Politics, Business & Culture in the Americas

Endnotes: Contradiction in International Law

Below are the endnotes from “Contradiction in International Law” by Angela Bunch (Spring 2014 AQ).

  1. E.I. Daes, “Indigenous Peoples’ Rights to Land and Natural Resources,” in Nazila Ghanea and Alexandra Xanthaki, eds., Minorities, Peoples and Self-Determination (Martinus Nijhoff, 2004), pg 75-112.
  2. Territorial rights often clash with the “principle of State sovereignty over natural resources,” in a conundrum parallel to Indigenous self-determination versus states’ self-determination.  The recent conceptualizations of self-determination by theorists such as Alexandra Xanthaki, Erica-Irene A. Daes, and Patrick Thornberry, have determined that “peoples,” and particularly Indigenous peoples, also possess the right to self-determination. Hence, Indigenous peoples are also subjects of the right to sovereignty over natural resources.
  3. Convention No. 169 is binding for state parties, while the Declaration is non-binding and is not meant to create new rights, but rather to interpret the human rights enshrined in other international human rights instruments as these apply to Indigenous peoples and individuals. “Indigenous Peoples; Indigenous Voices: Frequently Asked Questions—Declaration on the Rights of Indigenous Peoples,” United Nations Permanent Forum on Indigenous Issues (UNPFII), <http://www.un.org/esa/socdev/unpfii/documents/faq_drips_en.pdf> (accessed February 20, 2014).
  4. International Labour Conference (100th Session) Report of the Committee of Experts on the Application of Conventions and Recommendations (Doc ILC 100/III/1A) (Geneva 2011).
  5. Article 15 of ILO 169.
  6. The International Labour Organization (ILO) Committee of Experts has determined the following elements of participation: a) the right to be involved in a project, policy or program at every step along the way, and at all levels of decision-making—local, national and regional; b) Participation is done through Indigenous and tribal peoples’ own traditional or representative bodies, unless the people have accepted another authority. ILO Convention on Indigenous and Tribal Peoples, 1989, No. 169: A Manual, 2003.
  7. International Labour Conference Report of the Committee of Experts on the Application of Conventions and Recommendations, 100th Session (Doc ILC 100/III/1A), Geneva, 2011, pg 787-788; ILO Convention on Indigenous and Tribal Peoples, 1989 No.169: A Manual, International Labour Office, Geneva, 2003.
  8. United Nations Declaration on the Rights of Indigenous Peoples, United Nations, March 2008, <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf> (accessed April 22, 2014).
  9. 506 IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann, December 27, 2002, par. 131.
  10. International Labour Conference Report of the Committee of Experts on the Application of Conventions and Recommendations, 100th Session (Doc ILC 100/III/1A), Geneva 2011, pg 785.
  11. “Regardless of the fact that every consultation process must pursue the objective of consent, in some specifically defined cases, the Inter‐American Court’s jurisprudence and international standards legally require states to obtain indigenous peoples’ free and informed consent prior to the execution of plans or projects which can affect their property rights over lands, territories and natural resources.” Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands And Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System, 2010, pg 119-120.
  12. A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 134.
  13. Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands And Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System, 2010.
  14. Mauro Barelli, “Free, prior and informed consent in the aftermath of the UN Declaration on the Rights of Indigenous Peoples: developments and challenges ahead,” The International Journal of Human Rights, 2012, 16:1, pg 1-24.http://www.americasquarterly.org/content/international-law-consulta-previa