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Conceptualizing the Authority of the Sovereign State over Indigenous Peoples

Published online by Cambridge University Press:  08 October 2013

STEVEN WHEATLEY
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Abstract

The objective of this article is to evaluate whether the distinctive nature of the international law on indigenous peoples reflected in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) can be explained by reference to the service conception of authority developed by Joseph Raz. The article rejects arguments that the distinctive character of UNDRIP can be justified by ideas of ‘Indigenous Sovereignty’, not least because ‘sovereignty’ was developed in Western political thought in contradistinction to a constructed and imagined dystopian state of nature endured by the indigenous populations of the Americas. Instead, the work seeks to understand the UNDRIP regime in the light of Raz’s conceptualization of legitimate political authority, concluding that the inchoate and under-theorized international law on the rights of indigenous peoples becomes comprehensible within this framework.

Keywords

indigenous peoplesUNDRIPIndigenous SovereigntyJoseph Razlegitimate political authority
Type
INTERNATIONAL LAW AND PRACTICE
Information
Leiden Journal of International Law , Volume 27 , Issue 2 , June 2014 , pp. 371 - 396
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2013 

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References

1 The analysis does not address the world views of indigenous peoples or their narratives of conquest and dispossession, of broken promises and agreements; nor does it evaluate constitutionalist arguments on the accommodation of indigenous populations, or the role of the constructed identities of indigenous peoples in developing counterhegemonic discourses in world society. That is not to suggest that these issues are not important, nor to claim that the perspective of the discipline of international law should be privileged over others.

2 Jacques Maritain famously quipped during the process leading to the adoption of the Universal Declaration on Human Rights: ‘We agree about the rights but on the condition that no one asks us why’. Quoted in S. Moyn, The Last Utopia: Human Rights in History (2010), at 67.

3 Cf Kymlicka, W., ‘Theorizing Indigenous Rights’, (1999) 49 University of Toronto Law Journal 281CrossRefGoogle Scholar.

4 See generally on the international law on indigenous peoples: J. Anaya, Indigenous Peoples in International Law (2004; and P. Thornberry, Indigenous Peoples and Human Rights (2002).

5 Art. 27, International Covenant on Civil and Political Rights, adopted by GA Res. 2200A (XXI), 16 December 1966. See also Human Rights Committee, General Comment No. 23, ‘Rights of minorities (Art. 27)’, para. 7.

6 1989 Indigenous and Tribal Peoples Convention (No. 169), adopted by the General Conference of the International Labour Organisation, 27 June 1989 (hereafter ILO Convention 169).

7 GA Res. 61/296 ‘United Nations declaration on the rights of indigenous peoples’, adopted 13 September 2007, by 143 votes in favour to four against (Australia, Canada, New Zealand, and the United States). There were 11 abstentions. The dissenting states have subsequently expressed support for the Declaration: United States Endorses UN Indigenous Declaration’, 105 American Journal of International Law (2011) 354. The International Law Association's International Research Committee on Rights of Indigenous Peoples concluded that, whilst UNDRIP as a whole cannot be considered as a statement of customary international law, the provisions on political participation, autonomy, and self-government reflect existing customary obligations: International Law Association Resolution No. 5/2012, ‘Rights Of Indigenous Peoples’ Conclusions and Recommendations of the Committee on the Rights of Indigenous Peoples, adopted 75th Conference of the International Law Association held in Sofia, Bulgaria, 26 to 30 August 2012, para. 5. Available www.ila-hq.org/en/committees/index.cfm/cid/1024 (last visited 19 June 2013).

8 See Genugten, W. v., ‘Protection of Indigenous Peoples on the African Continent: Concepts, Position Seeking, and the Interaction of Legal Systems’, (2010) 104 American Journal of International Law 29CrossRefGoogle Scholar.

9 See Pasqualucci, J., ‘The Evolution of International Indigenous Rights in the Inter-American Human Rights System’, (2006) 6 Human Rights Law Review 281CrossRefGoogle Scholar; also Pasqualucci, J., ‘International Indigenous Land Rights: A Critique of the Jurisprudence of the Inter-American Court of Human Rights in Light of the United Nations Declaration on the Rights of Indigenous Peoples’, (2009) 27 Wisconsin International Law Journal 51Google Scholar.

