international law

2009 Geneva Institute on Indigenous Peoples Law

Matthew L.M. Fletcher1 Comment

Study the Developing International Human Rights Law Applicable to Indian People in a classroom near the United Nation’s European Headquarters

Geneva, Switzerland

First Two Weeks : July 4-18

Comparative and International Indigenous Peoples Law, Dr. Julian Burger

Special Topics in Indian & Indigenous Peoples Law : Lands and Territories, Professor G. William Rice

Second Two Weeks : July 18-August 1

Social and Economic Rights as Universal Human Rights, Professor Scott Leckie

International Trade & Commerce: Drafting and Negotiating International Commercial Agreements, Dean Janet K. Levit

Here is the flyer: 2009-geneva-save-the-date-flyer

Patrick Macklem on Indigenous Recognition in International Law

Matthew L.M. Fletcher

Patrick Macklem has posted his paper, “Indigenous Recognition in International Law: Theoretical Observations,” published in the Michigan Journal of International Law. Here is the abstract:

Drawing on a classic essay by Hans Kelsen, this Article addresses the status of indigenous peoples in international law. It argues that the criteria for determining the legal existence of indigenous peoples in international law are a function of the nature and purpose of international indigenous rights. The twentieth century legal history of international indigenous rights, from their origins in international protection of indigenous workers in colonies to their contemporary expression in the United Nations Declaration on the Rights of Indigenous Peoples, demonstrates that their purpose is to mitigate injustices produced by how the international legal order treats sovereignty as a legal entitlement that it distributes among collectivities it recognizes as states. The criteria by which indigenous peoples can be said to exist in international law relate to their historic exclusion from the distribution of sovereignty initiated by colonization that lies at the heart of the international legal order.

UN Declaration on the Rights of Indigenous Peoples – One Year Later

Kirsten Matoy Carlson

A year ago today, the United Nations General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples.  Indigenous leaders, human rights advocates, and others celebrated the most significant development in international human rights law in decades.  Too many it was the end of 30 years of hard work.

But the UN’s adoption of the Declaration signaled a beginning rather than an ending.  For the first time, the international community recognized the rights of indigenous peoples as peoples under international human rights law.  It rejected the fiction that indigenous peoples were eventually going to disappear, and acknowledged indigenous nations as permanent governments.  Indigenous peoples finally had a right to exist, to self-determination, to land, to culture, and more.

A year later, there is much work still to be done.  It is not enough for these rights to be recognized under international law.  States need to implement these rights and incorporate them into their domestic legal frameworks.  Some states have made progress in this direction.  And every day, the principles in the Declaration are re-enforced by state actions, and they are quickly emerging as binding customary international law.

But these principles have yet to be universally accepted.  A year ago, the United States and Canada — two major international players with significant indigenous populations — voted against the adoption of the Declaration.  And today, they still have not accepted it.

As we continue the fight for the rights of Indian and Alaska Native nations, we can and should use the UN Declaration on the Rights of Indigenous Peoples.  Only our continued use of the Declaration will lead to the full implementation of the rights within it.  And such use will remind the United States and Canada that the rest of the world acknowledges our rights as indigenous peoples.

For more information on the UN Declaration, see the Indian Law Resource Center’s website: http://www.indianlaw.org/node/269

See the text of the UN Declaration here: http://www.indianlaw.org/sites/indianlaw.org/files/UN%20Declaration%20on%20the%20Rights%20of%20Indigenous%20Peoples.pdf

Law Journal Symposium on Climate Change and the Polar Regions

Matthew L.M. Fletcher

Sustainable Development and Policy, a law journal published at American University’s law school, has published an entire symposium issue on climate change and the polar regions (here).

