Introduction*
Over 1000 people from across the globe convene in Geneva, Switzerland, every summer to voice their concerns on indigenous rights. This pilgrimage to the week-long U.N. Working Group on Indigenous Populations has taken place every year since its inception in 1982, when only about thirty people attended. The increasingly global nature of political activism among indigenous peoples is evident in the growing number of participants at the Working Group, the United Nations’ recent creation of a Permanent Forum on Indigenous Issues to advise its Economic and Social Council, and the adoption of the U.N. Draft Declaration on the Rights of Indigenous Peoples by the Human Rights Council in 2006. The language of human rights has become a platform for organizing the international indigenous movement. Its rhetoric has enabled indigenous peoples to claim legitimacy for their campaigns for political, economic, and cultural autonomy. Political mobilization around rights claims has publicized the plight of indigenous peoples, from the Kayap´ o of Brazil to the Maori of New Zealand, and has given them a common voice with which to unite on a global level and lobby for domestic policy change.
Yet, what happens when these indigenous peoples return to their communities after having learned, employed, and even influenced international norms? Do they adapt local laws in relation to the international norms that they have internalized? For many decades, local communities like indigenous groups have been using the moral authority and persuasive power of international law as leverage against states. They have appropriated the global legal discourse of human rights as a tool for empowerment. But local groups do not just absorb international norms or redeploy them against states; they are also transformed by these norms in a variety of ways, particularly in their laws and governing institutions. The issue is: How are localities transformed by their contact with international norms? When an indigenous community is exposed to international human rights law (e.g., through a local nongovernmental organization (“NGO”) or their own participation in an international campaign), how does that affect its local customs and laws, including its negotiation with states? Ethnographic studies of local law-making within communities are needed to examine the microlevel mediation process among local, state, and international law.
Scholars have analyzed the diffusion of international norms across borders, but they tend to focus on states rather than localities. There is a gap in the legal scholarship on how norms are translated on the local level. International legal scholars have described the transnational legal process whereby transnational actors interact and cause international norms to become internalized into domestic structures. They have also analyzed how international law changes state behavior, through legal means like treaty ratification or social forces like acculturation. Political scientists have explained how transnational advocacy networks use international law to pressure states, and thus create a boomerang effect towards domestic policy change. They have also described how state governments become socialized to conform to international human rights norms. But what happens on the local level, when international norms become internalized in local legal systems? That is, how do communities give meaning to international norms in relation to state and local laws?
In an effort to address these inquiries, this Article examines the process of international norm diffusion on the ground—where international law is shaping how local actors construct their laws and legal institutions. Based on empirical evidence, I analyze how international norms can become embedded in an indigenous community and influence its law-making in a way that mediates between state and local laws. International norms can provide a mechanism not just for domestic reform, but also for local reform. Local actors may design innovative governing structures that borrow from state and international law while also adapting cultural norms.
I elaborate on this process of legal mediation by presenting a case study of the Pimicikamak Cree Nation (pronounced “Pi-mi-chi-ca-mak”), an indigenous people living in Cross Lake, a small town in Manitoba, Canada. This study is based on my ethnographic field research at the Cree reservation in 1999 and 2000, as well as follow-up research in the years since that time. Having suffered from the destructive effects of a hydroelectric dam constructed in the 1970s, the Cree have actively lobbied the Canadian government for the compensation promised to them over twenty-five years ago. Since 1998, they have appealed to the United Nations to pressure Canada and have invoked international law to assert their right to self-determination. As part of this process, the Cree have developed a unique government as a basis for their new relationship with Canada—one that demands respect for their fundamental human rights, while also incorporating aspects of Canadian law and adapting customary Cree law.
By designing a government that integrates Canadian and international law into their own legal institutions while also adapting Cree cultural norms, the Cree are engaging in legal mediation. This process describes a web of overlapping identifications with the local, state, and international legal spheres. Yet legal mediation refers to more than just an interaction between multiple legal orders in the same social field, referred to by some scholars as “legal pluralism.” It describes a process of negotiation among multiple normative commitments and legal entities. Under legal mediation, local actors play an important role in shaping how international norms become internalized within their communities. They influence how international human rights norms are received and incorporated in local institutions, and how they interact with state and non-state norms (e.g., religious norms or cultural practices).
The case of the Cree thus demonstrates how the global discourse of human rights is becoming incorporated into local communities as indigenous peoples are “redefining their projects in the global space of . . . human rights.” Their strategic use of human rights discourse is indicative of the growing role played by international law in their societies. International human rights law gives them political leverage when negotiating with the states in which they reside. It has also led groups like the Cree to adapt their customary law to accommodate their relationship to other legal institutions. The dialectical process of legal mediation, whereby indigenous groups shift between different normative communities, represents their multi-layered identifications within the local, state, and international spheres.
The remainder of the Article proceeds as follows. Part I reviews existing literature from international law and international relations on norm diffusion and internalization. I identify the gaps in the literature, including how norm internalization occurs in local settings. I then argue that ethnographic studies can shed light on these local processes, particularly how international human rights norms can shape law-making in local communities. When analyzing these processes, theories of legal pluralism provide useful insights. I review scholarship on legal pluralism and then build on these theories to discuss the model of “legal mediation.” Under this model, local actors are able to mediate between local law and state law by borrowing from international law. As I describe in Part I.B, communities, particularly indigenous groups, are also lobbying state and international institutions to recognize local norms and customary practices. Thus, not only are multiple types of legal norms interacting within local settings, but they are also shaping and being shaped by one another. Finally, I analyze how indigenous peoples are adapting their local laws as they internalize international norms. Part II offers ethnographic evidence of the diffusion of international norms in a local community. I first set out a brief narrative of the Pimicikamak Cree Nation, including the historical events that spurred its appeals to the United Nations. This case study exemplifies an indigenous people that is appealing to international law to win compensation from a state and to assert its right to self-government. As they speak the language of international human rights law, the Cree are promoting their use of customary law as a legitimate basis for their political autonomy. I then describe how the Cree are participating in transnational advocacy networks for indigenous rights and the environment. Lastly, I discuss how they are asserting their right as a people to self-determination, which they interpret as an on-going negotiation between multiple normative communities. In Part III, I analyze the Pimicikamak Cree Nation’s recently adapted local government as an example of legal mediation. I first describe how the Cree and other local communities are preserving cultural norms as they assert their right to self-government. I then analyze how they have adapted these norms to accommodate state laws, and have incorporated international norms into their official communications and local political discourse. Finally, I identify possible external and internal obstacles to legal mediation as I consider the ways in which this model could be most effectively utilized by local communities. . . .
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