Soft law is a common feature of international governance, occupying a grey zone between the realms of politics and law. The multifaceted concept can refer to vague provisions or norms generally, but is most useful when defined as international instruments adopted in a non-binding form. Whilst the advantages and appeal of soft law have been widely studied, with its effects explored in both International Relations (IR) and International Law (IL) scholarship, states' behaviour on commitment to soft law per se has remained underexplored. It is often assumed that its non-binding status upon adoption makes commitment to soft law a relatively inconsequential endeavor, at least in comparison to hard law. In this thesis, incorporating insights from public international law into rationalist IR approaches, I argue that soft law instruments can have important effects over time and bring substantial costs for states to bear. This is particularly the case for soft law instruments 'hardening' through domestic law, treaties or customary international law, increasing the sovereignty and implementation costs attached to commitment. I further argue that those potential costs of soft law are taken into account by states when making decisions on commitment. Depending on the importance and likelihood of the costs foreseen, states can craft their commitment to mitigate these costs or block them from arising. Empirical evidence for the place of the costs of soft law in states' decision-making on commitment is offered through an in-depth case study of the UN Declaration on the Rights of Indigenous Peoples, with a focus on the opposition it faced upon adoption - an unusual occurrence for a UN declaration in the field of human rights. Recognizing the potential costs of soft law and their impact on state commitment helps to bridge theory and practice regarding the creation of non-binding instruments and sheds light on challenges raised by the use of soft law by states and non-state actors at the frontiers of international law-making.

Magister Legum - LLM / Indigenous peoples constitute at least 5000 distinct peoples with a population of more than 370 million, living in 70 different countries. These peoples are typically subjected to a number of human rights violations (being excluded from decision-making processes and forced to assimilate into dominant groups, among others). The plight of these peoples has recently received worldwide attention. In 1989, the international community adopted the Convention on Indigenous and Tribal Peoples (Convention 169) to protect the rights of these peoples. In 2007 the UN adopted a Declaration on Indigenous peoples’ Rights. Attention is now focused on implementing indigenous peoples’ rights at the domestic level. Cameroon is not yet a party to Convention No.169 and so cannot be bound under the Convention to protect the rights of its indigenous peoples. Cameroon often denies any duty in this regard. However, Cameroon is party to core human rights instruments like the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, International Convention on the Elimination of all forms of Racial Discrimination and the African Charter on Human and Peoples Rights and Freedom. Cameroon also voted in favour of the adoption of the UN Declaration on Indigenous Peoples Rights. These international human rights instruments, with the exclusion of the Declaration, are not specifically dedicated to indigenous peoples’ rights. Given this situation, two questions arise: is Cameroon bound by any international legal obligation to protect the rights of its indigenous peoples; and if so, is Cameroon implementing the basic international law principles relating to indigenous peoples’ rights. Using an in-depth study and analysis of various international human rights treaties to which Cameroon is a party, this research will explore the grounds on which Cameroon, though not a party to Convention 169, can be held bound to protect the rights of its indigenous peoples (chapter 2). This research present the situation of the indigenous peoples in Cameroon and provide a brief overview of the legislative and policy measures taken by the government which in some way provide entry points for the protection of the rights of the indigenous people in Cameroon (chapter 3). A critical analysis of these measures highlights some areas of success but also work that remains to be done to ensure that the rights of Cameroon’s indigenous peoples are fully protected (chapter 4). The study concludes with a number of recommendations for further study and legal reform (chapter 5).

