Alfredsson, Gudmundur. "International Law, International Organizations and Indigenous Peoples." (1982), 36 Journal of International Affairs 113.
The author analyzes the remedies and avenues for redress available in international law and organizations for human rights violations against indigenous peoples. He also examines specific provisions in the Charter of the United Nations relating to the domestic jurisdiction rule and argues that most states could not successfully invoke this rule because, as parties to international agreements, they have consented to the competence of others to discuss state performance in areas covered by the agreements.
The author also examines the principle of the right to self-determination and puts forth five possible meanings and potential beneficiaries. He concludes that most indigenous peoples are excluded from the exercise of external self-determination partly because of the territorial and sovereignty arguments advanced by metropolitan states. He asserts, however, that this does not mean that internal self-determination does not apply.
American Indian Law Centre. "Special Issue." (1974), 7 American Indian Law Newsletter 11.
This is a special issue devoted to the Study of the Problem of Discrimination Against Indigenous Populations conducted by the Sub-Commission on Prevention of Discrimination and Protection of Minorities. The questionnaire submitted to the member nations as part of the study, the response of the United States to the questionnaire, and some preliminary comments directed to the United States' response by the American Indian Law Centre are reprinted.Anderson, Ellen. "The Saskatchewan Indians and Canada's New Constitution." (1982), 36 Journal of International Affairs 125.
The United States government is criticized for not submitting an accurate picture of the situation of American Indians, particularly with regard to the process of federal recognition of an Indian tribe. Critics of the United States' response put forth three basic policy problems which should have been addressed:
(1) problem of federal recognition of Indian tribes;
(2) the potential of the 1968 Indian Civil Rights Act for removing essential membership and voting questions from tribal control; and
(3) the federal policy goal of enforced expatriation.
The author views the international legal status of Indian peoples of Saskatchewan from three political perspectives - that of a people, that of an indigenous group, and that of a minority - and discusses the rights that inure in each of those categories. She asserts that Indians of Saskatchewan have three fundamental rights in international law - a right to a physical existence, a right to self-determination and a right to use their own natural resources - and discusses the sources of these rights. The author also states that the Indian people of Saskatchewan have a claim to statehood under the criteria in article 1 of the Montevideo Convention of 1933: a permanent population, a defined territory, a government, and the capacity to enter into relations with other states. The author also considers arguments which deny that treaties between Indians and Canada are agreements in the international law sense. In turn the author discusses the incorrectness of these arguments based upon international treaty law principles.
The author also draws some interesting parallels to the situations of Biafra and Bangladesh in the context of the importance of political recognition by other states in the exercise of self-determination.
Andress, J.L., and Falkowski, J.E. "Self-Determination: Indians and the United Nations - The Anomalous Status of America's 'Domestic Dependent Nations'." (1980), 8 American Indian Law Review 97.
A short, but well-researched article analyzing the United States government's record of acting as a "trustee" to native Americans. The failures of the domestic trust system are pointed out. Two alternatives are provided in the form of the UN trusteeship system (as outlined in articles 75-91 of the UN Charter) and the non-self-governing territory provisions (as found in articles 73-74). The authors urge aboriginal peoples to work towards an international trust under the UN system which remedies the failures inherent in the domestic trust, such as lack of accountability and lack of self-government. The authors refer to many sources that are helpful for further study.
Barsh, Russel L. "Indigenous North America and Contemporary International Law." (1983), 62 Oregon Law Review 73.
The author traces early attempts to form an international consensus on the status of indigenous peoples at the 1884-1885 Berlin Africa Conference and the 1889-1890 Brussels Conference. He discusses the early development of the right to self-determination during the League of Nations era. An analysis of international case law reveals that indigenous peoples have been denied a separate international personality and rights as original proprietors to their lands. The author notes that there are two biases that have most significantly impeded self-determination for indigenous peoples: (1) the "Blue Water" thesis which defines as colonies only those non-self-governing territories separated geographically from the administering state, and (2) the presumption that in encircled territories all indigenous peoples will inevitably assimilate into "modern society".
As agent for the Grand Council of the Mikmaq Nation, he discusses their communication to the United Nations Human Rights Committee under the Optional Protocol which claims that administering states must show how and when they lawfully annexed or assumed control over a group. If no lawful incorporation can be shown, it is to be assumed that the group is a separate people that has yet to exercise its right of self-determination.
Barsh, Russel L., and Henderson, James Youngblood. "Aboriginal Rights, Treaty Rights and Human Rights: Indian Tribes and Constitutional Renewal." (1982), 17 Journal of Canadian Studies 55.
The authors examine the international agreements to which Canada is a party and expose Canada's treatment of native peoples as a betrayal of those agreements. The right to self-determination of indigenous peoples is consistent with the evolution of freely associated states within the British Empire. Attempts by the federal Liberal administration to solve past injustices by way of economic compensation are exposed as a simplistic "band-aid" solution which entirely misses the point of the claims of native peoples.
Bayefsky, A.F. "The Human Rights Committee and the Case of Sandra Lovelace." (1982), 20 Canadian Yearbook of International Law 244.
The author gives a good summary of the background of the Lovelace case. The procedural hurdles are examined as well as the reply by the Canadian government to the United Nations Human Rights Committee. A short critique of the committee's decision is offered. The author suggests that there was not only a violation of article 27 of the International Covenant on Civil and Political Rights but a violation of article 2(1) as well. The lack of response by the Canadian government after the decision was made and the poor media coverage of the decision is strongly criticized. A good history and analysis of this important decision.
Bennett, Gordon. Aboriginal Rights in International Law. London: Royal Anthropological Institute in association with Survival International, 1978.
The author traces the history of aboriginal peoples in the context of International law. Important case law at both the domestic level and international level is discussed and its impact on aboriginal peoples is analyzed. Particular attention is paid to the doctrine of guardianship as it was developed by Spanish jurists and applied by the English as they came into contact with the new world. The author briefly discusses the chapter of the United Nations Charter dealing with the Declaration Regarding Non-Self-Governing Territories.
A substantial part of the book deals with International Labour Organization Convention 107 - concerning the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries. The author also examines Recommendation 104 from the same organization. The scope of the Convention is outlined as the author discusses each of the important provisions and how they would apply to domestic situations if countries like Canada were to ratify the Convention.
Another chapter is directed at the International Bill of Human Rights as well as the International Convention on the Elimination of all Forms of Racial Discrimination.
Appendices include ILO Convention 107, Recommendation 104 and the Declaration of Principles for the Defense of the Indigenous Nations and Peoples of the Western Hemisphere.
Bennett, Gordon. "Aboriginal Title in the Common Law: A Stony Path Through Feudal Doctrine." (1978), 27 Buffalo Law Review 617.
This article traces the issue of aboriginal title through several commonwealth jurisdictions. The author concludes that courts have still not settled the issue whether aboriginal title is to be based on immemorial possession or on official recognition. Reviews of recent superior court judgments in Australia, New Zealand, Canada and England are cited. The author urges jurisdictions which have yet to deal with the question to follow the "logical basis" of the native claim based on immemorial possession.
Bennett, Gordon. "The Developing Law of Aboriginal Rights." (1979), 22 I.C.J. The Review 37.
The author analyzes briefly three important cases dealing with aboriginal rights. The 1971 case of Milirrpum v.Nabalco in Australia, the Calder (1973) case in Canada and Tito v. Waddell (1977) in Britian. Concluding that aboriginal peoples have in the past few years lost their cases in municipal courts, Bennett looks to recent developments in international law. Encouraged by the decision in the Western Sahara case, Bennett looks for positive results if the doctrine of that case is adhered to or expanded. The UN contribution is analyzed and the author points out the many weaknesses of the Human Rights Covenants in application to indigenous peoples. The ILO Convention is analyzed briefly and praised as a good basis for aboriginal rights although it fails in enforcement and application mechanisms. Aboriginal rights are becoming increasingly threatened and the author calls on international and regional human rights organizations to pick up where the ILO and international case law have left off.
Bennett, Gordon. "The I.L.O. Convention on Indigenous and Tribal Populations - The Resolution of a Problem of Vires." (1972-1973), 46 British Yearbook of International Law 382.
The issue of jurisdictional competence for issues covered by the ILO Convention on Indigenous and Tribal Populations of 1957 is discussed along with a brief analysis of the text of the Convention. Each of the three arguments which make up the attack against the ILO Convention is dealt with. In response to the criticism that the ILO constitution does not give it the mandate for the Convention, the author concludes that the issue of indigenous and tribal populations is one which needs to be dealt with comprehensively in an all-encompassing document like the Convention of 1957. To the argument that the ILO Convention encroaches upon domestic jurisdiction, the author responds that none of the countries involved in drafting the convention raised the issue. Also section 28 of the Convention provides for a liberal application, taking into account the characteristics of each country. With regard to the objection that the ILO is competing with the jurisdiction of other international specialized agencies the author cites widespread agreement and recognition of the need for a single instrument covering all aspects of the problems of indigenous populations.
Berman, H.R. "The Concept of Aboriginal Rights in the Early Legal History of the United States." (1978), 27 Buffalo Law Review 637.
The author notes the recent interest being given in international circles to the concept of aboriginal rights. Thus he seeks to analyze the American approach to aboriginal rights as a resource for further research in an international and comparative study. Several important American cases dealing with aboriginal issues are surveyed and special attention is given to the jurisprudence developed in this area by the Marshall court.
Bissonnette, Alain. "Le Tribunal Russell Condamne les Violations des Droits des Indiens d'Amerique." (1982), 5 Canadian Legal Aid Bulletin 181.
The author gives a brief summary of the Fourth Russell Tribunal held on 24-30 November 1980 in Rotterdam. The author discusses the submissions of the Nishnawbe-Aski Nation, Conseil Attikamek-Montagnais and the Dene Nation. The Tribunal was presented with forty-five submissions detailing numerous human rights violations of indigenous peoples. In their final report, the Tribunal condemned various governments, including Canada's, for violations of various international covenants and conventions.
Included in this brief article are the reports of the Legal Commission of the International NGO Conference on Indigenous Peoples and the Land held 15-18 September 1981. These reports cover international and transnational issues, such as self-determination, and the effect of transnational corporations' activities on the resources and land of indigenous peoples.
Bodley, John H. Victims of Progress. California: Mayfield Publishing Co., 1982.
