+(,121/,1(

Citation: 10 Or. Rev. Int'l L. 419 2008

Provided by:

Content downloaded/printed from HeinOnline

Thu Nov 24 10:56:44 2016
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from
uncorrected OCR text.
-- To obtain permission to use this article beyond the scope
of your HeinOnline license, please use:
Copyright Information

LILLIAN APONTE MIRANDA*

Uploading the Local: Assessing the

Contemporary Relationship Between
Indigenous Peoples' Land Tenure Systems and
International Human Rights Law Regarding
the Allocation of Traditional Lands and
Resources in Latin America
I.
II.
III.

IV.

Indigenous Peoples as Subjects of International Law .... 423

Indigenous Peoples' Contemporary Claims to Lands
and Resources Under Human Rights Law ...................... 428
Indigenous Peoples' Litigation Regarding Their
Traditional Lands and Resources Before the InterAmerican Commission on Human Rights and the
Inter-American Court of Human Rights ......................... 433
The Contemporary Relationship Between Indigenous
Peoples' Land Tenure Systems and Human Rights
444
L aw .......................................................................................
A. Why and how was it possible for indigenous
peoples to participate in the substantive
reconstitution of international human rights law? ... 445

B. In what ways do indigenous peoples' legal orders

interact with and influence the international

Assistant Professor of Law, Florida International University College of Law. I

am grateful for the feedback I received from fellow participants at the Oregon
Review of International Law's Second Annual Symposium: Multiscalar Civil
Society?: Legal Pluralism and Inequality. I am also thankful for the comments of
Jorge Esquirol, Hari Osofsky, and Charles Pouncy as well as the research assistance
of Sophia Bodero, Natalie Castellanos, and Rodney Montoya.

420 OREGON REVIEW OF INTERNATIONAL LAW

V.

[Vol. 10,419

human rights legal order, and thereby, national

legal orders? .................................... . . .. .. . . . .. . . .. . .. . . .. . . .. . . . 447
C. What does such interaction reveal regarding the
potential engagement of legal pluralism as an
instrumental tool and the more traditional
engagement of legal pluralism as a descriptive
to o l? ............................................ .. . .. . . . .. . .. . . .. . . .. . . .. . .. . . .. . . . 448
Conclusions and Remaining Questions ............................ 451

Indigenous peoples in Latin America face a continuing

struggle to regain, or maintain, control of the lands they have
traditionally used and occupied since time immemorial.' While
several states in Latin America have engaged in recent
constitutional and legislative reforms that recognize and grant
rights to indigenous peoples vis-A-vis their traditional lands and
resources, such reforms often fall short of providing indigenous
peoples with full collective rights of ownership.2 Moreover,
other states in the region have continued to resist any formal

I See, e.g., Allison M. Dussias, Indians and Indios: Echoes of the Bhopal Disaster
in the Achuar People of Peru's Struggle Against the Toxic Legacy of Occidental
Petroleum, 42 NEw ENG. L. REV. 809 (2008); Lillian Aponte Miranda, The U'wa

and Occidental Petroleum: Searchingfor Corporate Accountability in Violations of

Indigenous Land Rights, 31 AM. INDIAN L. REV. 651 (2007); Maria McFarland
Snchez-Moreno & Tracy Higgins, No Recourse: TransnationalCorporationsand

the Protection of Economic, Social, and Cultural Rights in Bolivia, 27 FORDHAM

INT'L L.J. 1663 (2004); David E. Cahn, Homeless for Generations: Land Rights for
the Chocoe Indiansfrom Mogue, Panama,28 FORDHAM INT'L L.J. 232 (2004); Maxi
Lyons, A Case Study in Multinational Corporate Accountability: Ecuador's
Indigenous Peoples Struggle for Redress, 32 DENV. J. INT'L L. & POL'Y 701 (2004);

Judith Kimerling, Rio + 10: Indigenous Peoples, Transnational Corporationsand

Sustainable Development in Amazonia, 27 COLUM. J. ENVTL. L. 523 (2002); Scott

Holwick, Note, TransnationalCorporate Behavior and Its Disparate and Unjust

Effects on the Indigenous Cultures and the Environment of Developing Nations: Jota
v. Texaco, A Case Study, 11 COLO. J. INT'L ENVTL. L. & POL'Y 183 (2000); Judith

Kimerling, DisregardingEnvironmental Law: Petroleum Development in Protected

NaturalAreas and Indigenous Homelands in the EcuadorianAmazon, 14 HASTINGS
INT'L & COMP. L. REV. 849 (1991).
2 ROOUE ROLDAN ORTIGA, MODELS FOR RECOGNIZING INDIGENOUS LAND
RIGHTS IN LATIN AMERICA (World Bank Env't Dep't, Biodiversity Series No. 99,
2004); see also S. James Anaya & Robert A. Williams Jr., The Protection of

Indigenous Peoples' Rights Over Lands and Natural Resources Under the InterAmerican Human Rights System, 14 HARV. HUM. RTS. J. 33 (2001); Jo M.

Pasqualucci, The Evolution of InternationalIndigenous Rights in the Inter-American

Human Rights System, 6 HUM. RTS. L. REV. 281 (2006).

2008]

Uploadingthe Local

recognition of indigenous peoples' rights regarding their

traditional lands and resources.
In particular, a marked increase in the number of natural
resource extraction projects, often executed through the joint
efforts of states and transnational business enterprises, has
aggravated the threat to indigenous peoples' ability to control
their traditional lands and resources The execution of natural
resource extraction projects typically implicates indigenous
peoples' land tenure systems and formal state law regarding the
ownership and allocation of the territory at issue. Thus, these
projects often force an interface between the distinct legal orders
of indigenous peoples and the state
Viewed through the lens of legal pluralism, the co-existence of
indigenous law and domestic law in such context is an enduring
symptom of the superimposition of colonial legal systems upon
the pre-existing normative order of indigenous communities.6
3 Countries like El Salvador, Guyana, Suriname, and Uruguay have made little or
no effort to respond to the demands of indigenous people in regards to legal
recognition of their land claims. See ORTIGA, supra note 2. For example, the
United Nations Committee on the Elimination of Racial Discrimination, the United
Nations Human Rights Committee, the United Nations Commission on Human
Rights' Special Rapporteur on the situation of human rights and fundamental
freedoms of indigenous peoples, and the Inter-American Court of Human Rights
have all concluded that Suriname "does not legally recognize the rights of members
of indigenous and tribal peoples to their communal land, territories, and resources."
Saramaka People v. Surin., 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, 98 (Nov. 28,
2007) [hereinafter Saramaka].
4 See Lillian Aponte Miranda, The Hybrid State-Corporate Enterprise and
Violations of Indigenous Land Rights: Theorizing Corporate Responsibility and
Accountability Under InternationalLaw, 11 LEWIS & CLARK L. REV. 135 (2007);
see also Lisa J. Laplante, Out of the Conflict Zone: The Case for Community
Consent Processes in the Extractive Sector, 11 YALE HUM. RTS. & DEV. L.J. 69
(2008).
5 See infra Part III.
6 The literature on legal pluralism provides a rich context for the analysis in this
Essay. Legal pluralism literature categorized as "classic" or "juristic" studies the
dynamics and consequences resulting from the co-existence of state law and
indigenous law in colonized societies. See Sally Engle Merry, Legal Pluralism, 22
LAW & SOCY REV. 869 (1988). It consists of a variety of anthropological studies
that reveal the dynamics and consequences of legal colonial transplants. See, e.g.,
John Griffiths, What is Legal Pluralism?,24 J. LEGAL PLURALISM & UNOFFICIAL
L. 1 (1986); Leopold Pospisil, Modern and TraditionalAdministration of Justice in
New Guinea, 19 J. LEGAL PLURALISM UNOFFICIAL L. 93 (1981). Studies of
"classic" legal pluralism have been distinguished from more recent studies engaging
a "strong," "deep," or "new" legal pluralism. Merry, supra, at 872. Studies of
"new" legal pluralism move beyond an analysis of legal plurality exclusively within
colonized societies toward an analysis of legal plurality possible in any society,

422 OREGON REVIEW OF INTERNATIONAL LAW

[Vol. 10, 419

As a means of challenging domestic law, and thereby furthering

their contemporary claims to ownership, occupancy, use, and

control of their traditional land and resources in the context of

natural resource extraction projects, indigenous peoples in Latin

America have strategically engaged in human rights litigation at
Accordingly, the resolution of
the international scale.7

