights to trade and reside in a particular state was a measure of civilization. Westlake provided a justification for the exclusion of indigenous peoples as subjects of international law as follows:

The inflow of the white race cannot be stopped where there is lands to cultivate, ore to be mined, commerce to be developed, sport to enjoy, curiosity to be satisfied. If any fanatical admirer of savage life argued that the whites ought to be kept out, he would only be driven to the same conclusion by another route, for a government on that spot would be necessary to keep them out. Accordingly international law has to treat such natives as uncivilized.16

In accordance with such approach, peoples who failed to comply with standards of

civilization by resisting the incursion of the Europeans, were not legal entities and did not occupy land. The territories they inhabited became territorium nullius- or vacant land. 7

Trade was the mechanism for advancement and progress, which required its expansion

deep into the interiors of appropriated continents.18

The framework of historicism provided the idea, " that to understand anything it has

to be seen both as a unity and in its historical development."19 A people's history was

also a representation of different stages of their development, allowing for a distinction

between the civilized and uncivilized, and developed or undeveloped parts of the world,

16 Westlake, supra note 14 at 141-143.

17 Lassa Oppenheim, supra note 6 at 383-84.

18 Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2004) at 97.

19 Dipesh Chakrabarty, Provincializing Europe: postcolonial thought and historical difference (Princeton, N.J.: Princeton University Press, 2000) at 6.

73 where intervention, colonization, and appropriation of peoples and their lands and resources, could be justified and they finally "civilized" or "modernized." As the process of decolonization in international law recognized the capacity of conquered peoples to self-rule as sovereign states, it did not entirely re-formulate their "not yet" status. Non-

European peoples were now capable of self-rule, but still lacking development and modern rule of law.20 Concepts of civilization became replaced by images of the underdeveloped third world realm, where governance and judicial reforms had yet to be modernized.

The moment of sovereignty's assertion takes place in the realm that is neither legal nor illegal (or as Carl Schmitt has posited "the paradox that the decision to produce law need not be based on law"),21 but becomes reaffirmed in law it subsequently creates.22

The law establishes the sovereign that establishes the law. The assertion of sovereignty over territory, and its character beyond law, became a fact defined as justiciable through law. The nation state became the universal summit, while non-state forms of social and political organization could be dominated and treated as non-subjects within the realm of law. New concepts, such as the notion of trusteeship, came to the fore that continued to differentiate the less civilized other, in its endless transformation into the modern, and

20 Ibid, at 9.

Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (Cambridge, Massachusetts, MIT Press, 1985 [1921]) at 13.

Derrida, supra note 15.

74 civilized nation.23 Under the 1919 Covenant of the League of Nations, all League members committed to "undertake to secure the just treatment of the native inhabitants of territories under their control".24 Lindley had argued in 1926 that although indigenous peoples were not themselves considered to be full subjects of international law, states could become obligated vis-a-vis each other as a matter of general international law for the benefit of the native peoples over which they exercised control.25

Three decisions of the United States Supreme Court regarding the status of

American indigenous peoples, each written by Chief Justice John Marshall, were largely influenced by the characterization of indigenous peoples' status within the Vattelian version of international law, and affirm colonization as one of the legitimate ways of obtaining territory.26 In the 1823 opinion for Johnson v. M'Intosh,27 Marshall described

North American Indians as

fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as distinct people was impossible because they were as brave and high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.28

23 The notion of trusteeship became internationalized through a series of conferences such as the 1885 Berlin Conference on Africa, or the 1919 Covenant of the League of Nations adopted at the close of World War I.

24 Covenant of the League of Nations art. 23 (a).

25 Mark F. Lindley, supra note 11 at 324-36.

26 James Anaya, Indigenous Peoples and International Law, 2nd Ed., (Oxford University Press, 2004) at 23. See also, Robert K. Faulkner, The Jurisprudence of John Marshall (Princeton: Princeton University Press 1968).

27 21 U.S. (8 Wheat.) 503 (1823).

28 Ibid, at 590.

75 Marshall justified upholding superior U.S. title to Indian land on the basis of discovery.

While he recognized that this conclusion deviated from "natural right, and to the usages of civilized nations", it was conditioned by the context of limits of domestic judicial competency and "indispensable to that system under which the country has been settled." As Williams points out "Marshall's opinion for a unanimous Supreme Court in

Johnson asserted that the law of the United States acknowledged the medievaly derived doctrine that discovery of infidel-held lands by European nations vested the Europeans with superior title in those lands." ° Colonial conquest thus remained as one of the legal modes of acquisition of territory under the classical international law, giving the rights of ownership primarily to the new settler sovereigns who "discovered" the land.

One of the premises reflected from Marshall's Supreme Court Opinions, and their reliance on Vattel's doctrine, was that of the pre-existing community of states, which both created international law and possessed rights and duties under it. In Cherokee

Nation v. Georgia?1 the treaties with the new sovereign implied a pre-existing international personality of the Cherokee. However, Marshall described the Indian tribes as "domestic dependent nations...their relationship to the United States resembles that of a ward to his guardian."32 In his previous decision involving the Cherokee, Worcester v.

29 Ibid, at 592.

Robert A. Williams Jr., The American Indian in Western Legal Thought: The Discourse of Conquest (New York: Oxford University Press 1990) at 231.

3i 30 U.S. (5 Pet.) 1(1831).

32 Ibid, at 17.

76 Georgia, Marshall emphasized the common reference to the tribes as "nations" and, citing Vattel, compared them to the "tributary and feudatory states" of Europe, which were included among sovereign states subject to the law of nations despite their having assented to the protection of a stronger power.34 Marshall upheld the "original natural rights" of the Indians over their lands, which they could not lose by discovery alone.35 In

Worcester, he recognized voluntary cession or actual conquest as a basis for deciding whether an Indian tribe had been divested of its rights. In the absence of conquest, it was a matter of treaty relationship.

The first power to lay claim over indigenous land, had the sole right of acquiring it and indigenous nations could not convey rights in the land to others. Marshall characterized this "discovery doctrine" as regulating "the rights given by discovery among the European discoverers", but not as affecting "the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man".36 As such, the discovery doctrine was a part of customary law, based upon consent among involved states. Significantly, Marshall's emphasis on the nature of governance of the Cherokee points to the criteria for a political community that Vattel and other theorists used to denominate nations or states. He stresses the national character and self-governing capacity of the Cherokee in contrast to the

33 31 U.S. (6 Pet.) 515 (1832).

M Ibid, at 560-61.

35 Ibid, at 559.

36 Ibid, at 554.

77 societies, which lacked such organization. This characterization of indigenous peoples signaled the ensuing dominance of the political and jurisprudential tendency to deny them sovereign status, unless they were able to fit within recognizable narrow parameters of political and social organization.

Issues of race and culture thus played an important part in the constitutive process of the doctrine of sovereignty, in combination with territorial expansion and control of resources. Indigenous peoples' diminished legal status allowed for economic dominance and loss of property, land, and resources. And further, treaties with indigenous groups by which they ceded lands could not establish a state's title to territory because, to follow

Westlake, the "uncivilized tribes" did not comprehend the full attributes of territorial sovereignty. By the early twentieth century, indigenous peoples of various colonial societies found themselves surrounded by the now consolidated colonizing states, many of which adopted trusteeship notions, seeking to bring the native peoples from their backward practices and to 'civilize them.' In the case Cayuga Indians (Great Britain) v.

United States the international arbitration tribunal in 1926 ruled that Great Britain could not maintain a claim for the "Cayuga Nation" as such, but only for the Cayuga

''Ibid, at 26.

^ Ibid, at 143-145.

39 Cayuga Indians (Great Britain) v. United States, VI R. Int'l. Arb. Awards 173 (1926). The claim was based on obligations Great Britain had undertaken toward the Cayuga Indians in an 1814 Treaty with the United States.

78 Indians living in Canada on the basis of their British nationality. The tribunal declared resolutely that an Indian tribe is not a legal unit of international law.40

Economic development and territorial interests have been part of the broader modernizing project of the nation, which had to sacrifice indigenous peoples' way of life for progress. However, having been reaffirmed through violence or denial of other people's existence, the sovereign needed to procure novel ways of legitimation, as democratic legitimacy and social responsibility came to require greater recognition and inclusion of indigenous peoples. Still, this recognition has remained contingent upon among others, broader interests of sovereignty, society, and economic development. As

Nancy argues, "if sovereign exercises its power, it is entirely on the condition of the

"state of exception" where laws are suspended. The fundamental illegitimacy that is in this case the condition of legitimacy must legitimize itself."41

Different interests and their concepts of the greater good have had totalizing tendencies, bearing an image of a shared and unitary ontology. Is there another way of imagining sovereignty? Nancy argues for the 'bare sovereignty', which "presupposes that one take a certain distance from the politico-philosophical order and from the realm of 'political philosophy'" in order to imagine the retreat of the political. The retreat of the political "does not signify the disappearance of the political. It only signifies the disappearance of the philosophical presupposition of the whole politico-philosophical

m Ibid, at 176.

41 Jean- Luc Nancy, The Creation of the World or Globalization, trans, by Francois Raffoul and David Pettigrew (State University of New York Press, 2007) at 102.

79 order, which is always an ontological presupposition. But how can sovereignty, if imagined as relation and praxis of being-with, escape replication and domination of certain categories? Re-imagining of sovereignty would also demand new understandings of political institutions, the workings of power and in general, the very concept of community. And further, the debates over sovereignty and self-determination in international law replicate these very questions of existing categories and the proposed alternatives.

II. Indigenous Rights in Modern International Law

Under the auspices of basic principles of universality, equality and non­ discrimination in international law, indigenous peoples are entitled to the full range of rights established under international law.43 At the same time, as collectivities, indigenous peoples present that they have distinct cultures and worldviews, and that their current needs, interests, and aspirations for the future may differ from those of the mainstream population.44 For this reason, indigenous peoples have claimed the recognition and protection of not only their individual rights, but also their collective rights as distinct peoples. Their increasing participation in the international human rights agenda has led to the development of a separate body of international instruments for the recognition and protection of the rights of indigenous peoples. These instruments have

42 Jean- Luc Nancy, Being Singular-Plural, trans by Robert Richardson and Anne E. O'Byrne (Stanford: Stanford University Press, 2000) at 36-37.

43 James Anaya, Indigenous Peoples in International Law, 2nd ed. (Oxford: Oxford University Press, 2004).

4 UNDG Guidelines on Indigenous Peoples' Issues (UNDG Task Team on Indigenous Issues 2008) at 6. Such a position varies greatly from nation to nation.

80 included the adoption of the International Labour Organisation's Indigenous and Tribal

Peoples Convention in 1989 (ILO Convention No. 169),45 and more recently, the adoption of the UNDRIP by the General Assembly in September 2007.46

Indigenous peoples, and other peoples worldwide, have taken seriously the existence of international human rights law as an arena for defense of equality, human dignity, and non-discrimination. However, are these claims also proposals for alternative conceptualization or law, politics, sovereignty and community, or do they replicate the same issue of power and politics as managers of relations within community? And further, to what degree the situation of 'distinctiveness' has been helpful to indigenous peoples' claims and aspirations? On the one level, the rubric of'indigenous peoples' has opened space within international law for peoples who have not been recognized as such in this arena. On the other, there is still a lack of recognition of their status as sovereign peoples, which means that the distinctive status is also a status subordinate to nation states.

The UNDRIP was adopted by the General Assembly on 13 September 2007,47 following more than two decades of negotiations between governments and indigenous peoples' representatives. It was adopted by a majority of 144 states in favour, 4 votes

45Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), 72 ILO Official Bull. 59, entered into force Sept. 5, 1991; International Labour Office, A Guide to ILO Convention NO., 169 on Indigenous and Tribal Peoples (Geneva: International Labour Office, 1995).

45 The Human Rights Council adopted the Declaration on 29 June 2006 (Resolution 2006/2). See the Report of the First Session of the Human Rights Council (A/61/53). The General Assembly approved the Declaration on 13 September 2007 (Resolution 61/295).

47 UN Declaration on the Rights of Indigenous Peoples, G.A. Res. UNGAOR, 61st Sess., Un Doc. A/RES/61/295 (2007) [hereafter the UNDRIP].

81 against (Australia, Canada, New Zealand and the United States) and 11 abstentions

(Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian

Federation, Samoa and Ukraine).48

The UNDRIP establishes a universal framework of minimum standards for the survival, dignity, wellbeing, and rights of the world's indigenous peoples, rooted in international norms such as equality, non-discrimination, self-government, and cultural integrity. It has emerged out of indigenous peoples' engagement with the UN, member states, representatives of specialized agencies and departments of the Secretariat, independent experts, and indigenous representatives, in an attempt to reach understandings regarding self-determination under international law, and to establish new mechanisms and methods for cooperating on matters relating to the sustainable development of indigenous lands and resources. Meaningful political and economic self-determination is closely related to indigenous peoples having legal authority to exercise control over their territories and resources. Article 3 of the Declaration affirms indigenous peoples' right to self-determination.50 It addresses both individual and collective rights51 and cultural rights and identity, among others; outlaws discrimination against indigenous peoples52 and promotes their full and effective participation in all

48Erica-Irene Daes, "An overview of the history of indigenous peoples: self-determination and the United Nations" (2008) 21 Cambridge Review of International Affairs 7.

Final Report of the Special Rapporteur, Erica-Irene Daes, 'Indigenous peoples 'permanent sovereignty over natural resources. UN Doc. E/CN.4/Sub.2/2004/30 13 July 2004 at para. 7.

50 UNDRIP, supra note 47 at Article 3.

51 Ibid. Article 40.

52 Ibid. Articles 13, 34 and 40.

82 matters that concern them. It also ensures their right to remain distinct and to pursue their own priorities in economic, social and cultural development.54 The Preamble explicitly encourages harmonious and cooperative relations between states and indigenous peoples.

In addition, in February 2008, the United Nations Development Group (UNDG)55 has adopted guidelines to assist the UN system in mainstreaming and integrating indigenous peoples' issues in processes for operational activities and programmes at the country level. The UNDG guidelines set out the broad normative, policy and operational framework for implementing a human rights based and culturally sensitive approach to development for and with indigenous peoples, providing lines of action for planning, implementation, and evaluation of programmes involving indigenous peoples.

Furthermore, the guidelines provide a framework for integrating the principles of cultural diversity into UN country programmes.

Indigenous activism at the level of international institutions had been influenced by local conditions transformed through conflicts between states and indigenous peoples,

53 Ibid. Articles 3, 4, 18, 9, 23 and 32.

54 Ibid. Article 3.

55 UNDG, supra note 44. The United Nations Development Group (UNDG) is an instrument for UN reform, created by the Secretary General in 1997, to improve the effectiveness of UN development at the country level. The UNDG brings together the operational agencies working on development. The Group is chaired by the Administrator of the United Nations Development Programme (UNDP) on behalf of the Secretary General.

83 as well as by the impact of economic globalization. Indigenous movement gained significant prominence in the 1960s and 1970s. Its rapid growth coincided with worldwide independence struggles, decolonization processes, Cold War violence, as well as the growing human rights movement within the UN. The first international conference on the non-governmental organizations and indigenous issues, the NGO Conference on

Discrimination against indigenous Populations, was held in Geneva in 1977.57 In the same year, the International Indian Treaty Council gained consultative status with the UN

Economic and Social Council (ECOSOC), the first indigenous organization with rights of participation in UN meetings. Especially, since the formation of the Working Group on

Indigenous Populations in 1982, the UN became an important arena for negotiation of indigenous rights. As Ted Moses writes, "we viewed the opportunity to bring the concerns of the Indigenous peoples to the United Nations very seriously, for it offered a hope of a brand-new, and badly needed, means of redress for our people."58 The Working

Group in particular, had two essential mandates: to review current developments on the promotion and protection of the human rights and fundamental freedoms of indigenous peoples, and to draft international standards to protect the rights of indigenous peoples.

See e.g. Jerry Mander and Victoria Tauli-Corpuz eds., Paradigm wars : indigenous peoples' resistance to economic globalization: a special report of the International Forum on Globalization, Committee on Indigenous Peoples (San Francisco, Calif. : International Forum on Globalization, 2005).

57 Special NGO Committee on Human Rights, NGO Sub-Committee on Racism, Racial Discrimination, Apartheid and Decolonization. International NGO Conference on Discrimination Against Indigenous populations in the Americas. Geneva, Switzerland: 20-23 September 1977.

Moses, Ted, "Invoking International Law" in Marie Battiste, ed., Reclaiming Indigenous Voice and Vision (Vancouver: UBC Press, 2000) at 174.

59 See Resolution 1982/34 of 7 May 1982 of the Economic and Social Council.

84 However, its position as a branch of the Sub-Commission on Prevention of

Discrimination and Protection of Minorities also reflected that indigenous peoples were not yet seen as a category distinct from that of minority groups.

In order to create an ongoing UN mechanism for indigenous peoples, a Permanent

Forum on Indigenous Issues (UNPFII) was established in 2000 by the UN Economic and

Social Council (ECOSOC).60 TheUNPFII, composed of 16 independent experts, many of whom are indigenous persons, was mandated to discuss indigenous issues related to economic and social development, culture, the environment, education, health and human rights and make recommendations to the UN system through the Economic and Social

Council. The Permanent Forum's mandate also included raising awareness and promoting the integration and coordination of activities related to indigenous issues within the UN system, as well as producing relevant material. Furthermore, the Commission on Human

Rights (now the Human Rights Council) established the Special Rapporteur on the

Situation of Human Rights and Fundamental Freedoms of Indigenous People. The Special

Rapporteur has the mandate to undertake country visits, report on trends, and take up cases directly with governments in relation to human rights violations.

In the 1980s and 1990s, the Working Group drafted the Declaration on the Rights of Indigenous Peoples, which was the result of persistent lobbying since the Working

Group's formation. After twelve years of debate, a broad consensus was reached among

60 The Permanent Forum was established by the United Nations Economic and Social Council (ECOSOC) Resolution 2000/22 on 28 July 2000.

85 the UN human rights experts and the indigenous partners on a proper interpretative declaration, which articulates forty-five articles that set minimum standards for indigenous people's human rights. This process witnessed collaboration between technical experts and indigenous people. It also became a set of aspirations of postcolonial self-determination and human rights. As Youngblood Henderson states, "We argued that Indian peoples are peoples under the charter and covenants. The declaration is an interpretive tool for applying UN Human Rights Covenants to Indigenous peoples and to begin a belated design for post-colonial nation-building."61

The Decade ended in 2004 with the failure of efforts to see the Declaration adopted by the Human Rights Commission, questioning whether any gains have been made in pursuit of indigenous self-determination at an international forum. In response, indigenous people's representatives at the UN initiated a hunger strike, which ended after a negotiation with representatives from the UN Commission for Human Rights, resulting in the renewal of the Decade (2005-2015) and developments regarding the Declaration.62

In addition, the UN system established the Inter-agency Support Group on Indigenous

Issues (IASG).63 In July 2006, within the framework of promoting the Second

International Decade of the World's Indigenous Peoples, the United Nations

Development Group recommended that the IASG provide support and guidance for

61 James (Sakej) Youngblood Henderson,"Post Colonial Ghost Dancing" in Marie Battiste, ed., Reclaiming Indigenous Voice and Vision (Vancouver: UBC Press, 2000) at 169.

62 On 22 December 2004, the General Assembly adopted Resolution A/RES/59/174 for a Second International Decade, which commenced on 1 January 2005.

63 For more information see, Inter-Agency Support Group on Indigenous Issues (IASG), online:< http://www.un.org/esa/socdev/unpfii/en/iasg.hfanI>.

86 mainstreaming and integrating indigenous peoples' issues in UN operational activities by working as a Task Team of the United Nations Development Group. The UNDG Task

Team on Indigenous Issues was thus established in order to develop guidelines for mainstreaming and integrating indigenous peoples' issues in mechanisms and processes of the UN system at country level and to develop a plan of action for their implementation.64

The work of indigenous peoples on the UNDRIP was based on their continuous experience of human rights abuses as well as the interests of their communities, such as self-governance and economic development. During the debates over the principle and right of self-determination, it became evident that what indigenous peoples envisioned as their right to self-determination diverged from the visions of State representatives or some UN officials.65 Throughout its development, international law has constructed a particular meaning of indigenous identity and entitlement, which was not consistent with the self-image of most indigenous peoples as nations. Hence, the accepted model of law and legal reasoning has been conditioned by the self-perception of the UN as an institution, as well as the arguments it could recognize as valid.66

The most controversial component of the Declaration and consequently the main stumbling block against its adoption by the General Assembly has been its affirmation of

64 See United Nations Development Group (UNDG), online:

Sarah Pritchard, Setting International Standards: An Analysis of the United Nations Declaration on the Rights of Indigenous Peoples and the First Six Sessions of the Commission on Human Rights Working Group, June 2001,

See e.g. Karen Knop, Diversity and Self-Determination in International Law (Cambridge: Cambridge University Press, 2002).

87 indigenous peoples' right to self-determination in the Article 3, which echoes the UN

Charter Article 1(2) and the common Article 1 of the widely ratified international human rights covenants, the International Covenant on Civil and Political Rights (ICCPR)67 and

International Covenant on Economic, Social and Cultural Rights (ICESCR)68 and is also included in the African Charter on Human and Peoples' Rights.69 It states, "Indigenous 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."70

This proclamation of indigenous peoples' right to self-determination has been opposed by a number of states fearing secession. Proposals for the recognition of indigenous rights, as subject to the existing constitutional framework of each State, would contradict the aspirations of indigenous peoples, who want recognition of rights that cannot be defined or limited by the States in which they live. Change in the status of indigenous peoples, which would accord greater rights to self-governance, pose a direct threat to state interests in managing territories and resources on which indigenous peoples live.71

International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47, 6 I.L.M. 368 (entered into force 23 March 1976) [hereafter ICCPR}.

International Covenant on Economic, Social and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No. 46, 6 I.L.M. 360 (entered into force 3 January 1976) [hereafter ICESCR].

69 African Charter on Human and Peoples' Rights, 21 June 1981, 1520 U.N.T.S. 217, 21 I.L.M. 58(1982) (entered into force 21 October 1986) [hereafter African Charter].

70 U.N. Declaration, supra note 23 at Article 3.

71 For example the Canadian government's position is that the Declaration is incompatible with its constitution and the Charter of Rights and Freedoms because it affirms only the "collective rights" of indigenous peoples and that fails to keep a balance with individual rights. Furthermore, the Canadian government, like the United States, opposes the UN Declaration on the Rights of Indigenous Peoples because it calls for both governments and private businesses to obtain prior and informed consent of indigenous communities in order to use their lands and resources. See Canada's Position: United Nations

88 III. Self-determination and Statehood

Contemporary juristic and political debates over self-determination have focused on the question of whether it has become a criterion for statehood and if so, with what effects. The right of peoples to self-determination has been acknowledged to be a principle of customary international law and even jus cogens, a preemptory norm of universal application.72 Still, there has been much debate about what precisely the right to self-determination entails. The narrow association of self-determination with the right of an entity to be a state has presented a challenge to the existing borders, and separatist claims have been met by piecemeal and inconsistent responses by the international community. At the same time, international law's embrace of democratic governance and human rights as universal entitlement, focuses on the right to governance by the consent of the governed, challenging the traditional state-centered, sovereignty discourse.74 The emphasis on democratic governance puts into question the process of constitution and disintegration, and carrying out of proper institutional arrangements.

Draft Declaration on the Rights of Indigenous Peoples - June 29, 2006 online:< http://www.ainc- inac.gc.ca/nr/spch/unp/06/ddr_e.htinl>

72 Anaya, supra note 43 at 97; Ian Brownlie, Principles of Public International Law 6th ed. (Oxford: Oxford University Press, 2003) at 489; Hector Gross Espiell, "Self-Determination and Jus Cogens," in Antonio Cassese ed. U.N. Law/Fundamental Rights: Two Topics in International Law (Alpena an den Rijn: Sijthoff & Noordhoff, 1979) at 167; Hurst Hannum, Autonomy, Sovereignty and Self-Determination (Philadelphia: University of Pennsylvania Press, 1996) at 45; Patrick Thornberry, International Law and the Rights of Minorities (Oxford: Oxford University Press, 1991) at 14; Proceedings from the 11th Meeting of the UN Working Group on Indigenous Rights, UN GAOR U.N. Doc. E/CN.4/Sub.2/1992/33 (1992) at 18.

73 Diane Orlenticher, "Separation Anxiety: International Response to Ethno-Separatist Claims (1998) 23 Yale J. Int. L. 1

74 See e.g. Thomas Franck, Fairness in International Law and Institutions (Oxford: Oxford University Press, 1995). But also Martti Koskenniemi, "Legal Cosmopolitanism: Tom Franck's Messianic World," (2003) 35 N.Y.U. J. INT'L L. & POL. 471

89 Self-determination has become an important constitutive aspect of state building, as well as a disintegrative challenge to existing borders. Claims to self-determination have challenged the cosmopolitan attempts of international law to create rules applicable to all, as they came to reveal constant re-emergence of particular end-state interests.

The view holding that the entities to which self-determination applies as a right are those with clearly defined territorial borders, has posed an obstacle to the recognition of indigenous peoples and their systems and modes of (political) governance in international law. This position is expressed in Higgins' argument that "[s]elf- determination refers to the right of the majority within a generally accepted political unit to the exercise of power. In other words, it is necessary to start with stable boundaries and to permit political change within them."75 Consequently, the definition of a 'people', outside the realm of 'generally accepted political units' has been fraught with difficulty.76

Entities qualifying as 'peoples' have been identified as territories under condition of classic colonialism, aggregate populations of independent states, and territorial communities linked to ethnicity and historically exercised territorial sovereignty.

However, Anaya has argued for a more flexible definition of peoples: "Because human beings develop diverse and often overlapping identities and spheres of community- especially in today's world of enhanced communications and interaction on a global scale-the term 'peoples' should be understood in a flexible manner, as encompassing all

Rosalyn Higgins, The Development of International Law through the Political Organs of the UN, (London: Oxford University Press, 1964) at 104.

76 Crawford, supra, note 9 at 125.

77 Anaya, supra note 43 at 101.

90 relevant spheres of community and identity." Furthermore, as a human right, self- determination is related to the nexus of other human rights norms and values, as premised in human rights principles of universality, inter-dependence, and inter-relatedness. All rights have equal status, and compromising or violating another right cannot achieve fulfillment of one right.79

Significantly, some indigenous scholars see the self-determination principle as an instrument for reconciliation as it opposes, both prospectively and retroactively, patterns of empire and conquest.80 In particular, the principle or right of self-determination has emerged within the international human rights regime as a significant exception to the traditional view that the creation of states is a matter of fact and not of law.81

As Anaya argues, self-determination is an animating force for efforts towards reconciliation—or perhaps more accurately, conciliation to recognize instances where there was no mutual agreement on state building between indigenous peoples and settler

James Anaya, "Self-Determination as a Collective Human Right under Contemporary International Law" in Pekka Aikio and Martin Scheinin eds., Operationalizing the Right of Indigenous Peoples to Self- Determination (Turku: Institute for Human Rights Abo Akademi University, 2002) 3 at 5.

79 United Nations General Assembly, Vienna Declaration and Programme of Action, I. 12/07/93. A/CONF. 157/23 ("All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious background must be borne in mind, it is the duty States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms" at para. 1(5)).

80 Ted Moses, "Renewal of the Nation" in Gudmundur Alfredsson and Maria Stavropolou eds., Justice Pending: Indigenous Peoples and Other Good Causes Essays in Honour of Erica-Irene A. Daes (The Hague, London, New York: Martinus Nijhoff Publishers, 2002) at 57.

81 Crawford, supra note 9 at 108.

91 societies—with peoples who have suffered oppression at the hands of others. If so understood, reconciliation processes within settler states would take place between distinct nations who chose to live together, and not only among citizens of one unified nation. Moreover, as policies towards indigenous peoples change among successive government administrations, international human rights law has gained the potential of ensuring the consistent respect of indigenous rights. Respect for the right of indigenous peoples' self-determination would then be a significant component of the democratic development of states and a prerequisite for reconciliation.

The above stated problems in recognition of indigenous peoples' right to self- determination, emerge precisely because self-determination continues to affirm distinctive communities; in other words, it can either be a tool for reconciliation and affirmation of democratic legitimacy of existing states, or it can pose a threat of secession and division of existing states. Hence, self-determination claims do not provide a challenge to the concept of community rooted in some shared idea; rather, they reaffirm the existing concept of self-determination as related to a 'people'.

IV. Development of Self-determination in International Law

The outbreak of the First World War, and the press for independence of different peoples put forward by numerous ethnic groups—which were until then part of Russian,

Austro-Hungarian, and Ottoman empires—raised the principle of self-determination to an international political concern.83 The association of national identity with statehood

82 Anaya, supra note 78 atl2-14.

83 Crawford, supra note 9.

92 became relevant during the territorial reconfiguration at the Versailles Peace Conference in 1919. It, however, did not yet exist as a legal right in international law, but as an assurance of independence to already existing states.84 An affirmation of self- determination as a legal right would have posed a clear challenge to the major European powers, which retained extensive colonial holdings well into the twentieth century. The legacy of the nineteenth-century differentiation between civilized and non-civilized peoples, as evident in the establishment of the Mandate System,85 as well as insistence on independence as a precondition of statehood served to perpetuate the exclusion of

European's colonies from the community of states that are full subjects of international law. Woodrow Wilson had advocated for self-determination as a fundamental principle of the peace negotiations. In his address of February 11, 1918, Wilson declared: "National aspirations must be respected; people may now be dominated and governed by their own consent. 'Self-determination' is not a mere phrase. It is an imperative principle of action, which statesmen will henceforth ignore at their peril."86 He associated the principle of self-determination with the Western liberal democratic ideals, while Lenin and Stalin linked self-determination with Marxist precepts of class liberation.87 While the Allies intended to make self-determination into the guiding principle of the Peace Conference, it had never been their intention to universalize the principle and apply it to their own

Anghie, supre note 18.

As quoted in Johnston, Darlene, "The Quest of the Six Nations Confederacy for Self-Determination" (1986) 44 U.T.Fac.L.Rev.l at 3.

87 Anaya, supra note 43 at 98-99.

93 peoples and territories. This was evident in their resolute opposition to Wilson's attempt to include in the Covenant of the League of Nations an article dealing with self- determination.

The new borders were drawn primarily along national lines, thus aligning self- determination with nationalist claims. A necessary prerequisite for the realization of this goal was the creation of a European system of minority protection. When the principle of the right of peoples to self-determination was discussed in relation to the question of the

Aaland Islands at the beginning of the 1920s, the Committee of Jurists appointed by the

League of Nations concluded that the right of peoples to self-determination was neither a principle nor a rule of international law. They primarily focused on the question of minority protection. Attempts made by indigenous peoples to bring their claims through the League, while receiving some sympathy, failed. In 1924, a delegation of Six Nations led by Iroquois Cayuga Chief Levi General, known as Deskaheh, traveled to Geneva to plead their case for treaty rights of self-government. The General Secretary of the League of Nations took up the matter in 1923, and Deskaheh's case was supported by states such as Ireland, Estonia, Panama, and Persia. Britain, however, removed the question from the

League agenda, insisting that it was an internal affair of the British Empire, and consequently no official action was taken.89

Thomas D. Musgrave, Self-Determination and National Minorities (Oxford: Oxford University Press, 1997) at 30; Antonio Cassese, Self-determination of peoples, A legal reappraisal (Cambridge: Cambridge University Press, 1995) at 23.

Anaya, supra note 43 at 51.

94 The Aaland Islands dispute in 1920 was the first case in which the League of

Nations had to consider an appeal to the principle of self-determination. The case considered the legal status of self-determination in international law, as well as the definition of a 'people' who can claim under it. It also pointed to the distinction between normal and exceptional situations, where only in the latter situation could secession be considered.90 Specifically, the population of the Aaland Islands claimed the right to attach themselves to Sweden rather than Finland, at the time when Finland itself was establishing its independence from the Russian Empire.91 Finland argued that the Council had no jurisdiction to make a recommendation on the Aaland Islands question, as it was a purely domestic matter under Article 15(8) of the Covenant of the League.92 Article 15 of the Covenant provided that disputes between members of the League should in certain circumstances be submitted to the Council of the League, which could hear the facts and make recommendations. Under paragraph 8 of the article, if the Council found the dispute to arise out of a matter that by international law was solely within the 'domestic jurisdiction' of a party to the dispute, the Council should so report and therefore make no recommendation as to its settlement.93

Martti Koskenniemi, "National Self-Determination Today: Problems of Legal Theory and Practice"( 1994)43 I.C. L. Q. 241 at 245; Crawford, supra note 11 at 108.

91 Crawford, supra note 9 at 108.

92 Ibid.

93 Article 15(8) states, "If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement."

95 The two Reports of the International Commission of Jurists and the Commission of Rapporteurs appointed by the Council, agreed that the self-determination of peoples was not a general rule of international law. They differed, however, in their approach to the issues. The Commission of Jurists reported that while self-determination existed as a political principle, there was "no mention of it in the Covenant of the League of Nations.

The recognition of this principle in a certain number of international treaties cannot be considered as sufficient to put it upon the same footing as a positive rule of the Law of

Nations."94 However, the Commission rejected the principle of self-determination in the context of entities definitively established as states.95 The matter was not one within

Finland's domestic jurisdiction under article Article 15 (8) of the Covenant, because at the time Finland was not definitively constituted as sovereign, and because the de facto situation of revolutionary entities, such as Finland was in 1919, "cannot be met by application of normal rules of positive law."96 The Commission reported that, "the situation is obscure and uncertain from a legal point of view, and will not become clear until the period of development is completed and a definite new situation, which is normal in respect to territorial sovereignty, has been established." 7 Furthermore, "this transition from a de facto situation to a normal situation dejure cannot be considered as confined entirely within the domestic jurisdiction of a State. It tends to lead to

94 Report of Commission of Jurists (Larnaude, Huber, Struycken), LNOJ Spec. Supp No.3 at 3 (October 1920).

96 readjustments between the members of the international community and to alterations in their territorial and legal status; consequently, this transition interests the community of

States very deeply both from political and legal standpoints."98

According to the Commission, self-determination, as a political principle, may not justify the dismemberment of clearly established states. However, in situations where state sovereignty itself is in question, the principle could become applicable only to reconstitute the political normality of statehood. Each evaluation and exercise of self- determination is an exceptional case, a process of interaction between the legal order and the extralegal, which has continued to challenge international law's authority. Each subsequent case would reappear to challenge the veneer of resumed stability among sovereigns. Simultaneously, the reach of international law had expanded at the expense of sovereignty through minority protection if not full self-determination.

By contrast, the Committee of Rapporteurs argued that, as Finland was not definitively constituted in 1917, the principle of self-determination was inapplicable. The

Rapporteurs agreed with the Commission of Jurists that the principle of self- determination

is not, properly speaking a rule of international law and the League of Nations has not entered it in its Covenant.. .It is a principle of justice and of liberty, expressed by a vague and general formula which has given rise to most varied interpretations and differences of opinion... To concede to minorities, either of language or religion, or to any fraction of a population

Koskenniemi, supra note 90 at 246.

100 Nathaniel Berman, "But the alternative is despair': European Nationalism and the Modernist Renewal of International Law"(1993) 106 Harv. L. Rev. 1792 at 1872.

97 the right of withdrawing form the community to which they belong, because it is their wish or their good pleasure, would be to destroy order and stability within States and to inaugurate anarchy in international life; it would be to uphold a theory incompatible with the very idea of the State as a territorial and political unity.. .The separation of a minority from the State of which it forms a part and its incorporation in another State can only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees.101

In the system of minority protection, sovereigns would generally maintain the control of the territory under their control. However, as both Reports agreed, in situations where territories are badly misgoverned they warrant a possibility of secession. As Crawford argues "This situation may be described as carence de souverainete and, although the modern law remains undeveloped, it will be proposed as one way in which the principle can apply in particular cases."1 On the one hand, the Rapporteurs factored the authority of the League to regulate and supervise the conduct of sovereigns while on the other the sovereign would not be divested of control, except in extreme circumstances. Finally the

Rapporteurs expressly stated that Finland was a 'people' in a way in which the population of the Aaland Islands was not, so that even if Finland had not been a separate entity before 1917, its secession from the Russian Empire would have been justified. The

Council accepted the Report of the Committee of Rapporteurs, recognized Finnish sovereignty over the Islands, and recommended certain minority guarantees, a modified version of which is still in force.103

101 Report of the Committee of Rapporteurs (Beyens, Calonder, Elk ens), 16 April 1921: LN Council Doct. B7/21/68/106 [VII], at 27-28.

102 Crawford, supra note 9 at 111.

98 The Aaland Island case saw the application of the principle of self-determination

as only applicable to peoples who fulfill criteria for becoming states. National self-

determination, however, challenged the formal structures of statehood through claims of

secession. Through the application of criteria of "abnormality" and "transformation" the

Commission of Jurists focused on self-determination as a legal-constitutional tool for reconstruction of borders in Europe.104 However, as the Aaland Islands opinion

demonstrates, the right to secession of a people within the boundaries of a state, as well

as other rights, was a matter confined to the domestic jurisdiction of the territorial state.

Self-determination could be invoked in cases of exception and uncertainty, but only by

the 'high authority' of the League, to restore the proper order among sovereigns. State

sovereignty thus became challenged by both, limited recognition of minority aspirations,

and the capacity of the supranational body to decide their fate. Exceptionality also

became associated with colonialism through the emergence of the UN human rights

regime, albeit with continuing qualification regarding the preservation of existing

territorial boundaries. If, however, self-determination was to be viewed as an existing

rule of international law, its applicability needed to be coherent in order not do

discriminate among similar situations of alien rule, and erode its legitimacy.105

A. The Right ofSelf-Determination under the Charter of the United Nations and UN General Assembly Declarations and Resolutions

Koskenniemi, supra note 90 at 246.

105 Thomas Franck, The Power of Legitimacy among Nations (Oxford: Oxford University Press, 1990) at 153.

99 Transformation of self-determination from the status of a political principle into a legal one, specifically through the decolonization processes of the 1960s and 1970s, became a significant challenge to the existing global political order since it both affirmed and challenged other principles and specific rules of international law. The reforms leading to the establishment of self-determination as a right emerged in response to the growing unrest in colonial territories as a conflict prevention mechanism.1 By making colonialism illegal, international law provided grounds for social forces to further contest its boundaries. Its affirmation in Articles 1(2) and 55 of the UN Charter, and emphasis on the self-determination of'peoples' demonstrated the entrance of democratic principles in the processes of state formation, thus making classic forms of colonialism illegitimate in international relations. In the Article 1(2), one of the stated purposes of the United

Nations is the development of 'friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.' In Article 55, the same formula is used to express the general aims of the Untied Nations in the fields of social and economic development and respect for human rights. Implicitly, the principle of self- determination of peoples is also found in Article 73 on the declaration regarding non-self- governing territories and in Article 76 on the international trusteeship system. The

General Assembly has elaborated more, in its various resolutions, on the definition on the content of the principle. The UN Charter, however, does not include any general right to self-determination.

Cassese, supra note 74 at 88-90.

100 The anti-colonial paradigm and the evolution of the 'principle' of self- determination into a 'right', despite questionable legal authority, was expressed in the UN

General Assembly resolution 1514 (XV) of 1960, the Declaration of Granting of

Independence to Colonial Countries and Peoples. The Declaration proclaims the necessity of ending colonialism in all its forms and manifestations. It declares 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."107 The declaration, however, also upholds the 'territorial integrity' of states and focuses on peoples as whole territories and not particular ethnicities or groups within them.108 As the Special Rapporteur to the UN Sub-Commission, Hector Gros

Espiell, concludes, since the declaration upholds national unity and territorial integrity of a country, the right to self-determination did not apply to peoples already organized as a sovereign state, which are not under colonial and alien domination.109 The 1960

Declaration was followed in 1962 by a General Assembly resolution 1803 (XVII) on the right of peoples and nations to permanent sovereignty over their natural wealth and

Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514 (XV), 15 UN GAOR, Supp. (No. 16), UN Doc. A/4684, at 66(1960).

108 Paragraph 6 states: "Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations." Furthermore, paragraph 7 states: "All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non- interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity."

109 Hector Gros Espiell, The Right to Self-Determination: Implementation of United Nations Resolutions (New York: United Nations, 1980) at 60.

101 resources.110 The Assembly declared that "peoples and nations" had a right to permanent sovereignty over their natural wealth and resources that must be exercised in the interest of their national development and of the wellbeing of the people of the state concerned.

Furthermore, the violation of this right was contrary to the spirit and principles of the

Charter and hindered the development of international cooperation and the maintenance of peace.111

In the Declaration on Principles of International Law Concerning Friendly

Relations and Cooperation among states in accordance with the Charter of the United

Nations, annexed to resolution 2625 (XXV) of 1970, the Assembly has declared that by virtue of the principle of equal rights and self-determination of peoples as enshrined in the Charter, all peoples have the right to self-determination.112 Like the Declaration on

Colonial Independence, the Friendly Relations Declaration contains a provision on the principles of territorial integrity and the political unity of sovereign and independent states. It provides that, only when all peaceful means of achieving self-determination have failed, should other measures be adopted. Significantly, the principle entitled 'The

Principle on equal rights and self-determination of peoples' states:

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging an action which would dismember or impair, totally or in part, the territorial integrity of sovereign and independent States

110 "Permanent Sovereignty over Natural Resources", G.A. Res. 1803 (XVII), 17 UN GAOR (1962) at sec. I para. 1.

111 Ibid, at sec. I para. 7.

112 Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), 25 UN GAOR, Supp. (No.28), UN Doc. A/8028, at 121 (1970). conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

Thus, while the Declaration does not uphold the right of peoples to secession to statehood, it does extend the right of self-determination to all peoples, moving away from the narrow application to the decolonization process, and also requires the governments to be representative of all people belonging to the territory. Hurst Hannum has, for instance, interpreted this to mean that government is not representative if it formally excludes a particular group from participation in the political process, based on that group's race, creed, or colour.114 Ultimately, the purpose of this declaration was to discourage secession, and focus instead on internal self-determination of peoples based on governance through democratic processes.

The right of self-determination was also reaffirmed within some instruments of the Conference on Security and Cooperation in Europe (CSCE)/Organization for Security and Cooperation in Europe (OSCE). The right was elaborated to greater extent in the

Final Act of the Conference on Security and Co-operation in Europe, signed in Helsinki,

1,3 ibid.

1M Hurst Hannum,"Self-Determination in the Post-Colonial Era", in D. Clark and R. Williamson eds., Self- Determination: International Perspectives (Houndmills: MacMillan Press, 1996)12 at 19. SeeKrystian Myntti, "The Right of Indigenous Peoples to Self-Determination and Effective Participation" in Pekka Aikio and Martin Scheinin, eds., Operationalizing the Right of Indigenous Peoples to Self-Determination (Turku: Institute for Human Rights, Abo Akademi University, 2002) 85 at 97. Myntti relates this view to the definition of political participation in the Article 25 of the ICCPR and Article 3 of Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

103 Finland on August 1, 1975." The first paragraph in the General Principle VIII, entitled

'Equal Rights and Self-Determination of Peoples', reads:

By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development.

And further:

The participating States will respect the equal rights of peoples and their right to self-determination, acting at all times in conformity with the purposes and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States.116

This principle emphasizes the universal nature of the right and represents a significant development in its evolution. While none of the state signatories are legally bound, they are precluded from challenging the validity of the content given those principles in the

Final Act. However, the application of self-determination was tempered by the Final

Act's strong emphasis on territorial integrity and the preservation of existing borders.

Moreover, none of the above mentioned instruments define to whom the right to self- determination is conferred. The politics surrounding self-determination continuously pointed to the internal struggles of international law, which have been present in its

structures since its very inception: the primacy of territorial borders and particular state interests, in contrast to its aspirations to universality. However, strict respect of territorial borders would fail to address situations of exception. As situations of exceptions

" The Final Act of the Conference on Security and Cooperation in Europe, Aug. 1, 1975, 14 I.L.M. 1292 [Helsinki Declaration].

mIbid. continued to challenge the doctrine of self-determination, they also reaffirmed the influence of particular political situations on the international legal system.

James Crawford has argued that while General Assembly is not a legislature, its resolutions represent a degree of consensus among states, giving them quasi-legislative effect. Furthermore, the principle of self-determination has been affirmed by the Security

Council.117 Crawford, however, identifies two problems: evidence and assessment, which require inquiries into "whether there exists any criteria for the determination of territories to which a 'right to self-determination' is to be accorded; and whether in its application to

1 1 O those territories self-determination has been treated as preemptory." As a legal principle, self-determination has remained ambiguous, despite its recognition within

international legal instruments. The Charter-based decolonization regime did not signify the reversal of social and political ordering prior to colonization. General Assembly

Resolution 1514 only recognized independent statehood for colonial territories with their colonial boundaries intact. Furthermore, the Vienna Declaration and Programme of

Action adopted by the World Conference on Human Rights in 1993 emphasized the primacy of territorial borders, by stressing that the right to self-determination "shall not be construed as authorizing or encouraging any action which would dismember or impair,

totally or in part, the territorial integrity or political unity of sovereign and independent

States conducting themselves in compliance with the principle of equal rights and self- 117 See e.g. SC resns 301, 20 October 1971 (Namibia); 377, 22 October 1975 (Western Sahara); 384, 22 December (Portugese Timor); 1598, 28 April (Western Sahara). James Crawford notes that in the SC res 1483, 22 May 2003, on Iraq refers to 'sovereignty and territorial integrity', but not to 'self-determination', supra note 9 at 113.

"8 Crawford, i6/c/. at 114.

105 determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind."1,9 Hence, although considered a principle of customary international law and even jus cogens, a preemptory norm of universal application, the application of self-determination became selective and conditioned by international political considerations.

The early stages of decolonization favored assimilation and the recognition of culturally distinct groups' rights to full citizenship. The attachment of the right to self- determination to the term 'peoples' has posed classificatory questions as to who are peoples and can they be included as the right bearers and subjects of international law.

Legal doctrines such as uti possidetis juris, effectively excluded any recognition of the rights to the lands that indigenous peoples had historically inhabited. Uti possidetis juris

"bestowed an aura of historical legality to the expropriation of the lands of indigenous peoples."121 Thus "the new law of self-determination has not resulted in the invalidation of these legal bases of title ipso facto."122 Nor did the UN Charter provide specific definitions for what self-determination actually means, or which groups constitute a

"peoples". Consequently, in the post Charter assessment of its contents, indigenous peoples were not considered in the provisions of non-governing territories in Chapter

"9 World Conference on Human Rights, Vienna 14-25 June 1993. Vienna Declaration and Programme of Action, UN doc. A/CONF. 157/23, 12 July 1993.

See e.g., Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge, Cambridge University Press, 1999).

121 W. Michael Reisman, "Protecting Indigenous Rights in International Adjudication" (1995) 89 Am. J. Intl' L. 350 at 352.

122 Cassese, supra note 72. XI.123 However, this emphasis on existing borders as embodying the relationship between nationality and statehood has constantly been undermined by the conflict among rival communities and the difficulty of determining which of them is the authentic "self- determination" unit. The so-called "blue-water doctrine" considered as indigenous those peoples beyond Europe who lived in the territory before European colonization and settlement, and who now formed a non-dominant, culturally separate group. Hence it did not include the forms of internal colonialism practiced in countries with significant indigenous populations.124 In particular, the Latin American countries were arguing against a more expansive interpretation of Chapter XL 125 Self-determination of internally colonized peoples or even a limited degree of autonomy in relation to the state became one of the most disputed issues in international public law, and a continuous security concern.

B. The Right to Self-Determination in the 1966 International Covenants

The right to self-determination came to exist under treaty law within the current human rights framework of international law as included in the common Article 1 of the

Thornberry, supra note 72 at 92.