Representing solely an anthropological viewpoint, the author examines the international activities of indigenous groups and non-indigenous support groups. In terms of the latter, the author discusses their approaches to support activity. The appendices include names and addresses of periodicals published by indigenous peoples and non-indigenous support groups.
Brownlie, Ian. "Considerations of Public International Law Concerning the Rights of the Dene and Inuit as the Indigenous Peoples of the Northwest Territories of Canada." An opinion presented to the MacKenzie Valley Pipeline Inquiry, 17 September 1976. Public Archives of Canada, Record Group 126, vol.43.
The author presents an opinion of the principal points of customary or general international law bearing upon the MacKenzie Valley Pipeline and its effect on the Inuit and Dene peoples of Canada's north. Brownlie, a well-known international law publicist from Britain, deals with article 27 of the International Covenant on Civil and Political Rights and states that it applies to Canada and that it forbids any substantial infringement of the right of a people to enjoy its culture. The author also cites principles of customary international law which forbid racial discrimination, which allow for the principle of self-determination, and forbid the use of compulsion of a people which amounts to deportation. A very clearly written opinion and a good account of how principles of international law may be applied to an aboriginal rights issue.
Cassese, Antonio. "The Self-Determination of Peoples." In The International Bill of Rights: The Covenant on Civil and Political Rights, p.92. Edited by Louis Henkin. New York: Columbia University Press, 1981.
A well-researched and clearly written introduction to article 1 of the Covenant on Civil and Political Rights which guarantees to "peoples" the right to self-determination. "Peoples" are distinguished from "minorities" and the content of the right is discussed. Internal versus external self-determination is examined as well as ways to implement the right. The author concludes that the right to self-determination has become a pre-emptory norm of international law (jus cogens) and therefore any derogation of the right by nations is forbidden. A good introduction to the mechanics of the UN system in arriving at the principle and its enforcement in the community of nations.
Claude, I.L. National Minorities: An International Problem. New York: Greenwood Press, 1973.
A reprint of the 1955 Howard Press edition. A source book on the problem of national minorities in the inter-war period and under the United Nations system.
Claydon, J. "The Application of International Human Rights Law by Canadian Courts." (1981), 30 Buffalo Law Review 727.
Originally a paper presented to the Canadian Council on International Law in 1981, the author reviews the history of Canadian courts in utilizing international human rights law. There are few cases which used international human rights law. Those that did, often involved a misunderstanding of international law and misapplication of the appropriate principles. Recent American case law is examined and the author notes a trend in the United States to use more international law in this area, a trend Canada should be pursuing. Special reference is made to the jurisprudence of the European Court of Human Rights and its application in Canada since the Canadian Charter of Rights and Freedoms has come into effect. A good resource for those seeking to persuade Canadian courts to rely on international human rights law on behalf of aboriginal peoples.
Clinebell, John Howard, and Thomson, Jim. "Sovereignty and Self-Determination: The Rights of Native Americans under International Law." (1978), 27 Buffalo Law Review 669.
The authors outline the American native situation in light of international law, specifically centering on the rights of natives to sovereignty as Indian nations and their right to self-determination. The American violations of native rights are described in detail. A strong analysis of international law in this area and how the American government has failed to live up to the standard of international law. Very applicable to the Canadian situation as well.
Cohen, B., and Bayefsky, A.F. "The Canadian Charter of Rights and Freedoms and Public International Law." (1983), 61 Canadian Bar Review 265.
The significance of the Canadian Charter of Rights and Freedoms in light of public international law is discussed by Mr. Cohen, Judge ad hoc of the International Court of Justice. Specific mention is made of the twenty-three principal international conventions on human rights which Canada has ratified and how the Charter may be upheld in Canadian courts in light of those conventions. The Charter is also examined in light of the European Convention on Human Rights. The article includes a good analysis of the way in which Canadian courts are likely to incorporate conventional and customary international law especially in the human rights area. A brief discussion of "individual" and "collective" rights is included in the conclusion and the author suggests the coming debate in aboriginal rights may influence the main direction of the Charter.
A good primer in the area of international human rights law as it applies to Canadian jurisprudence, the article provides guidance in applying international human rights law to aboriginal peoples' claims in Canada.
Cohen, F.S. "Original Indian Title." (1947), 32 Minnesota Law Review 28.
The author seeks to clarify some misconceptions regarding the way in which the United States government acquired its territory. The method the government used in acquiring land was to purchase it directly from the Indians. This method was a result of the jurisprudential thinking of Spanish writers such as Vitoria. Important cases in United States history dealing with Indian land claims are analyzed and errors in judicial decisions are readily recognized as straying from the original policy adopted by the United States.
Cohen, F.S. "The Spanish Origin of Indian Rights in the Law of the United States." (1942), 31 Georgetown Law Journal 1.
The author argues that the jurisprudential thinkers of Spain, especially Francisco de Vitoria, greatly influenced American Indian policy. He urges other nations, in dealing with diverse cultural groups, to adopt the "humane legal ideals" first articulated by Spanish thinkers, but not always applied in America.
Coulter, R.T. The Evolution of International Human Rights Standards: Implications for Indigenous Populations. Washington, D.C.: Indian Law Resource Centre, 1984.
The author examines and describes the processes by which human rights standards are developed and eventually adopted. This examination includes discussion of the efforts of the Working Group on Indigenous Populations in the development of standards to protect the rights of indigenous peoples. The question of self-determination of indigenous peoples is recognized as a controversial issue. The author states that the concept of indigenous self-determination is very different from what UN members have traditionally accepted as a concept of self-determination. In developing new standards, the author proposes a declaration of principles dealing with the question of discrimination against indigenous populations but not the issue of self-determination. This strategy of separating issues which can be acted on quickly, from other more complex issues, has proven successful in developing other human rights standards, for example, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Beliefs. As the world community becomes receptive to the issue of indigenous self-determination, another declaration dealing with the issue of self-determination and other matters not covered by the declaration on discrimination can be proposed.
Cumming, P.A. Materials on Native Rights. Toronto: Osgoode Hall Law School, 1976.
This material was compiled for use as an in-house case book on native rights. One chapter deals specifically with international law and native rights in Canada. This chapter pays particular attention to ILO Convention 107 and how Canada's record would measure up if the Convention was ratified by Canada. Overall, the paper is quite general and somewhat dated but it does contain some references to some not too well known sources. Reference is made to the Annual Report of the Inter-American Commission on Human Rights which recognizes the need for special protection of indigenous populations. The author also includes part of the text and a short discussion of the Declaration of the Rights of the American Indian a document ratified by members of the Third Inter-American Indian Conference in Bolivia in 1954.
Davies, Maureen. "Aboriginal Rights in International Law: Human Rights." In Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada, p.745. Edited by Bradford W. Morse. Ottawa: Carleton University Press, 1985.
A good introductory essay on aspects of public international law that relate to indigenous peoples. The essay considers the UN instruments on human rights, the ILO Convention 107 and the Inter-American system. Recent activities in the development of standards concerning the rights of indigenous peoples are mentioned. The author puts forth several areas of concern which could form the basis for standard setting. Amongst these are the right to self-determination. The author examines existing international instruments on the right to self-determination. She claims that none of these instruments gives direction on who are "peoples" entitled to the right to self-determination and whether it applies solely to external situations.
The author discusses the Helsinki Final Act and concludes that it provides an important re-interpretation of the right to self-determination. The author suggests that this right applies internally, although this interpretation is not accepted universally.
Davies, Maureen. "Aspects of Aboriginal Rights in International Law." In Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada, p.l6. Edited by Bradford W. Morse. Ottawa: Carleton University Press, 1985.
The author discusses the historical roots of aboriginal rights in international law beginning with the work of the Spanish theologian, Francisco de Vitoria. She discusses the relationship of protection and concludes that Indian nations did not lose their sovereignty when they sought protection under the British Crown. Specific mention is made of article 1 of the Montevideo Convention of 1933 and of the ways in which some indigenous peoples qualify as sovereign independent states.
The author discusses various international doctrines advanced to legitimize European acquisition of Indian lands. She concludes that an incorrect interpretation and application of these doctrines by the European powers and their courts had resulted in inadequate protection of indigenous rights in international law. The author provides a cursory analysis of international judicial decisions and concludes that, since European powers control the direction of this law, it is not surprising that aboriginal peoples have not found adequate representation and protection at this level.
de Nova, R. "International Protection of National Minorities and Human Rights." (1965), 11 Howard Law Journal 275.
The author analyzes the protection of national minorities under the League of Nations. He responds to certain claims that minority-group rights have gone by the way since World War II. He recognizes that the theme may have lost some emphasis under the United Nations which it had under the League, but he cites examples of bilateral and multilateral treaties between states since World War II that include minority group rights. the emphasis on individual rights can co-exist with minority group rights in the United Nations, according to the author, but a more effective mechanism for minority rights is needed. the recent world-wide attention focused on the Covenant on Civil and Political Rights and Covenant on Economic, Social and Cultural Rights would appear to be partially the remedy de Nova was looking for.
Dinstein, Y. "Collective Human Rights of Peoples and Minorities." (1976), 25 International and Comparative Law Quarterly 102.
The author clearly analyzes three collective human rights of peoples. These rights are the right to physical existence, to self-determination and to utilize natural resources. The rights of minorities are distinguished from the rights of peoples and the author provides an indepth analysis of minority rights in Europe under the League of Nations as well as the various provisions protecting minorities in different peace treaties. The rights of minorities to physical existence and to preserve a separate identity are examined and the author decries the violation of these rights world-wide, especially with regard to Soviet Jews.
Emerson, R. "Self-Determination." (1971), 65 American Journal of International Law 459.
The author discusses three questions:
(1) What is the status of the principle or the right of self-determination under international law?
(2) Who can legitimately claim to exercise the right; when and under what circumstances?
(3) What are the rights and obligations of other states and international organizations in relation to the right of self-determination?
The author suggests there must be other ways to look at protecting the rights of minorities, as he feels self-determination will not solve their problems. Although the principle of self-determination has matured much since this article was written it provides good general discussion of the topic.
Ericson, R., and Snow, R. "The Indian Battle for Self-Determination." (1970), 58 California Law Review 445.
