As with the traditional formation of customary international law more generally, one might frame a case for norms of consultation with Indigenous peoples in terms of state practice and opinio juris, and some have done so in at least partial ways. This chapter focuses, rather, on what has arguably become the most significant post-DRIP comment on consultation, that issued by Special Rapporteur James Anaya in his second report to the United Nations Human Rights Council as Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People. As Part II of the chapter will show in the context of a larger description of the report, the Special Rapporteur’s Report actually tends to eschew reference to the traditional customary international law arguments. Part III will consider the claim that the Report manifests a significant fracturing around the legitimate formation of customary international law, with the possibility of something other than state practice and opinio juris more appropriately grounding customary international law formation in some contexts. Part IV argues that the norm formation in this instance paradoxically reflects both an interesting transformation in the role of non-state actors in law formation within the global legal order and reinforcement of more traditional state-centred law formation.
This is a pre-print version of a chapter in, "International Law In the New Age of Globalization", (Andrew Byrnes, Mika Hayashi & Christopher Michaelsen eds., 2013), and the published version should be consulted and cited as the official version.