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Public International Law/Actors in International Law/Indigenous Peoples

Author: Raghavi Viswanath Required knowledge: Decolonization; sources of international law; States;

Learning objectives:

To understand how international law has come to understand indigeneity and indigenous peoples;

To identify the logics used in international legal discourse to undermine the legal personality of indigenous peoples;

To learn about the current lexicon of rights afforded to indigenous peoples and the ways in which rights vocabulary may be limiting;

To familiarize oneself with indigenous epistemologies and their growing relevance to legal research and law-making;

To understand how indigenous epistemologies differ from Western epistemologies

Introduction
International law, as Ntina Tzouvala notes, was and continues to be constituted by argumentative patterns around the 'standard of civilization'. These arguments oscillate between a 'logic of biology' invoking and blatantly racist notions of a supposedly natural 'backwardness' of peoples deemed to be 'uncivilized' and a 'logic of improvement', invoking more subtle but equally racist notions of inferiority combined with the promise of conditional inclusion in the family of 'civilized nations'. This discourse shows its violent face in international law’s engagement with indigenous peoples. As colonialism expanded in the 16th century, those whose lands were encroached came to be labelled as 'indigenous', 'native', 'indian', or 'tribal'. Each of these terms were constructed to convey a lower degree of civilization of such peoples.

The association of the term “Indians” to indigenous communities in the Americas was, in fact, the result of a misattribution by Christopher Columbus upon his landing in the Caribbean in 1642, when he erroneously thought that he had reached the Indies after sailing westward from Europe. Columbus’s encounter with the Arawaks, as documented by Noble and Carroll, was a telling example of the drastically different worldviews of the native Arawaks and the Europeans. “They believe very firmly,” wrote Christopher Columbus after his first voyage to the Americas, “that I, with these ships and people, came from the sky.” This assumption of intellectual and biological superiority by Columbus was fashioned first as a retort, and later as a grim dismissal of the humanity of Native Americans. People of the likes of Vespucci and Winthrop dehumanized indigeneity and justified European invasion of indigenous land and the violent erasure of their worldviews by citing their non-conformity with European modes of religion, habitation, and land ownership.

This discourse, without much protest, crept into the vestiges of international law and soon became the bedrock of modern international law. Early proponents of international law such as Vitoria infamously remarked that while Indians were capable of holding rights and dominion over land, they were “unfit to found or administer a lawful state up to the standard required by human and civil claims”. To Vitoria, sovereign status was contingent on conforming to Christian norms. Differently, for Grotius, 'people who have passed under the sway of another people' are excluded from sovereignty. At first, this birthed what came to be known as the 'terra nullius' doctrine. By the application of terra nullius, land was considered vacant if it was not occupied by Christians. 'Vacant' land could be defined as “discovered” and as a result sovereignty, title and jurisdiction could be claimed. The doctrine was first used at the turn of the 20th century to justify occupation of aboriginal lands in Australia. As criticism of the doctrine mounted after the World Wars, the doctrine fell into disuse. But similar vestiges of this biological logic to exclude indigenous peoples remained. Case in point is the trusteeship model that was devised to justify the widespread colonialism from the late 18th century onwards and later codified in Chapter XII of the United Nations Charter.

In effect, these narratives of civilizing all worked to exclude indigenous peoples from recognition under state regimes. As Marcelle Burns shows, only some societies were considered fit to hold sovereign power. These societies were selected using what Tzouvala calls the "logics of biology". Sovereignty came with the power to make and sign treaties, and power to wage just wars. Indigenous peoples fell outside the category of sovereigns. According to both Grotius and Vitoria, this meant that their resistance to colonialism was unjustified. However, sovereigns are not the only actors who constitute international law. International law is also made up of non-sovereign actors such as companies and civil society. For long, indigenous peoples did not feature even as actors involved in international law-making. Illustratively, no indigenous peoples were consulted during the making of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. It was only as formal decolonization processes started to succeed in the 1960s did indigenous peoples start to emerge as actors within international law-making. Nonetheless, even after gaining visibility, indigenous peoples remained trapped in State-created grammars such as sovereignty and national borders.

This chapter is an attempt to trace the historical struggles of indigenous peoples to be recognized as actors in international law. The chapter introduces readers to indigenous peoples' encounters with international law, and the ways in which international law has responded to indigenous demands for legal status and sovereignty. The chapter also traces the continuities between historical discourses and contemporary logics. The discussion then zooms into specific debates surrounding the identification of indigenous peoples and the contestations relating to rights enjoyed by indigenous peoples. The final part focusses on indigenous resistance to material and epistemic gatekeeping in international law.

Indigenous peoples and the State
Until the 1900s, international law was fully bound up by the precepts of a very restrictive European grammar of statehood. This linkage worked in two ways. At once, states were both the beneficiaries of the sovereign benefits accruing out of international law, as well as the sole duty-bearers tasked with upholding the preserve of international law. But as the club of statehood begrudgingly opened up to members outside of Europe, international law’s own vocabulary started to evolve. In 1945, upon the setting up of the League of Nations, human rights principles were formally introduced into international law. Human rights, even in their rudimentary form, fiercely tugged at the statist form of international law. By recognizing the rights of individuals and creating openings for rights of communities, human rights started to unshackle international law from its avowed commitment to states as sole actors. However, it was not long before human rights were also fashioned by states as components of their prerogative. This was on clear display during the early successes of decolonization, which only effected a change in hands without disrupting the rubrics of statehood. As Kodjoe notes, the “salt water thesis” ensured that decolonization was not made available to enclaves of indigenous communities living within independent states. The thesis posited that colonies located across the "salt-water" (or the ocean) could gain independence without disrupting the territorial integrity of existing nation-states while independence for domestic non-self-governing territories had the potential to cause a severe disruption. Even the first effort to codify rights of indigenous peoples, in the Convention No. 107 of 1957 - adopted within the International Labour Organization - only paid lip service to the material ways in which indigenous peoples’ demands militate against State sovereignty. Convention 107 was adopted with a view to "redress the isolation and marginalisation of indigenous peoples and to ensure that indigenous peoples benefited from development programmes". The Convention addressed a wide range of rights of indigenous peoples including education, health, and social security. Interestingly, the Convention does not use the term “indigenous peoples” even once. It only refers to them as “indigenous populations”. The Convention employs a strong grammar of assimilation – cultural and legal – of indigenous identity within State units, and then dressed this in the rhetoric of recognition of indigeneity. Tzouvala calls this a "logic of improvement" where certain actors were denied personhood or only seen as entitled to limited personhood until they were able to "improve" themselves to fit Eurocentric moulds of personhood. "Uncivilized peoples" were required to conform with imperialism in order to able to enjoy the privileges that come with personhood. Illustratively, Article 3 of the Convention enjoins State parties to create “economic, social, and cultural conditions” for indigenous populations to enable them to enjoy the general laws of the “country where they belong”. This provision reduces the separate and collective cultural identity and political autonomy of indigenous peoples into a sub-strata unit of the State infrastructure.

The tussle between indigeneity and statehood continued well until the 1990s. This was the period during which ILO's Convention No. 169 concerning Indigenous and Tribal peoples in Independent Countries was adopted. The Convention was conceived in response to the "developments in the situation of indigenous peoples", presumably a response to the social capital acquired by the global indigenous peoples movement in the 1970s. The Convention was predicated on the need to consult indigenous peoples in development-related decisions. The Convention was also more alive to the colonialist undertones of categories such as "semi-tribal populations", unlike its predecessors. Still, during the drafting of the Convention No. 169, for instance, despite the overwhelming consensus, States expressed much apprehension about the use of terms such as "territory" as such words were traditionally associated with independent statehood. A similar resistance was expressed towards recognition of the right to self-determination of indigenous peoples. States such as Canada and United States feared that self-determination would become a sanction for external secession, thereby threatening State sovereignty.

