international law

International Treaty to Protect the Sacred from Tar Sands Projects

Matthew L.M. Fletcher5 Comments

Text here. Video here.

Legal analysis on the import of the treaty from the international law scholars at Opinio Juris, here. An excerpt:

Beyond the U.S. law, there’s also a fairly interesting issue of how international law regards this sort of treaty-making.  As I’ve written previously, international law imposes two conditions on treaty-making by a sub-national actor:  (1) explicit treaty-making authority from the State of which it is a component part (whether ex-ante or ex-post); and (2) the consent of potential treaty-partners to the sub-national actors’ participation in the treaty itself.  Here, it seems we have a willing group of treaty partners, so the treaty seems OK on the second element (that is, assuming the Canadian First Nations are themselves authorized to make treaties under Canadian law).  Still, there are questions as to whether the United States has to authorize this treaty, whether it has done so (or will need to do so going forward), and why it would ever do so when the treaty’s objective would be to lobby and/or constrain federal government behavior.  Now, there is an argument that, as indigenous peoples, Native American tribes should not be subject to the standard rules for treaty-making by sub-national actors (indeed, Article 36(1) of the UN Declaration on Indigenous Rights makes just such a claim).  But, the United States was one of four nations to object to that Declaration (along with Canada, Australia and New Zealand), so I’m hard pressed to see it getting traction in this case, especially where the treaty involves an alliance of indigenous peoples to oppose federal licensing efforts (and with it perhaps some key aspects of U.S. energy policy).

As such, I think the ball is now firmly in the Obama Administration’s court.  I’m interested to see how it responds to this treaty (including, which Agency takes the lead in responding to it).  I suppose silence is a possible course of action.  But, if the federal government remains silent, I think that might lead to arguments of U.S. tacit approval for this treaty in particular, and even more broadly, a right of treaty making with foreign powers for U.S. Native American tribes.

For a primer on intertribal treaty making, see Wenona Singel’s Indian Tribes and Human Rights Accountability (email me if you want a pdf).

Arctic Law Symposium, Michigan State University College of Law

Victoria Sweet

The Michigan State International Law Review’s upcoming symposium “Battle for the North: Is All Quiet on the Arctic Front?” has received international attention in the Arctic Law Thematic Network Newsletter. What is the Arctic Law Thematic Network?

From the Arctic Law Thematic Network site:
From 2013, Arctic Law Thematic Network (ALTN) publishes a Newsletter with latest news from the Network partners – information on publications, conferences, master and doctoral programmes, new projects, as well as news and analyses of interest for the members of the Network.

To see the newsletter see: http://www.arcticcentre.org/InEnglish/RESEARCH/The_Northern_Institute_for_Environmental_and_Minority_Law/University_of_the_Arctic_Thematic_Network_on_Arctic_Law/Newsletter_-_ALTN.iw3

For information on the symposium or to register see: http://www.law.msu.edu/battle-north/

Petition to Protect Maya Lands in Southern Belize from Unauthorized Drilling

Ann Tweedy2 Comments

Please consider signing this petition. The government of Belize is ignoring Belize Supreme Court precedent that confirms that this land is the homeland of Maya communities.

Update on the Maya’s Struggle Against Unauthorized Drilling on Their Lands in Belize

Ann Tweedy

Here’s a news article detailing recent developments.

The original post is here.

US Capital Energy obtains drilling permit on Maya land in Belize without Maya consent and then bribes key Maya leader

Ann Tweedy3 Comments

This issue came to my attention because Hamline Law had invited Cristina Coc, a Maya leader on land rights issues, to speak last week, but Ms. Coc had to cancel at the last moment when US Capital Energy obtained a permit from the Belize government without the Maya people’s consent and then bribed a Maya leader to voice his support for their actions. The Maya Leaders Alliance is still fighting the attempt by US Capital Energy, which continues it attempts to literally silence any opposition.

A news article is here, and additional information, including a request for financial help from Ms. Coc, is here:
scan coc

and here:

Govt and US Capital Energy Disrespects Maya Leadership[1]

If you want to contact someone in the U.S. who is familiar with the situation, you can contact Mark Brown of BRIDGEs, a new U.S. non-profit that had planned to bring Ms. Coc to Minnesota.

New Scholarship on Foreign Direct Investment and Indigenous Peoples

Matthew L.M. Fletcher

George K. Foster has published “Foreign Investment and Indigenous Peoples: Options for Promoting Equilibrium Between Economic Development and Indigenous Rights” in the Michigan Journal of International Law.

