How does one defend globalization while facing the aftermath of the COVID-19 pandemic that entrenched historic degrees of inequality within and between countries? Sergio Puig's recent book, At the Margins of Globalization: Indigenous Peoples and International Economic Law, sets out to do just that with a focus on Indigenous peoples' interests as the driving concern. The book's main argument is that Indigenous peoples should engage with international economic law in order to bring in their perspectives into intellectual property, finance, trade, and investment regimes and advocate for their respective people's interests. Puig reasons that such an engagement is worthwhile because international economic law has the potential to be more progressive than it is today. The final payoff put forward is that if Indigenous peoples can duplicate the gains they have made in international law, especially in human rights, in international economic law, they can also transform international economic law. Indigenous peoples’ engagement with international economic would make the field more inclusive and adept at addressing socio-economic inequality thereby allowing them potentially to reap the benefits of globalization.
The book's premise is that globalization is built upon a capitalist structure. At the Margins of Globalization, however, too quickly dismisses critical engagement with the concept of capitalism, radical challenges to capitalism, and the causes of inequality. I highlight the limits that arise when one elides radical interventions and does not also interrogate the concepts of capitalism and indigeneity. Nevertheless, this book provides a good account of the relationship between Indigenous peoples’ and international economic law.
The book opens in Chapter 1 with a discussion of globalization that informs the style and prescriptions of the entire book. Puig begins by noting that the grim perspective on globalization has rightly led to the current crisis of trust; by 2016 politicians in countries that had previously benefited from globalization were turning against it. The argument he puts forward is that the benefits and harms of globalization are framed differently depending on where on stands. Each frame will highlight certain dynamics of globalization and obscure others. At the Margins of Globalization argues that is important to assess all the different frames and perspectives in order to gain a “wholistic” understanding of globalization (p. 11). Of course, there is no Archimedean point and one still has to adopt a frame, even for a “wholistic” understanding. Puig therefore adopts the frame of “groups subjugated and marginalized by the process of globalization,” with a focus on Indigenous peoples’ perspective (id.).
At the Margins of Globalization catalogs the number of different standard framings and narratives that have been used to argue that globalization will lead to peace and prosperity. The book then presents the counterpoints, which have included arguments that globalization is an economic system rigged by the elite, has resulted in the concentration of corporate power, has undone domestic labor markets, reconfigured geoeconomics power amongst countries, undermined human and environmental well-being, and/or is continuation of colonialism. In turn, Puig provides a response to each anti-globalization counterpoint, such as: measuring corporate power does not clearly provide a clear measure of inequality; lost jobs are often the result of automatization and ineffective domestic retraining programs; geoeconomic concerns are essentially nationalist in nature; sustainability claims often leave out the perspective of the most vulnerable communities; and claims regarding the continuation of colonialism are pessimistic, unempirical, and overly political.
Cataloging rhetorical or discursive moves is very useful. But it is important to be careful as to what conclusions one draws from this approach. The argument put forward in the book is that “all these forms of contestation to the standard narrative are used to advance different causes [and interests]” and that “none of these [anti-globalization] perspectives directly espouses the interests of groups that suffer from political marginalization and economic vulnerability such as indigenous groups” (p. 18).
I think more work would have been required to better understand the social contexts and stakes of these pro- and anti-globalization narratives, especially since the meaning of arguments often change depending on where and when these arguments are made and by whom. The anti-globalization narratives arose from a host of mass global movements that took to the streets to mobilize against the brutal effects of globalization. In fact, Indigenous peoples were active participants in these mobilizations and deployed many of these anti-globalization arguments.Footnote 1 The author does note that some Indigenous movements aligned “more directly with radical perspectives” and focused on concerns regarding sustainability and colonialism (p. 19). At the Margins of Globalization provides no explanation of the goals those Indigenous movements pursued, what arguments they advanced and which they shied away from, and, most important, why these claims did not align with Indigenous rights, interests, and grievances more broadly.
More specifically, the book puts forward that the anti-globalization narratives ignore the hard-won special protections for Indigenous peoples in human rights law. It is quite right and important to take seriously the autonomous space for Indigenous peoples within international law and institutions. But it is also important to track the complex relationships and encounters that Indigenous peoples have developed through international law. It may not be that the anti-globalization narratives ignore hard-won special protections for Indigenous peoples. It could be that at times, the anti-globalization narratives or movements support, negotiate with, or sometimes undermine the distinct position of Indigenous peoples.
