international law

United Nations Human Rights Committee on American Indian Sacred Sites

Matthew L.M. Fletcher

The Committee issued a report from its recent review the U.S. late last week.

Of note:

Rights of indigenous people

25. The Committee is concerned about the insufficient measures being taken to protect the sacred areas of indigenous peoples against desecration, contamination and destruction as a result of urbanization, extractive industries, industrial development, tourism and toxic contamination. It is also concerned about restricted access of indigenous people to sacred areas essential for preservation of their religious, cultural and spiritual practices and the insufficiency of consultation conducted with indigenous peoples on matters of interest to their communities (art. 27).

The State party should adopt measures to effectively protect sacred areas of indigenous peoples against desecration, contamination and destruction and ensure that consultations are held with the communities that might be adversely affected by State party’s development projects and exploitation of natural resources with a view to obtaining their free, prior and informed consent for the potential project activities.

Kronk Warner and Abate on Climate Justice for Arctic Indigenous Peoples

Matthew L.M. Fletcher

Elizabeth Kronk Warner and Randall Abate have posted “International and Domestic Law Dimensions of Climate Justice for Arctic Indigenous Peoples,” published in the Ottawa Law Review. Here is the abstract:

Climate change is disproportionately impacting Arctic American indigenous peoples. Consequently, these communities are environmental justice communities. The environmental justice claims of Arctic American indigenous peoples result from the effects of climate change intersecting with indigenous peoples’ human rights. In order to explore these realities more fully, part I of this article discusses how American indigenous nations are environmental justice communities and discusses the unique factors that may apply to environmental justice claims arising in Indian country. The article then presents two case studies to explore how, if at all, these concepts have been previously applied to environmental justice claims brought by various American indigenous communities. Part II addresses the Inuit Circumpolar Conference’s (ICC) petition to the Inter-American Commission on Human Rights (IACHR) in December 2005. Part III considers the Native Village of Kivalina’s lawsuit filed in federal court in the United States in February 2008 against numerous private emitters of greenhouse gases.

Although the ICC and Kivalina claims involve different forums, defendants, and legal theories, both were brought by American indigenous communities in response to the negative impacts of climate change on their communities. Accordingly, evaluation of the ICC’s and Kivalina’s claims is helpful in understanding how environmental justice as applied to indigenous communities may include consideration of factors not applicable to environmental justice claims raised by other environmental justice communities.

Moreover, this article will underscore how Arctic American indigenous peoples’ environmental justice claims also involve human rights dimensions, as climate change is destroying their environment and, as a result, their culture. As fully explained in part I, environmental justice claims arising in Indian country must take into consideration indigenous sovereignty, the federal trust relationship and the unique connection between many indigenous communities and their land and environment. In both of the case studies examined here, the legal forums failed to take these legal factors into consideration. As a result, the indigenous communities suffered.

Kristen Carpenter and Lorie Graham on Human Rights and Adoptive Couple v. Baby Girl

Matthew L.M. Fletcher

Kristen Carpenter and Lorie Graham have posted a very compelling and powerful paper about the Supreme Court’s decision in Adoptive Couple v. Baby Girl. It is required reading for anyone interested in the case, and is destined to be the definitive paper on the international human rights aspects of the case.

The article is titled Human Rights to Culture, Family, and Self-Determination: The Case of Adoptive Couple v. Baby Girl. Here is the abstract:

