Too liberal for global governance? International legal human rights system and indigenous peoples’ right to self-determination
| Published date | 01 June 2017 |
| Author | Ranjoo Seodu Herr |
| DOI | 10.1177/1755088217691541 |
| Date | 01 June 2017 |
https://doi.org/10.1177/1755088217691541
Journal of International Political Theory
2017, Vol. 13(2) 196 –214
© The Author(s) 2017
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DOI: 10.1177/1755088217691541
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Too liberal for global
governance? International
legal human rights system and
indigenous peoples’ right to
self-determination
Ranjoo Seodu Herr
Bentley University, USA
Abstract
This article considers whether the international legal human rights system founded
on liberal individualism, as endorsed by liberal theorists, can function as a fair
universal legal regime. This question is examined in relation to the collective right to
self-determination demanded by indigenous peoples, who are paradigmatic decent
nonliberal peoples. Indigenous peoples’ collective right to self-determination has been
internationally recognized in the Declaration on the Rights of Indigenous Peoples, which
was adopted by the United Nations in 2007. This historic event may seem to exemplify
the international legal human rights system’s ability to function as a truly global legal
regime applicable cross-culturally to all well-ordered societies, whether liberal or
nonliberal. The article argues, however, that the collective right to self-determination
advocated by indigenous peoples for the sake of cultural integrity is inconsistent with
the international legal human rights system founded on liberal individualism. By showing
the plausibility of indigenous peoples’ defense of their cultural integrity, this article
suggests that the international legal human rights system ought to be reconceptualized
to reflect a genuine international consensus on human rights among all well-ordered
societies if it is to function as a just mechanism for global governance.
Keywords
Allen Buchanan, collective self-determination, cultural integrity, decent nonliberal
peoples, group agents, indigenous peoples, international legal human rights system
Corresponding author:
Ranjoo Seodu Herr, Bentley University, 175 Forest Street, Waltham, MA 02452-4705, USA.
Email: rherr@bentley.edu
691541IPT0010.1177/1755088217691541Journal of International Political TheoryHerr
research-article2017
Article
Herr 197
The “international legal human rights system (ILHRS),” which comprises “UN-based
human rights law and the institutions that support it” (Buchanan, 2013: 6), is central to
the “practice of human rights” (2013: 5). The practice of human rights encompasses a
huge variety of activities at the global and domestic levels and is the engine of legal
globalization. Some of the activities that constitute the practice of human rights are as
follows: drafting and ratifying human rights declarations and treaties, monitoring mem-
ber states’ compliance with the treaties by international organizations; applying human
rights declarations and treaties in their decisions by international and regional courts;
activities by nongovernmental organizations (NGOs), individual citizens, civil groups to
hold their states accountable for their violations of international human rights law and to
amend or create domestic constitutions and laws to comply with international human
rights law, imposing sanctions on states that violate international human rights law, and
making a case for “military interventions” if a state commits egregious violations of its
citizens’ human rights, among others (2013: 5–6).
Given the immense global influence of the international legal human rights system
(ILHRS)’s practice, it is necessary to examine whether the ILHRS is adequate as a just
mechanism for global governance. This article will consider this very important question
by examining in particular the relation between the ILHRS and indigenous peoples’ right
to self-determination. This relation may be examined in a number of ways: One way may
be descriptive, involving a careful look at the existent declarations, covenants, and con-
ventions of the ILHRS relevant to indigenous peoples’ rights and their applications in
practice, and then uncovering inconsistencies, inadequacies, or adverse consequences.
As worthwhile as it may be, this article does not take this approach. Rather, this article
will proceed by first determining the ILHRS’ normative foundation and then considering
whether it is compatible with the conception of the right to self-determination advocated
by indigenous peoples themselves.1 This normative analysis would call for a considera-
ble reconstruction, since much of UN documents on human rights and their applications
lack consistency, as they result from negotiations and compromise at the UN in order to
secure maximum consensus.
The normative approach, however, has been favored by prominent political philoso-
phers who have proposed different constructions of the ILHRS’ normative foundation
(Beitz, 2001, 2009; Buchanan, 2004; Griffin, 2008), and I will follow in their footsteps.
While these philosophers have various disagreements among themselves,2 a major con-
sensus is that the ILHRS is at its base liberal individualist.3 The view that the ILHRS has
a liberal individualist foundation is consistent with what many consider to be the evalu-
ative core of the ILHRS, the Universal Declaration of Human Rights (UDHR) of 1948;4
the ILHRS is centered around the UDHR that endorses the “inherent dignity” and “the
equal and inalienable rights” of “all members of the human family” primarily understood
as human individuals (UDHR, Preamble). In examining the ILHRS’ normative founda-
tion, I will focus in particular on Allen Buchanan’s (2004, 2013) liberal political philoso-
phy of international law. Two reasons can be adduced in support of this choice: First,
Buchanan’s theory has been considered “an enormously valuable contribution” to the
field by liberal theorists (Blake, 2008: 722) and, second, Buchanan, in contrast to other
liberal theorists, is in favor of legalizing indigenous peoples’ right to self-determination
within the ILHRS. These two reasons combined render Buchanan’s position particularly
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