Indigenous Rights

Anthony J. Connolly, Anthony J. Connolly

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351927918
• Edition: 1
• Topic: Jura
• Subtopic: Völkerrecht

Throughout the world, indigenous rights have become increasingly prominent and controversial. The recent adoption by the United Nations General Assembly of the Declaration on the Rights of Indigenous Peoples is the latest in a series of significant developments in the recognition of such rights across a range of jurisdictions. The papers in this collection address the most important philosophical and practical issues informing the discussion of indigenous rights over the past decade or so, at both the international and national levels. Its contributing authors comprise some of the most interesting and influential indigenous and non-indigenous thinkers presently writing on the topic.

Part I

Conceptual, Historical and International Context

[1]

“INDIGENOUS PEOPLES” IN INTERNATIONAL LAW: A CONSTRUCTIVIST APPROACH TO THE ASIAN CONTROVERSY

By Benedict Kingsbury*

Over a very short period, the few decades since the early 1970s, “indigenous peoples” has been transformed from a prosaic description without much significance in international law and politics, into a concept with considerable power as a basis for group mobilization, international standard setting, transnational networks and programmatic activity of intergovernmental and nongovernmental organizations.¹

The development of “indigenous peoples” as a significant concept in international practice has not been accompanied by any general agreement as to its meaning, nor even by agreement on a process by which its meaning might be established. As the concept becomes increasingly important, international controversy as to its meaning and implications is acquiring greater legal and political significance. This article considers how to understand “indigenous peoples” as an international legal concept. To sharpen the focus, the discussion concentrates on the current practical dispute as to whether and how the concept of “indigenous peoples,” formed and shaped in regions dominated by the history and effects of European settlement, might or should be adapted and made applicable in Asia and elsewhere. Both elements of the term—”indigenous” and “peoples”—are contentious, but the discussion here will focus on indigenousness.

Two broad approaches to relatively underspecified concepts such as “indigenous peoples” may be identified. The first, here termed a positivist approach, treats “indigenous peoples” as a legal category requiring precise definition, so that for particular operational purposes it should be possible to determine, on the basis of the definition, exactly who does or does not have a particular status, enjoy a particular right, or assume a particular responsibility. Once established, such definitions theoretically ground the interpretive process of determining the scope of application of particular legal instruments and rules. It will be argued that the experience of international agencies and associations of indigenous peoples demonstrates that it is impossible at present to formulate a single globally viable definition that is workable and not grossly under- or overinclusive. Any strict definition is likely to incorporate justifications and referents that make sense in some societies but not in others. It will tend to reduce the fluidity and dynamism of social life to distorted and rather static formal categories. One possible conclusion, that “indigenous peoples” as a global concept is unworkable and dangerously incoherent, has some adherents. But it is a concept of great normative power for many relatively powerless groups that have suffered grievous abuses, and it bears the imprimatur of representatives of many such groups who are themselves shaping it while being shaped by it. As a concept designating a locus of groups and issues, albeit with some imprecision and uncertainties, it has proved remarkably serviceable, and there is no contending replacement. The aspiration for perfect positivist coherence is unachievable, but there is another way to understand the concept.

This second approach, here termed constructivist, takes the international concept of “indigenous peoples” not as one sharply defined by universally applicable criteria, but as embodying a continuous process in which claims and practices in numerous specific cases are abstracted in the wider institutions of international society, then made specific again at the moment of application in the political, legal and social processes of particular cases and societies.

Neither approach suffices entirely on its own. It will be argued that the constructivist approach to the concept better captures its functions and significance in global international institutions and normative instruments. In most cases the terminology and indicative definitions in global or regional instruments are too abstract and remote to provide a sufficient basis to resolve the infinite variety of questions that arise in specific cases, and it is misguided to expect that these global instruments can even purport to resolve all such detailed problems. These instruments often contain relevant principles and criteria abstracted from the specifics of past cases and debates, and each has stimulated a body of practice concerning its scope of application and the meaning of concepts it employs. But many specific problems as to the meaning of “indigenous peoples” and related concepts can be solved only in accordance with processes and criteria that vary among different societies and institutions. Only in such specific contexts is it possible adequately to answer such questions as: Is a waning traditional authority or a popular, but state-created, political body the proper representative of an indigenous group in a land claim?² Are children of a marriage between a group member and a nonmember entitled to be full members?³ Who are the legal successors to a group whose leaders signed a treaty in the eighteenth century?⁴ Does organization of a new political body by one clan from a larger indigenous community make the clan an indigenous people?⁵ Which group is part of which other group for purposes of representation?⁶ Who ought to benefit from royalty payments for a therapeutic drug derived from a plant known and used by several groups?⁷ Can local villagers close a forest that is the supply of fuel wood for a community of landless migrants nearby?⁸ To which groups in a particular country does the World Bank’s policy on indigenous peoples apply?⁹ Who will be eligible to represent indigenous peoples if, as is currently proposed, a permanent forum for indigenous peoples is established in the United Nations?¹⁰ Such questions can be resolved only through specific contextual decisions, often referring to detailed functional definitions, that are influenced by, and influence, the more abstract global concept.

