Sovereignty as Trusteeship and Indigenous Peoples

Evan Fox-Decent & Ian Dahlman, "Sovereignty as Trusteeship and Indigenous Peoples" (2015) 16:2 Theoretical Inquiries in Law 507.

28 Pages Posted: 30 Oct 2014 Last revised: 22 Nov 2015

See all articles by Evan Fox-Decent

Evan Fox-Decent

McGill University - Faculty of Law

Ian Dahlman

Government of Canada - Supreme Court of Canada

Date Written: October 27, 2014

Abstract

We explore two special challenges indigenous peoples pose to the idea of sovereigns as trustees for humanity. The first challenge is rooted in a colonial history during which a trusteeship model of sovereignty served as an enabler of paternalistic colonial policies. The challenge is to show that the trusteeship model is not irreparably colonial in nature. The second challenge, which emerges from the first, is to specify the scope and nature of indigenous people's sovereignty within the trusteeship model. Whereas the interaction between states and foreign nationals is the locus of cosmopolitan law, the relationship between states and indigenous peoples is distinctive. In the ordinary cosmopolitan case, foreign nationals do not purport to possess legal authority. Indigenous peoples often do make such a claim, pitting their claim to authority against the state's. We discuss how international law has attempted to come to grips with indigenous sovereignty by requiring states to include indigenous peoples in decision-making processes that affect their historical lands and rights. A crucial fault line in the jurisprudence, however, separates a duty to consult indigenous peoples from a duty to acquire their free, prior and informed consent (FPIC). The latter but not the former recognizes that indigenous peoples possess a veto over state projects on their lands, in effect recognizing in them a limited co-legislative power. We focus on recent jurisprudence from the Inter-American Court of Human Rights, and consider whether either the duty to consult or FPIC are enough to dispel the shadow of the trusteeship model’s colonial past. We suggest that at the very least they are a move in the right direction, and that implicitly they represent international law's recognition that states are no longer the sole bearers of sovereignty at international law. In limited circumstances, international law recognizes indigenous peoples as sovereign actors.

Keywords: indigenous, aboriginal, sovereignty, trusteeship, trustees of humanity, fiduciary, human rights, inter-american court

Suggested Citation

Fox-Decent, Evan and Dahlman, Ian, Sovereignty as Trusteeship and Indigenous Peoples (October 27, 2014). Evan Fox-Decent & Ian Dahlman, "Sovereignty as Trusteeship and Indigenous Peoples" (2015) 16:2 Theoretical Inquiries in Law 507. . Available at SSRN: https://ssrn.com/abstract=2516141

Evan Fox-Decent (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

HOME PAGE: http://www.mcgill.ca/law/about/profs/fox-decent-evan

Ian Dahlman

Government of Canada - Supreme Court of Canada ( email )

Canada

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