Separating Instrumental from Intrinsic Rights: Toward an Understanding of Indigenous Participation in International Rule-making
American Indian Law Review, Vol. 29, Spring 2005
78 Pages Posted: 22 Jan 2005
The standard arguments for participation of individuals and groups in international society include participation as a means to enhance the democratic legitimacy, transparency, and accountability of the regime, to serve human rights interests by allowing affected peoples a voice in determinations of their fate, and to create better legislation. However, international governance does not operate on a purely functional level: regimes are more than the mere sum of their members' interests and may have normative values of their own which counsel for particular schemes of civil society and indigenous participation. Functional arguments have been made with increasing frequency to incorporate non-governmental organizations and other major groups into the consultative and policy-making processes of various international regimes. Indigenous peoples are considered a major group under this framework. However, civil society participation often extends beyond the functional needs of international regimes.
This Article seeks to understand group participation by looking at the relationship between the various actors in the international system and the values created or destroyed by such group participation. After contextualizing indigenous participation, and identifying the need for a particularized application of the right to participate, this Article looks at existing normative theories under which participation is currently justified. In Part III, the Article expands upon these theories to create a more context-dependent theory of participation which relies on greater analysis of the group itself. This Part ultimately argues for a minimum level of indigenous participation in international rule-making based upon intrinsic rights to participation, which can justifiably appended by other privileges provided by international regimes with particular normative values calling for increased civil society participation. Part IV applies the revised theory to indigenous participation in the Convention of Biological Diversity (CBD) regime to understand the level of participation currently afforded indigenous groups in that regime. This Article concludes that participation should be highly context-dependent and cannot be based on a simple analysis of the functional needs of the regime, but must evaluate the ability of the group to meet those functional needs and other normative values held by the regime which might counsel civil society participation beyond the mere functional needs of the regime.
Keywords: Functional, normative, civil society, participation, international governance, global administrative law, indigenous peoples, convention on biological diversity, cbd, international regimes, international organizations, international law
JEL Classification: H30, K33, K30, K19, K20, K40, L30, O19, Q20
Suggested Citation: Suggested Citation