Here is an example of how Indigenous peoples have had to navigate these complexities—the UN Declaration of Indigenous Peoples (UNDRIP)Footnote 2 is one of the most important political victories in international law for Indigenous peoples. Historically, UNDRIP epitomizes Indigenous peoples’ radical activism within the UN that was enabled through relationships of solidarity with Third World governments and anti-colonial liberation movements within the UN in the 1970s.Footnote 3 One substantive win within UNDRIP is Article 10, which is the codification the doctrine of “Free, Prior and Informed Consent” (FPIC), which stems from Indigenous peoples’ right to self-determination.Footnote 4 FPIC has been a key tool in Indigenous peoples’ struggle against land and territorial grabs enabled by investment, trade, and corporate law. FPIC ensures that Indigenous peoples shall not be forcibly removed from their lands or territories. And that no relocation shall take place without the free, prior, and informed consent of the Indigenous peoples concerned and after agreement on just and fair compensation, and, where possible, with the option of return. An example of what this means in practice is that Indigenous peoples can provide or withhold/withdraw consent, at any point, regarding projects impacting their territories. FPIC also ensures Indigenous peoples engage in negotiations to shape the design, implementation, monitoring, and evaluation of projects.
Meanwhile, the food sovereignty movement arose in the mid-1990s in direct response to globalization and most acutely against the World Trade Organization calling for its end. The movement, which itself includes Indigenous peoples, and their lawyers, wanted something similar to FPIC but for peasants during the negotiations of the UN Declaration on the Rights of Peasants and other People Working in Rural Areas (UNDROP).Footnote 5 Rural lands in general, like Indigenous peoples’ territories, were also threated by large-scale commercial interests. But during UNDROP negotiations, Indigenous peoples and their state allies were worried that the food sovereignty might undermine the unique status of Indigenous peoples in international law. The result when UNDROP was adopted by the General Assembly in 2018 was Article 2.3, which was inspired by but also reconciled with UNDRIP. Under this provision, UNDROP obliges states to “consult and cooperate in good faith with peasants and other people working in rural areas through their own representative institutions . . . ensuring active, free, effective, meaningful and informed participation of individuals and groups in associated decision-making processes” but “without disregarding specific legislation on indigenous peoples.”Footnote 6
The strength of this book is its rich description of the relationship between Indigenous peoples and international economic law. Puig, a professor at the European University Institute, has been a leading voice in the new area of “International Indigenous Economic Law,”Footnote 7 and the book provides an invaluable reference for anyone interested in Indigenous rights and international economic law.Footnote 8 He begins by outlining briefly Indigenous peoples’ human rights in international law. With this in mind, he then offers a very well-researched analysis of how those rights are both protected and challenged under intellectual property, finance, trade, and investment regimes (Ch. 3). The purpose of this chapter is to highlight in these different international economic legal regimes the specific indigenous interests that are protected and the legal forms in which they are. This chapter does not flinch from international economic law's shortcomings, but also highlights progressive potential within these regimes. The analysis is complemented by a series of vignettes describing Indigenous peoples’ actual experience under these regimes, highlighting the Kuna and San peoples’ experience with intellectual property law, the Huave and Maasai peoples’ experience with international finance, the Inuit and Guarani-Kaiowá peoples’ experience with global trade, and the Quechan, Haudenosaunee, and Sawhoyamaxa peoples’ experience with cross-border investment (Ch. 4). Puig acknowledges that these case studies highlight how Indigenous peoples have often not fared particularly well under these regimes; nevertheless he also presents these cases as examples of how Indigenous peoples have engaged with these regimes and resisted certain harms arising from global market integration or have taken advantage of economic liberalization.
The book carries within it the tension between reform and radicalism that permeates most of international law. The book's premise is that we currently live in a world dominated by “the dysfunction of liberal capitalist societies, many embedded in a culture of unconstrained freedom, individual choice and consumption with limited responsibility toward both our planet and shared futures.” Therefore—as the argument continues—this dysfunction of capitalism “calls for a more active and radical reimagining of the state and its relationship with production, distribution and consumption” (p. 2). I think there is a growing consensus across international law that this is one of the important calls to action for our times.
At the Margins of Globalization, however, does not focus on the concept of capitalism as such. The book instead highlights “some avenues for reform based on the (limited) successful experiences of indigenous advocates in navigating the complex web of institutions for global economic governance” accompanied by self-described “modest solutions” (id.). Puig's target for transformation is international economic law. He is confident that international economic law can be transformed in a way that would ameliorate global structural inequality, and he sees Indigenous rights as the progressive force that would transform international economic law in such a way (p. 144).