10 Cf. Handolsdalen Sami Village and Others v. Sweden, App. No. 39013/04, Judgment, 30 March 2010; also Hingitaq 53 and Others v. Denmark, Reports of Judgments and Decisions 2006–I. Also Framework Convention for the Protection of National Minorities, CETS No. 157. See generally Barelli, M., ‘The Interplay between Global and Regional Human Rights Systems in the Construction of the Indigenous Rights Regime’, (2010) 32 Human Rights Quarterly 951, at 967–70CrossRefGoogle Scholar.

11 See Arts. 25, 26, 27, 28, 29, 30, and 32, UNDRIP.

12 Art. 1, UNDRIP.

13 See, for example, GA Res. 217(III)A, adopted 10 December 1948, ‘Universal Declaration of Human Rights’, which contains a limited number of absolute prohibitions, whilst elaborating a system of rights which may be subject to such limitations as required for the general welfare in a democratic society (Art. 29(2)). The model is one of democratic proceduralism, a point emphasized in Art. 21(3), which provides that the will of the people, expressed in periodic and genuine elections, shall be the basis of the authority of government. Art. 46(2), UNDRIP provides that the rights in the Declaration on Indigenous Peoples may only be subject to limitations as are determined by law ‘for meeting the just and most compelling requirements of a democratic society’. Art. 46(3) further provides: ‘The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.’

14 See Arts. 3, 5, and 18, UNDRIP. On the right of political participation generally, see Anaya, J., ‘Indigenous Peoples’ Participatory Rights in Relation to Decisions about Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples Have in Lands and Resources’, (2005) 22 Arizona Journal of International and Comparative Law 7, at 7Google Scholar; also World Bank Legal Department, ‘Legal Note on Indigenous Peoples’ (8 April 2005), para. 28; Arts. 6 and 7, ILO Convention 169; Vienna Declaration and Programme of Action, para. I (20); and Principle 22, Rio Declaration on Environment and Development, adopted 14 June 1992, UN Doc. A/CONF.151/5/Rev.1, (1992) 31 ILM 874.

15 Arts. 5 and 18, UNDRIP. In the 1993 Explanatory note to the draft declaration, Erica-Irene Daes observed that the internal aspect of self-determination requires the state and indigenous peoples to enter into good-faith negotiations to establish the ‘mutually-agreed and just terms’ of political accommodation in a process of ‘belated state-building’ which was inclusive of indigenous peoples after many years of exclusion: Discrimination against Indigenous Peoples, Explanatory Note Concerning the Draft Declaration on the Rights of Indigenous Peoples’ (prepared by Erica-Irene A. Daes), UN Doc. E/CN.4/Sub.2/1993/26/Add.1, 19 July 1993, para. 26.

16 Art. 19, UNDRIP provides that states are required to consult with indigenous peoples, ‘in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them’. On an issue of central importance to the distinctive cultural identity of indigenous peoples, Art. 19 requires that the state obtain the consent of the community before adopting or implementing legislative or administrative measures. In other circumstances, the state authorities are required to seek the consent of indigenous peoples, but there is no requirement to obtain their consent. This interpretation is supported by other provisions in UNDRIP (Arts. 10, 29(2), and 32(2)) and wider international practice: Art. 16(2) of ILO Convention 169; Art. 16, Nordic Saami Convention; Centre for Minority Rights Development (Kenya) and Minority Rights Group International on Behalf of Endorois Welfare Council v. Kenya, African Commission on Human and Peoples’ Rights, Communication 276/2003 (4 February 2010), paras. 281 and 291; Committee on the Elimination of Racial Discrimination, ‘General Recommendation XXIII on the Rights of Indigenous Peoples’, adopted 18 August 1997, para. 4 (d); Art. 15(5), Convention on Biological Diversity, 1760 UNTS 79 and CBD COP 7, Decision VII/16; World Commission on Dams, Dams and Development: A New Framework for Decision-Making (2000), Strategic Priority 1.4 (Gaining Public Acceptance). See further International Law Association, Conference Final Report Sofia 2012, at 3–7, www.ila-hq.org/en/committees/index.cfm/cid/1024 (last visited 19 June 2013). See generally Ward, T., ‘The Right to Free, Prior and Informed Consent: Indigenous Peoples Participation Rights within International Law’, (2011–12) 10 Northwestern Journal of International Human Rights 54Google Scholar.