At the international level, indigenous activism has increasingly taken the form of advocating for ‘indigenous rights.’ These rights-based claims are articulated through a human rights framework, exemplified by the UN Declaration on the Rights of Indigenous Peoples, which was passed by the UN General Assembly in September 2007. Since this time, the Declaration has become the focal point of indigenous activism at the international – and domestic – levels. Proponents of the DRIP have claimed that it moves international law into a “post-Eurocentric” position, and that for the first time, the rights of indigenous peoples have been recognized by the international community. This thesis interrogates the rights-based discourse employed in international indigenous activism. Using postcolonial and poststructuralist theory, it puts forward a hypothesis of double-movement governance affecting indigenous peoples throughout the world. In this thesis, the double-movement is made up of relations between biopolitical management of indigenous lives, and neoliberal governmentality, which come together to establish the power relations within our present-day colonial system. This double-movement governance is then connected to Glen Sean Coulthard’s critique of a politics of recognition framework, on which human rights are based. Together, this theory forms my hypothesis that instead of providing indigenous peoples with emancipatory pathways out of the colonial present, indigenous rights discourses further entrench colonial norms and hierarchies within indigenous communities, and between States and indigenous peoples. Having established my hypothesis, I then test it with empirical data from the Declaration, indigenous fora at the UN, and domestic laws, agreements and policies. Taking the evidence into account, I argue that despite meaningful steps being taken to establish collective rights for indigenous peoples, a rights-based discourse does indeed continue to entrench colonial norms and hierarchies within indigenous communities and between States and indigenous peoples. This is in part because of issues of translation that occur when indigenous claims are articulated through a human rights framework, but also because a system based upon a politics of recognition – such as a human rights framework – is unable to move indigenous peoples out of the present-day colonial relations of power in which they live. Ultimately, such a system is only able to offer indigenous peoples ‘white liberty and white justice.’

The study seeks to achieve the following: (1) Highlight the perception of the Batwa on the right to education (2) Make a case for the importance of education in the interest of the Batwa (3) Make conclusions and recommendations that will enhance the right to education of the Batwa child. Conclusions and recommendations reached would not only assist Uganda in fashioning out a model that will not seek to treat education as a means to economic end but as an end in itself. In addition, an all-encompassing model of education that will encourage quality education and training of the indigenous child to erase any form of disadvantage or inferiority already experienced by the indigenous child is proposed. Thus, the benefit of this research is not just to the Batwa but also other indigenous peoples’ in the world generally and Africa in particular / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2008. / Dissertation submitted to the Faculty of Law University of Pretoria, in partial fulfilment of the requirements for the degree Masters of Law (LLM in Human Rights and Democratisation in Africa). Prepared under the supervision of Assoc. Prof. Dr. Ben Twinomugisha of the Faculty of Law, Makerere University Kampala / http://www.chr.up.ac.za/ / Centre for Human Rights / LLM

