Most of the questions relate to implementation of this standard in Latin America, but his answers to the final two questions were particularly interesting to me, and applicable to many nations that are being called on to implement the prior consent standard.
Q: Do you think the state would lose its sovereignty if an indigenous community has the last word on whether or not an investment project can be undertaken on their territory?
A: The state does not lose its sovereignty if it respects human rights or indigenous rights. It has to comply with these rules to respect those rights; the state cannot do whatever it wants.
I would say that the respect of these rights is a way of ensuring that this sovereignty is exercised. When the state respects human rights, it exercises its sovereignty, because it is acting in favour of its citizens and peoples.
Q: Nevertheless, there has been a loss of trust in governments. What can be done to ensure legitimate consultations and to open up dialogue?
A: The mistrust and prejudice need to be overcome. It is a matter of creating open processes where indigenous peoples can voice their opinions and influence decisions, and where there is the necessary will to seek consensus.
The problem is that sometimes there is a belief that consent is about saying yes or no, about who wins. Consent is linked to consultation; the purpose of consultation is to reach consent, to reach consensus. It is not a question of one side imposing its opinion on the other.
Text here. Video here.
Legal analysis on the import of the treaty from the international law scholars at Opinio Juris, here. An excerpt:
Beyond the U.S. law, there’s also a fairly interesting issue of how international law regards this sort of treaty-making. As I’ve written previously, international law imposes two conditions on treaty-making by a sub-national actor: (1) explicit treaty-making authority from the State of which it is a component part (whether ex-ante or ex-post); and (2) the consent of potential treaty-partners to the sub-national actors’ participation in the treaty itself. Here, it seems we have a willing group of treaty partners, so the treaty seems OK on the second element (that is, assuming the Canadian First Nations are themselves authorized to make treaties under Canadian law). Still, there are questions as to whether the United States has to authorize this treaty, whether it has done so (or will need to do so going forward), and why it would ever do so when the treaty’s objective would be to lobby and/or constrain federal government behavior. Now, there is an argument that, as indigenous peoples, Native American tribes should not be subject to the standard rules for treaty-making by sub-national actors (indeed, Article 36(1) of the UN Declaration on Indigenous Rights makes just such a claim). But, the United States was one of four nations to object to that Declaration (along with Canada, Australia and New Zealand), so I’m hard pressed to see it getting traction in this case, especially where the treaty involves an alliance of indigenous peoples to oppose federal licensing efforts (and with it perhaps some key aspects of U.S. energy policy).
As such, I think the ball is now firmly in the Obama Administration’s court. I’m interested to see how it responds to this treaty (including, which Agency takes the lead in responding to it). I suppose silence is a possible course of action. But, if the federal government remains silent, I think that might lead to arguments of U.S. tacit approval for this treaty in particular, and even more broadly, a right of treaty making with foreign powers for U.S. Native American tribes.
For a primer on intertribal treaty making, see Wenona Singel’s Indian Tribes and Human Rights Accountability (email me if you want a pdf).
Sheryl Lightfoot has published an article called “Selective Endorsement without Intent to Implement: Indigenous Rights and the Anglosphere” just published in the International Journal of Human Rights (Vol. 16, No. 1 Jan 2012.) — here: LIghtfoot IJHR 16.1 2012
Professor Lightfoot writes (and I am quoting from her):
analyzed the verbal commitments to the UNDRIP made by all four English-speaking settler countries. This analysis finds that they all engaged in a similar pattern of behavior that I call “selective endorsement.” The four of them each expressed how important Indigenous peoples’ rights are to international human rights. But, rather than accepting the UNDRIP as the internationally agreed upon set of standards, this group of countries attempted to unilaterally re-write those standards so that the four of them were already meeting international expectations without further changes to their domestic laws and policies.
From the Colbert Report:
Native American Overlords – The Colbert Report – 1/4/11 – Video Clip | Comedy Central.
Unfortunately we’ve yet to figure out a workaround to embed videos without paying WordPress $60/year.