This goal is commendable. And Puig's recommendations may very well be sound tactical advice in some instances. The book includes a short but lucid description of how international economic law has harmed Indigenous peoples through processes of “susceptibility [to harm] and exclusion” (Ch. 2). The focus is on the fact that “negative effects [of globalization] result from the diminished ability of Indigenous peoples to enjoy the widely documented benefits of economic interdependence” (pp. 23–24). Puig's argument is that if Indigenous people engaged more actively with international economic law, then they could reap the benefits of globalization. And in turn, if international economic law recognized Indigenous peoples rights, then international economic law could transform in a way to address global inequality.
However, transforming international economic law by any means does not necessarily lead to a more equitable world. I think to take up the challenge put forward by the book—determining how can Indigenous people engage with international economic law to gain more benefits—may require also asking: why are Indigenous peoples marginalized and made vulnerable in the first place? The limits of not asking that question is well-illustrated by the book's discussion of the meaning of “Indigenous.” Puig rightfully notes that there is no authoritative definition of “Indigenous peoples” in international law; rather, indigeneity is a status that a people self-designate. One factor that is considered relevant to understanding who is Indigenous is the “experience of subjugation, marginalization, dispossession, exclusion, or discrimination” (p. 40, quoting S. James Anaya, Indigenous Peoples in International Law 3–4 (2d ed. 2004)). Puig notes that what makes Indigenous peoples unique is that their historical experience has been a struggle for autonomy and self-determination and the “protection of their culture and territories and the property and resources therein” (p. 41). The result is that Indigenous peoples are “appropriately viewed as simultaneously distinct from, yet part of larger unites of social and political interaction, . . . the states within which they live and the global community itself” (p. 43).
However, if the book is arguing that Indigenous peoples are politically, socially, and culturally semi-autonomous, but economically part of globalization and marginalized, one needs a fuller explanation of what is going on. One could start with the notion that “Indigenous” is a relational term that is only given meaning in the context of colonialism. The concept of “Indigenous” in international law at times has been used to denigrate people but has also been used to empower people. A people become Indigenous when faced with colonial forces in the form of settlers or external political economic forces gaining access to and control of land and territory. Today, it is clear that Indigenous peoples still struggle against colonialism in countries that are constituted as settler colonies in places like the United States, Canada, Australia, New Zealand, and Israel. Similarly, the Sámi people, the Inuit people in Greenland, and Indigenous peoples in Russia struggle within states that have historically expanded their borders as part of the state's attempt to incorporate contiguous or nearby Indigenous territory. More complicated still are the situations of Indigenous peoples whose struggle began under formal colonialism and continues today within post-colonial states, such as the Maasai people in Tanzania and Kenya. Thus, Indigenous peoples’ struggles raise questions over how different contemporary forms of colonialism relate to international economic law. In each case, one would have to take into account the historical and legal process in which these different peoples became Indigenous within each state. This would have to be followed by working out how the process of becoming Indigenous created the conditions of how a particular people were able to engage in international law, whether through human rights or international economic law or otherwise.
Likewise, a deeper engagement with the foundations and operations of international economic law would examine how the field itself creates particular “Indigenous” identities within particular colonial histories and contexts. Puig calls for international economic law to recognize Indigenous rights and claims. For example, Puig highlights the Inuit struggle against the EU's ban against the importation of seal products and the concomitant case that played out at the World Trade Organization (WTO) as an example of how “the international trade system has recognized the importance of human rights and has been adapted to accommodate indigenous interests” (p. 131).