Before the argument is developed, a caveat must be entered about the scope and generality of this article. It focuses on issues arising in east, southeastern and south Asia. Even with much of western and central Asia omitted, this region is so diverse as to issues pertaining to “indigenous peoples” that generalizations must be treated with the utmost caution.¹¹ There are overlapping themes, as well as considerable variation, between Asia and Africa in this regard, and the relevance or irrelevance of the concept of “indigenous peoples” in Africa is of great importance. Although to a lesser extent than Asian groups, a small number of African groups have become involved in the international indigenous peoples’ movement,¹² and governments of a few African states have expressed concerns similar to those of Asian state governments considered in this article.¹³ For clarity, specific issues concerning the concept of “indigenous peoples” in Africa are not considered in this article.

I. THE ASIAN CONTROVERSY: SEPARATING JUSTIFICATIONS, NORMS AND INSTITUTIONS

One of the central questions in the current controversy is whether the concept of “indigenous peoples” has any application to people in the group of major Asian states whose governments deny its relevance.

Following the pattern of group mobilization established in states dominated by European settlement—in the Americas, Australasia and the Nordic countries—groups based in different Asian states have more recently begun to participate in international institutions and gatherings of “indigenous peoples,” and transnational networks have been formed in Asia under the rubric “indigenous peoples.”¹⁴ The concept of “indigenous peoples,” or its local cognates, has become an important unifying connection in transnational activist networks, linking groups that were hitherto marginal and politically unorganized to transnational sources of ideas, information, support, legitimacy and money.¹⁵ International institutions increasingly apply to parts of Asia policies, programs and specific rules concerning “indigenous peoples.” The World Bank, for example, first adopted a policy on tribal peoples arising out of the dismal experience of projects in Latin America, but seeks as a global organization to apply its current policy on indigenous peoples to some of its projects in Asia; the relevant World Bank policies have also provided an influential model for the Asian Development Bank. The international activity has begun to shape national practice in many states, influencing political discourse, government policy, and some judicial and legislative action. The attitudes of governments in Asia to the application to their states of the concept of “indigenous peoples” differ considerably, but strong opposition has been expressed by China, India, Bangladesh, Myanmar and (for the most part) Indonesia.

The core of the current international controversy may be captured by juxtaposing two quotations, both originating in the context of ongoing efforts in the United Nations to draft a normative declaration on the rights of indigenous peoples. Each is representative of strongly held recurrent positions.

The first quotation is from a statement made in 1991 to the United Nations Working Group on indigenous populations in the names of members of the West Papuan Peoples’ Front, the Karen National Union, the Jumma Network in Europe, the Indian Council of Indigenous and Tribal Peoples, the Alliance of Taiwan Aborigines, the National Federation of Indigenous Peoples of the Philippines (KAMP), Lumad-Mindanao, the Cordillera Peoples Alliance, the Ainu Association of Hokkaido, the Asia Indigenous Peoples Pact, the Naga Peoples Movement for Human Rights, the Homeland Mission 1950 for South Moluccas, and the Hmong People:

First and foremost, we want to bring to your attention the denial of some Asian governments of the existence of indigenous peoples in our part of the world. This denial presents a significant obstacle to the participation of many indigenous peoples from our region in the Working Group’s deliberations. The denial also seeks to withhold the benefits of the Declaration from the indigenous, tribal, and aboriginal peoples of Asia. We hereby urgently request that peoples who are denied the rights to govern themselves, and are called tribal, and/or aboriginal in our region, be recognized, for the purpose of this Declaration, and in accordance with I.L.O. practice, as equivalent to indigenous peoples.¹⁶

The second quotation is from comments sent in 1995 by the People’s Republic of China to a working group of the UN Commission on Human Rights:

The Chinese Government believes that the question of indigenous peoples is the product of European countries’ recent pursuit of colonial policies in other parts of the world. Because of these policies, many indigenous peoples were dispossessed of their ancestral homes and lands, brutally oppressed, exploited and murdered, and in some cases even deliberately exterminated. To this day, many indigenous peoples still suffer from discrimination and diminished status…. As in the maj...