Conventional wisdom suggests that promoting self-determination for peoples and protecting the human rights of individuals are competing priorities. By this is meant that securing individuals in their human rights requires limits on the rights of their peoples, and vice versa. In contrast, the Draft UN Declaration on the Rights of Indigenous Peoples (the Draft Declaration) treats the two as not only mutually supporting but mutually necessary. In the Draft Declaration, (...) the right of peoples to self-determination is more than a principle that constrains states in their behavior towards other states and territories “outre-mer”; it also constrains states within their domestic realm. This view of self-determination reflects the experience of many indigenous groups, for whom refusal to respect the integrity of their group and failure to respect the integrity of their persons have gone hand in hand. In this chapter, I argue that the Draft Declaration’s treatment of self-determination is right: self-determination is a human right and this human right is the same right that underpins the rights of states. Treating an interest of peoples like self-determination as a constitutive element of human dignity raises practical worries about the stability of the international system, and philosophical worries about potential conflicts between individuals and peoples. But it also casts state sovereignty itself in a different light. This new light has interesting consequences both for international law and for philosophical debates about minorities within minorities. In particular, it allows one to think about questions about internal minorities as ultimately questions about legitimacy and representation. (shrink)

Advocacy of an indigenous right to isolation in the Latin American context responds to multiple depredations, above all to plundering by extractivists. Two prominent international instruments declare a human right to indigenous self-isolation and articulate a principle of no contact between indigenous peoples and the non-indigenous majority population: Indigenous Peoples in Voluntary Isolation and Initial Contact in the Americas and Guidelines on the Protection of Indigenous Peoples. In analyzing both, I argue (...) against the notion of a human right to indigenous isolation and for limited, controlled contact between the indigenous peoples and a narrow segment of the larger society. I propose relational human rights as rights that connect people, as rights-bearers, across borders and differences. They would allow for limited outside observation for possible human rights violations within indigenous communities. I then articulate relational human rights of indigenous peoples in voluntary isolation as rights to agency, health, territory, and identity. (shrink)

The United Nations' (UN) adoption of a Declaration on the Rights of Indigenous Peoples is intended to mark a fundamental ethical turn in the relationships between indigenous peoples and the community of sovereign states. This moment is the result of decades of discussion and negotiation, largely revolving around states' discomfort with notion of indigenous self-determination. Member states of the UN have feared that an ethic of indigenous self-determination would undermine the principles of (...) state sovereignty on which the UN is itself grounded. However, such fears are the result of very poor understandings of the ethical principles under which the relations between indigenous peoples and nation-states already have been formed under centuries of European colonialism. The principle of self-determination embraced in this Declaration does not diverge from colonial norms; it entrenches these norms as international policy. Without doubt, indigenous peoples are more likely to benefit than suffer from states' observance of the Articles within this Declaration. Reducing the challenge of indigenous peoples' rights to the notion of self-determination set out in this document, though, misses an extraordinarily important opportunity to critically investigate the ethic of rights that has produced an opposition between nation-states and indigenous peoples to begin with. A true turn in the ethics of this relationship would see not simply the institution of a right to self-determination but, rather, indigenous peoples' right to first determine the nature of self for themselves. (shrink)

This challenging book focuses on the problem of justice for indigenous peoples – in philosophical, legal, cultural and political contexts – and the ways in which this problem poses key questions for political theory. It includes chapters by leading political theorists and indigenous scholars from Australia, Aotearoa/New Zealand, Canada and the United States. One of the strengths of this book is the manner in which it shows how the different historical circumstances of colonisation in these countries raise (...) common problems and questions for contemporary political theory. It examines ways in which political theory has contributed to the past subjugation and continuing disadvantage faced by indigenous peoples, while also seeking to identify resources in contemporary political thought that can assist the ongoing processes of 'decolonisation' of relations between indigenous and non-indigenous peoples. (shrink)

Republic Act 8371 or the Indigenous Peoples’ Rights Act of 1997 was passed by the Philippine Congress in order to address the concerns of the indigenous communities which had received marginal attention through the past decades. Indigenous communities have also been displaced from their lands due to armed conflicts between government soldiers and secessionist groups, particularly the Moro rebels and the communist-led New Peoples’ Army. The Philippines has been privy to peace initiatives with these (...) two groups for some time now. Political circumstances, however, and legal impediments have periodically stalled the peace processes. It is the author’s intention to focus on the predicament of indigenous communities as they seek a strategic role in shaping the content of peace agreements being negotiated by the Philippine government with the rebel groups. How have the indigenous communities made an impression on the two peace processes through the years? And, have the indigenous peoples’ rights been sufficiently protected in the context of the peace agreements? The author will draw from his own insights on the peace processes and agreements which have been negotiated and even tested before the Supreme Court of the Philippines. (shrink)

The work of the French Lithuanian Jewish philosopher, Emmanuel Levinas, describes a perceptive rethinking of the possibility of concrete acts of goodness in the world, a rethinking never more necessary than now, in the wake of the cruel realities of the twentieth century—ten million dead in the First World War, forty million dead in the Second World War, Hiroshima, Nagasaki, the Soviet gulags, the grand slaughter of Mao’s “Great Leap Forward,” the pointless and gory Vietnam War, the Cambodian self-genocide and (...) many an attempted extermination from the face of the earth of entire nations of indigenous peoples. The list of horrors goes on and on—daily holocausts that do not distinguish between the civilian and the soldier, the guilty and the innocent, those deserving of life and those less deserving. (shrink)

