Willem Assies
- Published in print:
- 2006
- Published Online:
- May 2007
- ISBN:
- 9780199289172
- eISBN:
- 9780191711084
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199289172.003.0011
- Subject:
- Political Science, Political Economy
This chapter examines one of the most controversial cases in Latin America regarding the link between indigenous rights and neoliberal retrenchment. Bolivia is a central case since there indigenous ...
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This chapter examines one of the most controversial cases in Latin America regarding the link between indigenous rights and neoliberal retrenchment. Bolivia is a central case since there indigenous leaders have entered into alliances with neoliberal parties, gaining modest indigenous MCPs in return for not opposing structural reforms. Yet these alliances did not last, and many indigenous leaders insist that neoliberalism and indigenous rights are inherently in conflict. The chapter explores what the Bolivian case says about the potential for alliances between MCPs and neoliberalism and their limits.Less
This chapter examines one of the most controversial cases in Latin America regarding the link between indigenous rights and neoliberal retrenchment. Bolivia is a central case since there indigenous leaders have entered into alliances with neoliberal parties, gaining modest indigenous MCPs in return for not opposing structural reforms. Yet these alliances did not last, and many indigenous leaders insist that neoliberalism and indigenous rights are inherently in conflict. The chapter explores what the Bolivian case says about the potential for alliances between MCPs and neoliberalism and their limits.
Jacob T. Levy
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198297123
- eISBN:
- 9780191599767
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297122.003.0007
- Subject:
- Political Science, Political Theory
Indigenous, and also religious, legal codes can be and have been incorporated into the legal systems of states in a number of ways. These include common‐law incorporation, which recognizes culturally ...
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Indigenous, and also religious, legal codes can be and have been incorporated into the legal systems of states in a number of ways. These include common‐law incorporation, which recognizes culturally distinct ways of establishing rights that are known to the general law, such as marriage and property rights; customary incorporation, which directly applies and enforces the customary rights, privileges, and duties associated with the relevant legal tradition; and self‐government, which grants legal status to the group to make, and revise, its laws on a territorial basis. Hybrid forms have often represented hypocrisy on the states’ part, according to indigenous peoples, the burdens of all these and the benefits of none. The inalienability of indigenous land against a generally common‐law background is such a hypocrisy.Less
Indigenous, and also religious, legal codes can be and have been incorporated into the legal systems of states in a number of ways. These include common‐law incorporation, which recognizes culturally distinct ways of establishing rights that are known to the general law, such as marriage and property rights; customary incorporation, which directly applies and enforces the customary rights, privileges, and duties associated with the relevant legal tradition; and self‐government, which grants legal status to the group to make, and revise, its laws on a territorial basis. Hybrid forms have often represented hypocrisy on the states’ part, according to indigenous peoples, the burdens of all these and the benefits of none. The inalienability of indigenous land against a generally common‐law background is such a hypocrisy.
Allen Buchanan
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780198295358
- eISBN:
- 9780191600982
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198295359.003.0009
- Subject:
- Political Science, Political Theory
Ch. 8 argued for combining a rather restrained, justice‐based view of the unilateral right to secede, the Remedial Right Only Theory, with a much more supportive stance toward forms of ...
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Ch. 8 argued for combining a rather restrained, justice‐based view of the unilateral right to secede, the Remedial Right Only Theory, with a much more supportive stance toward forms of self‐determination within the state: various forms of intrastate autonomy. This chapter argues that the international legal order ought to acknowledge the importance of self‐determination by supporting intrastate autonomy, and also suggests that, apart from the role that international law should play, individual states should generally give serious consideration to proposals for intrastate autonomy. The chapter first makes the case for including in the domain of transnational justice the monitoring and enforcement of intrastate autonomy regimes under certain rather exceptional circumstances, and then, in the last section, suggests that even where principles of transnational justice do not require it, there are cases in which the international community might play a constructive role by providing diplomatic support and economic inducements or pressure to encourage the creation and well‐functioning of intrastate autonomy regimes. The five sections of the chapter are: I. Intrastate Autonomy and Transnational Justice; II. Indigenous Peoples’ Rights; III. Justifications for Intrastate Autonomy for Indigenous Peoples; IV. Basic Individual Human Rights as Limits on Intrastate Autonomy; and V. International Support for Intrastate Autonomy: Beyond the Requirements of Transnational Justice.Less
Ch. 8 argued for combining a rather restrained, justice‐based view of the unilateral right to secede, the Remedial Right Only Theory, with a much more supportive stance toward forms of self‐determination within the state: various forms of intrastate autonomy. This chapter argues that the international legal order ought to acknowledge the importance of self‐determination by supporting intrastate autonomy, and also suggests that, apart from the role that international law should play, individual states should generally give serious consideration to proposals for intrastate autonomy. The chapter first makes the case for including in the domain of transnational justice the monitoring and enforcement of intrastate autonomy regimes under certain rather exceptional circumstances, and then, in the last section, suggests that even where principles of transnational justice do not require it, there are cases in which the international community might play a constructive role by providing diplomatic support and economic inducements or pressure to encourage the creation and well‐functioning of intrastate autonomy regimes. The five sections of the chapter are: I. Intrastate Autonomy and Transnational Justice; II. Indigenous Peoples’ Rights; III. Justifications for Intrastate Autonomy for Indigenous Peoples; IV. Basic Individual Human Rights as Limits on Intrastate Autonomy; and V. International Support for Intrastate Autonomy: Beyond the Requirements of Transnational Justice.