The well-being of indigenous children is a subject of major concern for indigenous peoples and human rights advocates alike. In 2013, the U.S. Supreme Court decided in Adoptive Couple v. Baby Girl that the Indian Child Welfare Act did not prevent the adoption of a Cherokee child by a non-Indian couple. This occurred over the objections of her Cherokee biological father, extended family, and Tribal Nation. After the decision, Baby Girl’s father and the adoptive couple contested the matter in a number of proceedings, none of which considered the child’s best interests as an Indian child. The tribally-appointed attorney for Baby Girl, as well as the National Indian Child Welfare Association and National Congress for American Indians, began examining additional venues for advocacy. Believing that the human rights of Baby Girl, much like those of other similarly situated indigenous children, were being violated in contravention of the United Nations Declaration on Indigenous Peoples Rights, and other instruments of international law, they asked us to bring the matter to the attention of the United Nations Special Rapporteur for Indigenous Peoples Rights (“UNSR”). We prepared a “statement of information” to alert the UNSR of the human rights violations occurring in the case. With the permission of the attorneys and organizations involved, this chapter introduces the Baby Girl case, contextualizes the claims in international human rights law, and then reproduces the statement of information, and portions of the UNSR’s subsequent public statement. It concludes with an update on the Baby Girl case and broader discussion about the potential for using international law and legal forums to protect the human rights of indigenous children.

ILPC Victoria Sweet on The Human Trafficking of Indigenous Women in the Circumpolar Region of the United States and Canada

Matthew L.M. Fletcher1 Comment

Our own Victoria Sweet has posted her newest paper, “Rising Waters, Rising Threats: The Human Trafficking of Indigenous Women in the Circumpolar Region of the United States and Canada.”

Here is the abstract:

Among indigenous people around the world, human trafficking is taking a tremendous toll. While trafficking is not an exclusively indigenous issue, disproportionately large numbers of indigenous people, particularly women, are modern trafficking victims. In Canada, several groups concerned about human trafficking have conducted studies primarily focused on the sex trade because many sex workers are actually trafficking victims under both domestic and international legal standards. These studies found that First Nations women and youth represent between 70 and 90% of the visible sex trade in areas where the Aboriginal population is less than 10%. Very few comparable studies have been conducted in the United States, but studies in both Minnesota and Alaska found similar statistics among U.S. indigenous women.

With the current interest in resource extraction, and other opportunities in the warming Arctic, people from outside regions are traveling north in growing numbers. This rise in outside interactions increases the risk that the indigenous women may be trafficked. Recent crime reports from areas that have had an influx of outsiders such as Williston, North Dakota, U.S. and Fort McMurray, Alberta, Canada, both part of the new oil boom, demonstrate the potential risks that any group faces when people with no community accountability enter an area. The combination of development in rural locations, the demographic shift of outsiders moving to the north, and the lack of close monitoring in this circumpolar area is a potential recipe for disaster for indigenous women in the region. This paper suggests that in order to protect indigenous women, countries and indigenous nations must acknowledge this risk and plan for ways to mitigate risk factors.

Update to Report on Religious Freedoms of Indigenous Peoples

Matthew L.M. Fletcher5 Comments

Here:

UPDATE TO SEPTEMBER 3, 2013 JOINT SUBMISSION TO THE U.N. HUMAN RIGHTS COMMITTEE

The original report is here.

New Scholarship on the Sarayaku v. Ecuador Inter-American Court of Human Rights Decision

Matthew L.M. Fletcher

Thomas M. Antkowiak has posted “Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court,” forthcoming in the University of Pennsylvania Journal of International Law, on SSRN. Here is the abstract:

In 2012, the Inter-American Court of Human Rights handed down Sarayaku v. Ecuador, a crucial decision on indigenous rights. This Article considers how the Sarayaku judgment impacts the Court’s case law on indigenous lands and resources, and evaluates that jurisprudence as a whole. Examining the cases, it becomes evident that the Tribunal now connects a number of key indigenous rights to the right to property, Article 21 of the American Convention on Human Rights. When traditional lands are involved, the right to property has become the Court’s structural basis for indigenous rights.

For significant reasons, however, the right to property cannot serve as the conceptual stronghold for indigenous peoples’ survival and development. First, the Court’s approach limits the autonomy of indigenous peoples and their capacity for change. Second, the right to property inherently has difficulty providing even basic protection for ancestral lands because domestic and international law grants states wide latitude to interfere with property. Though the Court has attempted to create special ‘safeguards’ for indigenous lands and resources, they have proven inadequate.

