I am currently a PhD candidate at the Vrije Universiteit Brussels. I hold an LLM in Human Rights Law from the University of Nottingham (UK) and a B.A. [Hons] in Political Science and Human Rights from Carleton University (Canada). My main area of research is human rights law, with a focus on indigenous peoples’ rights. Previously I held various roles with the International Commission of Jurists, the ICC, the University of Nottingham’s Human Rights Law Centre and the Government of Canada. Address: Brussel, Brussels Hoofdstedelijk Gewest, Belgium
Human Rights and International Legal Discourse, Dec 1, 2014
In an attempt to determine the applicability and depth of a ‘user's’ perspective’ in relation... more In an attempt to determine the applicability and depth of a ‘user's’ perspective’ in relation to indigenous peoples as rights holders, the first part of this article will trace how indigenous peoples have been recognised, or defined, at the international and regional levels. By doing this, the article will add to the other contributions in this Special Issue in attempting to ascertain the full breadth of the user's perspective as an analytical tool. By using human rights law, indigenous peoples have managed to influence it, making it more relevant and applicable to their specific needs. The second part of this article will focus on how indigenous peoples have utilised the established international and regional human rights fora to present alternative views, effectively redefining legal terms, reinterpreting existing human rights provisions and finding new meaning in already established human rights norms.
In recent years, the adoption of specific instruments focusing on indigenous peoples, such as the... more In recent years, the adoption of specific instruments focusing on indigenous peoples, such as the United Declaration on the Rights of Indigenous Peoples, and the reinterpretation of older human rights instruments through the lens of indigenous peoples’ demands, have led to the development of a sophisticated body of international law addressing indigenous peoples in a more comprehensive manner. Indigenous peoples have recently been recognized as holders of a wide range of collective rights, from cultural and identity rights to those to self-government and of self-determination. Within this context, the rights of indigenous peoples as a group to exist as distinct communities have been confirmed and, inherently, so have their rights to lands and territories they have traditionally occupied. Unfortunately, despite these developments, along with recent jurisprudence emanating from the African Commission on Human and Peoples’ Rights, the rights of indigenous peoples in Africa have not received such unanimous recognition or acceptance. Arguments over which groups constitute ‘indigenous peoples’ in this region are ongoing while foreign investors are purchasing or leasing massive portions of land far below market prices, often without the consent of those who live from the land, threatening the very survival of the communities at issue. The purpose of this presentation will to examine indigenous peoples’ land rights and their application in Africa considering the phenomenon of land grabbing taking place throughout the Continent. To that end, this presentation will: provide an overview of the development of indigenous peoples’ land rights in the international arena, with particular focus on the International Labour Organization Conventions, jurisprudence from the United Nations treaty bodies, and regional perspectives emanating from the Inter-American Court of Human Rights; analyze the concept of indigenous peoples in Africa; and conclude with some remarks on land grab in Africa and the (in)compatibility of these practices with emerging standards on indigenous rights such as free, prior and informed consent.
While many commentators have critiqued the lack of enforcement and monitoring mechanisms with the... more While many commentators have critiqued the lack of enforcement and monitoring mechanisms with the African human rights system, there have only been a few contributions that focus their analysis on the implementation of the recommendations provided by the African Commission on Human and Peoples’ Rights. This lacuna means that little is actually known of the status of state compliance. The purpose of this article is to address the issues of implementation and compliance by examining in detail the ‘aftermath’ of two decisions of the African Commission: Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya (Endorois) and Mr Mamboleo M Itundamilamba v Democratic Republic of Congo (Mamboleo). By analysing the way state parties have reacted to these findings, the article aims to shed some light on the effectiveness of the mechanisms set up to monitor compliance, highlights the arguments used by state parties when refusing t...
Victim participation has become a prominent feature in international criminal proceedings but it ... more Victim participation has become a prominent feature in international criminal proceedings but it remains unclear how it will manifest itself once international crimes, notably war crimes, crimes against humanity and genocide, are adjudicated at the national level. The purpose of this chapter is to respond to these concerns by examining developments in the Democratic Republic of Congo (DRC), compared and contrasted with developments at the international, hopefully allowing any gaps in the protection of victims’ participatory rights to surface. The chapter will begin by highlighting the importance, and obligation, of States to use prosecutions as a post-conflict or transitional justice mechanism. This will be followed by providing an overview of the development of international legal standards with regards to victim participation, examining in particular the contributions of the International Criminal Court. The chapter will conclude with presenting the DRC as a case study, including ...
African Journal of International and Comparative Law, 2018
Prior to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDR... more Prior to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) many African states held a unified and seemingly hostile position towards the UNDRIP exemplified by the concerns outlined in the African Group's Draft Aide Memoire. In order to gain a better understanding of the protections offered to indigenous peoples on the African continent, it is necessary to examine the concerns raised in the aforementioned Draft Aide Memoire and highlight how these concerns have been addressed at the regional level, effectively changing how the human rights norms contained within the UNDRIP are seen, understood and interpreted in the African context. The purpose of this article is to do just that: to examine in particular how the issue of defining indigenous peoples has been tackled on the African continent, how the right to self-determination has unfolded for indigenous peoples in Africa and how indigenous peoples' right to free, prior and informed co...
