Law & Anthropology: ''Indigenous Peoples, Constitutional States And Treaties Of Other Constructive Arrangements Between Indigenous Peoples And States'' (International Yearbook for Legal Anthropology)

235 Pages·2005·0.92 MB·English

by  Rene Kuppe

Law & Anthropology
12
International Yearbook for Legal Anthropology
VOLUME12
LAW
&
ANTHROPOLOGY
International Yearbook for Legal
Anthropology
Volume 12
Edited by
René Kuppe
and
Richard Potz
On behalf of
The Working Group on Legal Anthropology
Vienna University Law School
“Indigenous Peoples, Constitutional States and
Treaties or Other Constructive Arrangements
between Indigenous Peoples and States”
Edited in cooperation with:
Bartolomé Clavero Salvador
Pablo Gutiérrez Vega
Luis Rodríguez-Piñero
MARTINUS NIJHOFF PUBLISHERS
LEIDEN / BOSTON
A C.I.P. Catalogue record for this book is available from the Library of Congress.
Printed on acid-free paper.
ISSN 0259-0816
ISBN 90-04-14244-4
© Copyright 2005 by Koninklijke Brill NV, Leiden, The Netherlands.
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Printed and bound in The Netherlands
CONTENTS
Editors’ Preface …………………………………………………………………...VII
Bartolomé ClaveroSalvador
Treaties with Peoples or Constitutions for States:
a Predicament of the Americas …………………………………….1
PabloGutiérrezVega
The Municipalization of the Legal Status
of Indigenous Nations
by Modern (European) International Law………………………...17
LuisRodríguez-Piñero
Historical Anomalies, Contemporary Consequences:
International Supervision of the ILO-Convention
on Indigenous and Tribal Peoples (No. 169)………………………55
Christina Binder
The ILO System of Protection of
Indigenous Peoples’ Rights:
The Case of the Huichol of Mexico………………………………92
LeeSwepston
Indigenous Peoples’ Voices:
Indigenous Participation
in ILO Convention No. 169 ……………………………………..114
S. J. Anaya
The Emergence of Customary International Law
Concerning the
Rights of Indigenous Peoples …………………………………...127
Roger C.A. Maaka
The Waitangi Tribunal: a Treaty Relationship at Work ………...140
René Kuppe
Reflections on the Rights of Indigenous Peoples in the
New Venezuelan Constitution and the Establishment of
a Participatory, Pluricultural and Multiethnic Society ………....152
Magdalena Gómez Rivera
Pending Constitutionality: An Analysis
of the Mexican Legal Reform Process
Concerning Indigenous Peoples ………………………………...175
AndreaOrmiston
(Re) Writing History: a Report on the
United Nations Expert Seminar on Treaties,
Agreements and Other Constructive Arrangements
Between States and Indigenous Populations ……………………196
Appendix 1 ………………………………………………………………………...211
Appendix 2 ………………………………………………………………………...217
List of Contributors ………………………………………………………………..222
EDITORS’ PREFACE
Chief Editor:
René Kuppe
Guest Editors:
Bartolomé Clavero Salvador
Pablo Gutiérrez Vega
Luis Rodríguez-Piñero
This new issue of Law and Anthropology encapsulates a selection of the most
salient contributions presented at the International Expert Seminar on ‘Indigenous
Peoples, Constitutional States and Treaties or other Constructive Arrangements
between Peoples and States’, held in Seville under the auspices of the Universidad
Internacional de Andalucía and the Agencia Española de Cooperación
Internacional, on September 10-14, 2001. This meeting was inspired by the final
recommendations of Miguel Alfonso Martínez’s Study on Treaties, Agreements and
Other Constructive Arrangements between States and Indigenous Populations [Final
Report, E/CN.4/Sub.2/1999/20]. The original core contributions of the conference
are flanked in this volume by additional papers elaborated on the occasion of a
homonimous International Expert Seminar convened in Geneva in December 2003
by the UN Office of the High Commissioner for Human Rights. The connection
between these documents is therefore not coincidental.
The conclusions reached in Seville in 2001 [E/CN.4/Sub.2/AC.4/2002/WP.9/
/En.]1 and those reached in Geneva in 2003 [E/CN.4/2004/111]2 vary, up to a certain
extent, from those expressed earlier by Miguel Alfonso Martínez in his Final Report.
Let it be recalled that, whereas the Seville and Geneva Seminars were conceived as
Expert Seminars, Martínez’s Final Report was fashioned according to a series of
procedural constraints, as defined by the Sub-Commission’s mandate, and went
through an open and controversial scrutiny by the participants at the UN Working
Group on Indigenous Affairs, and subsequently the Sub-Commission and the
1 See Appendix 1 in this volume.
2 See Appendix 2 in this volume.
vii
R.Kuppe and R.Potz(eds.),Law &Anthropology,vii - ix.
© 2005 Koninklijke Brill NV. Printed in the Netherlands.
Law and AnthropologyVol. 12 (2005) VIII
Commission on Human Rights. As a matter of fact, our journey from July 1999 to
December 2003 offers a valuable guidance on the role of experts’ meeting within the
broader UN human rights standard-setting process. Whatever – if any – the subtle