This article considers whether the international legal human rights system founded on liberal individualism, as endorsed by liberal theorists, can function as a fair universal legal regime. This question is examined in relation to the collective right to self-determination demanded by indigenous peoples, who are paradigmatic decent nonliberal peoples. Indigenous peoples’ collective right to self-determination has been internationally recognized in the Declaration on the Rights of Indigenous Peoples, which was adopted (...) by the United Nations in 2007. This historic event may seem to exemplify the international legal human rights system’s ability to function as a truly global legal regime applicable cross-culturally to all well-ordered societies, whether liberal or nonliberal. The article argues, however, that the collective right to self-determination advocated by indigenous peoples for the sake of cultural integrity is inconsistent with the international legal human rights system founded on liberal individualism. By showing the plausibility of indigenous peoples’ defense of their cultural integrity, this article suggests that the international legal human rights system ought to be reconceptualized to reflect a genuine international consensus on human rights among all well-ordered societies if it is to function as a just mechanism for global governance. (shrink)

Kant’s non-voluntarist conception of political obligation has led some philosophers to argue that he would reject self-government rights for indigenous peoples. Some recent scholarship suggests, however, that Kant’s critique of colonialism provides an argument in favor of granting self-government rights. Here I argue for a stronger conclusion: Kantian political theory not only can but must include sovereignty for indigenous peoples. Normally these rights are considered redress for historic injustice. On a Kantian view, however, (...) I argue that they are not remedial. Sovereignty rights are a necessary part of establishing perpetual peace. By failing to acknowledge the sovereignty of native groups, states once guilty of imperialism leave open the in principle possibility for future violence, even though no current conflict exists. Only in recognizing self-government rights can states truly commit to the cosmopolitan ideal. (shrink)

International law guarantees rights to indigenous peoples regarding traditional lands, knowledge, cultural preservation, and human security. This paper will examine the sources of these rights and legal remedies for violations of law. Protection of indigenous peoples’ cultures and resources contribute to the protection of the global environment.

From 1922 to 1924, the Iroquois Confederacy — a federal union of six aboriginal nations — sought resolution of a dispute between themselves and Canada at the League of Nations. In this paper, the historical events of the 1920s League are employed as a case study to explore the development of the international society of states in the early 20th century as it relates to the indigenous peoples of North America. Specifically, it will be argued that the early (...) modern practice of excluding Amerindians from international political forums is related to the negative representation of indigenous peoples in the dominant theoretical discourse of the time: social contract theory. The diplomatic activities of the Iroquois, and the members of the League during this time period, demonstrate exactly how social contract theory has relied on presenting indigenous peoples as residing in a non-political and non-sovereign form, thus denying them the right to participate at the international level on par with other peoples. (shrink)

Kant limits cosmopolitan right to a universal right of hospitality, condemning European imperial practices towards indigenous peoples, while allowing a right to visit foreign countries for the purpose of offering to engage in commerce. I argue that attempts by contemporary theorists such as Jeremy Waldron to expand and update Kant’s juridical category of cosmopolitan right would blunt or erase Kant’s own anti-colonial doctrine. Waldron’s use of Kant’s category of cosmopolitan right to criticize contemporary identity politics relies on premises (...) that upset Kant’s balanced right to hospitality. An over-extensive right to visit can invoke “Kantian” principles that Kant himself could not have consistently held, without weakening his condemnation of European settlement. I construct an alternative spirit of cosmopolitan right more favorable to the contemporary claims of indigenous peoples. Kant’s analysis suggests there are circumstances when indigenous peoples may choose whether to engage in extensive cultural interaction, and reasonably refuse the risks of subjecting their claims to debate in democratic politics in a unitary public. Cosmopolitan right accorded respect to peoples; any “domestic” adaptation of cosmopolitan right should respect indigenous peoples as peoples, absent a serious public explanation by a democratic state for why it has now become appropriate to treat indigenous peoples merely as individual citizens. (shrink)