In contemporary times, statehood functions are increasingly delegated to non-state actors such as international organizations, companies, and even individuals. However, as Usha Natarajan rightly notes, even this delegation of State sovereignty to non-state actors only facilitated a change of hands from imperial offices to postcolonial authorities. This change of hands ensures that the disenfranchisement of marginalized communities persists. Case in point is the development discourse. The development discourse provided the political basis for the decolonization efforts of the former Third World countries. As Rajgopal notes, "development came to include everything that is seen by the ruling classes as desirable or necessary for the catching up of the Third World with the West: economic growth, poverty alleviation, anti-corruption and transparency, environmental sustainability, and even democracy and freedom/right." Development therefore works in the same way as Tzouvala's understanding of improvement. Using this frame, postcolonial States started to implement industrial projects that would help them meet economic growth metrics, without watching over the concerns of marginalized communities living within their territories. Companies, for instance, would prioritize development agendas despite knowing that such projects would displace indigenous peoples from their land. International organizations such as the World Bank and the UNESCO have also conventionally overlooked the ways in which industrial projects adversely affect the environment and land claims of indigenous peoples. In her work, Sutapa Chattopadhyay observes that states changed their position from using "a total subordination of land and indigenous peoples to an expansive development agenda which requires the theft of indigenous land, for which the appropriation of nature and its surplus communities as the labouring bodies was instrumental". Interestingly, the same grammar of development finds legs in the Global North(s) as well as the Global South(s) and compounds to displace indigenous communities. This is best illustrated by the fact that 40% of indigenous communities are displaced by development projects in India alone.

Importantly, development started to push the language of sovereignty to the fringes. This is because sovereignty foregrounded the special claims of indigenous peoples to land. As Watson notes, indigenous peoples, being the first inhabitants, have a deeply spiritual, cultural, social, and economic relationship with land. Their subsistence activities rely on land. In fact, land is treated as a living relative of the community. For instance, the Endorois community in Kenya worship Lake Bogoria and believe that the land is a member of the community and home to their ancestors and future generations. Because sovereignty feeds this special relationship with land, it has gradually been replaced with the narrative of development.

Development is also seen as "removed" from the indigenous worldview, which the State frames as interested in the preservation of the 'primitive'. In his poignant work, Mangal Murmu writes about how indigenous dance and music – which are indeed central to indigenous existence – give birth to urban romanticized stereotypes of indigenous peoples as the "Other". In Murmu words (reflecting on his lived experiences as a Santhal in India), "we are like toys – someone presses our ‘ON’ button, or turns a key in our backsides, and we Santhals start beating rhythms on our tamak and tumdak, or start blowing tunes on our tiriyo while someone snatches away our very dancing grounds”. This rhetoric of backwardness is repeatedly invoked to remove indigenous peoples from decision-making spaces.

Identifying indigenous peoples
The act of defining "indigenous peoples" or "indigeneity" was widely understood as a significant dent to State sovereignty. In the 1960s, as decolonization efforts became more successful, there was growing consciousness of the special cultural identity of indigenous peoples and their relationship with land. Mobilization by indigenous peoples internationally became more systematic and visible. The capstone of this mobilization was the International Non-Governmental Organization Conference on Discrimination against Indigenous Populations in the Americas in 1977. The conference brought together indigenous representatives, from the Western world, who discussed strategies to forge a transnational indigenous front and a set of sovereignty demands. From the late 1980s onwards, indigenous peoples won consultative status at several UN forums. This mobilization started to bear fruit, with the United Nations starting to take steps to recognize indigeneity and think about protective regimes for indigeneity in particular.

The first of such steps was the report of former Special Rapporteur Martinez Cobo. The report noted that:"“Indigenous populations are composed of the existing descendants of the peoples who inhabited the present territory of a country wholly or partially at the time when persons of a different culture or ethnic origin arrived there from other parts of the world, overcame them, by conquest, settlement or other means, reduced them to a non-dominant or colonial condition; who today live more in conformity with their particular social, economic and cultural customs and traditions than with the institutions of the country of which they now form part, under a state structure which incorporates mainly national, social and cultural characteristics of other segments of the population which are predominant. (E/CN.4/Sub.2/1986/Add.4)”"The report, as Chidi Oguamanam explained, “set the stage for entrenchment of the indigenous question on the international agenda”. The report’s criteria for indigeneity were hinged on historical occupation of land and cultural distinctiveness. These criteria were also attached to marginalization afflicted by colonization. Cobo's focus, however, was on peoples disenfranchised by settler colonialism. In Cobo's report, settler colonialism was understood as the occupation of territory and resources by foreign peoples and the displacement of indigenous sovereignty and legal orders by the settlers. Scholars were quick to show that the Cobo conditions were misplaced for communities in Africa and Asia.

Africa, in many ways, defies reifications of indigeneity. European colonialism was enforced in settler and non-settler forms. Since African colonies were fully occupied, there was no land for European colonizers to occupy. Control was established over language, resources, and modes of production. Instead of occupation of land, imperial force was exerted through what Kenyan scholar Ngtigi wa Thiong’o calls the ‘cultural bomb' that "annihilate [s] a people’s belief in their names, in their languages, in their environment, in their heritage of struggle, in their unity, in their capacities and ultimately in themselves," thus "mak[ing] them want to identify with that which is furthest removed from themselves." This hybrid form of colonialism immensely benefited the African elites, who led decolonization movements and were able to successfully occupy the positions of authority previously held by imperialists. Because of this complicated model of colonialism, tracing indigeneity in Africa is far from easy. Most people can draw links with pre-colonial inhabitants. A community that is dominant in one region, is under-represented in another. Cobo’s reading of indigeneity also presumes that there is a central, dominant, often European culture, that indigenous culture departs from. This reading carries forward the same understanding of “civilization” that statehood was founded on.

But this baseline is non-existent or perennially moving in Africa. For one, there is no central culture in the sense suggested by Cobo. While the culture of the San of South Africa is distinct from that of Europe, the San live in South Africa with other African peoples such as the Zulu and Xhosa whose cultures are equally distinct from European culture. The dominant communities are African peoples, who benefited from colonization. These were the “elites of colonization”.

This is also true of indigeneity in Asia, where everyone has an equal claim to being indigenous. In their fantastic work on nomadic and denotified tribes in India, Bhukya and Surepally write about how the colonial State was threatened by the nomadic lifestyle of tribal communities and the ways in which they challenged colonial control over forest resources. Such communities were subjected to constant surveillance, their hereditary lifestyles were branded as criminal, and they were forced out of their forested lands. Interestingly, the Criminal Tribes Act of 1871, which effected these suppressions, was carried forward in postcolonial India. The Constitution of independent India recognized only a small percentage of such communities are recognized as “tribes”, that too for dehumanizing reasons such as their “primitiveness” and their “geographical isolation”.

Responding to this line of critique, more efforts were launched to construct more reflexive definitions of indigeneity. In 1989, the ILO Convention No.169 utilized the term “peoples”. Peoples was a nod to the autonomy of indigenous communities and their demands for political and legal sovereignty. The Convention also differentiated between tribal peoples and indigenous peoples, with the former being units that socially and culturally distinct from the majority and are organized by customary rules of clanship and being. A different approach was adopted by the Working Group on Indigenous Populations, which was set up by the Economic and Social Council (ECOSOC) to propose minimum standards that would protect indigenous peoples. In 1993, the UN Working Group of Indigenous Populations chose not to define indigeneity. In the chairperson Erica Irene Daes’s words, “historically, indigenous peoples have suffered, from definitions imposed by others” and as a result, in certain countries many indigenous peoples have been declassified. A similar diversity in approaches to “defining” indigeneity can be seen in domestic settings too.

Yet, despite this diversity, indigeneity has acquired a powerful social meaning. It has become "a shared experience of loss of forests, alienation of land, displacements by development projects, and much more." This has allowed for cross-border legal and social mobilization amongst indigenous communities.

Rights of indigenous peoples
As the status of indigenous peoples as actors within international law solidified, the demands for recognition and systematization of indigenous peoples rights also grew louder. As Patrick Macklem explains, the demand for rights springs from the legal recognition of indigenous peoples as subjects of international law. In the case of indigenous peoples, these rights were both features of their legal existence within international law as well as safeguards against affronts by States. This explains why rights protections have been so important to indigenous peoples. Shortly after the Second World War, it was the International Labour Organization that invested its attention in the cause of indigenous peoples. The ILO adopted a series of instruments that recognized the labour rights of indigenous peoples. The most important of these was Convention No. 107 (Indigenous and Tribal Populations Convention), which significantly expanded the scope of international legal protection of indigenous populations beyond what existed in the inter-war period to include protection of indigenous peoples' land, social security, work protections, education, and health. After the adoption of the Convention, these rights have been continuously revisited by domestic and international tribunals, all of which have added to its ambit (as shown below). Nonetheless, these interpretations remained dispersed and unconsolidated. It was in 2007 that the United Nations and indigenous peoples' movements succeeded in consolidating indigenous peoples rights. On 13 September 2007, the General Assembly of the United Nations adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Unlike past UN efforts, the Declaration was constructed in consultation with an intergenerational set of indigenous stakeholders. Although not a binding document, the Declaration was signed by over 150 States. In essence, the Declaration ushered ‘a framework for new Indigenous-state relationships grounded in mutual respect, not state domination’. Combining legal vocabularies from its predecessors with a new ethos of recognition of the human rights affronts afflicted on indigenous peoples, the Declaration contains 46 articles that address the standards for the minimum dignity, well-being, and cooperation of indigenous peoples. These standards are anchored in the notion of collective rights. Importantly, the Declaration eschews definitions of indigeneity and endorses self-identification as the basis for indigenous status. As Chua and Idrus note, “these processes boosted existing indigenous rights movements, created new internationally sanctioned channels for indigenous claim-making, but also exacerbated or created new tensions and inequalities.”

