Content area
Full text
By Benedict Kingsbury*
Over a very short period, the few decades since the early 1970s, "indigenous peoples" has been transformed from a prosaic description without much significance in international law and politics, into a concept with considerable power as a basis for group mobilization, international standard setting, transnational networks and programmatic activity of intergovernmental and nongovernmental organizations.1
The development of "indigenous peoples" as a significant concept in international practice has not been accompanied by any general agreement as to its meaning, nor even by agreement on a process by which its meaning might be established. As the concept becomes increasingly important, international controversy as to its meaning and implications is acquiring greater legal and political significance. This article considers how to understand "indigenous peoples" as an international legal concept. To sharpen the focus, the discussion concentrates on the current practical dispute as to whether and how the concept of "indigenous peoples," formed and shaped in regions dominated by the history and effects of European settlement, might or should be adapted and made applicable in Asia and elsewhere. Both elements of the term-"indigenous" and "peoples"-are contentious, but the discussion here will focus on indigenousness.
Two broad approaches to relatively underspecified concepts such as "indigenous peoples" may be identified. The first, here termed a positivist approach, treats "indigenous peoples" as a legal category requiring precise definition, so that for particular operational purposes it should be possible to determine, on the basis of the definition, exactly who does or does not have a particular status, enjoy a particular right, or assume a particular responsibility. Once established, such definitions theoretically ground the interpretive process of determining the scope of application of particular legal instruments and rules. It will be argued that the experience of international agencies and associations of indigenous peoples demonstrates that it is impossible at present to formulate a single globally viable definition that is workable and not grossly under- or overinclusive. Any strict definition is likely to incorporate justifications and referents that make sense in some societies but not in others. It will tend to reduce the fluidity and dynamism of social life to distorted and rather static formal categories. One possible conclusion, that "indigenous peoples" as a global concept is unworkable and dangerously incoherent,...