Mitigating state sovereignty: The duty to consult with indigenous peoples

S. James Anaya, Sergio Puig

Research output: Contribution to journalReview articlepeer-review

16 Scopus citations


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- A nd 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.

Original languageEnglish (US)
Pages (from-to)435-464
Number of pages30
JournalUniversity of Toronto Law Journal
Issue number4
StatePublished - Sep 1 2017


  • Business and human rights
  • Consultations with indigenous peoples
  • Duty to consult
  • ILO Convention no. 169
  • Indigenous peoples rights
  • International law
  • International law theory

ASJC Scopus subject areas

  • Sociology and Political Science
  • Law


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