Beginning in the 20th century, international law expanded beyond law between nations to eventuall... more Beginning in the 20th century, international law expanded beyond law between nations to eventually embrace the concept of human rights. However, until recently, human rights efforts were focused mostly on individuals, their rights and the obligations of the state in question. Indigenous peoples, on the other hand, have always articulated their collective rights and, to their credit, achieved notable success. While there is no doubt that these achievements should be applauded, what is also of interest, and deserves further study, are the ways in which human rights jurisprudence concerning Indigenous peoples’ collective rights intermingle, cross-fertilize, and integrate. This dynamic relationship between the various sources of Indigenous rights law has had a tremendous impact locally, changing how states interact with the Indigenous peoples living within its borders. The first aim of this article will be to explore the above-mentioned topics in detail with a particular eye on the Afri...
Despite a noticeable shift in recent years, indigenous peoples in Asia continue to experience man... more Despite a noticeable shift in recent years, indigenous peoples in Asia continue to experience many forms of human rights violations, with the most serious perhaps being the loss of traditional lands and territories. The purpose of this paper is to examine indigenous peoples’ land rights and its application in Southeast Asia. To that end, the paper will provide an overview of the development of indigenous peoples’ land rights internationally; offer regional perspectives from the Inter-American Court of Human Rights and the African Commission for Human and Peoples’ Rights; analyze the concept of indigenous peoples in Asia, juxtaposing it with concurrent difficulties being experienced on the African continent; examine three countries (Cambodia, the Philippines, and Malaysia) that recognize indigenous peoples’ land rights to some extent, whether through constitutional amendments, legislative reform, or domestic jurisprudence; and highlight the implementation gap between the rights of in...
Victim participation has become a prominent feature in international criminal proceedings but it ... more Victim participation has become a prominent feature in international criminal proceedings but it remains unclear how it will manifest itself once international crimes, notably war crimes, crimes against humanity and genocide, are adjudicated at the national level.
The purpose of this Chapter is to respond to these concerns by examining developments in the Democratic Republic of Congo (DRC), compared and contrasted with developments at the international and regional level, hopefully allowing any gaps in the protection of victims’ participatory rights to surface. The Chapter will begin by highlighting the importance, and obligation, of States to use prosecutions as a post-conflict or transitional justice mechanism. This will be followed by providing an overview of the development of international and regional legal standards with regards to victim participation, highlighting the contributions of the International Criminal Court, human rights law and specialised tribunals, most notably the Extraordinary Chambers in the Courts of Cambodia. The Chapter will conclude with presenting the DRC as a case study: analysing the domestic legal framework, where victim participation exists in theory as a partie civile (civil party); analysing the jurisprudence arising from the military tribunals, as these courts have exclusive jurisdiction over crimes under international law but recognise a more restrained access for victims compared to criminal courts in the ordinary judicial system; and, examining recent developments, such as the proposed mixed tribunals and the implementation of international criminal law in national legislation.
JURIST Academic Commentary - Discussing the violations of human rights and international criminal... more JURIST Academic Commentary - Discussing the violations of human rights and international criminal and humanitarian law in Democratic Republic of Congo and urging for a change in national priorities in order to stop impunity and injustice in the country.
Human Rights and International Legal Discourse, 2014
In an attempt to determine the applicability and depth of a ‘users perspective’ in relation to in... more In an attempt to determine the applicability and depth of a ‘users perspective’ in relation to indigenous peoples as rights holders the first part of this article will trace how indigenous peoples have been recognized, or defined, at the international and regional levels. By doing this, the article will add to the other contributions in this Special Issue attempting to ascertain the full breadth of the users’ perspective as an analytical tool.
By using human rights law indigenous peoples have managed to influence human rights law making it more relevant and applicable to their specific needs. The second part of this article will focus on how indigenous peoples have utilized the established international and regional human rights fora to present alternative views, effectively redefining legal terms, reinterpreting existing human rights provisions and finding new meaning to already established human rights norms.
5(4) International Indigenous Policy Journal, 2014
Beginning in the 20th century, international law expanded beyond law between nations to eventuall... more Beginning in the 20th century, international law expanded beyond law between nations to eventually embrace the concept of human rights. However, until recently, human rights efforts were focused mostly on individuals, their rights and the obligations of the State in question. Indigenous peoples, on the other hand, have always articulated their collective rights, and, to their credit, achieved notable success.
While there is no doubt that these achievements should be applauded, what is also of interest, and deserves further study, are the ways in which human rights jurisprudence concerning indigenous peoples’ collective rights intermingle, cross-fertilize and integrate. This dynamic relationship between the various sources of indigenous rights law has had a tremendous impact locally, changing how States interact with the indigenous peoples living within its borders.
The first aim of this paper will be to explore the above-mentioned topics in detail with a particular eye on the African human rights systems. Secondly, this paper will examine how they relate to the Endorois case that was recently decided by the African Commission on Human and Peoples’ Rights. This paper will conclude with an investigation into what this could mean for indigenous peoples’ rights in the African context.