indigenous peoples' contemporary claims in Latin America with

respect to their traditional lands and resources has evolved from
including first-world industrialized societies. Id. at 872-73; see, e.g., Stewart
Macaulay, Images of Law in Everyday Life: The Lessons of School, Entertainment
and Spectator Sports, 21 LAW & Soc'Y REV. 185 (1987); Gordon R. Woodman,
What is the Commission About?, 14 NEWSLETrER OF THE COMMISSION ON FOLK
L. AND LEGAL PLURALISM 3 (1987-88). Specifically, studies of "new" legal
pluralism focus on the interactions between "dominant groups" and "subordinate
groups." Merry, supra, at 873. "New" legal pluralism moves toward a "dialectical
analysis of relations among normative orders" that provides a framework for
understanding how law is imposed and how law is resisted. Id. at 890. In that vein,
it acknowledges a "porous legality" or "legal porosity" that conceptualizes
"different legal spaces [as] superimposed, interpenetrated, and mixed in our minds,
as much as in our actions." Id. at 888 (discussing the work of Boaventura de Sousa
Santos). Furthermore, such "porous legality" or "legal porosity" has been analyzed
as a multi-scalar phenomenon whereby local, national, and international legal
orders repeatedly interact and impact each other. See Boaventura de Sousa Santos,
The Heterogeneous State and Legal Pluralism in Mozambique, 40 LAW & SOC'Y
REV. 39 (2006). Sally Engle Merry proposes that "new" legal pluralism could serve
as the basis for a "fruitful ... reanalysis of classic legal pluralism." Merry, supra, at
886. Moreover, building upon the anthropological literature on legal pluralism, a
recent wave of scholarship by international law scholars focuses on the study of
legal pluralism at the global scale. See, e.g., Janet Koven Levit, Bottom-Up
Lawmaking Through a Pluralist Lens: The ICC Banking Commission and the
TransnationalRegulation of Letters of Credit, 57 EMORY L.J. 1147 (2008) (engaging
the insights of legal pluralism literature as a lens for thick description and narrative
of "bottom-up" international lawmaking by private bankers); Paul Schiff Berman,
Global Legal Pluralism, 80 S. CAL. L. REV. 1155, 1156 (2007) (drawing on legal
pluralism literature to propose a "useful alternative approach to the design of
procedural mechanisms, institutions, and practices" at the global scale); Hari M.
Osofsky, Climate Change Litigation as Pluralist Legal Dialogue?, 26A STAN.
ENVTL. L.J. (Special Issue) 181 (2007) (using legal pluralism as a lens for examining
climate change litigation at the national and subnational level as processes of
international lawmaking); William W. Burke-White, International Legal Pluralism,
25 MICH. J. INT'L L. 963 (2005) (arguing that the emergence of an international
legal pluralism can lead to a strengthening of the international legal order).
7 See, e.g., Carrie E. Garrow, Following Deskaheh's Legacy: Reclaiming The
Cayuga Indian Nation's Land Rights At The Inter-American Commission On
Human Rights, 35 SYRACUSE J. INT'L L. & COM. 341 (2008); Maia S. Cambell & S.
James Anaya, The Case of the Maya Villages of Belize: Reversing the Trend of
Government Neglect to Secure Indigenous Land Rights, 8 HUM. RTS. L. REV. 377
(2008); Julie Ann Fishel, United States Called to Task on Indigenous Rights: The
Western Shoshone Struggle and Success at the InternationalLevel, 31 AM. INDIAN L.
REV. 619 (2007); Anaya & Williams, supra note 2.

2008]

Uploadingthe Local

a dyadic interaction between indigenous peoples' land tenure

systems and formal state law to a more complex interaction
between indigenous peoples' land tenure systems, formal state
law, and formal human rights law.
Given such context, this Essay poses the following question:
What is the genesis and nature of the contemporary relationship
between indigenous peoples' land tenure systems and formal
human rights law? To that end, Part I contextualizes the analysis
in this Essay by surveying indigenous peoples' "emergence" as
subjects of international law capable of contributing to a
specialized discourse of human rights that acknowledges their
land tenure systems. Part II discusses the capability of orthodox
human rights law to accommodate indigenous peoples'
contemporary claims to their traditional lands and resources
based on their own land tenure systems. Part III analyzes the
contemporary relationship between indigenous peoples' land
tenure systems and formal human rights law by focusing on the
jurisprudence emanating from the Inter-American Commission
on Human Rights and Inter-American Court of Human Rights
that specifically addresses indigenous peoples' land and resource
rights in the context of natural resource extraction projects.
Based on such analysis, Part IV concludes with an assessment of
the genesis and nature of the contemporary relationship between
indigenous peoples' land tenure systems and formal human
rights law as well as the possible legal pluralism insights that may
be drawn from such relationship.
Ultimately, this Essay
proposes that indigenous peoples have been successful in
strategically identifying core normative precepts derived from
their traditional land tenure systems and uploading such
precepts at the international scale. Based on such assessment,
this Essay further offers some initial conclusions regarding a
broader understanding of such phenomenon.
I
INDIGENOUS PEOPLES AS SUBJECTS OF INTERNATIONAL LAW

The very idea of indigeneity is rooted in, and exists as a result

of, historical processes of colonization.8
Furthermore,
hegemonic, ideological myths associated with processes of
8

See

RONALD NIEZEN, THE ORIGINS OF INDIGENISM: HUMAN RIGHTS AND

THE POLITICS OF IDENTITY 4-5 (2003);

INDIGENOUS PEOPLES AND HUMAN RIGHTS

see also PATRICK

37-38 (2002).

THORNBERRY,

424 OREGON REVIEW OF INTERNATIONAL LAW

[Vol. 10,419

colonization have played a role in limiting the status and rights

of indigenous peoples under international law: myths. of savage
inferiority, colonial annihilation, gradual assimilation, and sociopolitical dependence on state structures.9 Nevertheless, during
the past forty years, indigenous and non-indigenous activists and
scholars have pronouncedly interrogated these hegemonic,
ideological fictions. 0 In the context of overarching normative
and political shifts," such examination has lead to a more
comprehensive and less discriminatory ideology of indigenous
peoples partially grounded on indigenous peoples' accounts of
their experiences.
Communities of indigenous peoples have sought to harness
this developing ideology to gain legal redress for their historical
oppression and contemporary claims at the international scale.
This continuously evolving ideology is primarily one of
indigenous peoples' survival as distinct communities now
constrained within domestic and international legal and
institutional systems that did not foresee their endurance. In this
vein, indigenous peoples have extolled their cultural, religious,
and political differences as reasons for greater legal autonomy.
Ultimately, recent legal developments in human rights law
reflect a recognition, accommodation, and progression of such
ideology.
Efforts aimed at the achievement of legal redress forced
indigenous peoples to confront their historical exclusion under
9 See Elena Circovic, Self-Determination and Indigenous Peoples in International
Law, 31 AM. INDIAN L. REV. 375, 388-89 (2007); see also NIEZEN, supra note 8, at

34.
10 See S. JAMES ANAYA,

INDIGENOUS PEOPLES IN INTERNATIONAL LAW 56

(2004) (proposing that the "international system's contemporary treatment of

indigenous peoples is the result of activity over the last few decades ... [which] has
involved, and substantially been driven by, indigenous peoples themselves").
II See LUIS RODRIGUEZ-PIllERO, INDIGENOUS PEOPLES, POSTCOLONIALISM,
AND INTERNATIONAL LAW: THE ILO REGIME (1919-1989)

259-60 (2006)

(situating a shift toward the increased status of indigenous peoples and the
affirmation of indigenous rights during the last quarter of the century within the
confluence of several normative and political changes, including: (1) a
"paradigmatic shift from an uncontested notion of 'development' typical of the
post-war era" toward a model of "'participatory' development"' or "'ethnodevelopment,"' (2) a progression in the liberal model of "'universal citizenship"'
based on notions of assimilation and integration toward a model of "multicultural
citizenship" based on the acknowledgement of cultural distinctions, and (3) a
"generalized political and intellectual attack" on existing anthropological
conceptions of indigenism that promoted integrationist governmental policies).

2008]

Uploadingthe Local

the international legal framework. Indeed, the international

legal order did not always recognize indigenous peoples as
bearers of distinct rights vis-A-vis those of states, individuals, or
minorities. The "emergence" of indigenous peoples as distinct
subjects of international law did not become part of
international law discourse until the latter part of the twentieth
century.
During the colonial period of the fifteenth and sixteenth
centuries, debates ensued regarding the appropriate relationship
between "newly discovered" first peoples and colonizing
powers. At that time, colonized first peoples were ideologically
constructed as irrational, uncivilized savages. For the most part,
under the philosophy of natural law prevalent in that period,
irrational, uncivilized first peoples were not considered bearers
of natural rights.
Moreover, during the post-colonial period of state formation,
the doctrine of sovereignty developed from a Eurocentric
perspective to privilege existing European or European-derived
territorial arrangements as states."
States were ultimately
deemed the proper autonomous subjects of international law. 4
Because indigenous peoples' distinct associational, social, and
political structures did not resemble the contours of the
territorial state, indigenous peoples were not considered subjects
of international law.'5 This Eurocentric perspective ultimately
failed to account for indigenous peoples' inherent sovereignty.
As a consequence, the management of indigenous peoples was
relegated to the domestic level and many states adopted the
concept of trusteeship as a means of qualifying their legal and
social relationship with indigenous peoples.'6

12 See generally BARTOLOMIt

DE

LAS

CASAS,

HISTORY

OF THE

INDIES:

SELECTIONS (Andr6e Collard ed. & trans., 1971); FRANCISCO DE VITORIA, DE

INDIS ET DE IVRE BELLI RELECTIONES (laques Boyer ed., J. Bat trans., 1557;
Alonso Mufloz ed., 1565; Johann G. Simon ed., 1969, Classics of International Law
Series 1917).
13 In his comprehensive work on the status and rights of indigenous peoples in
international law, James Anaya provides an in-depth discussion of the historical
exclusion of indigenous peoples as subjects of international law and the rise of the
contemporary indigenous rights regime. See ANAYA, supra note 10.
14 Id. at 19-31.
15Id. at 26-31.
16 Id. at 31-34.

426 OREGON REVIEW OF INTERNATIONAL LAW

[Vol. 10,419

Even the early post-World War II era of human rights

bypassed indigenous peoples.
The post-World War II
decolonization project, grounded in human rights precepts,
advanced the right of peoples to self-determination. However,
self-determination applied only to an overseas colonial territory
as a whole, irrespective of pre-colonial enclaves of indigenous
peoples existing within the colonial territories and colonizing
states. 7 Accordingly, the international decolonization process
also failed to recognize indigenous peoples' inherent
sovereignty.
Despite this historical exclusion under the international
framework, including the early human rights framework,
indigenous peoples continued to advocate for a collective right
to self-determination. 8 Specifically, indigenous peoples began to
use the human rights discourse of self-determination as a starting
point, and umbrella, for the assertion and design of additional
particularized rights, including: (1) the right to own, use, occupy,
and control ancestral lands and resources; (2) the right to
recognition of independent and distinct governance and political
structures; and (3) the right to meaningful consultative processes
where state decisions implicated their interests. The assertion of
these rights began to resonate from distinct communities of
indigenous peoples across the globe, including those in Latin
America.
Both as a response to, and strategic use of, processes of
globalization, distinct indigenous communities strategically
transcended their local categories. Academics, activists, and
policy-makers began to refer to the "emergence" of "indigenous

17 See Declaration on the Granting of Independence to Colonial Countries and

Peoples, G.A. Res. 1514 (XV), 5, U.N. GAOR, 15th Sess., Supp. No. 16, U.N.
Doc. A/4684 (Dec. 14, 1960), available at http://www.unhchr.ch/html/menu3/b/
c_coloni.htm; see also Principles Which Should Guide Members in Determining
Whether or Not an Obligation Exists to Transmit the Information Called for Under
Articles 73e of the Charter, G.A. Res. 1541 (XV), IV, U.N. GAOR, 15th Sess.,
Supp. No. 16, U.N. Doc. A/4684 (Dec. 15, 1960) (correlating the application of selfdetermination to geographically separate territories).
18 See Catherine J. Jorns, Indigenous Peoples and Self-Determination:
Challenging State Sovereignty, 24 CASE W. RES. J.INT'L L. 199 (1992); see also
Russel Lawrence Barsh, Indigenous Peoples in the 1990s: From Object to Subject of
InternationalLaw?, 7 HARV. HUM. RTS. J.33 (1994); ANAYA, supra note 10, at 1534.