differences between those documents may be, they certainly reflect the progress – if
any – in this particular subject matter.
Building upon the Special Rapporteur’s argument – where historicity ultimately
became a discoursive trap – both the 2001 and the 2003 seminars emphasize that
agreements between indigenous peoples and States are to be regarded as means to
(re)settle the States/indigenous peoples interface on mutually recognized and
consensual grounds. Recent cases of constitutional reform and, to a lesser degree,
intra-state domestic negotiations have led to an unprecedented revitalization of freely
expressed agreements, as a legitimate ground on which to base a new liaison between
states and peoples.
Although the September 11, 2001 session was obviously suspended, the
chronological coincidence of the Seville Seminar with one of the most striking,
perhaps catalytic, events for the reconceptualization of contemporary international
law did not divert the attention of panelists and attendants from what constitutes one
of the main items in international relations’ agenda for the past few decades: the
emergence of a new international law regarding the sui generis legal and political
standing of an allegedly new actor in the international arena, indigenous peoples. The
papers selected for this volume of Law and Anthropology reflect the often
problematic – and, at times, genuinely confrontational – encounter of political wills
between States and indigenous peoples, whatever form this might have. The wide
array of agreements and arrangements that have historically connected and still
connect host States and guest indigenous peoples offer an unprecedented inventory
of cross-cultural experiences. These experiences are to be taken into account with a
view at reconciling distinctive cultures within a single, and sometimes restrictive,
political domain.
As concerns the formal presentation of these contributions, we would like to
point to the fact that some of them were originally written in Spanish (one of the
working languages of the Seville Seminar along with English). The Editors have
personally taken on the burden of translating some of the contributions. They also
would like to thank Nazreen Kola, Caitleen Sainsbury, and Andrea Ormiston who
with their excellent English skills have had a significant part in the final wording of
the contributions of this book. All three of them have worked as interns at the
Institute of Law and Religion (University of Vienna) as part of the Canadian
government’s Youth Employment Strategy (sponsoring organization was the Native
Law Centre at the University of Saskatchewan).
The order of presentation of the contributions is based on a criterion of thematic
affinity. Bartolomé Clavero points out the decadence of the constitutional reform
avenue to satisfy the genuinely constituent wishes of indigenous peoples; treaties
with peoples may in the future have unpredictable relevance. S. James Anaya focuses
on the emergence of a new customary international law regarding indigenous
peoples, partly fashioned by the contribution of indigenous peoples themselves; their
IX Preface
input stems from negotiational schemes masterly detailed in the contribution. Other
contributions, such as Pablo Gutiérrez Vega’s, seek to give an exploratory answer to
the controversial phenomenon of what he calls the ‘domestication’ of indigenous
peoples. The so-called process of retrogression as it may fit in future negotiations
relies largely on the acceptance by Nation-States of, at least, a certain degree of
peership for indigenous constituencies. As a result of those negotiational schemes,
several international instruments have surfaced. For instance, the presentations of Lee
Swepston and Luis Rodríguez-Piñero discuss ILO Convention No. 169 which is
possibly the most effective catalyser of indigenous peoples’ demands through
international standards – and also the preamble for some negotiated constitutional
reforms. A paradigmatic case of an international complaints procedure involving
violations of the Convention, the Huichol case, is analysed in detail by Christina
Binder. Magdalena Gómez Rivera and René Kuppe deal in detail with some
constitutional reforms in Latin America, perceived both as a frustrated process of
negotiation and as a valuable window of opportunity for the future. Roger Maaka
masterly excerpts decades of expertise in ‘making it work out’: the Maori know-how
regarding the implementation of historic agreements between States and indigenous
peoples is a true benchmark in this area. Finally, Andrea Ormiston offers a rather
personal account of the ongoing itinerary towards a full honouring of treaties with
indigenous peoples and the necessity to recover negotiation on equal footing in order
to address past grievances, and settle current and future differences.