However, sometimes international economic law does recognize, if not at times constitute, Indigenous rights but to the detriment of Indigenous peoples. Puig's reading of the EU seal ban case at the WTO is a common reading in international economic law. But this reading does not align with the argument put forward by the Inuit people. The EU banned the importation of seal products and made an exception to allow seal products “traditionally” hunted by Inuit hunters into the European market. The WTO Appellate Body criticized the EU for treating Inuit in Greenland differently from Inuit in Canada, and mandated that the EU provide equal market access to all Inuit people.Footnote 9 By only focusing on the legal arguments within institutional structures, one might leave out the Inuit argument that the Indigenous exception in the EU seal ban legislation was ineffective and based on racists assumptions in which Europeans get to decide what is legitimate and “traditional” Inuit hunting practice—both the EU or WTO ignored the issue of Inuit sovereignty in the Arctic.Footnote 10 In one sense, the WTO Appellate Body did recognize Indigenous identity—but the critical point is that this recognition was not on Indigenous peoples’ own terms. The Appellate Body instead allowed the EU to structure its seal market through neo-colonial definitions of “Indigenous.” The Appellate Body approved a framework that still allowed the EU to define “Indigenous” in a way that best served European interests—all trade law did was ensure that the EU applied its rules equally to all Indigenous hunters. Meanwhile, Inuit seal hunters were hit hard by the resulting EU seal ban legislation, which depressed the seal market and created administrative restrictions through the Indigenous exemption.Footnote 11 The EU changed its seal ban laws in response to the WTO decision to grant all Indigenous hunters equal access to the European market. But as Inuit people predicted and confirmed by a recent study commissioned by the European Council, the 2015 EU Seal Regime undermined the entire global seal market and is “having adverse effects on Inuit or other Indigenous communities, and certification requirements have imposed an undue burden and disincentive on Inuit producers and EU purchasers.”Footnote 12 This is not to say that Indigenous people should not engage with international economic legal regimes. But seeking recognition within international economic regimes can cause more harm than good in some instances. What we might learn from the different readings of this case is that when thinking about how to engage with international economic law, it is important to map out the stakes in their entirety and include both legal discourse and institutional outcomes.
To understand how the negative effects against Indigenous people are generated, it might be useful to read this book in parallel with recent scholarship that focuses on international law and capitalism (and not globalization). This scholarship highlights how the current global political economic system depends on, creates, and is defined by many of the inequalities we witness and experience.Footnote 13 One way to do this is to track how law informs social categories—such as race, gender, and ability—in a way that devalues things like land, life, and labor. Scholars then outline how these legal/social categories make it easier for those with significant purchasing power to take advantage of particular forms of inequality, detailing how those with purchasing power can more easily accumulate wealth by controlling land, populations, or work conditions—which in turn, creates more inequality. This research suggests that the inequality is structural and constitutes the global political economy and is not symptomatic as implied in this book.
Along the same lines of navigating the tension between reform and radical change, At the Margins of Globalization presents human rights optimistically and as a coherent and uncontested body of rules. Puig notes that he is emphasizing human rights law's emancipatory potential (p. 3). To fully understand that potential, it is still important to also work out the ambiguities of human rights. Upendra Baxi regularly highlights human rights’ emancipatory potential along with how it was also used as a trade-related market-friendly regressive tool.Footnote 14 At the Margins of Globalization is more full in its account of international economic law by describing both its regressive effect and progressive potential. International economic law's potential is taken to arise from its purported “liberal values” (p. 4), “freedom” (p. 118), “liberty and opportunity” (p. 122), and that its purpose is to emphasize the “expansion of transnational finance, trade, and investment volumes” and foster “economic activity, development and growth” (p. 106). The book goes so far as to conclude that international economic law and human rights have overlapping principles of “personal freedom” and “non-discrimination” (p. 146). The meaning of these concepts, however, are not self-explanatory and are at the core of legal and political debates. The terms “freedom” and “non-discrimination” mean something very different in human rights law than they do in international economic law.Footnote 15 In fact, the two doctrines that constitute “non-discrimination” in international economic law—most favored nation and national treatment—mean different things in trade law than they do in investment law.Footnote 16
A vibrant debate amongst and within Indigenous communities is whether and on what terms they should engage not only with international economic legal regimes, but also with capitalism more broadly. Indigenous perspectives on these questions span the same range of positions being put forward all over the world: to some, capitalism creates markets that operate as spaces of individual freedom, and the problem with international economic law is that the rules are applied with racist bias;Footnote 17 others argue that “for our nations to live, capitalism must die”;Footnote 18 and to still others, capitalism is not inherently problematic and they see substantive expressions of self-determination as an opportunity to fundamentally transform current forms of capitalism.Footnote 19 At the Margins of Globalization engages with Indigenous arguments that consider markets as spaces of individual freedom and those that want to transform international economic law through direct engagement. It rather quickly dismisses arguments against capitalism as “vague, improbable in the short-term and impossible to cross-examine with more objective analysis” (p. 3). In light of recent Indigenous scholarshipFootnote 20 and scholarship in international law interrogating capitalism,Footnote 21 this proposition might have been made too hastily. One need not agree with anti-capitalist positions, but today one must at least take them seriously and substantively engage with anti-capitalist arguments. Puig's main advice to Indigenous advocates is to work within international economic law to resist globalization's brutal effects. At times, this can be sound tactical advice. However, he conflates working within the system with a reformist agenda. Indigenous peoples’ hard-won victories in international human rightsFootnote 22 demonstrate that one can work within the system and still pursue a radical agenda.