17 Art. 4, UNDRIP provides that indigenous peoples ‘have the right to autonomy or self-government in matters relating to their internal and local affairs’. The object and purpose of autonomy or self-government is to enable indigenous peoples to exercise their right to self-determination. A number of writers argue that there is a right to autonomy or self-government for indigenous peoples in international law: Lenzerini, F., ‘Sovereignty Revisited: International Law and Parallel Sovereignty of Indigenous Peoples’, (2006) 42 Texas International Law Journal 155, at 186–7Google Scholar; also N. Wenzel, Das Spannungsverhältnis zwischen Gruppenschutz und Individualschutz im Völkerrecht (2008), 508, cited in Wiessner, S., ‘Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples’, (2008) 41 Vanderbilt Journal of Transnational Law 1141Google Scholar, fn 105; also Wiessner, S., ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Perspective’, (1999) 12 Harvard Human Rights Law Journal 57, at 127Google Scholar. Cf. Binder, Christina, ‘Autonomy as Means to Accommodate Cultural Diversity? The Case of Indigenous Peoples’, (2012) 6 Vienna Journal on International Constitutional Law 248, at 250Google Scholar.

18 Given the extent to which the ways of lives of indigenous peoples are connected to land, it appears improbable that the effective guarantee of the right could be achieved without some recognition of control by indigenous peoples of the lands and territories they have traditionally owned, occupied, or otherwise used or acquired. The conclusion is affirmed in Endorois Welfare Council v. Kenya, supra note 16, para. 157. See, on the importance of territorial autonomy for indigenous peoples, Daes, E.I., ‘The Concepts of Self-Determination and Autonomy of Indigenous Peoples in the Draft United Nations Declaration on the Rights of Indigenous Peoples’, (2001) 14 Saint Thomas Law Review 259, at 264–5Google Scholar.

19 Art. 34, UNDRIP provides that indigenous peoples ‘have the right to promote, develop and maintain their institutional structures . . . and, in the cases where they exist, juridical systems or customs’. Art. 35, UNDRIP provides that indigenous peoples ‘have the right to determine the responsibilities of individuals to their communities’. There has been limited recognition of the existence of indigenous law in other international-law instruments. The exception is Art. 8, ILO Convention 169. See also Art. 9, Nordic Saami Convention. See generally on the Nordic Saami Convention: Åhrén, M.et al., ‘The Nordic Sami Convention: International Human Rights, Self-Determination and Other Central Provisions’, (2007) 3 Journal of Indigenous Peoples RightsGoogle Scholar.

20 Art. 46(1), UNDRIP. The idea of self-determination evolved in four distinct phases: the recognition of a political right of national self-determination for certain populations in Europe following the First World War; a legal right to independence and the establishment of a sovereign state for the populations of non-self-governing and international trust territories, which benefited few indigenous peoples given the ‘salt-water’ test for the identification of ‘colonized’ peoples (although the Pacific islands states are an exception to this) and application of the principles of uti possidetis (decolonization in accordance with the boundaries established by the colonial power); a remedial right to secession where a territorially concentrated people is systematically excluded from public life and subject to serious human rights abuses; and recognition of a right of all peoples to self-determination (including indigenous peoples).

21 Kymlicka, W., ‘The Internationalization of Minority Rights’, (2008) 6 International Journal of Constitutional Law 1, at 17Google Scholar.

22 The idea of aboriginality is central to much political discourse around indigenous peoples. See, for example, Maaka, R. and Fleras, A., ‘Engaging with Indigeneity: Tino Rangatatiratanga in Aotearoa’, in Ivison, D.et al. (eds.), Political Theory and the Rights of Indigenous Peoples (2000), 89, 91Google Scholar. For a critical view, see Waldron, J., ‘Indigeneity? First Peoples and Last Occupancy’, (2003) 1 New Zealand Journal of Public and International Law 55Google Scholar.

23 The most widely cited definition in the literature is provided by UN Special Rapporteur J. Martínez-Cobo, Study of the Problem of Discrimination against Indigenous Populations, UN Doc. E/CN.4/Sub.2/1986/7/Add.4, para. 379. The central elements are the dispossession of territory through colonization or conquest; historical continuity with pre-invasion and pre-colonial societies; self-identification; cultural distinctiveness, in part defined by the relationship to land and existence of indigenous institutions; and the group being in a non-dominant position.