Will Kymlicka
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199240982
- eISBN:
- 9780191599729
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199240981.003.0007
- Subject:
- Political Science, Political Theory
This chapter reviews the book “Indigenous Peoples in International Law” by James Anaya. The book explores the theory that indigenous peoples are a distinct category, and should not be classified ...
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This chapter reviews the book “Indigenous Peoples in International Law” by James Anaya. The book explores the theory that indigenous peoples are a distinct category, and should not be classified under the heading of national minorities. It is argued that this theory conflicts with the realities of international law and the self-understandings of many defenders of indigenous rights. It also appears to justify only transnational rather than permanent differences in the rights of indigenous peoples and stateless nations.Less
This chapter reviews the book “Indigenous Peoples in International Law” by James Anaya. The book explores the theory that indigenous peoples are a distinct category, and should not be classified under the heading of national minorities. It is argued that this theory conflicts with the realities of international law and the self-understandings of many defenders of indigenous rights. It also appears to justify only transnational rather than permanent differences in the rights of indigenous peoples and stateless nations.
Will Kymlicka
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199240982
- eISBN:
- 9780191599729
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199240981.003.0008
- Subject:
- Political Science, Political Theory
This chapter explores the rights of indigenous peoples within the context of social justice and environmental protection. It argues that although indigenous peoples have inherent rights to ...
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This chapter explores the rights of indigenous peoples within the context of social justice and environmental protection. It argues that although indigenous peoples have inherent rights to self-determination, this does not absolve them from redistributive obligations. It presents two ways in which principles of justice can be adapted to accommodate that situation of indigenous peoples: extra resources may be required to rectify the disadvantages they face as minority cultures; indigenous peoples should be free to decide how to manage their traditional lands in accordance with the principles of justice.Less
This chapter explores the rights of indigenous peoples within the context of social justice and environmental protection. It argues that although indigenous peoples have inherent rights to self-determination, this does not absolve them from redistributive obligations. It presents two ways in which principles of justice can be adapted to accommodate that situation of indigenous peoples: extra resources may be required to rectify the disadvantages they face as minority cultures; indigenous peoples should be free to decide how to manage their traditional lands in accordance with the principles of justice.
David Schlosberg
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199286294
- eISBN:
- 9780191713323
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199286294.003.0004
- Subject:
- Political Science, Environmental Politics
This chapter examines the use of the concept of environmental justice in various global movements, including the anti-globalization, food security, indigenous rights, and climate justice movements. ...
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This chapter examines the use of the concept of environmental justice in various global movements, including the anti-globalization, food security, indigenous rights, and climate justice movements. In each of these movements' use of the discourse of environmental justice, there are elements of equity and distribution, individual and cultural recognition, political participation, and individual and community functioning.Less
This chapter examines the use of the concept of environmental justice in various global movements, including the anti-globalization, food security, indigenous rights, and climate justice movements. In each of these movements' use of the discourse of environmental justice, there are elements of equity and distribution, individual and cultural recognition, political participation, and individual and community functioning.
Lila Barrera-Hernández
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579853
- eISBN:
- 9780191722745
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579853.003.0010
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter analyses the issue of indigenous land rights in Chile and Argentina. Throughout South America, indigenous peoples are being pushed to extinction through government action (and inaction), ...