In recent years there has been a noticeable shift in how some Asian states have approached indige... more In recent years there has been a noticeable shift in how some Asian states have approached indigenous peoples’ land rights. However, indigenous peoples continue to experience many forms of human rights violations, with the most serious perhaps being the loss of traditional lands and territories to “land grabbing” by a variety of actors. The purpose of this article is to examine indigenous peoples’ land rights and its application in Southeast Asia. To that end, this article will: provide an overview of the development of indigenous peoples’ land rights in the international arena; offer regional perspectives from the Inter-American Court of Human Rights and the African Commission for Human and Peoples’ Rights; analyze the concept of indigenous peoples in Asia, juxtaposing it with concurrent difficulties being experienced on the African continent; and, examine three countries (Cambodia, the Philippines, and Malaysia) that recognize indigenous peoples’ land rights to some extent, whether through constitutional amendments, legislative reform, or domestic jurisprudence, and highlight the implementation gap between the rights of indigenous peoples in law and practice.
After over two decades of negotiations, the United Nations General Assembly adopted the United Na... more After over two decades of negotiations, the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) on 13 September 2007, with 143 States voting in favour, 4 States opposing, 11 States abstaining and 34 States noted as absent. While this has rightly been seen as a momentous achievement for indigenous peoples worldwide, and for international law more generally, a closer examination of the voting record, where three African countries abstained from the final vote and another 15 African countries were absent, hints at a larger story: one concerning Africa’s reaction to the UNDRIP and the human rights norms contained within the Declaration.
Prior to the adoption of the UNDRIP, the text had been debated at length by the United Nations Working Group on Indigenous Populations, State representatives and indigenous communities with a negotiated version being adopted by the Human Rights Council in June 2006. Throughout this process most African States did not take any meaningful part in the debates, undoubtedly for a variety of reasons, all of which have been addressed elsewhere. Importantly, however, once the UNDRIP arrived in the Third Committee of the United Nations General Assembly, Namibia, on behalf of a group of African States and governments (African Group), called for a deferment on consideration and action on the proposed Declaration, with no African State voting against Namibia’s amendment. On 9 November 2006, the African Group published their concerns in a document entitled Draft Aide Memoire – United Nations Declaration on the Rights of Indigenous Peoples.
At the time of the Draft Aide Memoire, many African States held a unified, and seemingly hostile position towards the UNDRIP. However, since then there have been many developments at the African level, which has led to a change in how the human rights norms contained within the UNDRIP are seen, understood and interpreted in the African context. In order to gain a better understanding of the protections offered to indigenous peoples on the African continent, it is necessary to examine the concerns raised in the Draft Aide Memoire and highlight how these concerns have been addressed at the regional level. The purpose of this Chapter is to do just that, examine in particular how the issue of defining indigenous peoples has been tackled on the African continent, how the right to self-determination has unfolded for indigenous peoples in Africa, and how indigenous peoples’ right to free, prior and informed consent has been interpreted at the regional level.
Bill C-38, Jobs, Growth and Long-term Prosperity Act, and Bill C-45, Jobs and Growth Act, both pa... more Bill C-38, Jobs, Growth and Long-term Prosperity Act, and Bill C-45, Jobs and Growth Act, both passed in 2012, contain numerous amendments that could affect established and potential Aboriginal rights across Canada. This unilateral action by the Government of Canada came as a great surprise to many Aboriginal people, who indicated that they were not consulted in advance of the legislation’s introduction.
However, this then begs the question: What is Canada’s ‘duty to consult’? What is the content of this ‘duty’? Does this ‘duty’ even exist? If it does, is there a discrepancy between the established ‘duty to consult’ and the legislative amendments included in Bill C-38 and Bill C-45?
The purpose of this article is to attempt to answer all of these questions. To do this, we will begin by examining contemporary Canadian jurisprudence on the issue, including reviewing the relevant case law in order to gain an insight into the procedural substance of the ‘duty to consult’. Following this, in an attempt to enrich and deepen the discussion concerning the recent developments in Canada, we will outline the emergence of consultation norms at the international level, and highlight recent jurisprudence that takes into consideration consultation duties at the Inter-American Court of Human Rights. The article will conclude by juxtaposing the emergence of the international and regional norms regarding consultation duties with current events in Canada, in order to confirm the discrepancy between the recent legislative amendments and domestic jurisprudence, international law, international human rights law, and regional human rights law.
Our hope is that this article will not only inform readers of current events in Canada but also enrich the current discourse on the participatory rights of indigenous peoples in the context of land and natural resource development.
Human Rights and International Legal Discourse, Dec 1, 2014
In an attempt to determine the applicability and depth of a ‘user's’ perspective’ in relation... more In an attempt to determine the applicability and depth of a ‘user's’ perspective’ in relation to indigenous peoples as rights holders, the first part of this article will trace how indigenous peoples have been recognised, or defined, at the international and regional levels. By doing this, the article will add to the other contributions in this Special Issue in attempting to ascertain the full breadth of the user's perspective as an analytical tool. By using human rights law, indigenous peoples have managed to influence it, making it more relevant and applicable to their specific needs. The second part of this article will focus on how indigenous peoples have utilised the established international and regional human rights fora to present alternative views, effectively redefining legal terms, reinterpreting existing human rights provisions and finding new meaning in already established human rights norms.