Background Many indigenous people have died or been harmed because of inadequately monitored research. Strong regulations in Human Research Ethics (HRE) are required to address these injustices and to ensure that peoples’ participation in health research is safe. Indigenous peoples advocate that research that respects indigenous principles can contribute to addressing their health inequities. This scoping literature review aims to analyze existing peer reviewed and grey literature to explore how indigenous values and principles from (...) countries of Oceania are incorporated into HRE and the governance of research involving human participants. Methods A scoping literature review framework was used for this study. A search for peer reviewed and grey literature from Google, bibliographies, and electronic databases such as SCOPUS, SPRINGER, Medline (Ovid) and JBI Database of Systematic Reviews was conducted, limited to the years 2002–2020. Sixty (60) documents that focused on indigenous knowledge from Oceania region and HRE were included, from which key findings and themes were synthesized. Results Charting the data showed that more than half the eligible documents were peer-reviewed journal articles (54%). Other sources included: International Declarations on Human Research (8%); book chapters (8%); government documents (8%); HRE Guidelines or protocols (13%); news articles (7%) and PhD thesis (2%). The literature was from Australia, Cook Islands, Guam, New Zealand, Fiji, Samoa, Tonga and Vanuatu, some of which focused specifically on HREs in the Pacific Region. Issues emerging from the literature were grouped into five themes (i) indigenous and cultural principles of HRE; (ii) informed consent in indigenous settings in Oceania; (iii) vulnerability and minority status of indigenous populations exploited for research; (iv) research ethics governance for Oceania indigenous peoples; and (v) research ethics committees in Oceania. Respect, relationship building, and trust were priority indigenous HRE principles that encompass the principles of partnership, capacity building, reciprocity, and equality. Relationship building and trust imply the equal distribution of benefits for indigenous population and researchers. Conclusion Indigenous principles of HRE identified were interconnected and interdependent. Recommendations were to incorporate indigenous principles of research in HRE regulations and processes of all countries with indigenous populations. This is especially pertinent for emerging national research committees in LMIC countries, including Fiji and Tonga. Relationship building among researchers and indigenous populations is key to successful research with indigenous populations. HRE principles important for relationship building include respect that is reciprocal among researchers and indigenous people. Elements of the principle of respect highlighted are empathy, collaboration, sharing of benefits, reciprocity, appreciation, empowerment, protection, safety and awareness of culture and languages. Indigenous ontology from the Oceania region involves spirituality, connectedness to land, religious beliefs and a participatory approach to HRE and should be respected in research. An ethical governance mechanism of HRE is one that incorporates indigenous principles and applications for the purpose of maximizing the protection of the dignity and rights of indigenous peoples of Oceania. (shrink)

Much of the debate around requirements for the free, prior, and informed consent of indigenous peoples has focused on enabling indigenous communities to participate in various forms of democratic decision-making alongside the state and other actors. Against this backdrop, this article sets out to defend three claims. The first two of these claims are conceptual in nature: (i) Giving (collective) consent and participating in the making of (collective) decisions are distinct activities; (ii) Despite some scepticism, there is (...) a coherent conception of collective consent available to us, continuous with the notion of individual consent familiar from discussions in medical and sexual ethics. The third claim is normative: (iii) Participants in debates about free, prior, and informed consent must keep this distinction in view. That is because a group’s ability to give or withhold consent, and not only participate in making decisions, will play an important role in realising that collectives’ right to self-determination. (shrink)

DECLARATION CONCERNING THE RIGHTS OF PERSONS RELATED TO NATIONAL OR ETHNIC, RELIGIOUS OR LEGAL MINORITIES Resolution 47/135 of the General Assembly of the United Nations of 18.12.1992.

The purpose of our article is to contemplate, from an aesthetic-artistic vision, the principles of the Universal Declaration on Bioethics and Human Rights, adopted by UNESCO in 2005. As a result of a restful, attentive and calm look (contemplation), we believe that the development of a line of thought capable of proposing answers to the great questions posed by the current existential and historical paradigm shift requires an effort of transdisciplinary dialogue. On the one hand, reason, as a (...) specific and differential faculty of the human being, must overcome the limits of its reduction to mere empirical scientism and redefine itself as a reason with an open horizon. On the other hand, the creation of works of art and the aesthetic experience constitutes a way of understanding the complexity and multiplicity of reality. Based on two classic works of art: "The kidnapping of the Sabinas" (Da Cortona) and "Liberty leading the people" (Delacroix) we propose a bio-aesthetic experience on the two fundamental axes on which the principles of the Declaration of UNESCO navigate, which are the centrality of the person and of society. Knowing and deepening such principles, through bio-aesthetic contemplation, is shown as a valid educational instrument, which entails the art of stimulating the capacity to reverberate the beauty existing in the world when good is manifested in human behavior and recognizing the transforming power of art, which facilitates a pedagogical and comprehensive assimilation of the principles of the UNESCO Declaration. (shrink)

In this book an international and multidisciplinary team addresses significant ethical questions about the rights to access, manage and interpret the material remains of the past.

This article contends that the environmental release of genetically engineered (GE) animals with heritable traits that are patented will present a challenge to the efforts of nations and indigenous peoples to engage in self‐determination. The environmental release of such animals has been proposed on the grounds that they could function as public health tools or as solutions to the problem of agricultural insect pests. This article brings into focus two political‐economic‐legal problems that would arise with the environmental release (...) of such organisms. To address those challenges, it is proposed that nations considering the environmental release of GE animals must take into account the underlying circumstances and policy failures that motivate arguments for the use of the modified animals. Moreover, countries must recognize that the UN International Covenant on Civil and Political Rights and the UN International Covenant on Economic, Social and Cultural Rights place on them an obligation to ensure that GE animals with patented heritable traits are not released without the substantive consent of the nations or indigenous peoples that could be affected. (shrink)

Over the last 30 years, the self-determination efforts and objectives of Indigenous peoples in Canada have increasingly been cast in the language of ‘recognition’ — recognition of cultural distinctiveness, recognition of an inherent right to self-government, recognition of state treaty obligations, and so on. In addition, the last 15 years have witnessed a proliferation of theoretical work aimed at fleshing out the ethical, legal and political significance of these types of claims. Subsequently, ‘recognition’ has now come to occupy (...) a central place in our efforts to comprehend what is at stake in contestations over identity and difference in colonial contexts more generally. In this paper, I employ Frantz Fanon's critique of Hegel's master–slave dialectic to challenge the now hegemonic assumption that the structure of domination that frames Indigenous–state relations in Canada can be undermined via a liberal politics of recognition. Against this assumption, I argue that instead of ushering in an era of peaceful coexistence grounded on the Hegelian ideal of reciprocity, the contemporary politics of recognition promises to reproduce the very configurations of colonial power that Indigenous demands for recognition have historically sought to transcend. (shrink)