The paper deals with the long struggle for Indian self-determination in the United States. Special attention is given to the federal power over Indians and the history of congressional legislation based on competing policies of separation and assimilation. The authors are critical of the federal government's vacillating policies and basic lack of direction with regard to Indian claims through the years. The authors concede that the courts have been much more consistent in dealing with Indian issues and have clearly dealt with the problem of the status of the tribe, using the theory of tribal sovereignty. The conclusion, and solution to the problem according to the authors, is for the United States Congress to take responsibility and clearly define national goals regarding the status of Indians. With a clear national goal in mind, the United States Supreme Court can then confront the four basic problems which are emerging, namely, federal-Indian conflicts of interest, state-Indian conflicts, federal-state conflicts, and individual Indian-tribal government conflicts.
Falk, Richard A. "Testimony Given at the MacKenzie Valley Pipeline Inquiry." Public Archives of Canada, Record Group 126, vol.65.
Professor Falk addresses the relevance of international law to the Dene objection against the pipeline. The objection is based on the grounds that its construction threatens the survival of the Dene. Falk discusses the Dene claim to the right of self-determination which includes the right to determine development in accordance with their views and the values of their culture. In discussing these claims, he addresses three basic questions:Fischer, H. "Human Rights Covenants and Canadian Law." (1977), 15 Canadian Yearbook of International Law 42.
(1) whether self-determination is properly a legal norm, as distinct from a moral or political one;
(2) if this is a legal norm, can it be invoked by the Dene people and applied to this kind of dispute; and,
(3) is it appropriate for a Canadian institution to resort to international law in order to make an assessment of a conflict of this kind.
The author provides a good overview of the International Bill of Human Rights which includes the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights, and the Optional Protocol to the International Convention on Civil and Political Rights. The scope of these covenants is discussed, as well as Canada's domestic legislation in light of the covenants. Shortcomings in Canada's laws are discussed and suggestions for reform are made. Reference to Canada's treatment of Indian peoples is briefly made and the way in which Canada's practice fails to meet international standards is emphasized. A good introductory essay on the topic of the International Bill of Human Rights.
Fourth Russell Tribunal. Report on the Fourth Russell Tribunal on the Rights of the Indians of the Americas. 30 November 1980. Testimony in Rotterdam, Netherlands of alleged violations of the rights of Indians of America.
This is a report of fourteen out of forty-five cases presented to the Tribunal alleging violations of the rights of Indian peoples in the Americas. The charges range from the illegal taking of land and resources to violation of the right to self-determination and incidences of brutal repression. The accused are national governments, national and multi-national corporations, and religious organizations. The Tribunal found various governments in violation of international covenants and conventions. The report also includes a list of recommendations which call for good faith negotiations in areas of dispute, prohibition of all repressive acts, and an end to the gross and continuous violations of human rights recognized under international law.
Franck, Thomas M., and Hoffman, Paul. "The Right to Self-Determination in Very Small Places." (1975), 8 New York University Journal of International Law and Politics 331.
The authors discuss the decolonization process under the trusteeship system, and the development of the concept of self-determination for non-self-governing territories not covered by the trusteeship system contained in the Declaration on the Granting of Independence to Colonial Countries and Peoples. The authors take the view that the momentum for decolonization by-passed some of the smallest countries which form the "flotsam and Jetsam of empire". According to the authors, these smaller countries are the last to be decolonized because small territories either do not want to be on their own or have not reached a stage of development sufficient to make the choice. as well, they point out that small, weak territories are actively coveted by stronger more powerful neighbors which assert claims based on geography, history and/or ethnic affinity.
Friedlander, R.A. "Proposed Criteria for Testing the Validity of Self-Determination as it Applies to Disaffected Minorities." (1977), 25 Chitty's Law Journal 335.
The author first of all defines "self-determination" as a concept which "implies the freedom of dissident people to establish on its own initiative a viable, independent national entity and whatever political and social structures it chooses for the preservation of that entity". Definitions of "people" and "nation" are also given. The author deplores the way in which violence and other illegal means are used to achieve self-determination. He calls for an international legal system which, as a unified system of achieving self-determination for peoples, has specific criteria that effectively resolve conflict.
Galey, M.E. "Indigenous Peoples, International Consciousness Raising and the Development of International Law on Human Rights." (1975), 8 Revue des Droits de L'homme 21.
The author praises the United Nations and its member states for the work they have done to develop the international law of human rights. However, at the same time the United Nations has failed to address the very important issue of the rights of indigenous peoples. According to the author this serious omission is the result of the assimilationist policies of UN member states. The work of the International Labour Organization is significant but does not go far enough and the author urges the United Nations to develop international instruments to protect indigenous peoples.
Green, Leslie C. "Aboriginal Peoples, International Law and the Canadian Charter of Rights and Freedoms." (1983), 61 Canadian Bar Review 339.
In the author's view of international law "aboriginal peoples" have in effect no recognized status. They enjoy special status as "communities" and enjoy all the basic rights and fundamental freedoms of Canadian citizens. The vulnerability of what appear to be "special status" rights enjoyed by native people in Canada is shown by listing examples of how international agreements to which Canada is a party may override rights enshrined in the Charter. In forming his conclusions, the author does not take into account the recently developing international law in the area of aboriginal rights.
Green, Leslie C. "Aboriginal Rights or Vested Rights?" (1974), 22 Chitty's Law Journal 219.
The author argues that the term "aboriginal rights" has never been used in international law or domestic Canadian law as a term of art. Rather the term "vested rights" has been used in both the domestic and international jurisdictions and is a recognized principle. The author encourages natives to argue on the basis of vested rights, even though they can be abrogated or abridged by the Crown in any way it chooses.
Green, Leslie C. "Canada's Indians: Federal Policy, International and Constitutional Law." (1970), 4 Ottawa Law Review 101.
This paper is a background study on the issues concerning Indian people undertaken by the author at the request of the Alberta government. The author studies the history of the treatment of minorities in international law. The legal status of Indian treaties is discussed and the author dismisses the claim that the treaties can be categorized as treaties in the international sense. They are simply binding legal obligations which cannot be unilaterally changed. The problem of federal-provincial relations is discussed and the author concludes with an exhortation that the federal government proceed in dealing with native groups by acting in good faith and seeking to achieve full agreement of the provinces in major discussions with natives.
Green, Leslie C. "The Canadian Bill of Rights, Indian Rights and the United Nations." (1974), 22 Chitty's Law Journal 22.
The author gives a historical review of United Nations human rights work. He also analyzes the Canadian Bill of Rights in detail and describes how Canadian law would have to change to accord with international human rights law. The author gives a weak interpretation of Canadian Indian treaties and suggests an amendment to the Bill of Rights enshrining native rights conferred by treaties and the Indian Act.
Green, Leslie C. "Human Rights and Canada's Indians." (1971), 1 Israel Yearbook on Human Rights 156.
The author analyzes the "aboriginal" or "Indian" title of Canada's natives and concludes that the Royal Proclamation of 1763 merely conferred rights. Treaty Indians cannot enforce their treaties in the international sense. Non-treaty Indians are virtually unprotected. The author provides good analysis of American-Indian case law. Examination of the international covenants on human rights is also included, with some discussion as to how they may apply to the Canadian Indian. The author's conclusions are limited as the paper was written prior to the Supreme Court of Canada's decision in Calder (1973).
Green, Leslie C. "Legal Significance of Treaties Affecting Canada's Indians." (1972), 1 Anglo-American Law Review 119.
The question of Canadian Indian treaties is discussed in light of international treaty law. Decisions of the World Court, international arbitrations, publicists and domestic court decisions are examined and the author concludes that Canadian Indians could not enforce their rights under the treaties in an international forum. Canadian Indians must look to tribunals to enforce treaty rights and anything positive for them would depend on good faith of the Crown and on equitable interpretation of the courts. The author suggests that Canadian natives form a pressure group and make representations to the United Nations General Assembly which is now tending to show more concern for peoples' rights than in the past.
Green, Leslie C. "North America's Indians and the Trusteeship Concept." (1975), 4 Anglo-American Law Review 137.
The author argues that the government of Canada did not have a trust relationship with the Indian populations. The only relationship which exists between the government and the Indians is that created via the Indian Act which, like any other statute, can be repealed at any time. Any special relationship would end with the repeal of the act. Thus, the author argues that there is no trust, ward of guardian relationship between the Canadian government and the Indians.
Likewise the author argues that no trusteeship arose in the international sphere which could apply to aboriginal peoples in the United States and Canada. the mandate system under the League of Nations did not apply to the colonial territories of the League members and therefore no to North American Indians.
The author also asserts that no special protection for the rights of North American Indians can be found in the work of the United Nations in the fields of minorities, racial discrimination and self-determination.
Green, Leslie C. "Protection of Minorities in the League of Nations and the United Nations." In Human Rights, Federalism and Minorities, p.180. Edited by Allan Gotlieb. Toronto: Canadian Institute of International Affairs, 1970.
The author analyzes the history of minority protection, especially in Europe from the time of the Reformation up to the present century. Particular attention is paid to various peace treaties which were utilized to protect different national, cultural and linguistic minorities in various states. The author comments on the failure of the League of Nations to adequately protect minorities. The decisions of the PCIJ are examined and found to show a better record of protection of minorities than does the League of Nations. The UN mechanism is discussed, and the author is hopeful that it will be more effective than the League, despite the anti-colonial backlash in the United Nations.
Green, Leslie C. "Tribal Rights and Equal Rights." (1974), 22 Chitty's Law Journal 97.
The author analyzes in a comparative vein (using PCIJ decisions and decisions from the courts in the United States, India and Australia) the problems in trying to apply the concept of "equality" when the concept conflicts with tribal and societal norms. He examines the Supreme Court of Canada decision in Lavell (1973) and the problems which arise from that case. He discusses the problems which arise when "individual" rights conflict with "group" rights but does not come to any general conclusion.
Heinz, Wolfgang. "International: Human Rights and Indigenous Populations." International Work Group for Indigenous Affairs Newsletter, no.42 (June 1985), p.50.
This is a shortened version of a broader text penned by the author. It examines the efforts of scholars and international organizations to define the term "minority". To date there has been no generally accepted definition of minority, yet a definition of indigenous populations is called for. The author examines the term "minority" vis-à-vis the term indigenous and finds certain elements common to both. The author also examines other elements, such as geography, history, and ethnicity, which distinguish indigenous peoples from minorities. A working definition is proposed. The author also looks at the historical existence of minorities in Europe, the Americas, Africa, Asia and the Middle East.