24 The criterion of colonization or conquest by European powers has proved influential in understanding the concept of indigenous peoples. See, for example, Anaya, supra note 4, at 3; also Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment of November 28, 2007 Series C No. 172, para. 86.

25 See, for example, Art. 1(2), ILO Convention 169.

26 See, for example, Report of the African Commission's Working Group of Experts on Indigenous Populations/Communities, submitted in accordance with the ‘Resolution on the Rights of Indigenous Populations/Communities in Africa. Adopted by the African Commission on Human and Peoples’ Rights at its 28th ordinary session (2005), at 92–3; also Endorois Welfare Council v. Kenya, supra note 16, para. 162; and I/A Court H.R., Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations and Costs, Judgment of 31 August 2001, Series C No. 79, para. 149, and IACHR, Xákmok Kásek Indigenous Community v. Paraguay, Series C No. 214, Judgment of 24 August 2010, para. 174.

27 See, for example, E.I. Daes, On the Concept of “Indigenous People”, UN Doc. E/CN.4/Sub.2/AC.4/1996/2, 10 June 1996, para. 69; Kingsbury, B., ‘“Indigenous Peoples” in International Law: A Constructivist Approach to the Controversy’, (1998) 92 American Journal of International Law 414, at 455CrossRefGoogle Scholar; and Scheinin, M., ‘The Right of a People to Enjoy Its Culture: Towards a Nordic Sami Rights Convention’, in Francioni, F. and Scheinin, M. (eds.), Cultural Human Rights (2008), 151, at 155–6Google Scholar.

28 See, for example, Thornberry, supra note 4, at 55; also Anaya, supra note 4, at 103.

29 See Anaya, supra note 4, at 151–2; and Wiessner, ‘Rights and Status of Indigenous Peoples’, supra note 17, at 121. See, also, World Bank OP 4.10, ‘Indigenous Peoples’ (July, 2005), para. 4; Inter-American Development Bank, Operational Policy on Indigenous Peoples, 22 February 2006, para. 1(1); and Daes, supra note 15, para. 43.

30 UN Doc. A/61/PV.107, at 11.

31 UN Doc. A/61/PV.107, at 13.

32 UN Doc. A/61/PV.107, at 14.

33 For a related development in international relations, see Shadian, J., ‘From States to Polities: Reconceptualizing Sovereignty through Inuit Governance’, (2010) 16 European Journal of International Relations 485CrossRefGoogle Scholar.

34 Wiessner, ‘Indigenous Sovereignty’, supra note 17, at 1170 ff.

35 Ibid., at 1174–5.

36 Graham, L. and Wiessner, S., ‘Indigenous Sovereignty, Culture, and International Human Rights Law’, (2011) 110 South Atlantic Quarterly 403, at 408CrossRefGoogle Scholar.

37 Ibid., at 410.

38 Lenzerini, F., ‘Sovereignty Revisited: International Law and Parallel Sovereignty of Indigenous Peoples’, (2006–7) 42 Texas International Law Journal 155, at 187Google Scholar.

39 Ibid., at 188.

40 Ibid., at 189.

41 Corntassel, J. and Primeau, T., ‘Indigenous Sovereignty and International Law: Revised Strategies for Pursuing Self-Determination’, (1995) 17 Human Rights Quarterly 343, at 361Google Scholar.

42 Porter, R., ‘The Meaning of Indigenous Nation Sovereignty’, (2002) 34 Arizona State Law Journal 75, at 75Google Scholar.

43 Macklem, P., ‘Distributional Sovereignty: Indian Nations and Equality of Peoples’, (1993) 45 Stanford Law Review 1311, at 1333CrossRefGoogle Scholar.

44 Ibid., at 1358.

45 Macklem, P., ‘Indigenous Recognition in International Law: Theoretical Observations’, (2008) 30 Michigan Journal of International Law 177, at 179Google Scholar.

46 Ibid., at 209 (emphasis added).

47 Ibid., at 202.

48 Albert Venn Dicey observes that the rule of law is ‘a trait common to every civilised and orderly state’: A. V. Dicey, Introduction to the Study of the Law of the Constitution (1887), at 180 (emphasis added). Brian Tamanaha also understands the idea of the rule of law exclusively in relation to the state-law system: B. Tamanaha, On the Rule of Law: History, Politics, Theory (2004), especially at 114–15. This is significant, as Tamanaha has persuasively argued elsewhere that we should not understand the concept of ‘law’ exclusively in terms of ‘state law’: B Tamanaha, A General Jurisprudence of Law and Society (2001), at 193.

