The Myth of the Inkarri: Colonial Foundations in International Law and Indigenous Struggles

Abstract

Past and present human rights violations have compelled indigenous peoples to seek effective remedies outside the states or territories in which they live. The general question of the role of public international law as a strategic tool for indigenous peoples to advance their claims opens the doors to the inner workings, dualities, and paradoxes, which lie at the heart of the international legal order. Recent developments in the area of indigenous peoples’ rights in international law, especially the UN Declaration on the Rights of Indigenous Peoples, have included indigenous peoples only in so far as their distinctiveness allocated them particular status that still remained secondary to the territorial integrity and national interests of states. International law has sought to reaffirm, on the one hand, its legitimacy through greater inclusiveness and recognition of legal pluralisms and, on the other, the fait accompli status of its colonial past through which indigenous peoples lost their sovereignty. Since the promulgation of the Declaration of Human Rights, the United Nations (UN) has become an arena for the ongoing struggle over the scope and content of an adequately inclusive human rights regime. Indigenous peoples’ claims have presented a challenge to the universalizing mission of international law. This is due to, among other reasons, a continuing contestation between indigenous peoples and some states over the affirmation of indigenous peoples’ legal status as “peoples”, with a corresponding right to self-determination under international law, and the recognition of their collective rights as human rights. This paper provides an exploration of indigenous rights and international law as part of a larger contemporary inquiry into the universalist aspirations of the public international legal system and the continued debate over the possibility of globally accepted human rights. Claims to the universality of international law are regularly brought to negation or ignorance of its relationship with colonialism. Much of International Law’s official history is the creation of rights among sovereign nations based on the idea that, in time, the legitimacy of a just order would work from the top down as it would from the bottom up. The origins of international law, however, are based on the exclusion and discrimination of the indigenous Other as barbaric and incompatible with other legal addressees. This legacy casts its dark shadows on international law’s claims to universality because such universality would demand the inclusion of indigenous peoples as equal actors. In search of international law’s memory of its violent origins, this paper shall look to the existing, yet fragmented and often rejected narratives and memories of those who found themselves excluded in the creation of international law. The objective is not to provide proposals for a reform of international law, but to outline the conditions indigenous peoples encounter in the sphere of international law as they attempt to advance their claims, as well as observe what their claims signify for international law’s reform and reaffirmation in the present.