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 April 2010 Library and Archives Bibliotheque et 1*1 Canada Archives Canada Published Heritage Direction du Branch Patrimoine de Pedition 395 Wellington Street 395, rue Wellington Ottawa ON K1A 0N4 Ottawa ON K1A 0N4 Canada Canada Your file Votre inference ISBN: 978-0-494-64896-4 Our file Notre reference ISBN: 978-0-494-64896-4 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library and permettant a la Bibliotheque et Archives Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans le loan, distribute and sell theses monde, a des fins commerciales ou autres, sur worldwide, for commercial or non­ support microforme, papier, electronique et/ou commercial purposes, in microform, autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in this et des droits moraux qui protege cette these. Ni thesis. Neither the thesis nor la these ni des extraits substantiels de celle-ci substantial extracts from it may be ne doivent etre imprimes ou autrement printed or otherwise reproduced reproduits sans son autorisation. without the author's permission. In compliance with the Canadian Conformement a la loi canadienne sur la Privacy Act some supporting forms protection de la vie privee, quelques may have been removed from this formulaires secondares ont ete enleves de thesis. cette these. While these forms may be included Bien que ces formulaires aient inclus dans in the document page count, their la pagination, il n'y aura aucun contenu removal does not represent any loss manquant. of content from the thesis. •+• 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