Indigenous Peoples and the Jurisgenerative Moment in Human Rights

Paradigm Shifts ◽

Human Rights Movement ◽

International Human ◽

As indigenous peoples have become actively engaged in the human rights movement around the world, the sphere of international law, once deployed as a tool of imperial power and conquest, has begun to change shape. Increasingly, international human rights law serves as a basis for indigenous peoples’ claims against states and even influences indigenous groups’ internal processes of decolonization and revitalization. Empowered by a growing body of human rights instruments, some as embryonic as the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), indigenous peoples are embracing a global “human rights culture” to articulate rights ranging from individual freedom and equality to collective self-determination, property, and culture. Accordingly, this Essay identifies and provides an account of what we see as an unprecedented, but decidedly observable, phenomenon: the current state of indigenous peoples’ rights—manifesting in tribal, national, and international legal systems—reflects the convergence of a set of dynamic, mutually reinforcing conditions. The intersection of the rise of international human rights with paradigm shifts in postcolonial theory has, we argue, triggered a “jurisgenerative moment” in indigenous rights. Bringing indigenous norms and values to their advocacy, indigenous peoples have worked to assert their voices in, and indeed to influence, the human rights movement. Indigenous peoples are now using the laws and language of human rights, shaped by indigenous experiences, not only to engage states but also as a tool of internal reform in tribal governance. This is, in our view, a jurisgenerative moment in indigenous rights—a moment when both the concept and practice of human rights have the potential to become more capacious and reflect the ways that individuals and peoples around the globe live, and want to live, today.Published: Angela R. Riley and Kristen A. Carpenter, "Indigenous Peoples and the Jurisgenerative Moment in Human Rights," 102 California Law Review 173 (2014).

The "Spanish" Origins of International Human Rights Law: A Historiographical Review

Victoria University of Wellington Law Review ◽

10.26686/vuwlr.v41i2.5230 ◽

2010 ◽

Vol 41 (2) ◽

pp. 235 ◽

Cited By ~ 1

Author(s):

Richard P Boast

Keyword(s):

Human Rights ◽

Indigenous Peoples ◽

Indigenous Rights ◽

Human Rights Law ◽

Las Casas ◽

Bartolome De Las Casas ◽

International Human ◽

Francisco De Vitoria

This article critically reviews the claim that the Spanish jurist-theologians Francisco de Vítoria and Bartolomé de las Casas, and their successors, were pioneers of human rights theory and of the law relating to the rights of indigenous peoples. The article seeks to clarify the literature relating to these claims by dividing it into various categories and analysing each in turn. A principal aim of the article is to convey the sheer diversity and scale of the various competing historiographies and the extent to which they stand in contrast to each other. By way of conclusion, there is a discussion of those parts of the debate which are of greatest relevance and resonance for a jurisdiction such as New Zealand, where questions about the origins and nature of indigenous rights law are not merely a matter of theoretical interest, but also of great practical relevance.

Part II Group Identity, Self-Determination, and Relations with States, Ch.7 Equality and Non-Discrimination in the UNDRIP: Articles 2, 6, and 7(1)

10.1093/law/9780199673223.003.0008 ◽

2018 ◽

Author(s):

Gover Kirsty

Keyword(s):

Human Rights ◽

International Law ◽

Indigenous Peoples ◽

Self Determination ◽

Human Rights Law ◽

Full Spectrum ◽

International Human ◽

This chapter analyses the rights to equality and non-discrimination in Articles 2, 6, and 7(1). The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) covers the full spectrum of rights contained in international and regional instruments, adapted to the circumstances of indigenous peoples. Because the UNDRIP has an exceptionally wide substantive scope, debates about equality and non-discrimination were a central part of the negotiations leading to its adoption. Where provisions of the UNDRIP were thought to deviate from rights already expressed in international law, they were perceived in some states to compromise the fundamental principles of equality and non-discrimination that underpin existing human rights' instruments. In this way, the extensive discussions about equality and indigeneity that characterized the development of UNDRIP are also debates about the continuity and coherency of international human rights' law.

The Legal Status of the United Nations Declaration on the Rights of Indigenous Peoples (2007) in Contemporary International Human Rights Law

International Human Rights Law Review ◽

10.1163/22131035-00602006 ◽

2017 ◽

Vol 6 (2) ◽

pp. 242-261 ◽

Cited By ~ 1

Author(s):

Sylvanus Gbendazhi Barnabas

Keyword(s):

Human Rights ◽

United Nations ◽

International Law ◽

Indigenous Peoples ◽

Legal Status ◽

Customary International Law ◽

International Human ◽

This article explores the legal status or effect of the United Nations Declaration on the Rights of Indigenous Peoples (undrip) in contemporary international human rights law. As a United Nations General Assembly (unga) resolution, the legal significance of undrip may appear uncertain on the surface. However, several unga resolutions do carry some legal weight with far-reaching legal implications in international law. For example, the Universal Declaration of Human Rights 1948 (udhr) has been widely accepted, at least in part, as forming part of customary international law. Through a critical examination of relevant literature and some decisions of international, regional and national courts, this article examines whether the undrip, in whole or in part, reflects customary international law. It also considers the relationship of the undrip with other international human rights instruments, and whether it should be applied as part of general principles of law on issues that are essential to indigenous peoples such as non-discrimination, self-identification, land rights and development.

