ABSTRACT
Chapter 3 considers how scholars view UNDRIP, its status, the major debates on self-determination and FPIC, and how scholars attempt to address issues that arise from those debates. Most scholars regard the major hurdles to implementing FPIC as either its definitional vagueness or its status as ‘soft-law’. After discussing those issues in more detail, this chapter rehearses and appraises Cathal Doyle’s approach to FPIC. By treating Indigenous peoples as natural subjects with natural rights, he maintains that Indigenous peoples may use FPIC to control or otherwise bring controversies to an end. From a legal performative perspective, the risk is that scholars performatively construct individuals and communities in ways that negate their self-determination by upholding them as Indigenous peoples to express and advocate for human rights through Indigenous peoples’ FPIC and self-determination. This demonstrates how scholars might intend to fight against colonialism, neoliberalism and elitism, but might also unintentionally reproduce a ‘natural’ view of international legal discourse which furthers colonialism, neoliberalism and elitism.
