To demonstrate the importance of alternative legal approaches in reforming and analyzing the Inter-American normative order, it is important to highlight Aymara and Quechua philosophical ideas as the foundation for the recognition of the international legal personality of Indigenous nations and their interests. This is also necessary to understand the impact of the Spanish conquest and colonization of Indigenous territories including Tawantinsuyu Footnote ¹ on the legal and natural rights of Indigenous nations. Despite the systematic efforts to destroy Indigenous cultures, Aymara and Quechua resistance movements prevailed and are a significant component of Bolivia, Ecuador, and Peru.Footnote ² To sustain this important historical achievement, it is essential to implement international normative principles including mutual recognition and reciprocity as foundations for the acknowledgement of the international legal personality of the Aymara and Quechua Nations. It is also important to embrace an intercultural methodological approach that includes integrative international jurisprudence, hermeneutics, and linguistics as tools for constructing a new inter-American order, Jacha Uru,Footnote ³ where Indigenous perspectives of international law and relations will be implemented. The Aymara Quechua concept of Suma Qamaña Footnote ⁴ can be a foundation for the reformation of the Inter-American normative order.

The preamble of the American Declaration on the Rights of Indigenous Peoples recognizes that “the rights of indigenous peoples are both essential and of historical significance to the present and future of the Americas.”Footnote ⁵ This normative document sustains the view regarding the strategic importance of recognizing the international legal personality of Indigenous nations, implementing just international norms, and creating new international legal standards consistent with the interests and philosophical normative ideas of Indigenous nations.

A fundamental objective of the Inter-American order should be to implement the normative principle of sustaining ethnic and cultural diversity against any efforts to undermine or destroy it.Footnote ⁶ In the context of the Andean region, the focus should be in empowering the Aymara, Quechua, and other Indigenous nations cultures and philosophical perspectives.Footnote ⁷ This is the case, because during the Spanish conquest and colonization they were targets of genocidal policies, and in the twenty-first century cultural genocidal norms and actions against Indigenous nations are common practice in the Andean region.Footnote ⁸ The systematic efforts to impose ethnocentric cultural beliefs continues to undermine and threatens the existence of pluricultural states in the Andean region.Footnote ⁹

As a response to this, it is necessary to implement and construct international just norms consistent with the interests and philosophical ideas of the Aymara, Quechua, and other Indigenous nations. It is also necessary to embrace an intercultural perspective that is consistent with their economic, social, and political interests.Footnote ¹⁰ As part of this effort, it is vital to construct compelling narratives for the reformation of the Inter-American normative order (lex ferenda) and the implementation (lex lata) of current international norms that contribute to the empowerment of Indigenous nations.Footnote ¹¹ To accomplish this objective, it is necessary to recognize the interactions and interrelations between power, politics, law, and philosophy in the relations between nations. This can be done by analyzing facts and norms in specific historical contexts.Footnote ¹² The Spanish invasion and colonization of the Aymara, Quechua, and other Indigenous nations is a historical example of this reality. Philosophical ethnocentric presuppositions sustained legal doctrines regarding the application of a “law” of nations that disregarded the human dignity, the existence of political communities, and the philosophical normative ideas of Indigenous nations.Footnote ¹³ Based on these ideas, Spain justified its unjust use of force which sustained cultural genocidal norms and practices and the inhumane exploitation of the labor force and natural resources of Indigenous nations.Footnote ¹⁴

For the construction of a just normative inter-American order, it is necessary to recognize the equality between states and Indigenous nations. The Aymara Quechua understanding of the concept of reciprocity can sustain the peaceful coexistence and cooperation between the Aymara and Quechua nations and the states of the Andean region. Consistent with Indigenous Andean philosophical ideas, the principle of reciprocity applies in all relationships, including between human beings, between political communities, and between human beings and nature.Footnote ¹⁵ The Aymara and Quechua nations apply the principle of reciprocity in economic relations, ecological contexts, community organization, and family life. Consistent with this, there is a culture of protection of Mother Earth (Pachamama) based on the idea of the importance of caring for her because she provides the basic elements for the survival of humankind including food.

