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The rights of indigenous people in international human rights law

The author analyzes the remedies and avenues for redress available in international law and organizations for human rights violations against indigenous peoples.

He also examines specific provisions in the Charter of the United Nations relating to the domestic jurisdiction rule and argues that most states could not successfully invoke this rule because, as parties to international agreements, they have consented to the competence of others to discuss state performance in areas covered by the agreements.

The author also examines the principle of the right to self-determination and puts forth five possible meanings and potential beneficiaries.

He concludes that most indigenous peoples are excluded from the exercise of external self-determination partly because of the territorial and sovereignty arguments advanced by metropolitan states. He asserts, however, that this does not mean that internal self-determination does not apply. American Indian Law Centre. The questionnaire submitted to the member nations as part of the study, the response of the United States to the questionnaire, and some preliminary comments directed to the United States' response by the American Indian Law Centre are reprinted.

The United States government is criticized for not submitting an accurate picture of the situation of American Indians, particularly with regard to the process of federal recognition of an Indian tribe. Critics of the United States' response put forth three basic policy problems which should have been addressed: The author views the international legal status of Indian peoples of Saskatchewan from three political perspectives - that of a people, that of an indigenous group, and that of a minority - and discusses the rights that inure in each of those categories.

She asserts that Indians of Saskatchewan have three fundamental rights in international law - a right to a physical existence, a right to self-determination and a right to use their own natural resources - and discusses the sources of these rights.

The author also states that the Indian people of The rights of indigenous people in international human rights law have a claim to statehood under the criteria in article 1 of the Montevideo Convention of 1933: The author also considers arguments which deny that treaties between Indians and Canada are agreements in the international law sense.

In turn the author discusses the incorrectness of these arguments based upon international treaty law principles. The author also draws some interesting parallels to the situations of Biafra and Bangladesh in the context of the importance of political recognition by other states in the exercise of self-determination. A short, but well-researched article analyzing the United States government's record of acting as a "trustee" to native Americans. The the rights of indigenous people in international human rights law of the domestic trust system are pointed out.

Two alternatives are provided in the form of the UN trusteeship system as outlined in articles 75-91 of the UN Charter and the non-self-governing territory provisions as found in articles 73-74. The authors urge aboriginal peoples to work towards an international trust under the UN system which remedies the failures inherent in the domestic trust, such as lack of accountability and lack of self-government.

The authors refer to many sources that are helpful for further study. The author traces early attempts to form an international consensus on the status of indigenous peoples at the 1884-1885 Berlin Africa Conference and the 1889-1890 Brussels Conference. He discusses the early development of the right to self-determination during the League of Nations era. An analysis of international case law reveals that indigenous peoples have been denied a separate international personality and rights as original proprietors to their lands.

The author notes that there are two biases that have most significantly impeded self-determination for indigenous peoples: As agent for the Grand Council of the Mikmaq Nation, he discusses their communication to the United Nations Human Rights Committee under the Optional Protocol which claims that administering states must show how and when they lawfully annexed or assumed control over a group.

If no lawful incorporation can be shown, it is to be assumed that the group is a separate people that has yet to exercise its right of self-determination.

Indian Tribes and Constitutional Renewal. The authors examine the international agreements to which Canada is a party and expose Canada's treatment of native peoples as a betrayal of those agreements. The right to self-determination of indigenous peoples is consistent with the evolution of freely associated states within the British Empire. Attempts by the federal Liberal administration to solve past injustices by way of economic compensation are exposed as a simplistic "band-aid" solution which entirely misses the point of the claims of native peoples.

The author gives a good summary of the background of the Lovelace case. The procedural hurdles are examined as well as the reply by the Canadian government to the United Nations Human Rights Committee. A short critique of the committee's decision is offered. The author suggests that there was not only a violation of article 27 of the International Covenant on Civil and Political Rights but a violation of article 2 1 as well.

The lack of response by the Canadian government after the decision was made and the poor media coverage of the decision is strongly criticized. A good history and analysis of this important decision.

ANNOTATIONS

Aboriginal Rights in International Law. Royal Anthropological Institute in association with Survival International, 1978. The author traces the history of aboriginal peoples in the context of International law. Important case law at both the domestic level and international level is discussed and its impact on aboriginal peoples is analyzed. Particular attention is paid to the doctrine of guardianship as it was developed by Spanish jurists and applied by the English as they came into contact with the new world.

A substantial part of the book deals with International Labour Organization Convention 107 - concerning the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries. The author also examines Recommendation 104 from the same organization. The scope of the Convention is outlined as the author discusses each of the important provisions and how they would apply to domestic situations if countries like Canada were to ratify the Convention.

This article traces the issue of aboriginal title through several commonwealth jurisdictions. The author concludes that courts have still not settled the issue whether aboriginal title is to be based on immemorial possession or on official recognition. The author urges jurisdictions which have yet to deal with the question to follow the "logical basis" of the native claim based on immemorial possession.

The author analyzes briefly three important cases dealing with aboriginal rights. The 1971 case of Milirrpum v. Nabalco in Australia, the Calder 1973 case in Canada and Tito v. Waddell 1977 in Britian. Concluding that aboriginal peoples have in the past few years lost their cases in municipal courts, Bennett looks to recent developments in international law. Encouraged by the decision in the Western Sahara case, Bennett looks for positive results if the doctrine of that case is adhered to or expanded.