There has been a long-standing debate about the roles of San in the militaries of southern Africa and the prevalence of violence among the Ju/'hoansi and other San people. The evolutionary anthropology and social anthropological debates over the contexts in which violence and warfare occurs among hunters and gatherers are considered, as is the “tribal zone theory” of warfare between states and indigenous people. This paper assesses the issues that arise from these discussions, drawing on data from San in (...) Angola, Namibia, Botswana, and Zimbabwe. Utilizing cases of how San have been affected by military forces and wildlife conservation agencies in what became protected areas in southern Africa, this article shows that indigenous peoples have been treated differentially by state and nongovernmental organizations involved in anti-poaching, shoot-to-kill, and forced resettlement policies. Particular emphasis is placed on the!Xun and Khwe San of southern Angola and northern Namibia and the Tshwa San of western Zimbabwe and northern Botswana, who have been impacted by militarization and coercive conservation efforts since the late nineteenth century. Principal conclusions are that conservation and militarization efforts have led to a reduction in land and resources available to indigenous people, higher levels of poverty, increased socioeconomic stratification, and lower levels of physical well-being. San have responded to these trends by engaging in social activism, forming community-based institutions, and pursuing legal actions aimed at obtaining human rights and equitable treatment. (shrink)

Over the last 30 years, the self-determination efforts and objectives of Indigenous peoples in Canada have increasingly been cast in the language of 'recognition' — recognition of cultural distinctiveness, recognition of an inherent right to self-government, recognition of state treaty obligations, and so on. In addition, the last 15 years have witnessed a proliferation of theoretical work aimed at fleshing out the ethical, legal and political significance of these types of claims. Subsequently, 'recognition' has now come to occupy (...) a central place in our efforts to comprehend what is at stake in contestations over identity and difference in colonial contexts more generally. In this paper, I employ Frantz Fanon's critique of Hegel's master–slave dialectic to challenge the now hegemonic assumption that the structure of domination that frames Indigenous–state relations in Canada can be undermined via a liberal politics of recognition. Against this assumption, I argue that instead of ushering in an era of peaceful coexistence grounded on the Hegelian ideal of reciprocity, the contemporary politics of recognition promises to reproduce the very configurations of colonial power that Indigenous demands for recognition have historically sought to transcend. (shrink)

This forward-looking resource offers readers a modern contextual framework for conducting social science research with indigenous peoples. Foundational chapters summarize current UN-based standards for indigenous rights and autonomy, with their implications for research practice. Coverage goes on to detail minimally-invasive data-gathering methods, survey current training and competency issues, and consider the scientist’s role in research, particularly as a product of his/her own cultural background. From these guidelines and findings, students and professionals have a robust base for (...) carrying out indigenous research that is valid and reliable as well as respectful and ethical. Among the topics covered: -/- · Cultural theories and cultural dominance. -/- · The legal framework of research in indigenous contexts. -/- · The role of language within indigenous peoples’ cultural rights. -/- · Methodology: how to optimally collect data in the field. · Researchers’ influence and philosophy of science. -/- · Learning how to prepare research in indigenous contexts. -/- Research Methods in Indigenous Contexts is an important reference benefitting a wide audience, including students and researchers in the social sciences, humanities, and psychology; decision-makers of NGOs and GOs that act with regard to humanitarian aid, for tourism projects, or any other contingency with indigenous contexts; and policymakers interested in the aspects of human activity upon which indigenous cultural concerns are based. (shrink)

Over the past few decades, Indigenous communities have successfully campaigned for greater inclusion in decision-making processes that directly affect their lands and livelihoods. As a result, two important participatory rights for Indigenous peoples have now been widely recognized: the right to consultation and the right to free, prior and informed consent (FPIC). Although these participatory rights are meant to empower the speech of these communities—to give them a proper say in the decisions that most affect (...) them—we argue that the way these rights have been implemented and interpreted sometimes has the opposite effect, of denying them a say or ‘silencing’ them. In support of this conclusion we draw on feminist speech act theory to identify practices of locutionary, illocutionary, and perlocutionary group silencing that arise in the context of consultation with Indigenous communities. (shrink)

In what follows we present group rights as portrayed in contemporary theoretical debates; compare this portrayal with some of the claims actually advanced by various indigenous groups throughout the world; and give reasons for preferring the practical to the theoretical treatments. Our findings suggest that liberal-individualist and corporatist accounts of group rights actually agree on the kind of importance that group interests have for persons and on what it is that groups who claim rights are concerned (...) about. Both liberal-individualists and corporatists locate the importance of group interests in the personal psychology of individual group members. As a result, both treat group interests (such as cultural integrity) as not only different in kind from individualized interests such as freedom of expression but as potentially in competition with them. In contrast, the real-world demands of indigenous groups place emphasis on concrete ways in which the preserving of communal life can be important to individuals’ well-being, in addition to the various spiritual and symbolic resources which such life may provide. These practical aspects of communal life make individuals’ group interests a lot like their individualized ones, and so suggest that group rights do not introduce new or distinctive theoretical questions. Instead, group rights are raise familiar questions about how individuals’ interests ought to be balanced against one another when they are in competition; what counts as an adequate institutional structure for the instantiation of a right; and who ought to be recognized as an authoritative judge of whether a right has been respected. (shrink)

In this paper we examine the epistemic treatment of Indigenous peoples by the Inter-American Court and Commission on Human Rights, two institutions that have sought to affirm the rights of Indigeno...