Nature of rights-holders
For as long as efforts to garner international recognition of indigenous identity have been active, such mobilizations have dominantly employed the vocabulary of rights. That said, formal recognition of indigenous peoples rights took a long time. The first contemporary human rights instrument – the Universal Declaration of Human Rights – referenced the rights of cultural minorities in Article 27. This provision was later read to include indigenous peoples. The ILO Convention No. 107 of 1957 recognized the economic, social, and cultural rights of indigenous peoples. However, these rights were contingent on the assimilation of indigenous peoples into the dominant population, and they were individual rights by design.

The twin Covenants – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights – spelled out minority rights in more detail. Glaringly, Article 27 of the International Covenant on Civil and Political Rights was not accompanied by any clarification of what the terms “culture” and/or “minorities” means. Buergenthal and Thornberry, amongst many others, have criticized Article 27 for using limiting individualistic language by exclusively recognizing cultural rights of  “persons” belonging to minorities, instead of groups as a whole. Moreover, the travaux preparatoires of the Covenants suggests that the term “minorities” was understood in a restrictive sense as well-defined stable groups that enjoyed a distinct culture and were numerically disadvantaged. The cultural rights protections granted to minorities were not intended to even mildly threaten majority regimes or benefit groups that entered States through immigration. It has been suggested that indigenous peoples were deliberately kept removed from the drafting of the Covenants because States feared “that this might cause political destabilization” and lend credibility to secession demands.

With time, there was gradual recognition of the collective dimension of indigenous peoples’ rights. Lowitja O’Donoghue acknowledges the necessary recognition of collective rights in that: "it is precisely because the collective rights have not been acknowledged that the individual rights of indigenous persons, for example the right to equality of opportunity in the provision of education, employment and health care—have not been realized in any nation in the world. Only when our collective identities have been recognized will the appalling disadvantages that we suffer as individuals be redressed."This changed with the jurisprudence of international tribunals, several of which acknowledged the collective identity of indigenous peoples. In nearly all of its communications and in General Comment 23, the HRC has recognized cultural rights as accruing to indigenous peoples as a collective, whether it is protection of their way of life or their traditional subsistence activities. The Inter-American Court in the Awas Tingni case and the African Court in the Endorois case also found that the term “peoples” embodied a collective beneficiary dimension.

Self-determination
The recognition of self-determination has been tied to the recognition of “peoples”. Early documents such as the reports of the Working Group shuffled between the use of the terms “populations” and “peoples”. The former was preferred since it did not trigger any valid claims of secession. With the term 'peoples', the worry is that it could lend itself to claims of internal and externall. In the Endorois case, the African Commission identified that a “people” share a common historical tradition, racial or ethnic identity, linguistic unity, religious and ideological affinities, and a territorial connection.

The right to self-determination finds mention in the UDHR and the twin Covenants. The contents of this right have been differently interpreted in different treaty regimes. The UN General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples (Res. 1514 (XV)) defines the right of self-determination to mean that:

All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development

This was followed by the 1970 UN Declaration of Friendly Relations and Cooperation among States which stressed on the external element of self-determination, which could translate into integration/association with an existing State or the establishment of a newly independent State. This external dimension, understandably, did not augur well with States. Several treaty regimes doubled down on restrictions on the exercise of the external right to self-determination.

In the specific context of indigenous peoples, the 2007 Declaration clarified that the right to self-determination does not include secession. In fact, States like Australia, New Zealand, Canada, and the United States did not sign the Declaration, citing their discomfort with recognizing the right to self-determination of indigenous peoples. Although these States have now reversed their position, their discomfort with self-determination has not dampened. Tribunals have also continued to be uncomfortable with recognizing indigenous peoples' right to external self-determination. The Poma Poma v. Peru case before the Human Rights Committee is a useful example of this. In this case, Angela Poma Poma challenged the Peruvian government’s decision to sanction a project which led to the drying up of pastures that were integral to the alpaca rearing livelihood of the Aymara community, to which the complainant belonged. Cognizant of how the measure denied the Aymaras their right to determine the use of land that they had traditionally occupied, Poma Poma based the complaint on – inter alia – Article 1 of the ICCPR which protects the right to self-determination. The invocation of self-determination was well-considered here, given that the authors claimed remedies for the complete loss of economic livelihood. In its examination, however, the Committee rejected the use of self-determination under Article 1 as the admissibility basis for Poma Poma’s complaint, citing reasons of self-determination not being an individual right as required by the Optional Protocol. Much like this case, in all other cases where self-determination as a right has been invoked, the Committee has not found violations to have occurred, choosing instead to situate the facts within other types of rights.

Rights of nature
Recognition of indigeneity has gradually begun to challenge the restrictions built into the vocabulary of rights itself – predominantly by confronting the anthropocentrism of rights. Typically, the right to environment centres and thereafter regulates human use of the environment. Such a reading erases the subjectivity of environment and natural resources themselves, placing it in conflict with several indigenous cosmologies where humans are only custodians and symbiotic partners within nature. Inspired by these epistemologies, the Ecuadorian constitution codified the rights of Pacha Mama, the Andean earth goddess as known in the Quichua and Aymara indigenous languages, in 2008. The Constitution now commits to protecting the sumak kawsay (the "good way of living" or "buen vivir" in Spanish), which also reinforces the State's obligations towards restoration and preservation of the functions of nature. States like Bolivia and Uganda have followed suit. Importantly, the Bolivian constitution does not entrench the rights of nature, but frames such rights as stewardship of humans towards nature and "other living things". Rights of nature are contained in another statute. In India, for instance, rights of nature are recognized in a patchwork of judge pronouncements which have declared nature to have rights, liabilities, and duties. In other states, rivers and national parks have been recognized as legal persons. Case in point is the Whanganui River in New Zealand, and the legal status of the Sukhna River near India's northeast border with Nepal. Such a reorientation is intended to better serve claims against polluting projects that threaten to damage ecologies. However, the retention of the language of rights – often alien to indigenous epistemologies – still allows balancing exercises to lean in favour of capitalistic projects. As Calzadilla and Kotzé note in their piece, often times rights of nature does not translate into actual legislative change. States lap up praise for merely dressing neoliberal development agenda in the language of respect for indigenous ontologies.

Right to free, prior, and informed consent
The right to free, prior, and informed consent has been tied to different rights discourses. In the 1990s, General Recommendation No. 23 of the Committee on the Elimination of Racial Discrimination noted that the indigenous peoples enjoy the right to equality and therefore to be consulted before any decision affecting them is taken. In General Comment 21, the Committee on Economic, Social, and Cultural Rights read free, prior, and informed consent with the right to participate in cultural life. Still other forums attached free, prior, and informed consent to demands for restitution of land. The right to free, prior, and informed consent was chiefly concerned with the quality of consent. Free denotes the lack of intimidation or coercion, prior refers to consent taken well in advance of a project, and informed refers to the range of facts offered (nature, size, impact, permissions of project) prior to obtaining consent. The mode of obtaining consent must be aligned with the customary laws of indigenous peoples. Although typically consent is understood as an obligation of conduct, there are some regimes which stress on "obtaining" consent, turning it into an obligation of result.

Indigenous right to land
Historically, affronts to indigeneity have been launched on the ancestral lands of indigenous peoples. In her report, former Special Rapporteur Irene-Daes explains why indigenous peoples’ movements extensively relied on the concept of historical sovereignty. Historical sovereignty was understood as a conceptual instrument to reclaim sovereignty over lands and natural resources that were divested of indigenous peoples through colonialism and Western/capitalist encroachment. Case in point is Article 26 of the UN Declaration on the Rights of Indigenous Peoples which recognizes “the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired” (Art. 26). Through land, further claims about cultural distinctiveness and spirituality were woven in. The centrality of land rights has now also been extended to certain other traditional communities who do not identify with the conceptual category of indigeneity.