124 The blue water thesis was incorporated in the G.A Res. 1541 in the Principle IV, "Prima facie there is an obligation to transmit information in respect of a territory, which is geographically separate and is distinct ethnically and/or culturally from the country administering it, and Principle V "Once it has been established that such a prima facie case of geographical and ethnical or cultural distinctness of a territory exists, other elements may then be brought into consideration. These additional elements may be, inter alia, of an administrative, political, juridical, economic or historical nature."

'Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples' Working paper submitted by Ms. Erica-Irene A. Daes and Mr. Asbjorn Eide in accordance with Sub-Commission resolution 1999/23 UN Doc. E/CN.4/Sub.2/2000/10 19 July 2000.

107 1966 Covenants, the ICCPR and the CESCR, stating that "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." By virtue of its inclusion in the treaties, self-determination is a human rights norm that already existed in international law as a part of general or customary law. Significantly, Article 1 does not create the right to self-determination, but confirms that it already exists and is in possession of all 'peoples'.126 The connection of self-determination with the term

'peoples' also implies its collective character, in addition to it being applicable to all human beings.

The right of self-determination of all peoples being a collective right, is not a right cognizable under the Optional Protocol to the ICCPR which is available for individuals only. The Human Rights Committee has not submitted any views under the Optional

Protocol on the interpretation of Article l.127 The general comment on Article 1 adopted by the Human Rights Committee in 1984 did not help to determine the definition of a

'people' that can claim self-determination.1 8 It however did emphasize the difference between the right of all peoples to self-determination and the rights of persons belonging

126Ted Moses, "Self Determination and the Survival of Indigenous Peoples", in Pekka Aikio and Martin Scheinin eds., Operationalizing the Right of Indigenous Peopels to Self-Determination (Turku: Abo Akademi, 2000) at 155.

127 See for example the cases, Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada (Communication No. 167/1984) and-E.P. etal. v. Colombia (Communication No 318/1988). Official Records of the Human Rights Committee 1989/90, Vol. II (New York: United Nations, 1995) at 381-391 and 445-446, respectively; Kitok v. Sweden (Communication Np. 197/1985), Official Records of the Human Rights Committee 1990/91, Vol. II (New York: United Nations, 1996), pp. 488-489. On the distinction between Article 1 and Article 27 of the CCPR, see Human Rights Committee, General Comment 23 (50), regarding Article 27. UN doc. A/49/40, pp. 107-110, para.2.

Human Rights Committee, General Comment 12(21), on Article 1. UN doc. A/39/40, at 142-143. to minorities in Article 27, which will be discussed in more detail together with the obligations for the states that have ratified the two covenants. Significantly, the Human rights Committee also establishes that there are similarities between the right to self- determination of all peoples (Article 1), the right to participate in the conduct of public affairs (Article 25), and the right of minority members to participate in decisions that affect their culture and identity (Article 27).129

C. The definition of 'peoples' entitled to self-determination

With the recognition of indigenous peoples' right to self-determination "as peoples" in Article 3, the UNDRIP establishes that they can freely determine their political status, providing for their economic, social, and cultural development by virtue of their status as peoples, and not by virtue of powers delegated by states in which they live. It also implies the obligation of states to negotiate with a collective entity that holds the right to self-determination predating the establishment of states. In reference to the

Article 1(2) of the UN Charter, recognition of indigenous peoples' right to self- determination is also an acknowledgement of their status as equal to other peoples with corresponding rights. At the same time, due to the diverse conditions and aspirations of indigenous peoples, the right to self-determination may be expressed through various arrangements. The implementation of self-determination would also allow indigenous peoples to decide on their own political framework for social, economic, and cultural development. In view of the concerns of states about their territorial integrity the right to self-determination as included in the Article 3 does not carry with it a right to secession.

Human Rights Committee, General Comment 25 (57), regarding Article 25, Un doc. A/51/40, at 98-103. Instead, Article 46 provides respect for the principle of territorial sovereignty and political unity of sovereign and independent states.

Under international law, only 'peoples' have the right to self-determination. The question of defining a 'people' concerns identifying the categories of territory to which

self-determination applies as a matter of right. In addition to states, other such categories are supported in the practice of states and interstate institutions. In the current practice

of international law, self-determination generally applies to 1) those territories or populations that are under conditions of classic colonialism; 2) states, as well as classical

colonial territories; and 3) territories which form distinct political-geographical areas

such as the highest level constitutional units of a federal state, and/or usually associated

with ethnographic cohesion.131

While limited, the practice of decolonization has created duties for states, as the

erga omnes character of the right to self-determination came to be recognized.1

Arguments for the extension to indigenous peoples' self-determination as a remedy for

decolonization presuppose and recognize their colonized status.' As indigenous peoples

argue for self-determination as a universal human right applicable to all people, they

130 See e.g. James Crawford, "The Right of Self-Determination in International Law: Its Development and Future", in Philip Alston ed., Peoples' Rights (Oxford: Oxford University Press, 2001) at 7. For discussion of categories to which the right to self-determination, in addition to states see, Reference re Secession of Quebec, [1998] 2 S.C.R. 217.

131 Anaya, supra note 43 at 105; Benedict Kingsbury, "Reconstructing Self-Determination" in Pekka Aikio and Martin Scheinin eds., Operationalizing the Right of Indigenous Peoples to Self-Determination (Turku: Institute for Human Rights Abo Akademi University, 2002) at 21.

132 Ibid, at 22.

110 appeal to the universality of international law and core principles of freedom and equality. Yet, indigenous peoples' right to self-determination, as affirmed in the

UNDRIP, is expressed only in its internal character. Several states have insisted on limitations to be included in the UNDRIP, including internal self-determination, governmental autonomy, and respect for territorial integrity and/or the sovereignty of democratic states. Initially, some representatives of indigenous peoples rejected these limits, although the end-state approach did not embody the preoccupations of most indigenous peoples.134 One of the reasons, however, was the argument that if 'all peoples' have the right to self-determination under Article 1 of the 1966 Covenants, the imposition of conditions different from those to which other peoples are subject would be unjustifiable discrimination.135

Thus, while indigenous peoples do have the right to self-determination as all other peoples under the Article 3 of the UNDRIP, they do not have the same recognition as states, or territories or populations that are under classic conditions of colonialism. This contradiction further questions indigenous peoples' relationship to sovereignty, whether international law accommodates plural forms of governance, and what exactly is the difference between indigenous peoples and the state. Significantly, the UNDRIP reflects the aspirations of most indigenous peoples, who did not seek the end-state approach to self-determination. It provides precepts for a process of 'belated state-building,' which

134 Susan Pritchard ed, Indigenous Peoples, the United Nations and Human Rights (London: Zed Books 1998).

135 Erica-Irene Daes, "Equality of Indigenous Peoples under the Auspices of the United Nations Draft Declaration on the Rights of Indigenous Peoples" (1995) 7 St. Thomas Law Review 493.

Ill would enhance its legitimacy through engagement with other forms of community and accommodation of pluralism and multiple identities.136 This approach to enduring relations between states and indigenous peoples would also consider variations in types of autonomy and governance of indigenous peoples, as well as the geographical and demographic setting. Indigenous peoples have multiple connections and preferences, including individuals residing in urban areas, outside traditional communities. The results of the negotiations and choices in particular cases would be as diverse as the situations and needs of indigenous peoples throughout the world.

Reflecting this diversity, the international community has not adopted a definition of indigenous peoples. Some instruments of international law imply such definition, and a working definition has been submitted by the Special Rapporteur of the

UN Sub-Commission Jose Martinez Cobo within the Study on the discrimination against indigenous peoples (Martinez Cobo Study). According to this "working definition":

"Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre- colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems." In

136 Erica-Irene Daes, "Some Considerations on the Right of Indigenous Peoples to Self-Determination," (1993) 3Trans'l L& Contemp. Probs. 1 at 9.

112 addition, a number of factors are listed as relevant for defining indigenous peoples and identifying their historical continuity. Thus, "a historical continuity may consist of the continuation, for an extended period reaching into the present, of one or more of the following factors: (1) Occupation of ancestral lands, or at least of part of them; (2)

Common ancestry with the original occupants of these lands; (3) Culture in general, or in specific manifestations, (4) Language; (5) Residence in certain parts of the country, or in certain regions of the world; (6) Other relevant factors." Importantly, self-identification as indigenous is a fundamental element of the working definition: "On an individual basis, an indigenous person is one who belongs to these indigenous peoples through self- identification as indigenous (group consciousness) and is recognized and accepted by the group as one of its members (acceptance by the group). This preserves for these communities the sovereign right and power to decide who belongs to them, without external interference."137

During the drafting of the UNDRIP, the majority of indigenous representatives emphasized the principle of self-identification. The UNDRIP does not contain a definition of indigenous peoples presupposing that indigenous peoples themselves have defined and determined whether they are indigenous as well as their membership.

Consequently, Article 8 provides that "indigenous peoples have the collective and

individual right to maintain and develop their distinct identities and characteristics,

including the right to identify themselves as indigenous and to be recognized as such."138

1 7 Study of the Problem of Discrimination Against Indigenous Populations. Final report submitted by the Special Rapporteur, Mr. Jose Martinez Cobo UN Doc. E/CN.4/Sub.2/1986/7 and Add. 1-4 paras 379-382.

138 UNDRIP, Article 8.

113 Article 33 of the UNDRIP refers to the rights of indigenous peoples to decide their own identities and procedures of belonging.139

The ILO Convention No. 169 also provides a definition of indigenous peoples which describes them as "Tribal peoples whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations." They are "[p]eoples who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions."140 The Convention also recognizes that self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this

Convention apply.141 Finally, The Working Group on Indigenous Populations' in the

Working paper on the concept of "indigenous people " lists the factors that have been considered relevant to the understanding of the concept of "indigenous" by international organizations and legal experts, including among others: priority in time, with respect to the occupation and use of a specific territory; the voluntary perpetuation of cultural

139 UNDRIP, Article 33.

140 International Labour Convention on Indigenous Populations No. 169 of 27 June 1989 Article 1, subsection 1, reprinted in International Labour Organisation, Provisional Record, International Labour Conference, 76th Sess. Geneva, No. 25.

141 Ibid, at Article 1, subsection 2.

114 distinctiveness, self-identification; and experience of subjugation, marginalization, dispossession, exclusion or discrimination, whether or not these conditions persist.142 All of the above mentioned definitions recognize the continued existence of indigenous peoples as distinct peoples. Hence, any implementation of the right to self-determination would recognize the specificity of indigenous peoples' situations and cultures. This includes the establishment of mutually agreed upon relationships between the state and indigenous peoples, where the communities would determine their own future in accordance with their own processes.

D. Approaches to the content of self-determination

Objections to indigenous peoples' self-determination, as well as the inability of the international community to recognize forms of governance outside the traditional purview of sovereignty doctrine, are rooted in the traditional dichotomy of 'internal' vs.

'external' aspect of self-determination, which has been prominent in the scholarly literature on the subject.143 In 1996, the Committee on the Elimination of Racial

Discrimination adopted General Recommendation XXI on self-determination, which observes the distinction between internal and external self-determination.144 It identified

Working Paper on the concept of "indigenous people " of the Working Group on Indigenous Populations UN Doc. E/CN.4/Sub.2/AC.4/l996/2, para.69. 143 Allan Rosas, "Internal Self-Determination" in Christian Tomuschat ed., Modern Law ofSelf- Determination (The Hague: Martinus Nijhoff Publishers, 1993) at 225; Gudmundur Alfredsson, "The Right of Self-Determination and Indigenous Peoples," in Christian Tomuschat ed., Modern Law of Self- Determination (The Hague: Martinus Nijhoff Publishers, 1993)21 at 50-54; Rosalyn Higgins, "Post Modern Tribalism and the Right to Secession, Comments," in Catherine Brolmann, Rene Lefeber and Marjoleine Zieck eds., Peoples and Minorities in International Law (Dordrecht, Boston, London: Martinus Nijhoff Publishersl993)at29.

4 Committee on the Elimination of Racial Discrimination. General Recommendation XXI (48), UNdoc. A/51/18, para 4.

115 the internal aspect of self-determination as the right of all peoples to pursue freely their economic, social, and cultural development without outside interference. In that respect there exists a link with the right of every citizen to take part in the conduct of public affairs at any level. In consequence, governments are to represent the whole population without distinction as to race, colour, descent or national or ethnic origin. The external aspect of self-determination implies that all peoples have the right to determine freely their political status and their place in the international community based upon the and by the prohibition to subject people to alien subjugation, domination, and exploitation.145

The external domain of self-determination deals exclusively with peoples' status or dealings in relation to other peoples, occupying mutually exclusive spheres of community. This, however, does not include a general right of peoples to unilaterally declare secession from a state. Antonio Cassese has argued that as a customary rule of internal self-determination as a right of the whole population of a sovereign state is currently taking shape in the international community.146 However, "Both customary and treaty law on internal self-determination have little to say with respect to the possible modes of implementing democratic governance... still less to they furnish workable standards concerning some possible forms of realizing internal self-determination, such as devolution, autonomy, or 'regional' self-government." 7 This binary view of self- determination does not have provisions for autonomy regimes, as these would constitute

Cassese, supra note 72 at 347 and 311.

Ibid, at 332.

116 self-determination of a part of the population of a state and not its whole.148 For Thomas

Franck, the inclusion of the right within the ICCPR, meant that it "ceased to be a rule applicable only to specific territories [...]. It also [...] stopped being a principle of exclusion (secession) and became one of inclusion, a right to participate."149

Consequently, the internal/external dichotomy views self determination as being either a right of a people to manage their internal issues, such as political participation or, their relationship with other peoples as whole, such as state to state relations, and freedom from alien rule.

Such an end-state approach focuses on self-determination of 'peoples' as had been established during the decolonization process, and still is relevant in some

situations. In contrast, James Anaya's framework of constitutive and ongoing self- determination, takes into consideration both inward and outward looking dimensions of units of human organizations, as well as the multiplicity of spheres of human association. Constitutive aspect of self-determination requires that the governing

institutional order be substantially the creation of processes guided by the will of the people, or peoples, governed. The ongoing aspect of self-determination requires that the governing institutional order, independently of the processes leading to its creation or

alteration, be one under which people may live and develop freely on a continuous basis.

It provides the criteria for the continuous functioning of the governing order. In its

148 Higgins, supra note 75.

149 Thomas Franck, "The Emerging Right to Democratic Governance"(1986) 86 American Journal of International Law 46 at 58-59.

150 Anaya, supra note 43 at 103-110.

117 constitutive aspect, self-determination includes criteria for procedures leading to the creation of, or change in institutions of government within any given sphere of community.151 These criteria include participation and consent, resulting in a political order that can reflect collective will of the people or peoples concerned. Anaya relates this aspect of self-determination to the provisions common to the international human rights covenants and other instruments that state that peoples, 'freely determine their political status' by virtue of the right to self-determination.'

Anaya further contrasts the substantive aspect of self-determination with the remedial prescriptions that may follow violations of the right. The remedial prescriptions, as he argues, include prescriptions to undo the classical institutions of colonialism, which "correspond with measures to remedy a sui generis deviation from enjoyment of the right that existed in the prior condition of colonialism."152 Colonialism violated both the constitutive and ongoing aspects of self-determination. Remedial prescriptions and mechanisms also would vary from case to case, in response to relevant circumstances. Significantly, pursuant to the principle of self-determination, the international community has deemed illegitimate historical patterns giving rise to colonial rule and has promoted corresponding remedial measures retroactively, irrespective of the effective control exercised by the colonial power and notwithstanding the law contemporaneous with the historical colonial patterns.153

151 Ibid, at 106. lS2Ibid. at 107.

153 The International Court of Justice (ICJ) recognized self-determination as the basis for the process of decolonization in Legal Consequences for States of the Continued Presence of South Africa in Namibia

118 The remedial aspect of self-determination has also been affirmed by the

International Court of Justice (ICJ) in the opinion on the postwar law of decolonization, in the Western Sahara case.154 In its Opinion, the Court found that it was competent to comply with General Assembly's request for an advisory opinion despite the fact that one of the parties, Spain, had not consented to court proceedings. In this way it established more permissive rules for granting advisory opinions. The Court defined the primary role and meaning of self-determination as "the need to pay regard to the expressed will of the peoples" as well as asserting that the right was the right to decolonization.155 It affirmed that self-determination gives precedence to the present-day aspirations of aggrieved peoples over historical institutions. The Court held that the Western Sahara was not terra nullius at the time it was acquired by Spain in the late nineteenth century, because

Spanish claims were based on treaties and agreements made with indigenous political leaders demonstrating contemporaneous recognition of organized communities.156 Since local leaders governed tribes, which had their own social and political organizations, it could be said that the territory had belonged to them and thus had not belonged to no

(South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, 16 at 31. For the role of self-determination in the decolonization process see also, Aurelia Critescu, The Right to Self-Determination: Historical and Current Development on the Basis of United Nations Instruments (New York: United Nations, 1981).

Western Sahara, 1975 I.C.J. 12, 25 (January 1). Further decisions and advisory opinions of the International Court of Justice on the question of peoples' right to self-determination are: Case concerning Right of Passage over Indian Territory (Portugal v. India), (Merits), Judgment of 12 April 1960, ICJ Reports 1960, p.6; Case concerning the Northern Cameroon's (Cameroon v. United Kingdom), Order of 11 January 1963, ICJ Reports 1963, p.3; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986, p. 14; Certain Phosphate Lands in Nauru (Nauru v. Australia), Order of 18 July 1989, ICJ Reports 1989, p. 12; and Order of 8 February 1991, ICJ Reports 1991, p.3; and East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, p.90. 155 Western Sahara, Advisory Opinion, 1975 I.C.J. 12 at 68.

156 Ibid, at 39.

119 one.157 In the words of Judge Ammoun, "the concept of res nullius, employed at all periods, to the brink of the twentieth century, to justify conquest and colonization, stands condemned." While the Court did find legal, relevant "historical ties" between the people of the Western Sahara and the political communities corresponding with the modern newly independent states of Morocco and Mauritania, which sought to incorporate the Western Sahara without a referendum of the territory's population, it held that those ties were subordinate to the wishes of the present day people of the Western

Sahara in the decolonization of the territory.159 The Court stressed that self- determination the overriding principle in the decolonization of the Western Sahara, required regard for the freely expressed wishes of the people of the territory, notwithstanding their character or political status immediately prior to colonization.160

Significantly then, the Court affirmed the importance of remedies in the decolonization process as well as the consideration for contemporary interests and wishes of the affected populations. For indigenous peoples, the remedial aspect of self-determination does not in most cases involve secession, due to their present circumstances interconnected character of diverse forms of human association, while it may be an appropriate remedial option in certain contexts where substantive self-determination for a particular group cannot otherwise be assured.

151 Ibid, at 39-40.

158 Ibid, at 38-40.

159 Ibid, at 68.

m Ibid, at 33, 68. Preferences for the protection of state territorial integrity and political unity have limited the capacity of the international system to regulate matters within domestic spheres of authority. Under the contemporary international human rights regime, however, the doctrine of sovereignty, while affirmed in the UN Charter, is also tempered by human rights values, as they are expressed in the Charter and affirmed by the international community. Recognition of indigenous peoples rights and self- determination emerge within the human rights framework, but both limit territorial integrity and political unity of states. Hence, while, international law recognizes through the human rights protection regime, right of minorities and indigenous peoples, this is tempered by affirmation of state sovereignty and territorial integrity, except in circumstances of massive and exceptional human rights abuses. This is reflected, for instance, in various admissibility provisions, such as the individual complaints procedure established by the Optional Protocol to the ICCPR, where the Committee may receive and consider complaints brought by individuals subject to the jurisdiction of states parties to the Optional Protocol who claim to be victims of a violation by that state party of any of the rights set forth in the Covenant, provided that certain admissibility conditions are met.161 These conditions are, among others, that the author of the communication is the victim of the alleged violation or a duly authorized representative and that all available domestic remedies have been exhausted.162

V. Conclusion

161 Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester: Manchester University Press, 2002) at 116-244. The sovereignty of indigenous peoples in international law has been diminished through processes of colonialism, and their self-determination, including related rights such as the right to ownership of their natural resources and territories, has been considered in relation with legitimate countervailing interests of states and third parties that may be affected. Nonetheless, indigenous peoples' activism at both local and global levels, has resulted in some changes within international institutions, such as the UN, the

ILO, and the World Bank, which have incorporated new norms encompassing indigenous rights. The number of public law subjects continues to expand, including individuals forwarding their private human rights, as well as groups such as indigenous peoples claiming their collective human rights.

Continuous oscillation between particular interests and universal rights remains at the core of international law's instability. Self-determination claims are both a (re)affirmation and a challenge to the concept of sovereignty in international law. It is a claim to a (re) constitution of communities as whole entities with capacity to self-governance and inclusion and exclusion of members. As such decision making over who has a right to self-determination is as much a matter of politics as law. Claims to self-determination represent a conflict between general norms and particular interests. Indigenous peoples in particular have entered into this oscillation by adopting the universal language of human rights while at the same time seeking insertion of an alternate moral-legal thinking in international law. They seek to challenge the existing borders and concept of statehood, through the language of self-determination, which is rooted in the doctrine of statehood.

The challenge then is not to the community as nation, but to the existing boundaries,

122 which diminish indigenous sovereignty.

The process of defining self-determination and statehood in international law unveils the presuppositions regarding relationships between individuals and communities.

It is a presupposition of truth or 'right' or 'correct', 'good' and just' or and 'wrong' and

'unjust' as rooted in some image of human nature. In this way specific political philosophies on what constitutes humanity and/or humanity have provided fundamentals to the understanding of international law.

Creation of sovereign borders demands the knowledge of who are the members of the community and who are the outsiders. It is the identification of the self, and the identification of the other, of friend, and enemy. Sometimes, however, the outsiders are inside the sovereign borders and the compulsion is, either to contain their existence through special treatment, seek assimilation, or as it has been the case in various civil and ethnic conflicts, eliminate them. The enemy, or the other, is sometimes someone who co­ exists with the self in the same community (sovereign state). The other could be a fellow citizen, or his or her citizenship could be diminished. In other words, sectors of the society can co-exist at the margins, and not quite as part of the social contract.

Such is a continuous negotiation between indigenous peoples and the state. Their self-determination is subordinate to the interests of states in international law, however, at the same time their citizenship and participation in the social contract remains in question. Thus the claims they forward seek recognition at par of other peoples and states.

123 CHAPTER 3

Indigenous peoples' right to permanent sovereignty over their lands and resources

Introduction

In explaining the impact of oil and gas exploration on the Cocataibo peoples of the Peruvian Amazon, Carlos Soria, a lawyer with the Peruvian non-profit Instituto del

Bien Comun states, "This is life or death. Five hundred years after the arrival of

Europeans to the Amazon River, this is still a matter of life and death."1 The importance of indigenous peoples' permanent sovereignty over natural resources has been emphasized during the ongoing debates regarding indigenous peoples' right to self- determination and the adverse impacts of natural resource exploitation, such as oil and mineral extraction,2 in their territories. However, there has been a lack of legislation that protects indigenous peoples' lands and resources at both domestic and international levels and existing legislation often has lacked implementation.

This chapter will discuss the principles of indigenous peoples' permanent sovereignty over natural resources, as well as free, prior, and informed consent (FPIC); the complaint procedures for the U.N. Human Rights Committee and Individual

Communications under the Optional Protocol to the ICCPR; the Inter-American System;

1 Catherine Rolfsen, "In search of the Camanos," Vancouver Sun, Saturday March 14, 2009.

2 See, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen submitted in accordance with Commission resolution 2001/57 UN Doc. E/CN.4/2003/90. The report focused on the impact of large-scale development projects on human rights and fundamental freedoms of indigenous peoples and communities. Also see generally, Striking a Better Balance, Volume 1, Final Report of the World Bank Independent Extractive Industries Review (15 January 2004). The report concludes that the failure to respect the human rights of indigenous peoples in the context of extractive industries seriously undermines any underlying efforts to reduce poverty or achieve sustainable development (pp. 4-6, 18-23, 36-46, 50, 60).

124 and complaint procedures connected to the ILO Convention. It addresses these

instruments as they have become important in the present discourses on indigenous rights, as forwarded by indigenous peoples themselves or others (professionals, academics, human rights activists, and so on). The lack of enforceability of these

instruments presents the continuing significance of the territorial borders of sovereign

states in addressing indigenous claims at both domestic and international levels.

A question also remains regarding the understanding of co-existence, ownership,

and sharing of natural resources. As discussed previously, the sovereign state still remains the primary identification of the decision for co-existence, or 'being in common'.

At the same time, the appropriation of global resources through the logic of 'capital' has

opened up all borders and facilitated the accumulation of profit. This tension, as Nancy

argues, constitutes the extreme tension between citizen and subject, between the

community of the one and the community of the other, between sovereignty and itself.

Indigenous peoples' human rights claims stem from their interests in preserving

their lands and livelihoods— and thus seeking an appropriate language through which

they can challenge natural resource ownership at national, transnational, and international

levels. Their methods and claims vary from situation to situation, depending on which

strategy may illicit the greatest response in their favour. Particularly significant has been

the struggle over natural resources and territories, as transnational extractive industries

obtain concessions from nation states to access land often occupied by indigenous

peoples. Some indigenous peoples have objected to industries such as mining, while other

have sought a greater share of economic gains. In general, however, their claims involve

125 a demand for decision making and vetoing capacity, which has been compromised due to their status of diminished sovereignty.

Indigenous peoples have used different international instruments to claim their rights, including those established for the protection of minority rights. In addition, a separate body of international instruments has developed for the recognition and protection of the rights of indigenous peoples. More recently, the right of indigenous peoples to self-determination has also been expressed through provisions for self- governing or autonomous arrangements. To differing degrees, both the ILO's Convention

No. 169 and the UN Declaration recognize indigenous peoples' right to own, manage, and control their lands and natural resources. The UN Declaration calls upon States to establish mechanisms to guarantee these rights, and to consult with indigenous peoples to obtain their free, prior and informed consent prior to approval of any project affecting their lands and resources.3 The right to development implies for indigenous peoples the right to decide on the type of development that takes place on their lands and territories.

In particular, the UN Declaration and The Beijing Declaration and Platform for Action stress the need to consider the valuable contribution and rights of indigenous women.4

The meaningful political and economic self-determination of indigenous peoples requires that they also have legal authority to exercise control over their lands and territories. This involves reconciling state interests with those of indigenous peoples.

3 U.N. Declaration, supra note 112 at Article 10, 25-32. See ILO Convention No. 169 supra note 114 at Article 6,13-19.

4 Beijing Declaration and Platform for Action, Fourth World Conference on Women, 15 September 1995, A/CONF. 177/20 (1995) and A/CONF. 177/20/Add. 1 (1995).

126 However, a delicate process of balancing and communication happens within the diverse frameworks of the concept of natural resource management and ownership of nature. The following section will summarize some of the main developments in the area of indigenous peoples' right to control over their lands and resources within the United

Nations Instruments and the Inter-American Human Rights Law, as well as the ILO

Convention No. 169 and the UN Declaration on the Rights of Indigenous Peoples.

I. Indigenous Peoples' Rights to Lands Territories, and Resources

As established in the UN Charter and other human rights treaties, 'peoples'

(which includes indigenous peoples) should not be subject to any form of discrimination; should receive equal treatment (including gender equality); should be able to participate fully in public life; and have a right to maintain their distinctive identities, cultures, languages and ways of life. This is especially relevant in their right to autonomy and self- government. Similarly, as Rodolfo Stavenhagen underlines, "Indigenous peoples are aware of the fact that unless they are able to retain control over their land and territories, their survival as identifiable, distinct societies and cultures is seriously endangered."5

Several of the General Assembly Resolutions in the early stages of the decolonization process have established the principle of permanent sovereignty over natural resources of peoples. The principle gave the newly independent states the legal authority to combat and redress the infringement of their economic sovereignty arising from inequitable contracts and 'concessions' imposed by other States and foreign

Rodolfo Stavenhagen, The Ethnic Question: Conflicts, Development, and Human Rights, (Tokyo: United Nations University Press, 1990) at 105.

127 companies. Situations of unfair exploitation of colonized peoples' natural resources compelled developing countries and the newly de-colonized states to promote the development of a new international principle that recognized and protected their rights over their natural resources and wealth in their own countries.6 In 1958, the General

Assembly established the Commission on Permanent Sovereignty over Natural Resources and instructed it to conduct a full survey of the status of permanent sovereignty over natural wealth and resources as "basic constituent of the right to self-determination."7

General Assembly resolution 1803 (XVII) in 1962 declared that "peoples and nations" had a right to permanent sovereignty over their natural wealth and resources and that violation of their right was contrary to the spirit and principles of the Charter and hindered the development of international cooperation and the maintenance of peace."8

The General Assembly Resolution 3171 (XXVIII) of 17 December 1973 supported the efforts of developing countries to regain effective control over their natural resources.9

Permanent sovereignty over natural resources became a general principle of international law in 1966, when it was included in common article 1(2) of both

International Covenants on Human Rights: "All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit,

6 Janet Warden-Fernandez, "The Permanent Sovereignty Over Natural Resources: How it Has Been Accomodated Within the Evolving Economy", art. 4, CEPMLP Annual Review (2000).

7 See General Assembly Resolution 1654 (XVI) 27 November 1961.

8 General Assembly Resolution 1803 (XVII) 14 December 1962.

9 General Assembly Resolution 3171 (XXVII) 17 December 1973. See also, United Nations Action in the Field of Human Rights, United Nations, Centre for Human Rights (Geneva, 1994) at 262-263.

128 and international law. In no case may a people be deprived of its own means of subsistence." Article 47 of both Covenants and article 25 of the CESCR further state:

"Nothing in present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources."

Provisions of articles 47 and 25 were intended to ensure that States did not invoke paragraph 2 to impose or support "imperialist policies and practices tending to control the economy of developing countries and...impair thereby their political independence." The principle of permanent sovereignty over natural resources also became recognized as an essential precondition to a people's realization to self-determination and its right to development.10

The earlier General Assembly resolutions focused primarily on the need for international economic cooperation and relations among developed and underdeveloped countries. The debates and discussions around the inclusion of permanent sovereignty over natural resources in these various resolutions and instruments have addressed the rights of States to nationalize economic activities, in view of the "developing countries'" attempt to manage their own resources. By comparing their contemporary situation to that of colonized countries, indigenous peoples have included a discussion relating to their permanent sovereignty over natural resources in the context of the Working Group on Indigenous Populations, and the work on the UN Declaration at the Permanent Forum

on Indigenous Issues. More recently these debates have been extended in the context of

10 Declaration on the Right to Development, G.A. res. 41/128, annex, 41 U.N. GAOR Supp. (No. 53) at 186, U.N. Doc. A/41/53 (1986). institutions such as the World Bank and its review of the impact and value of extractive industry projects and its indigenous peoples policies.

During the sixth session of the United Nations Permanent Forum on Indigenous

Issues, indigenous peoples have identified their right to lands, territories and natural resources as inextricably linked to their collective survival and self-determination.

Representatives of indigenous groups called on the Forum to make specific recommendations to United Nations agencies and member states that could bring restitution. The ideas forwarded at the forum intended to counter the established understanding of ownership and management of the land. Rather, land was "not just something to buy and sell."13 One speaker from a South American indigenous group stated that land, water and natural resources were indeed living beings: "They are happy when we treat them well, but suffer when they are exploited irrationally."14 These calls came forward as a response to government led development, which gave concessions to exploration and exploitation of mining, oil and genetic resources in violation of the international standards created to protect indigenous rights.15

1' Striking a Better Balance, Volume 1, Final Report of the World Bank Independent Extractive Industries Review (15 January 2004).

12 Permanent Forum on Indigenous Issues, Report on the sixth session U.N. Doc. E/2007/43 E/C. 19/2007/12.

13 "Indigenous rights to land resources basis for collective survival, inextricably linked to self- determination, forum told" (Economic and Social Council 15 May 2007) HR/4918 i4Ibid.

15 For the situation in Canada see for e.g. Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen. Mission to Canada. UN Doc. E/CN.4/2005/88/Add.3 and Concluding observations of the Human Rights Committee: Canada, CCPR/C/CAN/CO/5, 20 April 2006, at para. 22 (expressing "concern that the Canadian Human Rights

130 Indigenous representatives also stressed that indigenous peoples had the right to self-determination and full representation in environmental management. Accordingly, states were obliged not only to identify lands traditionally used by indigenous peoples, but also to provide legal protection according to traditional customs and laws. As collectivities, indigenous peoples have stressed that they have distinct and unique cultures and world views, and their current interests and aspirations for the future may differ from those of the mainstream population, especially in the area of land and resource use and management. The right to self-determination may thus be expressed through various forms of autonomy or self-government, including conditions for self-management, and the respect for the principle of free, prior and informed consent. The latter would also include respect for the time requirements of indigenous consultation and/or the consensus processes, mandating that full and understandable information on the likely impact is provided.

The right to property has been affirmed as an international human right. Diverse forms of property, including those that arise from the traditional customary land tenure of indigenous peoples, are recognized through the fundamental norm of nondiscrimination.

The principles of equality and nondiscrimination as embedded in Article 1(3) of the UN

Charter admonish "respect for human rights and for fundamental freedoms for all without distinctions as to race, sex, language, or religion." The nondiscrimination norm also upholds the notion of respect for cultural integrity, as it has been affirmed within the framework of human rights. Significantly, in balancing the potential conflict of rights,

Act cannot affect any provision of the Indian Act or any provision made under or pursuant to that Act, thus allowing discrimination to be practised as long as it can be justified under the Indian Act;")

131 cultural integrity cannot infringe upon human rights guaranteed by international law, nor limit its scope. This is significant in understanding what the control of natural resources implies for both indigenous peoples and other actors, and what their interests are. Focus on the cultural integrity of indigenous peoples could essentialise certain practices as the only measure of 'indigeneity'. Conversely, conflicts may occur within and among communities regarding the path of development pursued. As will be evident in the

Peruvian and Canadian cases discussed in this dissertation, for some indigenous nations, the motivation for ownership and control of resources is related to a desire for economic development and independence— similar to the interests of the companies and states.

This has conflicted with another objective of indigenous peoples, which is to maintain the ancestral protection of their land.

The concept of self-determination thus has a direct correlation with control over territories and resources. At the same time, the principle of Free Prior and Informed

Consent has emerged in order to promote consultation between extractive industries and other projects, and states with indigenous communities. In part, this stems from a realization that indigenous peoples' cooperation is necessary in order to avoid conflict situations and ensure stability and predictability for the projects. However, while this chapter engages in detailed description of some developments at international levels, there is no legal requirement for indigenous poeples' consent in Canada or Peru, and indigenous groups cannot veto projects. Thus, further discussion is required on the very concept of ownership and community.

A. The United Nations Instruments

132 As mentioned above, in addition to the two covenants, Article 3 of the UN

Declaration recognizes the right of indigenous peoples to 'freely pursue the economic, social and cultural development." Article 3(b) states that "Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self- government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions." Similarly, the Proposed American

Declaration on the Rights of Indigenous Peoples also recognizes these rights.16

In reference to the Article 1 of ICCPR as well ICESCR, Committees have made explicit the relationship between indigenous peoples' rights to their traditional territories and resources and the right to self-determination. In Apirana Mahuika et al. vs. New

Zealand,11 for instance, the Human Rights Committee held that Article 1 could be read in conjunction with article 27 of the Covenant, and that "the provisions of article 1 may be relevant in the interpretation of other rights protected by the Covenant, in particular article 27."'8 In this case, the authors contended that the Treaty ofWaitangi (Fisheries

Claims) Settlement Act expropriated their commercial fishing resources in violation of

16 Proposed American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights in 1997, Article XV(1). See, also, Consolidated Text of the Draft Declaration Prepared by the Chair of the Working Group, OEA/Ser.K/XVI, GT/DADIN/doc.139/03,17 June 2003, Article III. 11 Apirana Mahuika et al. vs. New Zealand, (Communication No. 547/1993, 15/11/2000), UN Doc. CCPR/C/70/D/547/1993 (2000), at para. 3 ("When declaring the authors' remaining claims admissible in so far as they might raise issues under articles 14(1) and 27 in conjunction with article 1, the Committee noted that only the consideration of the merits of the case would enable the Committee to determine the relevance of article 1 to the authors' claims under article 27.")

Ibid, at para. 9.2 ("The Committee observes that the Optional Protocol provides a procedure under which individuals can claim that their individual rights have been violated. These rights are set out in part III of the Covenant, articles 6 to 27, inclusive. As shown by the Committee's jurisprudence, there is no objection to a group of individuals, who claim to be commonly affected, to submit a communication about alleged breaches of these rights. Furthermore, the provisions of article 1 may be relevant in the interpretation of other rights protected by the Covenant, in particular article 27.")

133 articles 1 and 27. In resolving this issue, the Committee set forth a test regarding whether

indigenous peoples enjoy 'effective possession' and 'effective control' over their natural resources. In so doing, it stated that "Maori authority and traditional methods of control

as recognised in the Treaty [of Waitangi] were replaced by a new control structure, in an

entity in which Maori share not only the role of safeguarding their interests in fisheries but also the effective control."19

Article 27 of the ICCPR protects linguistic, cultural and religious rights and, in the

case of indigenous peoples, includes, inter alia, land and resource, subsistence and participation rights. These rights are vested in individuals, but exercised communally

with other members of the group, thereby providing some measure of collectivity. In

Ominayak v. Canada?1 the committee extended the cultural rights guarantees of article

27 to include the "economic and social activities" upon which the Lubicon Lake Band of

Cree Indians relied as a group. Thus, the committee found that Canada, a party to the

covenant and its Optional Protocol, had violated its obligations under article 27 by

19 Ibid, at para. 9.7.

Bernard Ominayak, Chief of the Lubicon Lake Band vs. Canada, Report of the Human Rights Committee, 45 UN GAOR Supp. (No.43), UN Doc. A/45/40 , vol. 2 (1990), 1. See also, Kitok vs. Sweden, Report of the Human Rights Committee, 43 UN GAOR Supp. (No.40) UN Doc. A/43/40; Lovelace vs. Canada (No. 24/1977), Report of the Human Rights Committee, 36 UN GAOR Supp. (No. 40) 166, UN Doc. A/36/40 (1981). /. Lansman et al. vs. Finland (Communication No. 511/1992), supra note 4; J. Lansman et al. vs. Finland (Communication No. 671/1995), UN Doc. CCPR/C/58/D/671/1995; and General Comment No. 23 (50) (art. 27), adopted by the Human Rights Committee at its 1314th meeting (fiftieth session), 6 April 1994. UN Doc. CCPR/C/21/Rev.l/Add.5. Although not decided under article 27, see, also, Hopu v. France. Communication No. 549/1993: France. 29/12/97. UN Doc.CCPR/C/60/D/549/1993/Rev.l, 29 December 1997.

21 Ominayak, Chief of the Lubicon Lake Band v.Canada, Communication No. 267/1984, Report of the Human Rights Committee, U.N. GOAR, 45th Sess., Supp. No.40, Vol.2, at 1, U.N. Doc. A/45/40, Annex 9 (A) (1990) (views adopted Mar. 26,1990).

22 Ibid, at 27.

134 allowing the provincial government of Alberta to grant leases for the exploitation of oil, gas and timber resources in areas traditionally used by the Band for hunting and fishing.

Over a long period of time, the cumulative effect of these forms of competing use of land and resources had effectively destroyed the resource basis of traditional hunting and fishing for the Lubicon Band. The committee acknowledged that the Band's survival as a distinct cultural community was bound to the sustenance that it derived from the land.

Significantly, in its General Comment No. 23(50), the committee stated that "culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples."23

In the Mayagna (Sumo) Indigenous Community ofAwas Tingni v. the Republic of

Nicaragua Case, the Inter-American Commission on Human Rights invoked article 27 to cite Nicaragua's obligations. It found that "special legal protection" accorded the indigenous peoples for the preservation of their cultural integrity should extend to "the aspect linked to productive organization, which includes, among other things, the issue of ancestral and communal lands."24 It ordered that the Nicaraguan state adopt "the legislative, administrative, and any other measures required to create an effective

Human Rights Committee, General Comment Adopted by the Human Rights Committee under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights: General Committee No. 23(50) (art. 27), U.N. Doc. CCPR/C/21/Rev.l/Add.5 (1994), para. 7 (footnote omitted).

24 Inter-American Commission on Human Rights, Report on the Situation of Human Rights of a Segment of Nicaraguan Population of Miskito Origin and Resolution on the Friendly Settlement Procedure Regarding the Human Rights Situation of a Segment of Nicaraguan Population of Miskito Origin, O.A.S. Doc. OEA/Ser.L/V/II.62, doc. 10 rev.3 (1983), O.A.S. Doc. OEA/Ser.L/V/II.62, doc. 26 (1984) (Case No. 7964 (Nicaragua), at 81.

135 mechanism for delimitation, demarcation, and titling of the property of indigenous communities, in accordance with their customary law, values, customs and mores."25

In its 1985 decision concerning the Yanomami of Brazil, the commission viewed that the massive penetration of outsiders on Yanomami ancestral lands constituted a threat not only to Yanomami's physical well-being, but also to their cultures and traditions. 6

Although Brazil was not a party to the ICCPR, the commission cited article 27— thus indicating the norm's character as general or customary international law.27

The Report of the United Nations study on indigenous peoples' permanent sovereignty over their lands and resources by Special Rapporteur Erica-Irene Daes describes indigenous peoples' natural resources as including "air, coastal seas, and sea ice as well as timber, minerals, oil and gas, genetic resources, and all other material resources pertaining to indigenous lands and territories."28 The report makes reference to the Awas

Tigni case, among others, to point out that there is a widespread understanding that resources on indigenous lands and territories belong to indigenous peoples that own that territory. It emphasizes, however, that there is no such agreement regarding subsurface resources.29

25 Ibid, at para. 164.

26 Ibid, at 29-31.

27 See also the Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Ecuador, O.A.S. Doc. OEA/Ser.L/V/II.96, doc.10, rev. 1, Chapter IX (April 24, 1997). The report, interpreted the content and reach of the cultural integrity norm and article 27 in relation to indigenous peoples, within the analysis of the situation in the Amazon region where indigenous peoples had experienced environmental damage because of oil development.

28Daes, supra note 24 at para. 42.

Ibid at para. 43. Subsurface rights, however, have been affirmed in the article 26 of the UN

Declaration, which provides that: 1) Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired; 2) Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired; and 3) States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned. Similarly, indigenous peoples' rights to subsoil minerals pursuant to their customary laws also has been recognized by the South African Constitutional Court and the Canadian Supreme

Court.30

B. The Inter-American Human Rights Law

The jurisprudence of the Inter-American system has also established standards requiring the recognition, protection and restoration of indigenous peoples' communal property rights as well as securing those rights in practice. Both the IACHR and the Court have related the recognition and protection of indigenous peoples' rights to own and

JU Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, at 1086. See, also, Guerin v R. (1985) 13 DLR 4th 321. For US and Australian cases in accord, see, inter alia, United States v. Shoshone Tribe of Indians 304 US 111 (1938); United States v. Klamath and Modoc Tribes 304 US 119 (1938); and, Otoe and Missouri Tribe v. United States 131 F Supp 265 (1955); Mabo v. Queensland No.2 (1992) 175 CLR 166 and; Ward on behalf of the Miriuwung and Gajerrong People v. Western Australia (1998) 159 ALR 483.

137 control their traditional lands, territories and resources to their right to development.31

On this point, the IACHR explains that for the "organs of the inter-American system, the protection of the right to property of the indigenous people to their ancestral territories is a matter of particular importance, because the effective protection of ancestral territories implies not only the protection of an economic unit, but also the protection of the human rights of a collective that bases its economic, social and cultural development upon their relationship with the land." The IACHR has related territorial rights on a number of occasions to cultural integrity, thereby recognizing the fundamental connection between indigenous land tenure and resource security and the right to practice, develop and transmit culture free from unwarranted interference.33

In the case of Awas Tingni v. Nicaragua34 the Inter-American Court of Human

Rights, accepted the Commision's conclusion that Nicaragua had violated the property rights of the indigenous Mayangna community of Awas Tingni by granting to a foreign company a concession to log within the community's traditional lands and by failing to otherwise provide adequate recognition and protection of the community's traditional land tenure. In interpreting the right to property as found in article 21 of the American

Convention on Human Rights, the Court held in its judgment that indigenous peoples'

31 See e.g. see, James Anaya and Robert Williams, "The Protection of Indigenous Peoples' Rights over Land and Natural Resources under the Inter-American Human Rights System" (2001) 14 Harv. Hum. Rts. J. 33.

32 Report No. 40/04, Maya Indigenous Communities of the Toledo District, Case 12.053 (Belize), 12 October 2004, at para. 120.

33 Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96 doc.10, rev.l, at 114-115. 34 The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001, Inter-Am. Ct. H.R., (Ser. C) No. 79 (2001). rights to their lands include rights to the resources and that these rights of ownership are held by the community in their collective capacity and according to their own customary law, values, customs and mores.36 The Court held that the concept of property articulated in the American Convention of Human Rights includes the communal property of indigenous peoples, even if that property is not held under a deed of title or is not otherwise specifically recognized by the state. The Court determined that "Indigenous peoples' customary law must be especially taken into account," and held that, "[a]s a result of customary practices, possession of land should suffice for indigenous communities lacking real title to property of the land to obtain official recognition of that property, and for consequent registration."37 It confirmed that indigenous peoples' territorial rights arise from traditional occupation and use and indigenous forms of tenure, not from grants, recognition or registration by the state. Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production, but a material and spiritual element, which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.

35 Ibid atpara.153.

36 Ibid, at paras. 148, 151, 153.

37 Ibid, at para. 151.

™Ibid. at para. 149.

139 The Court also concluded, especially in the light of articles 1 and 2 of the convention, which require affirmative state measures to protect rights recognized by the convention and domestic law, that failure of Nicaraguan state to respect and demarcate indigenous lands, violated the right to property of article 21 of the American

Convention.39 This holding is commensurate with article 14 (2) of the ILO Convention

No. 169 which provides: "Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession." Although the Court stressed that

Nicaragua's domestic law itself affirms indigenous communal property, the Court also emphasized that the rights articulated in international human rights instruments have

"autonomous meaning for which reason they cannot be made equivalent to the meaning given to them in domestic law."40 Furthermore, the Court accepted the commission's view that independent from official recognition of their property and domestic law, the international human right of property embraces the communal property regimes of indigenous peoples as defined by their own customs and traditions, such that "possession of the land should suffice of indigenous communities lacking real title to property of the land to obtain official recognition of that property."41 The Court applied in its conclusions the "evolutionary interpretation of international instruments for the protection of human rights" taking into account modern developments and conceptions about property as

wIbid. at para. 164.

40 Ibid, at para. 146.

41 Ibid, at para 151. related to indigenous peoples and their lands.

The Inter-American Commission on Human Rights echoed the precedent and interpretative methodology of the Awas Tingni case in addressing a dispute concerning the land rights of the Western Shoshone people. In the case of Mary and Carrie Dann v.

United States,43 the commission extended the interpretation of the right to property of the

American Convention on Human Rights advanced in the Awas Tingni case to the similar property rights provision of the American Declaration on the Rights and Duties of Man, emphasizing the process and equal protection prescriptions that are to attached to indigenous property interests in lands and natural resources.

Similarly, the Maya Indigenous Communities44 case was aimed at preventing the

State's granting of concessions for timber (among other resources) on the Maya lands in southern Belize. In reference to the American Declaration of the Rights and Duties of

Man, the Commission found that the State was obligated to refrain from granting timber and mineral concessions on land until the Maya lands were recognized and demarcated.

The IACHR held that Belize is obligated to effectively delimit and demarcate the territory to which the Maya people's property right extends and to take the appropriate measures to protect the right of the Maya people in their territory, including official recognition of that right. In the Commission's view, this necessarily includes engaging in

42 Ibid, at para 148.

43 Mary and Carrie Dann v. United States,Case 11.140, Report No. 75/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 860 (2002).

44 Maya indigenous community of the Toledo District v. Belize, Case 12.053, Report No. 40/04, Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 727 (2004).