At least two of the articles involve discussion of Indigenous peoples:

Ford, Supporting Adaptation: A Priority for Action on Climate Change for Canadian Inuit (p. 25)

Kazarian, The Forgotten North: Peoples and Lands in Peril (p. 46)

Patrick Macklem on Minority Rights in International Law

Matthew L.M. Fletcher1 Comment

Patrick Macklem has posted “Minority Rights in International Law” on SSRN. Here is the abstract:

Why should international human rights law vest members of a minority community – either individually or collectively – with rights that secure a measure of autonomy from the state in which they are located? To the extent that the field offers answers to this question, it does so from its deep commitment to the protection of certain universal attributes of human identity from the exercise of sovereign power. It protects minority rights on the assumption that religious, cultural and linguistic affiliations are essential features of what it means to be human. There exists an alternative account of why minority rights possess international significance, one that trades less on the currency of religion, culture and language and more on the value of international distributive justice. On this account, international minority rights speak to wrongs that that international law itself produces by organizing international political reality into a legal order. This account avoids the normative instabilities of attaching universal value to religious, cultural and linguistic affiliation and instead challenges the international legal order to remedy pathologies of its own making.

Benjamin Richardson on Indigenous Peoples and Environmental Governance

Matthew L.M. Fletcher

Benjamin Richardson has posted “Ties That Bind: Indigenous Peoples on Environmental Governance” on SSRN. This paper is forthcoming in the book, “Indigenous Peoples and the Law: Comparative and Critical Perspectives.” Here is the abstract:

Canvassing practices in many countries, this chapter analyses the relationships between Indigenous peoples and environmental governance. It examines the environmental values and practices of Indigenous peoples, primarily in order to assess their implications for the Indigenous stake in environmental governance. It identifies at least six major theories or perspectives concerning Indigenous environmental values and practices. Secondly, the chapter reviews the legal norms and governance tools that structure Indigenous involvement in environmental management, in order to assess their relative value for Indigenous stakeholders and implications for sustainable utilisation of natural resources.

Bob Miller on Intertribal and International Treaties for Economic Development

Matthew L.M. Fletcher

Bob Miller has posted “Inter-Tribal and International Treaties for American Indian Economic Development,” forthcoming in the Lewis & Clark Law Review. Here is the abstract:

American Indian Tribes and Indigenous peoples around the world are among the poorest groups in their countries. Economic development is an absolutely crucial issue for these governments and their people. Recently, two different efforts have been undertaken to create beneficial development based on treaties between Indigenous groups.

In August 2007, eleven American Indian Nations, Canadian First Nations, New Zealand Maori Iwis, and Australian Aborigine groups signed a treaty to engage in international economic activities. Dozens of other American Tribes and New Zealand Iwis have also signed this treaty or will do so in the next few months. In addition, Pacific Northwest Indian Tribes have drafted an inter-tribal treaty to facilitate the conduct of business on reservations.

This Article dissects these two treaties and addresses some of the unique legal issues that these treaties raise.

James Anaya Special Rapporteur Report on UN Declaration

Matthew L.M. Fletcher1 Comment

James Anaya, the new Special Rapporteur on the United Nations Declaration on the Rights of Indigenous Peoples, has posted “The Human Rights of Indigenous Peoples, in Light of the New Declaration, and the Challenge of Making Them Operative: Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People.” Here is the abstract:

The present report is submitted in accordance with Human Rights Council resolution 6/12, and is the first report of Professor S. James Anaya in his capacity as Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people. The resolution requires the Special Rapporteur, inter alia, to promote the United Nations Declaration on the Rights of Indigenous Peoples and other international instruments relevant to the advancement of the rights of indigenous peoples. On this basis, the Special Rapporteur provides an analysis of the Declaration, in the context of other international instruments specifically regarding indigenous peoples and human rights instruments of general applicability. Reflecting the common international body of opinion regarding the rights of indigenous peoples, the Declaration elaborates on general human standards as they apply to the specific context of indigenous peoples, with a particular emphasis on the remedial measures required to address the historical and contemporary denial of their rights. The last section of the report analyses the different measures required to implement and make operative the rights affirmed in the Declaration, a process which involves a joint effort by States, the United Nations system, indigenous peoples and relevant civil society actors.

