Indigenous rights, traditional knowledge, and access to genetic resources - new participants in future international law making.

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 10:45 a.m., Friday, March 30, by its moderator, Stefan Matiation of the Privy Counsel Office, Government of Canada, who introduced the panelists: Mattias Ahren of the Saami Council; Merle Alexander of Boughton Law Corporation; and Valerie Phillips of the University of Tulsa College of Law. *


By Valerie Phillips ([dagger])

Indigenous peoples are not "new participants" in the international law arena. They have been bringing their issues and concerns to the attention of the international community since the League of Nations. They have simply not been "seen" by that community until recently.

My focus today is on how indigenous peoples are influencing how the role of the nation-state has been conceptualized in the law. First, I look at the traditional or historical role of the nation-state in the making of international law up to the so-called post-colonial period. Second, I assess changes that are becoming apparent in the current role of the nation-state under the influence of indigenous peoples' advocacy. These changes are nascent and prescient, taking the nation-state and international law beyond a post-colonial world. Finally, I argue that international law is really being moved toward a more inclusive, realistic "global-local law" in which the nation-state assumes a fundamentally different character in some quarters as a result of indigenous peoples' advocacy.


Maivan Clech Lam has already noted that, with respect to indigenous peoples, international law has assumed that the nation-state has exclusive power, indigenous peoples can only be their wards, nation-state territorial integrity is an end in itself, and that "certain geographies of subjugation just aren't subjugation." (1) She traces these assumptions in a useful timeline from the creation of the modern nation-state in the 1648 Peace of Westphalia to a process in which the nation-state became a people--such as occurred in the 1789 French Revolution--to peoples becoming nation-states in the League of Nations of 1914, to the Third World Decolonization Movement in which newly "decolonized" nation-states adhered closely to the original European script. (2) Throughout this timeline, indigenous peoples have been practically invisible.

Thus has arisen international law's conception of the nation-state as singular, centralized, sovereign, progressive, and even eternal. (3) Third World opposition and resistance to the fundamental assumptions of international law, but not necessarily the nation-state itself, have been articulated by scholars such as Mutua and Anghie. (4) Mutua, Anghie, Rajagopal, and others in Third World Approaches to International Law (TWAIL) assert that international law is an illegitimate regime. TWAIL includes among its goals the construction of an alternative normative legal edifice for international governance. Its work builds on that of third-world jurists of the so-called postcolonial world. (5) As I argue below, indigenous peoples' advocacy and impact goes beyond...

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