141 effective and informed consultations with the Maya people concerning the boundaries of their territory, and that the traditional land use practices and customary land tenure system be taken into account in this process.45

In the YakyeAxa Case,46 the Court found violations of the rights to judicial protection and to properly in relation to Paraguay's failure to effectively restore and secure the rights of the Yakye Axa to their traditional lands, large parts of which were held by private persons. It ordered that the state identify these traditional lands and regularize the indigenous people's ownership rights, and that a fund be established for the expropriation of privately held lands to ensure their return to the Yakye Axa.47 The Court also found a violation of the right to life because the denial of the indigenous people's rights to their traditional lands and resources had also "deprived them of the possibility of accessing their means of traditional subsistence, as well as the use and enjoyment of necessary natural resources such as clean water and the practice of traditional medicine for the prevention and cure of diseases."48 Additionally, "the State has not adopted the necessary positive measures hat would assure the members of the Yakye Axa

Community, during the period that they have remained without territory, conditions of life with dignity." 49 Similar violations were also found in the Sawhoyamaxa Indigenous

45 Report No. 40/04, Maya Indigenous Communities of the Toledo District, Case 12.053 (Belize), 12 October 2004, at para. 132 (footnote omitted).

46 Yakye Axa Indigenous Community v. Paraguay, 17 June 2005. Series C No. 125.

41 Ibid, at para. 217.

48 Ibid, at para. 168, 176.

142 Community Case. In reference to its prior jurisprudence, the Court observed that traditional indigenous land ownership is equivalent to full title granted by the State and grants the indigenous people the right to demand official recognition of their property and its consequent registration.5 Indigenous people who have suffered the involuntary expropriation of their lands, and whose lands have been legally transferred to unknowing third parties, have the right to recover them or be compensated with other lands of the same extension and quality. This means that title is not a prerequisite that conditions the existence of the right to restitution of indigenous lands.52 The Court further held that if indigenous peoples are prevented by others from maintaining their traditional relationships with their territories, the right to recovery nonetheless continues "until such impediments disappear."53

If a state is unable to return indigenous peoples' traditional lands and communal resources for "concrete and justifiable reasons," compensation or the provision of alternative lands is required.54 The Court clarified that the following did not constitute justifiable reasons that would preclude the return of indigenous lands and resources: that the lands in question were in private hands; that these lands were being used productively; and because of the application of bilateral trade agreements.55

5 Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of 29 March 2006, Series C No. 146.

51 Ibid, at para. 128.

52 Ibid.

53 Ibid, at para. 132.

54 Ibid, at paras. 138-9.

55 Ibid, at para. 140. The jurisprudence of the Court has also been incorporated by reference into the

2006 Inter-American Development Bank's Operational Policy 7-65 on Indigenous

Peoples. This policy requires special safeguards for indigenous peoples in projects that directly or indirectly affect their traditional lands, territories and resources, and specifies that "one of those safeguards is respect for the rights recognized in accordance with the applicable legal norms."" The definition of'applicable legal norms' includes ratified international treaties "as well as the corresponding international jurisprudence of the

Inter-American Court of Human Rights or similar bodies whose jurisdiction has been accepted by the relevant country."57

Recently, the Supreme Court of Belize ruled in Cal v. Attorney General58 that the national government must recognize the indigenous Mayans' customary tenure to land and refrain from any act that might prejudice their use or enjoyment of this land. The decision is the first judgment was rendered with reference to UN Declaration. The Chief

Justice of Belize, Abdulai Conteh, stated that British colonial and subsequent acquisition of land in Belize did not abrogate the Mayan people's predating rights to their land.

Referring to Delgamuukw v British Columbia, judge Conteh said, "Indigenous title is now correctly regarded as sui generis."59 Thus similar to Awas Tingni, the very fact that indigenous peoples have inhabited a land over time confers to them land title rights.

56 Inter-American Development Bank, Operational Policy 7-65 on Indigenous Peoples, adopted 22 February 2006 at 8. online: http://www.iadb.org/sds/ind/site_401_e.htm.

51 Ibid, at 5.

58 Aurelio Cal, et. Al. v. Attorney General of Belize, Supreme Court of Belize (Claim 121/2007) (18 October 2007).

59 Ibid, at par. 101. While agreeing the UN Declaration is non-binding, judge Conteh argued that it was adopted by an "overwhelming number" of states, reflecting "the growing consensus and the general principles of international law on indigenous peoples and their lands and resources."60 Based on article 26 (1) of the UN Declaration, the judge ordered the government of Belize to "determine, demarcate and provide official documentation of

Santa Cruz's and Conejo's [two Mayan villages] title and rights in accordance with Maya customary law and practices."61 He also ordered the government to abstain from "issuing any concessions for resource exploitation and harvesting, including concessions, permits or contracts authorizing logging, prospecting or exploration, mining or similar activity under the Forest Act, the Mines and Minerals Act, the Petroleum Act, or any other

Act.any logging, mining or other resource exploitation projects on Mayan land."62 Thus, the domestic, and international law and jurisprudence that has developed in the Awas

Tingni case, in the Maya Indigenous Communities case, in Convention No. 169, and elsewhere, have come to constitute the body of law that if applied by States can determine what land and territories, and therefore what resources, belong to indigenous peoples.

C. International Labour Organisation

In 1957, the International Labour Organization (ILO) adopted Convention

(No. 107) concerning the Protection and Integration of Indigenous and Other Tribal and

Semi-Tribal Populations of Independent Countries. The objective of the Convention was

60 Ibid, at par. 131.

61 Ibid, at par. 136. to integrate indigenous populations into the societies in which they lived. The entire instrument, was eventually revised, resulting in the 1989 ILO Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries.63 The Convention came into force in 1991 following ratifications by Mexico and Norway. Now ratified by

17 countries, it contains important provisions for control over natural resources by indigenous peoples in their collective capacity as peoples.

ILO No. 169 contains a number of provisions on indigenous territorial rights. The land rights provisions of Convention No. 169 are framed by article 13 (1) which states:

"In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship." Article 14 requires that indigenous peoples' collective "rights of ownership and possession . .. over the lands which they traditionally occupy shall be recognized" and that state parties "shall take steps as necessary to identify" these lands and to "guarantee effective protection of rights of ownership and possession." Article 13(2) defines the term 'lands' to include

"the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use." Article 15 provides for the rights of

"peoples" to their natural resources, where paragraph 1 reads as follows:

"The rights of the peoples concerned to the natural resources pertaining to their lands shall be specifically safeguarded. These rights include the right of these peoples to

ILO Convention No. 169, supra note 141. participate in the use, management and conservation of these resources." This authority is further recognized in article 7, which guarantees in paragraph 1, among other things:

The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social, and cultural development. This provision recognizes that indigenous peoples have the right to some measure of self- government with regard to their institutions and in determining the direction and scope of their economic, social and cultural development.

The convention falls short of upholding rights to mineral or subsurface resources in cases in which the state generally retains ownership of those resources. It, however, mandates that indigenous peoples are to have a say in any resource exploration or extraction on their lands and to benefit from those activities. Furthermore, the convention adds in article 16 (2) that indigenous peoples "shall not be removed from the lands which they occupy" unless under prescribed conditions and there necessary as an

"exceptional measure." And in 16 (4), when the grounds for relocation no longer exist, they "shall have the right to return to their traditional lands" and when return is not possible "these peoples shall be provided in all possible cases with lands of quality and

legal status at least equal to that of the lands previously occupied by them." The

convention also provides for the recognition of collective land rights and indigenous land tenure systems, which typically are based on long standing custom.

147 The ILO Convention No. 169 thus has affirmed that indigenous peoples as groups are entitled to a continuing relationship with lands and natural resources according to traditional patterns of use or occupancy. The growing international acceptance of indigenous rights to land reflected in ILO Convention No. 169 and related developments coincides with the jurisprudence of the U.N. Human Rights Committee and the Inter-

America Commission on Human Rights regarding the implications of the cultural integrity norm. It also coincides with the interpretations of the general human right to property that has been promoted by the inter-American commission and adopted by the

Inter-American Court of Human Rights.

III. The Principle of Free Prior and Informed Consent

The principle of free prior and informed consent has been acknowledged in several documents in international human rights law. Participation mechanisms can vary, but in general they would serve to establish mutually agreed upon relations between the state and indigenous peoples. In this sense, the principle of free, prior and informed consent is a part of indigenous peoples' claim to self-determination. Consent must be freely given, be obtained prior to the implementation of activities, and be founded upon an understanding of the full range of issues implicated by the activity or decision in question. The interpretation of the terms included in the principle have been elaborated as follows: 1) 'Free' is a general principle of law that consent is not valid if obtained through coercion, intimidation or manipulation; 2) 'Prior' implies that consent has been sought sufficiently in advance of any authorization or commencement of activities and respect time requirements of indigenous consultation/consensus processes; 3)'Informed'

148 implies that a procedure based on the principle of free, prior and informed consent must involve consultation and participation by indigenous peoples, which includes full and legally valid disclosure of information concerning the proposed development in a form, which is both accessible and understandable; 4)'Consent' involves consultation and meaningful participation in all aspects of assessment, planning, implementation, monitoring, and closure of a project. The parties should establish a dialogue allowing them to find appropriate solutions in an atmosphere of mutual respect in good faith, and full and equitable participation. Consultation requires time and an effective system for communicating among interest holders. Indigenous peoples should be able to participate through their own freely chosen representatives and customary or other institutions. This process may also include the option of withholding consent.64

More specifically, the ILO Convention No. 169 includes in its article 6 the principle of free and informed consent in the context of relocation of indigenous peoples from their lands. In articles 6, 7 and 15, it also aims at ensuring that every effort is made by states to fully consult with indigenous peoples in the context of development, land and resources. As seen below, similar provisions also have been included in the UN

Declaration on the Rights of Indigenous Peoples, which calls upon States to consult with

indigenous peoples to obtain their free, prior and informed consent prior to approval of

any project affecting their lands and resources. Similar provisions are included in the

Draft American declaration on the rights of indigenous peoples of the OAS. It provides

Preliminary working paper on the principle of free, prior and informed consent of indigenous peoples in relation to development affecting their lands and natural resources that would serve as a framework for the drafting of a legal commentary by the Working Group on this concept submitted by Antoanella-lulia Motoc and the Tebtebba Fountation U.N. Doc. E/CN.4/Sub.2/AC.4/2004/4 at 6-7.

149 that indigenous peoples have a right to determine and develop priorities and strategies for the development or use of their lands, territories and other resources, including the right that States obtain their free, prior and informed consent prior to undertaking development projects affecting indigenous lands, territories and resources.65

The Human Rights Commission has made a reference in 2006 to the obligation of the state party to "seek the informed consent of indigenous peoples before adopting decisions affecting them."66 Similarly, in 1997, the CERD called upon state parties to

"ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent."67 In its concluding observations in the case of Australia, the Committee also recognized indigenous peoples' right to effective participation in decisions affecting their land rights.68 And, in concluding observations on Ecuador, in reference to the exploitation of the subsoil resources, subjacent to the traditional lands of indigenous communities, the CERD has stated that mere consultation of these communities prior to exploitation was not sufficient as per the requirements set

5 Proposed American Declaration on the Rights of Indigenous Peoples (Approved by the Inter-American Commission on Human Rights on February 26,1997, at its 1333rd session, 95th Regular Session), OEA/Ser/L/V/.II.95 Doc.6 (1997).

66 Concluding Observations of the Human Rights Committee: Canada. UN Doc. CCPR/C/CAN/CO/5, 20 April 2006, at para. 22.

General Recommendation XXIII (51) concerning Indigenous Peoples, supra, at para 4(d).

Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia. 24/0312000. CERD/C/56/Misc.42/rev.3,at para. 9. See, also, among others, Concluding observations of the Committee on the Elimination of Racial Discrimination: Costa Rica. 20/03/2002 and, Concluding observations of the Committee on the Elimination of Racial Discrimination: United States of America. 14/08/2001.

150 out in the Committee's General Recommendation XXIII. The Committee therefore recommends that in such cases the prior informed consent of indigenous communities be sought, and that the equitable sharing of benefits to be derived from such exploitation be ensured.69

A. Inter-American Human Rights Law

In the cases mentioned above, the IACHR has consistently held that indigenous peoples' informed consent is required in relation to activities that affect their traditional territories. As a general principle, it has observed that Inter-American human rights law requires "special measures to ensure recognition of the particular and collective interest that indigenous people have in the occupation and use of their traditional lands and resources and their right not to be deprived of this interest except with fully informed consent, under conditions of equality, and with fair compensation."70 Similarly, in the

Dann case, it has emphasized that Articles XVIII and XXIII of the American Declaration specially oblige a member state to ensure that any determination of the extent to which indigenous claimants maintain interests in the lands to which they have traditionally held title and have occupied and used is based upon a process of fully informed and mutual consent on the part of the indigenous community as a whole. This requires, at a minimum, that all of the members of the community are fully and accurately informed of

Concluding observations of the Committee on the Elimination of Racial Discrimination: Ecuador. 21/03/2003. CERD/C/62/CO/2,at para. 16.

Mary and Carrie Dann Case, supra, at para. 131.

151 the nature and consequences of the process and provided with an effective opportunity to participate individually or as collectives.71

For instance, in the Maya Indigenous Communities Case, it stated that the obligation to obtain indigenous peoples' consent is "applicable to decisions by the State that will have an impact upon indigenous lands and their communities, such as the granting of concessions to exploit the natural resources of indigenous territories."72

Most recently, in the Twelve Saramaka Clans Case, a case involving logging and mining concessions, the Commission confirmed, "in light of the way international human rights legislation has evolved with respect to the rights of indigenous peoples that the indigenous people's consent to natural resource exploitation activities on their traditional territories is always required by law."73

Additionally, the IACHR has explained that "general international legal principles applicable in the context of indigenous human rights" include situations where the property and user rights of indigenous peoples arise from rights existing prior to the creation of a state, recognition by that state of the permanent and inalienable title of indigenous peoples relative thereto and to have such title changed only by mutual consent between the state and respective indigenous peoples when they have full knowledge and

appreciation of the nature or attributes of such property. This also implies the right to fair

71 Ibid, at para. 140.

72 Maya Indigenous Communities, supra, at para. 142 (footnotes omitted).

Twelve Saramaka Clans Case, supra, at para. 214.

152 compensation in the event that such property and user rights are irrevocably lost. In addition to prohibiting the unilateral extinguishment of indigenous peoples' land and resource rights, the property and user rights governed by this principle should include subsoil minerals.

The IACHR and Court's jurisprudence with regard to the right to consent also is partly reflected in the operating policies of the Inter-American Development Bank as they pertain to indigenous peoples. The IADB's 1998 Involuntary Resettlement policy requires that indigenous peoples' informed consent be obtained prior to any resettlement.

Its newly adopted policy on indigenous peoples requires their "agreement" in "cases of significant potential adverse impacts" and where there is commercial development of

"indigenous culture and knowledge resources."75

While not strictly requiring consent, ILO 169 requires that States establish or maintain procedures through which they shall consult indigenous peoples to determine the extent to which their interests would be prejudiced prior to engaging in, or allowing resource exploitation (Art. 15(2)). This provision should be read conjunctively with

Article 6(2)'s general requirement that consultation be undertaken "in good faith ... in a form appropriate to the circumstances, with the objective of achieving agreement or consent." Respect for indigenous peoples' right to give their free and informed consent is nevertheless required if a state party has ratified one of the instruments noted above or below because, pursuant to Article 35, application of ILO 169 "shall not adversely affect

4 Mary and Carrie Dann Case, supra, at para. 130.

Inter-American Development Bank, Operational Policy 7-65 on Indigenous Peoples, supra, sees. IV.B.4.4.a.iii (the Borrower must provide, "no later than by the date of consideration of the operation by the Board", evidence of the agreements reached with the affected people. (V.5.3.c)) and IV.B.4.4.e.

153 the rights and benefits of the peoples concerned pursuant to other Conventions and

Recommendations, international instruments, treaties or national laws, awards, customs or agreements."

Thus, some of the provisions of the Convention are worded as the obligations of

governments, others as the rights of indigenous and tribal peoples. Articles 2, 4, 5 and 6

of the Convention refer to the "institutions" and "representative institutions" of

indigenous and tribal peoples. This refers to limited forms of management authority that

indigenous and tribal peoples enjoy within States ratifying Convention No. 169. The ILO

169 Convention does not encompass a right of indigenous people to territorial autonomy

or self-government. Furthermore, article 1(3) of the Convention clarifies that "the use of

the term "peoples" in this Convention shall not be construed as having any implications

as regards the rights which may attach to the term under international law." The

Convention focuses on other rights than the right to autonomy. Other rights, however,

include the effective participation of indigenous peoples, as indicated in article 6,

enabling them to have a real impact on the decisions taken in questions which affect them

directly. Significantly, article 6 does not include a right of veto in respect to indigenous

peoples.76 Governments, however, should take steps as necessary to identify the lands,

which the peoples concerned traditionally occupy, and to guarantee effective protection

of their rights of ownership and possession.

See e.g. Lee. Swepson, "The Indigenous Peoples Convention (No. 169): Eight Years After Adoption", in Cynthia Price Cohen ed., The Human Rights of Indigenous Peoples (New York: Transnational Publishers, 1998) at 13.

154 In applying the convention, relevant ILO institutions have emphasized that, when natural resource development activities may affect indigenous communities, a process of consultation with the communities, prior to commencement of development activities, is at minimum required. Prior consultation and appropriate mitigation measures are required in respect to any natural resource extraction from indigenous ancestral or traditional lands, regardless of formal ownership of the lands or the exclusivity of indigenous occupation, when the extraction may in some way affect the lives of the indigenous people concerned.

In addition, article 30(1) and (2) of the UN Declaration on the Rights of

Indigenous Peoples provide respectively that indigenous peoples have a right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources, and that states shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of their mineral, water or other resources.

IV. International Complaint Procedures

This section briefly observes the complaint procedures of the U.N. Human Rights

Committee and Individual Communications under the Optional Protocol to the ICCPR; the Inter-American System, and the complaint procedures of the ILO Convention No.

169. The objective is to observe the capacity of these instruments to influence or alter the course of state action when needed to bring about the implementation of international

155 human rights norms, as well as to identify their weakness because of state discretion, in particular due to the emphasis on primary jurisdiction of the states. In so doing, this brief overview will also point to the limits of indigenous right to self-determination, despite recent changes to the contrary, in face of doctrine of state sovereignty.

A. The U.N. Human Rights Committee and Individual Communications under the Optional Protocol to the ICCPR

The Human Rights Committee as well as some other U.N treaty bodies are competent to review and decide on specific allegations of violations of the human rights in those treaties to which these bodies are attached.77 Both the Human Rights Committee and CERD are empowered to receive and consider complaints by states against other states. They also have additional capacities by which they may hear directly from victims of human rights abuse. The committee's competence to hear complaints by actors other than states is governed by the Optional Protocol to the Covenant on Civil and

Political Rights.78 State parties to the Optional Protocol agree to the competence of the committee to hear "communications" from individuals subject to their jurisdiction and who claim to be victims of violations included in the covenant. In order to be admissible, the communication to the committee under the Optional Protocol has to be by an individual, alleging the violation of an individual right included in the covenant. In the case of complaints concerning indigenous peoples, the committee has interpreted its authorization under the Optional Protocol as not being able to accept complaints from

77 As discussed previously, CERD is also significant due to its demonstrated issues in indigenous issues. See e.g. supra note 8 and 22. 78 Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 302. individuals based on the article 1 of the ICCPR. Furthermore, the Optional Protocol

includes a requirement that, as another condition of admissibility, all domestic remedies be exhausted. However, as for instance in the case of Ominayak, Chief of the Lubicon

Lake Band v. Canada, and other cases mentioned previously, it did adjudicate issues

relating to group rights and self-determination.

The state sovereignty principles and limits of the committee have been evident in

its views on appropriate remedies. In the Ominayak v. Canada, the committee did not

specify what the proposed remedy should be. Subsequent to the decision, the Canadian

government attempted to force a settlement on terms roundly rejected by the Lubicon

Cree. Responding to the Federal Government's settlement's proposal, Chief Ominayak

stated that, "the Federal Government is not sincere about negotiating a settlement of

Lubicon Land Rights and is only seeking to maintain a pretense of sincere negotiations in

on order to deflect criticism." The committee's finding of a violation was clear that the

Canadian government had to provide some remedies, but it did not indicate what those

remedies are or how they are to be enacted. As Anaya argues: "the deferential stance of

the Human Rights Committee can be explained on the basis of the principle-or, more

accurately, the presumption-of noninterference, which favors decision making at the

Bernard Ominayak, Chief of the Lubicon Lake Band vs. Canada, Report of the Human Rights Committee, 45 UN GAOR Supp. (No.43), UN Doc. A/45/4, vol. 2 (1990).

80 Letter from Chief Ominayak, Lubicon Cree Band, to Tom Siddon, minister of Indian affairs and northern development (Aug 19 1992), at 2, reproduced in James Anaya, Indigenous Peoples and International Law, 2nd Ed., (Oxford University Press, 2004) at 277 n.57.

157 domestic level to the extent consistent with overarching values."81 Consequently, an initiative on the part of the committee was to follow up with the governments as well as to promote a dialogue toward an agreement on remedies.

B. The Inter-American System

The Inter-American System includes complaint procedures with in the Inter-

American Commission on Human Rights and the Inter-American Court on Human

Rights. In order for the court to hear the contentious case, states parties to the American

Convention must accept its jurisdiction. Within its jurisdiction, the decisions of the court are legally binding. The cases adjudicated under its advisory jurisdiction are not binding.

The commission's decisions are not legally binding, and it can only recommend remedial measures or negotiate a friendly settlement that includes specific remedial action, including a payment of compensation.82 Unlike individual petitions to the U.N. Human

Rights Committee, complaints to this commission may be filed by parties, including groups and organizations other than the victims, with or without the victims' knowledge or consent. Thus, any person, persons, or nongovernmental entity legally recognized in an OAS member state may submit a complaint to the commission. The commission requires the exhaustion of domestic remedies.

The limits of reparations and their implementation has been evident, for instance, in the Awas Tingni v. Nicaragua case, as well as Carrie and Mary Dann v. United

81 Anaya, Ibid, at 258.

Dinah Shelton, Remedies in International Human Rights Law (New York: Oxford University Press, 1991) at 131. States. In the Awas Tingni case the Court merged the consideration of merits and reparations, without making its intention to do so at the outset of the proceedings.84

Furthermore, without confronting the community's or commission's arguments for larger sums, and without considering specific evidence on damages and costs, the Court ordered that Nicaragua invest the total sum of US $50,000 in works or services of collective interest for the benefit of the Awas Tingni Community and that it pay the community

US$30,000 for its expenses.85

In the Dann case, after the commission issued the decision that the case was admissible, the United States ignored for over a year the commission's request for additional information, rebuffing the commission's proposal for process of friendly settlement.86 The commission's decision was the first time the United States laws and policies regarding indigenous peoples had been renewed by an independent judicial body.

However, the United State's response to the decision was to assert that the commission did not have jurisdiction. Following the commission's ten-year review and analysis, on

March 10, 2006, the CERD publicly issued a full decision against the United States, whereby it urged the United states to "freeze", "desist" and "stop" current or threatened actions against the Western Shoshone Peoples of the Western Shoshone Nation.87 The

Anaya, supra note 81 at 264-270.

84 Ibid, at 269.

85 Awas Tingni case, supra note, at 433-34, para. 159.

86 Anaya, supra note 81 at 263.

87 Brian D. Tittemore, "The Dann Litigation and International Human Rights Law: The Proceedings and Decision of the Inter-American Commission of Human Rights" (2006-2007) 31 AILR 593 ;Decisionl (68)

159 United States has chosen to ignore these rulings. As Anaya argues, this is a "stark manifestation of the limitations over commission's influence over a powerful actor."88

This however poses a question as to the degree of influence of international bodies over state practices, and the continuing significance of state sovereignty in international relations. In the Dann case, it becomes apparent that despite the influence of the international human rights system there is a need for changes at the domestic level in the relationship between indigenous peoples and the state.

C. Complaint Procedures Connected to the ILO Conventions

The ILO complaint procedures differ from other human rights complaint procedures in that they does not require the exhaustion of domestic remedies.

Furthermore, ILO Convention No. 169 specifically concerns indigenous peoples.

However, indigenous peoples or communities cannot invoke the complaint procedure directly, because of ILO's central focus on labor issues and its commensurate concern with facilitating communications among labour unions, employers' organizations, and governments. Instead, other parties can file complaints on the behalf of indigenous peoples.

The ILO is composed of three organs: the General Conference of representatives of member states (the "International Labour Conference"); the Governing Body; and the

(United States of America), U.N.ESCOR, CERD, 68 Sess., U.N. Doc.CERD/C/USA/DEC/1 (April 11, 2006).

88 Anaya, supra note 81 at 264.

160 International Labour Office. Under article 24 of the ILO Constitution, an association of workers or employers may make a representation to the ILO that a country has failed to secure in any respect the effective observance within its jurisdiction of any ILO convention to which it is a party. Under article 26, any state can file a complaint that another state is not complying with an ILO convention, which both states had ratified.

Also, the ILO Governing Body may initiate a procedure on its own motion. The

Governing Body's tripartite committees have found violations of the requirement of prior consultation in relation to natural resource exploitation projects in indigenous territories.90 Article 24, however, does not go beyond questions of procedural fairness, providing for the scrutiny of state behavior under the convention's substantive standards.

Consequently, as in other human rights institutions, the ILO does not challenge effectively the principle of state sovereignty or noninterference in domestic affairs.91

V. Conclusion

States and multinational corporations continue to play a powerful role in delineating indigenous rights, especially at the domestic level. As we will see in the case studies of Canada and Peru, even in situations where states may further some indigenous rights, invariably they further the interests of extractive industries. Indigenous rights remain embedded and delineated within complex legal, political, and economic

89 Frederic Kirgis, International Organisations in their Legal Setting. 2nd ed., (St. Paul, Minn.: West Publishing 1993).

See e.g.Report of the Committee set up to examine the representation alleging non-observance by Colombia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Central Unitary Workers' Union (CUT), ILO Doc. GB.282/14/3, para. 74 (Nov. 2001) paras. 79-90.

91 Anaya, supra note 81 at 252. structures. This has affected the definition of who is considered indigenous, and what sorts of practices form part of an essence of an indigenous community. Those groups legally recognized as indigenous may have surface rights to land, but very few mechanisms to gain leverage for negotiating with resource extraction firms. And, finally, the delineation of what may be deemed as authentically indigenous can delimit and control the goals and aspirations of indigenous peoples.

The subordinate position of indigenous peoples' sovereignty becomes apparent in their lack of veto rights in relation to the activities of multinational companies and free trade agreements. Furthermore, any involvement of the international human rights community on behalf of indigenous peoples is tempered by the continuous presumption of noninterference in domestic affairs and the doctrine of state sovereignty. As seen in the above discussion of remedial procedures in some of the international human rights instruments, there is a general lack of implementation procedures in remedies in response to violations of indigenous peoples' human rights, which have been countered by lack of political will by some of the states concerned.

162 CHAPTER 4

Peru, Canada, and the making of sovereignty

Introduction

The purpose of this chapter is to look at two cases, Canada and Peru, of how sovereignty is negotiated over time. Both sovereign nation states have been historically opened to resistances on the part of indigenous peoples. Through the discussion of this relationship I question what the inclusion within, or submission to sovereignty entails— and what is its relationship to 'law' and 'right', and 'force' and 'justice.' The definitions of what is 'proper to mankind' as well as the philosophical interpretation of the limits between what is called human and what exists outside of the human society (animal, environment) define the inter-human relationships; relation to that which is shunned from the society; and the relationship to what is not human. The understanding of these relationships also becomes the ontotheological basis of what people deserve, and what is understood as their human rights.

The following analysis is primarily concerned with the manifestation of the relationship between the state, society, and indigenous peoples. It avoids any specific description of the meaning of 'indigenous' in both Peru and Canada due to the diversity not only of indigenous nations, but also interests of different communities, as those have been conditioned by a variety of circumstances throughout history. In Peru, in particular, the debate of who can and/or does self-identify as indigenous appears to question the validity of criticism directed against development projects, such as mining and exploration projects, by creating a binary in which such criticism is associated with a

163 romanticized vision of the rural or remote 'indigenous.' I argue here that such debates are not very useful in situations of conflict and violence, such as is evidenced in the Amazon region, where problem of human rights abuses needs to be viewed beyond such binaries.

Further, my concern is with the possibilities for choice in self-definition and accordingly the protection of human rights regardless of the racial or ethnic background of a people.

The information here is presented in view of previous chapters, which provide the historical and international context.

The chapter is outlined as follows. It will first look at the political history of sovereignty and laws that have governed the relationship between indigenous peoples and the state in Peru and Canada. It will then discuss the question of violence and reconciliation in both societies. In each section, the chapter will start first with the discussion of the Peruvian case, followed by the Canadian case.

I. Living together: foundations

Modern state sovereign continues to give recourse to transcendental references, even explicitly, through the idea of purpose and destiny of a people, and meaning that cannot be explained. This section is concerned with the ontotheological approach in societies, which developed through conquest, and which have not reconciled with their histories. In the context of colonial societies, the present question of living together involves and demands a type of (re) conciliation, not only as harmony among different cultures, ethnicities, and races, but also in terms of continuous negotiation of interests- which are multiple and often related to ownership and control of territory and economic resources. This analysis focuses on sovereignty's continuous need for re-constitution of

164 its existence, which requires an affirmation through law. Different populations have always negotiated and re-negotiated their being together, and regulated inclusion and exclusion within the group.

The attempts at sovereignty's unity ensue from the necessity to overcome pluralities that exist in the moment of its constitution and which continuously seek to (re) negotiate the terms of its existence. The present chapter seeks to argue that sovereignty does not merely purport to exist as a unity, which it is not. Sovereignty is also an aspiration of a people to manage its existing pluralities. This analysis specifically questions what the implications are of living together in Canada and Peru, as examples of persisting tension of competing claims to sovereignty between indigenous and non- indigenous peoples.

While sovereignty continues to exist as a plurality of interests which determine its structure through political and legal forces, it manages to reaffirm, however changeable, a force that succeeds in inclusion, exclusion, and sanction. Battaile has claimed that

'sovereignty is nothing' and more recently, Nancy has described it as 'bare', and an

'empty place.'1 It is nothing, because it can never be definite, and yet it is everything, because its existence is persistently sought. Bataille describes this conundrum as follows:

"Sovereignty is the object which eludes us all, which nobody has seized and which nobody can seize for this reason: we cannot possess it, like an object, but we are doomed

1 Jean-Luc Nancy, Being Singular Plural, trans, by Robert D. Richardson and Anne E. O'Byrne (Stanford: Stanford University Press, 2000) at 36 and 137.

165 to seek it."2 Sovereignty is, however, a space of negotiated interests, and laws that keep them together, and regulate inside and outside relations.

The origins of differing interests and their claims to the absolute, or the truth, can be challenged, but understanding sovereignty as nothing obfuscates the reality of its power. The sovereign nation state represents the power relationship and force manifested through law-despite inconsistency or unpredictability of their permanence. It has a pretence to monism, as an objective, which is asserted through law, while pluralities within and outside sovereignty's realm continue to challenge its dominant framework.

In order to retain determinacy, power wielded through sovereignty requires a cohering around an idea. At the same time it has to remain aware of the plurality in its realm. Sovereignty, as Derrida describes, "is undivided, unshared, or it is not." Yet the sovereignty does divide "When it must, when it cannot not divide?"3 The question is what we mean by sovereignty in the modern occidental notion of the nation state; versus sovereignty as a possibility of everything. Do we need to distinguish sovereignty from other possible configurations that emerge out of various assertions of sovereignty? And if we do, then we wish to retain some capacity to deny sovereignty to others; otherwise any form of self-definition as sovereign would be acceptable. We look for the criteria for, as

2Georges Bataille, Literature and Evil, trans, by Alastair Hamilton (London: Calder & Boyars, 1973) at 193-4.

3Jacques Derrida, Without Alibi, trans, by Peggy Kamuf (Stanford: Stanford University Press, 2002) at xix- xx.

166 Derrida describes " the sovereign and reappropriating gathering of self in the simultaneity of an assemblage or assembly, being together or "living together", as we say."4

For singular beings to 'live together' there has to be an assertion of a determinate commonality, and sovereignty provides one manifestation of that imperative. Modern law acts as the connection between the singularities and ensures sovereignty's determinacy.

Blanchot defines this law that "affirms itself as law...without reference to anything higher: to it alone, pure transcendence."5 Yet the law appears to remain in a paradox: it creates and protects some determinate order, while its origins must be "without history, genesis, or any possible derivation."6 Law, however, always depends on determinate content and some specific force or power that creates it. It is the law of the sovereign

'nation-state' and specific relationships and interests that it represents. Thus, the law depends on the sovereign, but the opposite is also the case. The sovereign sustains itself through law.

II. The position of indigenous peoples in Peruvian society

As Peruvian writer Jorge Basadre writes "Peru as a name and as a social fact. .. does not appear modestly or imperceptibly . . . [She] was ... born of blood and tears in an abyss of history, with a loud crash that shook the world."7 Since the original moment

Jacques Derrida, Rogues: Two Essays on Reason, trans, by Pascale-Anne Brault and Michael Naas (Stanford: Stanford University Press, 2005) at 11.

5 Maurice Blanchot, The Step Not Beyond, trans, by Lycette Nelson (Albany: State University of New York Press, 1992) at 25.

Jacques Derrida, 'Before the Law', trans, by Avital Ronell in Jacques Derrida, Acts of Literature (New York: Routledge, 1992) at 191.

7 Jorge Basadre, Meditaciones sobre el destino historico del Peru' (Lima: Huascaran, 1947) at 104-105.

167 of its coming into existence, the multicultural, multinational, and multiethnic composition of Peru has persistently posed a challenge to its image as a singular sovereign. Indigenous peoples in Peru have had a complex and violent relationship with the Peruvian state, which as the self-imagined sovereign unity, has sought to obliterate this experience of co­ existence.

A. Constitutive violence

Violence has been a constitutive element of Peruvian state and its law, and its presence remains evident in the contemporary relationships. Peruvian legal system has not sought to re-validate itself through post-colonial inclusion of indigenous peoples and democratic orientation. The reference to the diversity of co-existence in Peruvian society is reluctantly and minimally included in the Peruvian Constitution. Rather, Agamben's image of the Homo Sacer comes to life in the Peruvian context: the losses of some lives, which compose Peruvian society, do not entail the mediations of law.8 Indigenous peoples have existed apart from Peru in so far, and were included " in the juridical order .

. . solely in the form of... exclusion." However, rather then just mere excluded, indigenous peoples became an object of ownership and regulation-where, to follow

Foucault, albeit in a somewhat different context, life is put "in question" and where it can be regulated and eliminated, but not protected.10 For Foucault, this was "a way of living

8 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans, by Daniel Heller-Roazen (Stanford: Stanford University Press, 1998).

9 Ibid, at 8.

Michel Foucault, The History of Sexuality, Vol. 1: An Introduction, trans, by Robert Hurley (Harmondsworth: Penguin, 1981) at 143.

168 and not a way of killing," whereas, as I intend to describe in the case of Peru, indigenous peoples do not have legal protection at par with other members of the society.

The history of Peru has been rooted in the myth of the vanquishment of the inferior indigenous races. Following the Spanish invasion and capture of the last Inca ruler Atahualpa, the Inca Empire was defeated in the Andean city of Cajamaca in 1532.

Peruvian novelist and Nobel Prize winner Mario Vargas Llosa has argued that indigenous peoples in Peru present "archaic obstacles" to the development of "modern" nations.12

Myths of violent indigenous resurgence has played an important role in the fear of mysterious and atavistic Quechua peoples who were seen as potential subversives and terrorists.

In its report on the most recent conflict in Peru (1980-2000) that took place between the state forces and the Maoist guerrilla group Sendero Luminoso (the Shining

Path), the Peruvian Truth and Reconciliation Commission (TRC) has reported approximately 70,000 dead, 75% of whom were of Quechua descent and thousands were displaced from the south-central region of the highlands.13 Many victims were also union leaders in mining centres and peasant movement organizers in the highlands. Political violence began in 1980s with the emergence of Sendero Luminoso (the Shining Path), a

Maoist insurgent group, and the Movimiento Revolucionario Tupac Amaru (MRTA), a

" Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972-1977, trans. C. Gordon et al. (Brighton: Harvester, 1980) at 60.

12 Mario Vargas Llosa, "Questions of Conquest: What Columbus Wrought, and What He Did Not," Harper's, Dec. 1990, at 45.

13 Final Report of the Truth and Reconicliation Commission: Summary of Recommendations (Intl Ctr. For Transitional Justice trans., 2003) online: < www.cverdad.ore.pe>. more urban insurgent movement, rooted in ideology of Cuban Revolution. In response, the Peruvian military engaged in a violent counter-insurgency operation. Most of the violence occurred in the highlands as the military targeted Andean peoples of Quechua origins as presumed 'terrorist supporters.' Due to Peru's stark geographic and racial divisions between the urban capital and the highlands, most of the violations occurred unnoticed in Lima. Often, the only access to some of the regions was with military helicopters, which prevented journalists and human rights organizations from investigating military operations in the Andes. As stated in the TRC, "for the centers of political and economic power what occurred in the pueblos, houses and families happened in another country, a Peru alien to modernity."

Racist attitudes that undergirded the conflict became epitomized in the so-called

Uchuraccay massacre. In 1983, eight journalists were massacred in the community of

Uchuraccay, located in the Peruvian Andes. The official Comision Investigadora de los

Sucesos de Uchuraccay, presided by Vargas Llosa, concluded that the local peasant community members committed the massacre, because they mistook the journalists for terrorists.14 In order to explain this conclusion, Vargas Llosa described the culture of the

Andean community as remote and removed from the metropolitan of Lima. The report described in detail the state of the journalists' bodies: eyes gouged, bodies mutilated and buried face downwards "so that their souls could go straight to hell." These acts allegedly evidenced the harsh nature of the Andean culture, which Vargas Llosa further dubbed as

"feudal" and "archaic." The TRC reopened the case after the evidence emerged that the

Comision Investigadora de los Sucesos de Uchuraccay (Lima, Peru: Editora Peru, 1983).

170 Peruvian military forces were implicated in the massacre. The Uchurracay massacre became a symbol of the persistence of dehumanization of indigenous peoples in Peru, which has continued to serve as justification for violence.

The violence in Peru is the 'arche-violence,' which "appears with articulation" and delineates the relationship among persons. This is the "the violence of difference, of classification, and of the system of appellations."15 And further, this "reduction of the other to a real moment of my life, its reduction to the state of empirical alter-ego, is an empirical possibility, or rather eventuality, which is called violence."16 The impossibility of full recognition of the Other as the creator of meaning results from our incapacity to depart from our own perspective, but only see the other in the reference to ourselves. The

Other is reduced to a mere object of one's own life "when it leads the other, whether through psychology, demagogy, or even pedagogy which is not instruction."17 The violence can be minimized, if the Other is 'let-be' as something that merely exists outside of oneself, and as an independent person capable of reasoning. This is where Derrida describes justice, as manifested in the respect for the other and "rectitude of address"1 towards the other "as other, irreducible to my ego, precisely because it is an ego." There is also the assumption that in relation to persons, a non -human presence (animal, plant)

5Jacques Derrida, Writing and Difference, trans, by Alan Bass (Chicago: University of Chicago Press, 1978) at 27.

16 Ibid, at 128.

17 Ibid, at 106.

18 Derrida, Jacques, "Force of Law: The 'Mystical Foundation of Authority,'" (1990) Cardozo Law Review 949.

19Derrida, supra note 15 at 125.

171 is not capable of the creation of meaning. However, the distinction between human and non-human, and what sort of justice is due to each, has not always been very clear.

Violence also represents a finitude, where we only recognize our experience, and deny the positions of others. The type of violence that occurred during the Peruvian civil conflict reveals the position of one segment of the society, which has failed to obtain the protection of the state through a contract whereby conflict and violence is minimized.

The president of the TRC, Salomon Lerner though denying that the war in Peru was an ethnic conflict, wrote that "these two decades of destruction and death would not have been possible without the profound contempt towards the dispossessed people of the country, expressed equally by the members of the insurgent Sendero Luminoso and the

Army, a contempt that is woven into every moment of Peruvian everyday life." Those who found themselves outside of the Peruvian political system- have either appealed to inclusion, and more democratic/legal transformation-or as what has occurred in the 1980s

- insurrection and violence. This Hobbesian idea of a contract, expressed in the

Leviathan as: "injustice is no other than the not performance of covenant." Conversely,

"the breach or violation of covenant, is that which men call injury, consisting in some action or omission, which is therefore called unjust" which stresses the importance of an agreement to a contract. '

Thomas Hobbes, Leviathan, ed. by Curley, Edwin (Indianapolis, IN: Hackett Publishing Company, Inc., 1994)atXXXXX.12.

21 Thomas Hobbes, The Elements of Law, Natural and Politic, ed. by J.C. A. Gaskin (Oxford, 2008) at III. 2.

172 An acknowledgment of Other's autonomy would result in an agreement among equals, where possibility of conflict and violence is mediated through law. Lack of recognition of others as capable of creating meaning, results in a forced agreement upon the Other into a subsumed existence. Simultaneously, the relationship remains that of syncretic mutual influence and unresolved conflict. Such co-existence poses a challenge to a formalized system of the rules of justice, as has been evidenced in the cycles of violence permeating Peruvian society. Peruvians have made an attempt to create the contract through the debates and processes of reconciliation among different segments of its society, and an inclusion of the indigenous Other. The workings surrounding the democratization process and truth and reconciliation commission, were an attempt to overcome the permanent state of instability.

B. The legal context

This section will look briefly at the position of indigenous peoples in the Peruvian legal context. Considerable tension and violence has been generated in the country by the exploitation of the subsoil resources of the traditional territories of the indigenous peoples. The grants to projects aimed at the exploitation of natural resources have triggered violence such as that which occurred in Bagua in June, 2009, between state forces and the indigenous peoples of the Amazon. First I identify the historical roots of the present legal framework as it relates to indigenous peoples.

While the Peruvian 1993 Constitution recognizes and protects the ethnic and cultural diversity of the Peruvian nation, high proportion of persons among the indigenous peoples and Afro-Peruvian communities continue to suffer in practice from

173 racism and structural discrimination. The Peruvian state promotes and guarantees the protection of the individual and collective rights of indigenous peoples established as campesino or peasant communities in the Andes, or as native communities in the Amazon region. For the purposes of implementing the rights enshrined in ILO Convention No.

169 and the United Nations Declaration on the Rights of Indigenous Peoples, the

Peruvian state considers the categories of "campesino communities" and "native communities" as belonging to the category of "indigenous peoples" as it is currently used in international human rights law, and which the indigenous peoples want to appear in the

Constitution. However, not all indigenous peoples and Afro-Peruvian communities in

Peru have been established as campesino or native communities.

The current institutional model in Peru, which regulates the relationships between the state, society, and indigenous peoples and communities, has come into being through a long process of struggles and contradictions. For instance, the concept such as the inalienability of indigenous territories was not product of legislations stemming from indigenist policies in the early twentieth century, but reach as far back as the so-called

Ley of the Indias (Laws of the Indies).22 Consequently, the contemporary violation of such rights by the Peruvian state constitutes a violation of preexisting laws that protected indigenous peoples.

The most notable legal characteristic and image of community organizing of pre- and Inca regime was its collectivist nature. Social organization was centered on the

2 Leyes de Indias, Archivo Digital de la Legislacion en el Peru online:

174 Ayllu, or the family clusters which owned and managed particular territories. Ayllu was a fundamental nucleus of the society, based on collective ownership, and with no concept of individual property. The Incas succeeded in creating an empire where the juridical norms were identifiable and separate from religious, moral, and economic systems. They made clear distinctions between society and state, as well as the moral law and public law. With the Spanish conquest entered the encomienda system, which granted Spanish conquerors and colonists parcels of lands and the right to the labor of the peoples living on them.24 In response to exploitative nature of this system, Charles V expedited the

Laws of the Indies, which abolished in substantial part past norms which allocated indigenous peoples to harsh servility, prohibited the grants to new encomiendas, and banned hereditary transfer of their ownership.

Despite the opposition coming from the encomenderos, the Crown retained the official abolishment of slavery of indigenous peoples. Nevertheless, in reality, the encomnieda system remained in place as an important institution of the relationship between the Europeans and indigenous peoples. The Laws of the Indies had different procedures for recognition of legal title for the Spanish and the indigenous peoples respectively. The colonial rule thus created the existence of two societies, la Republica de

Indios (or Indian Republic) and the Republica de los Espanoles (the Spanish Republic) and two distinct legal categories whereby each nation had distinct rights and obligations

Atilio Sivirichi, Derecho Indigena Peruano. Projecto de Codigo Indlgena (Lima, Peru: Ediciones Kuntur,1946).

24 Carlos Sempat Assadourian, "The Colonial Economy: The Transfer of the European System of Production to New Spain and Peru" (1992) 24 J. Lat. Amer. Stud. Suppl 55.

175 to the Crown.' The invention of the 'Indian Republic' was a civilisatory project.

Andean ethnic polities were resettled in the late sixteenth and early seventeenth centuries in 'christian towns' where they would live in republic and learn virtues of good government.26

An important aspect of the colonial legislation was the institutional support of indigenous governance structures, and the relationships with the rest of the society under

Spanish rule. In reality, however, the autonomy of indigenous peoples was limited, with imposition of tributary obligations and continuing slavery.27 In the Viceroyalty of Peru, the colonial state was established on the coast, with majority of indigenous peoples living in the Andes and the Amazon. In the Andes the communities generally remained united under kurakas, or Inca authorities. This structure changed dramatically after the Great

Andean Civil war, led by Jose Gabriel Condorcanqui Tupac Amaru II, and the Aymara leader Tupac Katari, in the Bolivian region. Condorcanqui initiated the Great Rebellion of the Andes in 1780 in response to the increasing tributary pressures on indigenous peoples by Spanish colonial rule, including the labour draft assigned to the mining and other sectors of the economy. The movement of Tupac Amaru II was a nationalist movement much influenced by new ideas and events in Europe and North America, as well as the

Andean currents of neo-Inca revivalism and nationalism in the second half of the

25 Mark Thurner, "Republicanos' and 'la Comunidad de Peruanos': Unimagined Political Communities in Postcolonial Andean Peru" (1995) 27 Journal of Latin American Studies 291.

26 Ibid, at 295.

27Adda Chuecas Cabrera, "El Derecho de los Pueblos Indigenas y Comunidades ne el Contexto Historico del Peru" Centro Amazonuco de Antropologia y Aplicacion Practica (CAAP) Numero 35, Enero 2009 online:

176 eighteenth century. Upon defeat, on 18 May 1791 Tupac Amaru II was beheaded. In the aftermath, the Spanish authorities unleashed repressive tactics throughout the region of

Tupamarista supporters, which resulted in the removal of ethnic authorities and intellectuals.28

Following the wars of independence in the nineteenth century, the newly founded

Latin American states adopted a juridical culture of the nation state ideology and legal monism, associated with the theories of state monopoly, capital-based economics, and modernization. Thus the concept of the 'nation' as a people under one government or a state only became prominent in late nineteenth century. Thus, the 1827-28 Constitution refers to the Peruvian nation as the 'political association of all the citizens of Peru.'

Indigenous peoples were confronted with the ideal of a culturally homogenous nation state and its assimilationalist policies and legislations, as well as the privatization of their lands. The objective was to unify the fictional duality of colonial society in Peru, into a fictional unity through the new juridically uniform Peruvian Republic. The Peruvian elites identified the nation with one people, one culture, language and identity, regulated by one law and system of justice. In 1821, the Peruvian Republic abolished Indian status.

The now modernizing capitalist Peru engaged in privatization of indigenous lands in order to promote the economic interests of the new oligarchy.