The purpose of this study was to examine the Indigenous Navigator partnership through its Bésiro project in Bolivia to find out whether the partnership approach can enhance Indigenous participation in global education. In the short term, enhancing the participation of Indigenous peoples in global education may help them maintain their unique identity and culture. In the long term, it may enable Indigenous peoples to actively decide on policy that concerns them. The objective of the research was to help policymakers and those working in the field of international and comparative education to secure Indigenous peoples’ right to determine their own education development. In the 19th and 20th centuries, after the creation of nation-states in Latin America, national education efforts sought to unify populations through assimilationist policies. Those policies used the dominant language as the language of instruction, and the content of curricula responded to the national vision of those in power. Indigenous peoples held on to their culture and language despite the external pressure to assimilate and the lack of recognition and support. In the second half of the 20th century, a global Indigenous movement took place that claimed Indigenous peoples’ collective rights within the nation-state, including the right to self-determine their education. This movement succeeded in garnering international attention, which led to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples. This declaration served as a framework upon which states were expected to model their laws. While this helped put the plight of Indigenous peoples in the international spotlight, some countries have implemented the Declaration to a greater extent than others. As a result, many Indigenous peoples remain stripped of the power and legal authority to ultimately decide on the education (and other) issues that concern them. The power asymmetries that have been affecting them in international education politics persist. A global education system that does not count on the continuous participation of Indigenous peoples as collective actors fails to meet the goals of inclusion and equality that it intends to achieve. Against this background, the following questions remained unanswered: Who is entitled to participate in global education and in what capacity? How are Indigenous peoples currently participating in global education? Why and how should the United Nations Educational, Scientific and Cultural Organization, which is the international agency tasked with promoting peace through international cooperation in education, science, culture, communication, and information, enhance Indigenous participation in its education politics? Driven by the questions above, I carried out a qualitative case study involving a multistakeholder partnership–the Indigenous Navigator. The Indigenous Navigator partnership includes Indigenous and non-Indigenous nongovernmental organizations, civil society organizations, and other international and national stakeholders. This partnership developed a framework and a set of tools to produce Indigenous data and track progress toward the fulfillment of Indigenous human rights. When applied to education, the Indigenous Navigator partnership translates the data collected into projects designed by Indigenous peoples for their own purposes. The Indigenous Navigator partnership offers an alternative approach for global education to enhance Indigenous participation in education policy. The Indigenous Navigator partnership’s project that became the case study was called Revitalization and Vitalization of the Bésiro Language of the Monkox Nation. This project was designed by the Monkox, a people indigenous to Bolivia. The Monkox utilized the Indigenous Navigator’s framework and set of tools, and focused on revitalizing their Bésiro language. This Bésiro project was implemented between 2019 and 2020 in Lomerío, in Bolivia’s lowlands. The case of the Monkox within Bolivia stands out because even though the Monkox are small in number, they have a long history of defending their language and their education. Bolivia, in turn, has drawn regional and international attention because it adopted Indigenous human rights into its political constitution and has come forth with a unique education model based on intraculturality, interculturality and plurilingualism, and in which Indigenous peoples are seen not only as individuals with a right to education, but also as peoples with collective education rights. To analyze the effectiveness of the Indigenous Navigator partnership and the Bésiro project, I spent 7 months observing the functioning of the Indigenous Navigator partnership prior to fieldwork, then spent another year interviewing 42 key stakeholders, out of whom at least 17 were Indigenous. I also analyzed relevant documents related to Indigenous education in Bolivia, global education, and enhanced participation. The results of the study offer a glimpse into present-day Indigenous education in Bolivia; an analysis of the Indigenous Navigator partnership and the Bésiro project; and a comparison between local, national, and international power dynamics that interacted throughout the project and can further impact education politics in Bolivia and beyond. The results show that the Indigenous Navigator partnership operated through what I call multisphere Indigenous ownership (i.e., the capacity of each partner to contribute from their own area of expertise while reducing the stratification of power) to ensure the Monkox’s self-determination in the Bésiro project. The analysis also shows that interculturality is difficult to reach if intraculturality, or the reaffirmation of a people’s identity, culture, and politics, has not been strengthened. To reaffirm intraculturality, the active participation of Indigenous peoples in their own education policy processes is vital. Only then will Indigenous peoples be able to achieve sustainable education along with national efforts. Lastly, the case study revealed that the Indigenous Navigator partnership worked through tacit interculturality between the European Union and Latin America, that is, the implicit reciprocity of two Indigenous systems in both parts of the world. As an outcome of this analysis of the Indigenous Navigator partnership and the Bésiro project, it is suggested that the global education community, guided by the United Nations Educational, Scientific and Cultural Organization, implement multistakeholder Indigenous ownership to allow Indigenous peoples, as collective stakeholders, to participate in education policy processes that concern them. This study closes with a policy and research agenda that contributes to achieving sustainable, quality education for Indigenous peoples.

The Capability Approach was initially developed by Nobel laureate Amartya Sen, with the first basic articulation presented in his 1979 ‘Equality of What?’ Tanner Lecture. Since then, the approach has gained a huge amount of attention as a conceptual framework which offers a clear and insightful way to measure well-being and development. Most recently, the approach has been refined and extended by Martha Nussbaum to issues of disability, nationality, and species membership in political philosophy. This project is about the foundations of the capability approach. More specifically, this project asks whether we can, and whether there are good reasons to, strengthen those foundations. The conclusions drawn here are that we ought to think seriously about the way that the capability approach develops as a theory that responds to real world challenges and change. More importantly, this project contends – in light of the challenges of future people and indigenous peoples – that there is good reason to think of new ways to ground the approach. This project takes up this challenge and grounds the approach in a modified version of Tim Mulgan’s approach to well-being. This project demonstrates that this alternative enriches the capability approach by providing us with a way of making sense of important problems, and with options for moving forward. Overall, this project asks important questions about how the capability approach could evolve based on challenges that remain relatively under-explored in the current literature. This project contributes to this literature by demonstrating that we can and ought to strengthen the capability approach and its ability to understand, take on board, and resolve these challenges.