The radical ideation of peasants, the ‘pseudo-radicalism’ of international human rights law, and the revolutionary lawyer

London Review of International Law ◽

10.1093/lril/lraa024 ◽

2020 ◽

Vol 8 (3) ◽

pp. 425-456

Author(s):

Margot E Salomon

Keyword(s):

Human Rights ◽

Rural Areas ◽

Social Transformation ◽

Unintended Consequences ◽

Human Rights Law ◽

International Human ◽

Theory Of Law ◽

Abstract This article questions the use of international human rights law in realising social transformation. It studies the new United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas, drawing on the commodity-form theory of law. Through this lens, foregrounding the relationship between capitalism and law and their shared constituent form, the contradiction in what is at times a radical normative project in international human rights law is revealed. With the unintended consequences of human rights lawyering made visible, this work turns to the means through which the advocate can launch a potentially transformative ‘legal’ strategy. An exploration of two seminal modes of reconciliation follows: reconciling the use of international human rights law with a commitment to social transformation and reconciling the post-capitalist politics of progressive lawyers with their use of the law.

Chapter 5: Consultation with Indigenous Peoples in International Human Rights Law

The Requirement of Consultation with Indigenous Peoples in the ILO ◽

10.1163/9789004356016_007 ◽

2017 ◽

pp. 147-189

Keyword(s):

Human Rights ◽

Indigenous Peoples ◽

Human Rights Law ◽

Land, Development, and Indigenous Rights in Suriname: The Role of International Human Rights Law

Caribbean Land and Development Revisited ◽

10.1057/9780230605046_6 ◽

2007 ◽

pp. 69-80

Author(s):

Ellen-Rose Kambel

Keyword(s):

Human Rights ◽

Land Development ◽

Indigenous Rights ◽

Human Rights Law ◽

21. Indigenous peoples’ and minority rights

10.1093/he/9780198805212.003.0021 ◽

2017 ◽

Author(s):

Rhona K. M. Smith

Keyword(s):

Human Rights ◽

Indigenous Peoples ◽

Minority Rights ◽

Political Rights ◽

Minority Status ◽

Human Rights Law ◽

Minority Protection ◽

This chapter examines the scope and application of indigenous peoples’ rights and minority rights in international human rights law. It discusses the recognition of the need for minority protection in the drafting of the International Bill of Human Rights; analyses the provisions of Art 27 of the International Covenant on Civil and Political Rights; and describes tests employed to determine minority status. The chapter also considers developments in the protection of minority rights in Europe. The rights of indigenous peoples are also examined.

Defining ‘People’ and ‘Indigenous People’ in International Human Rights Law and Its Application in Indonesia

International Journal on Minority and Group Rights ◽

10.1163/15718115-02602006 ◽

2019 ◽

Vol 26 (3) ◽

pp. 373-408

Author(s):

M. Ya’kub Aiyub Kadir

Keyword(s):

Human Rights ◽

Natural Resources ◽

International Law ◽

Indigenous People ◽

Indigenous Peoples ◽

Human Rights Law ◽

International Human ◽

The Third World

This article investigates the problem of defining ‘people’ and ‘indigenous people’ under the International Human Rights Covenants and their application in the Indonesian context. Using analyses based on the Third World Approach to International Law (twail), this article shows the problems facing Indonesia in identifying indigenous peoples as traditional peoples, in terms of being isolated peoples (Masyarakat Hukum Adat, hereafter mha), and the non-isolated indigenous peoples who were sovereign before the independence of Indonesia. This interpretation has been confusing in relation to the entitlement to natural resources. Therefore, this article proposes a new understanding of indigenous peoples, in order to arrive at better treatment and recognition and in terms of sharing power and the benefits of natural resources in the Indonesian system.

Resource Nationalism in the Law and Policies of Indonesia: A Contest of State, Foreign Investors, and Indigenous Peoples

Asian Journal of International Law ◽

10.1017/s204425131900002x ◽

2019 ◽

Vol 9 (2) ◽

pp. 298-333

Author(s):

M.Y. Aiyub KADIR ◽

Alexander MURRAY

Keyword(s):

Human Rights ◽

Indigenous Peoples ◽

Legal System ◽

Foreign Investment ◽

Human Rights Law ◽

Foreign Investors ◽

Resource Nationalism ◽

AbstractThis paper examines resource nationalism in the legal system of Indonesia under the interpretation of Articles 33(2), 33(3), and 18B(2) of the 1945 Constitution. It will describe the evolution of the meaning of resource nationalism since independence to the present day, in the context of foreign investment, to investigate the extent to which resource nationalism has benefited indigenous peoples. This paper argues that resource nationalism in the legal system of Indonesia has been driven by state-centric goals and has strayed far away from considerations of the benefits to the indigenous people (Masyarakat Hukum Adat/MHA), so as to dominantly benefit the elites of government and foreign investors. This paper will introduce a new conceptual framework in order to develop an effective argument about resource nationalism using International Human Rights Law.