In response, I urge a distinct way for the Court to conceptualize indigenous rights. The right to property must be subsumed by, and anchored to, a stronger configurative principle to defend indigenous peoples’ livelihood. Other human rights regimes offer the right to self-determination or specific minority protections that can safeguard indigenous rights. The relevant Inter-American legal instruments fail to establish such principles. As a result, I propose that a broad right-to-life concept, known as vida digna in the Court’s case law, serve as the new structural basis for an array of essential indigenous norms — including cultural integrity, nondiscrimination, lands and resources, social development, and self-government.

New Scholarship on the UNDRIP’s Article 31 on Intellectual Property Rights

Matthew L.M. Fletcher

The United Nations Declaration on the Rights of Indigenous Peoples: A Human Rights Framework for Intellectual Property Rights, now posted in SSRN, will appear in A Research Handbook on Indigenous Intellectual Property, Edward Elgar (2014).

Here is the abstract:

The UN Declaration on the Rights of Indigenous Peoples (Declaration) establishes, in Article 31, that indigenous peoples ‘have the right to maintain, control, protect and develop their intellectual property over their cultural heritage, traditional knowledge, and traditional cultural expressions.’ In light of the centrality of the Declaration in the realm of indigenous rights, Article 31 represents the reference point for any credible discussion of the interlink between the cultural and intellectual property rights of indigenous peoples. This chapter seeks to contextualize this important provision within the normative framework of the Declaration. The first part of the chapter will examine the legal and political significance of the Declaration, discussing the circumstances surrounding its drafting and adoption as well as its normative content. The second part of the chapter will focus on the key provisions of the Declaration that are closely connected with indigenous peoples’ intellectual property rights, including those on self-determination and land rights. Special attention will be paid to the content of Article 31 of the Declaration, highlighting the progressive character of this provision in relation to the intellectual property rights regime currently in force at the international level.

Arctic Law Symposium Articles Available Online

Victoria Sweet

Articles from the 2013 Arctic Law Symposium held at Michigan State University College of Law have been published in the Michigan State International Law Review. Included in this volume are several articles specifically addressing how Indigenous peoples may be impacted by the current changes and developments in the region including:

Closing the Citizenship Gap in Canada’s North: Indigenous Rights, Arctic Sovereignty, and Devolution in Nunavut
Tony Penikett and Adam Goldenberg

Risk, Rights and Responsibility: Navigating Corporate Responsibility and Indigenous Rights in Greenlandic Extractive Industry Development
Rutherford Hubbard

Legal Questions Regarding Mineral Exploration and Exploitation in Indigenous Areas
Susann Funderud Skogvang

Permanent Sovereignty over Natural Resources from a Human Rights Perspective: Natural Resources Exploitation and Indigenous Peoples’ Rights in the Arctic
Dorothée Cambou and Stefaan Smis

Climate Change, Indigenous Peoples and the Arctic: The Changing Horizon of International Law
Sumudu Atapattu

Link to the the full issue here.

Link to previous coverage here.

Report on the Polar Law Conference and Arctic Circle Conference in Iceland – Long

Victoria Sweet

I just returned from Iceland, where I participated in the 6th annual Polar Law Conference and the inaugural Article Circle Conference. The events drew an impressive array of speakers. It was almost a “who’s who” in Arctic affairs, bringing in heads of state, ambassadors, special envoys, lawyers, scholars, business executives, scientists, activists, students, and other interested people. Coverage of both events can be found online.

Polar Law Conference

Arctic Circle Conference

Instead of simply reviewing the events, I thought I’d mention a few of the presentations and events that were of particular interest to me and that might be interesting to some of you.

This is the second time I have attended the Polar Law Conference. I was impressed both times with how open the attendees are to discussing the implications of Arctic development on the Indigenous peoples who reside in Arctic regions. In fact, I found myself engaged in fascinating discussions with legal scholars from many locations who do not understand the U.S. domestic legal policies toward tribes (does anyone truly understand this?) as well as what appears to the international community as the United States’ hesitance to apply UNDRIP, join ILO 169 or UNCLOS, or apply international customary law norms in US courts. Even more interesting are the discussions on how Indigenous groups around the world are dealing with issues that face us all such as: access to sacred sites, protection of subsistence rights, violence against women, preservation and protection of cultural knowledge, among other things.