The Andean Indigenous view of ethics is based on the presupposition that in the universal order everything that exists is related to each other.Footnote ¹⁶ The principles of correspondence, complementarity, and reciprocity sustain this order. Therefore, the main ethical duty of human beings is to preserve universal order as caretakers of it.Footnote ¹⁷ The implications of the Aymara Quechua idea of being custodians of the natural order means that there is a normative imperative to follow norms that enable human beings to accomplish this objective. Therefore, the recognition of the rights of Pachamama and other norms regarding the preservation of the environment are consistent with Andean Indigenous views of reality.Footnote ¹⁸

The interactions between culture, law, and political power are seen in the successful resistance of Aymara, Quechua, and other Indigenous nations against the Spanish conquest and colonization of Tawantinsuyu. This is also seen in the success of Indigenous movements to resist all forms of cultural genocide in Andean states. One aspect of this is the influence of Indigenous philosophical views in the norms of the constitutions of Bolivia, Ecuador, and Peru. This is the result of the historical efforts of the Aymara, Quechua, and other Indigenous nations to preserve their philosophical views regarding fundamental principles of human existence including reciprocity, the worship of Pachamama, and community-oriented views of property rights. A similar situation is seen in the norms of the American Declaration on the Rights of Indigenous Peoples, which is the result of the struggle and influence of Indigenous nations in the Inter-American system of human rights.

Notwithstanding the progress of Indigenous nations in the region, socioeconomic and cultural systems that seek to undermine and even destroy Indigenous cultures, including the Aymara and Quechua, continue to be prevalent. Considering the failures of Andean states to address systematic racial discrimination, unjust ethic divisions of labor, destruction of the environment, violent crimes, human trafficking, and other issues, it is essential to empower Indigenous nations and their views of reality as an alternative to address these challenges. As part of this agenda, it is fundamental to reform the Organization of American States and to create new international normative standards including an Inter-American Treaty on Social, Economic and Cultural Rights of Indigenous Nations. The treaty should address fundamental issues including sustainable economic develop, and the economic empowerment of Indigenous nations including access to the benefits from the industrialization of natural resources. For a successful transformation of the Inter-American normative order, in the twenty-first century context, there are ethical and pragmatic reasons to recognize the international legal personality of the Quechua, Aymara, and other Indigenous nations, and to apply philosophical Indigenous ideas that will contribute to construct a just Inter-American normative order.

International law serves as a significant instrument for Indigenous peoples to assert their rights, culture, and political objectives, particularly considering conflicting interests and limited influence within nation-states.Footnote ¹ An Indigenous theory of international law underscores the importance of Indigenous peoples’ active participation in shaping international legal frameworks to better reflect Indigenous perspectives and aspirations. Indigenous theories challenge traditional mechanisms of international law-making and decision-making processes, which have historically marginalized Indigenous peoples from active participation.Footnote ² Historically, Indigenous peoples were systematically compelled to conform to colonial perspectives on rule-making and social structures.Footnote ³ Instead, Indigenous theories acknowledge the value of traditional and Indigenous knowledge in natural resource management and conservation.Footnote ⁴ They call for the full participation of Indigenous peoples in policymaking and governance system, as well as the regulation of access to Indigenous knowledge and resources. In summary, an Indigenous theory of international law seeks to transform the orientation and trajectory of international law to become a supportive force for change in the relations between Indigenous peoples and statesFootnote ⁵ and to promote a sustainable environment.