In lieu of an abstract, here is a brief excerpt of the content:The Declaration of Independence:Inalienable Rights, the Creator, and the Political OrderChristopher KaczorPierre Manent puts his finger on numerous problems that arise from an emphasis on human rights that is detached from any consideration of human nature, the Creator, or the traditions that inform human practice. In his book Natural Law and Human Rights: Towards a Recovery of Practical Wisdom, Manent writes: "Let us dwell a (...) moment on the proposition in which so much passion is invested today: man is the being who possesses rights. It resonates as our self-definition and our perspective on humanity, one that we take to have fortunately replaced other definitions and perspectives, such as that man is God's creature or that man is a political animal."1 Contemporary political discourse has arrived, so he thinks, at an impasse of contradiction, incoherence, and self-defeating beliefs.Manent finds a vital help for thinking through these issues in Thomas Aquinas,2 but perhaps also a useful resource is the work of Thomas Jefferson. In Natural Law and Human Rights, Manent cites the first article of the 1789 Declaration of the Rights of Man and of the Citizen: "Human beings are born and remain free and equal in rights."3 But Manent does not cite the Declaration of Independence drafted by Jefferson. The 1776 Declaration provides a way of addressing many of Manent's concerns about human rights, human nature, and equality because it combines an appeal to the Creator [End Page 249] with the establishment of rights grounded in human nature and defended by limited government. In order to approach some of the important political, religious, and philosophical questions raised in Natural Law and Human Rights, we can reconsider the famous "American proposition": "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." What exactly does this famous American proposition mean? Can it help us to address some of the concerns about incoherent political discourse that Manent highlights?We Hold These Truths to Be Self-EvidentWhat does "we hold these truths to be self-evident" mean? The interpretation of this phrase has generated no small amount of speculation.4 As Manent notes, appeals to self-evidence arise also today in disputes about same-sex marriage.5 Even if we cannot perfectly trace the remote or proximate historical origins of the phrase in 1776, we might still examine some possible meanings.For John Locke, a self-evident truth is akin to what later philosophers called an analytically true proposition.6 Such propositions are true in virtue of the agreement of the ideas that make up the proposition. "A bachelor is an unmarried man of marriageable age" is self-evidently true, since the idea of "bachelor" agrees with the idea "an unmarried man of marriageable age." It does not seem plausible that the self-evident truths of the Declaration of Independence were meant in this sense. The assertions of the Declaration are not true simply by agreement of ideas or by definition in a way that is obvious to anyone who is a native speaker.Thomas Reid suggests a different sense of self-evidence. On his view, [End Page 250] self-evidence does not mean obviousness to everyone, but rather clear to those with the requisite education and maturity: "Moral truths... are self-evident to every man whose understanding and moral faculty are ripe."7 If a person is conscious of no moral obligation whatsoever, then reasoning with such a person will not bring the person to understand his or her obligations. Just as mathematical calculations cannot begin without acceptance of basic axioms of mathematics, so too ethical reflection presupposes but does not establish its first principles. As Reid says, "the man who does not by the light of his own mind, perceive some things in conduct to be right, and others to be wrong, is as incapable of reasoning about morals as a blind man is about colours."8 Just as there are people who cannot see colors, so too there are people lacking the requisite moral... (shrink)

The 1970s and 1980s meant an ethnic politicization of the indigenous movement in Ecuador, until this moment defined largely as a class-based movement of indigenous peasants. The indigenous organizations started to conceptualize indigenous peoples as nationalities with their own economic, social, cultural and legal structures and therefore with the right to autonomy and self-determination. Based on this conceptualization, the movement developed demands for a pluralist reform of state and society in order to install a plurinational (...) state with wide degrees of autonomy and participation for indigenous nationalities. A part of those demands was the double strategy to fight for legal pluralism while already installing it at the local level. Even if some degrees of legal pluralism have been recognized in Ecuador since the mid-1990s, in practice, the local de facto practice prevails until today. Another central part of the demand for plurinationality is the representation of indigenous peoples in the legislative organs of the state, developing since their first appearance in the 1940s in a complex way. This article will analyze the development of right-based demands within the discourse of the indigenous movement in Ecuador, the visions of the implied state-reform and the organizational and political background and implication they have. Based on an analysis of the central texts of the indigenous organizations, conceptualizations of rights and laws and their appropriation within an autonomist discourse and a local practice will be highlighted. (shrink)