Here are some highlights from presentations made at both conferences:

Timo Koivurova, Director of the Northern Institute for Environmental and Minority Law, referred to the evolving indigenous law regime that is developing internationally and the need for this regime to trickle down to the domestic level to be truly effective.

Antje Neumann, Researcher at the Univ of Akureyri and PhD Candidate at the University Tilburg presented a compelling paper on the role of Indigenous knowledge in environmental protection and how assisting Indigenous groups to preserve traditional knowledge may benefit all nations when working on ways to protect and preserve the environment.

Kári á Rógvi, Member of Parliament, Faroe Islands spoke on the struggles that Faroe Islanders face as a self-governing nation under the sovereign authority of Denmark. The similarities in legal struggles between the Faroe Islands and Tribes in the US were striking, and Kári and I both agreed that we might be able to learn much from each other since the issues we face are quite similar.

Leena Heinämäki, Research Fellow, Northern Institute for Environmental and Minority Law, shared a project she is involved with on reclaiming sacred natural sites of Indigenous Peoples in the Circumpolar Arctic. Researchers from various countries are bringing together the similarities and differences that Indigenous Peoples in all Arctic countries are facing, and trying to created a unity of purpose between these groups.

Mara Kimmel, an Alaskan attorney and PhD Candidate, Central European University, gave a fascinating paper called “Land, Governance and Well-Being – An Alaskan Case Study.” Her PhD thesis will be coming out soon, and I am looking forward to reading about Alaska Native land claims, governance issues, and the link to the well-being of the people. Since my presentation had to do with human security issues for Indigenous communities in Alaska and Canada related to economic development, we found a lot of cross issues between human security and the ability to self-govern effectively.

Aqqaluk Lynge, Chair, Inuit Circumpolar Council spoke about the question of whether Indigenous people in the Arctic will thrive or just survive. He said that he is not yet convinced that the Arctic will become a place of peace. He challenged the international community to focus on honesty, integrity, transparency and accountability in its dealings with Indigenous Peoples.

Edward Itta (Inupiaq), Commissioner, U.S. Arctic Research Commission gave a powerful presentation. He wanted to know how the Inupiaq can participate more meaningful in economic opportunities. Perhaps, as he said, it is time for Indigenous peoples to ponder a challenge to the current status quo. As he also said, the Inupiaq “degree” in the Arctic world is their survival!

Gudmundur Alfredsson, Univ of Akureyri (and influential part of the creation of UNDRIP), chaired the session where Mr. Itta spoke. He pointed out the less-than-stellar human rights and Indigenous rights records that many of the Arctic states have. He said that it might be time for the world to start focusing on the North and these important issues. He also took a moment and had every Indigenous person in the audience raise their hands. While there were numerous hands raised, we were still quite a small minority. He said that maybe next year we can do better.

The conference had many memorable moments, from the moment when the director of Greenpeace confronted President Putin’s Special Envoy about the arrest of the 30 Greenpeace protestors to the Google Maps presentation showing the in-depth mapping of the ocean to the gorgeous northern lights display (thanks to Mother Nature for that). It was worth the time to attend.

It would be great to see a stronger representation of Alaska Natives getting their voices heard at these conferences along with other legal scholars from the U.S. While I understand that many in the U.S. do not find it worthwhile to spend much time on the international scene, and it is often cost prohibitive, I think we have a unique opportunity related to the Arctic. The attention of the world is turning to that region, and right now we have an opportunity to have our voices heard. Further down the line, the policies will be set and we will be stuck trying to change the practices that we disagree with. Right now we may be able to influence them from the start. It’s something to consider.

UN special rapporteur describes Canada as being in a crisis with respect to indigenous peoples

Ann Tweedy

James Anaya’s remarks came after a nine-day visit to Canada. Pressing issues include education reform and the epidemic disappearance of aboriginal women.

Here is a Huffington Post article, and here’s a CBC article.