An Indigenous theory of international law is a decolonial, relational, and deeply ethical practice. It necessitates a shift in our understanding of law from rigid hierarchies and codified doctrines to living systems rooted in reciprocity, accountability, and relationship. Indigenous law is not about abstract rights; rather, it emphasizes lived responsibilities to land, water, and natural beings, and the protection of tribal connections to these natural entities, spirituality, and the preservation of tribal knowledge. These theories are often overlooked within Western knowledge-sharing systems and legal frameworks. Instead, they are embedded in storytelling, relationships, ceremonies, generational knowledge, and land-based practices. They challenge Western assumptions about sovereignty, governance, and justice, and instead foreground relational ontologies that view natural resources not as commodities, but as kin to human existence. The modern legal system, designed to exploit natural resources for profit, often excludes Indigenous peoples from legal settings, as they oppose the exploitation of these resources. Consequently, tribes have been forcibly removed from lands they have inhabited for millennia. These coercive policies date back to the onset of the colonial era, driven by a deeply ingrained “culture of conquest.”Footnote ⁶ The establishment of racial superiority and land expropriation involved military campaigns, forced removals—such as the Trail of Tears—and policies aimed at eradicating Indigenous cultures and communities.Footnote ⁷ For instance, during Arizona’s statehood era, military posts were established, and the discovery of gold and copper attracted an influx of non-Indigenous settlers, leading to the displacement of the Yavapais to reservations like Camp Verde. By 1900, the tribal population had dwindled from 1,500 to 500 due to forced relocations. The Bureau of Indian Affairs exerted pressure on the Yavapais to agree to removal through threats and coercion. Although the federal government eventually abandoned these coercive policies in the early 1920s, challenges persisted with projects like the Orme Dam, where Indigenous communities were often excluded from planning.Footnote ⁸ Throughout its evolution, the state experienced tension between development and conservation. Early economic growth through mining, ranching, and agriculture often came at the expense of natural resources, leading to debates over water usage, land preservation, and Indigenous rights. U.S. policies toward Indigenous peoples, rooted in imperialism, colonization, and white supremacy, have long marginalized Native American water rights. In the 1800s, the U.S. government attempted to sell or give away public lands in the West, known as riparian water rights disposition. This led to the establishment of prior appropriation, a new water law theory that allocates water rights to the first party to use it for beneficial purposes, such as the Homestead Act and Desert Land Act, favoring settlers over Indigenous communities.Footnote ⁹ The U.S. government’s policies of assimilation, particularly the “civilization and preservation” programs, forced Native Americans onto reservations and undermined their sovereignty.Footnote ¹⁰ The recognition of natural resources for cultural, spiritual, and ceremonial practices is not always considered or part of the legal processes of resource management.Footnote ¹¹ For instance, historical policies like Manifest DestinyFootnote ¹² were rooted in self-interested readings of legal concepts that encouraged white settlers to rationalize their decision to steal lands from Indigenous peoples. These concepts are rooted in heteropatriarchal notions of white supremacy, which refers to the idea that the established European or Western way of doing things has both moral and intellectual superiority over non-Western ways.Footnote ¹³

The prevailing global system regards natural resources as mere commodities, thereby undermining the cultural and spiritual connections that Indigenous peoples have with these resources. Indigenous theories of international law offer transformative and essential insights in a world grappling with environmental disruption, economic and structural inequities, displacement, and escalating inequality. Despite the significant challenges regarding the acceptance of these laws, as they are customary and states are not legally obligated to adhere to them due to issues of sovereignty. Indigenous theories are not abstract concepts but rather living systems that have sustainably governed human-environment relationships for millennia. These theories impart lessons on reciprocity, collective stewardship, the protection of nature and its significance to human existence, and interdependence—values that directly challenge the dominant legal frameworks shaped by colonialism, which prioritize extraction, ownership, and borders. Karl Marx has described our relationship with Earth as a “carbon metabolic” one, where nature is akin to our body, and we have allowed that body to suffer.Footnote ¹⁴ Indigenous legal traditions emphasize this relationship, reminding us that environmental harm is inseparable from social harm. Therefore, our focus should not only be driven by moral obligation but also because Indigenous theories offer time-tested, practical, and visionary alternatives. They enable us to envision governance systems that are not only more just but also more responsive, sustainable, and rooted in shared responsibilities. In my work, I explore whether environmental justice—particularly due to its multifaceted focus on procedural, distributive, historical narratives, restorative, and recognitional justice—can serve as a bridge to elevate Indigenous legal frameworks in international law. It provides a lens to critically examine and reimagine global governance in ways that prioritize Indigenous self-determination and historical accountability. We require inclusive governance structures that integrate both Western and Indigenous knowledge systems. Approaches such as Tribal Participatory Research and Indigenous Ecological Knowledge offer holistic management strategies that respect cultural values and enhance ecological understanding.Footnote ¹⁵ Indigenous communities, such as the Fort McDowell Yavapai Nation, have successfully integrated traditional and modern practices to advocate for their rights. Scholars like Rebecca Tsosie,Footnote ¹⁶ Deborah McGregor,Footnote ¹⁷ and John BorrowsFootnote ¹⁸ have demonstrated that Indigenous law is not peripheral; it is a juridical tradition in its own right, possessing legitimacy, authority, and transformative potential. Ultimately, the question is not whether Indigenous theories of international law exist—they do. The question is whether we are willing to listen differently, to decenter colonial systems, and to create space for laws that emerge from relationships rather than domination or exploitation.

