MITIGATING STATE SOVEREIGNTY: THE DUTY TO CONSULT WITH INDIGENOUS PEOPLES
Bibliographic record
Abstract
Few areas of international law practice illustrate the tensions between business and human rights as well as the implementation of the duty to consult with indigenous peoples. Consultations give indigenous and tribal peoples a safeguard for protection of their rights when confronted by the decisions of governments and business enterprises that may directly affect them. While states, non-governmental organizations (NGOs), and corporations are starting to rely on, and to take, this duty seriously, states struggle with tailoring adequate processes, NGOs often argue that the duty provides indigenous peoples with an absolute right to give or withhold consent, and corporations use different strategies to limit the scope of consultations. Based on two case studies in Latin America, we identify divergent positions on the duty to consult – positions we call instrumentalist, consent-or-veto power, and minimalist – and we explain the main elements of each of these positions. After clarifying common imprecisions, we argue for an approach centred on the human rights of indigenous peoples to reconcile this divergent conceptualization of the duty by different stakeholders. Finally, we argue for reinforcing indigenous peoples’ rights with mechanisms for specific safeguards and direct participation in benefits, drawing on the United Nation’s ‘protect, respect, and remedy’ framework, to mitigate the adverse consequences of the existing distribution of sovereign power as predicated by Patrick Macklem’s influential work.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.012 | 0.015 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.014 | 0.052 |
| Scholarly communication | 0.008 | 0.007 |
| Open science | 0.001 | 0.011 |
| Research integrity | 0.006 | 0.006 |
| Insufficient payload (model declined to judge) | 0.003 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".