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41. Romanticization Versus Integration?: Indigenous Justice in Rule of Law Reconstruction and Transitional Justice Discourse

Author:
Padraig McAuliffe
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
There is great optimism in transitional justice literature that indigenous legal processes can capture the meaning of conflict in ways that more remote, state- or international-based processes cannot. However, if the innovations in terms of inclusiveness, gender, and fairness that transitional justice invariably promote when employing indigenous justice processes are to make a long-term, sustainable impact beyond the transitional moment, greater attention must be given to how their employment as a form of transitional justice might interact with the usually simultaneous process of rule of law reconstruction. If transitional justice actors are to interact productively with justice sector reformers and national governments to establish traditional dispute resolution mechanisms in post-conflict States, they will have to abandon some of their more romantic notions evident in the literature and policy documents of indigenous justice as something inherently restorative, as an antidote to the shortcomings of legal formalism or as a site of resistance to the State Leviathan. Enthusiasts for the employment of indigenous mechanisms in transitional justice can learn lessons from the processes of de-romanticization that legal pluralism went through and the experiences of peace building missions in recent decades.
Topic:
International Law
Political Geography:
Europe

42. Protection and Realization of Indigenous Peoples' Land Rights at the National and International Level

Author:
Katja Göcke
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Today, it is generally recognized that the relationship to land forms the basis of an indigenous people's identity, and that indigenous peoples' cultures cannot be preserved without a certain degree of control over land and natural resources. In the course of colonization, however, indigenous peoples lost ownership and control over most of their ancestral lands, and from the end of the 19th century onwards the existence of inherent indigenous land rights, i.e. rights not derived from the colonial powers but rooted solely in the use and ownership of the land by indigenous peoples since time immemorial, had been completely denied. This began to change in the 1960s. Due to increased pressure by national courts and international institutions, state governments started to recognize the continued existence of inherent indigenous land rights and to develop different policies to protect them. This paper looks at how indigenous peoples' land rights are nowadays recognized and protected in the United States of America, Canada, Australia, and New Zealand, and whether the different national approaches are in accordance with international legal standards. It will be shown that none of the States subject to this study acts completely in accordance with its obligations under international law, but that nevertheless all States have some strong points regarding the realization and protection of indigenous land rights and can learn from each other's experiences.
Topic:
International Law
Political Geography:
United States, America, Canada, and Australia

43. A Step Further on Traditional Peoples Human Rights: Unveiling the Key-Factor for the Protection of Communal Property

Author:
Giovana F. Teodoro and Ana Paula N.L. Garcia
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The purpose of this article is to provide a new perspective in relation to the protection of property rights of indigenous and non-indigenous peoples. Through an analysis based on the jurisprudence of the Inter-American Human Rights System, it is possible to identify the core elements that justify the special protection concerning traditional territories, leading to a rationality that revolves around the unique bond that traditional peoples establish with their land. By studying the recent evolution of the debate within the Inter-American Court of Human Rights, the article intends to shift the focus from formal and constricted ethnic classifications to the underlying cultural identity aspects of the relationship between a certain people and its own land. This change of perspective allows the consolidation of a singular idea of property rights towards traditional territories. Aimed not only at indigenous peoples, but also to any community that shows a distinguished and deep cultural tie to its land, this particular property right notion leads to a more comprehensive and consistent protection of indigenous and non-indigenous peoples' fundamental rights.
Topic:
International Law
Political Geography:
United States and America

44. Indigenous Peoples' Rights and the Extractive Industry: Jurisprudence From the Inter-American System of Human Rights

Author:
Efrén C. Olivares Alanis
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The right of indigenous peoples over their lands, territories, and natural resources has been developed in recent years by the Inter-American Court of Human Rights. When this right is in apparent or real conflict with the rights or interests of the extractive industry over these lands or natural resources, resolving the conflict presents complex legal and practical problems. The Inter-American Court has established standards that must be met in order to restrict indigenous peoples' rights over their lands and natural resources, as well as the requirement to conduct transparent consultations in good faith and, when applicable, obtain the free, prior, and informed consent of the affected indigenous peoples before a project can be approved in their territories. This article explores these standards and requirements, and analyzes their application by the Inter-American Court and the Inter-American Commission on Human Rights.
Topic:
International Law
Political Geography:
America

45. Pascua Lama, Human Rights, and Indigenous Peoples: A Chilean Case Through the Lens of International Law

Author:
Gonzalo Aguilar Cavallo
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
In recent decades, experience has shown that private corporations have been increasingly involved in environmental disasters and human rights abuses in all parts of the world. Many of these corporations belong to the energy, metallurgy, extraction, and mining sectors. Pascua Lama is the name of a major mining project on the border of Chile and Argentina. Since the onset of this mining project, civil society organizations have warned of the risk of serious threats to freshwater resources and indigenous rights. This Chilean case illustrates the difficulty of holding corporations accountable for environmental and indigenous rights abuses. The article suggests that interactions between three branches of public international law; namely, international human rights law, international law of indigenous peoples, and international environmental law can be helpful for individuals and communities affected to have access to an effective remedy.
Topic:
Environment
Political Geography:
America