In recent years, the adoption of specific instruments focusing on indigenous peoples, such as the... more In recent years, the adoption of specific instruments focusing on indigenous peoples, such as the United Declaration on the Rights of Indigenous Peoples, and the reinterpretation of older human rights instruments through the lens of indigenous peoples’ demands, have led to the development of a sophisticated body of international law addressing indigenous peoples in a more comprehensive manner. Indigenous peoples have recently been recognized as holders of a wide range of collective rights, from cultural and identity rights to those to self-government and of self-determination. Within this context, the rights of indigenous peoples as a group to exist as distinct communities have been confirmed and, inherently, so have their rights to lands and territories they have traditionally occupied. Unfortunately, despite these developments, along with recent jurisprudence emanating from the African Commission on Human and Peoples’ Rights, the rights of indigenous peoples in Africa have not received such unanimous recognition or acceptance. Arguments over which groups constitute ‘indigenous peoples’ in this region are ongoing while foreign investors are purchasing or leasing massive portions of land far below market prices, often without the consent of those who live from the land, threatening the very survival of the communities at issue. The purpose of this presentation will to examine indigenous peoples’ land rights and their application in Africa considering the phenomenon of land grabbing taking place throughout the Continent. To that end, this presentation will: provide an overview of the development of indigenous peoples’ land rights in the international arena, with particular focus on the International Labour Organization Conventions, jurisprudence from the United Nations treaty bodies, and regional perspectives emanating from the Inter-American Court of Human Rights; analyze the concept of indigenous peoples in Africa; and conclude with some remarks on land grab in Africa and the (in)compatibility of these practices with emerging standards on indigenous rights such as free, prior and informed consent.
While many commentators have critiqued the lack of enforcement and monitoring mechanisms with the... more While many commentators have critiqued the lack of enforcement and monitoring mechanisms with the African human rights system, there have only been a few contributions that focus their analysis on the implementation of the recommendations provided by the African Commission on Human and Peoples’ Rights. This lacuna means that little is actually known of the status of state compliance. The purpose of this article is to address the issues of implementation and compliance by examining in detail the ‘aftermath’ of two decisions of the African Commission: Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya (Endorois) and Mr Mamboleo M Itundamilamba v Democratic Republic of Congo (Mamboleo). By analysing the way state parties have reacted to these findings, the article aims to shed some light on the effectiveness of the mechanisms set up to monitor compliance, highlights the arguments used by state parties when refusing t...
Victim participation has become a prominent feature in international criminal proceedings but it ... more Victim participation has become a prominent feature in international criminal proceedings but it remains unclear how it will manifest itself once international crimes, notably war crimes, crimes against humanity and genocide, are adjudicated at the national level. The purpose of this chapter is to respond to these concerns by examining developments in the Democratic Republic of Congo (DRC), compared and contrasted with developments at the international, hopefully allowing any gaps in the protection of victims’ participatory rights to surface. The chapter will begin by highlighting the importance, and obligation, of States to use prosecutions as a post-conflict or transitional justice mechanism. This will be followed by providing an overview of the development of international legal standards with regards to victim participation, examining in particular the contributions of the International Criminal Court. The chapter will conclude with presenting the DRC as a case study, including ...
African Journal of International and Comparative Law, 2018
Prior to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDR... more Prior to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) many African states held a unified and seemingly hostile position towards the UNDRIP exemplified by the concerns outlined in the African Group's Draft Aide Memoire. In order to gain a better understanding of the protections offered to indigenous peoples on the African continent, it is necessary to examine the concerns raised in the aforementioned Draft Aide Memoire and highlight how these concerns have been addressed at the regional level, effectively changing how the human rights norms contained within the UNDRIP are seen, understood and interpreted in the African context. The purpose of this article is to do just that: to examine in particular how the issue of defining indigenous peoples has been tackled on the African continent, how the right to self-determination has unfolded for indigenous peoples in Africa and how indigenous peoples' right to free, prior and informed co...
Beginning in the 20th century, international law expanded beyond law between nations to eventuall... more Beginning in the 20th century, international law expanded beyond law between nations to eventually embrace the concept of human rights. However, until recently, human rights efforts were focused mostly on individuals, their rights and the obligations of the state in question. Indigenous peoples, on the other hand, have always articulated their collective rights and, to their credit, achieved notable success. While there is no doubt that these achievements should be applauded, what is also of interest, and deserves further study, are the ways in which human rights jurisprudence concerning Indigenous peoples’ collective rights intermingle, cross-fertilize, and integrate. This dynamic relationship between the various sources of Indigenous rights law has had a tremendous impact locally, changing how states interact with the Indigenous peoples living within its borders. The first aim of this article will be to explore the above-mentioned topics in detail with a particular eye on the Afri...
