This article discusses indigenousrights within the context of global governance. I begin by defining the terms “global governance” and “indigenous peoples” and summarizing the rights that are most important to indigenous peoples. The bulk of this article studies the global governance of indigenousrights in three areas. The first example is the creation of the 2007 UN Declaration on the Rights of Indigenous Peoples. A second example involves violations of (...) class='Hi'>indigenousrights brought before the Inter-American Court of Human Rights. A third case looks at a relatively new international regime created by indigenous peoples themselves—the Inuit Circumpolar Council. I conclude by using theories of sovereignty to assess the relative successes and failures of indigenous efforts to secure their rights. (shrink)
This chapter surveys attempts to provide liberal justification for specific rights available to Indigenous citizens of democratic societies. The most important of these, by Will Kymlicka, relied on the equal right of all citizens to the good of cultural membership to argue for specific rights to protect minority cultures. After noting that Rawls’s political liberalism offers other resources to argue for specific constitutional or legal rights for colonised Indigenous citizens, the chapter turns to consider James (...) Tully’s argument for an inter-cultural constitutionalism based on the principles of recognition, consent and continuity. Finally, the chapter refers to the work of Robert A. Williams Jr in order to suggest that the conditions of a just and fair colonial constitution are similar to the conditions of a just and stable political society in which there are incommensurable comprehensive moral views. (shrink)
This article argues that understanding “wild” land as terra nullius emerged during historical colonialism, entered international law, and became entrenched in national constitutions and cultural mores around the world. This has perpetuated an unsustainable and unjust human relationship to land no longer tenable in the post-Lockean era of land scarcity and ecological degradation. Environmental conservation, by valuing wild lands, challenges the terra nullius assumption of the vulnerability of unused lands to encroachment, while indigenous groups reasserting their rights to (...) communal territories likewise contest individual property rights. South American case studies illustrate routinized terra nullius prejudices. (shrink)
In India, Dalits faced a centuries-old caste-based discrimination and nowadays indigenous people too are getting a threat from so called developed society. We can define these crimes with the term ‘atrocity’ means an extremely wicked or cruel act, typically one involving physical violence or injury. Caste-related violence has occurred and occurs in India in various forms. Though the Constitution of India has laid down certain safeguards to ensure welfare, protection and development, there is gross violation of their rights (...) such as killing, murder, torture, burning, abduction, rape and molestation. According to a report by Human Rights Watch, “Dalits and indigenous peoples (known as Scheduled Tribes or adivasis) continue to face discrimination, exclusion, and acts of communal violence. Laws and policies adopted by the Indian government provide a strong basis for protection, but are not being faithfully implemented by local authorities.” Human rights issues are very often understood and analyzed from socio-political and cultural perspectives. Apart from such perspectives, the issue of human rights also can be analyzed from a strictly philosophical perspective, which implies that the idea of human rights is centered on the inspiration of human dignity. Several studies on the situation of human rights of Dalits in several parts of India show more reports on violation of human rights than on protection of them. Dalits are discriminated against, denied access to land, forced to work in degrading condition, and routinely abused at the hands of the police and higher-caste groups that enjoy state protection. For example, Dalit women are regularly subjected to sexual violence as a result of their lower caste status-often in response to their demands of basic rights. Hate crimes towards indigenous peoples is a daily reality in many countries across the globe. The challenge is to change such a dehumanized situation. The challenge is to each one of us that whether engaged in governance of the civil society or voluntarily engaged in social and economic development of society, one thing to remember is that leaving behind the vulnerable units of our society – Dalits and indigenous peoples – will not take us to a prosperous society. This paper is an attempt to study the situation of human rights of two most neglected segments of society namely, Dalits and STs as a serious international human rights issue. (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)
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)
Environmental degradation and extractive industry are inextricably linked, and the industry’s adverse impact on air, water, and ground resources has been exacerbated with increased demand for raw materials and their location in some of the more environmentally fragile areas of the world. Historically, companies have managed to control calls for regulation and improved, i.e., more expensive, mining technologies by (a) their importance in economic growth and job creation or (b) through adroit use of their economic power and bargaining leverage against (...) weak national governments, regional and international regulatory bodies. More recently, the industry has had to contend with another set of challenges that involved treatment of indigenous people and their traditional land rights, fair treatment of workers, human rights abuses, and bribery and corruption involving local officials and political leaders. These challenges currently fall outside the traditional areas of regulation and control. Nevertheless, they pose serious threat to the industry’s business practices because of their global scope, threat to company’s reputation, and long-term risks of political instability leading to increasing cost of capital. Industry has responded to these challenges by creating voluntary codes of conduct that would signify their intent to comply