Indian Law Resource Centre. Indian Rights - Human Rights: Handbook for Indians on International Human Rights Complaint Procedures. Washington, D.C.: Indian Law Resource Centre, 1984.
This handbook is designed primarily for the layperson who wants to know more about international procedures for protecting human rights. It includes information about international human rights law and the most important human rights complaint procedures. It also contains instructions on how to prepare and file a formal human rights complaint. The appendices include copies of various international instruments for the protection of human rights. Addresses for additional reference material are included as well as those of selected non-governmental organizations and principal international human rights organizations.
Kingsbury, Benedict. "'Indigenous Peoples' and the International Community with Particular Reference to the Right of Self-Determination." Ph.D. dissertation, University of Oxford, 1984.
The author critically examines the definition of indigenous peoples in light of definitions provided for in the ILO Convention 107, the World Council of Indigenous Peoples draft International Covenant on the Rights of Indigenous Peoples, and the Study of the Problem of Discrimination Against Indigenous Populations. The author points out that the latter study concentrates on indigenous peoples in European settler societies but arbitrarily omits indigenous peoples in the Soviet Union, China, Africa, and the Arab States. He attempts to explain these omissions on grounds of history and lack of political will.
In discussing the right of self-determination, the author refers to UN covenants, declarations and reports on self-determination. The author also examines the definition of peoples entitled to the right of self-determination as well as the basis, forms and units of self-determination. The author discusses the doctrine of remedial secession as a right of a distinct ethnic group living in a severable territory and victims of carence de souveraineté. In this context, he discusses the creation of the state of Bangladesh. The author asserts that a number of indigenous peoples can found a claim based on carence de souveraineté.
Kushner, Gilbert. "People Without Power: The Administered Community." In International Human Rights: Contemporary Issues, p.287. Edited by Jack L. Nelson and Vera M. Green. Stanfordville: Human Rights Publishing Group, 1980.
The author takes a comparative look at three different types of "administered" communities in the world. The Israeli Moshuei Olim (or new immigrant village), American Indian reservations, and Japanese American relocation centers. These administered communities share several common characteristics, the most glaring of which is the interest of the administrators to be "doing good" for the people when in fact they are engaged in "the exercise of power in disguise". This suffocating attitude must be lifted and the groups left to govern and administer their own affairs. This is especially true in the case of aboriginal peoples as their own governance is their inherent right.
"Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights." (1985), 7 Human Rights Quarterly 1.
A group of thirty-one experts in international law, convened by the International Commission of Jurists, met in Siracusa, Sicily in 1984 to consider the limitation and derogation provisions of the International Covenant on Civil and Political Rights. In examining the provisions, the participants sought to identify their legitimate objectives, the general principles of interpretation which govern their imposition and application, and some of the main features of the grounds for limitation and derogation. Included as part of this symposium issue are the agreed-upon principles, commentaries on those principles, and the background papers that served as the framework for discussions. The conference lists general interpretative principles relating to the justification of limitations, interpretative principles relating to specific limitation clauses, as well as principles relating to derogation in a public emergency.
Lysyk, K. "Human Rights and the Native Peoples of Canada." (1968), 46 Canadian Bar Review 695.
A brief comment by the author on Canada's treatment of the native population in light of the Universal Declaration of Human Rights. Articles 7, 8, 17 and 25(1) are given special attention. The conclusion is that Canada has failed badly in its treatment of native peoples. The author calls for effective legal remedies recognizing native rights, not merely pleas for charitable treatment. Pre-dates Drybones(1970).
Manuel, George, and Poslums, Michael. The Fourth World: An Indian Reality. Don Mills: Collier-MacMillan Canada, 1974.
A skilled native politician makes a plea for the "Fourth World" which is comprised of all the forgotten aboriginal peoples in the world. Aboriginal peoples have been overlooked as peoples due to the rhetoric of third world politics.
Mendes, Errol P., and Bendin, Pat. "The New Canadian Charter of Rights, International Law and Aboriginal Self-Determination: A Proposal for a New Direction." Paper presented at a seminar on Indian Government, University of Saskatchewan Native Law Centre, Saskatoon, 15 January 1982.
The authors make a strong argument for the right of self-determination for Canadian natives under international legal principles. the evolution of the principle of self-determination is traced and the authors define the principle as it is currently used in international circles. A plan for arguing aboriginal claims to self-determination would apply to both status and non-status Indians as both groups meet the requirements international law demands for a state to enjoy the right of self-determination. the problem of reaching the goal of self-determination will be the refusal of the Canadian judiciary to apply international legal principles to the Canadian context. The authors hint at the fact that lobbying on the international level (i.e. the Indian Association of Alberta taking status as an NGO at the United Nations) combined with domestic political pressure may be the best route to obtain a form of aboriginal state autonomy within the Canadian federation.
National Lawyers Guild Committee on Native American Struggles (CONAS). Rethinking Indian Law. New Haven, Conn.: Advocate Press Inc., 1982.
CONAS has compiled many previously unavailable materials which critically examine contemporary Indian law. Rethinking Indian Law questions the legal doctrines (such as the trust responsibility, congressional plenary power doctrine, conquest and discovery) which have undermined the political and property rights of Indian governments. It challenges these doctrines and argues for the recognition of the right of every Indian nation to freely determine its own political status and to control it own resources. This book examines the limitations of domestic law and explores the potential of international law to protect Indian rights. The book addresses the question whether Indian nationhood has been given up or lost through some legal act or event. A conclusion that Indian sovereignty has never been legally lost, surrendered or terminated, is drawn.
Nettheim, Garth, ed. Human Rights for Aboriginal Peoples in the 1980's. Sydney: Legal Books Pty., 1983.
This is a record of a conference held at the University of New South Wales, 31 October - 1 November 1981. The conference was arranged by the Australian Section of the International Commission of Jurists, the Aboriginal Law Research Unit and the Faculty of Law at the University of New South Wales. The conference considered four areas of concern to aboriginal peoples in Australia:
(1) Australia's international obligations;
(2) land rights implementation;
(3) customary law;
Of particular relevance are the discussions around Australia's legal obligations under ratified international instruments and the activities of the aboriginal groups in the international arena. Much of the discussion is devoted to the ILO Convention 107 and the Supplementary Recommendation 104, and the reluctance of the federal government to enact overriding legislation for the security and protection of aboriginal land rights at the state level.
Nettheim, Garth. "Justice and Indigenous Minorities: A New Province for International and National Law." In Legal Change, Essays in Honour of Julius Stone, p.251. Edited by A.R. Blackshield. Sydney: Scarborough, Ont.: Butterworths, 1983.
The author notes that most human rights conventions are concerned solely with the rights of individuals and not of entire peoples. He discusses the few international instruments that concern the rights of groups, such as the Convention on the Prevention and Punishment for the Crime of Genocide and the Declaration on the Granting of Independence to Colonial Countries and Peoples. Attention is also given to the Torres Strait Islanders petition of August 1979 to the United Nations Special Committee on Decolonization and IL0 Convention 107 in relation to Australia.
Nettheim, Garth. "The Relevance of International Law." In Aborigines and The Law, p.50. Edited by Peter Hanks and Bryan Keon-Cohen. Sydney: George Allen and Unwin, 1984.
The author briefly summarizes international human rights principles and processes and Australia's ratification of human rights conventions. Since the Commonwealth government and the state governments can never agree on matters relating to aborigines, the author examines two recent decisions of the High Court of Australia, Koowasta v. Bjelke-Petersen (1982) and Commonwealth v. Tasmania (Franklin Dam case) (1983) which provide a way for the Commonwealth government to exert jurisdiction under the external-affairs power of its Constitution. The author concludes, on the basis of these two cases, that Australian ratification of international treaties provides a basis for Commonwealth legislative power over a subject which might otherwise be under the jurisdiction of state government. At this point, these decisions will have a limited impact on aboriginal issues since there are no international agreements on aboriginal issues, such as land rights or self-determination. However, the author states this may soon change in light of recent developments in international law.
Nettheim, Garth. Victims of the Law: Black Queenslanders Today. Sydney: George Allen and Unwin, published with the International Commission of Jurists, Australian Section, 1981.
Written as a report of the Australian section of the International Commission of Jurists on laws concerning Aborigines and Torres Strait Islanders in Queensland, the book analyzes various legislative provisions in relation to a number of important international conventions on human rights. The author concludes that Queensland's policy of not transferring certain pastoral leaseholds to aboriginals is in violation of ILO Convention 107; however, this convention has not been ratified by Australia. The author turns to other international covenants and finds that the Queensland government's policy and law are in violation of the International Convention on the Elimination of All Forms of Racial Discrimination, an instrument ratified by Australia. The author also discusses the principle of the right to self-determination for indigenous minorities. He concludes that a claim to self-determination by enclaves of people may not succeed in the international arena. He asserts, however, that the Torres Strait Islanders may have a better prospect for success if the islands are not considered a part of Australia.
New Brunswick Human Rights Commission. Selected Documents in the Matter of Lovelace v. Canada Pursuant to the International Covenant on Civil and Political Rights. September 1981.
The complainant, Sandra Lovelace, submitted a communication to the United Nations Human Rights Committee pursuant to the Optional Protocol to the International Covenant on Civil and Political Rights. The complainant alleged that Canada's Indian Act discriminated on the basis of sex and was thus in violation of the Covenant. The Human Rights Committee found Canada in breach of article 27 of the Covenant.
This is a collection of the pertinent documents relating to the case. It includes Canada's response to the communication as well as supplementary material provided by Sandra Lovelace. The text of the decision of the Human Rights Committee declaring the communication admissible and the final decision adopted by the Human Rights Committee are reproduced. This material is a valuable reference for those who wish to communicate human rights violations under the Optional Protocol.
O'Brien, Sharon-Lynn. "The Application of International Law to the Legal Status of Native Americans." Ph.D. dissertation, University of Oregon, September 1978.
The author examines international legal principles which defined the status of the native inhabitants vis-à-vis the discovering powers. In tracing the development of the doctrine of discovery, the author considers: (1) the legitimacy of papal grants and mere discovery as a means of acquiring title; (2) the necessity to establish possession following discovery; and (3) the legitimacy of conquest for religious conversion as a means of acquiring title. The author also explores the subsequent influence of international law on the position and rights of Indian tribes within the American legal system in the cases of Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832). In analyzing these cases, the author considers the following questions:
(1) Are the Indian nations recognized and dealt with as international sovereigns, or have they been?
