• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month
  1. 1
  2. 2
  3. 3
  4. 4
  5. 5
  6. 6
  7. 7
  8. 8
  9. 9
  10. 10
  11. 11
  12. 12

Indigenous peoples, almost without exception, have been dispossessed and disregarded by those who 'discovered' them, and their assimilation, or eradication, has been a stated policy of many a government.

Extracts from this document...


Indigenous peoples, almost without exception, have been dispossessed and disregarded by those who 'discovered' them, and their assimilation, or eradication, has been a stated policy of many a government. Historically, international law has done very little to redress the balance or protect or acknowledge indigenous interests. Even in the current epoch of international law with its focus on human rights, these rights have generally been conceptualised on an individual basis, not fitting easily with the inherent group nature of the indigenous people and their claims to self-determination. One manifestation of this clash of cultures is in the approach to rights over land and natural resources: where the Western system of individual ownership has worked to invalidate and subsume the communal group title of the indigenous, based on ancestry, the good of the whole community and a deep spiritual link to that which sustains them. Recently, however, indigenous communities have found their voice on the international stage and there has been more awareness of and respect for their rights. The way of life long enjoyed by the people of Gorgia has been threatened by the removal of their means of subsistence and, thereby, their right to self-determination. The current climate of sympathy, or perhaps shame, felt in relation to indigenous people does provide hope that an effective remedy for the problem of the Gorgian people may be found in international law, where none has been overtly provided. Assumptions/Background The concept of indigenous people is notoriously difficult to define and its definition is not necessary for the purposes of this essay so, in true judicial spirit, I will not attempt to do so. However, the retention of distinct customs and "ancestral communal property" rights, their distinct judicial system and reliance on the land for subsistence would all point towards inclusion of the Gorgians as an indigenous people, whichever of the main definitions is chosen1. The question leaves unsaid whether the Gorgian judicial system has exclusive jurisdiction, but it would seem likely that there be some ...read more.


In Lovelace v. Canada14, the Committee noted that "not every interference can be regarded as a denial of rights within the meaning of article 27 ... (but) restrictions must have both a reasonable and objective justification and be consistent with the other provisions of the Covenant."15 In the Lansman case, the Committee decided that the impact of quarrying was not so substantial as to remove the authors' ability to provide for themselves in the traditional way, and therefore did not breach article 27. While the quarrying may have caused some inconvenience or disruption to the authors, it could not be said to be an effective threat to their way of life. If the Gorgians were using modern methods of fishing, and the Torban fishermen were merely providing competition, rather than completely or largely removing the ability of the Gorgians to make a living, then this may not be a violation of article 27 at all. The Gorgians, therefore, would have to show that the 2001 treaty did constitute such a threat to their way of life: either that the methods used by the Gorgians were traditional so that they could not compete with the more advanced Torban fishing techniques; or that the competition lead to over-fishing to the extent that their way of life was no longer viable. One factor which helped the Lubicon Lake Band's case was the effect that the removal of their traditional means of subsistence had on the people of the Band. There were submissions to the effect that "the spectre of alcoholism, previously unheard of in this community ... is now overwhelming it."16 Perhaps exactly the same standard of damage would not be required for the success of the Gorgian claim, but certainly the HRC would require a higher level of damage to the community than could be demonstrated in the Lansman case. One of the basic tenets of self-determination of indigenous peoples is the right to be consulted on measures which will effect them17. ...read more.