49 Griffiths, J., ‘What Is Legal Pluralism?’, (1986) 24 Journal of Legal Pluralism and Unofficial Law 1CrossRefGoogle Scholar.

50 Earlier writers had not understood the political communities in the Americas as being fundamentally different from those in Europe. See, for example, F. de Victoria, De Indis; et, De Ivre Belli: Relectiones, edited by E. Nys (1917), at 131.

51 T. Hobbes, Leviathan, ed., with an introduction, by C.B. Macpherson (1968), at 187.

52 J. Locke, Two Treatises of Government, ed., with an introduction, by P. Laslett (1960), Bk II, at §108.

53 E. de Vattel, Le droit des gens, ou, principes de la loi naturelle: Appliqués à la conduite et aux affaires des nations et des souverains, with an introduction by A. de Lapradelle (1916), Bk. I. Ch. XVIII, at §203.

54 Ibid., at §205.

55 Ibid., at §207.

56 Ibid., at §208.

57 Ibid., Bk. I. Ch. VII, at §81.

58 John Austin, for example, defines a sovereign political community in opposition to natural societies in which the members ‘are connected by mutual intercourse, but are not members, sovereign or subject, of any society political’: J. Austin, Lectures on Jurisprudence, or, The Philosophy of Positive Law, revised and edited by R. Campbell (1885), at 225. Examples of sovereign political societies include ‘England, and every independent society somewhat advanced in civilization’; examples of natural societies in a state of nature include ‘[those] savage societies which subsist by hunting or fishing in the woods or on the coast of New Holland [i.e. Australia]’: ibid., at 227–8.

59 John Westlake concludes that ‘[a] group of men is fully sovereign when it has no constitutional relations making it in any degree dependent on any other group’: J. Westlake, The Collected Papers of John Westlake on Public International Law, edited by L. Oppenheim (1914), at 87. The distinguishing feature of ‘civilized’ peoples is government. The sovereign state has the capacity to protect the citizens of other civilized states through the executive and judicial organs of government. Where ‘a people of European race come into contact with American or African tribes, the prime necessity is a government under the protection of which the former may carry on the complex life to which they have been accustomed’: ibid., at 143. Wherever the ‘native inhabitants’ are incapable of furnishing such a government, ‘the first necessity is that such a government should be furnished’. The absence of effective government is evidenced by the inability of the indigenous populations to exclude European settlers from the territory: ibid., at 145.

60 First published in 1836 and updated in the early part of the twentieth century, Wheaton's Elements of International Law concludes that the state is distinguished ‘from an unsettled horde of wandering savages not yet formed into a civil society. The legal idea of a state necessarily implies that of the habitual obedience of its members to those persons in whom the superiority is vested . . . [and a] definite territory belonging to the people by whom it is occupied’: H. Wheaton, Wheaton's Elements of International Law, rev. throughout, considerably enl. and rewritten by C. Phillipson, with an introduction by the Rt Hon. Sir F. Pollock (1916), at 33. Wheaton observes that whilst the various European powers made different claims as to the basis of the acquisition of the territory in North America, ‘there was one thing in which they all agreed, that of almost entirely disregarding the right of the native inhabitants of these regions’: ibid., at 270–1.

61 Locke, supra note 52, Book II, at §49.

62 There might be one exception given the conceptual framework in which treaty obligations are understood. Sovereignty may be a useful rhetorical tool for understanding agreements (‘treaties’) between states and indigenous peoples, given that ‘treaties’ are understood to involve the conclusion of contractual bargains between equals with the obligation of the parties to keep to their agreements (pacta sunt servanda). See, for example, Brennan, S.et al., ‘“Sovereignty” and Its Relevance to Treaty-Making between Indigenous Peoples and Australian Governments’, (2004) 26 Sydney Law Review 307Google Scholar.

63 J. Raz, The Morality of Freedom (1986), at 47.

64 Raz, J., ‘Facing Up: A Reply’, (1988–9) 62 Southern California Law Review 1153, at 1180Google Scholar.

65 Raz, supra note 63, at 62. The same conclusion does not, however, apply in the case of directives that violate fundamental rights: ‘some immoralities may be of a kind that no government has authority to commit’: ibid., at 79. Raz accepts that fundamental rights establish a ground for challenging authority directives, and in doing so determine the conditions of legitimacy of the authority and the limits of its power: ibid., at 46. Given that the directives of legitimate authorities provide content-independent reasons for compliance, it must be the case that certain laws do not bind the subjects of authority directives even when adopted by a legitimate authority, although the implications of this conclusion are beyond the scope of this article.