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This chapter analyses the issue of indigenous land rights in Chile and Argentina. Throughout South America, indigenous peoples are being pushed to extinction through government action (and inaction), which deprives them of their lands and seriously compromises their access to life-sustaining resources. To a considerable extent, the government's attitude towards indigenous land rights is a result of a desire to attract investment to the energy and energy-related sectors. Though investor companies may appear to benefit from these tactics in the short term, it is doubtful that they will be better off in the long run as sustainability is compromised.Less
This chapter analyses the issue of indigenous land rights in Chile and Argentina. Throughout South America, indigenous peoples are being pushed to extinction through government action (and inaction), which deprives them of their lands and seriously compromises their access to life-sustaining resources. To a considerable extent, the government's attitude towards indigenous land rights is a result of a desire to attract investment to the energy and energy-related sectors. Though investor companies may appear to benefit from these tactics in the short term, it is doubtful that they will be better off in the long run as sustainability is compromised.
Jonathan Fox
- Published in print:
- 2007
- Published Online:
- May 2008
- ISBN:
- 9780199208852
- eISBN:
- 9780191709005
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199208852.003.0007
- Subject:
- Political Science, Democratization
This chapter explores the relationship between democratization and decentralization. In Mexico, the government promoted deliberative citizen participation nation-wide in rural municipalities, well ...
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This chapter explores the relationship between democratization and decentralization. In Mexico, the government promoted deliberative citizen participation nation-wide in rural municipalities, well before national electoral democratization. Mexican decentralization empowered municipalities, but it turns out that municipal governance systematically excludes millions of rural people who live outside of the town centers that usually control municipal affairs. Those villages are most directly governed by sub-municipal authorities. In some states and regions these truly local authorities are chosen democratically, representing villagers to the municipality, in others they are designated from above, representing the mayor to the villagers. This chapter explores rural citizens' efforts to hold local governments accountable through three different comparative research strategies: analysis of resource allocation decision-making processes in a representative sample of local rural governments in the state of Oaxaca; comparison of changing municipal-sub-municipal power relations in four rural states (Oaxaca, Guerrero, Hidalgo, and Chiapas); and a nation-wide comparison of the state level laws that govern this invisible ‘sub-municipal regime’.Less
This chapter explores the relationship between democratization and decentralization. In Mexico, the government promoted deliberative citizen participation nation-wide in rural municipalities, well before national electoral democratization. Mexican decentralization empowered municipalities, but it turns out that municipal governance systematically excludes millions of rural people who live outside of the town centers that usually control municipal affairs. Those villages are most directly governed by sub-municipal authorities. In some states and regions these truly local authorities are chosen democratically, representing villagers to the municipality, in others they are designated from above, representing the mayor to the villagers. This chapter explores rural citizens' efforts to hold local governments accountable through three different comparative research strategies: analysis of resource allocation decision-making processes in a representative sample of local rural governments in the state of Oaxaca; comparison of changing municipal-sub-municipal power relations in four rural states (Oaxaca, Guerrero, Hidalgo, and Chiapas); and a nation-wide comparison of the state level laws that govern this invisible ‘sub-municipal regime’.
Erika J Techera
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199580910
- eISBN:
- 9780191723025
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580910.003.0009
- Subject:
- Law, Comparative Law
This chapter examines the theoretical bases that may be used to support the formal recognition of customary law, and to illustrate why it should be acknowledged as an important source of law in the ...
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This chapter examines the theoretical bases that may be used to support the formal recognition of customary law, and to illustrate why it should be acknowledged as an important source of law in the legally pluralist post-colonial societies of the South Pacific. It shows that the recognition of customary law in the postcolonial societies of the South Pacific finds theoretical support in the concept of legal pluralism, principles of human and indigenous rights, and also environmental justice. However, there is little doubt that customary law has been eroded by colonization, and faces a modern challenge in globalization and its renewed interest in uniformity and homogenization. Conversely, the globalization of law, and more importantly, local responses to it, can offer an opportunity to access a broader landscape of laws leading to adaptation, transformation, and new forms of governance. Older forms of law and regulation can be resurrected, reinvigorated, and reinvented in order to achieve contemporary goals and address current issues. This transformative process can be started from above but must also be locally driven from below.Less
This chapter examines the theoretical bases that may be used to support the formal recognition of customary law, and to illustrate why it should be acknowledged as an important source of law in the legally pluralist post-colonial societies of the South Pacific. It shows that the recognition of customary law in the postcolonial societies of the South Pacific finds theoretical support in the concept of legal pluralism, principles of human and indigenous rights, and also environmental justice. However, there is little doubt that customary law has been eroded by colonization, and faces a modern challenge in globalization and its renewed interest in uniformity and homogenization. Conversely, the globalization of law, and more importantly, local responses to it, can offer an opportunity to access a broader landscape of laws leading to adaptation, transformation, and new forms of governance. Older forms of law and regulation can be resurrected, reinvigorated, and reinvented in order to achieve contemporary goals and address current issues. This transformative process can be started from above but must also be locally driven from below.