Despite a noticeable shift in recent years, indigenous peoples in Asia continue to experience man... more Despite a noticeable shift in recent years, indigenous peoples in Asia continue to experience many forms of human rights violations, with the most serious perhaps being the loss of traditional lands and territories. The purpose of this paper is to examine indigenous peoples’ land rights and its application in Southeast Asia. To that end, the paper will provide an overview of the development of indigenous peoples’ land rights internationally; offer regional perspectives from the Inter-American Court of Human Rights and the African Commission for Human and Peoples’ Rights; analyze the concept of indigenous peoples in Asia, juxtaposing it with concurrent difficulties being experienced on the African continent; examine three countries (Cambodia, the Philippines, and Malaysia) that recognize indigenous peoples’ land rights to some extent, whether through constitutional amendments, legislative reform, or domestic jurisprudence; and highlight the implementation gap between the rights of in...
Victim participation has become a prominent feature in international criminal proceedings but it ... more Victim participation has become a prominent feature in international criminal proceedings but it remains unclear how it will manifest itself once international crimes, notably war crimes, crimes against humanity and genocide, are adjudicated at the national level.
The purpose of this Chapter is to respond to these concerns by examining developments in the Democratic Republic of Congo (DRC), compared and contrasted with developments at the international and regional level, hopefully allowing any gaps in the protection of victims’ participatory rights to surface. The Chapter will begin by highlighting the importance, and obligation, of States to use prosecutions as a post-conflict or transitional justice mechanism. This will be followed by providing an overview of the development of international and regional legal standards with regards to victim participation, highlighting the contributions of the International Criminal Court, human rights law and specialised tribunals, most notably the Extraordinary Chambers in the Courts of Cambodia. The Chapter will conclude with presenting the DRC as a case study: analysing the domestic legal framework, where victim participation exists in theory as a partie civile (civil party); analysing the jurisprudence arising from the military tribunals, as these courts have exclusive jurisdiction over crimes under international law but recognise a more restrained access for victims compared to criminal courts in the ordinary judicial system; and, examining recent developments, such as the proposed mixed tribunals and the implementation of international criminal law in national legislation.
JURIST Academic Commentary - Discussing the violations of human rights and international criminal... more JURIST Academic Commentary - Discussing the violations of human rights and international criminal and humanitarian law in Democratic Republic of Congo and urging for a change in national priorities in order to stop impunity and injustice in the country.
Human Rights and International Legal Discourse, 2014
In an attempt to determine the applicability and depth of a ‘users perspective’ in relation to in... more In an attempt to determine the applicability and depth of a ‘users perspective’ in relation to indigenous peoples as rights holders the first part of this article will trace how indigenous peoples have been recognized, or defined, at the international and regional levels. By doing this, the article will add to the other contributions in this Special Issue attempting to ascertain the full breadth of the users’ perspective as an analytical tool.
By using human rights law indigenous peoples have managed to influence human rights law making it more relevant and applicable to their specific needs. The second part of this article will focus on how indigenous peoples have utilized the established international and regional human rights fora to present alternative views, effectively redefining legal terms, reinterpreting existing human rights provisions and finding new meaning to already established human rights norms.
5(4) International Indigenous Policy Journal, 2014
Beginning in the 20th century, international law expanded beyond law between nations to eventuall... more Beginning in the 20th century, international law expanded beyond law between nations to eventually embrace the concept of human rights. However, until recently, human rights efforts were focused mostly on individuals, their rights and the obligations of the State in question. Indigenous peoples, on the other hand, have always articulated their collective rights, and, to their credit, achieved notable success.
While there is no doubt that these achievements should be applauded, what is also of interest, and deserves further study, are the ways in which human rights jurisprudence concerning indigenous peoples’ collective rights intermingle, cross-fertilize and integrate. This dynamic relationship between the various sources of indigenous rights law has had a tremendous impact locally, changing how States interact with the indigenous peoples living within its borders.
The first aim of this paper will be to explore the above-mentioned topics in detail with a particular eye on the African human rights systems. Secondly, this paper will examine how they relate to the Endorois case that was recently decided by the African Commission on Human and Peoples’ Rights. This paper will conclude with an investigation into what this could mean for indigenous peoples’ rights in the African context.
In recent years there has been a noticeable shift in how some Asian states have approached indige... more In recent years there has been a noticeable shift in how some Asian states have approached indigenous peoples’ land rights. However, indigenous peoples continue to experience many forms of human rights violations, with the most serious perhaps being the loss of traditional lands and territories to “land grabbing” by a variety of actors. The purpose of this article is to examine indigenous peoples’ land rights and its application in Southeast Asia. To that end, this article will: provide an overview of the development of indigenous peoples’ land rights in the international arena; offer regional perspectives from the Inter-American Court of Human Rights and the African Commission for Human and Peoples’ Rights; analyze the concept of indigenous peoples in Asia, juxtaposing it with concurrent difficulties being experienced on the African continent; and, examine three countries (Cambodia, the Philippines, and Malaysia) that recognize indigenous peoples’ land rights to some extent, whether through constitutional amendments, legislative reform, or domestic jurisprudence, and highlight the implementation gap between the rights of indigenous peoples in law and practice.