To understand an Indigenous theory of international law, we must understand the traditional and current framework for international law and the ways that it has been challenged over the past century. The Westphalian system of international law is based on “territorial control of a ‘state,’” with legal recognition of sovereign “states” being reserved for states that fall into the so-called “family of nations,”Footnote ¹ which were mostly European and Christian states and did not include Indigenous peoples, as they were seen as incapable of retaining sovereignty over “unoccupied” land.Footnote ² Under this early system, international law developed as a series of agreements and alliances between states, and to this day, international law operates as a state-centric system.

Over time, the “family of nations” expanded as colonial empires fell; newly independent nation-states entered the international arena, and with their entry came new critiques of international law. These critiques collectively could be characterized as Third World Approaches to International law (TWAIL), which analyzes the relationship between the newly independent states and their former colonizers.Footnote ³ TWAIL contends that states, as international legal actors, are not actually on equal footing in the Westphalian system, because of an imbalance of power in how former imperial powers utilize international institutions for often predatory interests.

An Indigenous approach to international law recognizes, however, that TWAIL, on its own, is limited because of its state-centric focus. A Fourth World Approach to International Law (FWAIL), which aims to highlight the Indigenous communities embedded within the First, Second and Third Worlds, can broaden TWAIL’s narrow focus.Footnote ⁴

There are three core principles of FWAIL I highlight here. First, FWAIL proposes separation of the term nation-state and to recognize nations and states as distinct political entities in international law.Footnote ⁵ Recognizing the legal status of Fourth World nations within states would challenge the state-centric approach to international law and allow for better and more meaningful public participation for Indigenous peoples. Second, the separation and recognition of nations and states reveals the power imbalances between Indigenous nations and the Third World states they are embedded within. TWAIL, without FWAIL, can mask this power imbalance and thus lead to the “silencing of dissident voices” of Indigenous peoples who may not fit into the dominant group of a Third World state.Footnote ⁶ Put simply, FWAIL illuminates how Third World states, though often seen as the victims of a predatory international system, can also be neoliberal actors in how they exploit Indigenous lands and resources within their borders.Footnote ⁷ Third, by elucidating this dynamic between nations and states, particularly for Indigenous nations and Third World States, FWAIL opens up possibilities for potential cooperation between nations and their respective states and opportunities for allyship in international institutions.

Though Indigenous theories of international law are seen as cutting edge and pushing the boundaries of traditional international law, Indigenous theories of international law are already being into practice. Legal pluralism, the idea of more than one legal system coexisting in the same state, already exists as an academic theory and is a central tenet of FWAIL. Similarly, a type of “plurinationalism” already exists in certain Latin American states, where Indigenous nations are a part of a “multilevel state governance” that, ideally, would lead to a transformation of the nation-state rather than a mere inclusion of ethnic diversity (though, in practice, plurinationalist frameworks have not been entirely successful due to local corruption).Footnote ⁸

In my chapter, I present an example of FWAIL in how the World Heritage Convention is applied and can be further developed. Though only states are able to nominate sites within their borders for world heritage protection, state sovereignty is somewhat fluid in the application of the Convention.Footnote ⁹ States do not necessarily have to be the ones to request or consent to a site being listed on the List of World Heritage in Danger (the World Heritage Committee can do this), and the Convention may oblige states with such endangered sites to implement stronger laws and policies for environmental protection of sites.Footnote ¹⁰ Furthermore, the recent update of the Operational Guidelines of the World Heritage ConventionFootnote ¹¹ requires state parties to gain the free, prior, and informed consent of Indigenous peoples, thereby recognizing Indigenous peoples as relevant stakeholders and geopolitical actors.Footnote ¹² Essentially, the World Heritage Convention, through its limitations on state sovereignty and its inclusion of Indigenous peoples, provides opportunities for World Heritage sites that are either co-managed or led by Indigenous peoples.