The lack of such a right means the Gorgians must entrust their fate to the benevolence of sovereign states and the pressure which can be brought to bear upon them. 1 Perhaps the most widely accepted is that of J. Martinez Cobo UN Special Rapporteur on discrimination against indigenous people, see Study on the Problem of Discrimination Against Indigenous People, para. 379, UN Doc. E/CN.4/Sub.2/1986/7/Add.4, UN Sales No. E.86.XIV.3 (1986) 2 See article 2 of the First Optional Protocol to the International Covenant on Civil and Political Rights 3 UN Human Rights Committee Communication No. 167/1984, (1990) 11 HRLJ 305 4 Under article 5 of the First Optional Protocol 5 By article 1 6 ICCPR article 1 (1) says all peoples have the right to self-determination 7 See para. 32.1 8 See, e.g., A. Cassese, International Law, P. 370 9 UN Human Rights Committee Communication No. 511/1992, IHRR Volume 2 at 287 10 At para. 9.2 11 At para. 32 12 At para. 27 13 See para. 9.3 14 Lovelace v. Canada UN Human Rights Committee Communication No. 24/1977 (1981) 2 Selected Decisions H.R.C. 28 15 At para. 15 16 At para 23.2 17 See, e.g., article 19 of the UN Draft Declaration on the Rights of Indigenous Peoples 18 At para. 9.6 19 President Woodrow Wilson, Address to Congress of May 1917 20 See A. Cassese, Self-Determination of Peoples: A Legal Reappraisal, p. 32 21 See, e.g., Brownlie, Principles of Public International Law, p. 513 22 G.A Res. 1541 (XV), Dec.15, 1960, principle 6, U.N. GAOR, 15th sess., Supp. No. 16, at 29, U.N. Doc. A/4684 (1961) 23 See the decision of the Australian High Court in Mabo v. Queensland [No. 2] (1992), 175 CLR 1, affirming the native title of the aboriginal people to their traditional lands 24 Economic and Social Council Resolution 1235(XLII), 1967 25 The Guatemalan indigenous people, see HRC Res. 1991/51 26 [1998] 2 S.C.R. 27 See I. Brownlie, Principles of Public International Law, p.602 Page 12 of 12 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Sources of Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Sources of Law essays

  1. Marked by a teacher


    4 star(s)

    This is against the ratio decidendi. The House of Lords overruling the House of Lords would mean they would have to use the practise statement. Cases such as London Street Tramways 1898 v London County Council 1898 meant that the House of Lords could change Precedents but not their own.

  2. Jury Essay

    the following types of civil cases; defamation, false imprisonment, fraud, and malicious prosecution (4). These cases are all based around both character and reputation, and a judge may still refuse a jury trial in these cases if it involves complex documents or scientific evidence, as is it considered to be unsuitable for jury trial.

  1. Free essay

    How effective are domestic and international legal measures in dealing with human trafficking?

    The vast resources needed to ensure that the officers are able to properly enforce anti-trafficking laws are limited or unavailable in most states. However, one of the goals of the UN is to help build awareness of the issue and provide technical assistance.

  2. "The main aims of the Land Registration Acts were to give certainty to title ...

    This would reverse Barclays Bank v. Taylor (1974)27 despite the fact that this case was recently followed in Mortgage Corporation v. Nationwide Credit Corporation (1993)28. The Law Commission also proposes to simplify the process of registering minor interests by allowing the use of restriction and inhibition only in limited cases, caution should be used were adverse

  1. To advise Reggie, it is necessary to look at the law of adverse possession. ...

    In results, no tenancy can exist if the tenant does not have the right of exclusive possession.41 Exclusive possession gives the tenant a right to keep out strangers including the landlord, but because Lilian would be in and out

  2. Outline many of the basic elements of law that relate to business and marketing.

    across Australia and New Zealand will prove to be effective enough to protect consumers from the devastating effects of scams. What can be done to bring scam-artists to justice? Unfortunately, according to ASIC (2006), many scams are online operations, often based in other countries and are very hard to trace.

  1. Commercial law discussion - 'Transfer of Title by a Non-Owner'.

    delivery or transfer by that person...of the goods or documents of title, under any sale pledge or other disposition thereof, to any person receiving...in good faith and without notice of any lien or other right of the original seller... has the same effect as if the person making the delivery

  2. "In form, the Human Rights Act (HRA) is compatible with parliamentary sovereignty. In practice, ...

    far as it is possible to do so" (Wadham & Mountfield, 1999). In order to minimise the tension between protecting fundamental rights and the maintenance of Parliament's legislative sovereignty, subsections (b) and (c) accord no power to strike down or disapply legislation which is found to be incompatible with Convention

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work