After over two decades of negotiations, the United Nations General Assembly adopted the United Na... more After over two decades of negotiations, the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) on 13 September 2007, with 143 States voting in favour, 4 States opposing, 11 States abstaining and 34 States noted as absent. While this has rightly been seen as a momentous achievement for indigenous peoples worldwide, and for international law more generally, a closer examination of the voting record, where three African countries abstained from the final vote and another 15 African countries were absent, hints at a larger story: one concerning Africa’s reaction to the UNDRIP and the human rights norms contained within the Declaration.
Prior to the adoption of the UNDRIP, the text had been debated at length by the United Nations Working Group on Indigenous Populations, State representatives and indigenous communities with a negotiated version being adopted by the Human Rights Council in June 2006. Throughout this process most African States did not take any meaningful part in the debates, undoubtedly for a variety of reasons, all of which have been addressed elsewhere. Importantly, however, once the UNDRIP arrived in the Third Committee of the United Nations General Assembly, Namibia, on behalf of a group of African States and governments (African Group), called for a deferment on consideration and action on the proposed Declaration, with no African State voting against Namibia’s amendment. On 9 November 2006, the African Group published their concerns in a document entitled Draft Aide Memoire – United Nations Declaration on the Rights of Indigenous Peoples.
At the time of the Draft Aide Memoire, many African States held a unified, and seemingly hostile position towards the UNDRIP. However, since then there have been many developments at the African level, which has led to a change in how the human rights norms contained within the UNDRIP are seen, understood and interpreted in the African context. In order to gain a better understanding of the protections offered to indigenous peoples on the African continent, it is necessary to examine the concerns raised in the Draft Aide Memoire and highlight how these concerns have been addressed at the regional level. The purpose of this Chapter is to do just that, examine in particular how the issue of defining indigenous peoples has been tackled on the African continent, how the right to self-determination has unfolded for indigenous peoples in Africa, and how indigenous peoples’ right to free, prior and informed consent has been interpreted at the regional level.
Bill C-38, Jobs, Growth and Long-term Prosperity Act, and Bill C-45, Jobs and Growth Act, both pa... more Bill C-38, Jobs, Growth and Long-term Prosperity Act, and Bill C-45, Jobs and Growth Act, both passed in 2012, contain numerous amendments that could affect established and potential Aboriginal rights across Canada. This unilateral action by the Government of Canada came as a great surprise to many Aboriginal people, who indicated that they were not consulted in advance of the legislation’s introduction.
However, this then begs the question: What is Canada’s ‘duty to consult’? What is the content of this ‘duty’? Does this ‘duty’ even exist? If it does, is there a discrepancy between the established ‘duty to consult’ and the legislative amendments included in Bill C-38 and Bill C-45?
The purpose of this article is to attempt to answer all of these questions. To do this, we will begin by examining contemporary Canadian jurisprudence on the issue, including reviewing the relevant case law in order to gain an insight into the procedural substance of the ‘duty to consult’. Following this, in an attempt to enrich and deepen the discussion concerning the recent developments in Canada, we will outline the emergence of consultation norms at the international level, and highlight recent jurisprudence that takes into consideration consultation duties at the Inter-American Court of Human Rights. The article will conclude by juxtaposing the emergence of the international and regional norms regarding consultation duties with current events in Canada, in order to confirm the discrepancy between the recent legislative amendments and domestic jurisprudence, international law, international human rights law, and regional human rights law.
Our hope is that this article will not only inform readers of current events in Canada but also enrich the current discourse on the participatory rights of indigenous peoples in the context of land and natural resource development.
In recent years, the adoption of specific instruments focusing on indigenous peoples, such as the... more In recent years, the adoption of specific instruments focusing on indigenous peoples, such as the United Declaration on the Rights of Indigenous Peoples, and the reinterpretation of older human rights instruments through the lens of indigenous peoples’ demands, have led to the development of a sophisticated body of international law addressing indigenous peoples in a more comprehensive manner. Indigenous peoples have recently been recognized as holders of a wide range of collective rights, from cultural and identity rights to those to self-government and of self-determination. Within this context, the rights of indigenous peoples as a group to exist as distinct communities have been confirmed and, inherently, so have their rights to lands and territories they have traditionally occupied.
Unfortunately, despite these developments, along with recent jurisprudence emanating from the African Commission on Human and Peoples’ Rights, the rights of indigenous peoples in Africa have not received such unanimous recognition or acceptance. Arguments over which groups constitute ‘indigenous peoples’ in this region are ongoing while foreign investors are purchasing or leasing massive portions of land far below market prices, often without the consent of those who live from the land, threatening the very survival of the communities at issue.
The purpose of this presentation will to examine indigenous peoples’ land rights and their application in Africa considering the phenomenon of land grabbing taking place throughout the Continent. To that end, this presentation will: provide an overview of the development of indigenous peoples’ land rights in the international arena, with particular focus on the International Labour Organization Conventions, jurisprudence from the United Nations treaty bodies, and regional perspectives emanating from the Inter-American Court of Human Rights; analyze the concept of indigenous peoples in Africa; and conclude with some remarks on land grab in Africa and the (in)compatibility of these practices with emerging standards on indigenous rights such as free, prior and informed consent.