Peru continued to base itself on the ethnic fragmentation of Peruvian territory with white, mestizo, and Black coast, and indigenous highlands and the Amazon. Much

28 See Peter Flindell Klaren, Peru. Society and Nationhood in the Andes (New York, Oxford: Oxford University Press, 2000). of nineteenth and twentieth century was marked by the attempts of the government in

Lima to control the remote indigenous populations, not through their inclusion within the national project as equal citizens, but through the quasi-feudal system of control enacted by gamonales-ox landowners or merchants, who in exchange for the repressive support of the state, guaranteed the political loyalty of'their' regions.29 The tension of Peru's national formation remained in its colonial schism created along racial, ethnic, geographical, and socioeconomic lines.

The first years of the Republic conceded the 'equality before law' for indigenous peoples, as inspired by European, and North American liberal principles. Argentine general, and one of the leaders of the wars of independence, Jose de San Martin prohibited the use of the terms 'Indios' or 'naturales' and ordered that henceforth they would be only known as Peruvians. As Thurner explains, after 1826 indigenous peoples were more commonly representing themselves before courts as republicanos (members of the Republic). The term 'indigenas'now became fashionable as the more progressive choice of words. The objective was to negate the existence of the colonial Indian or

'indio.' The indigenous was now part of the Peruvian nation and as such belonging to it.

In 1823, Simon Bolivar decreed the abolishment of the Indian tribute, which however also eliminated the entitlement to communal lands. In the new Republic, being equal before the law signified exercising one's liberty to sell and purchase, or rent lands.

29 Florencia E. Mallon, "Indian Communities, Political Cultures, and the State in Latin America, 1780-1990 (1992) 24 Journal of Latin American Studies, Quincentenary Supplement: The Colonial and Post Colonial Experience. Five Centuries of Spanish and Portuguese America 45

0 Thurner, supra note 25 at 297

31 Ibid, at 301.

178 With privatization, lands became generally taken over by Creoles as indigenous peasants had, either too little land, or economic resources, to hold on to them. Between 1821 and

1920, the peasant communities, primarily in the Andes, and also on the coast, had no legal existence. This has allowed an encroachment on indigenous and communal lands, resulting in a cycle of intense land conflicts.

In the case of indigenous peoples in the Amazon, the 1909 Ley General de Tierras de Montana (General Law of Montana Lands), or Law No 1220 established that the lands of the natives were automatically incorporated as lands under the dominion of the state, for they were not legitimately acquired conforming to the Civil Code or the Primera Ley

Organica de Tierras de Montana de 1898, or the First Laws of Lands in the Mountains.32

No indigenous communities were recognized. These laws prohibited colonization as a form of land acquisition. In reality, it was a law which established privileges in favour of those who were exploiting rubber, and those who were granted land were considered as absolute and perpetual owners of the lands and all living creatures on it: plants, animals and persons.33 The law remained in force until 1974.

During the government of Leguia (1919-1930), the 1920 Constitution affirmed principles accepted by the majority of the constitutions in the regions, that is the recognition of the nations as culturally and ethnically different. The same text recognized the existence of indigenous communities and the inalienability of their lands. The 1920

Constitution had thus established a new regime of protection of communal property and

32 Chuecas Cabrera, supra note 27 at 6.

179 recognized indigenous communities. The 1933 Constitution recognized the inalienability of community lands and in 1938 a procedure for community registration in the highlands was established.

However, the cycle of land conflicts resulting from the persisting hacienda system finally culminated in the Agrarian Reform of 1969 and major structural reforms enacted with the military coup led by General Juan Velasco Alvarado in 1968.35 Tupac Amaru II became the symbol of the revolution, with the exaltation in literature of the glorious Inca past. Quechua became the second national language of the country. Rooted in Marxist theories, the new government focused primarily on the socioeconomic differences rather then cultural, racial, and ethnic problems. Fundamental reform of the military government was the sweeping land-reform program that eliminated the hacienda and landowning elite, including foreign companies.

The reform transferred the lands to estate workers and tenants (colonos). The reform did not reach everyone equally, as those form more prosperous coastal estates benefited more then the peasants form the highlands (comuneros or colonos), and it left out the seasonal workers (eventuates). Significantly, the majority of support for the

Shining Path guerilla movements, came from the poorest sectors of the highlands. The military regime also did not enact any reforms in relation to the rights of indigenous

4 On indigenismo as a political and intellectual movement in Peru see Marisol de la Cadena, Indigenous Mestizos. The Politics of Race and Culture in Cuzco, Peru, 1919-1991 (Durham and London: Duke University Press, 2000).

35 Klaren, supra note 28 at 323-358.

36 It is important to note the concept of grievances related to unfulfilled expectations that tend to emerge out of populist regimes. See, Maxwell Cameron, Democracy and Authoritarianism in Peru: Political Coalitions and Social Change (Hamphsire: Palgrave Macmillan, 1994).

180 peoples in the Amazon who were still viewed as savages. The since modified, 1974

Decree No 20653, known as the Ley de Comunidades Nativas y de Promotion

Agropecuaria de las regiones de Selva y Ceja de Selva, or Law of Native Communities promoted change in the Amazon region, by recognizing the legal existence and juridical personality of indigenous peoples from the Amazon. Prior to this law, there were no recognized native communities in the Amazon. According to the Native Communitylaw, the indigenous peoples in the Amazon were to have all their lands demarcated and recognized as their inalienable territory. The titling process divided indigenous territories into protected areas such as areas for agrarian use or lands for forest exploitation.

Significantly, the forest lands are state lands held in trust by the indigenous territory.

However, all community land is recognized de facto as belonging to the indigenous peoples in whose name the title was issues. The process of titling became a complex and slow bureaucratic procedure, and since, the Law of Native Communities has been gradually undermined. The law itself arbitrarily divides each people into communities and not in accordance with local socio-political systems, such as the customary system of direct representation and consensus making. As a result the communities became

fragmented islands in the Amazon without representing a territory of any people as a whole. The protection of the title is ultimately rests in the constitutional provisions that recognize the rights of indigenous peoples of Peru but simultaneously retain state's capacity to amend them.

With the global push towards neoliberal economics, Peru's indigenous

communities experienced yet another wave of dispossession through the privatization

181 model. One of the first attacks on the peasant communities on the coast, took place under the first government of Alan Garcia (1985-1990). The government attempted to impose a law to parcel out community lands in favour of new enterprises. The opposition from the leftist forces in the government, however, did not allow for the laws to be passed.

Eventually, under the neoliberal restructuring led by the government of Alberto Fujimori, the Article 71 of the 1993 Constitution established that foreign capital would receive the same treatment as national capital, while at the same time removing inalienable protection clauses from the Constitution. With funds and advice to the minister of agriculture from the Inter-American Development Bank, a new process of land privatization in the coast and the Andes commenced, and not without strong protests form peasant unions such as the Confederation Campesina del Peru (CCP), Peasant

Confederation of Peru. Resulting from these policies, the communities were able only to retain pasture and cultivated land, which the communities have administered as

"communal lands."38 Fragmentation of indigenous lands served to facilitate further encroachment by national and foreign enterprises and dispossession. The 1993

Constitution removed two provisions of the 1933 Constitution relating to indigenous lands. The 1933 Constitution had indicated that territories are inalienable (cannot be sold), unmortgageable (cannot be placed as security for loan), and imprescribable (cannot be claimed by any other party). The 1993 Constitution removed the inalienable and

Rodrigo Montoya Rojas, '"Con los Rostros Pintados': Tercera Rebelion Amazonica en Peru (Agosto 2008-Junio 2009)" (Peru Agosto 2009 ) at 4 online:< www.servindi.org>

182 unmortgageable provisions and stated that any lands, which the state considered to be abandoned could be claimed by third parties and bought from the state.

Policies of disposession of indigenous lands thus continued at par with minimal constitutional recognition of their existence and rights. The 1993 Constitution makes a reference to Peru's pluralism in Article 2.19, stating the right of individuals to their

"ethnic and cultural identity" and that "the government recognizes and protects the ethnic and cultural plurality of the nation."39 The Constitution recognizes bilingualism, however, not as specific to indigenous nations: "Any Peruvian unable to express himself in Spanish has the right to use his own language before any authority through an interpreter. Foreigners enjoy the same right when summoned before any authority."

Article 48 adds that "the official languages are Spanish and (only) in areas in which they predominate, also Quechua, Aymara and other aboriginal languages, according to the law" without specifying the areas in question. Intercultural bilingual education appears as a right, but a highly restricted one. After noting that "the State guarantees the eradication of illiteracy", Article 17 adds that, "it encourages intercultural and bilingual education, according to the characteristics of each area" and "preserves the country's different cultural and linguistic expressions" although it concludes above all that "it promotes national integration."

In terms of land ownership, Article 88 declares that "the State (...) guarantees the right of land ownership, in private, communal or any other associative form" and Article

89 recognises that "Rural and Native Communities are legally recognized and enjoy legal

39Constitucion Politica del Peru 1993, online:

183 status. They are autonomous in terms of their organization, communal working, use and free disposal of their land, as well as economically and administratively within the framework established by law. Ownership of their land is imprescriptible except in the case of abandonment described in the preceding article." It adds, "The government respects the cultural identity of the Rural and Native Communities." Article 149 recognizes "Authorities of the Peasant and Native Communities," who "with the support of the Peasant Patrols, may exercise jurisdictional functions within their territory in accordance with common law, provided they do not violate the fundamental rights of the individual."

However, only the ILO Convention 169 and the recent UN Declaration on the

Rights of Indigenous Peoples, both ratified by Peru, enable a principle of recognition and legal protection of indigenous peoples and their influence is limited due to lack of enforcement. The Peruvian state has promoted multinational capital investment projects for mineral and oil extraction on indigenous territories without exerting any control over the working conditions or the environmental damage caused. One of the most prominent non-governmental organizations that developed in response to the mining development,

Coordinadora Nacional de Comunidades del Peru Afectadas por la Mineria

(CONACAMI), National Coordination of Peruvian Communities Affected by Mining was formed in 1999.40

The situation has been different in the Amazon. The titling work under the Law of

Native Communities has prompted an indigenous movement that eventually joined

40 Confederacion Nacional de Comunidades del Peru Afectadas por la Mineria (CONACAMI) online:

184 federations along ethnic and geographic lines, generally by river basin. The indigenous peoples of the Amazon have been attempting to use the law in its existing form to advance the control of their ancestral territories. Particularly, during the 1980s, indigenous federations flourished throughout the Amazon region, leading to the emergence of Asociacion Interetnica de Desarollo de la Selva Peruana (AIDESEP),

National Organization of the Amazon Indigenous people of Peru. The titling work was also accompanied by a whole series of initiatives aimed at encouraging indigenous individuals to take up citizenship, a way of encouraging the development of those lands abandoned by the public administration. Of all these initiatives, the ones with the greatest impact were the campaigns to provide electoral registration cards, which very few indigenous people held at the start of the 1990s. Some years after these campaigns, indigenous people began to be elected, first at district level, then later even at provincial level.41

The local organizing in the Amazon has particularly been influenced by global dynamics, including initiatives international development institutions and their specific agendas. For instance, OXFAM America funded a meeting in Lima in 1984 hosted by

AIDESEP with indigenous organizations from four other Amazonian countries. The result of this meeting was the creation of the Coordinadora de Organisaciones Indigenas de la Cuenca Amazonica (COICA), the transnational indigenous organization that now represents Amazonian peoples in nine South American countries. The 1984 meeting also initiated the engagement with the discourses of international indigenous rights law and in

Asociacion Interetnica de Desarollo de la Selva Peruana (AIDESEP) online:

185 particular the UN Working Group on Indigenous Populations (WGIP), and global environmental politics.

AIDESEP is now a national organisation governed by a National Council made up of six decentralised bodies from the north, centre and south of the country. It is comprised of 57 federations and territorial organisations representing 1,350 communities and some 350,000 indigenous men and women, grouped into 16 linguistic families.

AIDESEP has been the main driving force behind the Conferencia Permanente de los

Pueblos Indigenas del Peru (COPPIP) Permanent Conference of Peruvian Indigenous

Peoples.42 COPPIP grouped together peasant farmer unions with the aim of providing political representation of the indigenous organisations of the coast, mountains and forests of Peru.

Different authors have addressed indigenous organising in Peru, in both the

Amazon and the Andes. Part of the debate has been the lack of recognition of indigenous movements in the Amazon, focus on the Andes, and differentiation of Peru from other

Andean countries with more prominent and internationally visible movements. For instance, Andean communities have organized under different political banners then the peoples in the Amazon. Indigenous people sin the Amazon, for instance have had more connections with international environmental networks and have focused on their ethnicity as a tool for rights claims. In contrast, Andean indigenous groups have been more local and only recently moving away form articulating their interests in class terms

42 Maria Elena Garcia, Making Indigenous Citizens: Identities, Education, and Multicultural Development in Peru (Stanford University Press, 2005). as highland peasants. While one of the factors is also the lack of self-identification of indigenous peoples in the highlands as indigenous, another factor is the legacy of violence, not only of the recent conflict, but of the deep seated racism in Peru which has led to the denial of Quechua self and culture. For instance, Maria Elena

Garcia in her book on bilingual education has emphasized how parents in Quechua communities often insist that priority be given to literacy in Spanish because of the

"shame" of being monolingual in Quechua.43

The current indigenous organizing in Peru has been primarily formed in response to the influx of national and international capital claiming their lands and resources. This phenomenon, with its roots in class politics, stands in tension to some other movements in the Peruvian society, including the post-conflict human rights and reconciliation movements. More recently, organizations such as the CONACAMI, which have their roots in more class based labor and land claims related political activism, have adopted the discourse of indigenous rights. Undoubtedly this has been a consequence of multiple factors including the influence of international indigenous rights discourse (including self-determination), greater legitimacy of rights claims then class based claims. With the democratization process after the Fujimori regime, human rights organizations gained some impetus, including the work surrounding the TRC. However, the work on post- conflict (re) construction could not overcome the continuing socio-economic, race, gender, and cultural divisions in Peru, but also very importantly, the continuing racialised conflict over land ownership and management.

Ibid, at 96-104.

187 C. Post Conflict Reconciliation

Discussions on the possibilities for post-conflict reconciliation in Peru, have posed significant challenges-as the reconciliation process itself has to be put into question. I argue that the reconciliation process signified for some, a possibility of greater inclusion and voicing of indigenous and rural communities. At the same time, its limited mandate could not address the persisting discrimination and dispossession of Andean, coastal, and Amazon communities. Rather, the TRC became yet another attempt to re- found and legitimize Peruvian sovereignty through creation of a unified and reconciled nation. Reconciliation became an integral component of a peacemaking paradigm in response to gross and systematic human rights violations of the twentieth and twenty-first centuries. Truth commissions emerged as peace building mechanisms for reconciliation in the form of investigative tribunals with mandates to answer questions about the causes of violence, as well as identify the perpetrators and the victims.

The primary purpose of truth commissions that have evolved throughout the

1990s has been social unity and nation building. They were supposed to achieve that by forging collective healing, which would result from giving voice to victims to tell their stories. Significantly, in the affirmation and importance of the rule of law guided the philosophical foundation of truth commissions and legal theorists who were instrumental in their creation. For instance, Jose Zalaquett, a professor of ethics and human rights at the University of Chile argued that "The truth in itself is both reparation and

188 prevention.' Furthermore, Truth Commissions, would "help to create a consensus concerning events about which the community is deeply divided... The purpose of truth is to lay the groundwork for a shared understanding of the recent crisis and how to

• ,,45 overcome it.

In Peru, the TRC focused on a process of reestablishment and recasting of fundamental ties among Peruvians, ties that were destroyed or that deteriorated in the conflict experienced. Although the reconciliation process would have to possess "certain fundamental characteristics" that respond to the multiethnic, pluricultural, multilingual, and ecumenical reality of the country, it also assumed that there were certain fundamental ties among Peruvians as a unity, which would obliterate the plural reality of the society.46

In relation to the role racial and ethnic discrimination has played during the conflict, the TRC has failed to address some of the crimes that have specifically targeted indigenous peoples. It failed, for instance, to record the state sponsored enforced sterilization campaign of 200,000 indigenous, Quechua-speaking women in Peru.47 That such instances would go undocumented is symptomatic of a broader schism within the

Peruvian society, but also a reflection of the decision-making processes that define it. The thirteen commissioners did not successfully represent the gender, racial, ethnic, and

44 Greg Grandin, "Truth Commissions: state terror, history and memory" (2007) Radical History Review 97 at 3

45 Ibid.

461 posit claims to self-determination against state-led reconciliation processes in Peru in Elena Cirkovic, "Self-Determination and Indigenous Peoples in International Law"(2006-2007) 31 AILR375.

47 Jocelyn E. Getgen, "Untold Truths: The Exclusion of Enforced Sterilizations from the Peruvian Truth Commission's Final Report" Cornell Law Faculty Working Papers, 2008.

189 linguistic diversity of Peru. The utility of the TRC in Peru seems to have been limited by the need for consolidation of institutions of liberal justice and constitutional polities. The commission gathered testimonies from victims and witnesses with an objective to document the political violence committed by both state and non-state agents. The TRC did not have the mandate to prosecute perpetrators of violence. It made investigations within the framework of, and reference to both national and international human rights laws. Unlike the Guatemalan Historical Clarification Commission (CEH),48 the Peruvian

TRC did not find that the violence perpetrated against indigenous peoples in Peru constituted a genocide.

In part, the objective of the TRC has been to re-create historical narratives and legitimize state rule. One of its methods has been to include public testimonies. This, arguably, has been significant for making visible the historically marginalized segment of the society. For the victims, public speech was intended to aid in healing. However, the process of (re) conciliation and healing also implied political forgiveness. In the context of Peru, a segment of Peruvian state and society demanded forgiveness of the victims in order to re-affirm and re-found a purportedly more inclusive Peru. It made visible the horror of the violence, which could only be avoided through a democratic contract and constitutional rules. However, in many ways, the commission failed primarily due it its inability to look at the problems of persisting unequal distribution of power in the society, and conflicts of interests and ideas-while at the same time asking for the overcoming of illiberal intolerance and moral pardons from the victims.

48 Guatemala Memory of Silence TZ'INIL NA 'TAB'AL, Report of the Commission for Historical Clarification (CEH) online: < http://shr.aaas.org/guatemala/ceh/report/english/toc.html>

190 The TRC thus became part of the history of Peruvian sovereignty. The demand for forgiveness was also the affirmation of sovereignty, without recognition of indigenous peoples as self-determining nations. As Derrida argues, the global surge of reconciliation and forgiveness processes in the past two decades, remains rooted in the Abrahamic moral tradition, "in which forgiveness is a central concept and which is at the basis of the three great monotheisms.' Call for reconciliation became addressed from the top down and "confirms its own freedom or assumes for itself the power of forgiving, be it as victim or in the name of the victim."50 The legitimacy of the reconciliation process was to be achieved through the visibility and voices of the victims, who were asked for the forgiveness of the unforgivable for the sake of national reconciliation.

The victims retained a limited right to speak in the political context of Peru. The

Peruvian state continued to view social protests and activities as 'terrorist supported.' The anti-terrorist law (decree number: 24745) from 1992 has remained in force despite being clear contradiction of several fundamental human rights. In 2003 the Constitutional court declared parts of it unconstitutional. The law gave an imprecise definition of terrorism- related offences, allowed civilians to be tried in military courts, and violated the principles of due process and fair trial. The effect of this law's application was that thousands of ordinary people with no involvement in the two insurgency organizations

Jacques Derrida, On cosmopolitanism and forgiveness, trans, by Mark Dooley and Michael Hughes (London; New York: Routledge, 2001) at 28

191 were accused of being terrorists. They were submitted to torture arbitrary detention and numerous other grave human rights violations.51

In Peru, interests among different segments of the society are very diverse, and not necessarily conditioned by ethnic, racial, or gender background. However, while some communities favour their inclusion in the promoted state-commercial project, for others, this project has signified a destruction of their existence and identities. The

Peruvian state-building process has thus continued to ignore its plural origins, and in so doing has not abandoned its violent origins. An alternative would be a conciliation and forgiveness without conditions of sovereignty and power. This process would imply a negotiation between the universal and particular, pragmatic political, or legal action. Such universalism cannot, create political action, where decisions would be founded in incontestable ethical precepts.52 The concern for the survival of the nation remains as a transcendent premise, the imperative existence founded in myth. As such, it imposes limits on "forgiveness" and its unconditional nature.

D. Myth of the Inkarri

Inkarri's brother Espanarri cut off Inkarri's head...The highest mountains know. Inkarri's head is trying to grow towards his feet. The pieces of him will surely come together one day. On that day he will walk the earth followed by the birds. Eduardo Galeano, Memory of Fire, I. Genesis, 1982

5'"Terrorist Legislation in Peru and Chile" International Commission of Jurists online: ; Peruvian Truth andReconcilaiton Commission, Hatun Willakuy: Version Abreviada del Informe Final de la Comision De La Verdady Reconciliacion (Lima, Peru: 2004) at 258.

52 Derrida, supra note 49.

53 Eduardo Galeano, Memory of Fire, I. Genesis (Norton and Company, 1985) at 76. The limited constitutional reforms in Peru did not recognize collective rights of indigenous peoples as distinct peoples, rather they are state-derived individual rights.

Domestic policies and international law echo each other in the denial of indigenous sovereignty and legitimacy of existing sovereign assertion. Peruvian society has negated the existence and participation of indigenous peoples, but recognisd them merely as essentialised Indians, a 'degraded race' or pre-political beings.

Since the first moment of the encounter with the Spaniards, a choice between two alternatives became apparent to the diverse indigenous nations of the Americas: to accept or reject the conquest. The result of the second alternative is evident in the orally transmitted Andean narrative of the Inkarri. Peruvian novelist and anthropologist Jose

Maria Arguedas has collected evidence of this tale.54 The title, Inkarri, comes from the

Quechua pronunciation of Spanish words Inca Rey, or the Inka King. It tells the tale of the last Inka nobleman and rebel leader in Peru, Jose Gabriel Condorcanqui Tupac Amaru

II (the 'Great Snake' in Quechua) and his followers who were taken to Cuzco, the capital of the Inka Empire, and summarily tried and executed for treason. On 18 May 1791, before a large gathering in the central square, Tupac Amaru II watched the hanging of his family members and execution of his wife Micaela Bastidias by garroting. After being tortured and then unsuccessfully drawn and quartered (his limbs could not be separated from his body by the horses employed), the rebel leader was beheaded. In the aftermath, the Spaniards unleashed a reign of terror against the Quechua people. The conquest had

54 Jose Maria Arguedas, y Francisco Izquierdo Rios, Mitos, leyendasy cuentos peruanos (Lima: Ministerio de Educacion, 1947). See also the works historian Alberto Flores Galindo, Buscando un Inka: Identidady Utopia en los Andes (Magdalena: Instituto de Apoyo Agrario, 1987).

193 severed the head of the Inca, which ever since remained separated from the body; according to the story, when both come together again, the period of disorder, confusion, and darkness initiated by the Europeans will end and the Andean people will recuperate their memory.55

Inkarri is a memory of a failed indigenous rebellion against the Spaniards and the centuries of darkness that ensued. The story recollects an instance of violence committed against a people. It also recollects the period in which the notion or a colonial narrative of

'indigenous' emerges, as the vanquished other, the subjugated, and the victim. The relationship between the colonizer and the colonized became a source of many debates in the sixteenth century among Spanish theologians and jurists, over the legitimacy of the

Spanish invasion, as well as the legitimacy of indigenous rebellion against it. The hierarchical and discriminatory nature of colonial societies has been legitimized through philosophical understanding of the ontological asymmetry of human species. This was the moral, but also rational legitimization of the relation of domination within colonial societies and the colonial ethnocide. The announcement of a possible revolution and reversal of the colonial order in narratives such as the Inkarri remained in the minds of the European colonizers as a potential violent disturbance to the newly established hierarchies, allowing them to resort to terror as a legitimate source of sovereign power

55 Indigenous identity becomes that of a victim or subversive, obscuring the multifaceted dimensions of indigenousmobilization. Current attempts at a universal definition of'Indigenous' also impose limits on indigenous peoples' political, cultural, or economic aspirations. It emphasizes the status of being colonized and dominated, obscuring indigenous individual nationalities. It is important to note that the Spanish defeat of Tupac Amaru II, for instance, was assisted by other indigenous groups, who were subjugated by the Incas prior to the Spanish arrival. The association of indigenous peoples with a status of mere victims is easily complicated by these situations and alliances.

194 and law. The terrible injustice of colonialism could be compensated only at the cost of transferring the fear of Indians to the whites. The modern jurisprudence, however, concealed the effects of colonial violence on those who suffer under the rule of law in the colonies. This history became a suppressed memory within the institutions and values of the international law; what remained was only its universal moralism. And in time, as far as the indigenous peoples could not escape this hegemonic political culture, they manipulated and appropriated it within the context of the emerging colonial system. The memory of violence, however, never disappeared; it remained guarded within the subconscious of a culture whose memory never forgot the details.56

In response to Arguedas' writings on Peru's pluralities Vargas Llosa argues "that the mutilated god who was remade in his subterranean refuge was an emblem of the longing for resurrection of that archaic Utopia to which he (Arguedas) was always instinctively faithful even when his reason and intelligence told him that the modernization of the region was inevitable and indispensable."57 Vargas Llosa has longed for the elimination of a collectivist society of an ethnic nature or war with the bourgeois values of commerce and the production of wealth nor closed off from the world of exchange in defense of its immutable identity.58 This is what the Mexican critic

Hector Diaz Polanco terms as "ethnophagy" or assimilation through the multiple forces

Jacques Derrida, "Canons and Metonomies: An interview with Jacques Derrida," in Richard Rand (ed) Logomachia, The Conflict of the Faculties (Lincoln and London: University of Nebraska Press, 1992).

57 Mario Vargas Llosa, La Utopia arcaica. Jose Maria Arguedasy las ficciones del indigenismo (Mexico City: Fondo de Cultura Economica, 1996) atl33.

58 Ibid. put into play by the dominant national culture." However, as Greg Grandin has argued

Truth Commissions are contradictory bodies because "They often raise hope of justice symbolized by the Nuremberg Trials yet operate within the impoverished political possibilities that exist throughout much of the post-Cold War world."60 The emergence of indigenous movements as a political force capable of intervening in the Peruvian culture and politics is a threat, and for Vargas Llosa, is a new specter of indigenous racism. The demand is for a particular type of unity, one that would not include all of Peru's pluralities. It remains to be seen how what the TRC proposes as a "pact between the state and Peruvian society and between members of this society," is going to include political discourse, such as forgiveness, responsibility, and justice.

Contemporary politics in Peru, however, have been closely tied to international and transnational developments, involving the economic interests of other states and private actors. For this reason I compare the situation of indigenous peoples in the two domestic settings Peru and Canada, in order to better relate the economic ties between the two cases and the influences on indigenous peoples. The Canadian case presents another instance of state-society-indigenous peoples relationship and the problems of legitimacy of state building in the context of North America.

Hector Diaz Polanco, Indigenous Peoples in Latin America: The Quest for Self-Determination (Boulder: Westview Press, 1997) at 59.

60 Greg Grandin, "The Instruction of Great Catastrophe: Truth Commissions, National History, and State Formation in Argentina, Chile and Guatemala," (2005) American Historical Review 110 at 1.

196 II. Canadian histories and indigenous peoples

As Derrida explains, "All Nation-States are born and found themselves in violence. I believe that truth to be irrecusable .. .All States (I would dare to say, without playing too much with the word and etymology, all cultures) have their origin in an

aggression of the colonial type."61 New foundations and legal reaffirmations are put in place in order to overcome the image of violence through legitimacy. The foundational

legal fictions seek to either overlook or deny the existence of competing pluralities and

claims to sovereignty. The state claims to universality result in an impetus to encompass

all within its domain, which involves extension of "rights" to historically excluded

groups. The recognition or inclusion of competing pluralities can undermine the

completeness and legitimacy of sovereign settlement.

Law simultaneously becomes the creation of the sovereign and its sustaining pillar. All other traditions co-existing with imposition of Canadian sovereignty need to be

framed in terms cognizable to the Canadian legal and constitutional structure, for

"aboriginal rights exist within the general legal system of Canada."62 Recognition of

indigenous rights63 and law as being at par with Canadian law would also recognize that

indigenous peoples have jurisdiction over their own territories in conjunction with the

Canadian sovereignty. This would signify that Canadian sovereignty does not universally

encompass all peoples within its borders. Not insignificant, is also the challenge of

61 Derrida, supra note 49 at 57.

62 R. v. Van der Peet [1996] 2 S.C.R. 507 at para. 48 [hereinafter Van derPeet].

63 Due to various terminology used in Canadian institutions and common law, I will refer interchangeably here to indigenous peoples as 'first nations', 'aboriginal people' and 'Indian'. defining the new borders and overlapping interests of different indigenous nations, as well as the situation of urban populations.

According to the English common law, which forms the basis of Canadian common law, there are four primary means through which new territories may be acquired by states: conquest, cession or formal transfer, annexation or assertion of sovereignty without military action, or through settlement. In this context, it is useful to recall the words of United States Supreme Court Justice John Marshall in 1832 case

Worcester v. Georgia:

It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors.64

Nevertheless, he concludes in Johnson v M'Intosh that "however extravagant the pretension of converting the discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance, and afterwards sustained; if a

country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land and cannot be questioned."65 In

Worcester, the acceptable forms of acquisition of sovereignty come to greater clarity:

"power, war, conquest, give rights which, after possession, are conceded by the world;

and which can never be controverted by those on whom they descend."66

64 Worcester v. Georgia (1832) 31 U.S. (6 Pet.) 515 at 543 [hereinafter Worcester].

65 Johnson v. M'Intosh (1823) 21 U.S. (8 Wheat.) 543, at 591.

66 Worcester (1832) 31 U.S. (6 Pet.) 515, at 543. Decisions of Justice Marshall have established the universality of the conquering sovereign, despite recognizing the pre-existing jurisdictions of indigenous peoples.

Echoing this approach is the St. Catherine's Milling and Lumber Co. v. R. case from

Ontario, for which Lord Watson wrote:

[T]he tenure of the Indians was a personal and usufructuary right, dependent upon the good will of the Sovereign. The lands reserved are expressly stated to be "parts of Our dominions and territories" ... It appears ... to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished.67

Accordingly, the premise is that first nations also accept the Crown as underlying their title. However, in cases such as British Columbia, which is still mostly covered by non- treaty land, the imposition of the conquering sovereign remains a legal mystery. With this approach, as R. v. Van derPeet asks, if the assertion of British sovereignty over first nations in British Columbia is a "morally and politically defensible conception of aboriginal rights"?68

In answering this question in Van der Peet, Chief Justice Lamer refers to the decision of the Australian High Court in Mabo v The State of Queensland (No.2).69 Mabo declares the original ground of colonial acquisition in Australia, terra nullius, as invalid.

Yet the acquisition remains valid, creating a mysterious precedent -which rejects

67 St. Catherine's Milling and Lumber Co. v. R. (1888), 14 App. Cas. 46 at 54-55 (P.C.) [hereinafter St. Catherine's Milling].

68 Van der Peet, supra note 62 at 547.

69 Mabo v The State of Queensland (No.2) (1992) 175 CLR 1 [hereinafter Mabo]; Van der Peet, supra note 62 at 38-40.

199 violence of colonialism in order to create the veneer of state legitimacy, whilst simultaneously reaffirming its justification. There are no inquiries into the founding transgression. Hence, in R. v. Sparrow, the Court wrote that in Canada "[TJhere was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown."70 The sovereign remains behind the determination of all possibility within its borders, and indigenou peoples have to continue to operate within this terrain.

While indigenous resistance also happens by way of law, this law would have to overcome and undermine itself, for its existence is part of the constituency of the sovereign, which indigenous peoples are challenging. The very formation of state law served to eliminate indigenous rights. For instance, in its early history, British Columbia excluded indigenous peoples from voting. Most first fations peoples continued to live within their own governments on their lands, as they had done for centuries, with little regard for British assertions of sovereignty. It also denied them fee simple title to pre­ empted lands taken up through settlement, a right freely granted to non-aboriginal people in British Columbia.71

The subsection 91(24) of the Constitution Act, 1867 assigned exclusive legislative

authority to Parliament over "Indians, and Lands reserved for Indians."72 Culminating

WR. v. Sparrow [1990] 1 S.C.R. 1075 at 1103 [hereinafter Sparrow].

71 John Borrows, "Sovereignty's Alchemy: An Analysis of Delgamuukw v. British Columbia (1999) 37 Osgoode Hall Law Journal 3 at 546.

12 Constitution Act, 1867, [1985] 1 S.C.R. 721.

200 with the present Indian Act, Parliament has exercised exclusive legislative authority by

enacting legislation dealing specifically with Indians and lands reserved for them,

including regulations such as the Indian Mining Regulations, the Indian Oil and Gas

Regulations, and the Indian Timbre Regulations, among others. The Department of

Indian Affairs and Northern Development (DALAND) oversees the federal government's

responsibilities respecting Indians and administers the Indian Act. The lands governed

under Indian Act include not only those lands formally designated as reserves, but also

lands recognised as reserves under the Royal Proclamation of176314 and all lands that

remain subject to aboriginal title. Provincial laws can apply of their own effect (ex proprio vigore), so long as they do not interfere with Parliament's jurisdiction over

Indians and are not inconsistent with any other federal law. Provincial laws of general

application can apply to Indians, even though they affect "Indianess," so long they are not

contrary to the Indian Act or any other federal legislation.

Prior to 1982 federal government was able to unilaterally extinguish aboriginal

and treaty rights. Aboriginal and treaty rights received explicit constitutional recognition

under Canadian law after the Constitution Act 198275 was proclaimed into force. The

Constitution Act also contains the Canadian Charter of Rights and Freedoms and a

Canadian-based amending formula for the Constitution of Canada. Section 25 of the

73Indian Act, R.S.C. 1927, c. 98.

74 The Royal Proclamation, 1763 (U.K.), reprinted in R.S.C. 1985.

75 Constitution Act, 1982, R.S.C. 1985, App. II, No. 44, being Sced.B to the Canada Act 1982 (U.K.), 1982, c. 11, as am. by the Constitution Amendment Proclamation 1983, R.S.C. 1985, App. II, No. 46 [am.s.25(b) and add. 35 (3), 35 (4), 35.1, 37.1 and 54.1].

201 Charter protects aboriginal and treaty rights from being abrogated or derogated by

Charter rights.

In the seminal decision, Delgamuukw v. British Columbia, the Supreme Court of

Canada considered the Gitksan and Wet'suwet'en peoples' claim to aboriginal title and self-government over approximately 58,000 square kilometers of land in northwestern

British Columbia. Both nations have lived in this area as "distinct people" for a "long, long time prior to [British assertions of] sovereignty."77 Gitksan and Wet'suwet'en peoples had specific governance and legal structures for negotiating their borders and membership. In this regard, the trial judge in Delgamuukw accepted the evidence, which persuaded the trial judge that First nations had "been present in parts of the territory, if not from time immemorial, at least for an uncertain, long time before the commencement

of the historical period."78 The Court identified section 35(1) of the Constitution Act,

1982 as having a "noble purpose," ending aboriginal injustice suffered "at the hands of

[the] colonizers."79 Simultaneously, it indicates that the aboriginals become "subject to the legislative authorities in Canada." As McEachern CJ. suggested, they "became a

76 Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010 [hereinafter Delgamuukw (S.C.C.)].

11 Delgamuukw v. British Columbia [1991], 79 D.L.R. (4th) 185 at 278 (B.C. S.C.), McEachern C.J. [hereinafterDelgamuukw (B.C. S.C.)].

7SIbid. at 281.

79R. v. C6te'[\996] 3 S.C.R. 139 at 175 [hereinafter Cote'].

80 Delgamuukw v. British Columbia (1993), 104 D.L.R. (4th) 470 at 608 (B.C. C.A.) at 520, Lambert J.A. [hereinafter Delgamuukw (B.C. C.A.)].

202 conquered people, not by force of arms, for that was not necessary, but by an invading culture and a relentless energy with which they would not, or could not, compete"81

However, as Borrow asks, "did this so-called subjection occur because of historic and continuing assertions of British and Canadian sovereignty through unjust and discriminatory laws?" The laws applied to First nations deviated from the very precepts governing the legitimacy of western liberal law, as universal and impartial. If aboriginal title must be established by reference to "the time at which the Crown asserted

sovereignty over the land subject to that title,"83 as the Supreme Court suggests, it is not easy to see how the decision departs from its colonial heritage. Hence, the sovereign continues to claim legitimacy through law, which also leaves openings for conflicts within the political realm from perspectives that challenge this legitimacy.

A. Reconciliation and sovereignty

In contemporary Canada, reconciliation between First nations, state and Canadian

society has two meanings. On the one hand it entails addressing historical wrongs

suffered by First nations as result of colonial relations. This has been an ongoing debate

in the redress of the suffering imposed under the Canadian Indian Residential School

system, and the government pronouncement for the creation of a Truth and

Reconciliation Commission.84 On the other, reconciliation is seen as a reconciliation of

81 Delgamuukw (B.C. S.C.), supra note 77 at 285.

82 Borrows, supra note 71 at 546.

si Delgamuukw (S.C.C.), supra note 76 at 1097.

Canada's Truth and Reconciliation Commission, International Center for Transitional Justice (April 29, 2008) online: http://www.icti.org/en/news/features/1652.html interests, most evident in conflicts over land claims. In this respect, the Courts have defined reconciliation in relation to aboriginal rights and title. The aboriginal-settler relationship was in part summarised within The Royal Proclamation, 1763, recognizing treaties and alliances between indigenous nations and the Crown. As Brian Slattery writes, "[t]he Proclamation's provisions reflected] the common law principles that had crystallized after a century and half of dealings between Indigenous American peoples and the British Crown."85 The Proclamation addresses the issues surrounding territorial and political divisions between the settler and aboriginal communities. It recognized the existence of aboriginal title, namely the exclusive right of aboriginal communities to any of their territories that had not been ceded to the Crown. While the British Crown claimed most of the land, in reality it was still largely occupied and controlled by indigenous systems of law and governance. Over time, however, the Crown asserted its increasing sovereignty, which significantly disintegrated the relationship reflected in the

Proclamation.

In Van der Peet, aboriginal reconciliation as a constitutional concept under

Constitution Act, 1982, has been described as a "reconciling of pre-existing aboriginal societies with the assertion of Crown sovereignty over Canada"86 According to

Delgamuukw, reconciliation of interests in title emerges form the assertion of Crown sovereignty. Thus the existence of aboriginal title crystallized at the time sovereignty was asserted. Canadian governments and the Supreme Court of Canada have both

85 Brian Slattery, "The Metamorphosis of Aboriginal Title" (2006) 85 Can. Bar. Rev. 255 at 261. 86 Van der Peet, supra note 62 at para. 57.

204 expressed preference for negotiation over litigation in settling aboriginal land claims and governance issues. For this reason treaty federalism, namely the historical treaty negotiations, have been significant in resolving conflict over contested jurisdictions.

Where treaties have not been finalized, as in British Columbia, Crown sovereignty was assumed to have extinguished aboriginal sovereignty.

The Supreme Court first addressed aboriginal reconciliation in Sparrow through the justification-of-infringement test. The Court found that legislative infringements of

aboriginal rights must be supported by valid objectives while simultaneously upholding the Crown's fiduciary duty to aboriginal peoples, thereby tempering the impact of constitutional recognition of aboriginal and treaty rights on Canadian legislative

authority. The Crown has a fiduciary obligation when acting or making decisions on behalf of first nations, and it arises from numerous sources including the Royal

Proclamation of 1763, treaties, and legislation. Hence, despite the protection of aboriginal rights in section 35(1), according to chief Justice Lamer, "The range of legislative objectives that can justify the infringement of aboriginal title is fairly broad."87 Such

infringement, while limiting of aboriginal rights, is "a necessary part of the reconciliation

of aboriginal societies with the broader political community of which they are part."88

This definition of reconciliation has come to rely much on the courts, and prescribed by judges in markedly varied ways. Reconciliation thus has been the balancing of interests between the Canadian state, society, and the first nations. The ultimate test, however,

87 Delgamuukw (S.C.C.), supra note 76 at 1111, Lamer C.J.C.

sgIbid. at 1107-08, citing Lamer C.J.C. in R. v. Gladstone, [1996] 2 S.C.R. 723 at 774 [hereinafter Gladstone]. stands in interests of the sovereign and cannot go against the interests of the broader

society. The reconciliation has to happen within the existing framework of underlying

sovereignty of the Crown.

The Crown has a range of responsibilities in its relationship with the First nations peoples, out of which emerge particular fiduciary duties, depending on the sort of

aboriginal title asserted and the nature of the government action affecting the time.89 The

Sparrow case places definite guidelines on how the Crown's fiduciary relation with

aboriginal peoples frames its regulation of the access to, and harvesting of, resources. The

Court required that the Crown give priority to aboriginal rights in relation to other

interests in a resource (such as conservation and various non-aboriginal uses). The Court

deemed the right claimed in Sparrow (to fish for food and ceremonial purposes) to be

such as to require the Crown to rank this interest immediately after conservation needs,

and before such non-aboriginal interests as sport and commercial fishing.90

Further aspect of aboriginal title affecting the Crown's fiduciary obligations is the

right it confers to decide the uses to which title lands are put. This aspect of title requires

that the Crown endeavor to involve the title-holder in its decision-making process. The

range stretches from the possibility of there being no duty on the Crown (where the

impact is so slight as not to require the Crown to involve the titleholders in its decision

Gordon Christie, "Aboriginal Resource Rights After Delgamuukw and Marshall", in Kerry Wilkins ed., Advancing Aboriginal Claims (Saskatoon: Purich Publishing, 2004) at 241; Sparrow, supra note 70 at 1113-1119.

206 making), to a duty to consult (which the Court remarks is always to be one of "good faith" consultation), to a duty to obtain the consent of the titleholder affected.91

The Supreme Court has thus argued that aboriginal title is not absolute and may be infringed on. The Court relates this reasoning to reconciliation as First nations

Communities are part of "a broader social, political, and economic community, over which the Crown is the sovereign."92 In Van der Peet, the dissenting judgment of

McLachlin J., as she then was, argued for reconciliation between the prior occupancy of aboriginal peoples and Crown sovereignty, emphasizing reconciliation based on the negotiation of treaties and of a form that recognised equally aboriginal and non- aboriginal legal perspectives. In Delgamuukw, Justice Lamer C.J. states:

aboriginal rights are a necessary part of reconciliation of aboriginal societies with the broader political community of which they are a part, limits placed on those rights are, where the objective furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation.93

The Crown must justify any infringement by demonstrating that first it is for the purpose of furtherance of a legislative objective that is compelling and substantial, and second, pass the assessment of whether the infringement is consistent with the special fiduciary relationship between the Crown and aboriginal peoples.94 The Crown's fiduciary duty requires it to consider aboriginal title as a priority. However, it has not specified how the

91 Sparrow, supra note 70 at 1111-1113.

92 Delgamuukw (S.C.C.), supra note 76 at 1107 to 1108, para. 161.

93 Ibid, at 1107 to 1108, para. 161 to 162.

94 Ibid, at 1108, para 162. Crown was to approach the process of "assessment of the various interests at stake" in situations where interests in resources are in question. 5

As already mentioned, Sparrow determines the Crown duty to consult, in particular in the context of resources to which the First nations have constitutionally guaranteed access.96 In more recent decisions, Haida Nation v. British Columbia,97 Taku

River Tlingit First Nation v. British Columbia, and Mikisew Cree First Nation v.

Canada," the Court has held that the Crown must consult aboriginal peoples where aboriginal or treaty rights might be infringed, in order to uphold the honour of the Crown.

The Crown is broadly obliged to consult with aboriginal peoples in good faith, while making accommodations where necessary for aboriginal peoples. In Haida, the Supreme

Court held that the Crown's obligation occurs "when the Crown has knowledge, real or constructive, of the potential existence of the aboriginal right or title and contemplates conduct that might adversely affect it."1 The Crown is not required to enter into extensive consultations with aboriginal peoples in all instances, and consultation and accommodation vary depending on the facts of the case at hand. Only the Crown is

95Ibid. atllll,paral67.

Sparrow supra note 70 at 68.

97 Haida Nation v. British Columbia (Minister of Fores ts)[2004] 3 S.C.R. 511, 2004 SCC 73 [hereafter Haida]

98 Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550 [herafter Taku River]

99 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 [herafter Mikisew].

Haida, supra note 97. required to consult with and accommodate aboriginal peoples; this requirement cannot extend to third parties.

In Delgamuukw, the Supreme Court made consultation an important means for reconciliation between continuing presence of First nations, the settlement of foreign populations, and third party tenures. Delgamuukw established the concept of aboriginal

'consent' of lands subject to aboriginal title. The case also revoked the preceding attitude in the courts that denied title to First Nation communities who had not entered into agreements of surrendered. In order to reconcile the past occupation of the First nations communities, the Supreme Court determined that aboriginal title rights could compete with other property rights, and as such, the community had the right of consultation. If infringement was justified, it had a right to compensation. It allowed for oral histories to be included as testimonies, and elaborated on the content of aboriginal title. It also expanded the inclusion of activities defined by aboriginal rights to include forestry, mining, oil and gas development, limited only by the principle of equitable waste. The use of territory, however, could not conflict with the community's Tndianness'.

The Court in Haida stated that aboriginal consent "is appropriate only in cases of established rights, and then by no means in every case, rather what is required is a process of balancing interests, of give and take."101 Significantly, it also stated that aboriginal groups do not have "a veto over what can be done with land pending final proof of the claims."102 In Taku River, the Court clarified that the Crown has the legal m Ibid., at para. 48. duty to consult with aboriginal groups who have asserted, but not proven aboriginal rights and title. The effect of this decision means that consultation must be in place before infringement.

B. Aboriginal Rights and Title in Canada

The burden of proof on aboriginal communities to prove title involves several criteria. First, the title land must have been occupied prior to Crown sovereignty; second, if present occupation is relied on as proof of occupation pre-sovereignty, there must be continuity between present and pre-sovereignty occupation; and third, at sovereignty, that occupation must have been exclusive. Once a community provides proof of aboriginal title to its lands, it must engage with extensive provincial (and federal) regulatory schemes that will most certainly govern the activities of getting to, and harvesting, resources.103

Aboriginal rights and title are a significant and necessary component of the reconciliation process between aboriginal societies with the broader political community of which they are part and the state. The Courts have identified that aboriginal rights and title as sui generis, held communally, and are related directly to the distinctive First

Nation community's use and occupancy of their traditional territories, prior to the assertio of Crown sovereignty. In Van der Peet the Supreme Court has affirmed the existence of aboriginal rights as independent from aboriginal title. They are considered to be site specific and the precise bundle of rights is dependent on the nature, kind and purpose of the use and occupancy by the First nations community, and to the extent of whether or

Christie, supra note 89.

210 not the use and occupancy was exclusive or non-exclusive. Aboriginal rights cannot be alienated, other then by surrender to the Crown. Aboriginal people have argued against such separation of rights, as it does not reflect their historical relationship with, and connection to the land. In Sparrow, the Supreme Court directed that "the aboriginal perspective itself on the meaning of the rights at stake" must be taken into account.104

Delgamuukw was seminal in determining the route of aboriginal title, especially in British Columbia. The Court recognized that "there has never been a definitive statement... on the content of aboriginal title."105 Significantly, it specified that aboriginal title includes a right in land. The Supreme Court characterized aboriginal title as sui generis in order to distinguish it from "normal" proprietary interests. The Court held that the characteristics of aboriginal title cannot be completely explained by reference either to the common law rules of real property or to the rules of property found in aboriginal legal systems. As with other aboriginal rights, aboriginal title must be understood by reference to both common law and aboriginal perspectives. Aboriginal title is a burden on the Crown's underlying title to the land and encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, and those purposes must not be irreconcilable with the nature of the aboriginal group's attachment to that land.