2008]

Uploading the Local

peoples" as subjects of international law.' 9 Distinct communities

of first peoples began to refer to themselves as part of a global
"indigenous peoples" movement. Today, there is an undeniable
salience of the "indigenous peoples" category under
international law.
19 See, e.g., Maivan Clech Lam, Making Room for Peoples at the United Nations:
Thoughts Provoked by Indigenous Claims to Self-Determination,25 CORNELL INT'L
L.J. 603, 621 (1992) (proposing, ultimately, the recognition of indigenous peoples as
"subjects of international law competent to represent their interests in the
international arena"); Barsh, supra note 18, at 33-35 (tracing the "growing
acceptance of indigenous peoples' collective identity and distinct rights in
international law and practice" and arguing that explicit recognition of indigenous
peoples right to self-determination would establish indigenous peoples as "'subjects'
of international legal rights and duties rather than mere 'objects' of international
concern"); ANAYA, supra note 10, at 56-58 (describing the contemporary
indigenous peoples' movement and its impact on the recognition of indigenous
peoples as subjects of international law); Elena Cirkovic, Self-Determination and
Indigenous Peoples in International Law, 31 AM. INDIAN L. REV. 375, 375-76
(2007) (examining "the struggle over the recognition of indigenous peoples as
subjects under public international law and their right to self-determination as
expressed in Articles 1 and 55 of the U.N. Charter, as well as in common Article 1
of the International Covenant on Civil and Political Rights (ICCPR) and the
Covenant on Economic, Social and Cultural Rights (CESCR)"); Leonardo J.
Alvarado, Prospects and Challenges in the Implementation of Indigenous Peoples'
Human Rights in International Law: Lessons From the Case of Awas Tingni v.
Nicaragua, 24 ARIZ. J. INT'L & COMP. L. 609, 609, 612 (2007) (discussing the
significance of the case of Awas Tingni v. Nicaraguaas "the first time in [the InterAmerican Court of Human Rights'] history [that] the Court determined a state's
violation of human rights principles set forth in the American Convention from the
standpoint of the collective property rights of indigenous peoples as subjects of
international law," as well as "the valuable contribution this decision has made to
the development of international jurisprudence on indigenous peoples' rights");
Austen L. Parrish, Changing Territoriality, Fading Sovereignty, and the
Development of Indigenous Rights, 31 AM. INDIAN L. REV. 291, 311 (2007)
(suggesting indigenous peoples are becoming recognized as subjects of international
law).
20 Luis Rodriguez-Pifiero has instructively observed the following regarding the
development of an "indigenous peoples" category under international law:
The "anthropological" definition of indigenousness articulated in the 1957
ILO instruments has, ironically, the virtue of putting the emphasis on the
cultural distinctiveness of indigenous societies and the maintenance of their
social, legal, and political institutions as the fundamental defining criterion,
and depicting history as a relevant factor in explaining the indigenous
peoples' distinctiveness vis-d-vis the dominant societies now encapsulating
them-but not as the ultimate source of indigenous rights. .

. Indigenous

peoples thus emerged in modern international law as a result of their

subjectivization by social sciences. But this subjectivization provided the
conditions for the possible re-appropriation of this category as a vehicle of
resistance for the subjects it constructed. In this respect, the emergence of
the modern regime on indigenous rights ... constitut[es] a privileged example
of what Focault conceptualized as the "tactical polyvalence of discourses":

428 OREGON REVIEW OF INTERNATIONAL LAW

[Vol. 10, 419

II
INDIGENOUS PEOPLES' CONTEMPORARY CLAIMS TO LANDS
AND RESOURCES UNDER HUMAN RIGHTS LAW

In its orthodox formulation, the discourse of human rights is

not directly aimed at responding to the oppressive vestiges of
colonization, but rather, to the atrocities committed during
World War II. Indeed, indigenous peoples' contemporary claims
to lands and resources did not need to be cabined exclusively
within the discourse of human rights.2 Indigenous peoples'
ultimate use of such discourse evidences a simultaneous
rejection of orthodox human rights discourse and strategic
appropriation of some of its foundational precepts. Ultimately,
it represents the reluctant acceptance of the discourse's limits in
light of its potential for valuable strategic gains.
A primary objective of the indigenous rights movement has
been to secure indigenous peoples' ability to own, occupy, use,
and control their traditional lands and natural resources.22
Indigenous peoples have contested orthodox Eurocentric
notions of individual property ownership tied primarily to
economic value, arguing that such notions have little meaning
with respect to the allocation of their traditional lands and
resources. Rather, they have proposed that the ability to
communally reside on their lands and to operate under
traditional land tenure systems is inextricably tied to the

namely, the turning of a disciplining discourse into a liberating discourse by

the same social groups subject to and constructed by that disciplining.
RODRIGUEZ-PIERO, supra note 11, at 340.

21See S. James Anaya, Divergent Discourses About International Law,

Indigenous Peoples, and Rights Over Lands and Natural Resources: Toward a
Realist Trend, 16 COLO. J. INT'L ENVTL. L. & POL'Y 237, 240-44 (2005) (locating
the foundations of indigenous rights in international law within the "divergence and
interplay" of discourses regarding historical sovereignty and human rights); see also
Miranda, supra note 4, at 143-44.
22 See U.N. Econ. & Soc. Council [ECOSOC], Sub-Comm'n on the Promotion &
Prot. of Human Rights, Final Working Paper: Indigenous Peoples and Their
Relationship to Land, U.N. Doc. E/CN.4/Sub.2/2001/21 (June 11,2001) (preparedby
Erica-lrene A. Daes) [hereinafter Indigenous Peoples' Relationship to Their Land]
(discussing indigenous peoples' cultural and religious ties to their traditional lands
and resources); ECOSOC, Sub-Comm'n on the Promotion & Prot. of Indigenous
Peoples, Indigenous Peoples' Permanent Sovereignty Over Natural Resources, 8,
U.N. Doc. E/CN.4/Sub.2/2004/30 (July 13, 2004) (prepared by Erica-Irene A. Daes)
[hereinafter PermanentSovereignty Over Natural Resources].

20081

Uploading the Local

preservation of communal identity, culture, religion, and modes

of subsistence. 3
Ultimately, indigenous peoples have been successful in
accommodating their contemporary claims to ownership,
occupancy, use, and control of their traditional lands and
resources within the discourse of human rights. 4 They have
partly grounded their claims on pre-existing human rights norms
articulated in declarations and treaties, such as the right to selfdetermination,25 the right to cultural integrity,26 and the right to
property.27 These human rights precepts have served as the
foundation for translating indigenous peoples' claims regarding
their traditional lands and resources into human rights. A body
of human rights law responsive to indigenous peoples'
articulation of a special relationship to their lands and resources
continues to evolve.
First, hard law sources of such rights include International
Labor Organization ("ILO") Convention No. 169 Concerning
Indigenous and Tribal Peoples in Independent Countries 28 and
ILO
the development of customary international law.
Convention No. 169, which was adopted in 1989, is often
referenced as a significant standard setting instrument even for
See Indigenous Peoples' Relationship to Their Land, supra note 22.
Anaya, supra note 21, at 240.
25 See International Covenant on Economic, Social and Cultural Rights art. 1,
1, Dec. 16, 1966, 993 U.N.T.S. 3; International Covenant on Civil and Political
Rights art. 1, $ 1, Dec. 19, 1966, 999 U.N.T.S. 171.
26 See International Covenant on Civil and Political Rights, supra note 25, art. 27;
see also ANAYA, supra note 10, at 134 (proposing that Article 27 of the
International Covenant on Civil and Political Rights is representative of customary
international law).
27 See Universal Declaration of Human Rights, G.A. Res. 217A, art. 17, U.N.
GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948), available at
http://www.un.org/Overview/rights.html (providing, inter alia, that "[e]veryone has
the right to own property alone as well as in association with others," and "[n]o one
shall be arbitrarily deprived of his property"); see also American Convention on
Human Rights art. 21, Nov. 22, 1969, 1144 U.N.T.S. 123 [hereinafter American
Convention], available at http://www.cidh.org/Basicos/English/Basicl. %201ntro
.htm; American Declaration of the Rights and Duties of Man, O.A.S. Res. XXVIII,
OEA/Ser.L./V/II.23, doc. 21 rev. 6 (1948) [hereinafter American Declaration],
available at http://www.oas.org/juridico/English/ga-Res98/Eresl591.htm; European
Convention for the Protection of Human Rights and Fundamental Freedoms art. 1,
Nov. 4, 1950,213 U.N.T.S. 221.
28 See International Labor Organization, Convention Concerning Indigenous and
Tribal Peoples in Independent Countries art. 14, June 27, 1989, 28 I.L.M. 1382
[hereinafter ILO Convention No. 169].
23
24