The right to land was initially situated within the rubric of property rights. However, property rights hinge on grammars of individuality, ownership, and saleability. For indigenous peoples, land cannot be owned or disposed on their own volition. The relationship is one of spirituality, less one of ownership.

In order to work around the limitations of property rights, land is increasingly read with cultural rights. In General Comment No.23, the Human Rights Committee observed that “culture manifests in various forms, including a particular way of life associated with the use of land resources”. The draft general comment on the right to land also confirms this linkage. In other spaces, rights accruing out of land use – such as the traditional knowledge and fine arts – has been translated into cultural rights.

Indigenous ways of learning and knowing
As the previous chapter on the Third World Approaches to International Law notes, international law has excluded the epistemologies of the former Third World from meaning-making processes. The continuation of doctrines such as terra nullius in international law discourse which are founded on the dispossession of colonized peoples was cited as proof of the epistemic bias in international law. That said, although TWAIL confronted the Eurocentrism of international law, it unwittingly resorted to the same Western grammars and metrics that it critiqued. Usha Natarajan, in her chapter in Decolonising Law, rightly notes that “Third World States asserted their post-coloniality only through ignoring indigenous and tribal sovereignty”.[3] By failing to acknowledge that South-South extractivism impoverished and displaced indigenous peoples and women (amongst others).[5]

This was the genesis of what came to be known as the Fourth World Approaches to International Law (FWAIL) The term ‘Fourth-World’ was popularized by George Manuel and Michael Posluns through their book ‘The Fourth-World: An Indian Reality,’ where they showed how indigenous communities have been forced to the margins of law.[7] The book conceptualized the Fourth World as a site of resistance to “neoliberal economies” that is grounded in “the natural economy of inter-human and cross-species relationships”.[8] FWAIL was born out of the failure of TWAIL, to combat the predatory role that international law plays in perpetuating violence against indigenous peoples using the vehicle of statehood.[9] FWAIL, instead, places indigenous peoples at the centre of the re-making of international law. This is what Kenyan author Ngugi calls the “dumping of European thought” to herald “indigenous forms of narrative and drama”.[10]

The premise of Fourth World approaches is to question the basic assumptions underlying international law; whether it is the idea of the State being an impartial guarantor, the dominance of the English and French languages as the vernacular of international law, or even the criteria on the basis of which personhood is recognized. Fourth World approaches push for the recognition of non-anthropocentric personhoods - of land, of nature, of ancestors, and of ecosystems. Such approaches also expose the colonial motivations behind diminishing the personhood of indigenous peoples. At its root, this opposition stems from the basic difference in epistemology. That is, they highlight the fact that there are different ways of thinking about international law and all these different ways are equally credible and valid.

Framework of relationality
Indigenous epistemologies – while incredibly diverse – share certain tenets, the first of which is relationality.

As Cree scholar Shane Wilson notes that as “indigenous people, we ‘are’ our relationships with other people”. Alfred and Corntassel suggest that relationships "are the spiritual and cultural foundations of Indigenous peoples". As a foundation, relationality is how the world is known and how indigenous peoples, country, kin, ethos, stories, and more-than-kin know themselves and their relationship with each other. It is this tenet of relationality that indigenous duties of stewardship of nature, spirits, and all living beings stem from. Relationality also emphasizes the values and lessons endowed by indigenous elders. Increasingly, relationality has emerged as a research method. The excellent edited collection 'Decolonising Law' by Valerie Waboose, Beverley Jacobs, Jeffrey Hewitt, Sujith Xavier, and Amar Bhatia employs the ethos of relationality in its entire making – from the stage of inviting contributors, organizing brainstorming opportunities, scholarship production, to the dissemination. The book also reflects on how Western training in non-relational and extractive ways can hamper the realization of relationality.

Leanne Betasamosake Simpson, the Michi Saagiig Nishnaabeg scholar and artist, writes that “extracting is stealing—it is taking without consent, without thought, care or even knowledge of the impacts that extraction has on the other living things in that environment. That’s always been a part of colonialism and conquest’. Simpson calls the act of taking and converting indigenous ideas into economic capital while removing their ownership ’cognitive extractivism’. Several scholars have written about cognitive extractivism of indigenous knowledges in Australia and settler colonial extractivism in Palestine.

In fact, extractivism demands and sometimes even imposes relationships, eroding the reality of relationships and therefore also the principle of relationality. In practical terms, relationality requires a serious introspection of one's positionality and privilege, and understanding how to surrender and "listen" to indigenous co-collaborators. From a position of doing, the researcher moves to a position of listening. Listening, not only in the biological sense, but as Cahill note, listening in the affective sense.

Sacred and secular
Spirituality is a central component of indigenous worldviews. The spiritual is not understood as beyond the purview of rationality. Rather it is seen as informing rationality and meaning-making in the world. According to Hoffman (2013), “Aboriginal ontologies and epistemologies are rooted in worldviews that are inclusive of both the sacred and the secular. [In Indigenous ontologies] the world exists in one reality composed of an inseparable weave of secular and sacred dimensions”. All relationships and all beings are endowed with spirituality - whether it is the land or one's knowledge. Spirituality, in Western legal discourse, is often romanticized and treated as less-than-scientific. In their piece, Townsend and Townsend critique how indigenous elders articulations of their spiritual relationships with territory and nature were not seen as relevant to more scientific assessments about territory apportionment and environmental rights for which an external expert was invited.

Reciprocity as epistemology
Several indigenous epistemologies rest on the notion of reciprocity. As Kovach notes, "they say that we traditionally knew about portal, the doorway, how to get knowledge and that it was brought to the people by sharing, by community forums, by sitting in circles, by engaging in ceremony, by honouring your relationship to the spirit. When we do that, the spirit will reciprocate and we will be given what we are needed." Reciprocity is applies for insiders and outsiders and those in-between. Indigenous cultures - unlike Western epistemologies - do not attach neutrality to people situated outside indigenous cultures. They see the all worlds as being interconnected and each individual and community responsible for changes affecting peoples everywhere. Internal positions are also equally problematized. As Tuhiwai-Smith notes, insiders often take their familiarity for granted. However, in indigenous epistemologies pin critical reflexivity on insiders too. These ideals are not only embedded in stories and myths, but also in songs, rituals, and dance. Welch writes about how movements in Native American dances convey lessons in reciprocity. Hansda writes about how for indigenous communities in India, dance serves both to reinforce indigenous epistemologies of reciprocity and to resist the assimilationist strategies of the postcolonial State.

Conclusion
This chapter looks to understand why and how international law has worked to disenfranchise indigenous peoples and how indigenous peoples have responded to affronts by international law over the past decades. The latter parts of the chapter canvas the historical status labels associated with indigenous peoples and the growing body of rights that such peoples currently enjoy. The final part of the chapter offers a brief explanation of indigenous epistemologies and the ways in which rights and justice are imagined in such epistemologies.

Further readings

 * Chidi Oguamanam, Indigenous Peoples and International Law: The Making of a Regime, 30 Queen's L.J. 348 (2004-2005).
 * Sheryl Lightfoot, The Declaration on the Rights of Indigenous Peoples, in Global Indigenous Politics (Lightfoot, Routledge, 2016).
 * Kathleen Absolon, Kaandossiwin: How We Come to Know: Indigenous Re-Search Methodologies (Fernwood Publishing, 2022).
 * Venne, Sharon Helen. Our Elders Understand Our Rights: Evolving International Law Regarding Indigenous Peoples. Penticton, BC: Theytus, 1998.
 * Anaya, James. Indigenous Peoples under International Law. 2d ed. Oxford: Oxford University Press, 2004.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Public International Law/Actors in International Law/International Organizations

Author: Grazyna Baranowska, Viljam Engström, Tamsin Paige "Required knowledge: Sources of International Law, Subjects and Actors in International Law, States" "Learning objectives: To understand: the concept of international organisation; varieties of international organisations and categorization of organisations; organisations as actors in international law and as international legal persons; the autonomous nature of international organisations; concepts of legal personality and legal powers / competences; main features of the United Nations; main structure and function of the United Nations; the law of the United Nations and the fundamental principles of public international law in the UN charter"

A. Introduction
It has been said that everything we do is today in one way or another dealt with by an international organisation. International organisations have become an established way of structuring interstate relations, today outnumbering, in any definition, the amount of states. This chapter identifies basic features of international organisations, highlights elements of their autonomy, and explains fundamental concepts relating to organisations. It also introduces the United Nations as the paramount organisation of the international legal system.