El presente trabajo investiga las tesis sobre el poder civil de Alonso de la Veracruz que buscan incorporar en la comunidad política española a los habitantes autóctonos del Nuevo Mundo, tesis que suelen relacionarse con F. de Vitoria y el tomismo español, y que últimamente son consideradas parte del republicanismo novohispano elaborado desde la periferia americana. Se busca demostrar que su propósito era aplicar una teoría de derechos naturales, sin que ello implique participación política de los indios americanos. Se analiza (...) la postura del fraile frente a la diversidad cultural y la guerra contra los indios. The paper explores Alonso de la Veracruz's theses on civil power, which sought to integrate the native inhabitants of the New World into the Spanish political community. These theses, which have usually been associated with F. de Vitoria and Spanish Thomism, have recently come to be considered part of a Novohispanic republicanism developed in the American periphery. The article seeks to show that the purpose of such theses was to apply a theory of natural rights that did not entail the political participation of the indigenous population, as well as to analyze Veracruz's position regarding cultural diversity and the war against the indigenous peoples. (shrink)

The political independence of the United States of America was proclaimed in a Declaration of Independence by the Second Continental Congress, in Philadelphia, on July 4, 1776. Thomas Jefferson drafted the document, and the changes made in the text reflected the struggle among different factions in the revolutionary camp. Jefferson's initial version was fundamentally retained, however; and that is precisely what makes the Declaration of Independence not merely a legal document but a vivid example of a bourgeois revolutionary (...) program expressing in concentrated form the ideology of the radical wing of the American Enlightenment. The form of the Declaration was an address to world public opinion explaining the causes and bases for the decisive political break of the 13 British colonies with the home country. In fact it provided a general philosophical justification for the validity of revolutionary change in the social order by the people. The Declaration became the legal ground for the American system of government, sanctioning its independence and serving as the basis for the documents of a constitutional nature that followed. The treatment of the nature of man and his rights is the most important feature of the revolutionary conclusions of the Declaration. (shrink)

Human rights declarations are instruments used to introduce universal standards of ethics. The UN’s Protect, Respect, and Remedy Framework (Ruggie, Protect, respect, and remedy: A Framework for business and human rights. UN Doc A/HRC/8/5, 2008; Guiding principles on business and human rights: Implementing the United Nations “Protect, Respect, and Remedy” framework. UN Doc A/HRC/17/31, 2011) intends to provide guidance for corporate behavior in regard to human rights. This article applies concepts from the field of organizational justice (...) to the arena of business and human rights for the purpose of operationalizing the UN Framework. This approach facilitates the recognition of gaps between perceptions of justice held by stakeholders versus businesses and/or the State. Such recognition raises the potential for addressing issues that lead to divergent perceptions of justice, thus potentially improving the human rights performance of businesses. The research also shows the potential for complicity of businesses in human rights abuses and exposes a fundamental weakness in the UN Framework, which attempts to draw a sharp distinction between duties of States versus responsibilities of business. We illustrate this approach through analysis of the case of Goldcorp’s Marlin Mine in Guatemala; an extractive industry project that affects indigenous communities. (shrink)

Indigenous Peoples, Consent and Benefit Sharing is the first in-depth account of the Hoodia bioprospecting case and use of San traditional knowledge, placing it in the global context of indigenous peoples’ rights, consent and benefit-sharing. It is unique as the first interdisciplinary analysis of consent and benefit sharing in which philosophers apply their minds to questions of justice in the Convention on Biological Diversity (CBD), lawyers interrogate the use of intellectual property rights to protect (...) traditional knowledge, environmental scientists analyse implications for national policies, anthropologists grapple with the commodification of knowledge and, uniquely, case experts from Asia, Australia and North America bring their collective expertise and experiences to bear on the San-Hoodia case. -/- While much of the focus is on bioprospecting and natural product development, Indigenous Peoples, Consent and Benefit-Sharing also draws important lessons about informed consent and benefit-sharing from the health sciences and sectors such as mining. Policymakers around the world are under significant pressure to resolve the challenges of implementing the CBD. This book’s analysis and recommendations will help them. -/- ‘It is good to see philosophers engaging with the UN Convention on Biological Diversity, and doing so by looking in depth at a real situation in which it has been invoked.’ Peter Singer, Ira W. DeCamp Professor of Bioethics in the University Center for Human Values, Princeton University . (shrink)

This paper explores the evolution of the Universal Declaration on Bioethics and Human Rights , which was adopted by the United Nations Educational, Scientific and Cultural Organization in 2005. While the draft UDBHR generated controversy among bioethicists, the process through which it evolved excluded mainstream bioethicists. The absence of peer review affects the declaration’s content and significance. This paper critically analyses its content, commenting on the failure to acknowledge socioeconomic and other factors that impede its implementation. The (...) UDBHR outlines ideal standards but fails to provide guidance that can be readily applied in different settings. It strives for universality but does not contribute to understanding of universal or global bioethics.The Universal Declaration on Bioethics and Human Rights was developed through multinational consultation over several years. It was officially adopted by the United Nations Educational, Scientific and Cultural Organization in October 2005.1 This paper explores the process of drafting the UDBHR, critically analyses its content and considers its status in the context of global bioethics. It comments on the UDBHR’s failure to acknowledge or respond to socioeconomic and other factors that impede attempts to implement it. The paper concludes that the process of drafting the declaration excluded a necessary group of stakeholders and that the UDBHR therefore fails to provide the guidance it aims to offer.Identifying a need to develop universally applicable ethical guidelines within a context of cultural pluralism, Unesco began developing a draft Declaration on Universal Norms on Bioethics. A near final draft was posted on Unesco’s website in February 2005 and replaced in June 2005 with the version subsequently adopted as the UDBHR. Stakeholder consultation on the draft involved hundreds of people in many diverse nations. These were seemingly limited to consultations with Unesco affiliates, however, and public comment was not solicited. …. (shrink)