(2) States courts correctly applied international law in defining the Indians' position and rights within American law?
(3) Does international law continue to influence the legal status of Indian tribes today?
The author also looks at how United States policies on the American Indian conform to internationally accepted standards on human rights. The author takes the view that American Indians are a special minority within the United States and that they should be given special human rights protection.
Opekokew, Delia. First Nations: Indian Government and the Canadian Confederation. Saskatoon: Federation of Saskatchewan Indians, 1980.
A compilation of essays on the history of native peoples in Canada, the legal status of the treaties that have been signed, as well as a comparison with other aboriginal peoples throughout the world. Chapters on the Indian struggle to survive and the proposal of self-determination of the Indian people are also included. The place of a self-governing Indian nation in the international community is examined in the appendix, as is an Indian treaty handbook. A helpful glossary, bibliography and case digest is also included. Written as a response to the federal government constitutional proposals in 1980.
Opekokew, Delia. The First Nations: Indian Government in the Community of Man. Regina: Federation of Saskatchewan Indians, 1982.
The author presents an analysis of the right self-government and self-determination in international law as it is applicable to indigenous peoples in general and Canadian Indians, in particular. The author decries the way in which indigenous peoples are treated in many parts of the world and maintains that all aboriginal peoples want is to control their own lives. The World Assembly of First Nations is heralded as the forum in which indigenous peoples can unite to achieve self-determination. The appendices include important international documents relating to the issue.
Organization of American States (OAS). Inter-American Commission on Human Rights. Handbook of Existing Rules Pertaining to Human Rights. Washington D.C.: General Secretariat, 1979.
The OAS is a regional organization with its own regional human rights instruments. Canada is not a member of the OAS. This handbook contains a brief history of the formation of the OAS and its adoption of the American Declaration on the Rights and Duties of Man (2 May 1948) and the American Convention on Human Rights (22 November 1969). It also contains a description of the organization and the function and powers of the Inter-American Commission on Human Rights. Regulations of this commission concerning communications, grounds of admissibility, and procedure for handling communications and on-site investigation are included. It also includes a blank copy of a model complaint, instructions on how to fill out a complaint and addresses for filing a complaint.
Paine, R. Dam a River, Damn a People? Copenhagen: International Work Group for Indigenous Affairs, 1982.
A study of the effects of a proposed hydro project in the Alta/Iautakeino district of Norway on the indigenous Saami people's way of life. The finding of the Supreme Court of Norway in deciding the dispute is analyzed. The court refused to consider the international law concerning indigenous peoples in this dispute, and in spite of evidence to the contrary (as outlined in the text), the court concluded the Saami way of life was not threatened by the project. The fact of the matter is that the project would decimate the pastoral priorities of the Saami, as their reindeer herds would be virtually destroyed because of the disruption of their natural processes. The only solution now appears to be a political one. This case study may shed some light on what to avoid and what to expect in similar cases dealing with aboriginal rights.
"The Participation of Ministates in International Affairs." (1968), 62 American Society of International Law Proceedings 155.
A panel examines the role of small states in international affairs and organizations. The problems of mini-states not able to fulfill their obligations under the Charter of the United Nations are discussed. Rather than extending full membership in the United Nations, forms of associated status are proposed. The panel also discusses the creation of an office within the United Nations Secretariat to service non-member mini-states.
Petty, K.E. "Accommodation of Indian Treaty Rights in an International Fishery: An International Problem Begging for an International Solution." (1978-79), 54 Washington Law Review 403.
The author analyzes a difficult problem involving American rights in a transnational situation. The United States government has signed treaties with the Northwest Indians and the Canadian government with respect to the same subject matter, namely the fishing rights in the waters of the Strait of Juan de Fuca and the northern waters of Puget Sound. The author advises a cautious approach by the American government so as not to alienate Canada's co-operation in the joint management of the international fishery. This advice may not be appreciated by American Indians whose treaty rights are being threatened by the wishes of the United States to appease the Canadian government. This is especially true when one realizes that the reason for Canadian obstinance in the affair is that any agreement with the United States which allows for American Indian treaty rights puts pressure on Canada to expressly recognize treaty rights in its own country.
Pomerance, M. "Methods of Self-Determination and the Argument of 'Primitiveness'." (1974), 12 Canadian Yearbook of International Law 38.
The author examines two separate attempts to secure self-determination and the UN response to arguments by the administering power that the people are too primitive to govern themselves. The first case is South West Africa in 1946 and the second is West Irian in Indonesia in 1969. The desire of both territories was to have a formal incorporation into the sovereignty of the administering power. The different response of the United Nations in each case may serve as a helpful guide to aboriginal peoples, giving them some idea of what to expect from the United Nations when the issue of self-determination is finally discussed.
"The Rights of Indigenous Peoples: A Comparative Analysis." (1974), 68 American Society of International Law Proceedings 265.
The proceedings of a symposium held at the 68th annual meeting of the American Society of International Law. Peter A. Cumming delivered a paper on the native situation in Canada and urged the Canadian government to conform to international law standards in dealing with its native people. Papers from experts in the United States and Mexico were also given. A representation from the Division of Human Rights, United Nations Secretariat was given outlining the work of the United Nations in helping indigenous peoples. Comments as to the direction to be taken in the future were made by several international lawyers.
Ryan, Joe. "Compared to Other Nations." (1977), 3 American Indian Journal 2.
This article explores several legal arguments which may influence the United Nations Decolonization Committee to give Indian nations a hearing. It shows that under generally accepted definitions of colonialism, Indian nations remain as colonies today. The author argues that Indian nations are societies which are politically distinct from the United States and that modern laws on self-determination should be applied to them by the Committee. The author proposes that the Decolonization Committee hear Indian nations' claims to self-determination, that it request information from the United States regarding progress towards the realization of self-determination, that it send observers to each Indian nation, and that referendums on the issue of self-determination be held.
Sady, J. The United Nations and Dependent Peoples. Washington, D.C.: The Brookings Institute, 1956.
An examination of the role of the United Nations in dealing with such issues as non-self-governing territories, colonialism, and the trusteeship system. It deals only with events ten years after the creation of the United Nations but gives a good account of the events in that period.
Sanders, Douglas. "The re-emergence of Indigenous Questions in International Law." (1983), 1 Canadian Human Rights Yearbook 3.
An overview of the claims or indigenous peoples in several countries. The history of the claims of indigenous groups along with the response of the international legal machinery is included. The author traces the work of early European publicists in this area and shows how the reality of European contact did not coincide with the thinking of international law publicists. The author concludes with a survey of Canada's record in the treatment of its indigenous peoples and the response of the international community, which is having a minimal effect.
Sanders, Douglas. "The Right of the Aboriginal Peoples of Canada." (1983), 61 Canadian Bar Review 314.
The author gives a brief sketch of the history of aboriginal rights in Canada. He mentions the constitutional provisions for aboriginal peoples in other nations. The author also looks at international developments in the area of human rights which have application to Canada. He undertakes a specific analysis of section 25 of the Canadian Charter of Rights and Freedoms, as well as an analysis of sections 35 and 37 of the Constitution Act, 1982 and makes reference to international developments affecting these sections.
Slattery, Brian. "The Indigenous Peoples of Canada in International Law." Faculty of Law, University of Dar Es Salaam, 1973. (Unpublished paper.)
The author addresses the nature of indigenous land rights in Canada in areas not covered by treaties (although much of the argument affects treaty areas as well). This paper was written shortly after the British Columbia Court of Appeal decision in Calder et al. v. The Attorney General of British Columbia (1970) and the Supreme Court of Canada's hearing of the same case in 1973. Before a proper inquiry into indigenous land rights can be considered, the author asserts, the original international status of indigenous peoples and the modes by which their territories could be acquired must be addressed. In examining these issues, the author surveys late 19th century and early 20th century case law as well as doctrinal writings of distinguished canonists, jurists and theologians of the 13th to early 20th centuries. The author concludes that an indigenous people which possessed a durable political structure exerting some measure of control over an ascertainable territory, and which was not subject to the effective control of another power, held an international status sufficient to merit recognition of territorial sovereignty and of capacity to enter into binding agreements of an international character. Further, he concludes that such territories can only be acquired by a European or other power by universally recognized modes of acquisition applicable to occupied lands, namely prescription, conquest or cession which required the actual reduction of the territory concerned to the power of the new sovereign and the enforcement of its laws.
Snow, A.H. The Question of Aborigines in the Law and Practice of Nations. Northbrook, Ill.: Metro Books, 1972.
A reprint of the 1919 edition which was written by the author in response to a request to "undertake the task of collecting, arranging, and, so far as he may deem necessary, editing, the authorities and documents relating to the subject of 'aboriginies in the law and practice of Nations'." This book served as the basis for the United States' position at the Versailles conference. Includes a new forward by Andrew Freeman.
Sohn, Louis B. "The Rights of Minorities." In The International Bill of Rights: The Covenant on Civil and Political Rights, p.270. Edited by Louis Henkin. New York: Columbia University Press, 1981.
An historical account of the origin of article 27 of the Covenant on Civil and Political Rights. The content of the rights of minorities is discussed and an attempt to define a "minority" is made. Views of several countries on the topic are included as is an explanation of the work of the United Nations in the area since the Covenant was drafted. A final section on the implementation of article 27 is included. A helpful introductory essay on the topic of minority rights in international law.
Special NGO Committee on Human Rights - NGO Sub-Committee on Racism, Racial Discrimination, Apartheid and Decolonization. International NGO Conference on Discrimination Against Indigenous populations in the Americas. Geneva, Switzerland: 20-23 September 1977. (Mimeographed.)
To mark the United Nations Decade for Action to Combat Racism and Racial Discrimination 1973-1982, the NGO Sub-Committee on Racism, Racial Discrimination, Apartheid and Decolonization organized a series of international NGO conferences dealing with different aspects of racism and racial discrimination. This conference is the fourth in this series and the first on discrimination against indigenous peoples. The indigenous participants included representatives of more than sixty nations and peoples. Representatives of more than fifty international NGOs and observers from twenty-seven member states of the United Nations also attended the conference.