I. Defining an international organisation
While international organisations influence many aspects of our life – they regulate our food, how we travel travel, and who delivers our mail– defining them appears challenging. The International Law Commission’s Draft articles on the responsibility of international organizations defines international organisations as established by a treaty or another instrument governed by international law and possessing international legal personality. The Draft articles further stipulate that such organisations may include other entities as members in addition to States.

Several characteristics can be identified that – while not being an exhaustive definition – provide a “useful point of departure” for identifying international organisations. These include: (1) being created by States, (2) being based on a treaty, and (3) consisting of at least one organ with a distinct will. All these characteristics are fluid and raise further discussion. For example, international organisations can be jointly created by States and international organisations, not all organisations are based on a treaty but for example a decision of the UN General Assembly or domestic parliaments, and the distinct will may sometimes be difficult to establish.

1. Intergovernmental - supranational - non-governmental
International organisations are traditionally understood to consist of States. As such, a defining feature of international organisations as actors in international law is that they are 'intergovernmental'. The notion 'intergovernmental' can also be used to indicate a distinction to other forms of organisations. As a point of departure an intergovernmental organisation does not limit the sovereignty of States. Although the constituent instrument of an intergovernmental organisation is a treaty, and as such may contain certain obligations for the Member States (such as financial obligations), most organisations can not adopt legally binding decisions. One exception is the United Nations. However, the United Nations would still not qualify as a supranational organisation.

Supranational organisations differ from intergovernmental organisations in respect of their regulatory authority. The European Union is currently the only example of a truly supranational organisation, exercising a range of law-making, adjudicative, and enforcement powers. As stated by the Court of Justice of the European Union, by becoming members, States have created an organisation of 'unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers'. In the EU this 'limitation' means that EU legislative measures can have direct effect in the legal orders of EU Member States.

A common way to distinguish between organisations is to scrutinize the body of law that governs the organisation’s activities: only those entities are international organisations that are governed by international law. Consequently, organisations whose activities are governed by domestic law are considered non-governmental organisations. By way of examples, the International Committee of the Red Cross is governed by Swiss law, and Amnesty International by British law. Membership in non-governmental organisations is also withheld for individuals. This does not mean that non-governmental organisations would not perform important tasks in the practice of international law. This reflects the trend of increasingly recognizing an ever more diverse set of actors. Moreover, organisations can transit from non-governmental to intergovernmental.

2. Global/open - non-global/closed
Another useful distinction can be made between global and non-global organisations. In global or open organisations all States are eligible to become members, such as the United Nations or the World Health Organization. To the contrary, non-global or closed organisations restrict their membership in one way or another. Closed organisations include for example regional organisations such as the Organization of American States and the African Union, organisations based on a common background such as the Organization of Islamic Cooperation or Organization Internationale de la Francophonie, or organisations where membership is restricted to a particular function, such as The Organization of the Petroleum Exporting Countries or the North Atlantic Treaty Organization.

3. Political - Technical
While most international organisations are established to perform a specific function, the limited scope and nature of the tasks of some organisations make them appear as dealing with predominantly technical issues. For example, the Universal Postal Union regulates global postal services. Instead of diplomats, states usually delegate experts to meetings of such organisations. By contrast, 'political' organisations may discuss any matter of global governance, and State delegations usually consist of diplomats and politicians, the paradigm example being the United Nations General Assembly. At the same time, the distinction between political and technical organisations can be difficult to uphold.

I. Legal personality
Although international organisations have been created by treaty already since the late 19th century, it was only with the creation of the League of Nations and the International Labor Organization, that the issue of legal personality of organisations came to be discussed. International organisations are established legal subjects of international law. This was confirmed by the International Court of Justice in the Reparation for Injuries Advisory Opinion in 1949.

The legal personality of organisations has two dimensions: Personality in domestic law and in international law. The constituent treaties of international organisations commonly contain a provision granting the organisation legal personality under the domestic law of its Member States. and, Like all provisions of the constituent instrument, this grant of domestic legal personality only applies in relation to the members of the organisation. Explicit provisions on international legal personality, on its part, is a rarity especially in open international organisations, whereas such provisions may be found in closed organisations.

While the question of legal personality may seem rather theoretical, in practice the absence of legal personality has proved problematic as it can prevent an organisation for example from concluding agreements or renting buildings. Due to the lack of legal personality for example the Organization for Security and Co-operation in Europe has faced several practical obstacles.

II. Competences / Powers
The question of personality and powers are so closely intertwined that they may sometimes be difficult to distinguish from one another. This has to do with the fact that the exercise of powers is an inherent element by which legal personality manifests itself. An organisation performs its tasks by exercising legal powers. As these powers are organisation-specific, they can range from being very limited to exceeding the powers of its Member States. There are very few organisations that can make decisions that become directly binding on member States (basically the European Union, and the United Nations Security Council). Most exercises of powers, in other words, gain their regulatory impact through other means.

The main source of the legal powers of an organisation is the conferral or attribution by members as provided in its constituent instrument. The basic rule governing acts of organisations is that they must remain within the confines of its attributed powers. This principle is also explicit for example in the Treaty on European Union, article 5. Similar provisions are explicit in constituent instruments of several organisations.

In addition to explicitly conferred powers, it is accepted that organisations can also exercise such 'implied powers' that are necessary for the performance of their duties. An express embodiment of this idea can be found in the Treaty on the Functioning of the European Union, article 352. The element of attribution/conferral emphasizes that organisations do not, unlike States, possess a general competence (also called the 'principle of speciality'). However, the 'necessities of international life' may reveal the need for the exercise of implied powers that are not expressly provided for in the constituent instrument. As long as an act of an organisation is necessary for achieving the purpose of the organisation, and there is political agreement on that necessity, such an act is not ultra vires. The two doctrines are tools for constructing and adjusting the functions and tasks of organisations in accordance with the desires of their membership.

No legal powers can be derived from the mere possession of legal personality, which rather indicates a capacity or 'readiness' to exercise powers. Some powers can however be identified that are very common in organisations, such as the capacity to conclude treaties and to bring international claims. In fact, the commonality of certain powers has tempted some academics to locate those powers in the mere possession of legal personality. There is a bulk of powers, in this logic, that have become customary, which means that as soon as an organisation comes into existence, it would enjoy all of these powers. In the 'inherent powers approach' organisations are potentially free, like States, to perform any sovereign act which they are in a practical position to perform. In practice, claims to inherent powers are more common in the context of international courts and tribunals. However, the distinction to implied powers is in this practice not always consistent.

III. Other aspects of the autonomy of international organisations
While legal powers may be the most visible way by which organisations assert an autonomy, it is not the only expression of it. Organisations and their employees enjoy |privileges immunities which secure a degree of physical autonomy for organisations. The need for privileges and immunities derives from the fact that organisations will always have a physical presence on the territory of one or more of its member States, and the personnel of the organisation will consist of individuals with various citizenships. Yet, in order to act independently of any particular State interest and free from political pressure, organisations and staff commonly enjoy those immunities that are necessary for the performance of the functions of the organisation. In respect of membership, the autonomy of organisations expresses itself for example through a right to include and exclude States. There is no automatic right of States to become members in any organisation of choice. The right to become a member can be subject to restrictions. Also membership rights such as the right to participate in the work of organs and/or the right to vote can be restricted by the organisation.

I. Overview
The core goal of the United Nations is the maintenance of peace. The horrors of World War I and World War II are reflected in the Preamble of the UN Charter, its foundational treaty, where the first stated aim of the UN is 'to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to [human]kind'. This overarching goal is further reflected in article 1(1) of the Charter, where it is stated that the purpose of the United Nations is 'to maintain international peace and security'. Article 1 defines as goals of the UN; maintenance of peace by collective measures and settlement of disputes; development of friendly relations, equal rights and self-determination; promoting human rights; and international cooperation. Whereas the primary goal of maintaining peace is a prerogative of the UN main bodies, as stated by the International Court of Justice in the Legality of the Use by a State of Nuclear Weapons in Armed Conflict case, in the pursuit of the broader set of goals the UN not only works through the core organisation but also the broader UN system.