It has been argued by some that the present non-existence of future persons entails that whatever obligations we have towards them are not based on rights which they have or might come to have. This view is refuted. It is argued that the present non-existence of future persons is no impediment to the attribution of rights to them. It is also argued that, even if the present non-existence of future persons were an impediment to the attribution of (...) class='Hi'>rights to them, the rights they will have when they come into existence constitute a constraint on present actions. Both arguments build on a suggestion of Joel Feinberg's. Next, three arguments are considered which, while they do not highlight the non-existence issue, are related to it. The view that the causal dependence, of (some) future people on present policies, erodes or weakens the claim that rights considerations should constrain our present actions concerning them, is considered and rejected. The view that future people can only have rights to what is available at the time at which these people come into existence is considered and rejected. So too is the view that the attribution of rights to future people involves, in virtue of resource scarcity, an unacceptable arbitrariness. (shrink)

En 2007, la Declaración sobre los Derechos de los Pueblos Indígenas fue adoptada por la Asamblea General con la mayoría de los estados miembros de las Naciones Unidas. La declaración tiene relevancia para cualquiera que esté al mando o en contacto con los pueblos indígenas. Un efecto central de la dominancia de la cultura globalizada sobre culturas indígenas es la asimetría de la percepción e influencia mutua. Debido a los efectos de la presión social externa de la globalización los pueblos (...) indígenas tienen poca libertad de elección. Ejercer su derecho a una autonomía cultural en educación y estilo de vida es muy difícil para los indígenas. Por parte de gobiernos, problemas con los derechos sobre la tierra son un obstáculo para reconocer la autonomía de los pueblos indígenas. Algunos artículos de la declaración de derechos indígenas son presentados que tienen relevancia para personas externas, como investigadores o turistas, en contacto con personas indígenas. -/- The Declaration on the Rights of Indigenous peoples is an instrument to combat inequalities on an international level. However, the implementation is still a matter of disregard and conflict, as states are reluctant to give up their privileges. Yet, with the Declaration, a foundation has been laid to claim acceptance and respect of indigenous lifestyles, the use of their territories by themselves, the passing-on of culturally specific knowledge to the next generations, and other aspects. The new situation of International Law also brought along consequences for any external person contacting an indigenous culture, be it scientists, tourists or others. (shrink)

The norms and ideals of human rights are increasingly invoked by civil society organisations to construct claims related to land tenure and access to food, particularly to challenge a massive expansion of agricultural investment in a developing country. While this has facilitated negotiations on rights and the formulation of claims, studies that investigate to what extent such endeavours achieve the transformational goals advocated by human rights proponents or in particular whether they have been successful in instigating any (...) institutional reform in the governance of massive agricultural modernisation projects are scanty. After discussing a national agricultural modernisation project, the Merauke Integrated Food and Energy Estate , set up in Merauke, Papua, the article concludes that the analysis of the transformative role of human rights requires a prudent examination of the role of the State in the negotiation process, the patterns of socio-cultural interactions signifying the political setting and the pressure experienced and perceived by actors that affect the issues selected and omitted. (shrink)

Thanks to mounting discussion about projected technologies’ possibly altering the species mentally and physically, philosophical investigation of what human beings are proceeds robustly. Many thinkers contend that whatever we are has little to do with how we should behave. Yet, tampering with what the human being is may tread upon human rights to be whatever one is. Rights given in widely recognized documents such as the U.N. Declaration of the Rights of Indigenous Peoples assume (...) what humans are and need depends upon ontological assumptions about human existence. Godman turns to human ontology—just what kind of beings humans are (from an angle distinct from the other two books) and how these play into rights. She is concerned with how well the social sciences accord with what we are. Gunkel homes in on a more specific moral topic than Godman's general concern with identity’s role in rights: automata moral status and rights. He enjoins us to inquire into what human rights are before we take on the new technologies’ challenge to it. Schneider’s Artificial You, while not explicitly about rights, poses a rights quandary. Certain individuals with reputable resources and practical backing explicitly seek to evolve the species as they see fit. The urgency among these works concerns how we need a sharper idea of what we are, how we should act and be treated, and how our rights fare among potential human improvements. (shrink)

The law sometimes permits what ordinary morality, or widely-shared notions of right and wrong, reproaches. Rights to Do Grave Wrong explores the relationship between law and common morality to clarify law's reliance on society's broad presumption that people will exercise their rights responsibly. More concretely, he argues that certain legal rights rest on tacit sociological assumptions as to who will exercise them, under what circumstances, and how frequently. Further, he argues that we depend on stigma and shame (...) to reduce and circumscribe the law's use. Some examples: though reneging on a debt is considered wrong, the law allows you to declare personal bankruptcy; international law allows museums to retain some masterworks looted from their rightful owners; in many countries abortion is permitted as a means of birth control. Using these examples and more, Osiel presents a "social scientific" analysis of law's interaction with social mores and the extent to which they limit our exercising rights to do wrong. The paradox he intends to elucidate is when and why it is appropriate for societies to champion de jure entitlements even as they successfully limit their de facto usage. (shrink)