There are several examples of this type of equitable heritage governance, such as the Laponian Area of Sweden led by the Sami peoples, and, as my co-authors and I posit, in Ifugao of the Northern Philippines. My co-authors and I use Ifugao, the tribe that one co-author and I come from, as a key example of how the World Heritage Convention can be adapted to Indigenous-led heritage management, as the Ifugao rice terraces were initially listed without Indigenous consent but have developed over the last twenty years into community-based conservation efforts. These community-centric efforts, rooted in traditional Ifugao land practices and Indigenous knowledge, has led to the local Indigenous community reclaiming their World Heritage site as a site of not only land conservation but cultural conservation and Indigenous governance. This Indigenous reclaiming of the World Heritage site listing as shown in Ifugao reflects the type of bottom-up, nation-focused governance that FWAIL scholars advocate for. And, importantly, the Ifugao example we write about demonstrates how Indigenous theories of international law are already in place and constantly being formed.

Indigenous theories of international law are neither hypothetical frameworks nor simply critiques of the dominant legal order. Instead, they are rooted in lived experiences, embedded in long-standing juridical traditions, and articulated through contemporary practices of Indigenous diplomacy, governance, and legal innovation. Indigenous theories of international law challenge some foundational assumptions of international law and offer coherent, alternative approaches to law-making and legal order grounded in Indigenous worldviews. Drawing from both scholarly work on global Indigenous politics and my personal experience with Indigenous Peoples engaged in international legal processes through the United Nations Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), this article outlines how Indigenous Peoples act as legal agents shaping the evolution of international law in ways that are both conceptually rigorous and deeply grounded in place, kinship, and responsibility.

Indigenous Peoples are not merely participants in international processes. Rather, they are international legal and political actors with their own systems of governance, law, and diplomacy. These systems long predate the Westphalian system of states and continue to operate alongside, and often in contestation with, state-based legal regimes. Indigenous legal orders derive legitimacy not from state recognition but from principles of kinship, collective identity, land-based responsibilities, and intergenerational accountability. These legal orders are dynamic and adaptive, governing not only ceremonial or cultural life but also economic, ecological, and diplomatic relationships. They remain operational across a wide range of domains and provide an indispensable foundation for articulating an Indigenous theory of international law.

Three key examples of Indigenous legal thought illustrate how Indigenous Peoples are actively reshaping the global legal landscape:

First, Indigenous Peoples’ representative institutions have become central actors in global policy spaces. Through their participation in international bodies such as the United Nations and the Arctic Council, Indigenous representative institutions (i.e., Indigenous governments) often assert forms of representation that reflect Indigenous legal traditions rather than conforming to the norms of the state system. Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) affirms that Indigenous Peoples have the right to participate in decision making through their own representative institutions. This principle reflects a distinct theory of representation that is collective, relational, and grounded in Indigenous forms of governance. This commitment to Indigenous representation is further reflected in the United Nations’ Enhanced Participation process,Footnote ¹ active since the 2014 World Conference on Indigenous Peoples,Footnote ² which seeks to establish a new status for Indigenous Peoples’ representative institutions within the UN system, distinct from that of states or NGOs, enabling Indigenous Peoples to gain fuller and more direct participation in international decision-making processes, in their own right. This initiative builds on Article 18 of UNDRIP and aims to deepen Indigenous Peoples’ standing as rights-holders with their own political and legal authority at the international level.

Second, Indigenous Peoples continue to assert legal and diplomatic identities beyond the confines of state recognition. A compelling example is the Haudenosaunee Confederacy’s issuance and usage of its own passports, which function as expressions of political and legal sovereignty grounded in Indigenous diplomatic history.Footnote ³ Though often contested at state borders, these passports are more frequently accepted than rejected. Consequently, these passports embody a practice of non-state-centric diplomacy that asserts international personality outside the parameters of conventional state-based sovereignty. Such practices exemplify Article 3 of UNDRIP, which affirms the right of Indigenous Peoples to self-determination, and Article 4, which clarifies that this includes autonomy and self-government. These rights are grounded not in an aspiration for independent statehood but in the continuity of Indigenous legal and political institutions that have operated outside of the confines of the state for centuries.

