Indigenous Peoples in International Law

by Anaya, S. James

• ISBN13: 9780195086201
• ISBN10: 0195086201
• Format: Hardcover
• Copyright: 1996-05-23
• Publisher: Oxford University Press

Summary

In Indigenous Peoples in International Law, James Anaya explores the development and contours of international law as it concerns the world's indigenous peoples, culturally distinctive groups that are descended from the original inhabitants of lands now dominated by others. Anaya demonstratesthat, while historical trends in international law largely facilitated the colonization of indigenous peoples and their lands, modern international law's human rights program has been responsive to indigenous peoples' aspirations to survive as distinct communities in control of their own destinies.Over the last several years, the international system--particularly as embodied in the United Nations and other international institutions--has exhibited a renewed and increasingly heightened focus on the concerns of indigenous peoples. Anaya discusses the resulting new generation of internationaltreaty and customary norms, while linking the new and emergent norms with previously existing international human rights standards of general applicability. Anaya further identifies and analyzes institutions and procedures, at both the domestic and international levels, for implementinginternational norms concerning indigenous peoples.Indigenous Peoples in International Law provides a theoretically grounded and practically oriented synthesis of the historical, contemporary, and emerging international law related to indigenous peoples. It will be of great interest to scholars and lawyers in international law and humanrights.

Author Biography

S. James Anaya is Professor of Law at the University of Iowa, where he teaches and writes in the fields of international law, human rights, and Native American rights. He has practiced law representing Native American peoples and organizations in matters before United States courts and international institutions.

Table of Contents

Introduction	3	(9)
Part I. Developments over Time
The Historical Context	9	(30)
The Early Naturalist Frame	9	(4)
The Early Modern State System and the Law of Nations	13	(6)
The Positivists' International Law	19	(4)
Trusteeship Doctrine and Its ``Civilizing'' Mission	23	(16)
Developments within the Modern Era of Human Rights	39	(36)
The Contemporary International Legal System	39	(4)
The Initial Model within the Modern Human Rights Frame	43	(2)
The Contemporary Indigenous Rights Movement	45	(2)
ILO Convention No. 169 of 1989	47	(2)
New and Emergent Customary International Law	49	(26)
Part II. Contemporary International Norms
Self-Determination: A Foundational Principle	75	(22)
The Character and Scope of Self-Determination	75	(2)
Implications of the Term Peoples	77	(3)
The Content of Self-Determination	80	(5)
Substantive Aspects	81	(2)
Remedial Aspects	83	(2)
Self-Determination and Contemporary International Practice Concerning Indigenous Peoples	85	(12)
Norms Elaborating the Elements of Self-Determination	97	(32)
Nondiscrimination	97	(1)
Cultural Integrity	98	(6)
Lands and Natural Resources	104	(3)
Social Welfare and Development	107	(2)
Self-Government	109	(20)
Part III. Implementing International Norms
Negotiation and State Action	129	(22)
The Duty of Implementation	129	(1)
Toward Negotiated Agreement	130	(2)
State Institutional Mechanisms	132	(19)
Executive Action	133	(1)
Legislative Action and Constitutional Reform	134	(2)
Judicial Procedures	136	(15)
Implementation Procedures Involving International Institutions	151	(34)
The Role of International Procedures	151	(2)
Monitoring/Reporting Procedures	153	(5)
Review of Developments by the U.N. Working Group on Indigenous Populations	153	(1)
Review of Developments by the U.N. Commission on Human Rights and Its Subcommission	154	(1)
ILO Convention Compliance Monitoring	155	(1)
Reporting Procedures of the U.N. Human Rights Committe and CERD	156	(1)
Country Reports by the Inter-American Commission on Human Rights	157	(1)
Complaint Procedures	158	(25)
Complaints in the U.N. Working Group on Indigenous Populations	159	(1)
Complaints in the U.N. Commission on Human Rights and Its Subcommission	159	(2)
Complaint Procedures Connected to ILO Conventions	161	(1)
The U.N. Human Rights Committee and CERD: Interstate Complaints and Individual Communications	162	(4)
Petitions to the Inter-American Commission on Human Rights	166	(17)
Conclusion	183	(2)
Appendix: Selected Documents	185	(44)
Draft Declaration of Principles for the Defense of the Indigenous Nations and Peoples of the Western Hemisphere	185	(3)
Declaration of Principles of Indigenous Rights	188	(2)
Declaration of Principles on the Rights of Indigenous Peoples	190	(2)
Declaration of San Jose	192	(1)
Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries	193	(11)
Agenda 21: Chapter 26	204	(3)
Draft United Nations Declaration on the Right of Indigenous Peoples	207	(9)
Resolution on Action Required Internationally to Provide Effective Protection for Indigenous Peoples	216	(2)
Proposed American Declaration on the Rights of Indigenous Peoples	218	(11)
Bibliography	229	(16)
Table of Principal Documents	245	(6)
Table of Cases	251	(4)
Index	255