Carrie Garrow on Haudenosaunee Land Claims

Matthew L.M. Fletcher

Carrie Garrow has published “Following Deskaheh’s Legacy: Reclaiming the Cayuga Indian Nation’s Land Rights at the Inter-American Commission on Human Rights” in the Syracuse Journal of International Law and Commerce. Here is the intro:

Deskaheh, Chief of the Younger Bear Clan of the Cayuga Nation in the 1920s, prepared the path for international recognition of Haudenosaunee (People of the Longhouse) sovereignty and human rights. An eloquent orator and resolute leader, he spent many years advocating for international recognition of Haudenosaunee sovereignty and treaty violations by Canada. In 1921, as Speaker of the Six Nations Council, he traveled on a passport issued by his nation to seek British aid to halt Canada’s attempt to overthrow the traditional form of government and impose an elected band council. Despite failing to convince the British to intervene and protect the treaty they had signed with the Six Nations living in Grand River, Deskaheh returned to Europe in 1923. He traveled to Geneva to “bring his peoples’ case before the League of Nations.” While he fought to receive permission to appear before the League, the Canadian government, in violation of Haudenosaunee sovereignty and treaties, announced a “free election” under armed guard of twenty Canadian police at Grand River to determine whether or not the Six Nations Government of Grand River Land should be dissolved. Meanwhile back in Geneva, Deskaheh was denied permission to appear before the League’s plenary session, despite the Netherlands and Albania’s support of his petition. Determined to educate the world about the violation of his people’s rights, Deskaheh presented his nation’s case at a press conference attended by many nations and “[w]hen he finished, there was a moment of silence–then the roar of a tremendous ovation. Thousands rose to their feet to cheer him and the great hall echoed and re-echoed with their applause.” At the end of 1924, Deskaheh returned to the United States, an exile from Canada unable to cross the border. Although Deskaheh thought himself a failure, “he found that the people for whom he had fought did not think him a failure. From their northern homes in Grand River Land, they journeyed here to see him and assure him of their loyalty.”

Continue reading →

Penn Law Review Comment on the UN Declaration & Indigenous Courts

Matthew L.M. Fletcher

The University of Pennsylvania Law Review has published a paper (with a really long title I don’t feel like typing) on the UN Declaration and Indigenous Peoples’ courts. It is here. It looks like a good read. Here is the summary of the argument in the paper:

This Comment makes two arguments, one broad and one narrow. Broadly, it argues that concerns of the United States and others about the “workability” of the DRIP–at least regarding self-determination–are misplaced, and that the meaning of self-determination is clearly delimited, not merely by Article 46(1), but by the substantive rights conferred in the DRIP. The Comment argues that the appropriate way to understand the DRIP’s self-determination provisions involves a two-stage process, moving first from the skeletal right conferred in Article 3 to the more substantive Article 4, and then to specific features of the right conferred in subsequent provisions. This broader argument is woven through a more narrowly focused argument that examines the applicability of a single provision in the DRIP–Article 34, which confers rights to “juridical systems”–to “egalitarian juridical pluralism” (EJP), the emerging recognition of the exclusive jurisdiction of indigenous courts. On this score, the Comment argues that EJP is an appropriate exercise of the rights guaranteed by Article 34. By examining the applicability of EJP to Article 34, this Comment seeks to shed light not only on the meaning and workability of Article 34, but also on the content and functionality of the overarching right of self-determination conferred in Article 3. As the United States has asserted, this right is “fundamental” “to interpreting all of the provisions” in the DRIP.

One quibble. Footnote 168 is just a bit off:

To contrast with just one example, tribal courts in the U.S. system are not constitutionally mandated; rather, they are created under the auspices of Congress’s Article I powers and are thus akin to administrative courts. Any decisions by U.S. tribal courts can be overturned by a simple act of Congress. See Catherine T. Struve, Tribal Immunity and Tribal Courts, 36 Ariz. St. L.J. 137, 137 (2004) (“[T]he Supreme Court has stripped tribes of many of the positive aspects of governmental authority[, including] key aspects of legislative and adjudicative authority ….”); id. at 145 (discussing “Congress’s plenary power over Indian tribes”).

Most tribal courts have developed without federal government control, although many have been funded in part by federal grants. Some tribal courts originated as “CFR Courts” or “Courts of Indian Offenses,” created by the Dept. of Interior, but few of these remain under federal control. So, contrary to the assertion made in the footnotes, tribal courts are Indigenous, meaning that the power they exercise is tribal sovereign power, not federal power. See United States v. Lara, 541 U.S. 193 (2004).