Carmen Martínez Novo
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199936267
- eISBN:
- 9780199333066
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199936267.003.0033
- Subject:
- Political Science, Comparative Politics
This chapter argues that the parallel processes of political centralization and privileging the extraction of natural resources to finance a stronger state that have taken place during the government ...
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This chapter argues that the parallel processes of political centralization and privileging the extraction of natural resources to finance a stronger state that have taken place during the government of President Rafael Correa (2007-) are leading to a backlash against previously gained indigenous rights in Ecuador. This backlash is made possible by a preceding weakening of the indigenous movement through neo-liberal practices of co-optation. Both, disaffected mestizos and indigenous grassroots that did not see enough change in the previous period have been drawn to Correa’s project. Because collective autonomy is perceived as a threat to an increasingly centralized and authoritarian state and to its ability to use natural resource extraction from indigenous territories to finance itself, individual rights via anti-discrimination laws are being privileged over collective autonomy. However, without strong social movements and collective rights, it is unlikely that even the individual rights of marginalized people will be respected.Less
This chapter argues that the parallel processes of political centralization and privileging the extraction of natural resources to finance a stronger state that have taken place during the government of President Rafael Correa (2007-) are leading to a backlash against previously gained indigenous rights in Ecuador. This backlash is made possible by a preceding weakening of the indigenous movement through neo-liberal practices of co-optation. Both, disaffected mestizos and indigenous grassroots that did not see enough change in the previous period have been drawn to Correa’s project. Because collective autonomy is perceived as a threat to an increasingly centralized and authoritarian state and to its ability to use natural resource extraction from indigenous territories to finance itself, individual rights via anti-discrimination laws are being privileged over collective autonomy. However, without strong social movements and collective rights, it is unlikely that even the individual rights of marginalized people will be respected.
Jonathan A. Fox
- Published in print:
- 2007
- Published Online:
- May 2008
- ISBN:
- 9780199208852
- eISBN:
- 9780191709005
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199208852.001.0001
- Subject:
- Political Science, Democratization
How can the seeds of accountability ever grow in authoritarian environments? Embedding accountability into the state is an inherently uneven, partial, and contested process. Campaigns for public ...
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How can the seeds of accountability ever grow in authoritarian environments? Embedding accountability into the state is an inherently uneven, partial, and contested process. Campaigns for public accountability often win limited concessions at best, but they can leave cracks in the system that serve as handholds for subsequent efforts to open up the state to public scrutiny. This book explores how civil society ‘thickens’ by comparing two decades of rural citizens' struggles to hold the Mexican state accountable, exploring both change and continuity before, during, and after national electoral turning points. The book addresses how much power-sharing really happens in policy innovations that include participatory social and environmental councils, citizen oversight of elections and the secret ballot, decentralized social investment funds, participation reforms in World Bank projects, community-managed food programs, as well as new social oversight and public information access reforms. Meanwhile, efforts to exercise voice unfold at the same time as rural citizens consider their exit options, as millions migrate to the US, where many have since come together in a new migrant civil society. This book concludes that new analytical frameworks are needed to understand ‘transitions to accountability’. This involves unpacking the interaction between participation, transparency, and accountability.Less
How can the seeds of accountability ever grow in authoritarian environments? Embedding accountability into the state is an inherently uneven, partial, and contested process. Campaigns for public accountability often win limited concessions at best, but they can leave cracks in the system that serve as handholds for subsequent efforts to open up the state to public scrutiny. This book explores how civil society ‘thickens’ by comparing two decades of rural citizens' struggles to hold the Mexican state accountable, exploring both change and continuity before, during, and after national electoral turning points. The book addresses how much power-sharing really happens in policy innovations that include participatory social and environmental councils, citizen oversight of elections and the secret ballot, decentralized social investment funds, participation reforms in World Bank projects, community-managed food programs, as well as new social oversight and public information access reforms. Meanwhile, efforts to exercise voice unfold at the same time as rural citizens consider their exit options, as millions migrate to the US, where many have since come together in a new migrant civil society. This book concludes that new analytical frameworks are needed to understand ‘transitions to accountability’. This involves unpacking the interaction between participation, transparency, and accountability.
Robert J. Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199579815
- eISBN:
- 9780191594465
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579815.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
England explored and colonized the United States, Australia, New Zealand, and Canada under the authority of an international law called the Doctrine of Discovery. When Europeans set out to exploit ...
