International Indigenous Economic Law: A new approach to an existing paradigm

While globalisation and economic interdependence has helped improve economic growth across the world—its benefits have disproportionately benefitted a few. Sergio Puig’s book situates the impact of globalization and international economic law (IEL) on Indigenous peoples who make up 5% of the global population, but continue to account for 15 percent of the extreme poor. Many scholarly works have aimed to examine and analyse the position of Indigenous peoples under international law, particularly within the context of international human rights law (Indigenous Peoples in International Law, Indigenous Peoples as Subjects of International Law). Other academics have also studied the impact of globalization on Indigenous peoples, within the framework of international human rights law and international trade law—with Manuel and Schabus (Indigenous Peoples at the Margin of the Global Economy: A Violation of International Human Rights and International Trade Law) noting how the international trade agreements often threaten to undermine the rights of Indigenous peoples.

While many social, economic, political and cultural factors contribute to the struggles of Indigenous communities, the demands of globalization and the turn to a neo-liberal economy have exacerbated economic exploitation of these communities resulting in displacement, loss of livelihood and threats to their cultural heritage. In explaining the systemic effects of globalization on Indigenous peoples, Puig coins the phrase “the cycle of susceptibility and exclusion” (Chapter 2). His interdisciplinary approach to this concept is novel, and relies extensively on studies in law, economics and development to highlight the political and economic factors contributing to this cycle (p. 25). Puig correctly points out that while seminal works have spoken about the new wave of ‘discontent’ against globalization—particularly in the context of Trump’s election and the 2016 Brexit vote, they have failed to give sufficient recognition to the issues and challenges faced by Indigenous peoples in this context.

Puig’s most important contribution to the existing literature comes through the astute observation that the manner in which international human rights law and international economic law have developed, have resulted in “separate, almost independent fields” (p. 36). It is in this context that the author proposes the development of “international indigenous economic law” (p. 104) to forge new ways to explore the intersection of international economic law and Indigenous rights, and help build frameworks that can positively impact the protection of Indigenous rights.

To substantiate his argument, Puig provides an extensive overview of the various kinds of protections offered to Indigenous peoples under intellectual property law, trade, finance and investment. He explores the experiences of various Indigenous communities under each of these economic regimes through eight case studies or “vignettes” (Chapter 4) to describe the role IEL and Indigenous struggles. The case studies provide avenues to draw interesting observations and conclusions: in one case, communities comprising of a “well-endowed tribe, empowered by law” (p. 85) were successful in protecting their rights, while in another the safeguard mechanisms of international financial institutions played a crucial role in protecting Indigenous rights. 

By and large, while there have been some successes and failures, Puig notes that mechanisms developed under IEL—notably under intellectual property law and finance, have been instrumental in mainstreaming the debate on Indigenous rights. For instance, in intellectual property law, he details the tension between ‘indigenous and “western” notions of property rights, individual and collective ownership and differentiation and commoditization of knowledge’ (p. 46), and later argues that this seemingly inherent conflict has helped generate “new standard, metrics and tools” (p. 116) which provide pathways to approach the norms underpinning global economic interdependence in a less mercantilist way. 

The discourse on safeguards for Indigenous peoples under intellectual property rights and finance have given way to provisions, mechanisms and undertakings to protect Indigenous rights. For instance, in organizations such as WTO and WIPO efforts have been made to discuss and highlight the importance of protecting Indigenous rights, while a few regional trade agreements—such as the CP-TPP—have succeeded in taking cognizance of intellectual property rights of Indigenous peoples in their provisions. Such developments in the negotiation of regional trade agreements speak to the importance according by domestic governments to Indigenous rights and the propensity of negotiating countries to accept them.

However, such positive developments have escaped most international trade and investment regimes, where specific protections from Indigenous peoples are rare or relatively weak (p. 75). In some cases, rights guaranteed under human rights treaties may come to the rescue of protecting Indigenous peoples. However, oftentimes ad hoc tribunals (particularly under investment regimes) either lack experience in human rights law or do not have the jurisdiction to find international actors in breach of international law (p. 79). An interesting point to explore in future studies would be the influence of diplomacy and politics on inter-state trade and disputes between countries—particularly those involving Indigenous rights. Some empirical papers (Legalization, diplomacy, and development: Do investment treaties de-politicize investment disputes?) have suggested that the legalization of disputes (through investor state dispute settlement) have been insufficient in de-politicising disputes, when an MNC from a large, developed nation is involved in an investment dispute with a weaker, developing country—a finding that can impact the protection of Indigenous rights in developing countries.

With these observations and lessons, from Chapters 5 to 7, Puig aims to propose elements for a new framework to an existing paradigm through the term “international indigenous economic law”. With due regard to how future treaties are negotiated, he details a bottom-up approach which can help enhance and promote the legitimacy, neutrality, democracy and equality of future economic regimes. These methods highlight the importance of incorporating various mechanisms, such as, consultations, self-determination, consent and benefit sharing, among others. It is here that diplomatic divisions from countries with Indigenous communities, as well as nations with strong human rights traditions, must coalesce together, and push for reforms at the global stage on how Indigenous Peoples are included in the negotiations of economic treaties.

On one hand, while globalization has deepened inequalities, it has also accorded some positive benefits by improving economic growth, and reducing poverty rates. Sergio Puig acknowledges that the instruments of IEL may be insufficient by themselves to overcome the negative impact of globalization on Indigenous peoples. At the same time, Puig’s book is a significant scholarly undertaking for scrutinising the protection of Indigenous rights within IEL to understand how this existing paradigm can be reformed and revitalised to accommodate, recognise and safeguard such rights. 

This book will be beneficial to lawyers, activists and researchers, who are engaged in working towards the protection of Indigenous Peoples across countries. Practitioners, diplomats and policymakers, who participate in treaty negotiations and international organisations will find this book to be an important resource to understand how the interests of Indigenous Peoples can be protected in future economic treaties and conventions. With the right interventions, the right framework and the right discussions, economic regimes and international law can—in fact—play a positive role in bringing Indigenous peoples from the margins, to the very heart of globalization.

This text is part of a joint symposium between International Law Agendas and the Indian Journal of International Economic Law


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