with higher standards of conduct, and assuage public opinion that no further action is called for. These codes, however, lack any monitoring mechanism and reporting integrity to assure the public that the industry members are indeed meeting their commitments. Consequently, pressure on the industry continues unabated and with ever increasing calls for mandatory regulation and oversight. This article examines the activities of one mining company, Freeport-McMoRan Copper & Gold, Inc., which has taken a radically different approach in responding to these challenges at its mining operations in West Papua, Indonesia. While cooperating with industry-based efforts of voluntary codes of conduct, Freeport also initiated a radically different response through its own voluntary code that would directly focus on issues of human rights, treatment of indigenous people on whose traditional land its mine was located; economic development and job creation and, improvements in health, education, and housing facilities, to name a few. Additionally, the company earmarked large sums of money and involved representatives of the indigenous people in their management and disbursement. The company took an even more radical action when it committed itself to independent external audits of the company’s compliance with the code, and that these findings and company’s responses would be made public without prior censorship by the company. We analyze the nature of corporate culture, vision and risk-taking propensities of its management that would impel the company to embark on a high risk strategy whose outcomes could not be predicted with any degree of certainty before the fact. The parent company also had to confront discontent among the management ranks at the mine site because of cultural differences and management styles of expatriates and local (Indonesian) managers. Finally, we discuss in some detail the extensive and intensive character of a two phase audit conducted by the outside monitors, their findings, and the process by which they were implemented and reported to general public. We also evaluate the strengths and challenges posed by such audits, their importance to the company’s future, and how such projects might be undertaken by other companies. (shrink)
Jeremy Waldron introduced the notion of rights supersession into the philosophical discussion about restitutive justice in cases of historic injustices. He refers to land claims by indigenous peoples as a real-world example and as an application of his theory of rights supersession. He implies that the changes that have taken place in settler states since the first years of colonialism are the kind of changes that lead to a supersession of land rights. The article proposes to (...) unbundle property rights into rights of benefit, control, use, and access and to distinguish between different forms of attachment. This strategy allows for a third option of restitution and supersession, namely partial restitution. Partial restitution grants current land holders those rights that they need to satisfy their attachments and basic distributive justice claims. At the same time, rights that are not needed for either purpose will revert back to indigenous peoples as the original owners. The article argues that the notion of partial restitution allows for far more extensive land rights than a less nuanced application of the supersession thesis. (shrink)
David Hollenbach, working within the context of human rights theory, has developed the notion of "indigenous pluralism" as a means of coping with the problems that arise when different religious traditions hold distinct or incompatible interpretations of human rights. It will be argued that indigenous pluralism is a theoretically and practically useful concept for bioethics as well and hence should be incorporated into bioethical methodology and processes of bioethical policy formation. Subsequently, the notion of indigenous (...) pluralism will be discussed in relation to determinations of death as a means of illustrating this concept's applicability to bioethical inquiry. (shrink)
Much controversy has existed over the claims of Native Americans and other indigenous peoples that they have a right—based on original occupancy of land, historical transfers of sovereignty, and principles of self-determination—to a political status separate from the states in which they now find themselves embedded. How valid are these claims on moral grounds? -/- Burke Hendrix tackles these thorny questions in this book. Rather than focusing on the legal and constitutional status of indigenous nations within the states (...) now ruling them, he starts at a more basic level, interrogating fundamental justifications for political authority itself. He shows that historical claims of land ownership and prior sovereignty cannot provide a sufficient basis for challenging the authority of existing states, but that our natural moral duties to aid other persons in danger can justify rights to political separation from states that fail to protect their citizens as they should. -/- Actual attempts at political separation must be carefully managed through well-defined procedural mechanisms, however, to foster extensive democratic deliberation about the nature of the political changes at stake. Using such procedures, Hendrix argues, indigenous peoples should be able to withdraw politically from the states currently ruling them, even to the point of choosing full independence. (shrink)
In 1996, the National Association of Salvadoran Indians participated in a UN-sponsored conference on the development of forest resources. Their involvement in the conference highlighted the growing international presence of Salvadoran indigenous organizations. Unfortunately, there is also very limited information available on these groups. As some have commented:The Salvadoran Indians … are an invisible or ghostly presence in the country: cautious in their public presence as an ethnic community, officially non-existent—yet still recognised by neighbours, local municipal governments and, most (...) importantly, by themselves as indios.As the country becomes more accessible to researchers and as indigenous Salvadorans gain a stronger foothold in the international forum, it is very likely indigneous peoples will emerge from the historical shadows to forcefully claim their rights as distinct members of Salvadoran society. The obstacles they face are not inconsequential. State opposition to indigenous organizations is strong and popular perceptions are often harder to dislodge than state policies. The widespread support gained by organizations like ANIS during the civil war proves that there is sympathy for indigenousrights. It remains to be seen to what extent ANIS and other organizations can use this support, and that of indigenous allies around the world, to promote the goals and aspirations of indigenous Salvadorans. While the issue of indigenousrights has long been discussed in other countries, it is only beginning to be addressed in El Salvador. (shrink)
