Indigenizing International Law, Part 1: Learning to Learn from Below

This three-part series, Indigenizing International Law, explores the encounter between Western and Indigenous jurisdictions, paying particular attention to the way in which post-colonial rule always entails resistance, hybridity, and accommodation. By studying the emancipatory potential of indigenous thought as a basis for the transformation of international law, the series examines both the strategies used by international law to colonize indigenous jurisdictions, and the practices of resistance used by indigenous peoples to keep their own laws alive. In so doing, it explores the double bind that exists between silencing and listening to indigenous jurisprudences, drawing attention to the interaction between indigenous and non-indigenous worlds.

Towards this goal, the series proposes the idea of indigenizing international law by considering indigenous law as law. It is by directing indigenous jurisprudences to the framework of international law and by recognizing the constitutive relationship between Western and indigenous accounts that the possibility of transforming international law becomes possible. This process through which ‘we’ can learn from indigenous jurisprudences in order to change ‘our’ laws is what I call in this series inverse legal anthropology. In indigenizing international law using an inverse legal anthropology, the series remarks the power of indigenous thinking to counteract international law’s colonial legacies and indigenous peoples’ ongoing genocide. 

Among the many lessons I have learnt from indigenous peoples and organizations around the world, one is of special relevance in the framework of my research. Whether during fieldwork or in workplace meetings with indigenous organisations, I have always been impressed by indigenous peoples’ expertise in the discourse and practice of rights, and their acute awareness of the associated responsibilities. Briefly put, indigenous peoples take international law seriously. The task of my proposal of indigenizing international law is, in fact, a very simple one: to take indigenous jurisprudence seriously. As I analyse it, this means unveiling the epistemological richness of indigenous legal theory and, consequently, the capacity of ancient narratives to productively address the Western legal tradition’s colonial role in dismantling indigenous systems of justice. In this regard, it would not be a matter of adjusting indigenous jurisprudences into the terms of the Western Rule of Law but rather an attempt to fully acknowledge indigenous peoples’ ontological self-determination.

My current research is an exploration of the encounter between Western and Indigenous jurisdictions in the context of colonial meetings and across imperial networks. I pay particular attention to the way in which colonial rule is constantly the object of resistance, hybridity, and accommodation. Taking the emancipatory potential of indigenous thought as the basis for transforming the narratives about international law, my research examines both the strategies used by international law to colonize indigenous jurisdictions, as well as indigenous peoples’ practices of resistance to preserve their own laws. In so doing, it explores the double bind that exists between constant attempts to silence indigenous jurisdictional speech and the importance of listening to indigenous jurisprudences as law.

Paying close attention to indigenous thinking and jurisprudence in the Andean region, my objective is to explain two seemingly inherent paradoxes within the current recognition framework, central to international legal thinking about indigenous peoples today: firstly, the ambiguous role of international law in the current phase of decolonization of indigenous rights; and secondly and more generally, the complexity of the relationship between colonial domination and indigenous resistance. In other words, there is, on the one hand, a complicity of official international law norms and history in rejecting and obliterating indigenous knowledge while still claiming to recognize indigenous peoples; and on the other hand, indigenous appropriation and re-appropriation of international law into an ever-changing future.

Specifically, my research aims to reassess the epistemological trajectory by which Western jurisprudence in general, and international law in particular, have shaped legal doctrines and jurisprudential concepts in relation to indigenous rights, assigning to indigenous laws, and to the very existence of indigenous peoples, an apparent Western essence and appearance in order for them to be worthy of ‘recognition’—a process that results in the obliteration of those very people and their knowledge. Although this enterprise is enormous insomuch as it should examine and understand more than five centuries of colonialism, the particular endeavour of my work is modest. My objective lies in valuing the possibility of looking at indigenous laws as an affirmative possibility of the double bind between Western and indigenous jurisprudence. That is to say, to reaffirm and keep alive indigenous jurisprudences and reappropriations, rather than recognizing only state-centric laws.

The indigenization of international law operates in different ways in my research. It functions firstly by emphasizing the importance of allowing our non-indigenous selves to be seduced by indigenous thinking in order to change our own imagination. This anthropological turn, inherent to my research and its methodological design, appears in the second part of this series and allows me to transform the framework of international law using indigenous cosmologies. Secondly, it operates by considering both the hegemonic and counter-hegemonic dimensions of international law and understands that indigenous peoples and organizations use international law standards to claim their human rights. International human rights standards, however, are in their view, both part of the problem and the solution to their ongoing genocide and self-determination. Thirdly, the concept operates by showing that indigenous peoples have found strategies to continue enhancing their jurisdictions since colonial and republican times either by enacting their own laws or through the interpretation of state-centric laws based on indigenous cosmologies. And, finally, it also takes shape by narrating the way in which indigenous organizations and their allies transform both conventional histories on nationhood and mainstream interpretations of international law regarding indigenous rights.

In this regard, I trace the contact between Western and indigenous jurisprudences as a jurisdictional assemblage delineating the terms of lawful relations. It is an encounter in which the living laws of indigenous peoples call into question ‘the representation of everywhereness’ of the place of the Western rule of law. From this perspective, jurisdiction operates as a legal technology and as such mandates which activities of daily life can be inscribed with the power of legal authority. By considering the epistemological potential of indigenous textual systems, I contend that the writing technologies of the indigenous world, which are encapsulated in both narrative and non-narrative forms that can simultaneously interact, such as dance and pilgrimage, act as legal archives. These archives are true jurisprudential cartographies, indeed, legal sources that extend and enrich the roots of state-centric laws.

On the basis of this argument, in the second part of this series, I explore the methodological framework to advance my proposal of indigenizing international law. In so doing, I emphasize the importance of placing the dialogue-encounter between indigenous jurisprudence and international law in anthropological terms in order to advance in the formulation of an inverse legal anthropology capable of approaching international law in terms of indigenous thinking. In the third part of the series, I present an overview of the empirical part of my research. My first case study exemplifies the complexities of the double bind between colonial domination and indigenous resistance, using as a backdrop for discussion a conversation with anarchist feminist Silvia Rivera Cusicanqui. The second case study presents an archival exploration of what it means to perform an inverse legal anthropology based on the life and work of Manuel Quintín Lame—a Nasa indigenous leader who was an active user and creator of law. The third case study displays the indigenization of international law by narrating the history of the contemporary Colombian indigenous movement through the voices of Taita Víctor Jacanamijoy and Luis Evelis Andrade, former vice-president and president respectively of the National Indigenous Organization of Colombia, ONIC.

Picture credit: Jeisson Castillo, Taita Kametsa from The Guardians of the Sacred Plants / Oil on canvas 90 x 60 cm. 2017.

In the beginning, coca, tobacco and yaje were people. Over time, the creator turned them into plants so that they could accompany the original peoples of America with their wisdom and knowledge. In this way they offered sweetness in the word, discipline in thought, and vision; opening the doors for the understanding of the multiple dimensions that make up reality (Castillo).

Paulo Ilich Bacca

Paulo Ilich Bacca is a legal ethnographer. He is lecturing anthropology of international law and indigenous peoples’ rights from the global south at the National University of Colombia. Paulo has had the opportunity to interact with indigenous communities of Australia, Bolivia, Colombia, Ecuador, United States, and Perú. His fieldwork experience in these places has become a key component of his research, and the information gathered in his fieldwork journals has allowed him to include an ethnographical methodology in his work, and to use sources generally excluded from the dominant academic circle in his teaching.