Mitigating State Sovereignty: The Duty to Consult with Indigenous Peoples

Few areas of international practice illustrate the tensions between business and human rights better than the implementation of the duty to consult with indigenous peoples. Consultations give indigenous and tribal peoples a safeguard for the protection of their rights when confronted by governments and business enterprises’ decisions that may directly affect them. While states and corporations begin to take this duty seriously, states struggle with tailoring adequate processes and corporations appeal to property rights protections to limit their scope. Based on two case studies in Latin America, we provide a new theoretical lens to understand the problems resulting from divergent conceptualizations of this duty. After clarifying common doctrinal imprecisions, we argue for reinforcing indigenous peoples’ rights with mechanisms for direct participation in benefits within the United Nation’s ‘protect, respect, and remedy’ framework to mitigate the adverse consequences of the existing distribution of sovereign power.