430 OREGON REVIEW OF INTERNATIONAL LAW

[Vol. 10, 419

states that have not ratified the Convention." The Convention

specifically provides that indigenous peoples' land and resource
rights have a collective dimension 0 and that substantive
indigenous land rights include ownership, use, possession, and
control irrespective of formal title. 3' The Convention further
refers to indigenous peoples' right to prior consultation with
respect to activities that could affect indigenous interests in their
lands and resources.
Furthermore, building on the work of
various scholars, I have argued that the land rights of indigenous
peoples forming part of customary international law include the
following: (1) the right to collective legal recognition,
demarcation, and titling of lands that indigenous peoples
traditionally occupy; (2) the right to use, enjoyment, control, and
development of such lands, irrespective of formal title; (3) the
right, at a minimum, to the use of natural resources associated
with such lands; and (4) the right, at a minimum, to prior
meaningful consultation when a state government seeks to
engage in activities upon such lands or in activities that affect
indigenous rights over such lands.33
Second, multiple international bodies that address human
rights norms of general applicability have developed and
addressed human rights norms specifically applicable to the
protection of indigenous peoples' traditional lands and
resources.
Specifically, a continuously evolving body of
jurisprudence continues to be produced by the United Nations
human rights treaty compliance bodies and regional human
rights bodies that apply concepts of self-determination, cultural
integrity, and property, among others, in a non-discriminatory
manner to protect indigenous peoples' special relationship to
their traditional lands and resources. These bodies include the
29 Id. Significantly, in his concurring opinion in the case of Mayagna (Sumo)
Awas Tingni Community v. Nicaragua, Judge Garcia Ramirez of the InterAmerican Court of Human Rights references the precepts found in ILO
Convention No. 169 as significant to interpreting the scope and meaning of the term
"property" in the American Convention on Human Rights as applied to the state of
Nicaragua. See Mayagna (Sumo) Awas Tingni Cmty. v. Nicaragua, 2001 Inter-Am.
Ct. H.R. (ser. C) No. 79 (Aug. 31, 2001) (Garcia Ramirez, J., concurring,
7)
[hereinafter A was Tingni].
30 ILO Convention No. 169, supranote 28, art. 13(1).
31 Id. arts. 14(1), (2).
32 Id. arts. 14(1), 15(2).
33 See Miranda, supranote 4, at 149-50.

2008]

Uploading the Local

431

once United Nations Commission, and now Council, on Human

Rights,34 the United Nations Human Rights Committee,35 the
United Nations Committee on the Elimination of Racial
Discrimination,36 the International Labor Organization,37 the
Organization of American States Commission on Human

34 See, e.g., Permanent Sovereignty Over Natural Resources, supra note 22, at 5
(concluding that "self-determination of indigenous peoples will never be possible
without indigenous peoples having the legal authority to exercise control over their
lands and territories"); Indigenous Peoples' Relationship to Their Land, supra note
22 (finding that indigenous peoples possess both cultural and religious ties to their
traditional lands); ECOSOC, Sub-Comm'n on Prevention of Discrimination & Prot.
of Minorities, TransnationalInvestments and Operationsin the Lands of Indigenous
Peoples,
13, U.N. Doc E/CN.4/Sub.2/1991/49 (July 17, 1991); ECOSOC, SubComm'n on Prevention of Discrimination & Prot. of Minorities, Transnational
Investments and Operations on the Lands of Indigenous Peoples, U.N. Doc
E/CN.4/Sub.2/1992154 (Sept. 3, 1992); ECOSOC, Sub-Comm'n on Prevention of
Discrimination & Prot. of Minorities, TransnationalInvestments and Operations on
the Lands of Indigenous Peoples,U.N. Doc. E/CN.4/Sub.2/1994/40 (June 15, 1994).
35 Adrela & Nakkldjarvi v. Finland, U.N. Human Rights Comm. [HRC],
Commc'n No. 779/1997, U.N. Doc. CCPRIC73/D/77911997 (Oct. 24, 20)01);
Lansman et al. v. Finland, HRC, Commc'n No. 671/1995, CCPR/C/58/D/671/1995
(Oct. 30,1996); Lansman et al. v. Finland, HRC, Commc'n No. 511/1992, U.N. Doc.
CCPR/C/52/D/511/1992 (Oct. 26, 1994); Sara et al. v. Finland, HRC, Commc'n No.
431/1990, U.N. Doc. CCPRIC/50/D/431/1990 (Mar. 23, 1994); Ominayak v.
Cananda, HRC, Commc'n No. 167/1984, U.N. Doc. CCPR/C/381D/167/1984 (Mar.
26, 1990).
36 Committee on the Elimination of Racial Discrimination, Decision 1(69) on
Suriname, U.N. GAOR, 68th/69th Sess., U.N. Doc. A/51/18 (2006); Decision 1(68)
on United States of America, U.N. GAOR, 68th Sess., U.N. Doc.
CERD/C/USA/DEC/I (2006); Decision 1(67) on Suriname, U.N. GAOR, 77th
Sess., U.N. Doc. CERD/C/DEC/SUR/4 (2005); Decision 3(66) on Suriname, U.N.
GAOR, 64th Sess., U.N. Doc. CERD/C/DEC/SUR/1 (2005); Decision 3(47) on
Papua New Guinea, U.N. GAOR, 42d Sess., U.N. Doc. CERD/C/SR.983 (1993).
37 INTERNATIONAL LABOR ORGANIZATION, REPORT OF THE DIRECTORGENERAL: SECOND SUPPLEMENTARY REPORT: REPRESENTATION ALLEGING
NON-OBSERVANCE BY ECUADOR OF THE INDIGENOUS AND TRIBAL PEOPLES
CONVENTION, 1989 (No. 169) (made under art. 24 of the ILO Constitution by the
Ecuadorian Confederation of Free Trade Union Organizations (CEOSL), 282d
Sess. (2001)); REPORT OF THE DIRECTOR-GENERAL: THIRD SUPPLEMENTARY
REPORT: REPRESENTATION ALLEGING NON-OBSERVANCE BY COLOMBIA OF THE
INDIGENOUS AND TRIBAL PEOPLES CONVENTION, 1989 (No. 169) (made under
art. 24 of the ILO Constitution by the Single Confederation of Workers of
Colombia [CUT], 282d Sess. (2001)); REPORT OF THE DIRECTOR-GENERAL:
SEVENTH SUPPLEMENTARY REPORT: REPORT OF THE COMMITTEE SET UP TO
EXAMINE THE REPRESENTATION ALLEGING NON-OBSERVANCE BY BOLIVIA OF
THE INDIGENOUS AND TRIBAL PEOPLES CONVENTION, 1989 (No. 169) (made
under art. 24 of the ILO Constitution by the Bolivian Central of Workers (COB),
274th Sess. (1999)).

432

OREGON REVIEW OF INTERNATIONAL LAW

[Vol. 10, 419

Rights," the Inter-American Court of Human Rights, 9 and the

African Commission on Human Rights.' Moreover, the United
Nations Declaration on the Rights of Indigenous Peoples, the
most recent standard-setting document which represents over

twenty years of work that began in the United Nations Working

Group on Indigenous Populations, references a series of rights
pertaining to indigenous peoples' traditional lands and
41
resources.

38 Garifuna Cmty. of Cayos Cochinos & Members v. Honduras, Petition 1118-03,

Inter-Am. C.H.R., Report No. 39/07, OEA/Ser.L./V/II.07, doc. 22 rev. 1 (2007); The
Kalifia & Lokono Peoples v. Suriname., Petition 198-07, Inter-Am. C.H.R., Report
No. 76/07, OEA/Ser.L./V/II.07, doc. 22 rev. 1 (2007); Aboriginal Cmty. of Lhaka
Honhat ("Our Land") v. Argentina, Petition 12.094, Inter-Am. C.H.R., Report No.
78/06, OEA/Ser.L./V/II.06, doc. 4 rev. 1 (2006); Members of the Indigenous Cmty.
of Annas et al. v. Brazil, Petition 62-02, Inter-Am. C.H.R., Report No. 80/06,
OEA/Ser.L./V/I1.06, doc. 4 rev. 1 (2007); Communities in Alcintara v. Brazil,
Petition 555-01, Inter-Am. C.H.R., Report No. 83/06, OEA/Ser.I./V/II.06, doc. 4
rev. 1 (2007); Garifuna Cmty. of "Triunfo de laCruz" v. Honduras, Petition 906-03,
Inter-Am. C.H.R., Report No. 29/06, OEA/Ser.L./V/II.06, doc. 4 rev.1 (2007); Maya
Indigenous Communities of Toledo Dist. v. Belize, Case 12.053, Inter-Am. C.H.R.,
Report No. 40/04, OEA/Ser.L./V/II.122, doc. 5 rev. 1 (2004) [hereinafter Maya];
Kichwa Peoples of Sarayaku Cmty. & Members v. Ecuador, Petition 167/03, InterAm. C.H.R., Report No. 64/04, OEA/Ser.L./V/II.122, doc. 5 rev. 1 (2004); Dann v.
United States, Case 11.140, Inter-Am. C.H.R., Report No. 75/02,
OEA/Ser.L./V/II.117, doc., 1 rev. 1 (2002) [hereinafter Dann]; Enxet-Lamenxay &
Kayleyphapopyet (Riachito) Indigenous Communities v. Paraguay, Case 11.713,
Inter-Am. C.H.R., Report No. 90/99, OEA/Ser.L./V/II.106, doc. 6 rev. 350 (1999);
Yanomami v. Brazil, Case 7615, Inter-Am. C.H.R., Report No. 12/85,
OEA/Ser.L./V/II.66, doc. 10 rev. 1 (1985).
39 Saramaka, supra note 3; Sawhoyamaxa Indigenous Cmty. v. Paraguay, 2006
Inter-Am. Ct. H.R. (ser. C) No. 146 (Mar. 29, 2006) [hereinafter Sawhoyamaxa];
Moiwana Vill. v. Suriname, 2005 Inter-Am. Ct. H.R. (ser. C) No. 124 (June 15,
2005) [hereinafter Moiwana Village]; Yakye Axa Indigenous Cmty. v. Paraguay,
2005 Inter-Am. Ct. H.R. (ser. C) No. 125 (June 17, 2005) [hereinafter Yakye Axa];
Awas Tingni, supra note 29.
40 Soc. & Econ. Rights Action Ctr. & Ctr. for Econ. & Soc. Rights v. Nigeria, Afr.
Comm'n on Human & Peoples' Rights, Commc'n No. 155/96 (2001).
41Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, arts. 8(b),
10, 25, 26, U.N. GAOR 62d Sess., 107th plen. mtg., U.N. Doc. A/RES/61/295 (Sept.
13, 2007) [hereinafter U.N. Declaration].