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England explored and colonized the United States, Australia, New Zealand, and Canada under the authority of an international law called the Doctrine of Discovery. When Europeans set out to exploit and expropriate the lands, commercial, governmental, and human rights of the indigenous peoples of Australia, Canada, New Zealand, and the United States in the 15th through to the 20th centuries, they justified their sovereignty and claims over these territories and over indigenous peoples with the Discovery Doctrine. This legal principle was justified by religious and ethnocentric ideas of European and Christian superiority over the other cultures, religions, and races of the world. The Doctrine provided that newly-arrived Europeans automatically acquired property rights in the lands of indigenous peoples and gained political and commercial rights over the indigenous inhabitants. The United States Supreme Court expressly adopted Discovery in 1823 in Johnson v. M'Intosh. This case and the Doctrine of Discovery has been cited and relied on by Australian, Canadian, New Zealand, and United States governments, courts, and colonists. The English colonial governments and colonists in all four countries utilized Discovery principles and arguments, and these governments continue to use Discovery today to exercise legal powers over indigenous peoples. The elements of Discovery were not applied in the exact same manner and at the exact same time periods in all four countries, but the similarities of the use of Discovery are striking and not the least bit surprising since the Doctrine was English colonial law. Viewing Australian, Canadian, New Zealand, and American history and law in light of the international law Doctrine of Discovery creates a more complete understanding of all four countries and of what colonial law has done to indigenous lands.Less
England explored and colonized the United States, Australia, New Zealand, and Canada under the authority of an international law called the Doctrine of Discovery. When Europeans set out to exploit and expropriate the lands, commercial, governmental, and human rights of the indigenous peoples of Australia, Canada, New Zealand, and the United States in the 15th through to the 20th centuries, they justified their sovereignty and claims over these territories and over indigenous peoples with the Discovery Doctrine. This legal principle was justified by religious and ethnocentric ideas of European and Christian superiority over the other cultures, religions, and races of the world. The Doctrine provided that newly-arrived Europeans automatically acquired property rights in the lands of indigenous peoples and gained political and commercial rights over the indigenous inhabitants. The United States Supreme Court expressly adopted Discovery in 1823 in Johnson v. M'Intosh. This case and the Doctrine of Discovery has been cited and relied on by Australian, Canadian, New Zealand, and United States governments, courts, and colonists. The English colonial governments and colonists in all four countries utilized Discovery principles and arguments, and these governments continue to use Discovery today to exercise legal powers over indigenous peoples. The elements of Discovery were not applied in the exact same manner and at the exact same time periods in all four countries, but the similarities of the use of Discovery are striking and not the least bit surprising since the Doctrine was English colonial law. Viewing Australian, Canadian, New Zealand, and American history and law in light of the international law Doctrine of Discovery creates a more complete understanding of all four countries and of what colonial law has done to indigenous lands.
Mark Hickford
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199568659
- eISBN:
- 9780191731273
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199568659.001.0001
- Subject:
- Law, Legal History, Philosophy of Law
The recognition and allocation of indigenous property rights have long posed complex questions for the imperial powers of the mid-nineteenth century and their modern successors. Recognizing rights of ...