II. The Drafting History and Legal Status of the Charter
The term 'United Nations' was first coined on 1 January 1942 in the ‘Declaration by United Nations’, which pledged to uphold the purposes and principles of the Atlantic Charter (a joint statement between Churchill and Roosevelt on 14 August 1941). At the close of World War II, this term got to form the basis of the new organisation to replace the League of Nations. The UN was formed through the drafting of the UN Charter at the San Francisco Conference in April 1945, with 50 nations present, and Poland signing once government was formed to constitute the 51st original member state. As of June 2023, the UN has 193 member states. The volume of membership to the UN gives it near universal status, and also gives rise to a strong argument that the principles enshrined in the Charter should be considered customary law. The Charter is a multilateral treaty, binding upon its member states, that creates a permanent venue for diplomatic relations. The UN Charter establishes the basic structure and procedures of the organization. The most forceful tool at the disposal of the UN is the binding nature of Chapter VII resolutions by the Security Council, when it finds that there is a threat to international peace. Today the UN main areas of work are international peace and security, the protection of human rights, humanitarian aid, sustainable development and climate action, and upholding international law.

III. The Law of the United Nations
Article 2 is one of the most important provisions of the Charter, as it lists the principles upon which UN activities are based. These principles have been reproduced and further defined in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States (1970). Given the near-universal membership of the UN, these principles are often referred to as the fundamental principles of public international law/international relations. Some of them can even be considered peremptory norms. These principles are:

 * Sovereign equality
 * Fulfillment of obligations in good faith
 * Peaceful settlement of disputes
 * Prohibition on the use of force
 * Non-intervention in internal affairs
 * Duty to cooperate
 * The Right of self-determination of peoples

III. The General Assembly
The UN General Assembly (GA) is the primary organ of diplomatic relations within the UN and was established to be the primary forum for multilateral negotiations. Article 9 of the Charter grants all member States of the UN representation in the GA. The GA meets annually from September to December to discuss issues on its agenda, and as needed from January to September. The latter usually in response to special emergencies or in response to specific committees of the GA. Articles 10 to 17 outline the scope of General Assembly authority, with voting and procedure set out in Articles 18 to 22. Most voting in the GA requires a simple majority, and voting on 'important matters' (such as the membership of the non-permanent members of the Security Council, membership of the Human Rights Council, membership of the Economic and Social Council, or the budget of the UN) requires a two-thirds majority. All voting in the GA is done on a 'one member, one vote' basis. Apart from the annual sessions, the majority of the work of the GA is conducted by six committees that it oversees. These are: Disarmament and International Security (First Committee); Economic and Financial (Second Committee); Social, Humanitarian and Cultural (Third Committee); Special Political and Decolonisation (Fourth Committee); Administrative and Budgetary (Fifth Committee); and Legal (Sixth Committee). Each member state of the UN may assign one person to each committee. The committees for example prepare draft resolutions to the GA. It is important to note that GA resolutions, with the exception of budgetary matters under article 17, are not formally legally binding. In terms of legal status they can however be considered expressions of state practice, and as such, give support to the existence of customary law. GA resolutions can also gain the status as customary law, as for example in the case of the Universal Declaration of Human Rights. An important function of the GA as a permanent multilateral diplomatic forum is the ability to request advisory opinions from the ICJ thereby contributing to the development of the articulation of the current status of international law.

IV. The UN Security Council
The UN Security Council (SC) is the executive body of the UN, charged with taking primary responsibility for the maintenance of international peace and security. The SC is made up of five permanent members (China, France, Russia, the UK, and the US), and 10 non-permanent members who are elected by the GA and sit in the SC for two years at a time. The composition of the non-permanent members is fixed: five members from African and Asian states, one from Eastern European states, two from Latin American states, and two from Western European and other states. This geographical breakdown of SC membership was determined by the GA in the 18th session of the UN (1963-64). The special role of the SC is reflected in its structure, the binding nature of SC resolutions, and the right of veto granted to the permanent members of the SC.

Unlike the GA, the SC sits permanently and meets as necessary to debate and discuss any situation that falls within its mandate (the maintenance of international peace and security). When making decisions, the SC has the option to make recommendations with relation to any situation under Chapter VI (Pacific Settlement of Disputes) of the Charter, or binding decisions under Chapter VII (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression) of the Charter. Resolutions made under Chapter VII of the Charter are binding upon all member states of the UN by virtue of Article 25 of the Charter. The threshold for SC action according to Article 39 of the Charter is the finding of 'the existence of any threat to the peace, breach of the peace, or act of aggression'. Voting in the SC on any resolution (Chapter VI or Chapter VII) is governed by Article 27 of the Charter. This article sets out that for a resolution to pass it must have 9 of the 15 votes in the Council, and none of the permanent members can vote against the resolution. This requirement for all permanent members to either vote in the affirmative or abstain from voting for a resolution to pass has become colloquially known as the veto power (although the phrase veto is not mentioned in the UN Charter as such). It is also worth noting that Article 27 requires that any party to a dispute that is subject of a Chapter VI resolution or a decision under Article 52(3) (pacific settlement of local disputes) is required to abstain from voting. This is not, however, required for Chapter VII decisions. A Chapter VII resolution is the only generally accepted exception (beside self-defence) to the prohibition on the use of force found in article 2(4) of the UN Charter.

V. The Secretariat
The UN Secretariat is set up under Articles 97 to 101 of the Charter, and operates as the administrative arm of all UN activities. The Secretary-General is appointed by the GA, upon the recommendation of the SC. The SG (awkwardly referred to as 'he' in the Charter) is responsible for overseeing all the activities of the Secretariat, and reporting annually to the GA on the activities of the UN. The SG is also charged with bringing before the SC any matter that may threaten the maintenance of international peace and security. The Secretariat itself is made up of a number of departments that cover the broad functions of the UN globally, each with a specific focus, acting on direction from the SC, the GA, and other UN bodies (such as the Human Rights Council, or the Economic and Social Council).

VI. Other UN Bodies
The UN Charter establishes 3 other bodies: The Economic and Social Council; The Trusteeship Council; and the International Court of Justice.

1. The Economic and Social Council
The Economic and Social Council is established under Article 61 of the Charter, and is made up of 54 members of the UN elected for three-year terms by the GA. The role of the Economic and Social Council is to conduct studies and reports with respect to international economic, social, cultural, educational, health, and related matters and to make recommendations to the General Assembly on the basis of those reports, and recommendations for the purpose of promoting respect and observance of human rights.

2. The Trusteeship Council
The Trusteeship Council was established under Article 86 of the Charter and charged with overseeing the administration of UN trust territories. The Trusteeship Council suspended operations on 1 November 1994, a month after the last remaining UN trust Territory, Palau, gained independence. While its abolishing has been proposed, it may also experience a revival due to climate change events.

3. The International Court of Justice
The ICJ was established under Article 92 of the UN Charter, and the annexed statute of the ICJ. The ICJ was established as a successor to the Permanent Court of International Justice. The ICJ is discussed more in detail in the Chapter on the Peaceful Settlement of Disputes.

E. Conclusion
This chapter has provided an overview of international organisations as subjects of international law. In characterizing and classifying organisations, the role of state consent was noted as central both for the establishment of an organisation, as well as for delimiting it for example from non-governmental organisations. One of the defining features of international organisations is their autonomy from their member states. While this autonomy may take various forms, the conferral of legal personality upon an organisation, and its exercise of legal powers, are undoubtedly crucial features. The second part of the chapter introduced the United Nations as the primary example of a global/open organisation with an openly political agenda. The UN Charter assumes a special position among legal sources of public international law, and the General Assembly and the Security Council are important venues for bringing states together in addressing global challenges. Although the international legal system today acknowledges a range of non-state actors, international organisations have retained their central role as venues for State collaboration in global governance.

Further Readings

 * Chittharanjan Felix Amerasinghe, Principles of the institutional law of international organizations (Cambridge University Press 200
 * Robert Kolb, An Introduction to the Law of the United Nations (Bloomsbury publishing 2010)
 * Jan Klabbers, An Introduction to International Organizations Law (Cambridge University Press 2022)
 * Henry G. Schermers, Niels M. Blokker, International Institutional Law: Unity within Diversity, (6th edn, Martinus Nijhoff Publishers, 2018)

Summary

 * International organizations are well established international actors that today outnumber the amount of states. International organizations are also autonomous legal persons alongside states.
 * Although each international organization has a specific mandate and tasks, they display many common features. These similarities give rise to what is known as international institutional law.
 * The international organization par excellence in international law is the United Nations. This follows from its inclusive membership, openly political agenda, and the fundamental principles of public international law as codified in the United Nations Charter.
 * The UN system at large works to promote a range of issues that are of global concern. The UN SC can make decisions that are binding upon all UN Member States when finding the existence of a threat to the peace, breach of the peace, or act of aggression.


text:
Public International Law/Actors in International Law/Individuals

Author: Jens T. Theilen "Required knowledge: Introduction to Subjects and Actors in International Law" "Learning objectives: To understand the development of individuals' international legal personality, and to understand and critically assess the narratives of progress that often accompany it."