20081

Uploading the Local

III
INDIGENOUS PEOPLES' LITIGATION REGARDING THEIR
TRADITIONAL LANDS AND RESOURCES BEFORE THE INTERAMERICAN COMMISSION ON HUMAN RIGHTS AND THE INTERAMERICAN COURT OF HUMAN RIGHTS

indigenous peoples have contributed to the development of

this rich jurisprudence by strategically identifying core
normative precepts associated with their land tenure systems,
including precepts of collective ownership, occupancy, use, and
management of traditional lands and resources as well as
precepts of cultural and religious values associated with such
lands and resources. While the richness and dynamism of an
indigenous community's land tenure system may become
somewhat conflated as a result of its incorporation into litigation
strategy, indigenous peoples have been predominantly successful
in utilizing such strategy to advance their contemporary claims
regarding traditional lands and resources. Indeed, international
human rights bodies have responded to this strategy with an
amplified sensitivity regarding indigenous peoples' distinctive
relationship to land, which has led to a substantive reformulation
of human rights norms. While the ultimate decisions of these
bodies may further conflate the essence of a specific
community's land tenure system, they nevertheless represent a
progressive step in the advancement of indigenous peoples'
rights.
Specifically, indigenous peoples in the Americas have actively
pursued actions for encroachments upon their traditional lands
and resources in the context of natural resource extraction
projects via the Inter-American Commission on Human Rights
and Inter-American Court of Human Rights. An analysis of
several preeminent cases before the Commission and Court
serve as a helpful lens for understanding how indigenous
peoples, through their repeated participation in petitioning the
Commission, presentation of nuanced arguments, and creative
evidentiary production, have succeeded in strategically
identifying core normative precepts and uploading such precepts
into international human rights law."
This analysis is
42 The ability of indigenous peoples or their representatives to bring petitions
before the Inter-American Commission of Human Rights for violations of the
American Convention on Human Rights is governed by Article 44. American
Convention, supra note 27, art. 44.

434 OREGON REVIEW OF INTERNATIONAL LAW

[Vol. 10, 419

particularly stark with respect to the Commission and Court's

interpretation of the right to property in the context of
indigenous peoples' claims regarding lands and resources where
national development projects are implicated.
Indigenous
peoples have argued that such projects violate their right to
property, whether enshrined in Article 23 of the American
Declaration of the Rights and Duties of Man 43 or in Article 21 of
the American Convention on Human Rights.' The decisions
reached by the Commission and Court share the following
characteristics: (1) consideration of specific evidence supporting
arguments regarding the existence of a customary pattern of
land use and occupancy distinct from that of the state, (2)
elaboration of the substantive contours of the human right to
property in accordance with the indigenous community's
identification of core normative precepts associated with such
distinct land tenure systems, and (3) reliance on broader
international law developments suggesting indigenous peoples
are subject to special human rights protections with respect to
their traditional lands and resources.
These decisions suggest that the Commission and the Court
have re-conceptualized the right to property as applied to
indigenous peoples in three primary ways. First, these bodies
have asserted that, as applied to indigenous peoples, both
substantive and procedural aspects of the right to property must
be based on the recognition of indigenous peoples' distinct land
tenure systems.
Second, they have recognized that the
substantive scope of the right to property must guarantee
indigenous peoples' permanent use and enjoyment of the lands
they have traditionally used and occupied and the resources that
have sustained them. Third, they have emphasized that the right
to property also involves a procedural right to prior informed
consultation or consent whenever the State seeks to engage in
activities impacting indigenous peoples' lands and resources.
First, in the case of Mayagna (Sumo) Awas Tingni Community
v. Nicaragua,the Awas Tingni, an indigenous community of the
Mayagna or Sumo tribe located on the northern Atlantic coast of
Nicaragua, brought a petition before the Inter-American
Commission on Human Rights against Nicaragua for the

43
44

American Declaration, supra note 27, art. 23.

American Convention, supra note 27, art. 21.

2008]

Uploadingthe Local

violation of Articles 1 (obligation to respect rights), 2 (domestic

legal effects), 21 (right to property), and 25 (right to judicial
protection) of the American Convention on Human Rights.45
The Awas Tingni argued that Nicaragua's grant of a thirty year
logging concession encompassing sixty-two thousand hectares of
their traditional lands to the Korean multinational corporation
SOLCARSA violated their human rights under the American
Convention.4 6 The Inter-American Commission brought the
case before the Inter-American Court of Human Rights, which
found, in part, that Nicaragua had violated the rights of the
Awas Tingni to the use and enjoyment of their property under
Article 21 of the American Convention by "grant[ing]
concessions to third parties to utilize the property and resources
located in an area which could correspond, fully or in part, to the
lands which must be delimited, demarcated, and titled [as Awas
Tingni lands].'

Ultimately, Nicaragua's failure to demarcate

the communal lands of the Awas Tingni, failure to adopt

effective measures securing the rights of the community to its
ancestral lands and resources, and failure to engage in any
meaningful consultation with the community violated Article 21
of the American Convention.48
In reaching this conclusion, the Court accepted the Awas
Tingni's identification and elaboration of a land tenure system
distinct from formal state law. Relying on a broad range of
documentary and testimonial evidence supporting the Awas
Tingni's identification of core normative precepts associated
with their own land tenure systems,49 the Court reasoned:
Among indigenous peoples there is a communitarian tradition
regarding a communal form of collective property of the land,
in the sense that ownership of the land is not centered on an
individual but rather on the group and its community.
Indigenous groups, by the fact of their very existence, have the
right to live freely in their own territory; the close ties of
indigenous people with the land must be recognized and
understood as the fundamental basis of their cultures, their
spiritual life, their integrity, and their economic survival. For
indigenous communities, relations to the land are not merely a

45

Awas Tingni, supra note 29, 9 2.

46

Id. 140.
$ 153.

47 Id.
48

Id.

49

Id. V.

436 OREGON REVIEW OF INTERNATIONAL LAW

[Vol. 10, 419

matter of possession and production but a material and

spiritual element which they must fully enjoy, even to preserve
their cultural legacy and transmit it to future generations."0

Moreover, based on such recognition, the Court elaborated upon

the substantive contours of the right to property. It recognized
that the Awas Tingni's collective rights to demarcation,
occupancy, use, and development of their ancestral lands and
resources should stem from the Awas Tingni's own land tenure
systems." Accordingly, the Court emphasized the significance of
indigenous peoples' separate and distinct sphere of customary
law to its analysis:
Indigenous peoples' customary law must be especially taken
into account for the purpose of this analysis. As a result of
customary practices, possession of the land should suffice for
indigenous communities lacking real title to property of the
land to obtain official 5recognition
of that property, and for
2
consequent registration.

Second, in the case of the Maya Indigenous Communities of

the Toledo District v. Belize, the Inter-American Commission on
Human Rights examined whether the state of Belize had
violated the Maya peoples' right to property under Article 23 of
the American Declaration of the Rights and Duties of Man by
50 Id.

149.

Id. 151.
52 Id. Subsequently, the Inter-American Commission considered a petition by
Mary and Carrie Dann, members of the Dann Band and Western Shoshone Indians,
claiming, in part, that their right to property under Article 23 of the American
Declaration of the Rights and Duties of Man was violated by the United States.
Dann, supra note 38, 95. The Inter-American Commission found that the United
States had violated the Dann sisters' "right to property under conditions of
equality" with respect to the preservation of ancestral Western Shoshone lands
under the American Declaration by failing to provide the Dann sisters with the
same protections enjoyed by other property holders in the United States. Id. 5.
In reaching this conclusion, the Commission reiterated that
continued utilization of traditional collective systems for the control and use
of territory are in many instances essential to the individual and collective
well-being [of indigenous peoples], and indeed the survival of, indigenous
peoples and that control over the land refers both its capacity for providing
the resources which sustain life, and to the geographic space necessary for the
cultural and social reproduction of the group. The Inter-American Court of
Human Rights has similarly recognized that for indigenous communities the
relation with the land is not merely a question of possession and production
but has a material and spiritual element that must be fully enjoyed to
preserve their cultural legacy and pass it on to future generations.
Id. 128.
51

2008]

Uploadingthe Local

granting logging and oil concessions to corporate actors in lands

allegedly encompassing the Maya peoples' traditional territory."
While the Maya peoples asserted a right to property over the
territory at issue based on their customary land tenure practices,
the state contended that the land constituted "national lands. 54
The Maya strategically appropriated the concept of legal
pluralism and sought to explain the circumstances of legal
plurality at the center of the dispute. They provided the
Commission with specific details regarding the Maya peoples'
customary land tenure systems and the genesis and development
of a parallel system of "reservations" created by the British
colonial system and perpetuated by the government of Belize.5
They argued that the right to property must "embrace[] those
forms of individual and collective landholding and resources use
that derive from the customary land tenure system of the Maya
of the Toledo District."5 Ultimately, the Commission concluded
that Belize had violated the Maya peoples' right to property by
failing to delimit, demarcate, and provide the Maya peoples with
official title over the lands they have traditionally used and
occupied and by granting logging and oil concessions to third
parties therein without consulting or seeking the informed
consent of the Maya peoples.57
In reaching such conclusion, the Commission found support to
confirm the existence of a distinct sphere of Maya customary
land tenure law. Specifically, the Maya submitted a 150-page
Maya Atlas designating the villages and demographics of the
Maya peoples 58 as well as information regarding "the political
organization, land use, land tenure and religious practices" of
the Maya peoples "particularly as they relate to territory they

53

See Maya, supra note 38.

In addition to the violation of Article 23, the

Petitioners also alleged violations of Articles 1 (right to life), 2 (right to equality

before the law), 3 (right to religious freedom and worship), 6 (right to a family and
to protection thereof), 11 (right to health and well-being), 18 (right to a fair trial),
and 20 (right to property). Id. 1 2, 18.
54 Id.

26.

55 Id. $$ 25,109.
56 Id. 47.
57 Id.
5, 135, 151-153, 193-194.
58 Id. 22. The Maya Atlas was produced in a joint effort by the Toledo Maya
Cultural Council, the Toledo Alcaldes Association, and professional geographers
from the University of California at Berkley. Id.

438 OREGON REVIEW OF INTERNATIONAL LAW

[Vol. 10, 419

are said to have occupied and used for centuries.""