"The concept of ‘indigenous peoples’ has proven to be extremely difficult to apply in the Asian r... more "The concept of ‘indigenous peoples’ has proven to be extremely difficult to apply in the Asian region, with many States stating that indigenous peoples do not exist within their borders. Numerous Asian countries claimed that indigenous peoples are a product of European colonialism and, since patterns of colonial settlement did not occur in the Asian region as it did in the Americas, Australia and New Zealand, the existence of an indigenous population is inherently restricted to these regions.
In other Asian countries where colonial regimes were established, the principle of national unity was asserted as part of the decolonization and nation-building processes, effectively suppressing any special recognition for indigenous peoples. Government officials were wary of providing legal recognition and status to indigenous peoples, fearing that political instability and threats to territorial integrity would follow.
In recent years, however, there has been a noticeable shift in how some Asian states have approached this topic. A number of countries have granted indigenous peoples constitutional recognition or distinct legal status, or have developed special laws in an attempt to address the specific human rights issues facing indigenous peoples, most notably land rights. Although this shift should be applauded, indigenous peoples continue to experience many forms of human rights violations, with the most serious perhaps being the loss of traditional lands and territories to “land grabbing” by a variety of actors, development projects commissioned by the State, the establishment of protected nature reserves and plantations, and the granting of logging concessions. Reports suggest that indigenous peoples throughout Asia are routinely being displaced, witnessing the degradation of their traditional environment, and continuing to be among the most discriminated against, the most socially and economically marginalized, and the most politically subordinated of any population group.
This paper will begin by providing an overview of the existing international human rights framework, binding and non-binding, in relation to indigenous peoples and, more specifically, indigenous peoples’ land rights across Asia. Following that, this paper will provide a detailed case study of three countries: Cambodia, the Philippines, and Malaysia. These three countries have been chosen as they all recognize indigenous peoples’ land rights to some extent, whether through constitutional amendments, legislative reform, or domestic jurisprudence. However, as mentioned above, the reality for indigenous peoples is that their customary rights to traditional lands have not been entirely recognized or respected. Moreover, indigenous peoples appear to be absent from decision-making processes in relation to policies that may affect them directly. This paper will highlight this implementation gap between the rights of indigenous peoples in law and practice and provide recommendations for the future."
Beginning in the 20th century, international law expanded beyond the law between nations to event... more Beginning in the 20th century, international law expanded beyond the law between nations to eventually embrace the concept of human rights. However, until recently, human rights efforts were focused mostly on individuals, their rights and the obligations of the State in question.
Indigenous peoples, on the other hand, have always articulated their collective rights, and, to their credit, achieved notable success. While there is no doubt that these achievements should be applauded, what is also of interest, and deserves further study, are the ways in which human rights jurisprudence concerning indigenous peoples’ collective rights intermingle, cross-fertilize and integrate. This dynamic relationship between the various sources of indigenous rights law has had a tremendous impact locally, changing how States interact with the indigenous peoples living within its borders.
The first aim of this paper will be to explore the above-mentioned topics in detail with a particular eye on the African human rights systems. Secondly, this paper will examine how they relate to the Endorois case that was recently decided by the African Commission on Human and Peoples’ Rights. This paper will conclude with an investigation into what this could mean for indigenous peoples’ rights in the African context.
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Papers by Derek Inman
The purpose of this Chapter is to respond to these concerns by examining developments in the Democratic Republic of Congo (DRC), compared and contrasted with developments at the international and regional level, hopefully allowing any gaps in the protection of victims’ participatory rights to surface. The Chapter will begin by highlighting the importance, and obligation, of States to use prosecutions as a post-conflict or transitional justice mechanism. This will be followed by providing an overview of the development of international and regional legal standards with regards to victim participation, highlighting the contributions of the International Criminal Court, human rights law and specialised tribunals, most notably the Extraordinary Chambers in the Courts of Cambodia. The Chapter will conclude with presenting the DRC as a case study: analysing the domestic legal framework, where victim participation exists in theory as a partie civile (civil party); analysing the jurisprudence arising from the military tribunals, as these courts have exclusive jurisdiction over crimes under international law but recognise a more restrained access for victims compared to criminal courts in the ordinary judicial system; and, examining recent developments, such as the proposed mixed tribunals and the implementation of international criminal law in national legislation.
By using human rights law indigenous peoples have managed to influence human rights law making it more relevant and applicable to their specific needs. The second part of this article will focus on how indigenous peoples have utilized the established international and regional human rights fora to present alternative views, effectively redefining legal terms, reinterpreting existing human rights provisions and finding new meaning to already established human rights norms.
While there is no doubt that these achievements should be applauded, what is also of interest, and deserves further study, are the ways in which human rights jurisprudence concerning indigenous peoples’ collective rights intermingle, cross-fertilize and integrate. This dynamic relationship between the various sources of indigenous rights law has had a tremendous impact locally, changing how States interact with the indigenous peoples living within its borders.
The first aim of this paper will be to explore the above-mentioned topics in detail with a particular eye on the African human rights systems. Secondly, this paper will examine how they relate to the Endorois case that was recently decided by the African Commission on Human and Peoples’ Rights. This paper will conclude with an investigation into what this could mean for indigenous peoples’ rights in the African context.