In recent years, a number of important challenges have been raised about whether arguments for granting group rights in virtue of ethnicity can really stand up to scrutiny. Two of the most pressing issues involve whether granting rights to groups in virtue of ethnicity involves a certain unfairness to non-members and whether granting such rights licenses unfairness to members . If arguments for indigenousrights are to succeed, they must address these challenges and show how (...) there is no important unfairness to non-members or members.Several arguments for indigenousrights are discussed, to show how they fall prey to one or both of the unfairness objections. The article goes on to offer an argument as to how proponents of indigenousrights might respond to claims that such rights discriminate obnoxiously between groups. This approach can accommodate the force of indigenous peoples’ claims and so grant certain kinds of groups rights, without at the same time licensing the group's oppression of its more vulnerable members. Moreover, since the argument appeals to considerations typically thought persuasive in liberal theory, it should be attractive to liberals. (shrink)
The modern environmental movement has a tradition of respect for indigenous cultures and many environmentalists believe that there are important ecological lessons to be learned from studying the traditional life styles of indigenous peoples. More recently, however, some environmentalists have become more sceptical. This scepticism has been sharpened by current concerns with the cause of indigenousrights. Indigenous peoples have repeatedly insisted on their rights to pursue traditional practices or to develop their lands, even (...) when the exercise of these rights has implications in conflict with environmentalist values. These conflicts highlight some important questions in environmental ethics, particularly about the degree to which global environmental justice should be constrained by therecognition of indigenousrights. I explore some of these issues and argue for the relevance of the “capability approach” to environmental justice. (shrink)
Recent debate has focused on the use of intellectual property regimes for the protection of indigenous resources. Both domesticated crops and useful wild plants are shaped by indigenous knowledge and by their uses within indigenous cultures. This implies that the preservation of cultural systems is as important as the conservation of the associated biological resources. Intellectual property has been suggested as a means to protect indigenous resources from misappropriation, and to create increased investment in their conservation. (...) Four recent books that discuss the problems that arise from the application of IPR for the protection of indigenous resources highlight a salient issue: that current IPR systems may conflict and undermine the culture, social structure, and knowledge systems of indigenous societies. In order to support conservation through indigenous management of biodiversity, a number of steps are required for the negotiation of intellectual property systems that are more compatible with indigenous people's value systems and concepts of ownership. (shrink)
Waters aries that the demands of indigenous bio-prospecting programs need to be considered against the needs of indigenous communities. Issues of sovereignty and rights to self-determination need to be resolved in the context of negotiating bio-prospecting plans. By setting out clear guidelines and priorities, as determined through the eyes and values of indigenous peoples, indigenous communities may have an opportunity to participate in the global sharing of biomedical information and healing for all our relations. Before (...) any projects get underway, however, social, political, and legal issues ought to be settled so that informed decision can be made on the part of indigenous communities to partake of the invitation to bio-prospecting, or not. (shrink)
The legal and normative openness of human rights allows for the integration of new subjects, arenas, violators, and protectors of human rights. Indigenous movements manage to use this flexibility and implement their claims within the human rights system. Yet, indigenousrights cause manifold discussions and ambiguities, all of which are related to the question of the concept of indigeneity. In spite of the endeavor for pragmatic and flexible approaches, scopes and implications of concepts of (...) indigeneity need to be dealt with. This paper discusses both scope and implications, starting from hegemonic criteria for a working definition of indigeneity. It shows how indigenous identity is inextricably linked to its non-indigenous other. Subsequently, indigenous human rights entail specific repercussions in indigeneity being a resource and an imperative. Those repercussions stem from indigeneity being simultaneously a source and target of indigenous human rights claims and from the self-referential duplication of the right to indigeneity for indigenes, respectively. The provided tools for an analysis of the ambiguities of indigenous human rights contribute to their further and more just development, implementation, and monitoring. (shrink)
This paper is emphatically focused in the analysis on the indigenous problem such as it had been ruled by law in the different Venezuelan Constitutions since the foundation of the Republic in 1811. Our purpose does not go as far as to treat the ancestral indigenous problem in Venezuela because this would exceeds the limits of our study; although, we will do some references in relation to this question.