Furthermore, the Commission incorporated its earlier analyses
and those of the Court regarding the distinctive core normative
precepts associated with indigenous land tenure systems:
[T]he organs of the inter-American human rights system have
acknowledged that indigenous peoples enjoy a particular
relationship with the lands and resources traditionally
occupied and used by them, by which those lands and
resources are considered to be owned and enjoyed by the
indigenous community as a whole and according to which the
use and enjoyment of the land and its resources are integral
components of the physical and cultural survival of the
indigenous communities and the effective realization of their
human rights more broadly."'

Moreover, in that vein, the Commission elaborated:

In its analysis in this case, the Commission has emphasized the
distinct nature of the right to property as it applies to
indigenous people, whereby the land traditionally used and
occupied by these communities plays a central role in their
physical, cultural and spiritual vitality. As the Commission has
previously recognized in respect of the right to property and
the right to equality, "[flor indigenous people, the free exercise
of such rights is essential to the enjoyment and perpetuation of
their culture." Similarly, the concept of family and religion
within the context of indigenous communities, including the
Maya people, is intimately connected with their traditional
land, where ancestral burial grounds, places of religious
significance and kinship patterns are linked with the
occupation and use of their physical territories. Further, the
Commission has specifically concluded in its analysis in this
case that the duty to consult is a fundamental component of
the State's obligations in giving effect to the communal
property right of the Maya people in the lands that they have
traditionally used and occupied.

Id. 23.
Id. 114.
61Id. 1 155. Following the Maya case, the Inter-American Court considered a
series of cases that focused on the violation of indigenous peoples' right to property
as a result of state failures to appropriately delimit, demarcate, and title the lands
traditionally used and occupied by the petitioning indigenous community. In each
of these cases, the Court, again, repeatedly alluded to indigenous peoples' own land
tenure systems as the source of indigenous peoples' rights over their traditional
lands and resources. See also Moiwana Village, supra note 39, J1 132-33 (finding
that the Moiwana tribal community had a "profound and all-encompassing
relationship to the their ancestral lands" that focused "on the community as a
whole"); Yakye Axa, supra note 39, 1 143 (asserting that "both the private property
59
60

of individuals and communal property of the members of . . . indigenous

2008]

Uploadingthe Local

As additional support for its analysis, the Commission

afforded "due consideration to the particular norms and
principles of international human rights law governing the
individual and collective interests of indigenous peoples."62
Specifically, it referenced the recognition of indigenous human
rights by the International Labor Organization, the Human
Rights Committee, the Committee to Eradicate All Forms of
Racial Discrimination, and national legal systems.63 It also
bolstered its analysis based on the dictates of the Proposed
American Declaration on the Rights of Indigenous Peoples, the
then Draft United Nations Declaration on the Rights of
Indigenous Peoples,' and the jurisprudence of the African
Commission on Human and Peoples' Rights.65
Based on its analysis, the Commission elaborated upon the
substantive contours of the right to property. It found that
Belize had an obligation to take into account the Maya peoples'
land tenure systems in its official state law regarding the
allocation of lands and resources.66 It further pronounced that
the Maya peoples' property rights to their traditional lands and
resources arose from "the longstanding use and occupancy of the
territory by the Maya people, which the parties have agreed predated European colonization, and [extend] to the use of the land
and its resources for purposes relating to the physical and
cultural survival of the Maya communities. ,67
Third, in the recent case of Saramaka People v. Suriname, the
Inter-American Court of Human Rights considered whether
Suriname's grant of logging and mining concessions to corporate
actors on lands claimed by the Saramaka peoples violated, inter
alia, the Saramaka peoples' right to property pursuant to Article
communities are protected by Article 21 of the American Convention");
Sawhoyamaxa, supra note 39,
120 (emphasizing that "indigenous communities
might have a collective understanding of the concepts of property and possession, in
the sense the ownership of the land 'is not centered on an individual, but rather on
the group and its community"').
62 Maya, supra note 38, 1 98.
63 Id.
97, 141.
64 Id.
118. Subsequent to the Commission's decision, on September 13, 2007,
the General Assembly adopted the United Nations Declaration on the Rights of
Indigenous Peoples. U.N. Declaration, supra note 41.
65 Maya, supra note 38, 149.
66 Id. 133.
67 Id. 127.

440 OREGON REVIEW OF INTERNATIONAL LAW

[Vol. 10, 419

21 of the American Convention on Human Rights.68 While the

Saramaka claimed possession of the territory based on their own
customary land tenure system, the state asserted ownership over
all land and natural resources at issue.6 9 The Court addressed
several issues, including the following: (1) whether the Saramaka
peoples constituted tribal peoples subject to special protections
with respect to collective property ownership, and (2) whether
Suriname had violated Article 21 of the American Convention
by granting mining and logging concessions to corporate parties.
Similar to the position taken by the Maya, the Saramaka peoples
strategically engaged the concept of legal pluralism and
submitted evidence seeking to explain the circumstances of legal
pluralism at the center of the dispute. They argued that the right
to property must reflect the Saramaka peoples' distinct sphere of
customary land tenure law, which represented a sphere of law
distinct from that of the state. The court concluded that the
Saramaka peoples constituted tribal peoples subject to special
protections with respect to collective property ownership.
Furthermore, the Court held that Suriname had violated the
Saramaka peoples' right to property by granting mining and
logging concessions to corporate interests.
In reaching these conclusions, the Court accepted the
Saramaka peoples' identification of a distinct land tenure
system. The Court evaluated testimonial evidence by witnesses
proposed by the Commission regarding "methods for
documenting traditional Saramaka use of the territory,"7
"Saramaka customary law that governs ownership of land and
resources," 71 "geographically accurate maps, aerial photographs,
68 Saramaka, supra note 3. At issue before the Court was Suriname's noncompliance with Article 2 as well as Suriname's violation of Articles 3 (right to
recognition as a person before the law), 21 (right to property), and 25 (right to
effective recourse) of the American Convention. Id. 1 77. Acknowledging the
"interrelatedness of the arguments," the Court addressed the non-compliance and
violations jointly. Id.
69 Id. 91124.

70 Id. 9164. Hugo Jabini, a member of the Association of Saramaka Authorities

and its Paramaribo representative, provided such testimony through an affidavit.
He further testified regarding "the Saramaka people's efforts to protect their land
and resources, their alleged attempts to settle the case with the State, and their
methods for documenting traditional Saramaka use of the territory." Id. I 64(b).
71Id. %64(c). Head Captain Eddie Fonkie, a representative of the Abaisa 1o and
fiscali of the Saramaka peoples, presented such testimony through an affidavit and
additionally testified regarding "Saramaka treaty rights, purported contemporary
use of Saramaka land and resources, and the alleged impact of mining operations on

2008]

Uploading the Local

and satellite images that display how the Saramaka use and
occupy their territory and resources,"72 "the importance of land
for the cultural integrity of the Saramaka people, 7 3 and the
"relationship between Saramaka customary law and Suriname's
legal system., 74 It additionally considered testimonial evidence
proposed by the State of Suriname regarding "the Saramaka
hierarchy of authority . . . [the] procedures with respect to
decisions on land rights involving the entire community, and
relations between the local authorities of the Saramaka Is
(clans)."75 Taking such evidence into account, the Court
acknowledged the core normative precepts that the Saramaka
peoples argued were consistent with their land tenure systems:
Their culture is also similar to that of tribal peoples insofar as
the members of the Saramaka people maintain a strong
spiritual relationship with the ancestral territory they have
traditionally used and occupied. Land is more than merely a
source of subsistence for them; it is also a necessary source for
the continuation of the life and cultural identity of the
Saramaka peoples. The lands and resources of the Saramaka
people are part of their social, ancestral, and spiritual essence.
In this territory, the Saramaka people hunt, fish, and farm, and
they gather water, plants for medicinal purposes, oils, minerals,
and wood. Their sacred sites are scattered throughout the
territory, while at the same time the territory itself has a sacred
value to them.76
the displaced villages of Brokopondo District." Id. Head Captain Wazen Eduards,
Chairperson of the Association of Saramaka Authorities, the authorized
representative of the Dombi 16, and a fiscali of the Saramaka peoples, also testified
before the Court regarding "customary Saramaka law governing ownership rights
and demarcation of territory." Id. $ 65(a).
72 Id. T 64(f). This testimony was provided via affidavit by Peter Poole, a
geomatics expert with experience in resource management and sustainable
development.
73 Id. T 65(a). This testimony was presented by Head Captain Wazen Eduards.
74 Id. I 65(f). Richard Price, a professor of American studies, anthropology, and
history at the College of William & Mary, provided such expert testimony.
75 Id. T 65(g).
Salomon Emanuels, a cultural anthropologist, provided such
expert testimony.
76 Id. 82. The Court relied on the following testimony by Head Captain Wazen
Eduards:
The forest is like our market place; it is where we get our medicines, our
medical plants. It is where we hunt to have meat to eat. The forest is truly
our entire life. When our ancestors fled into the forest they did not carry
anything with them. They learned how to live, what plants to eat, how to
deal with subsistence needs once they got to the forest. It is our whole life.