Cette recherche explore le champ juridique de la condition des indigènes du Guatemala suite à l'arrivée des Espagnols dans le Nouveau Monde et à leur isolement dans des catégories juridiques spécialement créées pour eux par le droit indiano. Nous avons en particulier observé le passage de la catégorie d'esclave à celle de vassal libre de la Couronne à partir de la promulgation des Nouvelles Lois des Indes en 1542. Après la Guerre d'indépendance latino-américaine, les législations des nouveaux Etats-nations s'ajustent aux besoins des propriétaires agricoles qui, de la même façon que lors de la période coloniale, nécessitent de la main-d'oeuvre indigène. Cette thèse défend donc l'idée que, dans un contexte politique difficile, les indigènes du Guatemala, et en particulier les Mayas, ont su s'approprier le droit interne et le droit international pour défendre leurs intérêts. Ceci a été possible car, malgré des politiques esclavagistes et assimilationnistes violentes, ils ont conservé la réglementation juridique consuétudinaire. Nous entendons démontrer que c'est la conservation de leur droit qui leur a permis de s'organiser en tant que peuple sujet de droit qui a des droits et des devoirs. Ainsi, notre étude prouve que quand des opportunités politiques se sont présentées, les indigènes étaient déjà organisés et prêts à les utiliser comme socles sur lesquels ils s'appuient pour revendiquer leurs droits en tant que peuple indigène selon le droit international. / This study explores the legal context concerning the situation of the indigenous peoples of Guatemala since the arrival of the Spanish in the New World and the segregation of these peoples into separate legal categories created for them by indiano law. In particular, we have paid close attention to the movement from the status of slave to that of free vassal of the Spanish crown beginning with the promulgation of the New Laws of the Indies in 1542. After the Latin-American War of Independence, the legislation of the new Nation-States starts to become adjusted to the needs of farm owners who, just as during the colonial period, require indigenous labourers. Our study argues that in a difficult political context, the indigenous peoples of Guatemala, and especially the Mayas, managed to re-appropriate internal law and international law in defence of their interests. This was made possible by the fact that, despite violent assimilation and slavery policies, they were able to preserve the use of customary law. We wish to show that it was by preserving this law that they were able to organise themselves as a legal people subject to rights and obligations. Thus, our study proves that when the political opportunities were presented, the indigenous peoples were already organised and ready to exploit these opportunities as a basis upon which they were able to demand their rights as indigenous peoples in accordance with international law.

À la faveur d’un long processus coutumier, les peuples autochtones comptent aujourd’hui parmi les peuples titulaires du droit des peuples à l’autodétermination. Si l’existence du droit des peuples autochtones à l’autodétermination (la norme) comme principe de lege ferenda a fait son apparition vers 1980, ce droit a aujourd’hui achevé son passage dans la lex lata et constitue une norme du droit international coutumier, ce qui est attesté par l’examen des deux éléments du processus coutumier. Le processus coutumier à l’étude puise ses racines dans un passé lointain et s’est accéléré à partir des années 1970 à la faveur de son institutionnalisation au sein de l’Organisation des Nations Unies. Le processus d’élaboration de la Déclaration des Nations Unies sur les droits des peuples autochtones puis son adoption par l’Assemblée générale en 2007 constituent autant d’étapes importantes dans le processus d’accession de la norme à l’étude à la normativité, dont le cadre institutionnel des Nations Unies a contribué à renforcer la cohérence. L’examen du processus coutumier permet également de déterminer les fondements, le contenu et la portée de la norme coutumière ainsi que ses principes d’application. Il s’agit notamment d’examiner la spécificité de la norme à l’étude par rapport aux droits des minorités nationales ainsi que sa relation avec la question de la sécession. Ces dimensions témoignent de l’émergence des peuples autochtones comme segment particulier de la catégorie des peuples, donnant lieu à une application contextuelle du droit des peuples à l’autodétermination de nature à sauvegarder ou à restaurer leur intégrité autochtone. / As a result of a long customary process, indigenous peoples today count as one of the holders of the right of peoples to self-determination. The existence of the right of indigenous peoples to self-determination (the norm or standard) as a principle de lege ferenda first appeared around 1980, and this right has now completed its path into lex lata as a norm of customary international law, as suggested by an in-depth analysis of the two elements of the customary process. The customary process under examination here has its roots in a distant past. It accelerated from the 1970s onwards due to its institutionalization within the United Nations. The drafting process of the United Nations Declaration on the Rights of Indigenous Peoples and its final adoption by the UN General Assembly in 2007 constitute important steps in the accession of the standard under consideration to full normativity. The UN institutional framework contributed to consolidate the consistency of this process. Analyzing the customary process also compels to determining the foundations, content and scope of the customary norm as well as it principles of application. In particular, this involves an examination of the specificity of the standard under consideration in comparison with the rights of national minorities as well as its relation with the question of secession. These aspects are indicative of the emergence of indigenous peoples as a particular segment of the category of peoples in international law, resulting in a contextual application of the right of peoples to self-determination in order to safeguard or restore indigenous integrity.