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The recognition and allocation of indigenous property rights have long posed complex questions for the imperial powers of the mid-nineteenth century and their modern successors. Recognizing rights of property raises questions about pre-existing indigenous authority and power over land that continue to trouble the people and governments of settler states. Through focusing on the settlement of New Zealand during the critical period of the 1830s through to the early 1860s, this book offers a fresh assessment of the histories of indigenous property rights and the jurisprudence of empire. It shows how native title became not only a key construct for relations between Empire and tribes, but how it acted more broadly as a constitutional frame within which discourses of political authority formed and were contested at the heart of Empire and the colonial peripheries. Native title thus becomes another episode in imperial political history in which increasingly fierce and highly polemical contestation burst into violence. Native title explodes as a form of civil war that lays the foundation (by Maori ever after challenged) for revised constitutional orders. This book considers histories of indigenous property rights not only as the stuff of entwined streams of a law of nations and constitutional theory but also as exemplars of the politics of negotiability — engaging relations of struggle and ambition for power, together with the openness and limits of incoming settler polities towards indigenous polities and laws. This study is an examination of rights as instruments of analysis and political discourse, constructed and contested in and through time. Anchored in the striking experiences of New Zealand and the politics of trans-oceanic empire, it tells a tale of indigenous political autonomy and how the vocabularies of property rights mediated relations between empire and the indigenous political communities found in newly settled lands.Less
The recognition and allocation of indigenous property rights have long posed complex questions for the imperial powers of the mid-nineteenth century and their modern successors. Recognizing rights of property raises questions about pre-existing indigenous authority and power over land that continue to trouble the people and governments of settler states. Through focusing on the settlement of New Zealand during the critical period of the 1830s through to the early 1860s, this book offers a fresh assessment of the histories of indigenous property rights and the jurisprudence of empire. It shows how native title became not only a key construct for relations between Empire and tribes, but how it acted more broadly as a constitutional frame within which discourses of political authority formed and were contested at the heart of Empire and the colonial peripheries. Native title thus becomes another episode in imperial political history in which increasingly fierce and highly polemical contestation burst into violence. Native title explodes as a form of civil war that lays the foundation (by Maori ever after challenged) for revised constitutional orders. This book considers histories of indigenous property rights not only as the stuff of entwined streams of a law of nations and constitutional theory but also as exemplars of the politics of negotiability — engaging relations of struggle and ambition for power, together with the openness and limits of incoming settler polities towards indigenous polities and laws. This study is an examination of rights as instruments of analysis and political discourse, constructed and contested in and through time. Anchored in the striking experiences of New Zealand and the politics of trans-oceanic empire, it tells a tale of indigenous political autonomy and how the vocabularies of property rights mediated relations between empire and the indigenous political communities found in newly settled lands.
Dr. P. G. McHugh
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199699414
- eISBN:
- 9780191732133
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199699414.003.0004
- Subject:
- Law, Public International Law, Legal History
This chapter looks at the spread of the common law doctrine in the new century into new settings, notably Malayasia, Belize, and southern Africa as well as its resurgence in New Zealand (foreshore ...
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This chapter looks at the spread of the common law doctrine in the new century into new settings, notably Malayasia, Belize, and southern Africa as well as its resurgence in New Zealand (foreshore and seabed controversy) and infiltration into New Zealand. It examines how it influenced the rapid development of international law norms from the 1990s, including the United Nations and Inter-American and African regions as well as the Philippines, Kenya, Scandinavia, and Japan. Aboriginal title spread and influenced forms of legalism that by the millennium were becoming global. As this happened, the key distinction between imperium and dominium began to dissolve as aboriginal self-determination became the new propellant of juridical development.Less
This chapter looks at the spread of the common law doctrine in the new century into new settings, notably Malayasia, Belize, and southern Africa as well as its resurgence in New Zealand (foreshore and seabed controversy) and infiltration into New Zealand. It examines how it influenced the rapid development of international law norms from the 1990s, including the United Nations and Inter-American and African regions as well as the Philippines, Kenya, Scandinavia, and Japan. Aboriginal title spread and influenced forms of legalism that by the millennium were becoming global. As this happened, the key distinction between imperium and dominium began to dissolve as aboriginal self-determination became the new propellant of juridical development.
Miguel Centellas
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199936267
- eISBN:
- 9780199333066
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199936267.003.0028
- Subject:
- Political Science, Comparative Politics
This chapter provides an overview of Bolivia’s 2009 constitution, as it relates to indigenous rights. Using a comparative historical perspective, the chapter discusses how the new constitution fits ...
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This chapter provides an overview of Bolivia’s 2009 constitution, as it relates to indigenous rights. Using a comparative historical perspective, the chapter discusses how the new constitution fits into the broader trajectory of indigenous rights as it evolved in Bolivia’s constitutional and institutional framework across the 20th century. Next, the chapter traces the deliberative process of the constituent assembly that produced the new constitutional text, before evaluating the text’s impact on the relationship between indigenous peoples. The chapter argues that the provisions for indigenous autonomy and cultural recognition are not an entirely radical departure, but rather fit within an ongoing trend in liberal-pluralist reforms dating to the 1990s and are part of a larger package of institutional reforms that also impose limitations and constraints on prospects for indigenous autonomy.Less
This chapter provides an overview of Bolivia’s 2009 constitution, as it relates to indigenous rights. Using a comparative historical perspective, the chapter discusses how the new constitution fits into the broader trajectory of indigenous rights as it evolved in Bolivia’s constitutional and institutional framework across the 20th century. Next, the chapter traces the deliberative process of the constituent assembly that produced the new constitutional text, before evaluating the text’s impact on the relationship between indigenous peoples. The chapter argues that the provisions for indigenous autonomy and cultural recognition are not an entirely radical departure, but rather fit within an ongoing trend in liberal-pluralist reforms dating to the 1990s and are part of a larger package of institutional reforms that also impose limitations and constraints on prospects for indigenous autonomy.