Third, Indigenous Peoples are not merely seeking to be included within existing international legal frameworks. They are engaged in shaping and evolving international legal norms themselves. Through mechanisms like the EMRIP, Indigenous Peoples co-develop legal standards, offer normative guidance, and advance new models of law that challenge the structures of international law from within. Its thematic studies have consistently illustrated the innovative legal thinking that emerges from Indigenous Peoples. EMRIP’s 2022 study on treaties and agreements reaffirmed that Indigenous diplomatic traditions remain active and binding, even in the absence of state recognition.Footnote ⁴ Its 2023 report on UNDRIP implementation mechanisms highlighted the effectiveness of Indigenous-led models of governance.Footnote ⁵ Most recently, EMRIP’s 2025 study on traditional economies demonstrated that Indigenous laws continue to govern economic and ecological life, prioritizing sustainability, reciprocity, and long-term stewardship.Footnote ⁶

These expressions of Indigenous international legal theory demand a broader reconsideration of the foundational concepts of international law, since they challenge the dominant understandings of legal personality, jurisdiction, and sovereignty by offering grounded, functioning alternatives. Indigenous Peoples exercise their international agency and legal personality not through state recognition but through their own institutions, practices, and legal orders.

The foundational critiques advanced by Indigenous theories of international law are not new. From the earliest moments of European colonial expansion, international law served as a tool of domination over Indigenous Peoples. The Doctrine of Discovery and the legal fiction of terra nullius justified the dispossession of Indigenous Peoples by deeming their territories legally “empty.”Footnote ⁷ These doctrines facilitated the erasure of Indigenous legal and political systems and entrenched a Eurocentric legal order. During the mid-twentieth century wave of decolonization, Indigenous Peoples were again excluded from the right to self-determination. The so-called “salt water thesis” confined the application of self-determination to overseas colonies, denying its applicability to Indigenous Peoples within the borders of settler states.Footnote ⁸ UNDRIP offers a partial corrective to these exclusions. Its provisions confront the structural injustices of international law and affirm the status of Indigenous Peoples as peoples with rights equal to all other peoples on Earth. UNDRIP asserts that self-determination need not entail statehood. Instead, it affirms the right to autonomy and self-government through Indigenous institutions, laws, and political traditions.

This theoretical reframing is not confined to normative declarations but is unfolding in real time through institutional practices. At EMRIP, Indigenous legal systems are regularly engaged and acknowledged as operative frameworks. EMRIP’s country engagement missions, for example, document how Indigenous Peoples exercise legal authority over land governance, natural resource co-management, and cultural heritage. These expressions of jurisdiction are not necessarily appeals for inclusion in state systems but assertions of Indigenous law in action.

One of the most vivid regional illustrations of this legal pluralism can be seen in the Arctic Council, where the Sámi Council and the Inuit Circumpolar Council hold the status of Permanent Participants. These Indigenous organizations work alongside states to co-determine regional policy on climate change, biodiversity, and sustainable development. Their participation reflects not merely consultation but legal standing, underscoring that Indigenous Peoples are rights-holders and legal actors in their own right.

Indigenous theories of international law ask the field of international law to engage in a process of reflection, innovation, and transformation. They challenge international law to confront its colonial foundations and to recognize that legal authority does not emanate solely from the state. They demand recognition of Indigenous Peoples as co-authors of international legal norms and as architects of juridical futures. Indigenous Peoples are not waiting for international law to change; they are already changing it, through practice, through diplomacy, and through the articulation of law that is grounded in Indigenous values and worldviews. To seriously engage with Indigenous theories of international law is to acknowledge that the field is neither static nor complete. It is a site of ongoing contestation and innovation with Indigenous Peoples actively writing the next chapters of international law, not on the margins, but at its very core.