This report is a collection of statements and final documents. Three commissions dealt with the legal, economic, and social and cultural aspects of discrimination against indigenous populations and each one of them issued a separate report containing conclusions and recommendations. On the basis of these reports, the conference established a programme of action to be carried out by NGOs in accordance with their mandate and which is included in the Final Resolution of the conference. The conference also adopted a Declaration of Principles for the Defense of Indigenous Nations and Peoples of the Western Hemisphere which is reproduced.
Special NGO Committee on Human Rights - NGO Sub-Committee on Racism, Racial Discrimination, Apartheid and Decolonization. International NGO Conference on Indigenous Peoples and the Land. Geneva, Switzerland: 15-18 September 1981. (Mimeographed.)
This report contains a collection of background documents submitted by indigenous organizations and peoples. A report from the ILO is also included. These reports contain information on four commissions set up for the conference which dealt with:Suter, Keith D. "Respecting Aboriginal Rights: New Incentives." (December 1981), 2 Aboriginal Law Bulletin 1.
(1) land rights of indigenous peoples, international agreements and treaties, land reform and systems of tenure;
(2) indigenous philosophy and the land;
(3) transnational corporations and their effect on the resources and the land of indigenous peoples; and
(4) the impact of the nuclear arms build-up on the land and life of indigenous peoples.
The author takes the view that Australia cannot avoid criticism by the United Nations of its aboriginal policies on the grounds that such matters are only domestic concerns. The author states that Australia's mineral boom will inevitably attract international media attention to the issue of aboriginal rights. The author concludes that Australia must improve its human rights record if it wants to improve its links with third world countries.
Swepston, Lee, and Plant, Roger. "International Standards and the Protection of the Land Rights of Indigenous and Tribal Populations." (1985), 124 International Labour Review 91.
The International Labour Organization is currently envisaging the revision of Convention No.107. This article discusses several areas which may form the basis for further discussion. The authors state that the subjects which should be addressed by new international standards include: (1) ownership and control of land, including its delimitation; (2) the restitution of lands lost; (3) the acquisition of further lands where necessary; (4) rights to sub-soil and other natural resources; (5) removal of indigenous and tribal populations from the lands they occupy; and (6) the transmission of rights of ownership and control.
From their own experience, the authors state that any new standards cannot be spelt out in detail but must be adaptable to varying conditions in different countries. The authors also state that the form and content of new standards will ultimately depend upon whether the organization adopting them intends them to be specific, binding obligations or simply guidelines.
Thomson, J.S. "Federal Indian Policy: A Violation of International Treaty Law." (1977), 4 Western State University Law Review 229.
This article explores the development of American law regarding Indian sovereignty, the basis of congressional power to nullify Indian treaties, subsequent legislation which has shifted responsibility for Indians from the executive to the legislative branch, and certain principles of international law which may apply to Indian nations.
In discussing treaties of Indian nations, the author concludes that they are evidence of a capacity to enter into relations with another sovereign. He also finds that international subject matter such as mutual alliance, extradition and passports. The author is critical of American courts because they have ignored principles of international law in considering these treaties. The author also discusses the doctrine of pacta sunt servanda and its application to Indian treaties. He concludes that United States federal Indian policy was designed and administered in a manner contrary to the doctrine of pacta sunt servanda.
Thornberry, P. "Is There a Phoenix in the Ashes? - International Law and Minority Rights." (1980), 15 Texas International Law Journal 421.
This article posits that international law is less prepared now than it ought to be to deal with a question which so vitally affects international peace. Indeed it is doubtful that international law can be said to recognize a specific minorities problem at all. This relatively recent blind spot has arisen since the fall of the League of Nations.
The ebb and flow of the historical concern of international law with minorities is detailed in this article and the prospects for improving the present regime are considered. A well-researched article, it includes several important references to major works in this area.
Umozurike oji Umozurike. Self-Determination in International Law. Hamden, Conn.: Archon Books, 1972.
The author analyzes the historical development of self-determination and decolonization. He views the decolonization process in two parts: (1) decolonization of colonies and dependent territories, and (2) the application of the principle to peoples in metropolitan states. The author considers the question of what peoples are entitled to self-determination and provides a broad definition of a collection of individuals having a legitimate interest which is primarily political, but may also be economic or cultural. The author claims that minorities possess the right to self-determination and examines arguments advanced which deny them this right. The author posits that self-determination is not an absolute right, its exercise must have due regard to all other principles of international law, such as sovereignty, integrity and fundamental human rights. It must also have regard to the practical situation of a particular group such as economic viability, geographical location and political consequences.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Report of the Working Group on Indigenous Populations on its First Session. (E/CN.4/sub.2/1982/33), 25 August 1982.
This is the report of the first, explorative, session of the Working Group. The Working Group did not want to adopt firm recommendations to the Sub-Commission after its first meeting but highlighted in its report certain recommendations made during the session, including:
(1) the need for broad representation of indigenous peoples in the sessions of the Working Group;
(2) the possibility of establishing a fund to encourage participation of indigenous representatives;
(3) the possibility of holding sessions away from Geneva, in areas with many indigenous people;
(4) the need to consider the application of existing standards with priority to basic rights, including the right to life, and the right to freedom from genocide, torture, and other maltreatment; and
(5) the need to discuss the evolution of further standards on issues raised before the Working Group.
This report also noted a statement entitled "Principles for Guiding the Deliberations of the Working Group" which was supported unanimously by the indigenous groups and NGOs at this session. The annex includes a list of documents submitted to this session.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Report of the Working Group on Indigenous Populations on its Second Session. (E/CN.4/sub.2/1983/22), 23 August 1983.
This second session of the Working Group reviewed developments pertaining to the promotion and protection of human rights and fundamental freedoms of indigenous populations. This review, and others following, will provide the basis for the elaboration of standards concerning indigenous populations.
On the question of the evolution of standards concerning indigenous populations, the following questions were addressed:
(1) What should be the substance or content of the standards to be evolved?
(2) What kind of instruments should be envisaged and what should be the system of supervision?
(3) How should the Working Group deal with the task of evolving standards?
It was recommended that any standards be viewed as evolutionary, not as static concepts. The right to life was considered essential in the elaboration of standards which would be contained in a convention or declaration. As to the procedure to be followed by the Working Group on Indigenous Populations in evolving standards, it could only propose or recommend to parent bodies the adoption of draft principles or declarations. However, the Working Group on Indigenous Populations recommended the appointment of a special rapporteur by the Sub-Commission to follow the sessions and eventually draft a body of principles or an instrument encompassing the relevant standards. The session developed a plan of action from 1984 onwards. For the third session, it was agreed to examine the questions of land and other natural resources and definition of indigenous populations.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Report of the Working Group on Indigenous Populations on its Third Session. (E/CN.4/sub.2/1984/20), 8 August 1984.
As in all other sessions, developments in the areas of right to life, self-determination, and the right to land and other resources were discussed. Several indigenous NGOs stressed the importance of preparing a draft declaration on indigenous rights which could be considered for adoption by the appropriate bodies and which may later form the basis for a multi-lateral treaty or covenant. In proceeding to the drafting of such a declaration, it was recommended that the Working Group address each of the subjects contained in the previously adopted plan of action and begin to develop elements of a declaration as these issues are discussed. In developing these elements it was further recommended that the Working Group should consider the proposals and recommendations contained in the Study of the Problem of Discrimination Against Indigenous Populations and other documents submitted to it.
On the question of definition of indigenous populations there was general agreement that it would be premature for the Working Group to adopt a definition. Similarly on the question of lands and other resources, the drafting of provisions for a declaration was also considered premature at this session.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Preliminary Report. (E/CN.4/sub.2/L.566), 29 June 1972.
This report briefly describes the decision to study the problem of discrimination against indigenous populations. The scope of the study as outlined in Economic and Social Council Resolution 1589(L) 21 May 1977 is as follows:
(1) to make a complete and comprehensive study of the problem of discrimination against indigenous populations, and
(2) to suggest the necessary national and international measures for eliminating such discrimination.
The report also provides a working definition of indigenous populations and examines each of the elements of the definition. The annex contains an outline used for the collection of information which includes a detailed list of all subjects covered in the study.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter I - "Measures Adopted by the United Nations." (E/CN.4/sub.2/476/Add.4), 30 July 1981.
This chapter contains a survey of measures adopted by the United Nations which are relevant to the study. Basic provisions such as the Charter of the United Nations contain no specific mention of indigenous populations but many measures dealing with the protection of minorities apply to them. Other agreements, conventions and recommendations not formulated specifically for indigenous populations apply to them as well. The International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and its Optional Protocol, and the Convention on the Prevention and Punishment of the Crime of Genocide are examples.
The final section of this chapter covers measures adopted in matters relating specifically to indigenous populations. The annex to the chapter contains parts of the Declaration of the World Conference to Combat Racism and Racial Discrimination and a brief note on a seminar on special aspects of combating racism and racial discrimination held in Geneva, 4-20 July 1979.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martinez Cobo. Chapter II - "Action Taken by Specialized Agencies." (E/CN.4/sub.2/1982/2/Add.1), 16 May 1982.
Chapter II deals with the main features of action take by the specialized agencies of the United Nations, including the Food and Agriculture Organization (FAO), the World Food Programme (WFP), the International Labour Organization (ILO), and discusses various conferences held from 1978 to 1981. Activities of the United Nations Education, Scientific and Cultural Organization (UNESCO) and the World Health Organization (WHO) are also discussed.
In addition, there are several annexes to this section of the report. Annex I to the chapter contains a list of ILO conventions, recommendations, special technical meetings, and publications concerning indigenous populations. In Annexes II-III, Convention 107 (Indigenous and Tribal Populations Conventions, 1957) and Recommendation 104 are reproduced. Annexes IV-VI deal with UNESCO declarations (Declaration on Race and Racial Prejudice; Resolution for Implementation of the Declaration on Race and Racial Prejudice, 1978; and, the San Jose Declaration, 1981).
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter II [sic] "Composition of the Population." (E/CN.4/sub.2/476/Add.1), 16 July 1981.
This chapter attempts to determine the composition of the indigenous population as presented in statistics contained in official government censuses and unofficial calculations. The Special Rapporteur notes problems in counting indigenous populations in remote areas, or those who are nomadic. Problems are also encountered when countries make no distinction between ethnic groups in their censuses. This chapter includes tables and information on population trends.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter III - "Action Taken by the Organization of American States." (E/CN.4/sub.2/1982/2/Add.2), 5 May 1982.