In this manner, Court's treatment of its own procedural rules consolidated the

Crown's jurisdiction over indigenous legal systems and subordinated them within the

104 Sparrow, supra note 70 at 1112.

105 Delgamuukw (S.C.C.), supra note 76 at 1083.

211 Canadian legal structure. The federal Crown retained the authority to extinguish aboriginal rights. The definition of aboriginal title as undercut by the Crown title, denies the pre-existing aboriginal regimes. Furthermore, aboriginal sovereignty has the burden of proof, which the Crown does not. Accordingly, the treatment of aboriginal rights and title in Canadian law goes against the liberal principles of equality before law.

Court recognized the necessity of consultation and that aboriginal legal and political rights could not be diminished without aboriginal authorization. However, the

"reconciliation of aboriginal prior occupation with the assertion of the sovereignty of the

Crown"106 displaces the fuller pre-existent rights of the land's original occupants.

The Court noted that because "distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community, over which the Crown is

sovereign, there are circumstances in which, in order to pursue objectives of compelling

and substantial importance to that community as a whole (taking into account the fact that aboriginal societies are a part of that community), some limitation of those rights will be justifiable."107

The legacy of Delgamuukw can be observed in the political realm and the way

British Columbia has come to view aboriginal title. It has reaffirmed the important

relationship between First nations and land, including the question of compensation in

return for its surrender and transformation. Delgamuukw has had significant financial

impacts on the federal and provincial governments, as they attempt to negotiate land-

106 Ibid, at 1107, citing Lamer C.J.C. in Gladstone, supra 75 note at 774.

107 Ibid, at 1107-08, citing Lamer C.J.C. in Gladstone, ibid, at 774-75.

212 claim settlements. The primary concern has been the uncertainty in the relationship between first nations and provincial governments especially in situations of resource management. Resulting form a series of judicial decisions, beginning with Colder v.

Attorney-General of B.C. in 1973,108 the assumption that there were no aboriginal rights in areas of British Columbia, was dispelled. Judicial affirmation of such rights signified that they could prevent or challenge the resource-development projects. Section 35, further enhanced the stature of aboriginal rights by according them constitutional recognition and protection, but failed to specify how they relate to sovereignty of the

Crown. Furthermore, in response to growing conflicts over land and resource management and ownership, First nations Summit of British Columbia and the provincial and federal governments created in 1993 the British Columbia Treaty Commission.

The Court's decision defined aboriginal title as encompassing the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions, which are integral to distinctive aboriginal cultures. The fact that aboriginal title permits

First nations to undertake a diverse (but not unlimited) range of forms of economic

exploitation on their lands and confirms their right to be exclusive, gives it a great economic value, as does their right to receive compensation if their rights are infringed.

Assertion of aboriginal title requires proof of exclusive First Nation occupation of the

land in question before the assertion of Crown sovereignty, which for British Columbia is

Colder v. British Columbia (A.G.), [1973] S.C.R. 313.

213 dated at 1846, and where this cannot be shown directly, proof of the maintenance of a continuous connection with the land from that time until the present day.

There is a degree of generalization regarding aboriginal interests within and among communities. In general, the communities have an interest in gaining greater access to their traditional lands and resources in furtherance of greater economic development and opportunities, as well as what one might term "traditional" livelihoods.109 The Supreme Court determined in Delgamuukw that aboriginal title constituted a communal right to the land itself, not merely a bundle of rights to various uses of the land. This right to land was found to be exclusive and to carry a right to decide the uses to which the land might be put. Finally, the right to the exclusive use and occupation of aboriginal title lands was found to include such things as mineral righs, via an argument that clearly established that this right to land encompassed general rights to the resources both above and below the surface.

Access to resources would seem, then, to be fairly straightforward, as aboriginal titleholders would have a right to their land and to the resources on and below it: a right that could work to exclude others form the land and its resources, and that includes the ability to decide the uses to which the lands would be put, including, presumably, the right to decide to harvest the land's resources. The inherent limit on the right is the conservation of the land for future generations.

Those peoples claiming the right to their lands and the resources on them must either prove the validity of their claims or enter into an appropriate agreement with the

Christie, supra note 89. federal and provincial governments of Canada. Second the ability to harvest resources is measured against existing laws and regulations governing resource access and extraction.

Although these laws and regulations may have to give way to the rights of a titleholder, it is still incumbent on a titleholder to show that these regimes unjustifiably infringe its rights to resource access and extraction. Thus, although the Supreme Court of Canada has broadened aboriginal title in Delgamuukw to include forestry and mining ventures, First nations still have not been able to obtain the legal redress necessary to sustain these rights following the destruction or degradation of the habitat by third parties who have obtained competing resource or land rights from the Crown.

In certain cases, where the Crown can justify the impacts on title of its regulatory schemes, the rights of titleholders may have to give way to Crown power to control resource use. In other circumstances, these rights may force government(s) to accommodate the interests of titleholders in the resources on their lands. In very limited situations, the rights of titleholders might even prevail over government schemes.

Strategies for indigenous peoples interested in greater access to land and resources will vary depending on whether their claims are based on aboriginal title or on a treaty right. If a claim is based on aboriginal title, within the range of its fiduciary duties, the Crown need only "respect" the prior interest of titleholders. Non-title aboriginal rights must closely relate to traditions, practices, and customs integral to the community at the time of European contact in order to prevent Crown interference with such a right. In the end, in order for a community to control all access to the resources, it would need to establish a right to self-government.

215 However, indigenous self-determination in Canada is incompatible with Crown

sovereignty, and cannot be claimed in domestic courts as an aboriginal right. Some first nations have argued that they have an inherent right to self-government, and in British

Columbia, self-government remains a central issue in the treaty negotiations currently under way. As evident in the Canadian common law, first nations governments were historically recognized as possessing, at least a semi-sovereign status, with capacity to govern their internal affairs. However, as mentioned in Sparrow, aboriginal rights and title are not absolute and continue to exist with the underlying title, sovereignty and

legislative power of the Crown.

III. Conclusion

The purpose of this Chapter has been to delineate historical background of the

two cases and the relationship between indigenous peoples, state, law, and society. Two

countries have markedly different histories due to different patterns of colonialism,

Spanish and British, different political histories, and different legal systems of civil law

and common law, respectively. The objective of this analysis was to observe the role of

the sovereign and law in undergirding indigenous rights. In both cases, the colonial

settlement has been accepted as fait accompli, thus diminishing indigenous rights and

title. As discussed in Chapter IV, despite general development in internal law in the

sphere of indigenous rights, the system continues to center on the primacy of state

sovereignty. Hence, the burden is on indigenous peoples to reconcile with the existing

situation of diminished sovereignty and contingent rights. Furthermore, the concept of

reconciliation has emerged as a mechanism for re-affirmation of state legitimacy through

216 limited granting or recognition of indigenous rights. In Peru, it has developed in context of brutal violence of a two decade long civil conflict, and in Canada as both a constitutional concept and as a response to historical wrongs, such as the Canadian Indian

Residential School System.

Indigenous peoples' claims to control over lands and resources, while gaining some recognition, as evident in the Canadian case, continue to pose a challenge to the sovereignty of the state, as well as the law of the sovereign itself. Furthermore, it is important to consider what Charles Hale describes as follows: "the core of neoliberalism's cultural project is not radical individualism, but the creation of subjects who govern themselves in accordance with the logic of globalized capitalism."110 This has resulted in the image of a 'permitted Indian', with limits, defined by the state, on what indigenous rights should entail. The sovereign retains the power to make, give, but also suspend the right. The position of indigenous peoples evidences the capacity of the sovereign to engulf all within its domain, to take one into one self.

The sovereign remains constituted of this plurality and the situation of co­ existence results in mutually constituting relationships. The concept of reconciliation is ultimately useful, as it demands some type of communication. Nevertheless, this communication requires both, recognition of plurality, as well as self-interrogation, in order to avoid a re-establishment of a totality and an absolute of a nation, which inevitably results in discrimination.

110 Charles Hale, "Rethinking Indigenous Politics in the Era of the 'Indio Permitido'," (Sept-Oct, 2004) 38 NACLA Report on the Americas 2 at 17.

217 CHAPTER 5

Human Rights, Environment and Economics in Canada and Peru

Introduction

This chapter examines conflicts and overlaps among different claims and moral- legal systems: the state, indigenous peoples, the environment, and extractive industries. It focuses on various aspects of struggle for ownership of the non-human environment, as related to the concept of sovereign control. It considers several ways in which economic globalization has resulted in the change of political authority from states to private actors and how this has affected indigenous peoples, in particular in the Third World countries.

The aim is to provide theoretical background to the broader observation of complex interactions between indigenous peoples' rights claims and the existing public-private dichotomy1 in international law, especially in the context of the conflict between claims to constitutionalism of international human rights regime and the growth of private economic power, which escapes its regulation. The chapter thus observes how the state- corporate alliance establishes a framework that serves to further the interests of transnational corporate interests, often at the expense of environmental and human rights concerns. It will further do so through an analysis of the domestic legal framework in

Canada and Peru as it relates to the duty to consult indigenous peoples, as well as the transnational framework of the free trade agreement between the two countries.

1 Christine Chinkin, "State Responsibility: A Critique of the Public/Private Dimension", (1999) 10 EJIL 387. See also, Claire A. Cutler, "Artifice, ideology and paradox: the public/private distinction in international law", (1997) 4 Rev. Int'l Pol. Econ. 261.

218 The two cases, Canada and Peru present different domestic legal frameworks, as well as challenges that the two states face respectively. My objective thus is to delineate two types of relationships between state and indigenous peoples, which are nonetheless tied through international and transnational trade networks and agreements. It stresses the divergence between the state-corporate alliance on the one hand, and the relationship with indigenous peoples, on the other.

First part of this section will look at the questions concerning the nature and parameters of the human, as they are regulated through state and private and corporate interests. It will engage with concepts of global legal pluralism in the context of debates over transnational law and governance, which examine the situation of societal fragmentation at both domestic and international level. Second part will address the processes of consultation with indigenous communities and environmental assessments first in Canada, and then Peru, in relation to development and extractive projects. Peru will be discussed in the context of North-South relations through the Free Trade

Agreements and their impact on indigenous peoples and the environment.

I. Sovereignty and transnationalism

The negative effects, particularly environmental disasters, resulting from activities of multinationa and transnational mining/oil enterprises in developing countries, have now been well documented.2 The last few decades have seen a significant increase in the push towards global economic integration, which has been made possible by the removal of barriers to trade and capital mobility, together with fundamental technological

2 See Coordinadora Nacional de Comunidades del Peru Afectadas por la Mineria (CONACAMI), online:

219 advances and the steadily declining cost of transportation, communications, and computing. The pressure on developing countries to deregulate markets and industries has made it easier for MNEs and TNEs to have greater presence amongst some of the world's most vulnerable communities, among them, indigenous communities, which are usually left without a legal remedy in either the home or the host country.3

The human rights-corporate conflict is taking place in the context of the global transformation in how transnational business transactions are regulated. As Wai points out, the more traditional legal understanding in how such transactions are to be regulated through deference to local laws and institutions has been obscured and demoted in favor of liberal internationalist policy vision of an international system that favors the facilitation of international economy and promoting cooperative interstate relations.4

Thus as transnational business networks "lift off' from the terrains of state systems the outcome is indeed "global law without a state."5 Following some studies on transnational merchant law and its history,6 I point to some problems in strands of legal pluralist approaches, in their rendition of the role of the state in the transnational legal processes.

In particular this is evident in situations where local conflicts take place between

3 See Rodolfo Stavenhagen, "Indigenous Issues: Human Rights and Indigenous Issues", Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, UN Doc. E/CN.4/2002/97,4 February 2002, para. 46.

4 Robert Wai, "Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization" (2002) 40 Columbia J. T. L. at 212-213.

5 Gunther Teubner, '"Global Bukowina': Legal Pluralism in the World Society", in Gunther Teubner ed., Global Law Without a State (Aldershot: Darmouth, 1997).

Claire A.Cutler, Private Power and Global Authority (Cambridge, UK ; New York : Cambridge University Press) at 182-183. indigenous communities on the one hand, and transnational corporations and the state on the other. Rather then observing pluralism of different moral legal systems, I center on the existing role of the state in keeping asymmetrical relationships between the interests of indigenous peoples and corporations. With this in mind, I argue for self-reflective pluralism that would be conducive for dialogue among different actors and mutual understanding of different interests.

This section describes the process of weighing and balancing of human rights or environmental interests with concerns of economic development through state laws in relation to indigenous peoples. The nexus of public and private regulation at national, international and transnational levels have had an ambiguous relationship to human rights and environmental concerns. In particular, there is a concern regarding the relationship between private economic interests and conflicts. The primary objective of transnational corporate actors is economic profit. Hence, its concerns with human rights and the environment have to be viewed within this framework. At the same time, as much of recent literature points to, there are unanswered questions about the relationship of private corporations to public law and their obligations, and whether private regulation that does not take place through the state (such as the various treaty obligations) has better results in the arena of human rights protection and environmental concerns.7 The issue of human rights and environmental protection has been addressed at different levels. Part of the concern has been the relationship between general law and particular

7 Natasha Affolder, "The Private Life of Environmental Treaties" (2009) 103 AJIL510; Sara Seek, Home State Obligations for the Prevention and Remediation of Transnational Harm: Canada, Global Mining and Local Communities (PhD Thesis Toronto, Ontario: Osgoode Hall Law School, York University, 2007).

221 regimes such as trade law, and capacity of for international human rights law to affect actions of private actors. This debate has surrounded the adoption of the "UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights" (the UN Norms).8 Some literature observes the possibilities for a state or group of states of adopting measures in order to coerce the "target" state to comply with its international obligations to ensure respect for human rights.9 Further, transnational legal processes introduce the possibility for cases of human rights and environmental abuses to be brought before courts in the country of origin of the company, 10 but also emphasize self-regulation of companies-voluntary codes of conduct.11

The emergence of global economy has led to a reconfiguration of the role of sovereignty and the redistributive role of the state towards a greater reliance on the

Sub-Commission on the Promotion and Protection of Human Rights, Fifty-fifth session, Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, E/CN.4/Sub.2/2003/12/Rev.2 of 26 August 2003, available at: http://www.unhendocument. The United Nations Sub-Commission for the Promotion and Protection of Human Rights unanimously approved the Norms on 13 August 2003. See, Res. 2003/16 of 13 August 2003, in: Draft report of the Sub-Commission on the Promotion and Protection of Human Rights, Fifty-fifth session, Draft Provisional Agenda and Adoption of the Report, of 14 August 2003.

Anthony Cassimatis, Human Rights Related Trade Measures under International Law (Leiden; Boston: Martinus Nijhoff Publishers, 2007).

Craig Scott, "Translating Torture into Transnational Tort: Conceptual Divides in the Debate on Corporate Accountability for Human Rights Harms", in Craig Scott ed., Torture as Tort. Comparative Perspectives on the Development of Transnational Human Rights Litigation (Oxford Portland Oregon: Hart Publishing, 2001).

1 Olivier De Schutter, "The Challenge of Imposing Human Rights Norms on Corporate Actors" Hauser Global Law School Program, Global Law Workign Paper 01/05, available at http://www.nyulawglobal.org/workin gpapers/gl 2005.htm market and private enterprise.12 Despite the image of their function beyond or outside of the state regulation, states still act as important facilitators of movement of transnational corporate interests. In particular, the presence of state power remains visible in some areas, such as national security and its capacity to hold the monopoly over the coercive use of force?13 For this reason it is important to address the role of the sovereign state in the management of life and/or balancing of questions of human rights and environmental interests against the interests of economic development. This balancing process also evidences that the 'human' of liberal human rights has the possibility of freedom, simultaneous to the denial of those rights in face of other competing interests.

A. Increased privatisation and the role of the state

Even in the aspects of private economic relations, which have now allegedly assumed a more spontaneous character, the state has not vanished entirely. Certainly, states represent only one of numerous actors who create international legal norms, state sovereignty has been challenged by supra-national norms and organizations, such as the international human rights law, the World Trade Organisation (WTO) and such, as well as subnational groups with transnational ties and operations.

However, the degree to which states do/not participate in the very decision making regarding the new reconfiguration of their involvement is more significant than some legal pluralist theories seem to imply. In the area of business relations, "systems of

12 Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (New York : Columbia University Press, 1996) at 14.

13 Nico Krisch, "International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order", (2005)16 EJIL 369. non-state rules have pre-existed and co-existed with state laws."14 It is, however, specific doctrinal reforms in private international law that have promoted the autonomy of transnational dispute-resolution among private actors with respect to the key subjects of private international law.15 Subnational interest groups "including business actors and various service providers in the arbitration sector-were in favor of, and acted to promote, the expansion of the arbitration regime in international transactions."16 The deregulatory discourse of neoliberalism exists within the context of state policies, which allow it to florish. The interests of economic actors and those of the states have converged over time, as "political authorities came to appreciate the significance of commerce to state power."17

Thus, as Santos argues, in order for the state not to intervene in the economy, it has to intervene in the economy.18 For instance, different states have permitted and to a degree promoted the "liftoff of expansion of arbitration regime in international transactions from the applicability of national laws and the oversight of national courts.19

Claire Cutler has described the new lex mercatoria as variously referred to as transnational economic law, the law of private international trade, and international

14 Wai, supra note 4 at 215.

15 Ibid., at 219.

16 Ibid.

17 Cutler, supra note 6 at 11.

Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization and Emancipation (London : Butterworths LexisNexis, 2002) at 412.

Wai, supra note 4 at 218.

224 business law. It is regarded by some as a system of "protolaw" that forms the foundation for an emerging transnational lawmaking community20, and as part of the

"transnatioanlization of the legal field " which is a "constitutive element of the process of globalization. 21

Santos calls lex mercatoria as "global capital's own law."22 It is a "set of customary principles and rules which are widely and uniformly recognized and applied in international transactions" and "probably the oldest form of transnationalization of the legal field."23 The current process of "transnationalization of the state legal regulation"24 differs qualitatively from other periods in history due to the intensification of delocalizing and transantionalizing legal disciplines that " both reflect and facilitate the transnational expansion of capitalism and related practices of competition states and patterns of flexible accumulation."25 The relationship between law, politics, and economics is intensified. Rather than disappearing, state role remains significant although, different in the regulation of international economic relations.26

20 Teubner, supra note 5.

Boaventura de Sousa Santos, Toward a New Common Sense: Law Science and Politics in the Paradigmatic Transition (New York: Routledge,1995) at 268.

22 Ibid. 288.

23 Ibid.

24 Ibid, at 276.

25 Cutler, supra note 6 at 180.

26 Ibid.

225 The transformation in global power and authority has enhanced the significance of the private sphere in both the creation and enforcement of international commercial law, however in combination with "public" notions of authority. State-based positivist international law is being combined with or, in some instances, superseded by non-state

"soft law" or informal normative structures, and "private" economic power and authority. The increasing heterogeneity of and pluralism in forms of regulation and governance, blurs the distinction between the public and the private realms. The body of commercial law and practice derive from increasingly diverse and multiple local, regional, and global locations involving both state and nonstate authorities and state and nonstate law.28 This order governs a proliferating number and variety of commercial activities and involves increasingly heterogeneous subjects or actors, such as transnational corporations and private business associations, as participants in lawmaking and dispute resolution.

The nature of the changes stemming from globalization is described by Anthony

Giddens as "the intensification of world-wide social relations which link distant localities in such a way that local happenings are shaped by events occurring many miles away and vice versa."30 Santos distinguishes two forms of global interconnection: 'globalized localism' which is 'the process by which a given local phenomenon is successfully

21 Ibid. atl. nIbid.

29 Ibid

30 Anthony Giddens, The Consequences of Modernity (Stanford: Stanford University Press, 1990) at 64. globalized', and 'localized globalism', which connotes the specific impact of transnational practice sand imperatives on local conditions that are thereby destructured and restructured in order to respond to transnational imperatives.31

One of these transnational imperatives has been the establishment of the

Washington Consensus32, an agreement among political, academic, and business elites on neoliberal economic reform and the intensification of transnational economic processes.

The modern lex mercatoria, as Cutler writes, is a form of "transnationalized law embodying both the globalization of local law, as Anglo-American corporate laws are adopted throughout the world, and the localization of global law, as states are subjected to increasing discipline from legal regimes developed by international, transnational and global organizations." 4 For instance, in accord with the adoption of neoliberal policies,

Peru's Fujimori regime conducted a drastic structural adjustment program which featured radical restructuring of the mining sector to favour foreign investment, involving substantial legal changes and several rounds of privatizations of state enterprises beginning in 1990s. 1998, the Peruvian state controlled only 1.5 percent of mineral production.35 The World Bank financed 10 out of 27 mining projects out of all projects it

31 Santos, supra note 17 at 179.

32 The pervasiveness of the Washington Conensus has been contested. See in particular Peter A. Hall and David W. Soskice, Varieties of Capitalism: the Institutional Foundations of Comparative Advantage (Oxford, New York: Oxford University Press, 2001) at 56-60

33 Harry Arthurs, "The Re-constitution of the Public Domain" in Daniel Drache ed., The Market or the Public Domain? Global Governance and the Asymmetry of Power (London: Routledge, 2001) at 85.

34 Cutler, supra n. 33 at 20.

35 See A. Pasco-Font, A. Diez Hurtado, G. Damonte, G. Salas, R. Fort, "Gran Mineria y la Comunidad", Peru Report prepared for World Bank project on Large Mines and the Community (1999). The same

227 supported in Latin America in the period of 1993-2001. The global economy has posed a challenge to the exclusive power of the sovereign. Nevertheless, the role of the state still remains significant, in particular in the relationship between developed and developing states.

Thus the realm of the private, spontaneous, fragmented, and chaotic, is contrasted with increased juridification and emergence of highly specialized and organized private decision making processes.36 The lex mercatoria constitutes a predominately privatized legal order. The relationship between governments and corporations is that of "soft infrastructure" that is "sensitive to the competitive needs of business corporations."37

While the state remains at the centre of the international commercial order, its function of corporate control has declined significantly, as it becomes overshadowed by the private sources of legal regulation.38 States are limiting the powers of their national courts to intervene in private arbitration, while at the same time ensuring that they create rules,

process happened in Mexico, where in preparation for and as a condition of NAFTA, the government changed article 27 of its Constitution which offered protection for Ejidos, indigenous communal lands. The new text of article 27 has done away with the inalienability of indigenous communal land, which means the opening of the market for indigenous communities' lands. These changes have benefited mining and oil companies, and have been included in the Mining and Foreign Investment Laws. See C. Costero, "Relaciones actuales Mexico-Canada en el sector minero ", in (Primavera 2004) 1 Revista Mexicana de Estudios Canadienses.

36 Gunther Teubner, "Global Private Regimes: Neo-Spontaneous Law and Dual Constitution of Autonomous Sectors in World Society?" in Karl-Heinz Ladeur ed., Public Governance in the Age of Globalization (Aldershot, Hants, England ; Burlington : Ashgate, 2004) at 71.

37 Cutler, supra note 6 at 31.

38 Peter Muchlinsky, Multinational Enterprises and the Law 2nd ed., (Oxford; New York: Oxford University Press 2007 ); Craig Scott and Robert Wai, "Transnational Governance of Corporate Conduct through the Migration of Human Rights Norms: The Potential Contribution of Transnational Private Litigation", in Christian Joerges, Inger-Johanne Sand and Gunther Teubner, eds., Transnational Governance and Constitutionalism (Oxford: Hart Publishing, 2004) 287.

228 which would recognize foreign arbitral awards. They are facilitating transnational trade, production, and finance by undertaking to minimize barriers to the mobility of goods, services, and capital through entry into hard legal obligations under the World Trade

Organisation (WTO) and the General Agreement on Tariffs and Trade (GATT), North

American Free Trade Agreement (NAFTA), the Free Trade of the Americas (FTAA), the

Maastricht Treaty and European Monetary Union (EMU), and bilateral investment treaties under the auspices of the International Centre for the Settlement of Investment

Disputes (ICSID).40 While these international instruments create hard law that is binding on states and challenges their autonomy, they require from the states increased innovation, flexible adaptable rules, and corporate turn to voluntary law, and in general, soft infrastructure and agreements, which are easier to negotiate, require less compromise, are less restrictive of domestic autonomy, and easier to breach if changing market conditions so require.41 These processes, however, do not happen just "alongside the state", for the state remains implicated in position taken in relation to regulation of commercial activities. It is, "a combination of the new middle ages of global post modernity as well as highly organized private decision-making processes."42

The increase in private authority over law-creation and dispute resolution has also increased the question of public participation and democratic accountability and

39 Cutler, supra note 6 at 27.

40 Ibid, at 30.

41 Ibid.

Teubner, supra note 36. legitimacy. In democratic and representative legal systems, legislatures and parliaments create laws, while the judiciary and the state enforce them. Under public international law, states are vested with the authority to create and enforce laws. The concept of social contract between the state and society, and consequently, legitimacy are absent in the private realm of commercial relations. In fact, the realm of transnational merchant law represents particular elite economic interests.

Still, it is important to investigate the relationship between individual decisionmakers and state policies. While international law remains state-centric and lacking any direct regulation of private commercial activities, as Cutler points out

"commercial practices are increasingly recognizing the political significance of private actors in the regulation of global commerce."44 The WTO, represents "the intensification of global economic surveillance."45 Although initiated by states as WTO members, claims under this process are often brought on behalf of MNCs. The allocation of commercial activities to the realm of the "private", while human rights protection remains in the realm of the "public", obscures "the political nature and distributional functions in determining the allocation of risks of international commercial transactions, in regulating the terms of commercial competition and market access, and in enforcing bargains."46

Cutler, supra note 6 at 32.

4 David Held, Anthony McGrew, Global Transformations: Politics, Economics and Culture (Oxford: Polity Press, 1999) at 281.

46 Cutler, supra note 6 at 35. Furthermore, Cutler's description of the role of transnational elite is useful in contrasting more depersonalized system theoretical approach and its reliance on anonymous communicative constructs. Transnational merchant law, "is generally and mistakenly regarded in purely technical, functional, and "apolitical" terms," while it is "a central and crucial mediator of domestic and global political /legal orders in that it enables the extraterritorial application of national laws as well as the domestic application of transnational commercial law."47 It also provides norms, which bind and unify the global corporate elite, the "mercatocracy.' As such, transnational merchant law is a mixture of public and private authority, and "private authority has a political nature."4

Discounting the political authority of corporations, disregards their importance and influence on political and public actions of the state. Teubner asks ""How can society ever 'do justice' to real people if people are not its parts but stand outside communications, if society cannot communicate with them but at most about them, indeed not even reach them but merely either irritate or destroy them?"50 The mecatocracy, however, as Cutler points out, is comprised of transnational merchants, private international lawyers and other professionals and their associations, government officials, and representatives of international organizations.51 It has considerable

47 Ibid, at 30.

48 Ibid, at 4

49 Ibid, at 5.

50 Ibid.

51 Ibid.

231 influence globally and locally, and seeks to unversalize its interests through the legal system, which propels the unification and harmonization of national commercial legal orders. By translating those interests into the binary code of legal/illegal, the legal system is then susceptible to the influence of the ethos of economic interests (as well as other interests). This process involves individuals who have multiple connections (in other words, who cross economic, political, and legal systems) and not just anonymous communicative systems. It is important to displace the characterization of lex mercatoria as a private, "apolitical" and politically unimportant domain.52

How then, can we view the obligations of private transnational actors in the protection of human rights? In the case of trade vs. environmental conflict, Perez has argued for the inclusion of human rights norms within the systems of private economic regulation, due to the asymmetrical relationship between different international regimes.

Anderson, in contrast, has argued for the strengthening of rights constitutionalism as a counter-hegemonic device.

B. Coming together or coming apart: heterarchy or hierarchy in international law

We inhabit a nomos "writes Robert Cover," a normative universe. We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void."53 Like other legal pluralists,54 Cover has argued that law does not emanate

i2lbid.2ii6.

53 Robert Cover, "The Supreme Court 1982 Term. Foreward: Nomos and Narrative", (1983) 97 Harv. L. Rev.4

54 See for e.g. Sally Falk Moore, "Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study", (1973) 7 Law and Soc'y. Rev. 719; John Griffiths, "What is Legal Pluralism"(1986) 24 J. Legal Pluralism & Unofficial L. 1; Sally Engle Merry, "Legal Pluralism" (1988) exclusively from the commands of a sovereign power. Instead, law is constantly constructed and contested among various norm-generating communities.

The previous discussion points to a preference, at both national and international levels, for the interest of private economic powers. It also indicates the politicized nature of the realm of the private and the increasing mix of public and private. This situation has been detrimental to human rights concerns, which continue to be affected by activities of corporate actors, as is especially evident in developing countries and among indigenous communities. This section will further the discussion of 'hierarchical' vs. 'heterarchical' nature of the international legal system, through an example of indigenous struggles for self-determination over their lands and resources in face of corporate interests in those same territories.

At the national level, sets of "political and constitutional changes" have been designed in order to "'lock-in' neoliberal reforms with respect to macroeconomic stability, protection of property rights and capital mobility."55 Rather than being chaotic and spontaneous, the private economic interests are increasingly constitutionalized at the international level.56 They are producers of "hard" or binding law, which has tremendous capacity to challenge state autonomy, as is especially evident in the context of third world

22 L.& Soc'Y Rev. 879; Martha-Marie Kleinhans and Roderick A. Macdonald, "What Is Critical Legal Pluralism?" (1997) 12 Can. J. L. & Soc'y 25.

55 Stephen Gill, "The Constitution of Global Capitalism" (Paper presented to a Panel: The Capitalist World, Past and Present at the International Studies Association Annual Convention, Los Angeles, 2000) at 11-18, online: .

56 Harry W. Arthurs, "Constitutionalizing Neo-Conservatism and Regional Economic Integration: TINA x2" in Thomas J. Courchene ed., Room to Manoeuvre? Globalization and Policy Convergence (Kingston: John Deutsch Institute for the Study of Economic Policy, Queen's University, 1999) at 27.

233 countries. At the same time the reliance on "soft" regulation, or lack of any oversight by states or the international legal system over corporate activities, has resulted in some cases, in human rights violations. What is then the relationship between human rights concerns and the international human rights protection regime, and the laws governing international economic relations? This question then leads to a broader concern with the nature of the international legal system and its relationship to political and economic systems.

As Koskenniemi argues "Legal reason is a hierarchical form of reason, establishing relationships of inferiority and superiority between units and levels of legal discourse."57

Hierarchical relationships, he continues, are evident in "three modes of juristic discourse", which are the dispute-settlement, diplomatic discourse, and legislative discourse, with mode of control as the internal binary code which permeates all three.5

The mode of control, describes behaviour through its internal reference to a binary normative code of'lawful/unlawful'.59 Dispute-settlement, involves a decision on whether a particular behavour is 'permitted' or 'prohibited'. It also reveals a hierarchical position of the judge in relation to the litigants.60 The diplomatic discourse focuses on procedural reconciliation, and legislative discourse, seeks to control future behaviour through statements on lawfulness of particular types of behaviour, creating thus the

57 Martti Koskenniemi, "Hierarchy in International Law: A Sketch" (1997) 8 EJ1L 566.

58 Ibid, at 567. distinction between good/bad, lawfiil/unlawfiil.61

The very inner code of 'legal/illegal' demands a decisionmaking process, which will allocate one type of behavour to the realm of unlawful and other, as lawful.

Similarly, in the relationship between general principles and specific rules, there is a question of the deference to the general principles, despite the more certain and appropriate application of rules in special situations (for which they are created). This, however, cannot be easily determined. As Koskenniemi writes,

Surely if the principle of self-determination is to have the ius cogens character attributed to it by the ICJ, for instance, it must override Article 34 of the 1978 Vienna Convention on the Succession of states in the Matter of Treaties according to which a new state inherits all its ft"? predecessor's obligations.

At the same time, the claims to universality, which overrun particular interests or values emerge out of the capacity of one type of particularity to gain a totalitarian presence. The measure of what is acceptable or deviant from the universal norm never exists outside of a particular subjectivity.

Thus, as Kleinhans and Macdonald point out neither legal doctrine as internal exploration, nor social scientific methodology as external critique provides purchase on why any one schema of law is preferable to another. Neither law nor society self- identifies. Neither norm nor social practice is self-evident in any particular context. Indeed neither belief nor behavour exist apart from believers and behavers.63

61 Ibid.

62 Ibid, at 572.

Kleinhans and Macdonald, supra note 54. What implications does this have for the human rights vs. corporate conflict? In particular, the situation of indigenous claims to self-determination over their lands and resources, indicates a conflictual position of the state in its regulatory relation with various non-state actors.

A fundamental problem of inclusion and exclusion of peoples who are not sovereign continues in the situation of indigenous peoples, in sense that their 'human rights' can be protected only insofar they resemble an 'ideal state'. As Koskenniemi writes, "Without a principle that entitles-or perhaps even requires-groups of people to start minding their own business within separately organized states, it is difficult to think how statehood and everything we connect with it-political independence, territorial integrity and legal sovereignty-can be legitimate."64 Indigenous peoples are not sovereign states, but they claim collective as well as individual rights. It appears that only if they are recognized as self-determining peoples, through an internationally recognized document, will they achieve some form of equality in international law. Although the main actors within the international human rights system such as international and regional organizations (the United Nations, the EU, OAS, international Non-

Governmental Organizations) refer to international human rights law as non-ideological, impartial, and the quintessence of human goodness, modern human rights philosophy is associated primarily with Western theories of liberalism, individualism, and democracy.65

64 Martti, Koskenniemi, "National Self-Determination Today: Problems of Legal Theory and Practice" (1994) 43 International and Comparative Law Quarterly 241.

Alan S. Rosenbaum ed., The Philosophy of Human Rights: International Perspectives (Westport, Conn.: Greenwood Press,1980) at 36. While lex mercatoria has been viewed as stateless law, it has institutional dependence on state regimes.66 State institutions guarantee the values of transnational contracts. Likewise, rights are guaranteed by national legal orders, and as argued above, the rights of those who are outside the state centered framework, in particular indigenous peoples, remain precarious. Thus, "even if states do not generate new norms, they are crucial for any form of law production and implementation."67

Significant for the legal pluralism approach, is the persisting asymmetry between regulatory institutions at both national and global levels. In the realm of human rights protection, concepts such as self-determination still remain ambiguous and their applicability dependant on the political context. There is still a substantial disparity between aspirations and enforceability of human rights norms. In the economic realm however, there are several influential institutions, such as the WTO, the International

Monetary Fund (IMF) and the International Chamber of Commerce (ICC), "which are endowed with substantial powers,"68not enjoyed by parallel human rights or environmental institutions. For instance while the WTO dispute settlement mechanism stipulates clear obligations on its members, the human rights or environmental systems remain optional and not enforceable in many instances.69

66 Christopher Mollers, "Transnational Governance without a Public Law" in Christian Joerges, Inger- Johanne Sand and Gunther Teubner, eds., Transnational Governance and Constitutionalism (Oxford: Hart Publishing, 2004) at 333.

67 Ibid, at 334.

Oren Perez, Ecological Sensitivity and Global Legal Pluralism: Rethinking the Trade and Environment Conflict (Oxford and Portland Oregon: Hart Publishing, 2004) at 43.

237 Hence, all actors do not have the same capacity in influencing the state. Teubner has described transnational law as consisting of "transjunctional operations that constitute different forms of law where there is no political sovereign."70 This means that the globalization of law is taking place at a relative distance from political globalization, and in it, traditional forms of law are deconstructed through its norm-producing routines.

According to this perspective, private governance regimes, such as lex mercetoria, do not have the political and institutional mediation of the nation state, but can be institutionalized only as forms of a close contact between operationally closed systems.

Similarly, the self-organisation and self-validation of multinational organizations, becomes concealed in the routines of an organisaitonal hierarchy.

Transnational commercial transactions take place increasingly under a body of rules and institutions that are not entirely connected to either the international legal system or any particular nation state. They have also prompted the formulation of other privately created rules, as for instance proposals from various NGOs, asking for better practices of the corporations and corporate codes of conduct. The actors are multiple

(transnational corporations, NGOs, trade associations, international agencies, lawyers), and their collective activities are creating a multiplicity of regulatory orders with global reach.

Reliance of system theoretical approach on communicative systems, steps away

from the issue of individual participation within any given system (legal, political,

70 Gunther Teubner "The King's Many Bodies: The Self-Deconstruction of Law's Hierarchy" (1997) 31 Law and Society Review 763 at 780. economic). Oren Perez, for instance, provides a metaphor of "multiple self, to avoid a binary distinction of'homo economicus' vs. 'homo ethicus"\ or the clear separatedness between economic and ethical concerns. The multidimensional concept of the self, does not dismiss the self-interest, but recognizes the possibility that other types of motives, such as concern for others, or moral commitments, which could co-exist together.

Behavior of individuals, and by different institutions, is not always predictable or consistent. There are some openings for change then, but it is not certain in which direction.

Kleinhans and Macdonald observe the issue of individual agency from the critical legal perspective: "Normative heterogeneity exists both between various normative regimes which inhabit the same intellectual space, and within the regimes themselves.

How legal subjects recognize and react to relations within and between these regimes is contributive to their own recognition and self-understanding in any given time and space."71 Critical legal pluralism "presumes that subjects control law as much as law controls subjects within its normative sphere" and normative orders cannot exist outside of the creative capacity of its subjects.72" The case of indigenous peoples points to an ambivalence in their relationship with the legal system. On the one hand, they see it as a space, which may offer some potential for resistance. On the other, law remains the force of status quo and domination, which is either irrelevant to their particular struggles or,

71 ibid.

72 Ibid. needs to be challenged.

The concept of transnational law has emerged as defined by Phillip Jessup in

1956, to describe the regulation of "actions or events that transcend national frontiers.

Both public and private international law are included, as are other rules which do not wholly fit into such standard categories."74 Harold Hongju Koh provides an empirical study of courts providing a forum for cases of rights violations outside traditional jurisdictional limitations, which also allows him to establish a theoretical inquiry into the nature of those processes.75 He defines the transnational legal process as "the theory and practice of how public and private actors - nation states, international organizations, multinational enterprises, non-government organizations, and private individuals— interact in a variety of public and private, domestic and international forums to make, interpret, enforce, and ultimately, internalize rules of transnational law.76 This process also breaks down two traditional dichotomies that have historically dominated the study of international law: between domestic and international, public and private.

C. Human rights, environment, and economic interests

Conflicts over, ownership, management, exploitation, and sharing of lands and

natural resources at local and global scales, as well as the questions of mutual obligation

73 Balakrishnan Rajagopal, "Limits of Law in Counter-Hegemonic Globalization" The Indian Supreme Court and the Narmada Valley Struggle" in Boaventura de Souza Santos and Cesar A. Rodriguez-Garavito eds., Law and Globalization from Below: Towards a Cosmopolitan Legality (Cambridge, UK; New York: Cambridge University Press, 2005) at 183.

74 Jessup, Philip, Transnational Law (London: Geoffrey Cumberlege, Oxford Universty Press, 1956).

75 Harold Kongju Koh,"International Law as Part of Our Law" (2004) 98 Am. J. Int'l L. 43.

76 Harold Kongju Koh,"Transnational Legal Process" (1996) 75 Neb. L.Rrev. 181 at 183-184. and co-existence, require a language for voicing of grievances. At the moment it is not certain whether existing national, transnational and international instruments are sufficient for the protection of human rights and the environment. The conflicts have been as much the questions of social contract, within the duality between fighting someone internally, with presupposition of obligation and responsibility to one's counterparts. This involves a constant balancing of how lands and resources are managed in the common space, through rules and sanctions.

Certain types of violence, however, remain even with the establishment of a democratic rule of law. There are various modes of being outside the law. Concepts of war and enemy facilitate this existence.77 The enemy occupies the threat and therefore to him nothing is owed. The same is extended toward those not recognized as equal humans

(the non-rational, barbaric, others) or toward the non-human. In the process of dehumanization of a significant percentage of word's populations, and justification of occupation and control over them, racism has played a significant function. In the economy of biopower, as Foucault argues, racism became "the condition for the acceptability of putting to death." The distinction between rationality, civilization, and

science associated with a particular category of human, and irrationality, naturalness, and

Jacques Derrida, The Beast and the Sovereign, Volume 1, trans, by Geoffrey Bennington (University of Chicago Press, 2009) at 41.

Michel Foucault, Ilfaut defendre la societe.Cours au College de France, 1975-1976(Paris: Seuil, 1997) at 214.

241 savagery of others, allowed for the subordination of everything to impersonal logic of

7Q modernity and instrumental rationality.

Hence, as situation of indigenous peoples has exemplified in particular settings, violence became allowed and accompanied with precepts of liberalism, civilization, and rationality. Such instances of violence were outside of the social contract of Western sovereign nation states. They evoke Hobbes' natural state in which because of the war of all against all, any one may legitimately subdue or even kill Men, whenever that seems to be at his advantage; much more will this be the case against animals. That is, one may at discretion reduce to one's service any animals that can be tamed or made useful, and wage continual war against the rest as harmful, and hunt them down and kill them. Thus Dominion over animals has its origin in the right of nature not in Divine positive right. For if no such right had existed before the publication of holy scripture, no one could rightly have slaughtered animals for food except someone to whom the divine will had been revealed in the holy scriptures; and the condition of mankind would surely have been very hard, since the beasts could devour them in all innocence, while they could not devour the beasts. Since therefore it is by natural right that an animal kills a man, it will be by the same right that a man slaughters an animal.80

The distinction can be easily blurred between non-human and human life, if ceases to be recognized as such, but only as an obstacle, an enemy, or a lesser human.

The concern of dominion of the sovereign over human and non -human life extends also to the relationship between economy and its objects. In the process of balancing human rights or environmental protection against the benefits of economic

79 Jiirgen Habermas, The Philosophical Discourse of Modernity: Twelve Lectures, trans, by Frederick G. Lawrence (Cambridge: MIT Press, 1987) quoted in Achille Mbembe, "Necropolitics" (2003) 15 Public Culture 1 at 18.

80 Thomas Hobbes, On the Citizen, ed. by, trans, by Richard Tuck and Michael Siverthorne (Cambridge: Cambridge University Press, 1998) at 105-106. development, the contribution of nature to human welfare is not well represented in markets.81 This is termed as an "asymmetry of valuation."82 The economic field does not respond to issues of conserving the functions of environmental resources such as clean air, water in river and springs, oceans and atmosphere, for they do not have well-defined property rights or markets or prices. Hence the contribution of environmental resources to the economy is not reflected in the either the individual or social choices made.83

In view of the conventional environmental economics, the environment and the economy are two separate and rather independent systems. This is the economics of environmental 'externalities.' In other words, the impact on the environment is seen as an externality, with confidence in the capacity of technology to substitute for failing natural resources and of unfettered growth. By contrast, ecological economics sees the material economy as an inextricably integrated, completely contained and wholly dependent

Of growing subsystem of a non-growing ecosphere. From this perspective, there are no externalities. There are real limits to material growth and the issue of optimal economic scale is a critical concern. Ecological economics also recognizes the economy as a complex, self-organizing system subject to the second law of thermodynamics. This is a critical distinction given that the economy is embedded in the eco- sphere. In particular, William E. Rees, Special Section: Forum on Valuation of Ecosystem Services: " How should a parasite value its host?" (1998) 25 Ecological Economics 49; Timothy Mitchell, "Rethinking Economy" (2008) 39 Geoforum 1116.

82 David Pearce, "Deforesting the Amazon: toward an economic solution" (1994) 1 Ecodecision 40.

83 Rees, supra note 83 at 50.

MIbid.

*5Ibid

243 modern interpretations of the second law suggest that all self-producing systems,

including the economy, can maintain or increase their internal order only by importing

available energy/matter from their host environments and exporting degraded

energy/matter back into them. That is, complex systems develop and grow "at the

expense of increasing the disorder (entropy) at higher levels in the systems hierarchy."86

By this interpretation, the economy is but one level of a hierarchy of systems in which the

survival of each sub-system is dependent on the productivity of the system immediately

above. For the economy, the superior system is the eco- sphere.87 This relationship is not problematic for either the economy or the ecosphere as long as material consumption and residuals production by the former does not significantly exceed resource production and waste assimilation by the latter.88 Unfortunately, "the economy has become parasitic on nature — its growth and vitality are increasingly purchased at the expense of the health of the ecosphere. The relevant question now becomes, how should a parasite value its host?"89

The comparison with these perspectives on economy and the environment, with

the differing views on this relationship as provided by the indigenous peoples, provides

another perspective from which we can understand the multiplicity of preferences and

understandings of human rights, environment, and economic development. It is beyond

86 Eric D. Schneider and James J. Kay, "Life as a manifestation of the second law of thermodynamics" Preprint from Advances in Mathematics and Computers in Medicine (Waterloo, University of Waterloo Faculty of Environmental Studies Working Paper Series, 1994).

87 Rees, supra note 83 at 50.

gslbid.

89 Kent A. Peacock, "Sustainability as symbiosis (1995) 21 Alternatives 4, at 16-22.

244 the scope of this analysis to provide a detailed account of how indigenous peoples, in general, define their participation in, and relationship to the environment. Hence, the discussion will rely on the conclusions of existing academic research and public pronouncements made by indigenous scholars and leaders. Much has been written on the understanding of indigenous practices as ecological. Scholars, non governmental organizations (NGOs), including indigenous peoples themselves have supported the view that has scholars have since criticised as essentialising of indigenous cultures and practices.90 Moreover, different case studies have pointed to advancement of particular political agendas which have re-invented some cultural practices, as well as resulted in marginalization of other peoples who self-define as indigenous.91 In the Canadian case,

Gordon Christie has described two forms of interests in and conceptualizations of lands and resources in Canada.9 This is a rather general and superficial approach, he warns, for types of interests Aboriginal people may have in lands and resources are understandably very diverse in Canada.

Significantly, values and customs in Aboriginal societies are also the law. Thus law is not seen as something separate and unto itself.93 As Christie points out, Aboriginal

90 Astrid Ulloa, The Ecological Native: Indigenous Peoples' Movements and Eco-Governmentality in Columbia (New York: Routledge, 2005).

Suzana Sawyer and Edmund Terence Gomez, "Transnational Governmentality and Resource Extraction: Indigenous Peoples, Multinational Corporations, Multilateral Institutions and the State" United Nations Research Institute for Social Development, Identities, Conflict and Cohesion Programme Paper Number 13, September 2008.

92 Gordon Christie, "Aboriginal Resource Rights After Delgamuukw and Marshall", in Kerry Wilkins ed., Advancing Aboriginal Claims (Saskatoon: Purich Publishing Ltd., 2004).

Leroy Little Bear, "Jagged Worldviews Colliding" in Marie Battiste ed., Reclaiming Indigenous Voice and Vision (UBC Press, 2000) at 84.

245 community may have interests in the lands and resources rooted in a vision of a deep connection between itself and its land. This community would use the resources on its lands to meet its immediate needs, where this interest itself is grounded in a particular epistemology, which understands the connection between the land and the people as one of respect and reciprocity. The relationship requires mutual regard, and the land provides in return for the maintenance of a respectful position adopted by the community. People identified with the land in this way not through the concept of property rights, but through a strong sense of connection to the land. Christie terms this set of interests in land and resources as a land-people vision.94 The indigenous perspective has been described in the Americas as being in the world as a totality of personality and not as separate systems within the person. The individual is part of all creation, living life as one system.95 The view that everything is more or less animate is shared by many indigenous nations in the Americas. This also signifies that everything is spirit and knowledge.

Hence "If everything has spirit and knowledge, then all are like me. If all are like me, then all are my relations."96 This is a holistic and cyclical view of relationship between humans and nature.

In Peru, and other parts of South America, according to the worldview of Andean and Amazonian indigenous peoples, all things in nature including humans, animals, plants, soils, waters, winds, and valleys are intimately interconnected and form a unified

4 Christie, supra note 94.

95 Bonnie Duran and Eduardo Duran, "Applied Postcolonial Clinical and Research Strategies" in Marie Battiste ed., Reclaiming Indigenous Voice and Vision (UBC Press, 2000) at 91.