Siegfried Wiessner
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199642120
- eISBN:
- 9780191770401
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199642120.003.0005
- Subject:
- Law, Human Rights and Immigration
Cultural difference provides the key context in which indigenous peoples' claims to self-preservation and flourishing arose. Existential threats to their survival prompted a global movement, starting ...
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Cultural difference provides the key context in which indigenous peoples' claims to self-preservation and flourishing arose. Existential threats to their survival prompted a global movement, starting in the 1970s, that resulted in widespread changes in domestic laws and a return of the First Nations to the table of actors in international law. This chapter discusses culture as a collective phenomenon and the attendant need to safeguard it through individual and collective rights. It highlights indigenous peoples' claims and the response of states by treaties and other international instruments, culminating in the 2007 UN Declaration on the Rights of Indigenous Peoples. It ends with a discussion of the Declaration's legal effect and the extent to which it reflects customary international law rights to self-government, culture, and land as found in the International Law Association's authoritative Resolution No 5/2012 on the Rights of Indigenous Peoples.Less
Cultural difference provides the key context in which indigenous peoples' claims to self-preservation and flourishing arose. Existential threats to their survival prompted a global movement, starting in the 1970s, that resulted in widespread changes in domestic laws and a return of the First Nations to the table of actors in international law. This chapter discusses culture as a collective phenomenon and the attendant need to safeguard it through individual and collective rights. It highlights indigenous peoples' claims and the response of states by treaties and other international instruments, culminating in the 2007 UN Declaration on the Rights of Indigenous Peoples. It ends with a discussion of the Declaration's legal effect and the extent to which it reflects customary international law rights to self-government, culture, and land as found in the International Law Association's authoritative Resolution No 5/2012 on the Rights of Indigenous Peoples.
Víctor Leonel Juan Martínez
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199936267
- eISBN:
- 9780199333066
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199936267.003.0038
- Subject:
- Political Science, Comparative Politics
In 1995, the state of Oaxaca, Mexico reformed its constitution to recognize the right of Indigenous municipalities to elect their local governments according to autonomously determined “usos y ...
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In 1995, the state of Oaxaca, Mexico reformed its constitution to recognize the right of Indigenous municipalities to elect their local governments according to autonomously determined “usos y costumbres.” This chapter explores this paradigmatic case of the politics of recognition and multiculturalism to see how Indigenous communities’ systems of political and social organization function in practice, when faced with the challenges of migration, decentralization, rural-urban tensions, the struggle for gender equity, and changes in subnational institutions. These new challenges, coupled with the recognition of Indigenous rights, often reveal tensions between individual and collective rights and lead to conflicts within and between communities. The author interprets the praxis of Indigenous autonomy in terms of the construction and exercise of citizenship and argues that one way to resolve the tensions experienced by usos y costumbres municipalities is through the exercise of multiple and differentiated citizenships.Less
In 1995, the state of Oaxaca, Mexico reformed its constitution to recognize the right of Indigenous municipalities to elect their local governments according to autonomously determined “usos y costumbres.” This chapter explores this paradigmatic case of the politics of recognition and multiculturalism to see how Indigenous communities’ systems of political and social organization function in practice, when faced with the challenges of migration, decentralization, rural-urban tensions, the struggle for gender equity, and changes in subnational institutions. These new challenges, coupled with the recognition of Indigenous rights, often reveal tensions between individual and collective rights and lead to conflicts within and between communities. The author interprets the praxis of Indigenous autonomy in terms of the construction and exercise of citizenship and argues that one way to resolve the tensions experienced by usos y costumbres municipalities is through the exercise of multiple and differentiated citizenships.
Todd A. Eisenstadt
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199936267
- eISBN:
- 9780199333066
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199936267.003.0010
- Subject:
- Political Science, Comparative Politics
“Autonomy” as a concept contains a slew of meanings, connotations, and frames. This chapter considers the degree to which minority groups can operate independently from the state and its dominant ...