The UN contribution is analyzed and the author points out the many weaknesses of the Human Rights Covenants in application to indigenous peoples. The ILO Convention is analyzed briefly and praised as a good the rights of indigenous people in international human rights law for aboriginal rights although it fails in enforcement and application mechanisms. Aboriginal rights are becoming increasingly the rights of indigenous people in international human rights law and the author calls on international and regional human rights organizations to pick up where the ILO and international case law have left off.

The issue of jurisdictional competence for issues covered by the ILO Convention on Indigenous and Tribal Populations of 1957 is discussed along with a brief analysis of the text of the Convention.

Each of the three arguments which make up the attack against the ILO Convention is dealt with. In response to the criticism that the ILO constitution does not give it the mandate for the Convention, the author concludes that the issue of indigenous and tribal populations is one which needs to be dealt with comprehensively in an all-encompassing document like the Convention of 1957.

To the argument that the ILO Convention encroaches upon domestic jurisdiction, the author responds that none of the countries involved in drafting the convention raised the issue.

Also section 28 of the Convention provides for a liberal application, taking into account the characteristics of each country. With regard to the objection that the ILO is competing with the jurisdiction of other international specialized agencies the author cites widespread agreement and recognition of the need for a single instrument covering all aspects of the problems of indigenous populations. The author notes the recent interest being given in international circles to the concept of aboriginal rights.

Thus he seeks to analyze the American approach to aboriginal rights as a resource for further research in an international and comparative study.

In This Article

Several important American cases dealing with aboriginal issues are surveyed and special attention is given to the jurisprudence developed in this area by the Marshall court. The author gives a brief summary of the Fourth Russell Tribunal held on 24-30 November 1980 in Rotterdam. The Tribunal was presented with forty-five submissions detailing numerous human rights violations of indigenous peoples.

  • This website provides an extensive overview of indigenous peoples and the UN system;
  • The book addresses the question whether Indian nationhood has been given up or lost through some legal act or event;
  • This is a report of fourteen out of forty-five cases presented to the Tribunal alleging violations of the rights of Indian peoples in the Americas;
  • The annex includes a list of documents submitted to this session;
  • International Work Group for Indigenous Affairs, 1982.

In their final report, the Tribunal condemned various governments, including Canada's, for violations of various international covenants and conventions. These reports cover international and transnational issues, such as self-determination, and the effect of transnational corporations' activities on the resources and land of indigenous peoples.

Representing solely an anthropological viewpoint, the author examines the international activities of indigenous groups and non-indigenous support groups. In terms of the latter, the author discusses their approaches to support activity. The appendices include names and addresses of periodicals published by indigenous peoples and non-indigenous support groups.

Public Archives of Canada, Record Group 126, vol. The author presents an opinion of the principal points of customary or general international law bearing upon the MacKenzie Valley Pipeline and its effect on the Inuit and Dene peoples of Canada's north. Brownlie, a well-known international law publicist from Britain, deals with article 27 of the International Covenant on Civil and Political Rights and states that it applies to Canada and that it forbids any substantial infringement of the right of a people to enjoy its culture.

  • For example, some of the most important human rights instruments are declarations;
  • Culture, Religion, and Language Laws Part 4;
  • A number of individuals assembled together or having some unifying relationship;
  • However, such distinct political features also limit the scope of the literature;
  • In the author's view of international law "aboriginal peoples" have in effect no recognized status.

The author also cites principles of customary international law which forbid racial discrimination, which allow for the principle of self-determination, and forbid the use of compulsion of a people which amounts to deportation.

A very clearly written opinion and a good account of how principles of international law may be applied to an aboriginal rights issue. The Covenant on Civil and Political Rights, p. Edited by Louis Henkin. Columbia University Press, 1981.

  • As well, the policy pursued by unofficial organizations religious missions, and groups of a scientific, anthropological, ethnological, sociological nature that have undertaken programmes among indigenous populations are reviewed;
  • Amongst these are the right to self-determination;
  • She argues that the ascending focus on cultural rights has undermined the development of more transformative and sustainable bases for indigenous empowerment and development.

A well-researched and clearly written introduction to article 1 of the Covenant on Civil and Political Rights which guarantees to "peoples" the right to self-determination. Internal versus external self-determination is examined as well as ways to implement the right.

The author concludes that the right to self-determination has become a pre-emptory norm of international law jus cogens and therefore any derogation of the right by nations is forbidden. A good introduction to the mechanics of the UN system in arriving at the principle and its enforcement in the community of nations.

A reprint of the 1955 Howard Press edition. A source book on the problem of national minorities in the inter-war period and under the United Nations system. Originally a paper presented to the Canadian Council on International Law in 1981, the author reviews the history of Canadian courts in utilizing international human rights law. There are few cases which used international human rights law. Those that did, often involved a misunderstanding of international law and misapplication of the appropriate principles.

Recent American case law is examined and the author notes a trend in the United States to use more international law in this area, a trend Canada should be pursuing.

Special reference is made to the jurisprudence of the European Court of Human Rights and its application in Canada since the Canadian Charter of Rights and Freedoms has come into effect. A good resource for those seeking to persuade Canadian courts to rely on international human rights law on behalf of aboriginal peoples.

Indigenous Rights in International Law

Clinebell, John Howard, and Thomson, Jim. The American violations of native rights are described in detail. A strong analysis of international law in this area and how the American government has failed to live up to the standard of international law. Very applicable to the Canadian situation as well. The significance of the Canadian Charter of Rights and Freedoms in light of public international law is discussed by Mr.

Cohen, Judge ad hoc of the International Court of Justice. Specific mention is made of the twenty-three principal international conventions on human rights which Canada has ratified and how the Charter may be upheld in Canadian courts in light of those conventions.