6 wins. 0 rule changes.
On the courtroom rule that locks us out, the Disneyland fantasy that wastes your time, and the walk-around that already works.
Tabea, happy Saturday,
You’re sitting in a UN session.
Or watching a court rule on Indigenous land from 6,000 miles away.
And you can feel the wall. The procedural wall that keeps Indigenous Peoples out of the room where decisions about our land actually get made. Most delegates, when they hit that wall, do one of two things.
They start campaigning to break it down.
Or they go quiet because the system feels rigged. Both responses kill the work.
I’ve negotiated 60 UN decisions a year for the last years here in Geneva. I helped secure the LCIPP-FWG without a treaty amendment. Not by breaking down a wall. By walking around it.
And that’s the counter-intuitive thing you can do too.
We didn’t get the Permanent Forum by rewriting the UN Charter. We didn’t get UNDRIP that way either. Every mechanism Indigenous Peoples have at the UN exists because someone walked around a wall instead of trying to break it. The wins that feel small are the wins that compound.
This week, I’ll show you 6 walk-arounds that have already been used. The trap to avoid. And the one move that has built every UN seat we have.
The wall is in the rulebook
Right now, judges at the World Court are deciding who controls the Essequibo region of Guyana. 313,175 people live there. 9 of them are Indigenous Peoples. Guyana on one side. Venezuela on the other.
Nobody from those 9 nations at the bar.
Nobody on the bench.
Nobody in the pleadings.
Why? Article 34 of the ICJ Statute. One sentence:
Only states may be parties in cases before the Court
That is the wall.
Not bias. Not a bad judge. Not Guyana’s foreign ministry. The rulebook itself locks the door. We can’t file. We can’t intervene. We can’t appear. The only way an Indigenous nation gets into a contentious ICJ case is through a state. Either the state we’re fighting with. Or a sympathetic state somewhere else.
Now add the procedural rule called non ultra petita. The Court rules only on what is asked. Guyana asked about the 1899 boundary. Venezuela asked the same question from the other side. Neither asked about the rights of those 9 Indigenous nations.
So the Court will not rule on those rights. The operative paragraphs follow the pleadings. Not the people on the land.
That’s a load of BS in moral terms.
It’s also exactly how the system was designed.
Essequibo is not the story
If you are reading this from Saami-land, this matters to you.
If you are reading this from West Papua, the Pacific, the Arctic, the Amazon, the Congo Basin, the Sahel, this matters to you too.
Every time two states fight at the World Court over Indigenous lands, the same wall stands. The same rulebook. The same outcome. The border moves. The people on the land deal with what is left.
Essequibo is not unusual. It is the visible version of what is happening underneath dozens of cases right now.
I want you to see this clearly so you stop being surprised when it lands on us.
The fantasy that eats you alive
Here is what most Indigenous delegates do when they see a wall like Article 34.1.
They try to break the wall.
“Then we need to amend the Statute.”
No. We. Do. Not.
Amending the ICJ Statute requires the same process as amending the UN Charter. Two thirds of the General Assembly. Ratification by two thirds of member states. Including all five permanent members of the Security Council.
It has happened twice in 80 years.
It will not happen so that you can sleep better at night.
The instinct to demand a Statute amendment is what I call a high-ceiling, zero-floor move. The ceiling is huge. The floor is zero. You spend 30 years organizing for an outcome that never arrives.
The smarter game is to look at where states have already moved Indigenous Peoples into ICJ proceedings without touching Article 34.
Because they have.
6 walk-arounds already on the record
I did not invent any of this. These are existing precedents. None require a Statute amendment.
Advisory opinions instead of contentious cases. The climate AO led by Vanuatu authorized the Melanesian Spearhead Group to participate. A sub-regional Indigenous-majority body filed written statements and appeared at oral hearings. Article 66 is wider than Article 34.
Co-authored pleadings. Vanuatu’s Attorney General went to Tanna Island to gather first-hand accounts from communities. Then wrote them into the state’s submission. State holds the pen. Indigenous testimony fills the page.
Indigenous counsel on the legal team. Vanuatu’s lead counsel was Julian Aguon. Chamorro attorney. Indigenous jurisprudence built the strategy. You do not change the rulebook. You change who the state hires.
The General Assembly question itself. When the GA referred Western Sahara to the Court in 1974, the question used the phrase “the indigenous population of the Territory.” That phrasing carried into the 1975 Advisory Opinion because it was in the question.
Parallel proceedings at regional human rights courts. The Inter-American Court has the Awas Tingni line. Indigenous Peoples are parties. Not amici. Parties. The African Court has similar openings.
Amicus submissions through Indigenous-affiliated bodies. When Mauritius and the Maldives fought over a maritime boundary, the Chagossian Committee Seychelles filed an amicus brief. A displaced Indigenous community got their position into a state versus state proceeding without being a party. Not at the ICJ. At ITLOS. But the technique transfers to any international court that accepts third-party submissions.
6 tools. Each one is in someone’s hand right now.
Tickets to Disneyland
I have watched this play out already.
Inside the Convention on Biological Diversity, there are position papers floating around right now arguing that the answer to the IPLC conflation problem is to amend the Convention itself. Rewrite Article 8(j). Renegotiate the text. Force the 196 Parties to legally separate Indigenous Peoples from local communities at treaty level.
Whoever wrote those papers lives in Disneyland.
The CBD entered into force in 1993. Amending it requires consensus among the same 196 Parties who spent 30 years welding “IPLC” together in the first place. The amendment is not happening.
But here is what is happening.
A glossary.
Not an amendment. A glossary attached to the Convention. A subsidiary instrument that identifies Indigenous Peoples and local communities separately. With the legal weight of a COP decision behind it.
No treaty reopening. No 196-Party consensus on the text. A procedural move that delivers the same legal distinction the amendment crowd has been chasing for two decades.
That is the lesson.
When the wall is too high, you do not climb it.
You walk around it.
The glossary is a walk-around. The 6 ICJ routes are walk-arounds. None of them require permission from the system to start.
The other response to a wall is worse than the fantasy. People go quiet. They read a piece like this. Conclude the system is rigged. Stop tracking ICJ cases altogether.
The Court becomes background noise. State versus state. Nothing to do with us.
Both responses kill the work.
Before you go
We did not get the Permanent Forum by rewriting the UN Charter.
We did not get UNDRIP by rewriting the UDHR either.
We did not get EMRIP, the Indigenous Peoples Platform, or the Indigenous Peoples placard at the HRC by rewriting any treaty.
Every mechanism Indigenous Peoples have at the UN exists because someone walked around a wall instead of trying to break it.
The wins that feel small are the wins that compound.
That is the move.
My question to you: What is the biggest thing slowing your work down right now?
Hit reply and tell me. I read every response.
If not, see you next Saturday!
P.S.
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