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“Autonomy” as a concept contains a slew of meanings, connotations, and frames. This chapter considers the degree to which minority groups can operate independently from the state and its dominant culture as well as the degree to which individuals are free to make conscious decisions about the institutions, parties, and practices they support. Using examples given throughout the book of indigenous rights movements in Bolivia, Ecuador and Mexico (Oaxaca, Chiapas, Yucatán) to analyze the proper unit (individual, interest group, community, region) for states’ granting and indigenous movements’ seizure of autonomy, the chapter offers preliminary explorations of multicultural indigenous rights regimes, and their challenges to liberal pluralism, in Mexico, Bolivia, and Ecuador. It concludes that only a frank consideration of the trade-offs between human rights and communitarian rights can yield the kind of self-aware multiculturalism that simultaneously respects the rights of groups and their individual members.Less
“Autonomy” as a concept contains a slew of meanings, connotations, and frames. This chapter considers the degree to which minority groups can operate independently from the state and its dominant culture as well as the degree to which individuals are free to make conscious decisions about the institutions, parties, and practices they support. Using examples given throughout the book of indigenous rights movements in Bolivia, Ecuador and Mexico (Oaxaca, Chiapas, Yucatán) to analyze the proper unit (individual, interest group, community, region) for states’ granting and indigenous movements’ seizure of autonomy, the chapter offers preliminary explorations of multicultural indigenous rights regimes, and their challenges to liberal pluralism, in Mexico, Bolivia, and Ecuador. It concludes that only a frank consideration of the trade-offs between human rights and communitarian rights can yield the kind of self-aware multiculturalism that simultaneously respects the rights of groups and their individual members.
John Borrows
- Published in print:
- 2000
- Published Online:
- October 2005
- ISBN:
- 9780198297703
- eISBN:
- 9780191602948
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019829770X.003.0013
- Subject:
- Political Science, Political Theory
A personal account is given of the treatment of Canadian Aborigines (North American Indians) and Aboriginal land. Despite some achievements in the recognition and affirmation of Aboriginal rights, ...
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A personal account is given of the treatment of Canadian Aborigines (North American Indians) and Aboriginal land. Despite some achievements in the recognition and affirmation of Aboriginal rights, indigenous citizenship with the land is becoming increasingly tenuous. The author advocates Aboriginal control of Canadian affairs (as well as Aboriginal affairs), in the light of the increasing participation of Aboriginals at all levels in Canadian society. He does not advocate assimilation, but argues that citizenship under Aboriginal influence may generate a greater attentiveness to the land uses and cultural practices that are preferred by Aborigines.Less
A personal account is given of the treatment of Canadian Aborigines (North American Indians) and Aboriginal land. Despite some achievements in the recognition and affirmation of Aboriginal rights, indigenous citizenship with the land is becoming increasingly tenuous. The author advocates Aboriginal control of Canadian affairs (as well as Aboriginal affairs), in the light of the increasing participation of Aboriginals at all levels in Canadian society. He does not advocate assimilation, but argues that citizenship under Aboriginal influence may generate a greater attentiveness to the land uses and cultural practices that are preferred by Aborigines.
MARK HICKFORD
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199568659
- eISBN:
- 9780191731273
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199568659.003.0001
- Subject:
- Law, Legal History, Philosophy of Law
This chapter begins with a discussion of the central conundrum of native title in the pretensions of empire, one that still perplexes: the relationships between indigenous property rights and ...
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This chapter begins with a discussion of the central conundrum of native title in the pretensions of empire, one that still perplexes: the relationships between indigenous property rights and political autonomy and authority. It then sets out the purpose of the book, which is to explore the history of native title as a phenomenon of the law and politics of trans-oceanic empire in and through time, and as a merchant of change in law and politics during a time of fraught anxieties and considerable transition, traversing what David Eastwood has suggestively characterized as an ‘age of uncertainty’. It discusses three key interacting characteristics of native title in mid-nineteenth-century British legal and political histories. It raises points, to be explained in detail throughout the following chapters, relating to the way in which native title was treated as a contestable concept, and what native title seen in such a light may tell us about imperial constitutionalism and Māori autonomy. An overview of the subsequent chapters is also presented.Less
This chapter begins with a discussion of the central conundrum of native title in the pretensions of empire, one that still perplexes: the relationships between indigenous property rights and political autonomy and authority. It then sets out the purpose of the book, which is to explore the history of native title as a phenomenon of the law and politics of trans-oceanic empire in and through time, and as a merchant of change in law and politics during a time of fraught anxieties and considerable transition, traversing what David Eastwood has suggestively characterized as an ‘age of uncertainty’. It discusses three key interacting characteristics of native title in mid-nineteenth-century British legal and political histories. It raises points, to be explained in detail throughout the following chapters, relating to the way in which native title was treated as a contestable concept, and what native title seen in such a light may tell us about imperial constitutionalism and Māori autonomy. An overview of the subsequent chapters is also presented.