A. Introduction
The role of individuals in international law is complex, contested, and shifting. Whether and what kind of international legal personality individuals possess, in particular, is a much-debated topic that is poised between somewhat technical definitions and doctrinal debates on the one hand and implications for the very foundations of the international legal order on the other. Any stance on individuals’ international legal personality or subjecthood presumes a definition of how such subjecthood is constituted, which in turn reveals a particular theoretical outlook on international law. For example, proponents of the process-based, policy-oriented approach to international law are likely to see individuals as actors or participants rather than subjects. The dominant position as a matter of legal doctrine seems to be that international legal personality is the capacity to occur rights and duties under international law. On that account, the question becomes, empirically, whether and to what extent such rights and duties have, in fact, been imparted upon individuals and, conceptually, what this means for the subjecthood of individuals under international law, especially in relation to the prototypical subject of international law on traditional accounts – the state.

Against this backdrop, the standard narrative regarding the international legal personality of individuals goes roughly as follows. While individuals were included among the subjects of early writings on international law by natural law scholars, the rise of positivism, especially in the late 19th and early 20th century, brought with it a focus almost exclusively on states. Some scholars continued to advocate for a stronger role for individuals, however, and over the course of the 20th century these efforts bore fruit, particularly in light of the legal developments following the Second World War. Nowadays, individuals are acknowledged as the bearers of a broad range of international rights and duties, necessitating their inclusion as subjects – perhaps even the ‘primary’ subjects – of international law. The following sections will trace the different steps of this narrative before questioning, by reference to the related field of global constitutionalism, whether it should be considered a narrative of progress.

B. Origins of individuals’ international legal personality
To legitimise the international legal personality of individuals, some authors point to history: at the very origins of international law, it is said, no distinctions were made between the subjecthood of individuals and communities such as states. Many proponents of individuals’ international legal personality point to the writings of the Spanish theologian Francisco de Vitoria, particularly his treatise De Indis (published posthumously in 1557) on the relations between the Spanish and the indigenous peoples they conquered during their transatlantic voyages. Vitoria is said to have established ‘natural law as the universal law of all humanity’, including individuals among its subjects. He is summarised as arguing ‘that the Native Americans in the territories conquered by Spain and Portugal had rights and claims under both public law and private law, just like Christians’ – hence implicitly recognising individuals including indigenous persons as subjects under international law without distinction, for example, between ‘private’ and ‘public’ wars.

To leave the summary at that and to couch it in celebratory tones – as those who claim Vitoria as an early pioneer of individual rights often do – is misleading, however. Vitoria’s ostensibly humane characterisation of indigenous persons as possessing reason led them to be bound, on his account, to the principles of international law: ‘it is precisely because the Indians possess reason that they are bound by jus gentium’, as Antony Anghie, one of the leading scholars associated with the Third World Approaches to International Law (TWAIL), has put it. The content of jus gentium, although characterised as universal and reason-based by Vitoria, in effect mirrored Spanish norms and cast alternate social practices as uncivilised. Inevitably, the colonised peoples were held to have violated the international norms they now found themselves subject to, which, in turn, legitimated their conquest and other forms of violence against them. So, even if Vitoria’s vision of international law can indeed be conceptualised as a precursor of modern approaches that recognise the international legal personality of individuals, it also serves as a warning that legal subjecthood can fulfil a variety of functions, not all of them benign. For indigenous peoples in particular, the dynamic inherent in Vitoria’s argument still resonates today, with recognition of subjecthood under the law of settler colonial states – or under international law, dominated by those very states – establishing them as ‘subjects of empire’ in a way that runs counter to indigenous sovereignty.

C. From state-centric to human-centric international law
But for now, let us return to the standard narrative of the development of individual subjecthood under international law over time. In contrast to the position of early natural law scholars like Vitoria, classical legal positivism brought with it a state-centric view of international law. The orthodox position regarding international legal personality at the beginning of the 20th century was aptly summed up by Lassa Oppenheim, one of the most famous positivist international lawyers: ‘Since the law of nations is based on the common consent of individual States, and not of individual human beings, States solely and exclusively are subjects of international law’. Individuals were said to be ‘objects’ rather than ‘subjects’ of international law. On this view, even when treaties or other sources of international law seemed to provide rights to individuals, they were, in fact, not granted to the individuals themselves but rather to their state of nationality. It was only through the mediation of the state that the individual could appear on the international scene – provided that their state of nationality was willing to engage on their behalf, for example by exercising diplomatic protection but also, potentially, by the use of force. This was particularly relevant in the case of foreign investments, where – despite protest by Latin American states in particular – it was increasingly regarded as legitimate for the investor’s home state to intervene on their behalf in cases of expropriation or public debt.

Over the course of the 20th century, the exclusively state-centred position lost ground significantly.

In the decades that followed the Second World War, human rights came to be seen as an increasingly important sub-field of international law, and a vast number of human rights treaties were concluded. Nowadays, their number is so immense and their interpretation by various human rights bodies covers so much ground that some scholars even speak of undue human rights ‘proliferation’ or ‘inflation’. This proliferation of individual rights also includes fields which were traditionally viewed as merely the purview of states, such as consular relations. In the famous LaGrand case, the ICJ was seized of a dispute regarding consular law: two German nationals, the LaGrand brothers, had been sentenced to death in the United States of America without being informed of the possibility of contacting and communicating with the consular post of their state of nationality. Germany contended that this entailed not only a breach of its own rights, but also those of the LaGrand brothers themselves. In its 2001 judgment, the ICJ came to the following conclusion:"Based on the text of these provisions, the Court concludes that Article 36, paragraph 1 [of the Vienna Convention on Consular Relations], creates individual rights, which, by virtue of Article I of the Optional Protocol [of that Convention], may be invoked in this Court by the national State of the detained person. These rights were violated in the present case."The ICJ thus read the Vienna Convention on Consular Relations as granting certain individual rights of information and communication to detained foreign persons, based not on the original intent of the states parties but on the wording of the provisions at issue.

Besides this landmark judgment and the field of human rights as the paradigm of individual rights, proponents of individuals’ international legal personality point to developments in many other fields of international law, including but not limited to humanitarian law, the law of the sea, and economic law. The field of investment law, previously the poster-child of individuals being perceived on the international legal scene only when mediated through action of their home state, now provides a prime example of individuals not only being accorded their own rights under international law, but of participating in the law-making process through ‘state contracts’ between investors and host states and of individuals enforcing their rights before arbitral tribunals. Thus, unlike the situation in the LaGrand case where individuals were held to have rights under international law but only their state of nationality could procedurally invoke these rights before the ICJ, in some cases individual rights also include standing to bring cases before regional or international courts or other quasi-judicial bodies. This possibility is seen by some authors as in turn enshrined within international law as an individual right of petition and characterized as ‘the most luminous star in the universe of human rights’ and an expression of the individual as the ‘ultimate subject’ of international law.

In terms of duties, too, there have been clear developments since the Second World War. Already in its immediate aftermath, the trials of Nuremberg brought together individual duties, penal sanctions, and international law; the Military Tribunal noted:"That International Law imposes duties and liabilities upon individuals as well as upon States has long been recognized. […] Crimes against International Law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of International Law be enforced."

While the idea of long-recognized individual duties as pronounced here was certainly a product of the specific post-war context, it has since spread, with the growing importance of the field of international criminal law, to a number of other contexts. Most notably, the Rome Statute brought the International Criminal Court (ICC) into being at the turn of the century – although it has to be said that the duties which the Rome Statute imposes have, in practice, fallen only on some individuals, particularly those from Africa, while others seem exempt. A number of other courts such as the International Criminal Tribunal for the former Yugoslavia have likewise dealt with individual penal duties under international criminal law.

This brief overview has merely scratched the surface; a great many other legal developments could be mentioned. Taking them all together, it is easy to understand why the dominant position on the international legal personality of individuals has shifted: if legal personality is understood as the capacity to have international rights and duties, then the sheer volume of individual rights and duties under modern international law makes the recognition of individual subjecthood inevitable by implication. Denying international legal personality to individuals entirely has, accordingly, become a minority position based on highly restrictive readings of international law and additional prerequisites for legal personality such as significant participation in international law-making processes.