United Nations Special Rapporteur on Indigenous Peoples in the United States

Matthew L.M. Fletcher

Here:

8-30-12 Spec Rapporteur report US indigenous

Marketa Trimble Proposes International Convention on Internet Gaming

Matthew L.M. Fletcher

Marketa Trimble has posted her paper, “Proposal for an International Convention on Online Gambling,” on SSRN.

Here is the abstract:

The proposal, which will be published as a chapter in a volume from the Internet Gaming Regulation Symposium co-organized by the William S. Boyd School of Law of the University of Nevada, Las Vegas, in May 2012, presents the outline of an international convention (‘Convention’) that will facilitate cooperation among countries in enforcement of their online gambling regulations while allowing the countries to maintain their individual legal approaches to online gambling. Countries continue to vary in their approaches – some permit and regulate, and others prohibit online gambling, and even countries that permit and regulate online gambling approach the issue differently. Countries cannot enforce their own online gambling regulations without assistance from other countries – specifically, the countries where online gambling operators have their operations and/or their assets. Under the proposed Convention, national online gambling regulators would cooperate in the exchange of necessary information, in the licensing and standardization of technological requirements for online gambling operators, and, most importantly, in assisting with the enforcement of foreign country regulations by imposing geolocation and filtering requirements on online gambling operators. The chapter discusses the challenges that the proposal faces and suggests that the challenges can be overcome. Recent events in the online gambling world, such as ‘Black Friday,’ demonstrate a pressing need for effective international cooperation among Internet gambling regulators, and the proposed Convention, by providing a solution to the vexing problem of enforcement of online gambling regulation on the Internet, can provide the impetus for national discussions on online gambling.

International Law Association Committee Draft Report on the Rights of Indigenous Peoples

Matthew L.M. Fletcher

The 2012 Draft Report of the ILA Rights of Indigenous People Committee on the rights of indigenous peoples is now available here. Siegfried Wiessner and Lorie Graham from the USA are in on this one.

Other reports available this website include:

Conference Report The Hague (2010)

Conference Report Rio (2008)

 

Danielle Conway on Promoting Indigenous Innovation Through the Licensing of Article 31 Indigenous Assets and Resources

Matthew L.M. Fletcher

Danielle M. Conway has posted her paper, “Promoting Indigenous Innovation, Enterprise, and Entrepreneurship Through the Licensing of Article 31 Indigenous Assets and Resources.” She published the paper in the SMU Law Review.

Here is the abstract:

The notion that indigenous entrepreneurship is inherently paradoxical to participation in the western marketplace must be challenged, even though there is a fine balance indigenous entrepreneurs maintain with their own world and the western world. This balance considers that indigenous entrepreneurs exist within transgenerational communities with complex cross-cultural linkages with the west. Far from fully segregating from western society and the states in which they reside, indigenous entrepreneurs seek to promote indigeneity through indigenous and non-indigenous commerce. As Hindle and Lansdowne explain, “[t]here need be no paradox, no contradiction, no values sacrifice, no false dichotomy between heritage and innovation.” Reference to the goals and objectives of the United Nations Declaration on the Rights of Indigenous Peoples bear this out. For example, article 19 of the Declaration relates to Indigenous peoples’ participation with respect to issues that affect them, their lands, their resources, and their rights. The Declaration also calls for good-faith efforts by states to consult and cooperate with Indigenous peoples about economic and social development that directly or indirectly impacts their rights. Relevant to this paper, article 31 of the Declaration deals with Indigenous peoples’ right to exercise authority and control over their cultural heritage, traditional knowledge, and traditional cultural expressions in addition to any intellectual property rights in these assets and resources. Accordingly, this Article promotes the use of the Declaration on the Rights of Indigenous Peoples as a basis for asserting indigenous control over article 31 assets and resources to spur indigenous enterprise and innovation. After asserting control, Indigenous peoples can then operationalize the use of their article 31 assets and resources to counteract the “history of dispossession, assimilation, child removal and other previous colonial policies [that have] created a legacy” of economic disadvantage, political and structural disadvantage, geographic and cultural disadvantage, and collective and individual disadvantage. This article focuses on licensing as a mechanism to both implement the goals and objectives of the Declaration and to reassert indigenous authority and control over indigenous assets and resources.