66 Ibid., at 62.

67 Hurd, H., ‘Challenging Authority’, (1991) 100 Yale Law Journal 1611, at 1634CrossRefGoogle Scholar.

68 Raz, J., ‘The Problem of Authority: Revisiting the Service Conception’, (2006) 90 Minnesota Law Review 1003, at 1018Google Scholar.

69 Raz, supra note 63, at 59.

70 Ibid., at 53.

71 Ibid., at 61.

72 Besson, S., ‘The Authority of International Law: Lifting the State Veil’, (2009) 31 Sydney Law Review 343, at 355–6Google Scholar.

73 Waldron, J., ‘Authority for Officials, in Meyer, L.et al. (eds.) Rights, Culture and the Law: Themes from the Legal and Political Philosophy of Joseph Raz (2003), 45, at 66Google Scholar, referred to in Besson, supra note 72, at 356.

74 Raz, supra note 68, 1035.

75 Raz, supra note 63, at 74.

76 In the case of political authorities, Raz argues that the requirement to solve co-ordination problems means that they should be in a position of ‘real power’, i.e. de jure political authorities should also be de facto authorities, and in the case of the state, this will require the use of coercive force to ensure compliance with its authority directives: Raz, supra note 68, at 1036.

77 Himma, K., ‘Just’ Cause You’re Smarter than Me Doesn't Give You a Right to Tell Me What to Do: Legitimate Authority and the Normal Justification Thesis’, (2007) 27 Oxford Journal of Legal Studies 121, at 144CrossRefGoogle Scholar.

78 Raz, supra note 63, at 69.

79 See Tucker, A., ‘The Limits of Razian Authority’, (2012) 18 Res Publica 225CrossRefGoogle Scholar, at 232.

80 Raz, supra note 68, at 1014.

81 Ibid., at 1015–6.

82 Raz, supra note 64, at 1183.

83 Raz, supra note 68, at 1016.

84 Raz, supra note 64, at 1227.

85 See, for example, Dworkin, R., ‘Thirty Years On (Book Review: The Practice of Principle, by Jules Coleman)’, (2002) 115 Harvard Law Review 1655, at 1672CrossRefGoogle Scholar; also Christiano, T., ‘The Authority of Democracy’, (2004) 12 Journal of Political Philosophy 266, at 279CrossRefGoogle Scholar.

86 D. Rondel, ‘Raz on Authority and Democracy’, 51 Dialogue 211, at 218. Scott Hershovitz concludes that the service conception is inadequate for understanding important features of democratic societies in which law is the mechanism through which people make collective decisions that (in ideal circumstances) are the result of participatory procedures. The fact of engagement and participation is, according to most procedural understandings, more important that getting the ‘right’ answer. Hershovitz, S., ‘Legitimacy, Democracy, and Razian Authority’, (2003) 9 Legal Theory 201CrossRefGoogle Scholar, at 218. There are, of course, other conceptions of democratic legitimacy that emphasize the epistemic qualities of democracy – an idea closely associated with Jürgen Habermas’s deliberative democracy, which establishes that, in conditions of disagreement, (political) ‘truth’ equates to the consensus that would be arrived at through dialogue in an ideal speech situation, where positions are accepted as legitimate only where agreed through uncoerced discussions by those affected by the outcomes of the process: J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. W. Rehg (1996).

87 See, for example, Sadurski, W., ‘Law's Legitimacy and “Democracy-Plus”, (2006) 26 Oxford Journal of Legal Studies 377, at 387CrossRefGoogle Scholar.

88 Raz, supra note 64, at 1229 (emphasis added).

89 Raz, supra note 68, at 1030.

90 Ibid., at 1031.

91 Ibid., at footnote 20.

92 Where religious, cultural, or other social norms conflict with a state-law norm, the dominant understanding is that state law operates in a ‘jurispathic’ manner, killing off the other norm, or refusing to apply it in the particular case: Cover, R., ‘Nomos and Narrative’, (1983) 97 Harvard Law Review Association 4, at 40Google Scholar.