442 OREGON REVIEW OF INTERNATIONAL LAW

Furthermore,

the

Court

relied

on evidence

[Vol. 10, 419

regarding

Saramaka customary law in response to the State's argument

that its failure to recognize the right of the Saramaka peoples to

"the use and enjoyment of property in accordance with their

system of communal property" was due, in part, to a "lack of
clarity regarding the land tenure system of the Saramaka people,
particularly regarding who owns the land.""
The Court

responded that Suriname could not obviate its obligations under

Article 21 of the American Convention, in conjunction with
Article 2, because the parties, witnesses, and expert witnesses
provided a clear understanding of Saramaka customary law and,
in any case, the State would have an obligation to seek any
clarification regarding the Saramaka's customary land tenure

systems from the Saramaka peoples themselves."8

As further support for its conclusions, the Court relied on
human rights jurisprudence applicable to the protection of
indigenous peoples' lands and resources produced by the
Committee on Economic, Social and Cultural Rights and the
Human Rights Committee,79 and relied on provisions of the
77 Id. 9199.
78 Id. I 10().
79 The Court's reference to interpretations by the Human Rights Committee and
the Committee on the Elimination of Racial Discrimination is premised on an
interpretation of Article 21, which, in light of Article 29(b) of the American
Convention, prohibits an interpretation of any article in the Convention "that
restricts its enjoyment ...to a lesser degree than what is recognized in [another
treaty to which the State is a party]." Id. 91993-94. Suriname is a party to the
International Covenant on Civil and Political Rights and to the International
Covenant on Economic, Social, and Cultural Rights. Id. Specifically, as part of its
analysis regarding the scope of Article 21 as applied to indigenous peoples in the
context of natural resource extraction projects, the Court referenced the
interpretation produced by the Committee on Economic, Social, and Cultural
Rights regarding the right to self-determination, enshrined in Article 1 of the
Covenant on Economic, Social, and Cultural Rights. Id. According to the
Committee on Economic, Social, and Cultural Rights, indigenous peoples have the
right to "freely pursue their economic, social and cultural development," and may
"freely dispose of their natural wealth and resources." Id. 9193. Furthermore, the
Court referenced the Committee's recommendation that benefits flowing from
natural resource extraction projects be equitably shared with the indigenous
peoples involved. Id. 9 140. Moreover, the Court relied on interpretations by the
Human Rights Committee regarding Article 27 of the International Covenant on
Civil and Political Rights, which protects the rights of minorities to enjoy their
culture in community with other members of the group. Id. 9 94. The Court drew
from the Human Rights Committee's interpretation of Article 27 with respect to
indigenous peoples' ability to enjoy their culture, "which may consist in a way of life
which is closely associated with territory and use of resources." Id. The Court

2008]

Uploading the Local

United Nations Declaration on the Rights of Indigenous

Peoples. 8 Based on its incorporation of such jurisprudence and
Declaration provisions, the Court affirmed that the right to
property guarantees "members of the Saramaka community the
right to enjoy property in accordance with their communal
tradition[s]"'" and members of such community are "protected
by international human rights law that secures the right to the
communal territory they have traditionally used and occupied,
derived from their longstanding use and occupation of the land
and resources necessary for their physical and cultural
survival.""
The Court expanded upon its elaboration in prior cases of the
It reiterated its recognition of the
right to property.
"interconnectedness between the right of members of
indigenous and tribal peoples to the use and enjoyment of their
lands and their right to those resources necessary for their
survival," but proposed that such rights are "subject to certain
limitations and restrictions."83 Moreover, the Court added, and
emphasized, that any restriction could not amount to "a denial
of [indigenous peoples'] traditions and customs in a way that
'' 4
endangers the very survival of the group and of its members.
In applying such principles to the issue of logging and mining
concessions in Saramaka lands, the Court explained that in order
for Suriname to legitimately limit the Saramaka peoples' "right
further relied on the Human Rights Committee's interpretation that restrictions
may be imposed on the exercise of Article 27 rights if the community itself has
participated in the restriction of such right. Id. 130.
80 Id. 131. The Court referenced Article 32 of the United Nations Declaration
on the Rights of Indigenous Peoples, which protects indigenous peoples' right to
consultation in the context of development projects, as support for the proposition
that a state must engage in certain safeguards, "particularly those of effective
participation and sharing of benefits regarding development or investment projects
within traditional indigenous and tribal territories." Id. 130-31.
81 Id.

9195.

82 Id. 9 96.
The Court further explained that analyses of whether natural
83 Id. 9 127.
resource extraction projects violated indigenous peoples' right to property required
an assessment of whether the natural resource at issue was traditionally used as part
of the indigenous community's "cultural identity or economic system." Id. 1 155. If
so, or if the extraction project affected other resources "vital to [indigenous
peoples'] way of life," then the state had an obligation to engage in safeguards to
protect the indigenous community's right to property under Article 21 of the
American Convention. Id.
84 Id. 1 128.

444 OREGON REVIEW OF INTERNATIONAL LAW

[Vol. 10, 419

to communal property, it must consult with the communities

affected by the development or investment project planned
within territories which they have traditionally occupied,
reasonably share the benefits with them, and complete prior
assessments of the environmental and social impact of the
project."85 The Court elaborated upon the right to consultation
and prior and informed consent where a major, large-scale
development project is involved by requiring Suriname to
engage in such process "in accordance with [the Saramaka
peoples'] own traditions" and to "take account of the Saramaka
people's traditional methods of decision-making."86 It concluded
that Suriname had not provided the requisite safeguards, and
therefore, had violated the Saramaka peoples' property rights
pursuant to Article 21, in conjunction with Article 1, of the
American Convention.87
As demonstrated in these and other cases, through an
instrumental engagement of legal pluralism and strategic
identification of arguably transcendental core, normative
precepts associated with land tenure systems, indigenous peoples
have been able to successfully promote the substantive reconstitution of the human right to property. Specifically, the
Inter-American Commission on Human Rights and InterAmerican Court of Human Rights have interpreted the right to
property, when applied to indigenous peoples' lands and
resources, to embody norms of communal, collective occupancy
and control as well as of religious and cultural value. Although
an in-depth acknowledgement of the peculiarities and nuances of
a particular indigenous community's land tenure system may not
be reflected in these bodies' final decisions, the identification
and recognition of such broadly conceived core, normative
precepts nevertheless constitutes a step in the right direction.
IV
THE CONTEMPORARY RELATIONSHIP BETWEEN INDIGENOUS
PEOPLES' LAND TENURE SYSTEMS AND HUMAN RIGHTS LAW

This Essay canvasses the outlines of the present-day dynamics

between indigenous peoples' land tenure systems and human

85

86
87

Id. 143.
Id. 133.
Id. T1 154. 156.

2008]

Uploadingthe Local

rights law as reflected in the jurisprudence of the InterAmerican Commission on Human Rights and Inter-American
Court of Human Rights. It argues that, given the recognition of
indigenous peoples' legal personality under international law
and the capacity of general human rights precepts to
accommodate indigenous peoples' contemporary claims to their
lands and resources, indigenous peoples have been successful in
strategically identifying core normative precepts associated with
their traditional land tenure system and in infusing the
jurisprudence of the Commission and Court with such precepts.
Accordingly, indigenous peoples have arguably succeeded in a
litigation strategy aimed at facilitating from the bottom-up the
substantive reconstitution of the human right to property. Such
success is a unique phenomenon that deserves further scrutiny.
To that end, this Section draws upon the analysis in this Essay
to offer some initial conclusions regarding the following
questions: (1) Why and how was it possible for indigenous
peoples to participate in the substantive reconstitution of
international human rights law?; (2) In what ways do indigenous
peoples' legal orders interact with and influence the
international human rights legal order, and thereby, national
legal orders?; and (3) What does such interaction reveal
regarding the potential engagement of legal pluralism as an
instrumental tool and the more traditional engagement of legal
pluralism as a tool for thick description? Elaborating upon these
questions promotes the further theorization, and the potential
resolution, of issues impacting indigenous peoples' realization of
their contemporary claims to ownership, occupancy, use, and
control of their traditional lands and resources.
Such
elaboration also serves to further understandings of how legal
pluralism may not only serve as a descriptive tool, but as a
strategic tool in a litigation context.
A. Why and how was it possiblefor indigenouspeoples to
participatein the substantive reconstitutionof international
human rights law?
First, indigenous peoples' increased status and rights under
international human rights law would, arguably, not have been
possible without a significant shift regarding the foundational

446 OREGON REVIEW OF INTERNATIONAL LAW

[Vol. 10,419

ideology shaping indigenous identity."

Indeed, indigenous
peoples, activists, and scholars played a significant role in
appropriating the reconstitution of indigenous identity. The
wholesale rejection of assimilationist ideology in favor of a
recognition of difference based on indigenous peoples' distinct
associational and political structures served to propel a
substantive reconstitution of international human rights law that
accounts for such difference.
Second, new
circumstances
of
globalization
have
simultaneously revealed pockets of opportunity for transnational
coalition building among local communities of indigenous
peoples and reinforced the need for such coalition building in
the face of increased transnational economic activity impacting
indigenous peoples' control over their traditional lands and
resources.89 Indigenous peoples have collectively organized their
resistance to increasing affronts to their way of life through
participation in transnational conferences and networks, nongovernmental organizations, and international human rights
organizations. Indigenous peoples have engaged international
human rights advocacy channels and institutions as a vehicle for
articulating and pursuing their contemporary claims, including
those to their traditional lands and resources. Indeed, the
indigenous peoples' movement represents an important example
of "globalization from below." '
Third, specific communities of indigenous peoples have
pursued a litigation strategy at the international scale aimed at
the substantive reconstitution of human rights law.
The
presentation of petitions before human rights treaty compliance
bodies and before human rights commissions and courts has
enabled indigenous peoples to participate in the development of
human rights law. The decisions of these bodies have resulted in
the creation of a broad jurisprudence that now informs the
resolution of indigenous peoples' claims at the international
scale. These decisions have further propelled, and supported,
88 See supra II.

89 For an analysis of the intersections between globalization and human rights,

see Dinah Shelton, Protecting Human Rights in a Globalized World, 25 B.C. INT'L
& COMP. L. REV. 273 (2002); see also Rhoda E. Howard-Hassman, The Second
Great Transformation:Human Rights Leapfrogging in the Era of Globalization,27
HUM. RTS. Q. 1 (2005).
90 See LAW AND GLOBALIZATION FROM BELOW: TOWARDS A COSMOPOLITAN
LEGALITY (Boaventura de Sousa Santos & Cesar A. Rodriguez-Gravito eds., 2005).