Discusses action taken by the Organization of American States (OAS) and refers to the principal documents of the OAS which are pertinent to the study. The chapter contains several provisions of the Charter of the OAS, 1948, as amended by the Protocol of Beunos Aires in 1967, which are of particular relevance to indigenous populations of the American countries. Provisions regarding principles of equality before the law and of non-discrimination contained in the American Declaration on the Rights and Duties of Man, 1948, are reproduced. This chapter also describes measures taken by the organizations of the OAS whose functions are most directly related to indigenous affairs: the Inter-American Commission on Human Rights, the Inter-American Indian Institute and the Inter-American Indian Conferences.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter IV - "Other International Action." (E/CN.4/sub.2/476/Add.5), 17 June 1981.
This chapter examines other international action taken by international indigenous conferences and organizations. The first part of the chapter deals with international conferences of indigenous peoples such as the general assemblies of the World Council of Indigenous Peoples. Brief information is included on other recent conferences such as the First Congress of Indian Movements in South America. An examination of other international conferences dealing with indigenous peoples, such as the International Congress of Americanist (1875-1976) is provided. This chapter also contains information on the international conferences organized in 1977 and 1981 by the Special NGO Committee on Human Rights and the Sub-Committee on Racism, Racial Discrimination, Apartheid and Decolonization. The remainder of the chapter deals with organizations concerned with indigenous peoples, for example, the International Working Group on Indigenous Affairs (IWGIA) and the Indigenous Populations Documentation and Information Centre (DOCIP) in Geneva. The annexes contain copies of resolutions, declaration proposals, recommendations and conclusions made by the conferences and organizations mentioned in the chapter.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter V "Definition of Indigenous Populations." (E/CN.4/sub.2/1982/2/Add.6), 20 June 1982.
The task of establishing a working definition and the main criteria to be used in collecting information is stated in chapter 2 of the preliminary report (29 June 1972). This chapter is a comparative study of all definitions contained in individual country reports.
Each country has approached the issue of definition in its own way. In determining who indigenous people are, several factors were used: ancestry, culture, language, group consciousness, acceptance by the indigenous community, legal definition and status changes. This chapter focuses on each of these factors and examines other factors such as registration or certification formalities for indigenous persons, and rules used by authorities to decide whether or not persons are to be classified as indigenous.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martìnez Cobo. Chapter VII - "Basic Principles." (E/CN.4/sub.2/476/Add.2), 7 July 1981.
Chapter VII covers the basic principles of constitutional law and fundamental laws dealing with indigenous populations. Also included is information concerning the basic legal status given to those populations and measures taken to end discrimination. Some countries have a systematic set of laws applying to indigenous populations. Others have only isolated provisions dealing with specific aspects. Some stress the creation of agencies or other machinery to set up effective services to indigenous populations. The constitutions of some countries do not deal specifically with indigenous populations, while others consider indigenous questions so basic that they must be included. As for basic legal status, many countries consider indigenous populations as having the same rights and obligations as the non-indigenous population. Even so, measures are taken to cater to their special needs, to place them on a more equal footing with other population groups. In some cases, such special measures will be continued only as long as social, economic and cultural conditions prevent indigenous populations from enjoying the benefits to which they are entitled.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter VIII "General Measures for the Prohibition, Prevention and Elimination of Discrimination." (E/CN.4/sub.2/476/Add.3), 26 June 1981.
This chapter outlines general measures in force for prohibiting and eliminating discrimination based on race, colour, belief and ethnic or national origin. It also outlines specific measures aimed at prohibiting, preventing or eliminating discriminatory acts and practices. Little information is available on measures to eliminate barriers between indigenous and non-indigenous segments of the population. The Special Rapporteur notes that discrimination occurs in all countries even when equality has been proclaimed in law. The chapter also discusses measures undertaken by some governments in fulfilling their obligations under various international covenants and conventions. It also includes a brief section on the ratification of various relevant international instruments by the states with which this study is concerned.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter IX "Fundamental Policy." (E/CN.4/sub.2/1983/21/Add.1), 10 June 1983.
Chapter IX considers problems in the formulation and development of policies concerning indigenous populations. A description of the state's officially declared policy, reasons for choosing such a policy, and information on whether indigenous populations were consulted in the formulation of policy are included. Information is presented on whether policies exist which can be applied according to the different circumstances of various groups, and whether there are cases in which practice departs from the officially adopted policy, with a detailed account of any such departures. The chapter provides information on action taken to ensure the control, examination and revision of policy and on measures adopted under such policy. As well, the policy pursued by unofficial organizations (religious missions, and groups of a scientific, anthropological, ethnological, sociological nature) that have undertaken programmes among indigenous populations are reviewed.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter X - "Administrative Arrangements." (E/CN.4/sub.2/1982/2/Add.4), 10 June 1982.
This chapter deals with the administrative arrangements provided for by the countries surveyed for the study. For the most part, countries have provided a specialized governmental body to deal with administrative matters that affect the indigenous populations. Some countries have no specialized administrative arrangements for indigenous policy because they feel that the indigenous populations are adequately served by the regular administrative structures available to them as members of a social and economic sector, or as members of the population at large. In other countries, the responsibility is divided among several departments. Some governments have established special advisory bodies as part of the administrative process. The chapter also examines non-governmental bodies which participate to some degree in policy-making or implementation. They have been divided into secular and religious sub-groups for this study.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter XI "Health, Medical Care and Social Services." (E/CN.4/sub.2/1983/21/Add.5), 21 June 1983.
Chapter XI contains information on whether the existing public and private services in the areas of health, medical care, and social security/services are available equally to the indigenous and non-indigenous segments of the population; on problems relating to the geographical distribution of medical and hospital facilities and personnel; and on prices and availability of medicines. It provides data on health, dietary and nutritional patterns, as well as morbidity and mortality rates of the indigenous and non-indigenous segments of the population. Included are discussions of special measures adopted in the areas of training of indigenous persons as medical and para-medical personnel, special training for non-indigenous health personnel working among indigenous populations, and nutrition and preventative measures (immunization, epidemic disease control). The development of effective health measures among the indigenous populations including utilization, where possible, of their cultural and religious traditions, and every-day medical and para-medical practices, are reviewed.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter XII "Housing." (E/CN.4/sub.2/1982/2/Add.5), 10 June 1982.
This chapter looks at the problem of discrimination against indigenous populations with respect to housing. Some general problems that are uniform throughout the study are: overcrowding, inadequacy of essential services, minimum safety and health requirements, and a high rate of migration to cities. This chapter also looks at the contemporary housing situations where a clear disparity exists between rural and urban areas in standards of living and in economic and social opportunities. The quality of services and of housing conditions in the majority of developing countries are far from satisfactory. The housing problems within the traditional or reserved areas, as well as the non-reserved areas, were reviewed. In both cases the housing conditions were found to be far inferior to the housing conditions of the non-indigenous populations.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter XIII "Education." (E/CN.4/sub.2/1983/21/Add.2), 28 June 1983.
An examination of the problems facing indigenous peoples in the area of education. This chapter contains information regarding direct or indirect limitations, restrictions or obstacles affecting indigenous persons, groups or communities with regard to access to all types and levels of education and the training, employment, and remuneration of teachers. Specific problems relating to language, differences in cultural background, geography and socio-economic considerations are canvassed. Much of the chapter is devoted to the education of indigenous school children although the issue of adult education is addressed. The chapter also deals with the content of educational materials and programmes for indigenous and non-indigenous children. Whether the materials and programmes are socially and culturally relevant to indigenous children is addressed, as well as whether the materials and programmes for non-indigenous children embody the principle of non-discrimination and contain correct information on history, cultures and traditions of indigenous peoples. The chapter also deals with the recruitment and training of indigenous teachers with a fluent command of the children's mother tongue. Measures adopted by various countries to improve access to and quality of education are examined.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter XIV "Language." (E/CN.4/sub.2/476/Add.6), 17 June 1981.
An examination of the available information on spoken and written language. All indigenous populations complain that their languages are not properly recognized and used by state, public and private agencies. At present, no country formally recognizes indigenous languages as official state languages.
The study examines the use of indigenous languages in public education and the impact of formal education on a pupil belonging to an ethnic group whose culture and language are not those which predominate in the school. This chapter also examines the use of indigenous languages in communication media and in official matters. The study of indigenous language and the training of teachers and experts are also examined.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter XV - "Culture and Cultural, Social and Legal Institutions." (E/CN.4/sub.2/1983/21/Add.3), 17 June 1983.
Chapter XV contains information concerning impediments to the exercise of or restrictions on the right of indigenous populations to equality with other segments of the country's population in access to cultural institutions and activities. It also includes information as to whether: (1) marriages or unions between indigenous and non-indigenous persons are prohibited or restricted de jure or de facto; (2) legal or social limitations or restrictions are imposed on "mixed" unions or families; (3) the children of such unions have inferior status, de jure or de facto, merely because of the legal status of their parents' union; (4) indigenous persons or groups are subjected to de jure or de facto limitations or restrictions with respect to certain civil and commercial acts involving the acquisition, mortgage, transmission or alienation of property. Information about measures of protection, and recourses and remedies against such impediments or restrictions is provided.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter XVI "Occupation, Employment and Vocational Training." (E/CN.4/sub.2/1982/2/Add.3), 10 June 1982.
This chapter examines problems facing indigenous populations in the areas of occupation, employment and vocational training, and looks at some of the special measures which have been adopted by governments in order to respond to these problems. The chapter describes relevant international standards as developed by the United Nations and its specialized agencies. It also discusses discrimination and conditions of employment, with emphasis on coercive labour systems which still survive today. Also examined are vocational training schemes and other measures to promote indigenous artisan industries or other traditional modes of production. This chapter concludes with comments on alternatives in employment policies.
United Nations. Commission on Human Rights - Sub-commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter XVII "Land." (E/CN.4/sub.2/1983/21/Add.4), 14 July 1983.