46. "We Will Remain Idle No More": The Shortcomings of Canada's 'Duty to Consult' Indigenous Peoples

Author:
Derek Inman, Stefaan Smis, and Dorothée Cambou
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Bill C-38, Jobs, Growth and Long-term Prosperity Act, and Bill C-45, Jobs and Growth Act, both passed in 2012, contain numerous amendments that could affect established and potential Aboriginal rights across Canada. This unilateral action by the Government of Canada came as a great surprise to many Aboriginal people, who indicated that they were not consulted in advance of the legislation's introduction. However, this then begs the question: What is Canada's 'duty to consult'? What is the content of this 'duty'? Does this 'duty' even exist? If it does, is there a discrepancy between the established 'duty to consult' and the legislative amendments included in Bill C-38 and Bill C-45? The purpose of this article is to attempt to answer all of these questions. To do this, we will begin by examining contemporary Canadian jurisprudence on the issue, including reviewing the relevant case law in order to gain an insight into the procedural substance of the 'duty to consult'. Following this, in an attempt to enrich and deepen the discussion concerning the recent developments in Canada, we will outline the emergence of consultation norms at the international level, and highlight recent jurisprudence that takes into consideration consultation duties at the Inter-American Court of Human Rights. The article will conclude by juxtaposing the emergence of the international and regional norms regarding consultation duties with current events in Canada, in order to confirm the discrepancy between the recent legislative amendments and domestic jurisprudence, international law, international human rights law, and regional human rights law. Our hope is that this article will not only inform readers of current events in Canada but also enrich the current discourse on the participatory rights of indigenous peoples in the context of land and natural resource development.
Topic:
Environment
Political Geography:
America and Canada

47. Rights of Indigenous Peoples and the International Drug Control Regime: The Case of Traditional Coca Leaf Chewing

Author:
Sven Pfeiffer
Publication Date:
11-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article discusses whether there is a normative conflict between the rights of indigenous peoples and the international drug control regime. Treaty obligations to abolish coca leaf chewing might clash with the indigenous peoples' right to practice their customs and traditions in States of the Andean region where indigenous peoples have practiced coca leaf chewing for centuries. Taking into account the manner with which States have addressed this issue, the article focuses on the case of Bolivia and its recent attempt to amend the 1961 Single Convention on Narcotic Drugs. It is argued that the normative conflict can be resolved or at least avoided by applying the methods of treaty interpretation, though only at the expense of indigenous rights. Options to change the international drug control regime to ensure indigenous rights are not only limited by the common interest in preserving its integrity, but also by the negative impact this could have on treaty relations.
Topic:
Government
Political Geography:
America

48. Editorial

Publication Date:
12-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The Crimean crisis represents one of diplomacy's greater challenges in recent history. The demeanor of the parties involved raises numerous questions of international law already extensively commented on in respective blogs. Furthermore, the superpowers' pursuit of evident political and geo-strategical interests exposes yet again what may be perceived as the powerlessness of public international law.

49. Non-Permanent Members of the United Nations Security Council and the Promotion of the International Rule of Law

Author:
Alejandro Rodiles
Publication Date:
12-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Non-permanent members of the United Nations Security Council experience clear and well-known limits. Yet, there are certain tools at their disposal which, beyond lucky political constellations, allow them to exercise a more systemic influence on the Council's work and outcomes. These tools are of a juridical nature, often established and developed through the organ's practice, but their efficient use depends primarily on diplomatic expertise and imagination channeled through informal venues. The present article shows how said tools have been used in the case of the promotion of the 'international rule of law'. However contested the concept and restricted its practical consequences on the organ's functions, the evolution of its promotion within the Security Council is both a demonstration of and a further vehicle for non-permanent members' influence on this body. That this in turn serves to legitimate the Council under its current configuration can be seen critically. However, it seems important to underline that the UN Security Council's efficiency depends ever more on the legitimacy that non-permanent members can best imprint on it. In a non-polar world, this tendency can be expected to increase.
Political Geography:
United Nations

50. "All's Well That Ends Well" or "Much Ado About Nothing"?: A Commentary on the Arms Trade Treaty

Author:
Marlitt Brandes
Publication Date:
12-2013
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
To date no international treaty comprehensively regulates the international trade in conventional arms. In 2012 and 2013, two conferences were convened under the auspices of the United Nations to adopt an 'Arms Trade Treaty' putting an end to this state of affairs. Both failed to reach consensus on the final treaty draft before them. Nevertheless, on 2 April 2013, the UN General Assembly adopted the final draft submitted by the President of the second conference and the Arms Trade Treaty (ATT) is now open for signature and will enter into force after its fiftieth ratification. This article analyzes the legal value of the provisions enshrined in the ATT by concentrating on its scope, substantive obligations, and implementation. It concludes that while much criticism is in order with regard to ambiguous language and potential loopholes in the treaty, it still represents progress as it will provide for written obligations which States Parties must follow when deciding on arms transfer authorizations. Whether the treaty will actually help victims of violations of international human rights and humanitarian law on the ground, however, depends on its ratification by major supplier States and on how far States Parties will be willing to go when implementing and enforcing its provisions.