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.
In this paper I suggest a number of reasons for concluding that Australia's existing Plant Intellectual Property system is incompatible with the provision of adequate protection of ownership of indigenous peoples' traditional plant knowledge.
The author compares the strategies used in the conquest of the American West, the imperialism of the Third Reich, the creation of Bantustans in South Africa, and cautions against sanguine readings of the Oslo Peace Talks between Israel and Palestine. He concludes that the current agreements are in fact the last stages of Israeli conquest of Palestine.
It is crucial for indigenous people living in the Arctic to harvest animals by hunting in a traditional manner, as is the case with such peoples in other parts of the world. Given the nutritional, economic, and cultural importance of hunting for aboriginal people, it seems reasonable to say that they have the moral right to hunt animals. On the other hand, non-aboriginal people are occasionally prohibited from hunting a particular species of animal in many societies. The question then (...) arises: why can aboriginal people, unlike other citizens, have special hunting rights? If indigenous people are to have the right to hunt a particular species that other citizens are denied, then it presents a significant challenge to philosophers to explore the moral grounds that justify such a special right. This exploration is the subject of the current paper. (shrink)
Political theorists have begun to re-examine claims by indigenous peoples to lands which were expropriated in the course of sixteenth-eighteenth century European expansionism. In Australia, these issues have captured public attention as they emerged in two central High Court cases: Mabo (1992) and Wik (1996), which recognize pre-existing common law rights of native title held by indigenous people prior to European contact and, in some cases, continue to be held to the present day. The theoretical significance of (...) the two Australian cases is examined and the links drawn out between the current debate about Aboriginal land rights in Australia and the wider philosophical debate about indigenous land rights, property rights, and indigenous justice as characterized by Jeremy Waldron and James Tully. Justice towards indigenous groups requires substantial acknowledgement and recognition of the values and institutions of the relevant indigenous group; yet, these values and institutions may not readily fall under the framework of existing state structures. Attempts to redress injustice towards indigenous groups which do not question the justice of existing state institutions will therefore prove to be inadequate responses to indigenous peoples' demands for substantive justice. (shrink)
The claim that indigenous communities are entitled to have intellectual property rights (IPRs) to both their plant varieties and their botanical knowledge has been put forward by writers who wish to protect the plant genetic resources of indigenous communities from uncompensated use by biotechnological transnational corporations. We argue that while it is necessary for indigenous communities to have suchrights, the entitlement argument is an unsatisfactory justification for them. A more convincing foundation for indigenous community IPRs (...) is the autonomy theory developed by Will Kymlicka. (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)
In this paper I appropriate the philosophical critique of Michel Foucault as it applies to the engagement of Western science and indigenous peoples in the context of biomedical research. The science of population genetics, specifically as pursued in the Human Genome Diversity Project, is the obvious example to illustrate the contraposition of modern science and ‘indigenous science’, the tendency to depreciate and marginalize indigenous knowledge systems, and the subsumption of indigenous moral preferences in the juridical armature (...) of international human rights law. I suggest that international bioethicists may learn from Foucault’s critique, specifically of the need for vigilance about the knowledge/power relation expressed by the contraposition of modern science and ‘indigeneity’. (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)