Chapter XVII examines the right to own land under the de jure and de facto circumstances prevailing in the countries covered by the study and different factors affecting the effective enjoyment by indigenous populations of the right to own and benefit from their land. In the countries surveyed, there are no explicit limitations on the right to own land. Most countries have general provisions concerning the recognition of ownership. Other countries provide a special legal regime applicable only to indigenous land which impose restrictions on alienation, division or encumbrance of land. The chapter also examines measures adopted to protect the property rights of indigenous persons, groups or communities, to respect and protect customary modes by which lands are distributed in indigenous communities, and to protect indigenous lands and resources. As well, information is provided on existing rules for the establishment and recognition of indigenous rights to land, co-operative forms of organization, and agrarian reform programmes.
The Special Rapporteur noted that despite laws protecting indigenous populations and their lands, indigenous communities are displaced in favour of business interests; indigenous lands are divided despite community protests; indigenous lands and people are exposed to radioactive and other contaminants; and atomic tests are carried out on or near indigenous lands, over protests of indigenous people.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter XVIII "Political Rights." (E/CN.4/sub.2/1983/21/Add.6), 24 May 1984.
This chapter deals with the exercise of political rights by indigenous populations. Most countries reported that there is no specific de jure exclusion of indigenous populations from the right to vote, or to be elected or appointed to public office, nor is there information concerning systematic denial, limitation or restriction in law concerning fundamental freedoms. However, the Rapporteur reported that even with these guarantees in law, there are a number of circumstances which prevent the exercise of political rights. This chapter identifies and discusses these restrictions. It also addresses measures of autonomy or self-determination granted to indigenous populations in executive, administrative and judicial matters. The chapter also addresses the issue of separate representation of indigenous populations in the state assemblies or parliaments. The Rapporteur noted that the information in these two areas is scant and fragmentary making it difficult to do a comparative analysis.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter XIX "Religious Rights and Practices." (E/CN.4/sub.2/1982/2/Add.7), 12 July 1982.
Chapter XIX deals with the right of indigenous populations to profess and practice their own religion and belief. The chapter outlines measures adopted by the United Nations which protect this right, such as the Universal Declaration of Human Rights, the International Covenants on Human Rights, and the United Nations Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief. The chapter also examines the present religious affiliations of indigenous populations and special provisions and measures adopted to prevent interference with religious practices of indigenous populations and to protect sacred places and objects. Problems with respect to access to the cultural and religious life of indigenous communities, of indigenous children placed in non-indigenous homes, of persons interned in health or penal institutions, and border-crossing difficulties are discussed.
United Nations- Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter XX "Equality in the Administration of Justice and Legal Assistance." (E/CN.4/sub.2/1983/21/Add.7), 24 May 1984.
Chapter XX presents a summary review of the basic aspects of the special problems that indigenous people face in courts of law and in obtaining legal assistance that will afford them effective counsel, at least comparable to that received by non-indigenous populations. Although indigenous populations have access to the courts, there are circumstances which make the right of access to courts, formally recognized in constitutions and laws, inoperative. Among these circumstances are: geography, lack of knowledge of the language spoken in the courts, differences between indigenous legal systems and the non-indigenous legal system which is considered foreign, problems with police officers and officials administering the law, and difficulty communicating with lawyers in preparing and presenting cases. This chapter examines in turn each of these problem areas and discusses specific measures adopted by various countries to deal with them. General and specific legal assistance programmes are also discussed.
United Nations. Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Problem of Discrimination Against Indigenous Populations. Special Rapporteur, José R. Martínez Cobo. Chapter XXI "Conclusions, Proposals and Recommendations." (E/CN.4/sub.2/1983/21/Add.8), 30 September 1984.
This chapter, containing over six hundred conclusions, proposals and recommendations, constitutes the final part of the study which was "to suggest the necessary national and international measures for eliminating such discrimination" (Economic and Social Council Resolution 1589(L)). The first half of this chapter contains the conclusions of the Special Rapporteur on all spheres of the study. The second half deals with recommendations and proposals on the subjects covered in the study.
The Special Rapporteur, aware of the omission from the study of countries in which indigenous populations live (particularly the African states) recommends a corresponding study on the situation there. Other studies were recommended on: (1) self-determination, with particular reference to the right of indigenous nations and peoples to self-determination; (2) the Declaration of Principles for the Defense of Indigenous Nations and Peoples of the Western Hemisphere adopted at the 1977 International NGO Conference on Indigenous Peoples; and (3) the subject of forced religious conversions.
The Special Rapporteur provides a tentative definition of indigenous populations which is quite different from the earlier working definition. Finally, he recommends that a proclamation for an International Year of the World's Indigenous Populations be proposed to the United Nations General Assembly to take place in 1992 to coincide with the 500th anniversary of contact between the Europeans and the indigenous populations of America.
United Nations. Human Rights Committee. "Rights of the Mikmaq People to Self-Determination / Communication v. Canada inadmissible." (1984), 5 Human Rights Law Journal 194.
This is the full text of the Human Rights Committee decision of 20 July 1984 declaring the Mikmaq communication inadmissible pursuant to the Optional Protocol of the International Covenant on Civil and Political Rights. The communication alleged that the government of Canada has denied, and continues to deny to the people of the Mikmaq Tribal Society, the right to self-determination in violation of article 1 of the International Covenant on Civil and Political Rights. The communication sought recognition of the traditional government of the Mikmaq Tribal Society and recognition of the Mikmaq Nation as a state. The Human Rights Committee declared the communication inadmissible on a procedural ground of standing. A dissenting opinion is included. The basis for this opinion is the interpretation of article 1 of the Covenant.
United Nations. Human Rights Committee. "Views of the Human Rights Committee under Article 5(4) of the Optional Protocol to the International Covenant on Civil and Political Rights in the matter of Lovelace v. Canada - Concerning Communication No. R.6/24."  1 Canadian Native Law Reporter 1.
This case arises out of a communication submitted to the United Nations Human Rights Committee by Sandra Lovelace under the Optional Protocol to the International Covenant on Civil and Political Rights. Lovelace was born and registered a Maliseet Indian, but lost her rights and status as an Indian under Canada's Indian Act, upon her marriage to a non-Indian. Lovelace claimed that the Indian Act discriminated on the basis of sex and was thus contrary to the Covenant.
The Human Rights Committee found Canada in breach of article 27 of the Covenant because, as a member of a minority, her right to access to her native culture and language in community with other members of her group had been with by the loss of her right to live on her reserve.
United Nations. Memorandum on the Definition and Classification of Minorities. Secretary General. Lake Success, N.Y.: 1950. (E/CN.4/sub.2/85).
A brief memorandum submitted to the Sub-Commission on Prevention of Discrimination and Protection of Minorities. It tries to lay the groundwork for the process of classifying and defining minorities. Written from a very technical point of view, the report uses the social sciences to develop the concept of "minority". Contains a very extensive bibliography on the subject of minorities but the entire work is somewhat limited because of its early date.
van Walt van Praag, M.C. "Tibet and the Right to Self-Determination." (1979), 26 Wayne Law Review 279.
In a lucid analysis of the right to self-determination the author goes through the history of the principle and its philosophical underpinnings. The right as it presently stands in international law is examined and the conclusion is that through decisions of the United Nations General Assembly, international human rights covenants, decisions of ICJ, and state practice, the right of self-determination of peoples is legally binding and enforceable under international law.
The author then uses the situation of the Tibetan people as a laboratory example of the application of the right. The conclusion is that the Tibetans meet the criteria of a "people" and the People's Republic of China is violating international law by refusing to allow Tibetans the right to determine their own future.
Veatch, R. Canada and the League of Nations. Toronto: University of Toronto Press, 1975.
This book is a good historical review of Canada's early involvement in international affairs. Two chapters which may be of particular interest, are chapter 7 - "The Appeal of the 'Six Nations"' and chapter 8 - "The Protection of Minorities". The former chapter deals with the attempt of the Six Nations led by Chief Deskaheh to have their claims heard in an international forum. As signatories to treaties with the British government, the Six Nations, through Deskaheh, tried to have the dispute over ownership of land, hunting and fishing rights, and tribal self-government brought before the League of Nations. The political maneuvering and the minor successes and major defeat of the Six Nations is an interesting case study. Little has changed in the past sixty years.
The latter chapter surveys the activity of Canada as an actor in the drama of strengthening minority rights under the League of Nations system. Particular attention is paid to the work of Raoul Dandurand, a French-Canadian lawyer who did much to advance the cause of European minorities in the late 1920's.
Vincent-Daviss, Diana. "Human Rights Law: A Research Guide to the Literature - Part I: International Law and the United Nations." (1981), 14 New York University Journal of International Law and Politics 209; "Part II : International Protection of Refugees, and Humanitarian Law." (1982), 14 New York University Journal of International Law and Politics 487; "Part III: The International Labour Organization and Human Rights." (1982), 15 New York University Journal of International Law and Politics 211.
A very extensive article amounting to almost three hundred pages and divided into three main sections. The author includes a general survey of legal literature indicating where articles on human rights can be found. Summaries of legal text books, monographs, essay collections, and anthologies are included. Various human rights instruments of the United Nations are discussed, as well as the UN agencies which seek to give effect to those instruments. A section on humanitarian law is included. Specific reference is made to the work of the International Labor Organization but unfortunately nothing concerning Convention 107 on indigenous peoples is included.
The section concerning materials on international protection of minorities is also disappointing as it includes older articles and fails to include recent publications in this area.
Williams, P., ed. The International Bill of Human Rights. Glen Ellen, Calif.: Entwhistle Books, 1981.
The complete text of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the Optional Protocol. Excerpts from other important international documents are also included, as is a good historical account of the Bill of Human Rights. A good introduction to the most recent UN machinery in the area. Includes essays on the topic by prominent statesmen and jurists.
Winslow, K. "Yanomamo Indians: Victims of Genocide, Candidates for Extinction." (December 1979), American Indian Journal 2.
The author describes the plight of the Yanomamo Indians in Brazil who are struggling to survive. Mining companies want to exploit their property and the government wants to divide them into twenty-one small, disconnected villages which will not handle more than one third of the population. The paper comes out of a conference which makes a plea for human rights groups, including the United Nations, to come to the Yanomamo's defense.
World Council of Indigenous Peoples. Report of the Second General Assembly. Kiruna, Samiland, Sweden: 24-27 August 1977.
Thirty-nine delegates representing eighteen countries met to discuss mutual concerns. This report, in three different languages, is a record of the World Council of Indigenous Peoples Declaration on Human Rights and a complete set of resolutions. These resolutions deal with the recognition of the right to self-determination, cultural and economic rights, and land rights.