96 Little Bear, supra note 95 at 78. whole of cultural and spiritual significance called the Pachamama (Mother Earth). In the

Amazon, the relationship between humans and the environment is not seen in binaries, or a dual parity. The singularities do not fight or refuse each other, but need and complement each other (ie. human/nature, male/female). Indigenous leaders from the

Asociacion Interetnica de Desarollo de la Selva Peruana (AIDESEP) have criticized what they see as Western epistemology for relying on the concept of unit as an origin and basis of existence, as well as the images of the struggle of opposites, the negation of negation, form quantitative to qualitative, from lower to higher, from simple to complex, and so on. Individual beings are subjects in denial and constant struggle with their fellows and nature.97

On the other hand, an aboriginal community may understand its interests in land and resources by regarding the land as exploitable. The relationship positions people as one of the users of the land. In relation to others who have similar interests, this community will seek to have exclusive access to land and resources as property. In relation to the rest of the society and the state, they may have claims that equal or supersede other interests. This relationship Christie terms as a user-thing vision.98 He

Public Letter From AIDESEP, "2009 Summary and 2010 Hopes-Indigenous Peoples Issues and Resources" (Monday, 28 December 2009 23:06) online: htlp://indigenouspeoplesissues.com/index.php?option=com_content«feview=article&id=3367%3Apublic- letter-from-aidesep-2009-sumnkarv-and-2010-hopes&caiid=53%3Asouth-ameHca-indigenous- peoples<emid=75&lantr=en. This critique, however, echoes the debates and critiques existing in the Western epistemology, the struggles to understand human nature, relationship from human to human, human to nature, and human to divine. As John Passmore questions, "In what respect is animal and plant life "strange"? The attitudes of human beings to other human beings are themselves variable and complicated...But there are ways of dealing with human beings which fail us when we confront nature", in Man's Responsibility for Nature (London: Duckworth, 1980) at 207-209.

98Christie, supra note 94.

247 recognizes the multiplicity of existing sub-interests, but the line between the two approaches is best understood through the concept of exploitation. The land-people vision understands resource acquisition, even for trade, as proof that the land is providing for the needs of the people. The land is not separate from the people, but they co-exist bound to each other." Under the user-thing vision resource extraction for trade is simply a means by which the land is used. The land is separate from the people and has no interests of its own or can enter into relationships. The land and its resources become things that exist for human use. Humans vie for access and control over lands and resources in constant competition with each other. Gain of exclusive control through legal and/or physical means, allows for creation of wealth.

In their detailed empirical study, Suzana Sawyer and Edmund Terence Gomez have challenged positions of a number of scholars, indigenous rights advocates and indigenous people themselves, who argue that the recognition of indigenous rights will lead to greater protection and empowerment of indigenous communities and to greater

social justice.100 Certainly, the granting of land rights, the recognition of indigenous

languages, customary authorities as well as their social organization, and greater control

over resource management have empowered indigenous peoples around the world. This

has been evidenced in many of the case studies of their project outline (especially the

studies situated in Australia, Bolivia and Canada). The case studies, however, also raise a

Sawyer and Gomez, supra note 93.

248 number of questions pointing to the more ambiguous, problematic and contingent dimensions of this contention.101

One of the studies is of the Peruvian Camisea gas production project. The

Machiguenga people affected by the project were able to obtain property deeds, which has both allowed them to legally protect their ancestral territory and, together with natural gas extractive activity, radically transformed their cultural, social political, and economic reality. Until the early 1980s the Machiguenga were a semi-nomadic population migrating seasonally among dispersed settlements. With the state land titling policy, they became settled through the establishment of state-recognized permanent nuclear settlements. It is with these native communities that the Camisea gas consortium negotiated its terms of engagement. These newly created settlements, however, lacked indigenous organization and were easily manipulated and fragmented through the negotiations. Different negotiations with the gas consortium obtained different outcomes, which in turn led to division within and among communities. This, together with the powerful influence of the evangelical and Catholic missions, created a situation in which,

"most Machiguenga understand progress as synonymous with material consumption."102

These spatial, cultural and ideological transformations have largely aided the Camisea project and further augmented poverty, inequity and the exploitation of indigenous people.103

101 Ibid, at 9.

102 Ibid, at 10 mIbid, at \5.

249 The cases of Sawyer and Terrence-Gomez's study present the critical role that states and multinational corporations have played in circumscribing and containing what is understood as indigenous rights. The cases demonstrate how a state-corporate alliance establishes a playing field, which while advocating for indigenous rights, invariably furthers the interests of extractive industries. The argument Sawyer and Terrence-Gomez make, problematizes the concept of the "indigenous", the use of the term, and the threat of essentialization of a people and their epistemologies. An image of distinctiveness can have negative impacts as it further particularizes 'indigenous' peoples, and creates a distinction in understandings of being human. If there is a particular way of being

'indigenous' then it is somehow different from the rest of the society, which the state can evaluate as an obstacle that needs to be overcome. Conversely, it can allocate indigenous peoples to only one type of an existence-what becomes identified as 'indigenous' through law.

Nevertheless, self-defining as 'indigenous' has been an important political tool, and in some cases, such as Peru, indispensable. Hence, criticism of the claims to rights as related to indigeneity requires careful fieldwork in a variety of cases, which would shed more light on the consequences of indigenous activism. Moreover, historical and contextual understanding is necessary for an analysis on why claim under 'indigenous rights' has gained such an impetus. In cases of Latin America, in particular, activism and insurgencies surrounding socio-economic inequities has been met with extreme violence of state forces. This has resulted in an emergence of human rights and indigenous rights

250 discourses, as alternative languages, which also facilitated greater international support for indigenous claims.104

This research seeks to avoid the binaries of human rights and environmental protection as purely ethical concerns, versus purely economic concerns. The question of ethical grounds, however, still stands. What is the ethical grounding for corporate governance and business conduct? What language would best articulate such grounding?

To whom are obligations owed and why? The situation of indigenous peoples as their historical relationship with states and international law points to the complexity of different relationships and points of influence. The issue of corporate responsibility enters into a context where there is already a problematic relationship between indigenous peoples and the state.

The primary objective of this chapter is to discuss the issue of consent, which implies respect and communication among actors. Rights and interests are competitive regardless of whether the outcome is utilitarian or protectionist in relationship to the environment. This requires a process of consultation and balancing. Consent also has implications for a social contract and its legitimacy as a democratic society, instead of a de facto imposition. Lack of consultation with indigenous peoples over the issue of how resources are utilized, questions the legitimacy of the decision-making processes. To recapitulate, the standard and principle of Free, Prior, and Informed Consent (FPIC) has been introduced in international law and policy. The principle, however, has not yet been

104 This argument is based on the paper Elena Cirkovic, "Human Rights and Scale: An Assessment of the Human Rights Movement in Peru" (Annual Congress of the Canadian Association for Latin American and Caribbean Studies (CALACS), University of Guelph, October 28-31, 2004)[unpublished].

251 generally accepted and is therefore not enforceable. It would protect the right of communities to be informed about exploration and development activities and to approve the operations prior to their commencement. Similar provisions are also part of documents such as the ILO Convention No. 169, and the United Nations and Inter-

American Declaration on the Rights of Indigenous Peoples. Nonetheless, the decision­ making power of the sovereign still takes precedent over indigenous peoples' interests, as their sovereignty has been historically diminished through the processes of colonialism.

The following two sections observe national legislation in the areas of consultation and environmental impact assessments in Canada and Peru. I provide a parallel consideration of these two cases due to their relationship through transnational investment interests, and in particular Canada-Peru Trade Agreement (CPTA). There are many differences between the two domestic systems due to a variety of reasons. Namely, state-indigenous relations have been shaped through two different patterns of colonialism, Spanish and British. Second, they provide instances of a common law system in Canada and civil law in Peru. Hence, in Canada, the situation of indigenous rights has been defined through courts, and in Peru, through legislatures.

II. Consultation and Environmental Impact Assessment in Canada

Canada has historically relied heavily on its natural resources for the economic development. This process has especially affected indigenous peoples, as mining and exploration have increasingly taken place on traditional aboriginal or treaty lands. Canada has had a complex road to recognition of aboriginal title, and at present, indigenous peoples do not have the veto power over the management and use or resources. However,

252 different venues exist that address the requirement of consultation and environmental assessment, as well as voluntary agreements with the companies. The interests of the first nations, governments, and resource developers all require a regime that would both advance their respective objectives, as well as respect the fundamental principles of each of their positions. Reconciling the Crown's claim to sovereignty over Canada with the pre-existing rights of Aboriginal peoples has been one of the primary themes and goals of the Supreme Court of Canada (SCC).

The question of resource development has depended also on the type of lands on which they have a claim. In British Columbia, most of the lands are still not covered by treaties ceding land to the Crown or addressing the aboriginal rights. In 1995 the British

Columbia Ministry of Aboriginal Affairs issued the following statement "We need to make sure that business and economy of the province are able to run as smoothly as possible while treaties are being negotiated."105 Prior to the Colder v. Attorney General of

B.C.106 decision, and then followed by the section 35 of the Constitution Act, 1982, resource development in the province took place with an assumption that aboriginal rights were extinguished. With the recognition of aboriginal rights and title, the ambiguity still remains with respect to their scope and the infringement of the Crown. In what follows, I focus on the Crown's duty to consult with Aboriginal peoples in situations of resource extraction and development projects.

British Columbia, Ministry of Aboriginal Affairs, Information about Interim Measures (Victoria, 1995).

Colder vs. Attorney General of British Columbia [1973] S.C.R. 313 [hereinafter: Colder].

253 A. Duty to Consult

The courts in Canada have not clearly defined the nature and scope of consultation, as it has varied with the nature of the right affected and the degree of the potential infringement.107 Consultation in Canada is rooted in statutory and regulatory provisions, treaties, contractual arrangements and more specific common law requirements that may be triggered in a particular case and context.108 The Crown has a legal responsibility to consult and accommodate aboriginal and treaty rights. Consultation and the 'duty to consult' arise from the context of the justification analysis of section

35(1), of the Constitution Act 1982, which protects aboriginal and treaty rights. Several decisions of the SCC have confirmed the duty of the Crown to consult, as well as recognized some fundamental changes are required in the traditional relationship between the Crown and Aboriginal people.

As discussed in the previous chapter, R. v. Sparrow109 determines the Crown duty to consult, in particular in the context of resources to which the First Nations have

Sonia Lawrence and Patrick Macklem, "From consultation to reconciliation: Aboriginal rights and the Crown's duty to consult" (2000) 79 Can. Bar Rev. 252; Dwight G. Newman, The duty to consult: new relationships with Aboriginal peoples (Saskatoon: Purich Pub., 2009). See also William Hipwell, Katy Mamen, Viviane Weitzner and Gail Whiteman, "Aboriginal peoples and mining in Canada: Consultation, participation and the prospects for change," A background discussion paper (Ottawa: The North-South Institute, 2002). See also Patricia Dawn Mills, Reconciliation: Gitxsan Property and Crown Sovereignty (Ph.D. Thesis, University of British Columbia, 2005).

108 Government of Canada, Aboriginal Consultation and Accommodation (Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult) (Indian and Northern Affairs Canada, 2008) at 5; Cheryl Sharvit, Michael Robinson and Monique M. Ross, Resource developments on traditional lands: The duty to consult (Canadian Institute of Resources Law, Calgary, Alberta, 1999).

109 [1990] 1 S.C.R. 1075 at 1112 [hereinafter Sparrow].

254 constitutionally guaranteed access. It is the first Supreme Court decision, which applied

section 35 of the Constitution Act, 1982. The Court reasoned that section 35 gives a

measure of control over government conduct, and a strong check on legislative power.

The Court emphasized the importance of the increasingly complex and interdependent

society where exhaustible resources need protection and management. At the same time it reasoned that the government is required to bear the burden of justifying any legislation which has some negative effect on any aboriginal right protected under section 35 (1).

Part of the justification analysis had to include the question of whether the aboriginal

group in question had been consulted. Within this context, the duty to consult is seen as a

duty that arises once an existing Aboriginal or treaty right is deemed to be existing or not

extinguished within the meaning of section 35(1).

In addition, the Court refers to the doctrine of priority in the allocation of the

resource that emerges from Crown's fiduciary obligation. This doctrine or principle of

priority requires that the Crown demonstrate that it has allocated priority of use to the

first nation, in order to ensure that their rights are taken seriously in the situation of

infringement. The Supreme Court applied the doctrine of priority in R. v. Van der Peet"0

and R. v. Gladstone'" in the context of commercial fishing rights, and in Delgamuukw

within the context of an Aboriginal title claim. The Crown has to show evidence of an

attempt to accommodate and give expression to aboriginal and treaty rights that may be

affected.

110 [1996] 2 S.C.R. 507 [hereinafter Van der Peet].

'" R. v. Gladstone, [1996] 2 S.C.R. 723 [hereinafter Gladstone].

255 In Sparrow, the Court also addressed the question of whether there has been as little infringement as possible, whether fair compensation was available in a situation of expropriation and whether the aboriginal group in question had been consulted with respect to the conservation measures implemented. In the context of unproven rights, where Crown's fiduciary duty does not apply the duty to consult and accommodate is supplanted by the honour of the Crown.113 The constitutional framework of section 35 (1) requires reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown, where the "honour of the Crown is at stake"."4

In Delgamuukw v. British Columbia, the Supreme Court of Canada made consultation an important means for reconciliation between continuing presence of the first nations, the settlement of foreign populations, and third party tenures. More specifically, in Delgamuukw, the Supreme Court addressed its justification analysis as it relates to the special fiduciary relationship between the Crown and Aboriginal peoples.116

The principle of priority already mentioned in Sparrow reappears in Court's reasoning that the justification analysis may require that the Crown ensure first nations be provided with the opportunity to participate in resource development. Chief Justice Lamer held that "[fjhere is always a duty of consultation ... in good faith, and with the intention of

112 Sparrow, supra note 111 at 1119.

1,3 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 [hereinafter: Haida].

114 Van der Peet, supra note 112 at para. 24.

115 [1997] 3 S.C.R. 1010 [hereinafter Delgamuukw (S.C.C.)]. Mills, supra note 109.

U6Ibid. at 1108.

256 substantially addressing the concerns of the Aboriginal peoples whose lands are at issue."117 Delgamuukw established the concept of Aboriginal 'consent' of lands subject to

Aboriginal title. The case also revoked the preceding attitude in the courts that denied title to First Nation communities who had not entered into agreements or surrendered. If infringement was justified, it had a right to compensation. It also expanded the inclusion of activities defined by aboriginal rights to include forestry, mining, oil and gas development, limited only by the principle of equitable waste. The use of territory, however, could not conflict with the community's 'Indianness'. The Crown's duty to accommodate aboriginal title must also be consistent with the nature of aboriginal right in question.

Nevertheless, the conflict arises in the principle of "minimal infringement" of aboriginal rights and the use of land by non-aboriginal peoples. The Court has endorsed infringement on aboriginal rights in reference to Gladstone:

In the wake of Gladstone, the range of legislative objectives that can justify the infringement of aboriginal title is fairly broad. Most of these objectives can be traced to the reconciliation of the prior occupation of North America by aboriginal peoples with the assertion of Crown sovereignty, which entails the recognition that "distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community" .... In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title.118

117 Ibid, at 168. niIbid. at 1111.

257 Such reasoning ensures that aboriginal people cannot claim sovereignty over their lands as "all-or nothing" in relationship with other interests. This has been addressed to greater degree in decision of the Supreme Court of British Columbia in Tsilhqot'in Nation v.

British Columbia,u9 which will be discussed further below.

In more recent decisions, Haida Nation v. British Columbia120, Taku River Tlingit

First Nation v. British Columbia, and Mikisew Cree First Nation v. Canada, the

Court has held that the Crown must consult aboriginal peoples where aboriginal or treaty rights might be infringed, in order to uphold the honour of the Crown. The Crown is broadly obliged to consult with aboriginal peoples in good faith, while making accommodations where necessary for aboriginal peoples. In Haida, the Supreme Court held that the Crown's obligation occurs "when the Crown has knowledge, real or constructive, of the potential existence of the aboriginal right or title and contemplates conduct that might adversely affect it."123 The case had also established a range of required consultation as a spectrum. Where the aboriginal claim is weak, the potential impact is also less significant, whereas at the higher end of the spectrum are cases where aboriginal claim is strong. The Crown is not required to enter into extensive consultations with aboriginal peoples in all instances, and consultation and accommodation vary

119 Tsilhqot'in Nation v. British Columbia, [2007] BCSC 1700 [hereinafter: Tsilhqot'in].

120 Haida Nation v. British Columbia (Ministry of Forests), [1997] 153 D.L.R. (4th) 1 (B.C. C.A.) [hereinafter: Haida SCR].

1 Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74 [hereinafter: Taku River].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 [hereinafter: Mikisew]

Haida, supra note 122. depending on the facts of the case at hand. Only the Crown is required to consult with and accommodate aboriginal peoples; this requirement cannot extend to third parties.

Significantly, the Court also held in Haida that the proof of title is not required before the Crown, and the Crown's duty to consult and accommodate aboriginal concerns exists even if aboriginal title has not been proven in a court of law.

In this respect,

The Crown, acting honourably, cannot cavalierly run roughshod over aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests.. .the honour of the Crown may require it to consult with an reasonably accommodate aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the aboriginal claim to that resource, may be to deprive the aboriginal claimants of some or all of the benefit of the resource. That is not honourable.124

Still, the Court in Haida stated that Aboriginal consent "is appropriate only in cases of established rights, and then by no means in every case, rather what is required is a process of balancing interests, of give and take."125 However, according to the Court, the accommodation process does not give Aboriginal groups "a veto over what can be done with land pending final proof of the claims."126 The Court further reasoned that the objective of balancing and reconciliation of interests between the Crown, Aboriginal, and societal interests, is central to any consultation and accommodation process. In the

124 Ibid, at para 33

125 Ibid, at para. 48.

126 Haida Nation v. British Columbia (Minister of Forests), (2002) 99 B.C.L.R.(3d) 209 at para.42-44 [Haida #1]. process, " the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to

Aboriginal concerns. Balance and compromise will then be necessary."

The Supreme Court of Canada heard and decided the Taku River case, at the same time as Haida. Taku River centered on a ministerial approval of a Project Approval

Certificate in relation to a mining project. The proposal to build an access road to the mine site would traverse the traditional territories of the Tlingit nation, increasing public traffic and access to an otherwise pristine area of wilderness within Tlingit territory. The

Court clarified that the Crown has the legal duty to consult with aboriginal groups who have asserted, but not proven Aboriginal rights and title.128 The effect of this decision means that consultation must be in place before infringement.

The case, however, also points to difficulties in ascertaining what meaningful participation signifies. Namely, the industry proponent, the Tlingit, and other stakeholders participated in an environmental review process over a period of three years.

This process resulted in recommendations to the responsible Ministers. The Tlingit nation participated in the process as a member of the Project Committee in charge of the review process. However, the Tlingit did not agree with the recommendations of the majority of the Project Committee and issued a minority report. In response to the reports, the responsible Ministers issued a Project Approval Certificate. The Tlingit argued that it

127 Haida SCR, supra note 122 at para. 45.

128 Taku River supra note 123.

260 would unjustifiably infringe on both, their asserted aboriginal rights, as well as their aboriginal title.

The British Columbia Court of Appeal found that the Project Approval Certificate issued by the Ministers in Taku River, was issued without regard to the Crown's constitutional and fiduciary obligations to the first nation, and remitted the matter for reconsideration by the Ministers. The Crown appealed and the appeal was allowed on the basis that the Crown had satisfied its duty to consult and accommodate. The Supreme

Court of Canada found that while the Tlingit had a relatively strong prima facie case of aboriginal title and the potential infringement was serious, the process engaged in by the

Crown under the Environmental Assessment Act fulfilled the requirements of its duty to consult and accommodate. The Tlingit were part of the Project Committee, participating fully in the environmental review process; its views were put before the decision-makers, and the final project approval contained concrete measures designed to address both its immediate and its long-term concerns. The Court found that the Province was not under a duty to reach agreement with the Tlingit. The Court concluded, however, that it expected that the Crown would continue to fulfill its honourable duty to consult and, if appropriate, accommodate.

In the Mikisew case, which involved treaty rights, the Court applied the reasoning from Haida regarding the duty to consult and accommodate. The Mikisew, a Treaty 8 nation, challenged the decision of the Minister of Canadian Heritage to approve the construction of a winter road through a portion of the Mikisew reserve, on the basis that they had not been adequately consulted. While, under the Treaty 8, the Mikisew were

261 promised the right to engage in their traditional practices, at the time of treaty, both parties agreed that the portions of the surrendered land over which the first nations had treaty rights to hunt, fish and trap would, "from time to time," be "taken up" by the

Crown and used for other purposes.129 The Court found that under Treaty 8, two procedural and substantive obligations arise, the fiduciary duty relating to the protection of treaty rights over treaty lands, which are not surrendered, and the duty to consult and accommodate treaty rights over surrendered lands. The Court concluded that the rights protected by Treaty 8 were subject to a further limitation through the "taking up" process.

However, the Court stressed the importance of the duty to act honourably, which includes the obligation to consult and, if appropriate, accommodate treaty and Aboriginal interests.130

Expanding on Haida and Taku River, the Court in Mikisew evaluated the level of infringement outlined a number of other factors, including: the specificity of the treaty promises; the seriousness of the impact of the Crown's proposed conduct on the first nation; and the history of dealings between the Crown and the first nation. The Court held that Treaty 8 provided a framework to manage continuing changes in land use, which would likely result from the taking up of land by the Crown. It stressed the relationship embodied within Treaty 8 and its importance in the management of the ongoing relationship. Within this context, and with an objective of reconciliation, consultation was an absolute necessity.

129 Mikisew, supra note 124.

130 Ibid, at paras. 57-58.

262 Tsilhqot 'in Nation v. British Columbia is the first case in which a court has concluded that the evidence presented before it proved that Tsilhqot'in title exists over certain lands in Tsilhqot'in territory. Mr. Justice Vickers also found that the Tsilhoqot'in people have an aboriginal right to hunt and trap, to capture wild horses and to trade in skins and pelts, and that province infringed on these rights by authorizing forestry activities. The case was brought in 2002, by Chief Roger William of the Xeni Gwet'in

First Nation, on behalf of approximately 3,000 members of the Tsilhqot'in Nation, of which the Xeni Gwet'in is a part. The decision is significant in delineating the specifics of federal and provincial jurisdiction. The Court found, on the basis of the doctrine of inter-jurisdictional immunity, that the Forest Act, or any other provincial legislation of general application, does not apply to lands over which aboriginal title has been proven.

Following from the section 91 (24) of the Constitution Act 1867, the federal government has exclusive jurisdiction over "Indians and lands reserved for Indians." Established

Aboriginal title lands are under federal jurisdiction, and therefore only federal laws apply on these lands.

The province thus does not have the jurisdiction to extinguish aboriginal title.

However, the Court also concluded that provincial jurisdiction and legislation does apply over lands, where the aboriginal title remains unproven. The judge also held that the existence of aboriginal rights on land, does not oust provincial jurisdiction over that land.

However, where there is a strong case of aboriginal title or where an aboriginal right exists or is protected by treaty, the provincial Crown's authority to infringe a First

263 Nation's right related to land and resource use is not unlimited and will be subject to judicial scrutiny.

With respect to the duty to consult, Mr. Justice Vickers indicated that the

Tsilhqot'in have a strong claim and that the potential infringement is significant. Hence, it requires meaningful and extensive consultation. He also criticized the Province's policy to only address aboriginal title and rights at the treaty table, concluding that the policy resulted in the failure to address these rights as required by law. His conclusion provides a summary of the problematic relationship between the province and its treatment of indigenous peoples:

Over the years, British Columbia has either denied the existence of Aboriginal title and rights or established policy that Aboriginal title and rights could only be addressed or considered at treaty negotiations. At all material times, British Columbia has refused to acknowledge title and rights during the process of consultation. Consequently, the pleas of the Tsilhqot'in people have been ignored.13'

And further, "Consultation involves communication. It has often been said that communication is the art of sending and receiving. Provincial policies either deny

Tsilhqot'in title and rights or steer the resolution of such title into a treaty process that is unacceptable to the plaintiff."132 Accordingly, Mr. Justice Vickers raised the bar for governments seeking to justify infringement, and emphasizes the importance of recognition, respect and true accommodation of Aboriginal rights and title.

B. Environmental Assessment

' Tsilhqot'in supra note 121 at para 1136 2 Ibid, at para 1137. While Mr. Justice Vickers only provided a non-biding state of opinion, he has addressed some of the standing issues in the relationship between indigenous peoples, and the provincial and federal governments of Canada. Significantly, the ruling established that third party interests do not extinguish Aboriginal title. The jurisdiction to extinguish Aboriginal title was historically held by the federal government. The province cannot extinguish Aboriginal title by granting interests to third parties. This bears significance with respect to the role of extractive and development projects.

Established in Delgamuukw is the legislative objective to balance the needs of indigenous peoples against the needs of broader society. In Tsilhqot'in Mr. Justice

Vickers signaled that economic interests are not always sufficient to override constitutionally protected Aboriginal title and rights. He determined that impact of logging on Tsilhqot'in rights and title is disproportionate to the economic benefits to broader society. Vickers also observed that because the Ministry of Forests' legislative mandate is maximizing the economic return form provincial forests, the needs of wildlife species and the continued wellbeing of the First Nations are "low on the scale of priorities."133 He noted that any model that is driven solely by an economic engine is incapable of properly considering social values such as Aboriginal title and rights. He proposes for a broader vision of sustainability that would include the values of the people affected by government decision.

It is significant to also consider the present regulatory framework with respect to environmental assessment in Canada. Under the Canadian Environmental Assessment

133 Ibid, at para. 1286.

265 Act S.C.I 992, c.37 (CEAA), there are four categories of assessment of the level of scrutiny required in the environmental assessment process: screenings, comprehensive assessments, panel reviews, and mediations. The tendency of federal authorities has been to lower the scope of the project and include only those aspects that fell under federal jurisdiction. The screening would then rely more heavily on the provincial assessment as part of its screening. However, in the recent judgment of the Supreme Court of Canada

Mining Watch Canada v. Canada (Fisheries and Oceans), writing for the unanimous

Court, Justice Rothstein held that the federal authorities erred in minimally scoping the project in a manner that required only a fast-tracked "screening" rather than a full-scale comprehensive review. Rather, the category threshold must be determined by the entire project as proposed. Also, with the emphasis on the federal regulation, the ruling has great importance for reserve lands that are governed under the federal jurisdiction.

The environmental assessment process is triggered at the federal level when federal authority has some specific decision-making responsibility in relation to the project, such as the proposal of the project, financial assistance, licensing, permit or approval. The project may be regulated under the Fisheries Act, Navigable Waters

Protection Act, the Explosives Act and/or the Canadian Environmental Protection Act.

Aboriginal participation is included throughout different stages of environmental assessment. Section. 16(1) of CEAA, for instance, gives the regulatory authority the discretion to consider traditional knowledge in the environmental assessment.

Mining Watch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2 [hereinafter: Mining Watch]. The Mining Watch decision clarifies that large-scale development projects require a comprehensive environmental assessment at both federal and provincial levels. The existing regulations on scoping projects have been unclear due to the multi-jurisdictional nature of large scale development projects. Scoping means determining the scope of a given project for the purposes of undertaking an environmental assessment. Under the

CEAA the nature of the project determines the level of scrutiny required in the environmental assessment process. The Court held that the CEAA does not give the government discretion in determining the scope. Rather, the category threshold must be determined by the entire project as proposed. Nevertheless, as has been presented in much of the critical literature on the environmental assessment procedures, democratic process of consultation still requires further reforms, and in particular Aboriginal traditional laws and values need to be properly involved in determining responsibilities

11S related to environmental protection.

C. Indigenous rights and Environmental concerns in Canada: brief conclusions

In Tsilhqot 'in, Judge Vickers rejected the piecemeal or "postage stamp" approach to Aboriginal title. As he states "It was government policy that caused them to alter their

See for example, David R. Boyd, Unnatural Law: Rethinking Canadian environmental law and policy (Vancouver: UBC Press, 2003); Lindsay Galbraith, Understanding the Need for Supraregulatory Agreements in Environmental Assessment: An Evaluation from the Northwest Territories, Canada. (M.A. Thesis, Simon Fraser University, Department of Geography, 2005); Ciaran O'Faircheallaigh, "Environmental Agreements, EIA Follow-up and Aboriginal Participation in Environmental Management: The Canadian Experience" (2007) 27 Environmental Impact Assessment Review 319.

267 traditional lifestyle and live on reserves."136 In his opinion, he carefully looks at almost five centuries of history of British Columbia. He points to the problematic relationship between the Crown and the indigenous peoples since the assertion of Crown sovereignty.

The case recognizes that aboriginal rights and title are communal rights, however it underlies that the title remains vested in the Crown. In Canada, the assertion of aboriginal claims has always been observed within the framework of the sovereignty of the Crown.

The question remains how the democratic processes of consultation, accommodation and compensation are to be conducted, in particular in reference to the broader reconciliation of interests.

What would be involved in a more inclusive and democratic approach to participation of indigenous peoples in decision making over different projects? Part of the problem stems from the irresolution between competing sovereignties: indigenous peoples still affirming their right to ownership and management of lands, versus the assertion of the Crown. Prior to seminal decisions and constitutional reforms Canadian laws have ignored indigenous claims. Part of the continuing problem in this relationship is the lack of certainly in the existing legislations and the role of consultation. One consequence of this uncertainty has been the emergence of Impact and Benefit

Agreements (IBAs) negotiated directly between the corporations and indigenous communities.137 With the exception of Nunavut, where IBAs have to be negotiated with in the framework of the regional government, there is no existing legislation or policy to

136 Tsilhqot'in supra note 121 at para. 610

137 Courtney Fidler and Michael Hitch, "Impact and Benefit Agreements: A Contentious Issue for Aboriginal and Environmental Justice" (2007) 35 Environments Journal 49.

268 govern their procedures. The IB As are not compulsory, but part of the increasing self- regulating processes conducted by the corporations, emerging from greater concerns over corporate social responsibility. Arguably, such negotiations that happened in the sphere beyond the state could give indigenous peoples greater participation and involvement over land use and economic gains. However, the specificities of individual IBAs vary from case to case and depend on the various interests of the actors involved. The question is whether they can supplement the Canadian state and Crown deficiencies in policy and legislation.

It is here argued, that such processes still happen within the purview of the state, for the lack in decision- making at the level of law and policy stems also from the unwillingness to address some indigenous concerns. As they do not have final veto power over how and if the projects would take place, the IBA negotiations already tilt the advantage towards the industry involved and governmental interests. Furthermore, indigenous peoples often lack legal and financial resources, as well as expertise and information necessary for the informed negotiation of an IBA.

Canadian economic interests, however, are global, and have significant impact on human rights and environmental protection abroad. The following section will look at the

Peruvian context of indigenous rights and participation, and environmental assessment, in order to provide a context for the recent Canada-Peru Free Trade Agreement (CPFTA).

There is thus a broader concern in the regulation of trade interests and the impacts on

138 Michael Hitch, Impact and Benefit Agreements and the Political Economy of Mineral Development in Nunavut (Ph.D. Dissertation, University of Waterloo, Department Geography, 2006).

269 human rights and the environment. The importance of the duty to consult is paramount in any reconciliatory process between indigenous peoples and the Canadian state.139 It also has important implications for the concerns of transparency and democracy in this relationship. At the transnational and international level, Canada has also played an important part on human rights situation of indigenous peoples in other jurisdiction. Due to the limited scope of this thesis I will not engage with the debate on the duties Canada has under international law for protection of human rights or to regulate its companies abroad. In the case of Peru, however, it becomes apparent that what is at stake is not only the relationship between indigenous peoples and the Peruvian state, but also the relationship between Peru and Canada and other countries with which it has trade obligations. These concerns bring us back to the more global conundrum in the position of human rights or environmental protection in relation to economic interests.

III. The case of Peru: Indigenous Peoples and Environmental Concerns

In its foreign policy towards Latin America since the 1990s, Canada has assumed that the region has embraced markets and democracy. This is the underpinning of the recent free trade agreement between Canada and Peru. As the Canadian government website states:

Peru is a dynamic emerging market with 28 million people and an economy with high growth potential. In 2008, two-way merchandise trade between Canada and Peru totalled more than $2.8 billion, with hundreds of Canadian companies doing business with Peru. Peru is also a strategic destination for Canadian direct investment (mining and financial services) Once implemented, the FTA with Peru will stimulate the growth of our commercial relationship and help level the playing field for Canadian business vis-a-vis their competitors who may be benefiting from

139 Lawrence and Macklem, supra note 109. preferential market access terms in these markets. The FTA will also promote a more stable and predictable investment environment in key sectors of interest, such as natural resources and infrastructure.140

The main objective in the free trade agreement has been to increase trade and investment.

However, instead of fostering more stable and democratic environments and prosperous economies, market reforms have witnessed increase in conflict. In particular this conflict has emerged between the interests of the state, foreign investors, and local populations.

The situation of Peru represents the multiplicity and conflict of interests between, state, private actors, indigenous communities, and other populations.141 The resolution does not seem to lie in the state, which has implemented neoliberal policies facilitating and favoring corporate interests, or the voluntary corporate codes of conduct, which adopt issues such as human rights protection to their internal economic interests. Local activism, such as that of indigenous peoples in Peru and elsewhere has on occasion proved to be able to challenge effectively harmful corporate conduct, but overall remains much weaker in relationship to the global business network.

In Peru, as outlined in Chapter V, socioeconomic disparities along ethnic, race and geographical lines create a context where wealth is heavily concentrated along the coast and in mining enclaves that are not well integrated with the rest of the economy.

This section examines the consequences of those conflicts mindful of the context of indigenous peoples' claims to permanent sovereignty over their lands and resources,

Canada - Peru Free Trade Agreement: Benefits for Canadians, available at: http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/andean-andin/can-peru- perou.aspx

141 David Szablowski, Transnational Law and Local Struggles: Mining, Communities, and the World Bank (Oxford and Portland, Oregon: Hart Publishing, 2007). which conflict with corporate interests in the same territory. In this situation, Peru has been unable or unwilling to adopt regulation mechanisms that would address corporate social responsibility. The reluctance to provide stronger protection for human rights and the environment is also related to the proliferation of bilateral free trade agreements, which in their investment chapters provide powerful protection for the rights of corporations, while offering minimal provisions on corporate social responsibility. Norm collisions emerge from multiple myths and narratives- but what is the outcome? The

Peruvian state, for instance, has not been capable of balancing growth with distribution.

The rents from the commodity export boom have not yet been invested in sustainable human development in those parts of the country that have been historically excluded from prosperity.

In particular, Peru has had a long history of extractive activities, primarily in mining. In 1569 for instance, the Viceroy Francisco de Toledo had arrived in Peru has understood the significance of Huancavelica to Spanish royal finances, as the major

American source of mercury. He expropriated the Huancavelica mines in the crown's name and ensured that the colonial government provided Huancavelica guild of mercury producers with workers through forced Indian labor or a mita. Between 1530 and 1650 alone, Spain received 181 tons of gold and 16,887 tons of silver from its colonies in the

Americas.142 The enormous wealth created by mining fuelled Spain's prosperity and early stages of industrialisation. In his account of Latin American history, Uruguayan novelist

Celso Furtado, Economic Development of Latin America: Historical Background and Contemporary Problems, 2ne ed. (Cambridge: Cambridge University Press, 1978) at 22.

272 and journalist Eduardo Galeano writes, "Bad dreams, nightmares about abysses or vultures or monsters, may portend the worst. And the worst, here, is being forced to go to the Huancavelica mercury mines or to the far-off silver mountain of Potosi."143 In the

Santa Barbara mercury mine located in Huancavelica, highland Peru, most of the forced indigenous labourers died swiftly as they produced what the Iberian conquerors sought above all, precious metals and free Indian labour needed for its extraction.144

Since the beginning of the 20th century, large foreign capital has been dominant in the Peruvian mining industry. In regard to the state economic policies, the past decade in

Peru has seen a dramatic and rapid liberalization of economy and the liquidation of public enterprises. The government has reaffirmed its control and distribution (including concession and transfer) of natural resources. This has involved the promotion of domestic and foreign investment and generation of fiscal revenue. Governmental monopoly over natural lands and resources ha signified an offer of legal security to investors who are granted utilization rights. As De Echave writes, in the past decades titles to mining rights reached its peak to 15, 597,000 hectares in 1997, from 2,258,000 in

1991. The mining has not consolidated only in traditional mining zones, but also expanded into new areas, traditionally devoted to agriculture.145 While previous conflicts between local communities and companies focused on labor issues, contemporary

143 Eduardo Galeano, Memory of Fire, 1. Genesis (New York: Pantheon Books, 1985).

144 Henry Dobyns and Paul Doughty, Peru: A Cultural History (New York: Oxford University Press, 1976) at 122.

145 Jose De Echave "Peruvian Peasants Confront the Mining Industry" (2007) 19 Socialism and Democracy 119.

273 conflicts emerge from different views of development and management of natural resources between local peasant and indigenous communities, the state, and private companies.

In part the new policies were fuelled by the debt crisis and Peru's need to attract foreign exchange and meet its debt repayments. In 1980s and 1990s successive governments have implemented heavy neoliberal policies following the demands of the

IMF. Primary objective was to liberalise the Peruvian economy and attract international investment by creating stable and profitable investment conditions. Mining was one of the most heavily promoted sectors. In 1992, the Fujimori regime established a number of juridical instruments, which favored transnational mining companies. In 1992 the General

Mining Law was revised with the Decree N° 014-92-EM, establishing together with the

Decrees N° 662, 668, 757 and the Constitutiton of 1993, a new role for mining in the

Peruvian economy.146 Legal provisions that were formerly dispersed among various regulations, governing areas such as taxation, labour, and the environment, became centralised through the Ministry of Energy and Mines, concentrating regulatory control.

As a result, environmental authorities now exercise very little influence over the mineral sector, and Peru has no Department of the Environment. The 1993 Constitution restricts government business activities, as is evident in the Article 60 (par.2) which states "Only if expressly authorized by law may the State perform, directly or indirectly, any subsidiary entrepreneurial activity, for reasons of high-priority public interest or manifest national expediency." Furthermore, the Constitution defines natural resources, both l46Supreme Decree No. 014-92-EM (04/06/92).

274 renewable and non-renewable as nation's heritage, giving the state the sovereign power to utilize them. The Sectoral Law 26821 of 1997 on natural resource utilization stipulates that State sovereignty "entails the jurisdiction to legislate and perform executive and judicial functions in regard thereto" and the power to grant private parties "the right to sustainably utilize" them.I47

At the same time, the costs of development have adversely affected local communities and the environment. The Ombudsman's Office of Peru has reported that most of the recent social conflicts in the country are linked to extractive projects and that between 2004 and 2008, 77 per cent of all social conflicts were related to mining and 10 per cent to oil extraction.148 Peru has had no clear and consistent procedure to carry out consultation with indigenous peoples and to incorporate their views before any legislation or administrative decisions. The lack of a clear process of consultation with indigenous peoples has been a concern of international and regional human rights bodies for many years. In 2000 the Inter-American Commission on Human Rights recommended that the

Peruvian state "ensure (...) that all projects to build infrastructure or exploit natural resources in the indigenous area or that affect their habitat or culture is processed and decided on with the participation of and in consultation with the peoples interested, with a view to obtaining their consent and possible participation in the benefits".149

147 Law 26821 of 1997, Articles 6 & 19.

148 Defensorial Extraordinario, Los Conflictos Socioambientales por actividad Extractiva en el Peru, 17deAbrilde2007.

149 Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/11.106, Doc. 59 rev. June 2, 2000, Chapter X, para. 39.5. online:

It deals wits issues of transparency, ethnic diversity, occupational health and safety and such. The implementation of codes in practice, however, remains yet to be seen.150

In the disputes with local and indigenous communities, the government has resorted to establishing states of exception, and treating the communities as insurgents or obstacles to development. In so doing, Peru has deviated from international treaties to which it is a signatory, and failed to consult with local indigenous communities over the social and environmental impact of new projects. The following sections will look at the

Peruvian context of indigenous land rights, environmental protection and extractive industries. The analysis will rely significantly on the extensive research recently conducted on the relationship between mining and communities in Peru.151 First, it will look at the recent conflict in the Amazon, which has resulted from the proposed legislation targeting indigenous lands in view of promoting activities of extractive industries. Second, it will address the Peruvian legal regime with respect to land ownership and management, environmental assessment, and public consultation. Lastly,

0%20%20RECOMMENDATIONS >

150 Codigo de Conducta, Sociedad Nacional de Mineria Petroleo y Energia, online: http://www.snmpe.org.pe/codigo_conducta.htm. 15 See for eg. Szablowski, supra note 143.

276 it will make general comments on the role of bilateral free trade agreements in the increase of corporate activity on indigenous lands.

A. Situation of indigenous peoples in the provinces ofBagua and Utcubamba

The events that took place in the provinces ofBagua and Utcumbamba in June of

2009 have emerged in the context of issues resulting form the passing of various legislative decrees by the executive power, and which were questioned by indigenous organizations and representatives.152 I relate those events in order to connect the local conflict to the global trajectories described throughout my analysis, observing how they converge in particular instances of violence. Between March and June of 2008, the executive power passed a hundred and one legislative decrees. All have their origin in the

Ley No 29157 of the Congress, which delegates legislative powers to the executive for the adoption of measures related to the governmental developmental politics and the implementation of the Free Trade Agreement between Peru and the United States.

Indigenous organizations, in particular AIDESEP, protested against these legislative decrees, due to their content, as well as the lack of direct consultation with indigenous peoples prior to their passing.153

Details of this case are described and analyzed in James Anaya, Relator Especial de Naciones Unidas sobre la situacion de los derechos humanos y las libertades fundamentals de los indigenas, Observation sobre la situacion de los pueblos indigenas de la Amazonia y los sucesos del 5 de junio y dias posteriors en lasprovineias de Baguay Utcubamba, Peru (New York: United Natinos, 2009).

153 The eleven decrees against which indigenous organizations protested, were the following: 994 (which promotes private investment in irrigation projects for the expansion of agricultural activities); 995 (which modifies the Law of relaunching of Banco Agropecuario (Bank of Agriculture promotion); 1015 (which unifies the administrative proceedings of the peasant and native communities in the highlands and the jungle, with those of the coast, in order to better the commercial production and agricultural competitiveness); 1020 (which promotes agrarian products and the consolidation of rural property for credit); 1060 (which regulates the National System of Agricultural Innovation); 1064 (whih establishes a juridical regime for greater agrarian use of lands); 1080 (which modifies the general law on seeds); 1081 The law No 29338, on hydric resources (March 31, 2009) repealed the legislative decrees Nos. 1081 and 1083, while most of the others remained in force. It was alleged that the eleven decrees facilitated the models of commercial activities, privatization and exploitation of lands and natural resources, which counter the rights of indigenous peoples over the same lands and resources. In addition, various actors of the Peruvian society questioned the constitutionality of some of the decrees and their compatibility with the ILO Convention 169. For instance, the office of the Ombudsman filed an action before the Constitutional Tribunal for unconstitutionality of the Decree No 1015, as well as a claim of unconstitutionality of the legislative Decree No 1064, alleging the violation of the Constitution of the Republic and the ILO Convention 169. Most contested was the

Decree No 1015, modified by the decree No 1073, which, as alleged, would facilitate the sale of communal indigenous lands in order to diminish the necessary quorum for an agreement on sale of lands, from two thirds, to fifty percent of the votes of community representatives present at the meeting. Furthermore, the Decrees Nos 1064 and 1090 also allegedly facilitated the changes in the use of lands.

In August of 2008, various indigenous groups, organized under the direction of

AIDESEP, began mobilizations, road blockades, and takeovers of installations of gas companies, in protest against the legislative decrees. They asked for the repeal of the decrees as well as compliance with the ILO Convention 169. The President of the

Congress ratified with the participation of members of congress, an Act of Agreement,

(which creates the national system for hydric resources); 1083 (which promotes the improvement in use and conservation of hydric resources); 1089 (which establishes special temporal regime for formalization and titling of rural properties); and 1090 (which approves the laws on forests and wild fauna).

278 with representatives of indigenous peoples from the Amazon. The Act agreed to convocate full Congress in order to debate the derogative of legislative decrees Nos. 1015 and 1073, and to form a multiparty commission in charge of studying and recommending the solutions to the problem of indigenous peoples, with the participation of their representatives. It also proposed a modification of Congress regulations in order to incorporate consultation procedures of the ILO Convention 169. The Congress published the law No 29261, repealing the decrees Nos. 1015 and 1073. In addition Multiparty

Commission was created in order to study and propose solutions to the issues of indigenous peoples. The President of the Republic ratified a supreme decree, which would create a permanent roundtable for dialogue between the state and the indigenous peoples of the Amazon.

In response, AIDESEP and other indigenous groups provided communications to the executive power of the Congress, expressing concerns regarding the rest of legislative decrees, which were not repealed, as well as the lack of political will to address the demands of the peoples from the Amazon. AIDESEP rejected the roundtable, as it did not guarantee legitimate and adequate participation of the indigenous peoples. According to indigenous leaders, the representatives of the government continued to defend the legality of the legislative decrees. As the tensions increased, the government declared the state of exception in various districts of the departments of Cusco, Ucayali, Loreto and the

Amazon. The police presence in the Amazon increased and the peoples represented by the AIDESEP were denounced as insurgents acting against the government.

279 In June of 2009, the Congress decided to suspend the dialogue over the derogation of legislative decrees Nos. 1064 and 1090. The police mobilized to disperse indigenous protests which were occupying and blocking the road "Fernando Belaunde Terry" in the province of Utcubamba, near the city and province of Bagua. For seven weeks, members of various communities from the Amazon region took control of several kilometers of the road, as well as other strategic points, as part of a strike led by AIDESEP. The police began dispersing persons concentrated in the segment of the road called 'Curva del

Diablo.' As the violence between the police and the protestors escalated, resulting in deaths and injuries among both protestors and the police. The Peruvian government declared a state of emergency in all the departments of the Amazon and provinces of

Datem de Maranon of Loreto department and Jaen and San Ignacio provinces in the departament of Cajamarca. Allegedly, after police opened fire on several thousand protesters near the Peruvian town of Bagua, ten protesters and twelve policemen were killed, and eleven policemen who had been held captive at an oil pumping station were murdered later the same day in apparent retaliation by indigenous people. Indigenous organizations have forwarded concerns, that there could still be some indigenous peoples whose condition is not known.

The Congress of the Republic proceeded to enact the law No 29376, which indefinitely suspended legislative decrees Nos. 1090 y 1064. Various members of the congress demanded a complete repeal of these legislative degrees, alleging that there is no provision for 'suspension' within the Peruvian constitutional framework. Seven members of Congress were sanctioned for disturbing the order of sessions of Congress.

280 Eventually the Congress voted in favour of definitive derogation of the legislative decrees

Nos. 1090 y 1064.

Even with consideration to the argument that future energy situation has to predominate over the specific interests of indigenous peoples, the presidential decrees of

Alan Garcia, reduce and restrict the possibilities indigenous groups have in claiming collective rights to territory and to a collective identity. Their right to collective title is eliminated by the decrees. While Peru ratified the ILO Convention 169 in 1993, it has not developed a coherent normative framework that makes it possible to implement the principle of consultation and consent in conflicting situations concerning resource extraction. The ILO Convention 169 convention's principles are fragmented in current legislation, and easily countered by the application of other laws and regulations. In addition, the Peruvian government and political establishment have not yet recognized indigenous peoples and political leaders as real negotiation partners.154

In February 2009, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) of the ILO expressed concerns that "from the communications [received by the Committee, which have been] drawn up with full participation of the indigenous peoples, ... [Peru's] efforts appear to be isolated and sporadic and at times not in line with the Convention [169] (for example, information meetings being held rather than consultations). There is a lack of participation and consultation for tackling the numerous disputes connected with the exploitation of

Patricia Urteaga, (In)compatibilidad entre las normas de mineria y las normas que reconocen derechos indigenas. El caso de la Cordillera del Condor (Lima: Grupo de trabajo "Racimos de Ungurahui", 2009).