Debates now rage, rather, on the question of how to qualify individuals’ subjecthood. One position is that states continue to be the primary subjects of international law, and that individuals’ international legal personality is partial and derivative – in other words, restricted to those rights and duties that states have bestowed upon individuals by way of treaties and other sources of international law. On the other hand, the idea that individuals rather than states are in some sense the ‘primary’, ‘principal’, ‘original’ or ‘natural’ subjects of international law is gaining ground and can increasingly be viewed as the new orthodoxy. Proponents of both views typically tell the story of international legal personality’s development over the last century or so as a success story: from being on the fringes of international law in the heyday of legal positivism, the individual has now emerged as a subject of international law in its own right, forming part of the overall ‘humanisation’ of international law. Those who see the individual as international law’s primary subject tend to place particular emphasis on the aspect of humanisation. In this narrative of progress, the international legal personality of the individual merges into a claim about the normative importance of the human being which, it is implied, makes for a more just and ethical international legal order. State-centrism has thus become a pejorative concept, whereas its critics associate themselves ‘with a progressive and enlarged angle of vision’.

D. Individualisation, humanisation, and global constitutionalism
It is worth pausing here to ask ourselves why the increasing individualisation of international law is, often without further reasoning, seen as progressive in this way. After all, there is a long line of critique, reaching back at least to Karl Marx and further developed for example in Marxist perspectives and critiques of human rights, that problematises individualisation as giving way to egoism and self-interest, disregarding ‘species-life’ in society, and constituting a set of social relations that prevent emancipation. Feminist critique, too, has long grappled with the ambiguities of individual rights and the ‘standing’ that comes with them: ‘rights secure our standing as individuals even as they obscure the treacherous ways in which that standing is achieved and regulated’, they ‘promise increased individual sovereignty at the price of intensifying the fiction of sovereign subjects’, in brief: they form part of historically specific power structures and entrench subordination even as they offer limited redress.

Part of the answer to the continuing popularity of individuals as subjects of international law presumably lies simply in the positive feelings that speaking of an ‘international law for humankind’ evokes. By contrast, a state-centric international legal order might seem rather abstract and austere – and hence become associated with an old-fashioned, less humane standpoint. This can lead to quite dramatic statements:"It is thus extremely problematic to have at the centre of our legal order something which amounts to nothing more than a figment of our imagination. The universe of which earth is part exists only because the planets which constitute it have mass, a substance consisting of rock and dirt and gas. For international law to hold together, for gravity to work for us, we too need a substantive core – that of flesh and blood."While more evocative than reasoned, this kind of association with individual subjecthood should not be disregarded as irrelevant simply because it has no immediately discernible practical impact on specific international legal rules. As a mindset, the notion of an international law for humankind could nonetheless have notable impact on the interpretation and development of international law over time. Debates over the international legal personality of individuals, then, may function primarily as a placeholder for broader debates on the nature and ultimate function of international law as such.

This hypothesis is confirmed by the connection often drawn between the international legal personality of individuals and the constitutionalisation of international law. The field of global constitutionalism is itself a broad church, but can be summarised as an attempt to give meaning and legitimacy to international law by understanding it as a constitutional order imbued with certain foundational values. Particular emphasis tends to be placed on the ‘holy trinity’ of human rights, democracy and the rule of law. It is striking that several if not all of these concepts tend to be associated with individuals and that human rights, in particular, constitute one of the primary fields of law used to argue for the international legal personality of individuals. There is thus significant overlap between both the empirical reference points and the broader rationales of those arguing for individuals as the primary subjects of international law and those advocating for global constitutionalism as a prism through which to understand it.

But if the approaches share ground in this way, they are also open to similar objections. Global constitutionalism has been rightly criticised for the active neglect of its own history, particularly colonialism, slavery, and their legacies – in much the same way as the colonial origins of individuals’ international legal personality are commonly glossed over, as described above. Another crucial shortcoming of global constitutionalism is the way in which it reinscribes liberal values as universal, including the liberal distinction between politics and economics. Indeed, global constitutionalism tends to take the market as a given and to relegate economic matters to the private sphere, untouched by the public law principles it propounds for international law – thus legitimising structures of global capitalism and shielding them from democratic contestation.

A similarly liberal outlook on economic matters is also often implied, although rarely made explicit and certainly not politicised, in the insistence on international legal personality of individuals. An awareness of how individual subjecthood relates to economic matters is crucial to fully understand its political implications. The liberal outlook shines through, for example, in the analogization of the individual under international law to ‘a global bourgeois in the dual sense of an economic actor and bearer of so-called unpolitical international rights that secure his or her personal freedom and development’. The individual here becomes individual-as-free-economic-actor. Simultaneously, most proponents of individuals as the primary subjects of international law relegate market structures and economic matters to the unquestioned background in much the same way as global constitutionalists – for example, the complex economic phenomenon of globalisation and the social relations of racialised and gendered exploitation that accompany it are reduced to a manifestation of humans’ ostensible nature as a ‘social animals’, with an emphasis on communication and technological innovation.

Against this backdrop, it becomes vital to question which individuals are ascribed international legal personality, and which of them stand to profit from it. While the rhetoric of humanisation and of ‘flesh and blood’ leads us to equate the individual and the human being, the technical meaning of ‘individuals’ on most accounts is by no means restricted to natural persons. As the inclusion of investment law alongside other fields in which the rights of individuals are enshrined in international law shows, the term also includes juridical persons constituted by private law under its ambit – and it is notable that investment law, commonly acknowledged as particularly important to the entrenchment of imperialist, capitalist structures through international law, forms one of the crucibles in which the international legal personality of individuals was forged. For that matter, human rights doctrine likewise recognises juridical persons as bearers of ‘human’ rights. Although transnational corporations tend to be discussed separately under the rubric of international legal personality, then, there is a significant but underacknowledged area of overlap with discussions of the international legal personality of individuals and their (economic) rights. The ostensible humanisation of international law of which individual subjecthood is said to form part thus turns out to include the kind of economic freedom that underlies a liberal capitalist order which serves the interests of corporations in the Global North.

E. Outlook
The doubts canvassed above are intended to contextualise the debates on individuals’ international legal personality, not to argue against it – states are no more ‘natural’ candidates for international legal personality than individuals, and no less entangled with civilizational hierarchies and the structures of global capitalism. In any case, that individuals possess some form of subjecthood under international law is nowadays almost indisputable. Its form and extent hinges not only on one’s definition of international legal personality but also on various precommitments as to the nature and ultimate function of international law. What stands out about the new orthodoxy emphasising the development from state-centric to human-centric international law, however, is its self-presentation as a narrative of progress – a characterisation which not only elides the downsides of individualisation and the politics of claiming primary subjecthood for individuals, including juridical persons, but also delegitimises broader doubts about the concept of international legal personality as such. Against this narrative of progress, it is worth asking: why individualise, which ‘individuals’, and who profits from approaching international law in this way?

Further Readings

 * Peters A, Beyond Human Rights. The Legal Status of the Individual in International Law (Cambridge University Press 2016)
 * Cançado Trindade AA, ‘The Emancipation of the Individual from his own State: The Historical Recovery of the Human Person as Subject of the Law of Nations’ [2006] Revista do Instituto Brasileiro de Direitos Humanos 11
 * Buszewski SE, ‘The Individual, the State and a Cosmopolitan Legal Order’ in Weiß N and Thouvenin J-M (eds), The Influence of Human Rights on International Law (Springer 2015) 201
 * Kjeldgaard-Pedersen A, ‘Global Constitutionalism and the International Legal Personality of the Individual’ (2019) 66 NILR 271
 * Nmehielle VO, ‘A Just World Under Law: An African Perspective on the Status of the Individual in International Law’ (2006) 100 ASIL Proceedings 252
 * Grear A, ‘Challenging Corporate “Humanity”: Legal Disembodiment, Embodiment and Human Rights’ (2007) 7 HRLR 511

Summary

 * The orthodox position regarding international legal personality at the beginning of the 20th century was that states were the sole subjects of international law. Individuals were ‘objects’ rather than subjects and could appear on the international scene only through the mediation of their state of nationality.
 * Over the course of the 20th century, developments in a large range of fields including human rights law, economic law and international criminal law led to the increasing acceptance of individuals as themselves subjects of international law. Debates now turn on their international legal personality is partial and derivative or whether they constitute the primary or ‘natural’ subjects of international law.
 * International legal personality for individuals is often viewed as part of the ‘humanisation’ of international law and narrated as progress on the basis of the liberal distinction between politics and economics. This perspective fails to question what progress is actually achieved and for whom.