2008]

Uploading the Local

international efforts aimed at a comprehensive articulation of

indigenous peoples' human rights, such as the adoption of the
United Nations Declaration on the Rights of Indigenous Peoples
and the continuing work on the proposed American Declaration
on the Rights of Indigenous Peoples.
B. In what ways do indigenous peoples' legal orders interact
with and influence the international human rights legal order,
and thereby, national legal orders?
First, indigenous peoples' distinct customary land tenure
orders have served to justify a re-conceptualization of human
rights of general applicability.
Given indigenous peoples'
successful articulation of their special relationship to traditional
lands and resources, a failure to re-conceptualize human rights
of general applicability in the context of indigenous peoples'
contemporary claims would result, at a minimum, in the
perpetuation of discriminatory treatment. For example, the
jurisprudence of the Inter-American Commission on Human
Rights and Inter-American Court of Human Rights reveals
references to indigenous peoples' identification of a distinct legal
sphere reflecting an alternative world-view as a reason for
creating special safeguards to protect indigenous peoples' right
to property under Article 23 of the American Declaration of the
Rights and Duties of Man and Article 21 of the American
Convention on Human Rights.
Second, indigenous peoples' land tenure orders have informed
the actual substantive re-design of human rights of general
applicability, such as the right to property. As illustrated by the
cases brought by indigenous peoples before the Commission and
Court, indigenous peoples have been successful in reaffirming
core normative precepts regarding their land tenure systems
through repeated petitions, nuanced evidentiary production, and
argumentation that ties the interpretation of the right to
property to indigenous peoples' distinct relationship to land.
Specifically, indigenous peoples have presented evidence
suggesting distinct notions of collective ownership and
possession of land as well as cultural and spiritual ties to land as
a means of providing the foundational precepts for the
Commission and Court's substantive reformulation of the right
to property. Indeed, indigenous peoples have called upon
indigenous leaders, legal experts, and anthropological experts,
among others, to lend substantive bite to such reformulation. As

448 OREGON REVIEW OF INTERNATIONAL LAW

[Vol. 10, 419

a result, indigenous peoples may exercise the right to property as

a collective right. Furthermore, indigenous peoples' patterns of
occupancy and use, which include the exercise of cultural and
religious practices, determine the scope of their collective right
to property. Moreover, in order for a state to restrict indigenous
peoples' use and enjoyment of their property through natural
resource extraction projects, the state must consult with, or seek
the consent of, the indigenous community in accordance with
their own decision-making processes. Accordingly, the core
normative precepts identified by indigenous peoples have been
imbued with the emblem of formal international human rights
law.
Third, indigenous peoples' strategic identification of core
normative precepts has served to promote a reconstitution of
domestic law that, at least in theory, serves to strike a better
balance between indigenous peoples' contemporary claims to
their traditional lands and resources and the claims of the state
or private parties such as corporate actors. For example, the
decisions by the Commission and Court regarding state
obligations to indigenous peoples in the context of natural
resource extraction projects prompt state action that takes into
account indigenous peoples' customary land tenure systems.
Even if indigenous peoples do not possess official, formal title
over traditional lands and resources, the state has an obligation
to grant and implement indigenous peoples' rights to ownership,
occupancy, use, and control as specifically derived from their
systems of land tenure.
C. What does such interaction reveal regarding the potential
engagement of legal pluralism as an instrumental tool and the
more traditional engagement of legal pluralism as a descriptive
tool?
Such interaction reveals the potential for a successful
appropriation of the concept of legal pluralism by a traditionally
marginalized community. Arguably, indigenous peoples have
strategically engaged the concept of legal pluralism in their
arguments before the Inter-American Commission on Human
Rights and Inter-American Court of Human Rights.
Specifically, indigenous peoples have emphasized a distinction
between the spheres of indigenous land tenure systems and
formal state law, and consequently, have proposed that specific
human rights precepts should be re-conceptualized in

2008]

Uploadingthe Local

accordance with indigenous land tenure systems. As means of

assisting the Commission and Court in their elaboration of the
substantive contours of the right to property, indigenous peoples
have strategically identified core, normative precepts forming
part of their land tenure systems. Indeed, such engagement of
legal pluralism in an instrumental fashion has proven to be, for
the most part, a successful strategic choice.
Additionally, scholars that engage legal pluralism may find
that an analysis of such interaction may also serve to further
legal pluralism's core descriptive insights. Specifically, drawing
on legal pluralism literature to provide a "thick description and
narrative" of bottom-up lawmaking in the international sphere
by private lawmakers, primarily private bankers, Janet Levit
proposes that
legal pluralism literature, which has only recently resurfaced in
discrete pockets of international legal academia, focuses
scholarly gaze on four critical insights: (1) multiplicity-law
embodies eclectic multiplicity, with a multitude of actors
engaged in normative activity in distinct communities; (2)
fluidity-norms traverse lawmaking communities, often
crossing from informal to official realms; (3) interface-such
normative movement brings informal and official lawmaking
communities into contact, and such moments of "interface" are
not only potently complex but also norm-generating
opportunities in and of themselves; and (4) reconstitutionover time, the dynamics of repeated interface transformatively
reverberate within informal lawmaking communities,
altering
91
their texture, efficacy, and lawmaking capacity.
Drawing on Levit's identification of legal pluralism's core
insights as vehicles for thick description and narrative, this
subsection broadly outlines how the analysis in this Essay may
further such core insights, and thereby, provide a platform for a
more comprehensive analysis.9
First, the interaction between indigenous peoples' normative
orders and international human rights law may serve to further
legal pluralism's core insight of "multiplicity," which
acknowledges the role of non-state actors in international

91 Levit, supra note 6, at 1152-53.

92 A comprehensive analysis of how the interaction between indigenous peoples'
legal orders and international human rights may serve to further the insights of legal
pluralism is beyond the scope of this Essay.

450 OREGON REVIEW OF INTERNATIONAL LAW

[Vol. 10,419

lawmaking.93 Legal pluralism recognizes that law is created, in

part, based on the "actions and decisions of multiple 'actors. ' "' 9
As the litigation before the Inter-American Commission on
Human Rights and Inter-American Court of Human Rights
demonstrates, indigenous peoples have been active participants
in international lawmaking by bringing petitions before the
Commission and Court, and thereby, creating opportunities for
the Commission and Court to develop a body of jurisprudence
specific to indigenous peoples' property rights with respect to
their lands and resources. Second, legal pluralism's core insight
of "fluidity" emphasizes the potential permeability of norms
across scales. 95 It rejects a "snapshot approach to law" which
"not only masks the underbrush but also statically discounts a
dynamic, vibrant lawmaking undercurrent. 9 6 The jurisprudence
of the Commission and Court brings to the forefront the
permeability of international human rights by the local legal
orders of indigenous communities. Such jurisprudence suggests
a more complex account of how norms "travel" between
indigenous peoples and official lawmaking communities.7 Third,
legal pluralism's core insight of "interface" acknowledges that
such norm fluidity "effectively draws communities into shared
normative spaces." 98 Based on the lens of legal pluralism,
indigenous peoples may be considered to navigate circumstances
of legal plurality in the context of state sponsored natural
resource extraction projects, and thereby to interface with
official lawmaking communities. One potential implication of
what could be considered indigenous peoples' interface with the
Commission and Court is the opportunity for effective
93 Levit identifies "multiplicity" as one of four critical insights of legal pluralism
literature that can serve to provide a thicker description of international lawmaking.
Levit, supra note 6, at 1153. This core pluralist insight, which acknowledges a
"multitude of actors engaged in normative activity in distinct communities," helps
illucidate "normative movement" between indigenous peoples' core normative
orders and formal international human rights law. Id.
94 Id. at 1162.
95 Levit further identifies "fluidity," the ability of norms to "traverse lawmaking
communities," as another one of four critical insights of legal pluralism literature.
Id. at 1153.
96 Id. at 1163.
97 Levit draws on legal pluralism's insight that norms "travel[] from one
lawmaking community to another, inevitably crossing borders that legal scholars
often depict as sacredly impenetrable." Id. at 1162.
98 Id. at 1163.

2008]

Uploading the Local

contestation, and perhaps even "conquest," of pockets of

orthodox human rights law. 99 Finally, legal pluralism emphasizes
the dynamics of "reconstitution," which reveals the mutually
constitutive relationship among normative communities over
time. Again, viewed through the lens of legal pluralism, the
analysis in this Essay may suggest the potential for further study
regarding how indigenous communities are reconstituted in light
of their interface with international human rights institutions. "'
V
CONCLUSIONS AND REMAINING QUESTIONS

As suggested by the analysis in this Essay, the contemporary

relationship between indigenous peoples, indigenous peoples'
land tenure systems, and international human rights law involves
a rather complex interaction between normative orders across
scales. A fragment of this interaction is evident in the realm of
indigenous peoples' pursuit of petitions before the InterAmerican Commission on Human Rights and Inter-American
Court of Human Rights regarding alleged human rights
violations involving state-sponsored natural resource extraction
projects within indigenous peoples' traditional lands. An
analysis of the jurisprudence emanating from these bodies
reveals that indigenous peoples arguably have been successful in
a litigation strategy aimed at grafting core normative precepts
associated with their land tenure systems to the interpretation of
the human right to property.
While the analysis in this Essay illuminates the contemporary
relationship between indigenous peoples' land tenure systems
and international human rights law through a focus on petitions
filed with the Inter-American human rights system, the dynamics
of the relationship between indigenous peoples' local realities
and international human rights are also present in a broader
context.
Arguably, indigenous peoples have been active
participants in the construction of a supra-national,
contemporary legal identity and a derivative framework of
specific human rights protections that seeks to infuse human
rights law with an alternative worldview. Accordingly, the

99 See id. at 1163-64.

100 See Galit A. Sarfaty, InternationalNorm Diffusion in the Pimicikamak Cree
Nation:A Model of Legal Mediation, 48 HARV. INT'L L.J. 441 (2007).

452 OREGON REVIEW OF INTERNATIONAL LAW

[Vol. 10,419

analysis in this Essay prompts further study regarding the scope

and implications of indigenous peoples' broader participation in
human rights lawmaking. Specifically, it provokes the following
questions: (1) What is the scope of indigenous peoples'
participation in international law-making?; and (2) What are the
implications of such participation with respect to the constitution
of international law, the continued advancement of indigenous
peoples' contemporary claims, and the continued advancement
of claims by other traditionally marginalized communities?. 1
Ultimately, this Essay, and the further analyses that may flow
there from, seek to contribute to a greater understanding of the
role of the international human rights regime in effectively
addressing indigenous peoples contemporary claims and
delivering material gains.

101I aim to develop an analysis to these additional questions in a forthcoming

article regarding the role of indigenous peoples as international lawmakers.