281 resources in lands traditionally occupied by indigenous peoples...". The Committee urged the "[Peruvian] Government to adopt the necessary measures, with the participation and consultation of the indigenous peoples, to ensure ... the participation and consultation of the indigenous peoples in a coordinated and systematic manner".156

Following the events in Bagua, this same Committee expressed its concern that the Peruvian government had repeatedly failed to provide replies to the specific requests for information made by the Committee of Experts, and stressed the government's obligation to establish appropriate and effective mechanisms for consultation and participation of indigenous peoples, which are the cornerstone of the ILO Convention

169. The Committee urged the state to immediately establish a dialogue with Indigenous

Peoples' representatives in a climate of mutual trust and respect, as well as to establish dialogue mechanisms, as required under the Convention, in order to ensure systematic and effective consultation and participation.157

B. Indigenous Land rights

In Peru, surface and subsurface property rights are legally distinct. The state exercises exclusive sovereignly over subsurface resources, while the property that lies above a mineral deposit may be owned privately or by a community. State sovereignty over resources translates into competence to legislate and exercise executive and

155 CEACR: Individual Observation concerning Indigenous and Tribal Peoples Convention, 1989 (No. 169) Peru (ratification: 1994) Published: 2009 online:

156 Ibid.

157 Report of the Committee on the Application of Standards Part two - Observation and Information Concerning Particular Countries, International Labour Conference Provisional Record 98th Session, Geneva, 2009, at 143-144.

282 jurisdictional functions over them. In order to exploit a mineral deposit, a mining company has to gain legal access to the surface property. The 1979 Constitution provided guarantees for communally held property. With few exceptions, campesino and indigenous land was 'inalienable' since the 1920 Constitution, meaning that it could not be transferred to third parties. The Constitution of 1993, however, repealed transfer prohibitions and paved the way for legislation that allowed third-party access to campesino community lands. In 1995, the Fujimori government passed a new land Law

No. 26505 (17/07/95) concerned with land ownership and use, which established indigenous and campesino land rights based on the free exchange of agricultural land on the commercial market. In 1996 the land law was further modified in favour of mining investment. It further provided that communal lands could be sold by a vote of two thirds of registered community members. By treating communal property as marketable and guaranteeing access to third parties, regardless of their nationality, the land law removed protection for campesino land as it was put in place by the Velasco government.

The land law endangered communal property by creating an administrative process called 'mining servitude'.158 Mining servitude is a right of way permitting access to the surface-owner's property for the purposes of mining, expropriating the surface owner's right in exchange for minimal compensation, which affects directly indigenous communities. 159 Through the mining servitude, the state can effectively expropriate the land for the use by companies. The title to property, however, is never transferred to the

15 The Spanish word is servidumbre and can also be translated as the 'right of way'.

159 David Szablowski, "Mining, Displacement, and the World Bank: A Case Analysis of Compania Minera Antamina's Operations in Peru" (2002) 39 Journal of Business Ethics 247.

283 mining company, and in practice, the Ministry of Energy and Mines (MEM) rarely granted mining servitudes to mining companies.160 More often, companies initiated the mining servitude process to put pressure on communities to sell their land. Communities would then tend to sell their territories in belief that they would obtain more gains through a sale then a mining servitude.

Before a mining company can apply for mining servitude, it must try to reach agreement with the owner of the surface property. If no agreement is reached within thirty days, the mining company can initiate the mining servitude process. This time restriction is not sufficient for the community to engage in an informed negotiation. The

MEM then calls a formal meeting to allow for further negotiations. If negotiations fail, the company can be granted time-limited permission to use the surface property, regardless of community opposition. The Ministry decides how much that right is worth and the company pays the community accordingly.161

The process for obtaining mining servitude is not subject to legal provisions governing expropriation. The 1993 Constitution protects the right of land ownership, and guarantees that no one will be deprived of that right, except for reasons of 'national security' or 'public necessity'. However, the General Mining Law categorises mineral extraction as being of 'public utility' and provides that a contract must be negotiated to access third-party property.162 In this case, only a state may initiate an expropriation

160 Szablowski, supra note 143 at 47 Jose de Echave and Victor Torres, Hacia una estimacion de los efectos de la actividad minera en lo sindices depobreza de los departamentso del Peru (Lima: Cooperacion, 2003).

Supreme Decree No. 014-92-EM (04/06/92). process and corresponding compensation payments. As Szablowski describes, the government has chosen to play a more passive role, in order to avoid confrontations that land expropriations would provoke in various parts of the country.163 It has delegated the responsibility and discretion to mining enterprises. By refusing to grant easement applications, the government has encouraged companies to voluntarily enter into negotiations with communities, in order to obtain contracts of sale. As Szablowski argues, "The state then preserves its goal of avoiding direct involvment as much as possible, and thereby limits the risks to its legitimacy among the national public."164 At the same time it provides a powerful resources for the companies that gives them advantage in the negotiation process. The role of the state is not invisible, but merely adjusted in a way that would give more power to the companies. This situation reveals the lack of social contract between indigenous peoples of Peru, where the state does not provide protection of the rights of all of its citizens.

C. Environmental regulation

A number of laws were passed in the 1990s, which modified aspects of Peru's

1990 Codigo del Medio Ambientey los Recursos Naturales (hereinafter, Environment

Code). The 1991 Law for the Growth of Private Investment repealed Article 8 of the

Code, which required the submission of an environmental impact assessment for virtually any private or public activity.165 Since the reforms, fewer environmental impact

163 Szablowski, supra note 143.

164 Ibid. 47.

165 Legislative Decree No. 757(13/11/91).

285 assessments have been required and their submission has been governed by legislation specific to each sector. In addition, Article 56, which allowed for establishment of protected areas by national, regional and local governments, was repealed. At present, only the national government has the power to establish protected areas.

In contrast, the Law to Promote Investment in the Mineral Sector, for example, established Environmental Impact Assessments (EIAs) and Environmental Management and Mitigation Programs (PAMAs). The Regulation for Environmental Protection in

Mining and Metallurgical Activity adopted in 1993 specified that the PAMAs needed to be developed for all operating mining and metallurgical facilities.166 Furthermore, the developer of a project is required to commission and pay for a comprehensive written technical evaluation, called an Environmental Impact Study (EIS), which sets down the project's likely impacts along with proposed measures for impact avoidance and mitigation.167 In Peru, an EIS is required when a mining enterprise seeks to develop a new project, expand mineral production, or facilities of an existing operation by fifty percent. Part of the EIS guidelines is a requirement of mining enterprises to analyse and evaluate the socio-economic environment in addition to the physical and biological environment.168 What constitutes 'social impact' is not clearly defined. The problem stems from the public-private divide, where much of what would fall under 'social

Supreme Decree No. 016-93-EM (01/05/93).

Szablowski, supra note 143 at 49. impact' is considered to be legal responsibility of the government, and not of the private sector.

EIA's provide limited opportunities for public participation.169 Legislation in Peru provides a right to public access to the project's EIS, once it is submitted, as well as a right to participation in a public hearing concerning the EIS prior to its approval. The

MEM is in charge of overseeing the public hearing. As Szablowski argues, the greatest challenge to effective public participation arises from its failure to provide the time, resources, or independent access to technical expertise that could enable participants to engage meaningfully with the project's EIS.17 Specifically, in Peru's EIA regime, the private sector proponents are encouraged to assume self-regulatory authority and create a plan for addressing social issues. In addition, EIA involves a delegation of much of the responsibility and cost to the private sector proponent. It is here argued, however, that despite governmental self-distancing from environmental and social issues, the decision­ making regarding the hierarchy of priorities still takes place at the state-level.

D. Impacts of Canada-Peru Free Trade Agreement on Indigenous Rights and the Environment171

According to the publication of the government of Canada, Peru is an established and growing commercial partner for Canada. Canada's trade in goods with Peru has expanded significantly in the past years and two-way trade totaled $2.8 billion in 2008.

169 Ministerial Resolution No. 728-99-EM/VMM (09/01/2000); Regulation for Consultation and Participation in the EIA Approval Procedure, Ministerial Resolution No. 596-2002-EM/DM(21/12/2002).

170 Szablowski, supra note 143 at 50-51.

171 For a detailed analysis of Canada's participation in global mining and home state obligations for the prevention and remediation of transnational harm see Seek, supra note 7. The value of Canadian merchandise exports to Peru was $390.8 million for 2008, while imports from Peru totaled $2.5 billion for the same year. Canada is a significant foreign direct investor in Peru's mining sector and an overall important source of FDI in Peru, with an estimated $1.8 billion of investment stock in Peru in 2007. The financial services sector is also a destination for Canadian direct investment in Peru. In 2004, Canadian commercial services exports to Peru totalled $46 million. Canada's key services interests in Peru include oil and gas services, mining services, engineering services, architectural services, environmental services, distribution services, financial services and information technology.

On May 29, 2008, Canada and Peru signed a Free Trade Agreement (CPFTA).

This was the second FTA signed by Canada in 2008 and Canada's sixth FTA with countries in the Americas. In addition, the two countries signed an Agreement on the

Environment (AE). The Preamble of the AE recognizes the growing economic, environmental and social links between their countries through the creation of a free trade area.

Under Section I on Environmental Rights and Obligations, the EA recognizes the right of each country to establish its own domestic levels of environmental protection, environmental development policies and priorities, and to adopt or modify its environmental laws. The Commitments under General Provisions require Canada and

Peru to ensure high levels of environmental protection and to continue to strive to develop, improve, and effectively enforce their environmental laws and policies. There is

Agreement on the Environment between Canada and the Republic of Peru online: a non-derogation clause that obligates the countries not to relax their environmental laws in order to encourage trade or investment.

Provisions under Availability of Proceedings and Procedural Standards specify that Canada and Peru shall ensure that judicial, quasi-judicial or administrative proceedings are available to sanction or remedy violations of environmental laws. In addition, "each country is obliged to ensure that appropriate access to enforcement- related judicial, quasi-judicial and administrative proceedings is fair, equitable and transparent." Public Information and Participation provisions commit Canada and Peru to ensure that information regarding environmental laws and policies as well as compliance and enforcement is available to the public. These provisions also commit the countries to ensure that the public can participate in environmental assessment procedures. In addition, they include a provision, which allows any person residing in or established in the territory of either country to submit a written question to either country and to make the questions and responses available to the public. As discussed previously, however, it is not clear what participation exactly entails, and whether it follows the principles of free, prior, and informed consent.

Section II, on Environmental Cooperation of the EA commits Canada and Peru to develop cooperative programs and activities that support the achievement of the objectives and obligations of this Agreement, if resources permit. Section II further outlines Institutional Provisions that will support the implementation of the Environment

Agreement. It specifies that a Committee on the Environment, comprised of governmental representatives from both countries, will be established to review the

289 progress on the implementation of the Environment Agreement. It also commits Canada and Peru to each designates a National Coordinating Officer to serve as the official point of contact for the Environment Agreement. It commits the countries to consider undertaking a major review of this agreement no later than five years after the date of its entry into force with a view to improving its operation and effectiveness. In addition, this section sets out the process and function of the dispute resolution mechanism—a mechanism, which allows the countries to address any matter arising under the

Environment Agreement up to the ministerial level. Finally, there is a federal/provincial clause, which commits Canada to use its best efforts to make this Agreement applicable to as many provinces and territories as possible. As previously argued the environmental assessment processes in both countries already have weaknesses, particularly in relation to indigenous peoples' rights.

Due to the absolute sovereignty of the Peruvian state over subsoil resources,

indigenous peoples have no right to veto any projects in the Amazon territory. The primary objective of the CPFTA has been to facilitate Canadian investment in Peru. In

view of existing environmental regimes in both Canada and Peru, above provisions are not sufficient to provide an effective regulatory system in Peru, which would prevent human rights violations and environmental degradation. More empirical studies

delineating relationships between indigenous peoples, Canadian companies and the

Peruvian state would provide information about effectiveness of environmental

protection as stipulated in the CPFTA.

IV. International and Transnational Framework

290 In order to contextualise the CPFTA in broader transnational and international frameworks, this section briefly looks at the emergence of bilateral trade agreements in the context of global trade. In particular, what is the role of law in the ever-increasing fragmentation of spaces of norm production in the international arena? The challenge of

'transnational law' as a category outside national frontiers, points to the break with the traditional conception of inter-state relationship, pointing to multiple interests, discourses and norm creating sites. Claims used to counter effects of economic globalization as expressed through environmental or human rights discourses and treaties, remain marginal within particular discourses and jurisprudence of institutions such as the GATT or the WTO, or private realms of international financial law. The relationship among those different systems, however, is complex. What then are the linkages if any among these different rule- complexes? And how can they influence each other given the asymmetry between different institutional settings such as the environmental protection regime vs. international trade regulation.173

The 1999 protests in Seattle during the Third Ministerial Conference of the WTO, which Perez describes as a "strange amalgam of trade unionists, environmental groups, human rights campaigners, and resurrected hippies"174 demonstrated the difficulties of dialogue between the global civil society and regulatory instruments of international trade. It was an accumulation of broader struggles emerging out of contradictions of

173 Oran R. Young, International Governance: Protecting the Environment in a Stateless Society (Ithaca: Cornell University Press, 1994); Garrett. Hardin, "The Tragedy of the Commons", in Garrett Hardin and John Baden eds., Managing the Commons (San Francisco: W.H. Freman, 1977).

Perez, supra note 69.

291 globalization, in particular in relation to the conflict emerging out of contentious issues such as trade and environment, labor rights, agriculture, anti- dumping, and extended market access to developing countries. For the protestors, the WTO, as a prominent international economic organization, represented primarily the interests of the most privileged sectors of the global economy. In fact, the focus of many new global legal structures has been the promulgation of economic globalization and a creation of a system free of regulatory barriers.

The influence of these economic interests, however, has been adverse on the civic concerns such as human rights and the environment. 75 The negative effects of operations of TNCs and MNEs in developing countries have been well documented. At the same time, some have argued that liberal trade policies are more conducive to economic development than protectionist policies. Mining operations, for instance, have destroyed the environment, harmed the health of its inhabitants, as well as incited civil conflicts.

The struggle then, as it became manifested in Seattle as well as in subsequent protests that have since continued during annual IMF and World Bank Meetings, G8 summits and so on, appears to be between the anti-globalization movement on the one hand and the undemocratic rule of the WTO and the TNCs and MNEs, on the other.

The environmental critique of the GATT and the WTO, as it unraveled in Seattle and after, consisted of two different components. First, the substantive critique focused on the rules of the new regime, in particular on their impact on the global and local

See, generally, Daniel C. Esty, Greening the GATT (Washington DC: Institute for International Economics, 1994). environment, arguing that the WTO Agreement would generate an uncontrollable process of environmental degradation across the globe.176 Those arguments were based on several important decisions of the GATT and WTO panels, such as the United States-Mexico

Tuna Dolphin dispute, the Shrimp-Turtle case, and the European Union- United States dispute over Hormones Treated Beef}11 On the procedural level, the environmental critique has focused on the institutional lack of democracy of the WTO and the GATT before it.

The multiplicity of discourses on both sides, however, does not allow for an easy resolution of the conflict. There are numerous institutional arenas, which operate alongside the WTO and which have evolved in response to the needs of the global economy. There is no one locus of the norm production, and new actors continue to emerge. The impact of institutions regulating international business, however, has not been limited to the economic domain. Indeed they have had substantial influence on environmental issues (and other civic concerns, such as human rights, indigenous peoples' rights etc.). To what extent the affinity of these global legal structures to economic interests has influenced their responsiveness to ecological and human rights concerns? These regimes are not only state-oriented systems such as the GATT or WTO, but also hybrid and private regimes, including the field of transnational arbitration, the field of international financial law, and so on. Each of these systems has aspirations to global jurisdiction.

176 Perez, supra note 69 at 4. A pluralistic exploration of this conflict exposes inner discourse and "cultural differences" of different systems as well as the intricate conversations that take place among them.178 Of particular importance in this context are the various, and not always transparent, links between the WTO or the IMF and other legal bodies that do not share the same iconic status. Particular contexts, discourses, and inner ethos of each institution, reflect how they view the issue of environmental protection or human rights. This has been observed in some empirical studies that examine different legal domains that are implicated by the trade and environment conflict. The institutional diversity reflects the complex structure of the global economic system, which is governed by multiple systems of law.

In particular, the BFTAs are governed under the disparate regulatory regimes of

GATT Article XXIV, The General Agreement on Trade in Services (GATS) Article V and the Enabling Clause, and the WTO Dispute Settlement Understanding (DSU).179 The

GATT 1994 Understanding on the interpretation of Article XXIV reiterates that regional integration agreements should facilitate trade between the members and not raise barriers to non-members. The Doha Declaration has also launched an effort to clarify the understanding of Article XXIV and the role of Special and Differential treatment in

Ibid, at 9.

294 regional trade agreements.180 The GATS allows for the formation of economic integration that liberalizes trade in services under article XIX.181

In June 2006, agreement was reached on a "Transparency Mechanism for

Regional Trade Agreements (RTAs)", which requires detailed data submissions by parties to bilaterals. The notification format for the RTAs requires that notification of an

RTA by Members should take place as early as possible, in general no later than the parties' ratification of the RTA or any party's decision on the application of the relevant parts of an agreement and before the application of preferential treatment between the parties. The separate 1994 WTO Agreement on Rules of Origin specifies transparency requirements for bilaterals, including a duty to notify the WTO Secretariat of preferential rules of origin.182

The human rights and the environmentalist critique of the GATT has been its pro- trade bias, which Perez names as 'mercantilist ethos.'183 This ethos emerges out of an attempt to balance the equal treatment of states and facilitation of transnational trade. The overreaching purpose of the GATT, the facilitation of free trade, has resulted in

,S0Ibid. at 200-1

181 Under Part IV on Progressive Liberalisation, Article XIX states: "The process of progressive liberalization shall be advanced in each such round through bilateral, plurilateral or multilateral negotiations directed towards increasing the general level of specific commitments undertaken by Members under this Agreement."

182 WTO Agreement on Rules of Origin (1994), Annex 2, Common Declaration with Respect to Preferential Rules of Origin, para 2 states "For the purposes of this Common Declaration, preferential rules of origin shall be defined as those laws, regulations and administrative determinations of general application applied by any Member to determine whether goods qualify for preferential treatment under contractual or autonomous trade regimes leading to the granting of tariff preferences going beyond the application of paragraph 1 of Article I of GATT 1994."

183 Perez, supra note 69 at 51.

295 "cognitive discrimination", whereby GATT's environmental jurisprudence did not allow for the panels to compare the trade and environment effects, while at the same time it developed a more open strategy in the field of anti-dumping and subsidies.184 In the latter the GATT developed a "much more open strategy towards empirical questions."185 The mercantilist ethos has also expressed itself through a narrow reading of the GATT Article

XX, which contains general exceptions to the agreement and a very confined understanding of the GATT's "environmental" responsibility.186

To what extent, however, should environmental questions play a significant role within the GATT considering its overall objectives have focused on "market access"?

The presumably static nature of particular value ranking within an institution seems to have been challenged in the situation of the WTO jurisprudence. The WTO has taken a somewhat different and more open approach in the case similar to Tuna-Dolphin dispute, and the Shrimp-Turtle case. The Appellate Body ruling has created a new legal standard for the trade and environment debate in several ways. It has, for instance, created parity between the environmental exceptions of Article XX and the substantive obligations of the GATT (expressed in Articles II and III); two tiered analysis was introduced, whereby a measure must not only come under one of the particular exceptions listed under Article XX, but also must satisfy the requirements imposed by its mIbid. at 55.

185 Ibid. 51-55.

186 Ibid. 59

187 GATT, on 22 February 1982, BISD 29S/91; GATT, (unadopted), 3 September 1991, BISD 39S/155.

188 WTO, Doc. WT/DS58/AB/R (Appellate Body report). opening clause, which has as its main goal prevention of abuse of the exceptions of

Article XX. Furthermore it noted that the interpretation of Article XX should be guided by the idea of sustainable development, mentioned in the WTO preamble. Also in terms of procedure, amicus briefs were allowed as part of the submission, and hence were more inclusive of third party participation.

Perez describes the Shrimp dispute as a "bold attempt to reconstruct a broader social vision of the WTO". The two reports of the Appellate Body moved away from the mercantilist vision towards a greater sensitivity to environmental issues. Nonetheless, obstacles to an integration of environmental concerns into the WTO continue at the level of both, internal institutional practice, as well as political and economic opposition.

What, however, are the obstacles to linking trade and environment in WTO negotiations?

Particularly important are the legal barriers within the WTO. The negotiation culture of the WTO would have to be transformed enabling various forms of "issue linkage" admitting environmental issues to the negotiation table. There are also inner institutional difficulties, as new responsibilities would have to be imposed on the WTO, which could endanger its legitimacy. Incorporating ecological consideration could expose the law to new types of cultural distortion or blindness. And further, it is the very adversarial nature of the WTO legal process that is at odds with the need for co-operation.

V. Possibilities for human rights protection?

As indicated earlier, proposals for ensuring human rights protection in international trade have considered different options. The debate between managing of different interests in the end tries to reconcile the increasing complexity and tension of

297 rules and principles of international law and the possibility of, or continuation of coherence and systemic integrity of the international legal system. However, the purpose of my inquiry in this dissertation was to primarily focus on the contradictions and tensions within the international legal system, and particularly international human rights system in relation to indigenous peoples. Particular interests have constantly posed a challenge to an image of a general and coherent international law. At the same time, this image was necessary for a creation and imagination of a law among nations and what it should represent.

Can the rules of international trade pose a challenge to human rights norms and principles? As Cassimatis argues,

As part of the international legal system, it is inconceivable (and in all likelihood legally impossible) for the rules and procedures enshrined in, and operating under, the WTO Agreement to be applied in isolation from international obligations such as those enshrined in Article 41 of the Articles of State Responsibility (regarding serious breaches of preemptory norms), due diligence obligations to prevent the violation of particular preemptory norms and obligations not to aid or assist another State that is violating its obligations under the Charter of United Nations.189

In particular, however, the reference is made to universal crimes, such as genocide, war crimes, and crimes against humanity, where non-state entities have obligations, directly, under international law. However, the extent of the liability of non-governmental bodies under customary international law remains uncertain.190 Importantly, states enjoy a wide discretion to restrict trade for a range of purposes including concerns over the violation of

189 Cassimatis, supra note 9 at 434.

Sarah Joseph, Corporations and Transnational Human Rights Litigation (Oxford; Portland, Oregon: Hart Publishing, 2004) at 9.

298 human rights in other States.191 The WTO Agreement's regulation of State discretion to restrict international trade does not preclude the imposition of all human rights related trade measures. The continuing entitlement to take human rights related trade measures under the WTO Agreement is based, in part, on the peremptory character of human rights norms and on the relevance of those peremptory norms to the interpretation of the WTO

Agreement.192 Thus, the WTO Agreement exists within the broader context of general international law, which include international human rights norms. Furthermore, as discussed above, the chapeau to Article XX and the nexus requirement identified by the

Appellate Body in the Shrimp Turtle Case have offered a justification for human rights related trade measures in order to avoid protectionist or other abuse of Article XX.

In international human rights law, only the state generally has duties to secure human rights of individuals within jurisdiction.

The relationship between international responsibility for crimes against humanity and responsibility for systematic and widespread violations of international human rights obligations is of particular importance in this context.193 As illustrated in the case of Peru, this does not manifest on the ground, especially in situations where a segment of the society has been historically marginalized. Duties of states to control private entities within their jurisdiction are affirmed in some treaties. Thus, Article 2(e) on the

Convention on the Elimination of all Forms of Discrimination against Women, as Joseph

191 Cassamitis, supra note 194. argues, can be inferred from the general obligatory provisions of the International

Covenants.1 4 Targeting of non -governmental bodies is indirect in this way.

Responsibility for human rights protection and obligation to enforce those indirect duties continues to rest with national governments.

The International Criminal Court (ICC) has jurisdiction to try only natural persons, not artificial bodies like corporations. Thus "Given the lack of relevant international tribunals, it is not surprising that the most comprehensive judicial discussion of non-governmental liability under customary international law has arisen in national courts, particularly in human rights litigation against corporations under the Alien Tort

Claims Act in the US."195 Cases brought against TNCs in the courts of those TNCs home states, however, have also pointed to the continuation of primacy of state sovereignty in transnational litigation. The main procedural obstacle for transnational human rights and environmental litigation in the US courts has been the doctrine of forum non conveniens

(FNC). Under this doctrine, a US court may dismiss a suit on the grounds that a foreign forum is more convenient site for the litigation. In the case of Canada also, the decision rests on the national courts on whether such cases are admissible.196 The possibility of

Sarah Joseph, Jenny Schultz, and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Commentary and Materials 2" ed., (Oxford University Press, 2004).

195 Joseph, supra note 195 at 9.

196 Ramirez v. Copper Mesa & TSX . Ecuadorian Mountain Villagers sue a Canadian Mining Company and the Toronto Stock Exchange to Demand Social and Environmental Accountability" online: claims in Canada is also based on the international law directly incorporated into domestic law.197

Additional method of looking beyond host state jurisdiction, is the responsibility of the home state of the TNCs and MNCs. Based on nationality and territoriality as preliminary justifications for the exercise of home-state regulation, states can have the capacity to hold their nationals, including both natural and juridical persons under some formulations, accountable for their conduct abroad. The victims could thus seek redress through a civil suit in the enterprise's home state.198 In this regard, Seek has analyzed the

Canadian Government's Standing Committee on Foreign Affairs and International Trade

(SCFAIT), which examined allegations that Canadian mining companies had committed human rights violations in developing countries.1 She also, however, acknowledges the difficulties posed by extraterritorial application of its justiciability. This is a significant obstacle because it depends also on the willingness of the home states to allow for such extraterritorial application, which may constitute an infringement on their sovereignty.

Seek further points out that "a critical question in the extractive industries context is how to address potential problems that might arise in the exercise of concurrent jurisdiction over non-egregious human rights violations."

Joseph, supra note 195 at 19.

198 Sara Seek, "Home State Responsibility and Local Communities: The Case of Global Mining" (2008) 11 YaleH.R. & Dev. L.J. 177

Ibid, at 194. Seck's proposal presupposes willingness on part of both home and host state governments to enforce their claimed jurisdiction and that both individuals and cases subject to host state jurisdiction can be clearly identified. Home states rely on the economic gain from corporations and expansion of markets for their goods and services.

The host state also relies on critical foreign investment. A corporation could relocate to another jurisdiction that does not threaten with possibility of holding them accountable for human rights violations abroad.

I have argued throughout this dissertation that indigenous peoples are already in a position of limited ability to claim and protect their rights, due to their diminished sovereign status. In the case of corporate responsibility for human rights protection, Seek describes that "many matters of concern to local communities impacted by global mining are not violations of international criminal law or matters of universal jurisdiction, but rather concern the realization of indigenous or local community rights."201 Thus, I argue that states would be especially unwilling to give priority to indigenous claims in the debate over universal jurisdiction as means to address international corporate crimes.

This is not to argue that corporations and states have no obligations under general international law. What is clear, however, within both the arena of international human rights and corporate responsibility, much still depends on political willingness of states to protect human rights and environmental concerns. Peruvian governments have willingly chosen to not protect human rights standards in order to attract foreign investment. A

201 ibid. possible solution could be the institutionalization of internationally agreed-upon procedures to deal with corporate crimes.

Thus at the core of debate over the establishment of Norms on the

Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights (the Norms) has been the degree of responsibility of state and non-state actors. While businesses could not be asked to assume the role of states, international human rights law, and in particular the Universal Declaration of Human

Rights provide a common standard for all peoples and all nations, governments, as well as various other organs of society, which includes corporations and other businesses.

Importantly, companies are legal constructs that come to exist by virtue of state action.

David Weissbrodt, has thus argued that legal persons, including companies, have both rights and responsibilities, insofar as non-state actors could be said to have international legal obligations.202 Still, on what ethical grounds should corporate governance and business conduct remain subject to a moral and responsibility regime, and with what ethical language? This is especially relevant if we consider the diversity of economic enterprises. And finally, given the contradictory and debated nature of the universal language of human rights, is it an appropriate language for social responsibility of MNCs and TNCs.?203

202 David Weissbrodt and Maria Kluger, "CURRENT DEVELOPMENT: Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights" (2003) 97 A.J.I.L. 901 at 921

203 Upendra Baxi, The Future of Human Rights 2nd ed. (Oxford; New York: Oxford University Press, 2006) at 300. The UN Norms reflect and restate existing international human rights law, humanitarian law, international labor law, environmental law, anti- corruption law and consumer protection law that already does or should apply to companies' conduct, including legally binding treaties and non-binding guidelines adopted by international organizations such as the ILO Tripartite Declaration of Principles concerning

Multinational Enterprises 4 and Social Policy as well as the OECD Guidelines for

Multinational Enterprises.205 However, the norms are not a treaty and the legal authority of the Norms derives principally from their sources in treaties and customary international law, as a restatement of international legal principles applicable to companies.206 A significant portion of the UN Norms and Commentary devoted to implementation involves monitoring. They call on businesses to conduct internal monitoring and to ensure that monitoring is transparent. This also involves input from relevant stakeholders such as the unions, and having appropriate complaint procedures.

Furthermore, businesses are to engage in periodic assessment and reporting, as well assessing human rights impact of any new projects. 7

ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (MNE Declaration), ILM, vol. 17, 1978,422, 2000 version online:

OECD Guidelines for Multinational Enterprises, ILM, vol. 15, 1976, 967, updated version online: http://www.oecd.org/departmen t/0,2688,en_2649_34889-l-l-l-l-l,00.html.

Carolin F. Hillemanns, "UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regaid to Human Rights" (2003) 4 German Law Journal 1065 at 1078

Ibid, at 1077 Finally, the reasoning for the UN Norms is that TNCs, MNCs and other large business, have acquired a significant amount of power since the trends of globalization started to develop.208 Thus, as Weissbrodt argues, "With this increase in power comes an increase in responsibility."209 The UN Norms could thus bridge a gap in the international human rights system, which already addresses the responsibilities of governments, individuals, and armed opposition groups, but has not yet focused on businesses. In addition, the incentive for the companies to comply with the UN Norms is that the demonstrated compliance with human rights standards enhances a company's bottom line. Due to the voluntary nature the UN Norms, implementation remains a key question in the development and future of the standards.

All of these considerations point to a hierarchy of values in the arena of international trade, where human rights and environmental concerns continue to be allocated to the lower echelon of importance. The reasoning behind such a hierarchy and as developed by Perez, for instance, is that different global regimes are governed by an inner ethos. What the above discussion presents, however, is that the economic rationality is pervasive at the global levels, and facilitated through sovereign states. Hence, even at the domestic level of human rights and environmental protection, the concerns are related to broader patterns of economic globalization.

VI. Conclusion

208 Weissbrodt and Kluger, supra note 207.

305 As Upendra Baxi writes, the new paradigm of trade-related, market -friendly human rights "seeks to demote, even reverse, the notion that universal human rights are designed for the attainment of dignity and well-being of human beings and for enhancing the security and well-being of socially, economically, and civilizationally vulnerable peoples and communities."211 This is not to ignore the capacity of those vulnerable peoples and communities to make claims to justice and defend their own interests.

However, in the global hierarchy of values, as well as power relations, their claims have been met by domestic, international and transnational forces, which "insist upon the promotion and the protection of the collective human rights of global capital, in ways which 'justify' corporate well-being and dignity even when it entails continuing gross and flagrant violation of human rights of actually existing human beings and communities." Through their practices and legal arrangements governments are endorsing multi and transnational corporations with many of the elements of international legal personality required in order to assert their rights against states. Furthermore, bilateral investment treaties and other such highly institutionalized legal forms provide corporations with the legal personality required to sue states directly under international law.

International legal system still remains state-centric, where only states are the subject of law, and individuals and corporations are regarded as objects of law. Their rights or duties are derivative and enforceable only by states. But state alliance with

211 Baxi, supra note 209 at 234.

212 Ibid.

306 corporate interests have allowed for an upgrade in status of corporations increasingly as subjects of international law, which exert great pressures on some, most often developing, states. Under the challenge of transnationalism, the state has not disappeared, but has begun to reflect a fundamental change of social differentiation. Even in the fragmented and heterarchical nature of the international legal system, asymmetrical relationship such as that between human rights and corporate interests, point to a persistence of hierarchies in international law.

Purpose of this chapter was to outline the legal framework in two countries,

Canada and Peru, currently bound under a free trade agreement, and with historical conflicts between the state, and indigenous peoples. It has outlined Canadian regulatory framework with respect to aboriginal rights and title and the environmental assessment.

The Canadian case was counterposed by a discussion of Peruvian legal framework for land ownership and management, as well as the evaluation of social and environmental impacts. Comparison of different legal cultures and histories was beyond the scope of this dissertation. In the Peruvian case, indigenous peoples are not included as active players in the decision-making processes, with detrimental effects on both human rights and ecological concerns. Reasons for such a relationship are complex and mostly outlined in

Chapter V. At the same time, the Peruvian state has worked to facilitate FDI through the free trade agreements, without strong provisions for environmental protection or indigenous peoples' rights. What becomes apparent is the discrepancy between the human rights protection systems at both national and international levels, in particular along side international trade agreements.

307 The last few decades have seen a significant increase in the push towards global economic integration, which has been made possible by the removal of barriers to trade and capital mobility, together with fundamental technological advances and the steadily declining cost of transportation, communications, and computing. The pressure on developing countries to deregulate markets and industries has made it easier for MNEs and TNEs to have greater presence amongst some of the world's most vulnerable communities, among them, indigenous communities, which are usually left without a legal remedy in either the home or the host country. Their attempts to address these problems through international and transnational venues have gained special attention, and it remains to be seen whether these alternate pathways would result in better protection of human rights and environmental concerns.

The influence of state sovereignty has been particularly evident in the inability of transnational litigation to overcome some procedural and substantive obstacles. The state role has undoubtedly undergone a transformation; but its role has increasingly become at least, that of aquiescer in, and more actively, as the facilitator of market practices, at both national and international. Some governments have thus promoted, what Baxi identifies as the onset of "trade-related, market-friendly paradigm of human rights." Human rights standards and norms become part of the diction of managing transaction costs. Namely, "human rights languages, alongside others then stand viewed as 'factors of production.'" Human rights and the environment protection are infinitely

Craig Scott, ed., Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Oxford and Portland: Hart Publishing, 2001). negotiable. The direction of my conclusion is similar to the response Baxi gives "A

normative discourse that moves beyond this consequentialist frame entails some sort of

commitment to egalitarian or rights-oriented notions, under which action or conduct is justified independently of the outcome of one's actions."214 Any such discourse, however,

requires a step beyond the absolutes of particular values and towards an ethic of global justice. Contemporary debate is that of voluntarism and enforcement; how are we to

reach an ethics of constant search for a global ethic, while at the same time retaining

commitment to incessant self-interrogation. I argue that voluntarism is better then

enforcement, but possible only with a different communication—one that would rely not

merely on contestation of value systems, but rooted in an ethic of global justice.

4 Baxi, supra note 123.

309 Conclusion

"Justice, force. It is just that what is just be followed; it is necessary that what is strongest be followed. Justice without force is impotent; force without justice is tyrannical. Justice without force is contradicted, because there are always bad people; force without justice stands accused. So justice and force must be put together; and to do so make what is just, strong and what is strong, just."1

The purpose of this dissertation was to examine the consequences of conflicts among different moral-legal systems and the increasing significance of private regulation on indigenous peoples' claims to the right to self-determination, especially their ownership and management of natural resource extraction in the territories they occupy.

It is a response to the literature, which examines the presence of different moral-legal systems as "fragmentation" or "legal pluralism". The starting point of this observation is the argument that the role of the state has changed, rather then 'disappeared' in so far as the state has become a facilitator of private investment. In this sense, the constitution of the polity has also created boundaries that regulate private interactions. My question narrows in on the conflicts between indigenous claims to self-determination and interests— domestic, international, public, and private— in the use and control of land. The dissertation employs two case studies, Canada and Peru, as examples of the much debated relationships among indigenous peoples, the state, and natural resource extraction.

Furthermore, my concern here is the possibility of sharing in a language at both national and global levels, which would not presuppose a content, an identity, or tradition. Human rights language, as it currently exists at the global level, does not

Blaise Pascal, Pensees et opuscules, Leon Brunsehvieg (Paris: Hachette, 1946) at 470.

310 provide an answer to conflicts among different moral legal systems. On one level, the human rights system itself is mired with ambiguities and inconsistencies, especially in its tension with postcoloniality and as evidenced through the situation of indigenous peoples.

On another level, even the existing human rights standards are not readily acceptable to the global economic community, which governs itself through the rules of economic rationality.

I. Indigenous peoples and the sovereign in international law

The question of the role of the state in capacitating and balancing law and policy in relation to the human rights and environmental protection has led my argument to a discussion of the trajectory of the sovereign in international law and the positioning of indigenous peoples as conquered nations. The dissertation outlined different levels of governance and law making in relation to indigenous rights. It focused on the role of the sovereign in balancing the interests of human rights, environmental protection, and transnational corporations. While some scholars emphasize the increasing role of direct negotiations between corporations and indigenous communities, it is here argued that legal regimes at state, international, and transnational levels work in ways that asymmetrically favour international and transnational trade and investment over human rights and environmental protection. This argument is based on the respective weaknesses and strengths of the international human rights regime, as well as the international and bilateral trade and investment regimes.

In order to challenge what I see as a value hierarchy in the current global system, where priority is given to interests of economic gain, I offer a critique of absolute

311 principles and expose the disposition of the origin, syncretism, conflict, and pluralism of international law and the sovereign. The continuous experiences of conflict among plural interests remain as an opposition to the abstract myth of the unitary sovereign or origins of law. Recognition of the continuously fragmented world requires an understanding that no knowledge is complete. Such understanding depends on a process of continuous self- reflexivity instead of the myth of the absolute or assumptions of a complete understanding of human nature and practical reason. Plurality does not imply an endless relativism; rather, it recognizes different agents and their interests. Thus, indigenous peoples' claims to self-determination provide a challenge to competing claims to

sovereignty by nation states, as well as transnational corporate interests. The complexity arises in the competing arenas of regulation, democratic legitimacy and social responsibility, as private actors are increasingly occupying regulatory spaces, which

traditionally were the sole purview of states.

The doctrine of state sovereignty still holds primacy in international law. The UN

Declaration on the Rights of Indigenous Peoples affirms the inviolability of the doctrine

of state sovereignty, while simultaneously affirming indigenous rights. Indigenous

peoples' situation before international law thus points to the duality of international law.

Their sovereignty is diminished through the affirmation of the doctrine of sovereignty

that came to be through colonial processes, as well as through the simultaneous

recognition of their rights in the international human rights system. Human rights, in their

natural law tradition, claim universality for all, allowing indigenous peoples to use the

international legal system in order to claim protection of their rights

312 Thus, the purpose of the first chapter was to look at the concept of community as an imagined totality represented through 1) sovereignty and the nation, 2) international community of sovereign nations, or 3) transnational communities representing corporate interests. It deconstructs the narrative of law's foundation and sovereign decision at the time of colonization by counterposing the juridical, historical and theological literature of

Francisco de Vitoria, and Andean author Felipe Waman Poma de Ayala, with their respective versions of the Spanish conquest history and reliance on natural law. I use the writings of Waman Poma in order to point to the pluralities that have existed at both local and international levels at the moment where new colonial sovereigns became established. The attempts at sovereignty's unity ensue from the necessity to overcome these pluralities, which continued to seek (re) negotiation of the terms of sovereign existence. Sovereignly is also an aspiration to manage its existing pluralities.

The second chapter observes the evolution of the principle and right to self- determination in international law and centers on the contemporary sovereignty claims of indigenous peoples. The relationship between indigenous peoples and the state— especially the extent of state duties and obligations to protect indigenous rights, as well as the protection of indigenous rights in the international human rights regime— reveals the relative weakness and lack of enforcement procedures.

Indigenous peoples' claims to self-determination indicate a claim to ownership and interest in management of their lands and territories. Thus, the third chapter discusses the principles of indigenous peoples' permanent sovereignty over natural resources and free, prior, and informed consent (FPIC), as well as the complaint procedures for the

313 U.N. Human Rights Committee and Individual Communications under the Optional

Protocol to the ICCPR; the Inter-American System and; complaint procedures connected to ILO Conventions. Indigenous peoples diminished sovereignty in relation to states becomes apparent in their lack of veto rights in relation to activities of multinational companies and free trade agreements. Furthermore, any involvement of the international human rights community on behalf of indigenous peoples is tempered by the continuous presumption of noninterference in domestic affairs and the doctrine of state sovereignty.

Within remedial procedures in some of the international human rights instruments, there is a general lack of implementation procedures in remedies in response to violations of indigenous peoples' human rights, which have been countered by lack of political will by some of the states concerned. Part of the complexity of these conflicts also lies in the continuing ambiguity of the definition, content, and scope of human rights in international law. The international human rights system has recognized individuals and other non-state entities as subjects who would be able to assert their rights before international law in their own capacity. Different human rights bodies have capacities to monitor national governments' respect of human rights and investigate claims of violations of indigenous rights. Private agents, such as transnational corporations, frequently have continued to violate the interests protected by constitutional and human rights. The enforcing mechanisms of the international human rights bodies have been limited by, among other reasons, the primacy of the doctrine of territorial integrity; the enforceability and applicability of human rights norms to non-state actors; or conflicts between the rules of non-intervention and those of state responsibility.

314 The objective of this exposition was to understand the relationship between indigenous peoples, international law, and sovereign states. In this way, the thesis sets up the context for specific cases of domestic regulation in the areas of indigenous rights. I argue that the links between the state and private firms (in particular MNCs and TNCs) need to be understood in any analysis of current conflicts between indigenous peoples, extractive industries, and states. Furthermore, debates about corporate social responsibility and corporate governance, in the context of indigenous rights, require a deliberation of the context in which they are operating. Namely, my argument establishes first the context of marginalization and the racialised positioning of indigenous peoples in international law, which weakens their negotiation and veto capacities in relation to corporate actors.

II. Nature of state policies and legislation in relation to indigenous rights

Through the two case studies, this dissertation provides a review of the nature of state policies and legislation in relation to indigenous rights, especially their ownership and management of lands and resources. It centers on the question of democratic legitimacy and transparency in different legal orderings that have a direct bearing on the form of human rights and environmental protection, on the one hand, and the protection of transnational companies, on the other. As Braithwaite and Drahos argue, transparency is the "emergent property of globalization, a meta-principle in the sense of revealing the operation of all other principles."2 With this in mind, I argue that while legislation in relation to indigenous peoples has made some steps in the direction of transparency,

2 John Braithwaite and Peter Drahos, Global Business Regulation (Cambridge: Cambridge University Press, 2000) at 29

315 previous consultation and assessment, it does not favour or prioritise indigenous rights and environmental protection.

Thus, the fourth chapter of the dissertation looks at the cases of domestic legislation surrounding indigenous land rights in Peru and Canada. It sets out a framework within which we can better understand the conflict of interests between indigenous peoples, state and corporate actors, as well as the mixture of public and private regulation regimes. The colonial settlements have been accepted as fait accompli, thus diminishing indigenous rights and title. Despite general development in internal law in the sphere of indigenous rights, the system continues to center on the primacy of state sovereignty. Hence, the burden is on indigenous peoples to reconcile with the existing situation of diminished sovereignty and contingent rights.

The fifth chapter examines questions concerning the nature and parameters of the human, as regulated through state, private, and corporate interests. It addresses the processes of consultation with indigenous communities and environmental assessments first in Canada, and then Peru, in relation to development and extractive projects. Peru is discussed in the context of North-South relations through the Canada-Peru Free Trade

Agreement. This analysis indicates that the regulation of private actors, such as private corporations, is a product of the delegation of state power to private actors. It also presents the lack of emphasis on human rights and environmental issues in the free trade agreements and global initiatives for greater corporate social responsibility.

At international, transnational, and domestic levels, both states and private companies have opposed indigenous peoples' claims to ownership and management of

316 lands and resources. Legal and policy proposals thus depend on the nexus of relationships between international law, states, international financial institutions, and TNCs and

MNCs. As the increase in violent conflicts at the local level show, the public-private collaboration at different corners of this nexus have neither afforded adequate protection of the environment nor advanced the rights of indigenous peoples. The collusion between the state and TNCs and MNCs ensures fewer restriction on their extraction activities at the expense of human rights and the environment. In particular, countries such as Peru have weaker policies and legal frameworks that would ensure human rights protection, especially in the context of pre-existing racial and socio-economic marginalization of indigenous peoples.

III. Possibilities of the reconciliation of interests

Taking into account the complexities of different relationships and interests at the local level, as well as broader conflicts among moral-legal value systems, I propose a fragmentary approach to the conflict of human rights versus the corporate interests that would engage in incessant self-reflection. The now universal model of economic reasoning assumes a complete understanding of human nature and practical reason. The act of recognizing conflict and violence in itself provides a critique of the absolute in its manifest forms. This is a normative claim. I do not argue for specific policy changes because the presumption undergirding this thesis is that the current legal and policy orientation in the area of human rights or environmental protection is compromised by absolute values as they are manifested in the primacy of juridicocommercial nexus of sovereign states and economic reasoning.

317 In search for the possibility of any reconciliation of interests among different actors, I have questioned the intent and purpose for reconciliation. For instance, the existing reconciliation discourses in Peru and Canada have sought the achievement of democratic legitimacy, nation-state building, as well as the assimilation of indigenous peoples. In contrast, indigenous peoples have argued that true reconciliation will only follow the recognition of and respect for their self-determination. In the context of colonial societies, the present question of living together involves and demands a type of

(re) conciliation, not only as harmony among different cultures, ethnicities, and races, but also in terms of the continuous negotiation of interests— which are multiple and often related to ownership and control of territory and economic resources. I argue that indigenous interests still remain marginalized over the interests of state sovereignty and what is understood as economic development. In the process, violence against indigenous peoples, as exemplified in the Peruvian case, has become allowed, accompanied with precepts of liberalism, civilization, and rationality.

However, democratic legitimacy requires a process of consultation and balancing.

Rights and interests are competitive regardless of whether the outcome is utilitarian or protectionist in its relationship to the environment. Consent has implications for a social contract, and its legitimacy as a democratic society, instead of a de facto imposition.

Lack of consultation with indigenous peoples over the issue of how resources are utilized questions the legitimacy of the decision-making processes, which is why this has been a theme in the area of corporate social responsibility.

318 Immediate concerns arise from the increase in conflicts involving indigenous peoples, the state, and corporations. Indigenous peoples' human rights claims stem from their interests in preserving their lands and livelihoods and thus seeking an appropriate language through which they can challenge natural resource ownership at national, transnational, and international levels. At the same time, the appropriation of global resources through the logic of 'capital' has opened up all borders and facilitated accumulation of profit. Meaningful political and economic self-determination of indigenous peoples requires that they also have legal authority to exercise control over their lands and territories. A process of delicate balancing and communication however happens within diverse frameworks of natural resource management and concepts of the ownership of nature.

I argue thus that potential changes to current law and policy will stem from the experiences and outcomes of those conflicts. At the same time, we have the nexus of public and private regulation at national, international and transnational levels, which have an ambiguous relationship to human rights and environmental concerns. There are unanswered questions regarding the relationship of private corporations to public law and their obligations, and whether private regulation that does not take place through the state

(such as the various treaty obligations) has better results in the arena of human rights protection and environmental concerns.

319 As Niklas Luhmann has observed, norms are "valid until further notice."3 Nothing in the processes described in this dissertation is deterministic or teleological; neither does it include an assurance for preservation. Thus, the primary contribution of this dissertation is to describe different arenas of the conflict, and delineate the asymmetries in protection of human rights and the environment on the one hand, and interests of international and transnational trade and investment, on the other. It emphasizes the role of the sovereign in these processes and the difficulty in asserting indigenous peoples' interests, due to their diminished sovereign status at domestic and international levels.

