Turning international law against indigenous peoples

Abstract

This essay explores how international law shaped the relationship between the states of Latin America and the indigenous peoples living within their territories. After independence, international law became part of the nation-building project of the new Republics. Latin American statemen engaged with international legal arguments to sustain the recognition of the Republics as sovereign states. They also advanced a legal fiction: sovereignty of the new Republics extended to the entire territory that had been claimed by colonial Spain, regardless of effective occupation. Lands inhabited by indigenous peoples became part of the territory of the post-independence state. Latin Americans proposed a particular doctrine, uti possidetis, to support this legal fiction. Indigenous lands were enclosed, and indigenous individuals became citizens, not only enjoying formal legal equality, but also acquiring the obligation to observe the law of the new nation-state. The 19th century legal fiction of indigenous land enclosure and assimilation was slowly made real by ‘expanding the law’s empire,’ through land registration, law enforcement violence and war. We argue that the 19th century patterns of assimilation and land dispossession by way of inclusion of the indigenous continued structuring relations between Latin American states and indigenous peoples in the 20th century. However, if in the 19th century Latin Americans developed international law doctrine to sustain the nation-building framework, in the 20th century, international lawyers from the region rejected the rise of international legal norms, doctrines and institutions that challenged the nation-building project by potentially conferring international rights to indigenous peoples. We show that Latin Americans resisted ILO supervision of native labor. They also resisted the extension of minority protections to indigenous groups and ultimately refused considering indigenous peoples as one of the peoples enjoying the right to self-determination. It was not European international lawyers, but Latin Americans, who turned international law against indigenous peoples.