93 Raz, supra note 68, at 1020.

94 Ibid., at 1021.

95 Ibid., at 1022.

96 Arts. 11(2) and 27, UNDRIP.

97 Art. 40, UNDRIP.

98 Art. 34, UNDRIP.

99 The Conference of the Parties of the Convention on Biological Diversity defined customary law as ‘law consisting of customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws’. Adopted by CBD COP 7, Decision VII/16, para. I (6) (c).

100 Art. 5, UNDRIP (emphasis added). The provision must be read in light of Arts. 18, 20, and 34 of UNDRIP. There is no express right to ‘create’ institutions, although the right of indigenous peoples to self-determination provides a right to ‘determine their political status’ (Art. 3, UNDRIP). Once established, indigenous peoples have the right to ‘maintain and strengthen’ relevant political and legal institutions.

101 The UN Declaration on the Rights of Indigenous Peoples further provides that indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures: Art. 33(2), UNDRIP.

102 See Arts. 34 and 35. Art. 34, UNDRIP establishes that ‘Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.’ Art. 35, UNDRIP establishes that ‘Indigenous peoples have the right to determine the responsibilities of individuals to their communities.’

103 See Arts. 3, 4, and 5, UNDRIP.

104 Art. 3, UNDRIP establishes that indigenous peoples have the right to self-determination. Art. 4 establishes that, in exercising their right to self-determination, indigenous peoples have ‘the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions’.

105 Art. 5, UNDRIP: ‘Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.’

106 Art. 18, UNDRIP: ‘Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.’

107 Art. 18, UNDRIP.

108 Raz, supra note 63, at 46. See also footnote 64 of this article.

109 According to Raz’s interventionist account, human rights delimit the circumstances in which it is appropriate for those outside the state to take an interest in the internal affairs of the state, disabling any claim that sovereignty should cloak those with political power from external interest and intervention: Raz, J., ‘Human Rights without Foundations’, in Besson, S. and Tasioulas, J. (eds.), The Philosophy of International Law (2010), 321 at 331Google Scholar. Human rights are, according to the interventionist account, sovereignty-limiting measures, and we should not confuse legitimate political authority with state sovereignty, which limits the permissibility of outsiders interfering in the affairs of a state, even when the state is wrong: ibid., at 328. See also Raz, J., ‘Human Rights in the Emerging World Order’, (2010) 1 Transnational Legal Theory 31CrossRefGoogle Scholar.

110 States recognize the importance of maintaining inter-state contractual bargains (pacta sunt servanda); the value of developing norms through the collective experience of legal actors in the absence of a centralized authority (customary international law); and the importance of a coherent system of general international law, reflected in the acceptance of the authority of international law and the norms and principles of general international law. See J. Tasioulas, ‘The Legitimacy of International Law’, in Besson and Tasioulas, supra note 109, at 97.

111 Cf. Art. 33, United Nations Commission on Human Rights Sub-Commission on Prevention of Discrimination and Protection of Minorities: Draft United Nations Declaration on the Rights of Indigenous Peoples, adopted 26 August 1994, 34 ILM (1995) 541.

112 Where a self-governance regime is established under the constitution of the state, the regime is subject to international human rights law (as a matter of international law). The state is not responsible under international law for the autonomous legal systems of indigenous peoples, although it is responsible for any failure to regulate activities within its jurisdiction that result in a violation of human rights. See Commentary on Article 5, Articles on Responsibility of States for Internationally Wrongful Acts (with commentaries), in Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), reprinted in J. Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (2002).

113 See, generally, Miranda, L., ‘Indigenous Peoples as International Lawmakers’, (2010) 32 University of Pennsylvania Journal of International Law 203Google Scholar; also K. Knop, Diversity and Self-Determination in International Law (2002), at 260–5; and Charters, C., ‘A Self-Determination Approach to Justifying Indigenous Peoples’ Participation in International Law and Policy Making’, (2010) 17 International Journal on Minority and Group Rights 215CrossRefGoogle Scholar.

114 The UN Special Rapporteur on Indigenous peoples, James Anaya, has asserted that UNDRIP ‘represents an authoritative common understanding, at the global level, of the minimum content of the rights of indigenous peoples, upon a foundation of various sources of international human rights law’: Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Human Rights Council, UN Doc. A/HRC/9/9, 11 August 2008, para. 85.

115 See supra notes 30–2 (and accompanying text).