My project was to map the different domains of and the obstacles to the furtherance of indigenous peoples' interests. Significantly, I wish to avoid any absolutist delineation of particular situations.

Conflicts over the ownership, management, exploitation, and sharing of lands and natural resources at local and global scales, as well as questions of mutual obligation and co-existence, require a language for voicing grievances. The right to life is constantly being renegotiated, as human rights abuses persist together with environmental degradation. Hence, the basic human right, as a property of a human being, remains contingent. Also in question is the existence of democratic and transparent processes at levels of domestic, international, and transnational governance that can address and enforce human rights and environmental protection regimes.

Niklas Luhmann, Law as a Social System, trans, by Klaus Ziegert, ed. by Fatime Kastner et al.(Oxford: Oxford University Press, 2004) at 47. What we witness is the continuous dehumanization of indigenous peoples. The violence against those not deemed as sufficiently human thus also extends to the non- human environment. This, as I argue, is inconsistent with the concerns with transparency and legitimacy at different governance levels. Or, as Derrida puts it: "So, here we have the human race divided into herds of cattle, each one with its chief who keeps it in order to devour it."4 I assert that an act of recognition of conflict and violence in itself provides a critique of the absolute in its manifest forms.

4 Jacques Derrida, The Beast and the Sovereign, Volume I, trans, by Geoffrey Bennington (University of Chicago Press, 2009) at 12.

321 BIBLIOGRAPHY

1. BOOKS

Adorno, Rolena. Guaman Poma: writing and resistance in colonial Peru (University of Texas Press, Austin/Institute of Latin American Studies, 2000). Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1998). Agamben, Giorgio. Remnants of Auschwitz (New York: Zone Books, 2002).

Alston, Philip, ed. Non-state actors and human rights (Oxford; New York: Oxford University Press, 2005). Anaya, James. Indigenous Peoples and International Law 2nd Ed., (Oxford University Press, 2004). Anghie, Anthony. Imperialism, sovereignty and the making of international law (Cambridge, UK; New York, NY: Cambridge University Press, 2004). Aquinas, Thomas. Summa theologiae: question on God, ed by Brian Davies and Brian Leftow (Cambridge; New York: Cambridge University Press, 2006). Aquinas, Thomas. On the truth of the Catholic faith. Summa contra Gentiles trans, by Anton C. Pegis (Garden City,N.Y:Hanover House,1955). Arendt, Hannah. The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1973). Aristotle, The Politics, trans, by Carnes Lord (The University of Chicago Press, 1984).

Austin, John. The Province of Jurisprudence Determined (New York: Noonday Press, 1954). Ayala, Felipe Guaman (Waman Puma) de El primer nueva coronicay buen gobierno edition critica de John V. Murra y Rolena Adorno ; traducciones y analisis textual del quechua por Jorge L. Urioste (Mexico, D.F. : Siglo Veintiuno, 1980). Bauman, Zygmunt. Modernity and the Holocaust (Ithaca, N.Y.: Cornell University Press, 2000). Braithwaite, John and Peter Drahos, Global Business Regulation (Cambridge: Cambridge University Press, 2000). Brownlie, Ian. Principles of Public International Law (Oxford; New York : Oxford University Press, 2008). Byers, Michael. Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge, Cambridge University Press, 1999). Bataille, Georges. Literature and Evil, trans, by Alastair Hamilton (London: Calder & Boyars, 1973). Blanchot, Maurice. The Step Not Beyond, trans, by Lycette Nelson (Albany: State University of New York Press, 1992). Basadre, Jorge. Meditaciones sobre eldestino historico del Peru (Lima: Huascaran, 1947).

322 Baxi, Upendra. The Future of Human Rights 2n ed. (Oxford; New York: Oxford University Press, 2006).

Boyd, David R. Unnatural Law: Rethinking Canadian environmental law and policy (Vancouver: UBC Press, 2003). (M.A. Thesis, Simon Fraser University, Department of Geography, 2005). Cadena, Marisol. Indigenous Mestizos. The Politics of Race and Culture in Cuzco, Peru, 1919-1991 (Durham and London: Duke University Press, 2000). Cameron, Maxwell. Democracy and Authoritarianism in Peru: Political Coalitions and Social Change (Hamphsire: Palgrave Macmillan, 1994). Cassimatis, Anthony. Human Rights Related Trade Measures under International Law (Leiden; Boston: Martinus Nijhoff Publishers, 2007). Cassese, Antonio. Self-determination of peoples, A legal reappraisal (Cambridge: Cambridge University Press, 1995). Castro, Daniel. Another Face of Empire (Durham and London: Duke University Press, 2007). Chakrabarty, Dipesh. Provincializing Europe : postcolonial thought and historical difference (Princeton, N.J. : Princeton University Press, 2000). Chatterjee, Partha. The Nation and Its Fragments: Colonial and Post-colonial Histories (Princeton, New Jersey: Princeton University Press, 1993). Clavero, Bartolome. La destruccion de las Indias, ayery hoy (Madrid: Marcial Pons, 2002) Crawford, James. The Creation of States in International Law, 2n ed. (Oxford: Oxford University Press, 2006). Cutler, Claire A., Private power and global authority: transnational merchant law in the global political economy (Cambridge, UK; New York: Cambridge University Press, 2003). Darian-Smith, Eve and Peter Fitzpatrick, "Laws of the Postcolonial: An Insistent Introduction", in Eve Darian-Smith and Peter Fitzpatrick eds., Laws of the Postcolonial (Ann Arbor: University of Michigan Press, 1999). Davenport, Frances Gardiner. European Treaties bearing on the History of the United States and its Dependencies to 1648, Vol. 1 (Washington, D.C.: Carnegie Institution of Washington 1917). Derrida, Jacques. Writing and Difference, trans, by Alan Bass (Chicago: University of Chicago Press, 1978). Derrida, Jacques. 'Before the Law', trans, by Avital Ronell in Jacques Derrida, Acts of Literature (New York: Routledge, 1992). Derrida, Jacques. Politics of Friendship, trans, by George Collins (London and New York: Verso, 1997). Derrida, Jacques. On cosmopolitanism and forgiveness, trans, by Mark Dooley and Michael Hughes (London; New York: Routledge, 2001). Derrida, Jacques. Without Alibi, trans, by Peggy Kamuf (Stanford: Stanford University Press, 2002). Derrida, Jacques. Rogues: Two Essays on Reason, trans, by Pascale-Anne Brault and Michael Naas (Stanford: Stanford University Press, 2005). Derrida, Jacques. Psyche: Inventions of the Other, Volume I, ed. by Peggy Kamuf and Elizabeth Rottenberg (Stanford University Press, 2007). Derrida, Jacques. The Beast and the Sovereign, Volume I, trans, by Geoffrey Bennington (University of Chicago Press, 2009). Dobyns, Henry and Paul Doughty, Peru: A Cultural History (New York: Oxford University Press, 1976). Douzinas, Costas. The end of human rights (Oxford: Hart Publishing, 2000).

Duran, Bonnie and Eduardo Duran, "Applied Postcolonial Clinical and Research Strategies" in Marie Battiste ed., Reclaiming Indigenous Voice and Vision (UBC Press, 2000). Echave, Jose de and Victor Torres, Hacia una estimacion de los efectos de la actividad minera en lo sindices depobreza de los departamentso del Peru (Lima: Cooperacion, 2003). Esty, Daniel C. Greening the GATT (Washington DC: Institute for International Economics, 1994). Fanon, Frantz. The wretched of the earth, trans, by Richard Philcox (New York: Grove Press, 2004). Fitzpatrick, Peter. Modernism and the Grounds of Law (Cambridge ; New York : Cambridge University Press, 2001). Foucault, Michel. Power/Knowledge: Selected Interviews and Other Writings, 1972- 1977, trans. C. Gordon et al. (Brighton: Harvester, 1980). Foucault, Michel. The History of Sexuality, Vol. 1: An Introduction, trans, by Robert Hurley (Harmondsworth: Penguin, 1981). Foucault, Michel. Ilfaut defendre la societe:Cours au College de France, 1975- 7P7(5(Paris: Seuil, 1997). Franck, Thomas. The Power of Legitimacy among Nations (Oxford: Oxford University Press, 1990). Franck, Thomas. Fairness in International Law and Institutions (Oxford: Oxford University Press, 1995). Furtado, Celso. Economic Development of Latin America: Historical Background and Contemporary Problems, 2ne ed. (Cambridge: Cambridge University Press, 1978). Gadamer, Hans Georg. Dialogue and Deconstruction: The Gadamer-Derrida Encounter, ed. by Diane P. Michelfelder and Richard E. Palmer (Albany, NY: SUNY Press, 1989). Galbraith, Lindsay. Understanding the Need for Supraregulatory Agreements in Environmental Assessment: An Evaluation from the Northwest Territories, Canada. Galeano, Eduardo. Memory of Fire, I. Genesis (New York: Pantheon Books, 1985).

Garcia, Maria Elena. Making Indigenous Citizens: Identities, Education, and Multicultural Development in Peru (Stanford University Press, 2005). Giddens, Anthony. The Consequences of Modernity (Stanford: Stanford University Press, 1990). Green, Leslie C. and Olive Dickason, The Law of Nations and the New World (Edmonton: University of Alberta Press 1989). Gross Espiell, Hector. "Self-Determination and Jus Cogens," in Antonio Cassese ed. U.N. Law/Fundamental Rights: Two Topics in International Law (Alpena an den Rijn: Sijthoff&Noordhoff, 1979). Habermas, Jiirgen. The Theory of Communicative Action. Vol. 1, Reason and the Rationalization of Society, trans, by Thomas McCarthy (Boston : Beacon Press, 1984). Habermas, Jiirgen. The Philosophical Discourse of Modernity: Twelve Lectures, trans, by Frederick G. Lawrence (Cambridge: MIT Press, 1987). Hall, Peter A. and David W. Soskice, Varieties of Capitalism: the Institutional Foundations of Comparative Advantage (Oxford, New York: Oxford University Press, 2001 Hannum, Hurst. Autonomy, Sovereignty and Self-Determination (Philadelphia: University of Pennsylvania Press, 1996). Hanke, Lewis. All Makind is One: A Study of the Disputation Between Bartolome de Las Casas and Juan Gines de Sepulveda in 1550 on the Intellectual and Religious Capacity of the American Indians (Dekalb: Northern Illinois University Press 1974).

Hardin, Garrett. "The Tragedy of the Commons", in Garrett Hardin and John Baden eds., Managing the Commons (San Francisco: W.H. Freman, 1977). Hart, H.L.A. The Concept of Law (Oxford: Clarendon Press, 1994).

Held, David. Anthony McGrew, Global Transformations: Politics, Economics and Culture (Oxford: Polity Press, 1999). Higgins, Rosalyn. The Development of International Law through the Political Organs of the UN, (London: Oxford University Press, 1964). Hitch, Michael. Impact and Benefit Agreements and the Political Economy of Mineral Development in Nunavut (Ph.D. Dissertation, University of Waterloo, Department Geography, 2006). Hobbes, Thomas. Leviathan, ed. by Curley, Edwin (Indianapolis, IN: Hackett Publishing Company, Inc., 1994). Hobbes, Thomas. On the Citizen, ed. by, trans, by Richard Tuck and Michael Siverthorne (Cambridge: Cambridge University Press, 1998). Hobbes, Thomas. The Elements of Law, Natural and Politic, ed. by J.C. A. Gaskin (Oxford, 2008). Jessup, Philip. Transnational Law (London: Geoffrey Cumberlege, Oxford Universty Press, 1956). Joseph, Sarah. Corporations and Transnational Human Rights Litigation (Oxford; Portland, Oregon: Hart Publishing, 2004).

325 Joseph, Sarah, Jenny Schultz, and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Commentary and Materials 2" ed., (Oxford University Press, 2004). Klaren, Peter Flindell. Peru. Society and Nationhood in the Andes (New York, Oxford: Oxford University Press, 2000). Lacan, Jacques. Le seminaire. LivreXVII: L'envers de lapsychanalyse, 1969-1970, trans. by Jacques Alain Miller (Paris: Seuil, 1991). Lacan, Jacques. The four fundamental concepts of psychoanalysis, ed. by Jacques-Alain Miller, trans, by Alan Sheridan (New York: W. W. Norton, 1998).

Levi, Primo. If This Is a Man/The Truce, trans, by S Woolf, (London: Vintage, 1979).

Levinas, Emmanuel. Totality and infinity: an essay on exteriority, trans, by Alphonso Lingis (The Hague; Boston: M. Nijhoff Publishers, 1979). Lindley, Mark F. The Acquisition and Government of Backward Territory in International Law (London and New York: Longmans Green, 1926). Luhmann, Niklas. Law as a Social System, trans, by Klaus Ziegert, ed. by Fatime Kastner et al.(Oxford: Oxford University Press, 2004). Mander, Jerry and Victoria Tauli-Corpuz eds., Paradigm wars : indigenous peoples' resistance to economic globalization: a special report of the International Forum on Globalization, Committee on Indigenous Peoples (San Francisco, Calif. : International Forum on Globalization, 2005). Mangus, Martin, ed., La escuela de Salamanca y el Derecho Internacional en America (Salamanca: Consejo Social de la Universidad de Salamanca, 1993). Mills, Dawn Patricia Reconciliation: Gitxsan Property and Crown Sovereignty (Ph.D. Thesis, University of British Columbia, 2005). Muchlinsky, Peter. Multinational Enterprises and the Law 2nd ed., (Oxford; New York: Oxford University Press 2007). Musgrave, Thomas D., Self Determination and National Minorities (Oxford: Oxford University Press, 1997). Nancy, Jean-Luc. The inoperative community, ed. by, trans, by Peter Connor, Lisa Garbus, Michael Holland, and Simona Sawhney (Minneapolis: University of Minnesota Press, 1991). Nancy, Jean Luc. The Birth to Presence (California: Stanford University Press, 1993).

Nancy, Jean Luc. The Sense of the World, trans, by Jeffrey S. Librett (London, Minneapolis: University of Minnesota Press, 1993). Nancy, Jean-Luc. Being singular-plural, trans, by Robert Richardson and Anne E. O'Byrne (Stanford: Stanford University Press, 2000). Nancy, Jean-Luc. The creation of the world or globalization, trans, by Francois Raffoul and David Pettigrew (Albany: State University of New York Press, 2007). Newman, Dwight G. The duty to consult: new relationships with Aboriginal peoples (Saskatoon: Purich Pub., 2009). Nussbaum, Arthur. A Concise History of the Law of Nations (New York, 1954). Kirgis, Frederic. International Organisations in their Legal Setting. 2" ed., (St. Paul, Minn.: West Publishing 1993). Knop, Karen. Diversity and Self-Determination in International Law (Cambridge: Cambridge University Press, 2002). Koskenniemi, Martti. From apology to Utopia : the structure of international legal argument (Helsinki: Finnish Lawyers' Publishing Company, 1989). Koskenniemi, Martti. The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge: Cambridge University Press, 2001). Oppenheim, Lassa F.L., International Law 3r ed., ed. by Ronald F. Roxburgh (London and New York: Longmans, 1920). Orford, Anne. Reading Humanitarian Intervention in International Law, Human Rights and the Use of Force in International Law (Cambridge, Cambridge University Press, 2003). Pascal, Blaise Pensees et opuscules, ed. by Leon Brunsehvieg (Paris: Hachette, 1946).

Passmore, John. Man's Responsibility for Nature (London: Duckworth, 1980).

Perez Luno, Antonio E., La polemica sobre elNuevo Mundo-Los clasicos espanoles en la Filosofia del Derecho, 2nd ed., (Madrid: Editorial Trotta, 1995). Perez, Oren. Ecological Sensitivity and Global Legal Pluralism: Rethinking the Trade and Environment Conflict (Oxford and Portland Oregon: Hart Publishing, 2004). Petersmann, Ernst-Urlich. International and European Trade and Environmental Law After the Uruguay Round (London: Kluwer Law International, 1995). Quijano, Anibal. Dominacion y cultura : Lo choloy el conflicto cultural en el Peru (Lima, Peru : Mosca Azul Editores, 1980). Quijano, Anibal. Modernidad, Identidady Utopia en America Latina (Lima: Ediciones Sociedad y Politica,1988). Rajagopal, Balakrishnan. International Law from Below: Development, Social Movements and Third World Resistance (Cambridge, New York: Cambridge University Press, 2003). Rawls, John. A Theory of Justice, 2nd Edition (Cambridge, MA: Harvard University Press, 1999). Regan, Tom and Peter Singer, eds. Animal Rights and Human Obligations (Englewood Cliffs, NJ: Prentice Hall, 1989). Rosenbaum, Alan S. ed., The Philosophy of Human Rights: International Perspectives (Westport, Conn.: Greenwood Press, 1980). Rousseau, Jean Jacques. The Social Contract, trans, by Maurice Cranston (London: Penguin, 1968). Sassen, Saskia. Losing Control? Sovereignty in an Age of Globalization (New York : Columbia University Press, 1996). Scott, Craig, ed., Torture as Tort: Comparative Perspectiveson the Development of Transnational Human Rights Litigation (Oxford and Portland: Hart Publishing, 2001). Schmitt, Carl. Political Theology: Four Chapters on the Concept of Sovereignty (Cambridge, Massachusetts, MIT Press, 1985 [1921]). Schmitt, Carl. The concept of the political, trans, by George Schwab (Chicago : University of Chicago Press, 2007). Schneider, Eric D. and James J. Kay, "Life as a manifestation of the second law of thermodynamics" Preprint from Advances in Mathematics and Computers in Medicine (Waterloo, University of Waterloo Faculty of Environmental Studies Working Paper Series, 1994). Seek, Sara. Home State Obligations for the Prevention and Remediation of Transnational Harm: Canada, Global Mining and Local Communities (PhD Thesis Toronto, Ontario: Osgoode Hall Law School, York University, 2007). Shelton, Dinah. Remedies in International Human Rights Law (New York: Oxford University Press, 1991). Sivirichi, Atilio. Derecho Indigena Peruano. Projecto de Codigo Indigena (Lima, Peru: Ediciones Kuntur,1946). Sousa Santos, Boaventura de. Toward a New Common Sense: Law Science and Politics in the Paradigmatic Transition (New York: Routledge,1995). Sousa Santos, Boaventura de. Toward a New Legal Common Sense: Law, Globalization and Emancipation (London : Butterworths LexisNexis, 2002). Strauss, Leo. On Tyranny: Including the Strauss -Kojeve Correspondence, ed. by Victor Gourevitch and Michael S. Roth, (Chicago: University of Chicago Press, 2000). Stavenhagen, Rodolfo. The Ethnic Question: Conflicts, Development, and Human Rights, (Tokyo: United Nations University Press, 1990). Szablowski, David Transnational Law and Local Struggles: Mining, Communities, and the World Bank (Oxford and Portland, Oregon: Hart Publishing, 2007). Teubner, Gunther ed., Juridification of social spheres: a comparative analysis in the areas of labor, corporate, antitrust and social welfare law (New York: De Gruyter, 1987). The Republic of Plato, trans, by Allan Bloom (New York: Basic books 1991).

Thornberry, Patrick. Indigenous Peoples and Human Rights (Manchester University Press, 2002). Ulloa, Astrid. The Ecological Native: Indigenous Peoples' Movements andEco- Governmentality in Columbia (New York: Routledge, 2005). Urteaga, Patricia. (In)compatibilidad entre las normas de mineriay las normas que reconocen derechos indigenas. El caso de la Cordillera del Condor (Lima: Grupo de trabajo "Racimos de Ungurahui", 2009). Vattel, Emmerich de. The Law of Nations, or the Principles of Natural Law, trans., by Charles G. Fenwick (Classics of International Law Series, 1916). Vitoria, Francisco de. Political Writings ed. by Anthony Pagden and Jeremy Lawrence (Cambridge: Cambridge University Press). Westlake, John. Chapters on the Principles of International Law (Cambridge: Cambridge University Press, 1894). Williams, Robert A. Jr., The American Indian in Western Legal Thought: The Discourse of Conquest (New York: Oxford University Press, 1990). Young, Oran R. International Governance: Protecting the Environment in a Stateless Society (Ithaca: Cornell University Press, 1994).

2. ARTICLES AND REPORTS

Affolder, Natasha. "The Private Life of Environmental Treaties" (2009) 103 AJIL510.

Anaya, James ."Self-Determination as a Collective Human Right under Contemporary International Law" in Pekka Aikio and Martin Scheinin eds., Operationalizing the Right of Indigenous Peoples to Self-Determination (Turku: Institute for Human Rights Abo Akademi University, 2002). Anghie, Antony. "Francisco De Vittoria and the Colonial Origins of International Law" (1996) 5 Soc. &Leg. St. 321. Arthurs, Harry W. "Constirutionalizing Neo-Conservatism and Regional Economic Integration: TINA x2" in Thomas J. Courchene ed., Room to Manoeuvre? Globalization and Policy Convergence (Kingston: John Deutsch Institute for the Study of Economic Policy, Queen's University, 1999). Arthurs, Harry. "The Re-constitution of the Public Domain" in Daniel Drache ed., The Market or the Public Domain? Global Governance and the Asymmetry of Power (London: Routledge, 2001). Berman, Nathaniel. "But the alternative is despair': European Nationalism and the Modernist Renewal of International Law"(1993) 106 Harv. L. Rev. 1792. Borrows, John. "Sovereignty's Alchemy: An Analysis of Delgamuukw v. British Columbia (1999) 37 Osgoode Hall Law Journal 3. Chinkin, Christine. "State Responsibility: A Critique of the Public/Private Dimension", (1999) 10EJIL387. Christie, Gordon. "Aboriginal Resource Rights After Delgamuukw and Marshall", in Kerry Wilkins ed., Advancing Aboriginal Claims (Saskatoon: Purich Publishing, 2004). Chuecas Cabrera, Adda. "El Derecho de los Pueblos Indigenas y Comunidades ne el Contexto Historico del Peru" Centro Amazonuco de Antropologia y Aplicacion Practica (CAAP) Numero 35, Enero 2009 online: www.caaap.org.pe Cirkovic, Elena."Human Rights and Scale: An Assessment of the Human Rights Movement in Peru" (Annual Congress of the Canadian Association for Latin American and Caribbean Studies (CALACS), University of Guelph, October 28- 31,2004)[unpublished]. Cirkovic, Elena. "Self-Determination and Indigenous Peoples in International Law"(2006-2007) 31 AILR 375. Cutler, Claire A. "Artifice, ideology and paradox: the public/private distinction in international law", (1997) 4 Rev. Int'l Pol. Econ. 261. Costero, C. "Relaciones actuales Mexico-Canada en el sector minero", in (Primavera 2004) 1 Revista Mexicana de Estudios Canadienses. Cover, Robert. "The Supreme Court 1982 Term. Foreward: Nomos and Narrative", (1983)97Harv. L. Rev.4 Daes,Erica-Irene. "Equality of Indigenous Peoples under the Auspices of the United Nations Draft Declaration on the Rights of Indigenous Peoples" (1995) 7 St. Thomas Law Review 493. Daes, Erica-Irene. "Some Considerations on the Right of Indigenous Peoples to Self- Determination," (1993) 3TransT L& Contemp. Probs. 1. Daes, Erica-Irene. "An overview of the history of indigenous peoples: self-determination and the United Nations" (2008) 21 Cambridge Review of International Affairs 7. Derrida, Jacques. "Force of Law: the "Mystical Foundation of Authority"" (1989- 1990)11 Cardozo L. Rev. 920. Echave, Jose De "Peruvian Peasants Confront the Mining Industry" (2007) 19 Socialism and Democracy 119. Engle Merry, Sally. "Legal Pluralism" (1988) 22 L.& Soc'Y Rev. 879.

Falk Moore, Sally. "Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study", (1973) 7 Law and Soc'y. Rev. 719

Fidler, Courtney and Michael Hitch, "Impact and Benefit Agreements: A Contentious Issue for Aboriginal and Environmental Justice" (2007) 35 Environments Journal 49. Franck, Thomas. "The Emerging Right to Democratic Governance"(1986) 86 American Journal of International Law 46.

Getgen, Jocelyn E. "Untold Truths: The Exclusion of Enforced Sterilizations from the Peruvian Truth Commission's Final Report" Cornell Law Faculty Working Papers, 2008. Gill, Stephen.'The Constitution of Global Capitalism" (Paper presented to a Panel: The Capitalist World, Past and Present at the International Studies Association Annual Convention, Los Angeles, 2000) at 11-18, online: . Grandin, Greg. "Truth Commissions: state terror, history and memory" (2007) Radical History Review 97 Griffiths, John."What is Legal Pluralism"(1986) 24 J. Legal Pluralism & Unofficial L. 1.

Hannum, Hurst. "Self-Determination in the Post-Colonial Era", in D. Clark and R. Williamson eds., Self-Determination: International Perspectives (Houndmills: MacMillan Press, 1996). Hillemanns, Carolin F. "UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights" (2003) 4 German Law Journal 1065 Johnston, Darlene, "The Quest of the Six Nations Confederacy for Self-Determination" (1986)44U.T.Fac.L.Rev.l. Kennedy, David. "Primitive Legal Scholarship" (1986) 27 Harv. Int. L.J. 14.

330 Koh, Harold Kongju."International Law as Part of Our Law" (2004) 98 Am. J. Int'l L. 43. Koh,Harold Kongju. "Transnational Legal Process" (1996) 75 Neb. L.Rrev. 18.

Koskenniemi, Martti. "National Self-Determination Today: Problems of Legal Theory and Practiced 1994)43 I.C. L. Q. 241 Koskenniemi, Martti. "Hierarchy in International Law: A Sketch" (1997) 8 EJIL 566

Koskenniemi, Martti. '"The Lady Doth Protest Too Much' Kosovo and the Turn to Ethics in International Law" (2002) 65 Mod. L. Rev. 159 Koskenniem, Martti. "What is International Law For?" in M. Evans ed., International Law (Oxford: Oxford University Press, 2003). Koskenniemi, Martti. "Global Governance and Public International Law" (2004)373 Kritische Justiz 3. Koskenniemi, Martti. "International Law and Hegemony: A Reconfiguration" (2004) 17 Cam. Rev. Int'l Aff. 2. Krisch, Nico. "International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order", (2005)16 EJIL 369. Lawrence, Sonia and Patrick Macklem, "From consultation to reconciliation: Aboriginal rights and the Crown's duty to consult" (2000) 79 Can. Bar Rev. 252. Leroy, Little Bear, "Jagged Worldviews Colliding" in Marie Battiste ed., Reclaiming Indigenous Voice and Vision (UBC Press, 2000). Llosa, Mario Vargas. "Questions of Conquest: What Columbus Wrought, and What He Did Not" Harper's, Dec. 1990. Mallon, Florencia E. "Indian Communities, Political Cultures, and the State in Latin America, 1780-1990 (1992) 24 Journal of Latin American Studies, Quincentenary Supplement: The Colonial and Post Colonial Experience. Five Centuries of Spanish and Portuguese America 45 Marks, Greg C. "Indigenous Peoples in International Law: The Significance of Francisco de Vitoria and Bartolome De Las Casas" (1990-1991) 13 Aust. YBIL 19. Martha-Marie Kleinhans and Roderick A. Macdonald, "What Is Critical Legal Pluralism?" (1997) 12 Can. J. L. & Soc'y 25.

Mbembe, Achille. "Necropolitics" (2003) 15 Public Culture 1. Mollers, Christopher. "Transnational Governance without a Public Law" in Christian Joerges, Inger-Johanne Sand and Gunther Teubner, eds., Transnational Governance and Constitutionalism (Oxford: Hart Publishing, 2004).

Montoya Rojas, Rodrigo ." 'Con los Rostros Pintados': Tercera Rebelion Amazonica en Peru (Agosto 2008-Junio 2009)" (Peru Agosto 2009 ) online: www.servindi.org Moses, Ted, "Invoking International Law" in Marie Battiste, ed., Reclaiming Indigenous Voice and Vision (Vancouver: UBC Press, 2000).

331 Moses, Ted, "Renewal of the Nation" in Gudmundur Alfredsson and Maria Stavropolou eds., Justice Pending: Indigenous Peoples and Other Good Causes Essays in Honour of Erica-Irene A. Daes, (The Hague, London, New York: Martinus Nijhoff Publishers, 2002). Munarriz, Gerardo. A Comparative Analysis of the UN and OAS Failures to Positively Affect the Human Rights Situation in Peru (LLM Thesis, York University, 2004). Myntti, Krystian.'The Right of Indigenous Peoples to Self-Determination and Effective Participation" in Aikio, Pekka and Martin Scheinin, eds., Operationalizing the Right of Indigenous Peoples to Self-Determination (Turku: Institute for Human Rights, Abo Akademi University, 2002). Nancy, Jean-Luc. "The being-with of being-there" (2008) Cont Philos Rev 41.

O'Faircheallaigh, Ciaran. "Environmental Agreements, EIA Follow-up and Aboriginal Participation in Environmental Management: The Canadian Experience" (2007) 27 Environmental Impact Assessment Review 319. Orlenticher, Diane. "Separation Anxiety: International Response to Ethno-Separatist Claims (1998) 23 Yale J. Int. L. 1 Otto, Dianne. "Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference" (1996) 5 Social and Legal Studies 337 at 343. Pasco-Font, A., Diez Hurtado, A., Damonte, G., Salas, G., and R. Fort, "Gran Mineria y la Comunidad ", Peru Report prepared for World Bank project on Large Mines and the Community (1999). Peacock, Kent A. "Sustainability as symbiosis (1995) 21 Alternatives 4. Pearce, David. "Deforesting the Amazon: toward an economic solution" (1994) 1 Ecodecision 40. Pritchard, Susan ed., Indigenous Peoples, the United Nations and Human Rights (London: Zed Books, 1998). Quijano, Anibal. "Coloniality of Power and Eurocentrism in Latin America" (2000)15 International Sociology 2. Rajagopal, Balakrishnan. "Limits of Law in Counter-Hegemonic Globalization" The Indian Supreme Court and the Narmada Valley Struggle" in Boaventura de Souza Santos and Cesar A. Rodriguez-Garavito eds., Law and Globalization from Below: Towards a Cosmopolitan Legality (Cambridge, UK; New York: Cambridge University Press, 2005). Rees, William E. Special Section: Forum on Valuation of Ecosystem Services: " How should a parasite value its host?" (1998) 25 Ecological Economics 49; Timothy Mitchell, "Rethinking Economy" (2008) 39 Geoforum 1116. Reisman, W. Michael. "Protecting Indigenous Rights in International Adjudication" (1995) 89 Am. J. Intl'L. 350. Rosas, Allan. "Internal Self-Determination" in Christian Tomuschat ed., Modern Law of Self-Determination (The Hague: Martinus Nijhoff Publishers, 1993). Sawyer, Suzana and Edmund Terence Gomez, "Transnational Governmentality and Resource Extraction, Identities" Conflict and Cohesion Programme Paper Number 13, United Nations Research Institute for Social Development, September 2008. Sempat Assadourian, Carlos. "The Colonial Economy: The Transfer of the European System of Production to New Spain and Peru" (1992) 24 J. Lat. Amer. Stud. Suppl 55. Schutter, Olivier De. "The Challenge of Imposing Human Rights Norms on Corporate Actors" Hauser Global Law School Program, Global Law Working Paper 01/05, available at http://www.nyulawglobal.org/workingpapers/gl 2005.htm Scott, Craig. "Translating Torture into Transnational Tort: Conceptual Divides in the Debate on Corporate Accountability for Human Rights Harms", in Craig Scott ed., Torture as Tort. Comparative Perspectives on the Development of Transnational Human Rights Litigation (Oxford Portland Oregon: Hart Publishing, 2001). Seek, Sara. "Home State Responsibility and Local Communities: The Case of Global Mining" (2008) 11 Yale H.R. & Dev. L.J. 177 Sharvit, Cheryl, Michael Robinson and Monique M. Ross, Resource developments on traditional lands: The duty to consult (Canadian Institute of Resources Law, Calgary, Alberta, 1999). Slattery, Brian. "The Metamorphosis of Aboriginal Title" (2006) 85 Can. Bar. Rev. 255 Swepson, Lee. "The Indigenous Peoples Convention (No. 169): Eight Years After Adoption", in Cynthia Price Cohen ed., The Human Rights of Indigenous Peoples (New York: Transnational Publishers, 1998). Szablowski, David. "Mining, Displacement, and the World Bank: A Case Analysis of Compania Minera Antamina's Operations in Peru" (2002) 39 Journal of Business Ethics 247. Teubner, Gunther. "The King's Many Bodies: The Self-Deconstruction of Law's Hierarchy" (1997) 31 Law and Society Review 763. Teubner, Gunther. '"Global Bukowina': Legal Pluralism in the World Society", in Gunther Teubner ed., Global Law Without a State (Aldershot: Darmouth, 1997). Teubner, Gunther. "Global Private Regimes: Neo-Spontaneous Law and Dual Constitution of Autonomous Sectors in World Society?" in Karl-Heinz Ladeur ed., Public Governance in the Age of Globalization (Aldershot, Hants, England ; Burlington : Ashgate, 2004). Thurner, Mark. "Republicanos' and Ta Comunidad de Peruanos': Unimagined Political Communiites in Postcolonial Andean Peru" (1995) 27 Journal of Latin American Studies 291. Tittemore, Brian D. "The Dann Litigation and International Human Rights Law: The Proceedings and Decision of the Inter-American Commission of Human Rights" (2006-2007)31 AILR 593. Wai, Robert. "Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization" (2002) 40 Columbia J. T. L. 212

333 Warden-Fernandez, Janet "The Permanent Sovereignty Over Natural Resources: How it Has Been Accomodated Within the Evolving Economy" (2000) CEPMLP Annual. Weissbrodt, David and Maria Kluger, "CURRENT DEVELOPMENT: Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights" (2003) 97 A.J.I.L. 901 Youngblood Henderson, James (Sakej)."Post Colonial Ghost Dancing" in Marie Battiste, ed., Reclaiming Indigenous Voice and Vision (Vancouver: UBC Press, 2000).

3. GOVERNMENT DOCUMENTS AND RELATED MATERIAL

a. PERU

Comision Investigadora de los Sucesos de Uchuraccay (Lima, Peru: Editora Peru, 1983).

Constitucion Politica del Peru 1993, online: Final Report of the Truth and Reconicliation Commission: Summary of Recommendations (Intl Ctr. For Transitional Justice trans., 2003). Peruvian Truth andReconcilaiton Commission, Hatun Willakuy: Version Abreviada del Informe Final de la Comision De La Verdady Reconciliacion (Lima, Peru: 2004) at 258.

b. CANADA

British Columbia, Ministry of Aboriginal Affairs, Information about Interim Measures (Victoria, 1995). Canada's Truth and Reconciliation Commission, International Center for Transitional Justice (April 29, 2008). Government of Canada, Aboriginal Consultation and Accommodation (Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult) (Indian and Northern Affairs Canada, 2008)

4. INTERNATIONAL DOCUMENTS

a. Treaties and Other International Agreements

African Charter on Human and Peoples' Rights, 27 June 1981, 1520 U.N.T.S. 217, 21 I.L.M. 58 (1982) (entered into force 21 October 1986). Beijing Declaration and Platform for Action, Fourth World Conference on Women, 15 September 1995, A/CONF. 177/20 (1995) and A/CONF.177/20/Add.l (1995). Committee on the Elimination of Racial Discrimination. General Recommendation XXI (48), UNdoc. A/51/18, para 4. Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), 72 ILO Official Bull. 59, entered into force Sept. 5, 1991 Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514 (XV), 15 UN GAOR, Supp. (No. 16), UN Doc. A/4684, at 66(1960). Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), 25 UN GAOR, Supp. (No.28), UN Doc. A/8028, at 121 (1970). Declaration on the Right to Development, G.A. res. 41/128, annex, 41 U.N. GAOR Supp. (No. 53) at 186, U.N. Doc. A/41/53 (1986). Draft report of the Sub-Commission on the Promotion and Protection of Human Rights, Fifty-fifth session, Draft Provisional Agenda and Adoption of the Report, of 14 August 2003. General Assembly Resolution 1654 (XVI) 27 November 1961.

General Assembly Resolution 1803 (XVII) 14 December 1962.

General Assembly Resolution 3171 (XXVII) 17 December 1973. See also, United Nations Action in the Field of Human Rights, United Nations, Centre for Human Rights (Geneva, 1994) at 262-263. Human Rights Committee, General Comment Adopted by the Human Rights Committee under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights: General Committee No. 23(50) (art. 27), U.N. Doc. CCPR/C/21/Rev.l/Add.5 (1994). ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (MNE Declaration), ILM, vol. 17, 1978, 422, 2000. International Covenant on Economic, Social and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No. 46, 6 I.L.M. 360 International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47, 6 I.L.M. 368 International Labour Office, A Guide to ILO Convention NO., 169 on Indigenous and Tribal Peoples, (Geneva: International Labour Office, 1995). OECD Guidelines for Multinational Enterprises, ILM, vol. 15, 1976, 967.

"Permanent Sovereignty over Natural Resources", G.A. Res. 1803 (XVII), 17 UN GAOR (1962). Preliminary working paper on the principle of free, prior and informed consent of indigenous peoples in relation to development affecting their lands and natural resources that would serve as a framework for the drafting of a legal commentary by the Working Group on this concept submitted by Antoanella-Iulia Motoc and the Tebtebba Fountation U.N. Doc. E/CN.4/Sub.2/AC.4/2004/4 at 6-7. Proposed American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights in 1997, Article XV(1). See, also, Consolidated Text of the Draft Declaration Prepared by the Chair of the Working Group, OEA/Ser.K/XVI, GT/DADIN/doc. 139/03,17 June 2003. Sub-Commission on the Promotion and Protection of Human Rights, Fifty-fifth session, Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, E/CN.4/Sub.2/2003/12/Rev.2 of 26 August 2003. The Final Act of the Conference on Security and Cooperation in Europe, Aug. 1, 1975, 14 I.L.M. 1292 [Helsinki Declaration]. UN Declaration on the Rights of Indigenous Peoples, G.A. Res. UNGAOR, 61st Sess., Un Doc. A/RES/61/295 (2007). UNDG Guidelines on Indigenous Peoples' Issues (UNDG Task Team on Indigenous Issues 2008). United Nations General Assembly, Vienna Declaration and Programme of Action, UN doc. A/CONF. 157/23, 12 July 1993. Working Paper on the concept of "indigenous people" of the Working Group on Indigenous Populations UN Doc. E/CN.4/Sub.2/AC4/1996/2, para.69. 'Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples' Working paper submitted by Ms. Erica-Irene A. Daes and Mr. Asbjorn Eide in accordance with Sub-Commission resolution 1999/23 UN Doc. E/CN.4/Sub.2/2000/10 19 July 2000.

b. Reports and Observations

Anaya, James. Relator Especial de Naciones Unidas sobre la situacion de los derechos humanos y las libertades fundamentals de los indigenas, Observacion sobre la situacion de los pueblos indigenas de la Amazonia y los sucesos del 5 dejunio y dias posteriors en las provincias de Bagua y Utcubamba, Peru (New York: United Nations, 2009). CEACR: Individual Observation concerning Indigenous and Tribal Peoples Convention, 1989 (No. 169) Peru (ratification: 1994) Inter-American Commission on Human Rights, Report on the Situation of Human Rights of a Segment ofNicaraguan Population ofMiskito Origin and Resolution on the Friendly Settlement Procedure Regarding the Human Rights Situation of a Segment ofNicaraguan Population ofMiskito Origin, O.A.S. Doc. OEA/Ser.L/V/II.62, doc. 10 rev.3 (1983), O.A.S. Doc. OEA/Ser.L/V/II.62, doc. 26 (1984) (Case No. 7964 (Nicaragua) Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Ecuador, O.A.S. Doc. OEA/Ser.L/V/II.96, doc. 10, rev. 1, Chapter IX (April 24, 1997). Permanent Forum on Indigenous Issues, Report on the sixth session U.N. Doc. E/2007/43 E/C. 19/2007/12. Report of Commission of Jurists (Larnaude, Huber, Struycken), LNOJ Spec. Supp No.3 at 3 (October 1920). Report of the Committee of Rapporteurs (Beyens, Calonder, Elkens), 16 April 1921: LN Council Doct. B7/21/68/106 [VII], at 27-28. Report of the Committee set up to examine the representation alleging non-observance by Colombia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Central Unitary Workers' Union (CUT), ILO Doc. GB.282/14/3, para. 74 (Nov. 2001). Final Report of the Special Rapporteur, Erica-Irene Daes, 'Indigenous peoples' permanent sovereignty over natural resources. UN Doc. E/CN.4/Sub.2/2004/30 13 July 2004. Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96 doc. 10, rev.l.

Report of the First Session of the Human Rights Council, A/61/53.

Proceedings from the 11th Meeting of the UN Working Group on Indigenous Rights, UN GAORU.N. Doc. E/CN.4/Sub.2/1992/33 (1992) at 18. Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen submitted in accordance with Commission resolution 2001/57 UN Doc. E/CN.4/2003/90. Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen. Mission to Canada. UN Doc. E/CN.4/2005/88/Add.3 and Concluding observations of the Human Rights Committee: Canada, CCPR/C/CAN/CO/5, 20 April 2006. Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/II.106, Doc. 59 rev. June 2, 2000. Striking a Better Balance, Volume 1, Final Report of the World Bank Independent Extractive Industries Review (15 January 2004). Study of the Problem of Discrimination Against Indigenous Populations. Final report submitted by the Special Rapporteur, Mr. Jose Martinez Cobo UN Doc. E/CN.4/Sub.2/1986/7 and Add. 1-4 paras 379-382. Terrorist Legislation in Peru and Chile" International Commission of Jurists

c. Other

GATT, on 22 February 1982, BISD 29S/91; GATT, (unadopted), 3 September 1991, BISD 39S/155 Inter-American Development Bank, Operational Policy 7-65 on Indigenous Peoples, adopted 22 February 2006 at 8. online: http://wvvw.iadb.org/sds/ind/site_401_e.htm. WTO Agreement on Rules of Origin (1994), Annex 2, Common Declaration with Respect to Preferential Rules of Origin.

5. JURISPRUDENCE

a.DOMESTIC i. CANADIAN

Colder v. British Columbia (A.G.), [1973] S.C.R. 313. Delgamuukw v. British Columbia [1991], 79 D.L.R. (4th) 185 at 278 (B.C. S.C.). Delgamuukw v. British Columbia (1993), 104 D.L.R. (4th) 470 at 608 (B.C. C.A.). Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010 GuerinvR. (1985) 13 DLR4th321. Haida Nation v. British Columbia (Ministry of Forests), [1997] 153 D.L.R. (4th) 1 (B.C. C.A.). Haida Nation v. British Columbia (Minister of Forests), (2002) 99 B.C.L.R.(3d). Haida Nation v. British Columbia (Minister of Forests) [2004] 3 S.C.R. 511, 2004 SCC 73 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388. Mining Watch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2 R. v. Cote'[1996] 3 S.C.R. 139. R. v. Gladstone, [1996] 2 S.C.R. 723. R. v. Sparrow [1990] 1 S.C.R. 1075 at 1103. R. v. Van derPeet [1996] 2 S.C.R. 507. St. Catherine's Milling and Lumber Co. v. R. (1888), 14 App. Cas. 46 at 54-55 (P.C.). Tsilhqot'in Nation v. British Columbia, [2007] BCSC 1700 [hereinafter: Tsilhqot'in]. Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550

ii. UNITED STATES

Johnson v. M'Intosh (1823) 21 U.S. (8 Wheat.) 543, at 591. United States v. Shoshone Tribe of Indians 304 US 111 (1938) United States v. Klamath and Modoc Tribes 304 US 119 (1938) Otoe and Missouri Tribe v. United States 131 F Supp 265 (1955) Worcester v. Georgia (1832) 31 U.S. (6 Pet.) 515 at 543.

iii. OTHER

Mabo v The State of Queensland (No. 2) (1992) 175 CLR 1

b. INTERNATIONAL AND REGIONAL

Apirana Mahuika et al. vs. New Zealand, (Communication No. 547/1993, 15/11/2000), UN Doc. CCPR/C/70/D/547/1993 (2000). Aurelio Cal, et. Al. v. Attorney General of Belize, Supreme Court of Belize (Claim 121/2007) (18 October 2007). Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada (Communication No. 167/1984).

338 Bernard Ominayak, Chief of the Lubicon Lake Band vs. Canada, Report of the Human Rights Committee, 45 UN GAOR Supp. (No.43), UN Doc. A/45/40 , vol. 2 (1990). Case concerning the Northern Cameroon's (Cameroon v. United Kingdom), Order of 11 January 1963, ICJ Reports 1963. Case concerning Right of Passage over Indian Territory (Portugal v. India), (Merits), Judgment of 12 April 1960, ICJ Reports 1960. Cayuga Indians (Great Britain) v. United States, VI R. Int'l. Arb. Awards 173 (1926).

Certain Phosphate Lands in Nauru (Nauru v. Australia), Order of 18 July 1989, ICJ Reports 1989, p. 12; and Order of 8 February 1991, ICJ Reports 1991 East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, p.90.

Hopu v. France. Communication No. 549/1993: France. 29/12/97'. UN Doc.CCPR/C/60/D/549/1993/Rev.l, 29 December 1997. J. Lansman et al. vs. Finland (Communication No. 671/1995), UN Doc.CCPR/C/58/D/671/1995. Kitok v. Sweden (Communication Np. 197/1985), Official Records of the Human Rights Committee 1990/91, Vol. II (New York: United Nations, 1996). Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971. Lovelace vs. Canada (No. 24/1977), Report of the Human Rights Committee, 36 UN GAOR Supp. (No. 40) 166, UN Doc. A/36/40 (1981). Mary and Carrie Dann v. United States,Case 11.140, Report No. 75/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 860 (2002). Maya indigenous community of the Toledo District v. Belize, Case 12.053, Report No. 40/04, Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 727 (2004). Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001, Inter-Am. Ct. H.R., (Ser. C) No. 79 (2001). Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986. Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of 29 March 2006, Series CNo. 146. Ward on behalf of the Miriuwung and Gajerrong People v. Western Australia (1998) 159 ALR 483. Western Sahara, Advisory Opinion, 1975 I.C.J. 12 at 68.

Yakye Axa Indigenous Community v. Paraguay, 17 June 2005. Series C No. 125.

6. LEGISLATION: STATUTES, BILLS, DECREES a. DOMESTIC i. PERU

Codigo de Conducta, Sociedad Nacional de Mineria Petroleo y Energia. Legislative Decree No. 757 (13/11/91). Law No. 26505(17/07/95). Ley de Tierras No 26505. Leyes de Indias Ministerial Resolution No. 728-99-EM/VMM (09/01/2000) Regulation for Consultation and Participation in the EIA Approval Procedure, Ministerial Resolution No. 596-2002-EM/DM(21/12/2002). Supreme Decree No. 014-92-EM (04/06/92). Supreme Decree No. 016-93-EM (01/05/93). Supreme Decree No. 017-96-AG (19/10/96).

b. CANADA Constitution Act, 1867, [1985] 1 S.C.R. 721. Indian Act, R.S.C. 1927, c. 98. The Royal Proclamation, 1763 (U.K.), reprinted in R.S.C. 1985. c. UNITED STATES Alien Torts Claims Act, 28 U.S.C. §1350.

7. NON GOVERNMENTAL ORGANISATIONS a. PERU

Asociacion Interetnica de Desarollo de la Selva Peruana (AIDESEP).

Coordinadora Nacional de Comunidades del Peru Afectadas por la Mineria (CONACAMI). Defensorial Extraordinario, Los Conflictos Socioambientales por actividad Extractiva en el Peru, 17 de Abril de 2007. Public Letter From AIDESEP, "2009 Summary and 2010 Hopes-Indigenous Peoples Issues and Resources" (Monday, 28 December 2009 23:06)

340