The Islamic Republic of Iran is unsecular and follows religious interpretations from Shia Islam in deciding the laws of the land. In recent decades, the strengthening of civil society in the country has shaped various political debates on human rights among secular intellectuals and reflected in the discourse of some religious figures as well. While the regime has officially adopted the Cairo Declaration on Human Rights in Islam (CDHRI) since 1990, different views on the Islamic human (...) class='Hi'>rights and its social implications still exist among the conservative and reformist Shia clergy within the country. This paper examines the view of an influential conservative pro-regime clergy, Ayatollah Mesbah Yazdi, who has been concerned about the Western interpretation of human rights and engaged in its theorization based on his interpretation of Shia Islam. He has criticized the theoretical and philosophical foundations of the Universal Declaration of Human Rights (UDHR) and its each single item and has also proposed his own version of the Islamic Declaration of Human Rights and Obligations. While Islamic fundamentalists have no concrete theoretical support for their negative view of the Western conceptions regarding human rights, Mesbah Yazdi’s approach is based on a reading of Shia theology and Sadraean ontology. He engages in a dialogue with the Western ideologies and rejects UDHR after philosophical and theological reasoning. His stance can be viewed as a reflection of the unsecular political Shia Islam as the main characteristic of the conservative faction within the Islamic Republic of Iran which results in serious policy and social implications on the rights of the people living in the country. (shrink)

During the imperial period, French colonial law developed regimes of exception for indigenous peoples in contravention of the principles of the Declaration of the Rights of Man and the Citizen. These were justified by the need to secure order and by the claim that ‘natives’ were too ‘backward’ for the juridical principles upheld by the Declaration to apply to them. Introduced as temporary measures in Algeria in the 1840s, these measures, which discriminated between the French (...) settler ‘citizens’ and the native ‘subjects’, became firmly entrenched by the Third Republic, supported by the emergence of the ‘colonial sciences’ and the International Colonial Institute in the late 19th century. The exception became the rule. The colonial juridical regimes were derogatory of principle in two major ways: they subsumed universality to territoriality and defined the personhood of indigenous peoples according to racial, cultural or religious affiliations rather than as part of a shared humanity. Two particularly exorbitant measures of wide application were administrative internment without right of review and collective responsibility of a group for individual actions. Such regimes of exception persisted in French colonies until after World War II. (shrink)

During the imperial period, French colonial law developed regimes of exception for indigenous peoples in contravention of the principles of the Declaration of the Rights of Man and the Citizen. These were justified by the need to secure order and by the claim that ‘natives’ were too ‘backward’ for the juridical principles upheld by the Declaration to apply to them. Introduced as temporary measures in Algeria in the 1840s, these measures, which discriminated between the French (...) settler ‘citizens’ and the native ‘subjects’, became firmly entrenched by the Third Republic, supported by the emergence of the ‘colonial sciences’ and the International Colonial Institute in the late 19th century. The exception became the rule. The colonial juridical regimes were derogatory of principle in two major ways: they subsumed universality to territoriality and defined the personhood of indigenous peoples according to racial, cultural or religious affiliations rather than as part of a shared humanity. Two particularly exorbitant measures of wide application were administrative internment without right of review and collective responsibility of a group for individual actions. Such regimes of exception persisted in French colonies until after World War II. (shrink)

Article 14 of the UNESCO Declaration on Bioethics and Human Rights sets forth a few basic principles regarding social responsibility for health. It states in part that 14.1 The promotion of health and social development for their people is a central purpose of governments that all sectors of society share. 14.2 Taking into account that the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, (...) religion, political belief, economic or social condition, progress in science and technology should advance: access to quality health care and essential medicines, especially for the health of women and... (shrink)

Contemporary notions of what constitutes tribal self government for Indigenous Peoples in the legal systems of the nation-states Canada, New Zealand and the United States of America have their origins in philosophies and theories developed by European nation-states generally, in relation to their colonial expansion into what is now called the Americas. This thesis examines the nature of these theories, and how they have formed the basis for legal precedent and public policy in the three nation-states. A representative (...) analysis of three contemporary issues will serve to illustrate the outcome of this legal/political history. I look at three sites. These are the British Columbia Treaty Process in Canada, the Waka Umanga legislation in New Zealand, and legal developments arising from the Indian Reorganization Act in the United States. Full sovereignty from an Indigenous Peoples worldview existed for Indigenous nations, and with it, self government. The notion of self government as a viable and contemporary public policy initiative is well grounded in law and history. It would seem that current initiatives to acknowledge this inherent right are more about preserving colonial hegemony rather then engaging in honest negotiation. Current initiatives are converging into a single public policy goal; namely the corporatisation of Indigenous Peoples legal personality and self governing capacity. What used to be distinct nation-state development now seems to be a four nation-state (CANZUS) unified plan being implemented on four different fronts. Clearly, from the legal history, self government is something fundamentally different from self-management. The advent of Legal Positivism has played a significant role in assumptions that inherent sovereignty and self government never existed under European legal systems. The framework of tribal self governance must be viewed in the context of the values of the specific People to be a true expression of an Indigenous Nation exercising self government. This fundamental distinction can be traced back to the legal history. The foundational laws regarding interactions with Indigenous Peoples were developed under theories of natural law. The contemporary state practice is conducted under positivist law, with a nod toward developing human rights standards. Only through continued advocacy for the legal recognition of inherent rights will the nation-states be challenged on their self management agenda. (shrink)