Chapter 5, ‘New Epoch, Old Stones?’, is the conclusion of the book. It first synthesizes the findings of the examination of practice conducted throughout Chapters 3 and 4, setting out a statement of the scope and content of the emerging rule in (European) international law. Then, by reference to the persistent limitations to participation, it raises questions about what and who the proliferation of mechanisms for Indigenous participation – and the emergence of a legal standard in custom – serves. The chapter engages with the work of Indigenous political theorists to question whether current mechanisms for Indigenous participation in global governance may in part function to legitimize and protect (neo)colonial global economic and political structures. This does not invalidate the conclusion that the right is part of customary international law, nor is it to say that the project of Indigenous peoples’ participation in international governance is not necessarily worth pursuing. Rather, it serves to highlight the limitations of the right, the contingencies of its application, and ultimately to gesture at a space to develop alternative possibilities for Indigenous internationalism and sovereignty.

This chapter should be read as an ideological (self-) critique of the role and function of critical legal scholarship in the rise of the “social” after 1960, first, at national level, later, at EU level. Critical legal scholars have all too often understood critical legal theory as practice of theory, in which law is there to help to protect the weaker parties in society and to compensate for the imbalance of power. The decline of the welfare state and the “neoliberal move” in the EU teaches us that law can be politicised not only to promote the “social” in the name of justice but also to de-construct the “social” in the name of economic efficiency. The revival of the political economy provides for an opportunity to re-think the role of law in the secular compromise between capitalism and democracy.