In this paper I conduct a media analysis based on the discourse theory of Ernesto Laclau and Chantal Mouddes. I analyze op-ed articles about the planning of a mine in Rönnbäck, Västerbotten, published in the national Swedish newspaper Dagens Nyheter and the local Västerbotten newspaper Västerbottens-kuriren. The aim is to examine the discourses that appear around the mine, especially connected to development and perceptions of nature. I found three main discourses: the socio-economic discourse, the environmental discourse and the discourse on ideology and rights. The dominant perception of development was about the economy and the need for work-opportunities. There was a conflict, between the company Nickel Mountain Group AB and the opponents to the mine, concerning the best way to reach this development goal. The mine’s opponents also presented a view of development in which a pristine environment was a central aspect of quality of life. Connected to this view was concern about losing that which exists today. The environment was seen partly from an economic perspective but there was also a view of nature as something with intrinsic value. In the discussion I highlight some of the points of conflict I found: socio-economic benefits, democratic process and rights. I suggest that an open and broader debate concerning the meaning of these terms is important. I also point out the importance of including the prior assumptions and difference in powerposition of the different actors, given that their opportunities and view of reality are affected by this.

Ce mémoire vise à mieux comprendre les débats politiques concernant la participation des peuples autochtones à la prise de décision en matière de développement du territoire et des ressources dans le contexte de l’évaluation d’impact au Canada. Si l’évaluation d’impact est perçue comme un mécanisme au sein duquel se matérialisent les droits autochtones (dont l’obligation de consulter de la Couronne), les principaux acteurs de ces processus (gouvernement fédéral, promoteurs des projets et groupes autochtones) ne semblent pas s’entendre sur la signification et la portée des normes en matière de participation autochtone, en particulier sur le consentement préalable, libre et éclairé (CPLE). Par une analyse du discours de ces intervenants dans le cadre des travaux parlementaires menant à l’adoption de la Loi sur l’évaluation d’impact (2019), cette recherche révèle trois conceptions principales de la place des Autochtones dans les processus de prise de décision de l’évaluation d’impact : procédurale, partenariale et fondée sur l’autodétermination. Ce mémoire met aussi en évidence d’importantes différences en ce qui concerne les attentes face au modèle de participation et plus spécifiquement sur l’interprétation du CPLE. Ces différences reposent en grande partie sur la façon dont ceux-ci conçoivent l’autorité décisionnelle en matière de gouvernance territoriale au Canada. Pour les intervenants gouvernementaux et autochtones, les conceptions en matière de participation et d’autorité décisionnelle s’appuient sur des fondements juridiques. En revanche, pour l’industrie, la justification de la participation des Autochtones est davantage de nature économique et liée à son impact sur l’approbation des projets. / This thesis aims to better understand the political debates regarding Indigenous peoples’ participation in land and resource decision-making in the context of impact assessment in Canada. While impact assessment is viewed as a mechanism through which Indigenous rights (including the Crown's duty to consult) are realized, the actors in these processes (federal government authorities, project promoters and indigenous groups) do not seem to agree on the meaning and scope of Indigenous participation norms, notably regarding free, prior and informed consent (FPIC). Through discourse analysis of these actors within the framework of the parliamentary work leading to the adoption of the Impact Assessment Act (2019), this research reveals three main conceptions of the place of Indigenous peoples in impact assessment decision-making processes: procedural, partnership and based on self-determination. This thesis also highlights important differences in terms of expectations regarding the type of participation and more specifically on FPIC interpretations. These differences are largely based on how they conceive decision-making authority in matters of territorial governance in Canada. For the government and the Indigenous actors, notions of participation and decision-making authority are based on legal foundations. In contrast, for the industry, the rationale behind Indigenous participation is rather economic and linked to its impact on project approval.