Prior to the adoption of the UNDRIP, the text had been debated at length by the United Nations Working Group on Indigenous Populations, State representatives and indigenous communities with a negotiated version being adopted by the Human Rights Council in June 2006. Throughout this process most African States did not take any meaningful part in the debates, undoubtedly for a variety of reasons, all of which have been addressed elsewhere. Importantly, however, once the UNDRIP arrived in the Third Committee of the United Nations General Assembly, Namibia, on behalf of a group of African States and governments (African Group), called for a deferment on consideration and action on the proposed Declaration, with no African State voting against Namibia’s amendment. On 9 November 2006, the African Group published their concerns in a document entitled Draft Aide Memoire – United Nations Declaration on the Rights of Indigenous Peoples.
At the time of the Draft Aide Memoire, many African States held a unified, and seemingly hostile position towards the UNDRIP. However, since then there have been many developments at the African level, which has led to a change in how the human rights norms contained within the UNDRIP are seen, understood and interpreted in the African context. In order to gain a better understanding of the protections offered to indigenous peoples on the African continent, it is necessary to examine the concerns raised in the Draft Aide Memoire and highlight how these concerns have been addressed at the regional level. The purpose of this Chapter is to do just that, examine in particular how the issue of defining indigenous peoples has been tackled on the African continent, how the right to self-determination has unfolded for indigenous peoples in Africa, and how indigenous peoples’ right to free, prior and informed consent has been interpreted at the regional level.
However, this then begs the question: What is Canada’s ‘duty to consult’? What is the content of this ‘duty’? Does this ‘duty’ even exist? If it does, is there a discrepancy between the established ‘duty to consult’ and the legislative amendments included in Bill C-38 and Bill C-45?
The purpose of this article is to attempt to answer all of these questions. To do this, we will begin by examining contemporary Canadian jurisprudence on the issue, including reviewing the relevant case law in order to gain an insight into the procedural substance of the ‘duty to consult’. Following this, in an attempt to enrich and deepen the discussion concerning the recent developments in Canada, we will outline the emergence of consultation norms at the international level, and highlight recent jurisprudence that takes into consideration consultation duties at the Inter-American Court of Human Rights. The article will conclude by juxtaposing the emergence of the international and regional norms regarding consultation duties with current events in Canada, in order to confirm the discrepancy between the recent legislative amendments and domestic jurisprudence, international law, international human rights law, and regional human rights law.
Our hope is that this article will not only inform readers of current events in Canada but also enrich the current discourse on the participatory rights of indigenous peoples in the context of land and natural resource development.
The purpose of this Chapter is to respond to these concerns by examining developments in the Democratic Republic of Congo (DRC), compared and contrasted with developments at the international and regional level, hopefully allowing any gaps in the protection of victims’ participatory rights to surface. The Chapter will begin by highlighting the importance, and obligation, of States to use prosecutions as a post-conflict or transitional justice mechanism. This will be followed by providing an overview of the development of international and regional legal standards with regards to victim participation, highlighting the contributions of the International Criminal Court, human rights law and specialised tribunals, most notably the Extraordinary Chambers in the Courts of Cambodia. The Chapter will conclude with presenting the DRC as a case study: analysing the domestic legal framework, where victim participation exists in theory as a partie civile (civil party); analysing the jurisprudence arising from the military tribunals, as these courts have exclusive jurisdiction over crimes under international law but recognise a more restrained access for victims compared to criminal courts in the ordinary judicial system; and, examining recent developments, such as the proposed mixed tribunals and the implementation of international criminal law in national legislation.
By using human rights law indigenous peoples have managed to influence human rights law making it more relevant and applicable to their specific needs. The second part of this article will focus on how indigenous peoples have utilized the established international and regional human rights fora to present alternative views, effectively redefining legal terms, reinterpreting existing human rights provisions and finding new meaning to already established human rights norms.
While there is no doubt that these achievements should be applauded, what is also of interest, and deserves further study, are the ways in which human rights jurisprudence concerning indigenous peoples’ collective rights intermingle, cross-fertilize and integrate. This dynamic relationship between the various sources of indigenous rights law has had a tremendous impact locally, changing how States interact with the indigenous peoples living within its borders.
The first aim of this paper will be to explore the above-mentioned topics in detail with a particular eye on the African human rights systems. Secondly, this paper will examine how they relate to the Endorois case that was recently decided by the African Commission on Human and Peoples’ Rights. This paper will conclude with an investigation into what this could mean for indigenous peoples’ rights in the African context.
Prior to the adoption of the UNDRIP, the text had been debated at length by the United Nations Working Group on Indigenous Populations, State representatives and indigenous communities with a negotiated version being adopted by the Human Rights Council in June 2006. Throughout this process most African States did not take any meaningful part in the debates, undoubtedly for a variety of reasons, all of which have been addressed elsewhere. Importantly, however, once the UNDRIP arrived in the Third Committee of the United Nations General Assembly, Namibia, on behalf of a group of African States and governments (African Group), called for a deferment on consideration and action on the proposed Declaration, with no African State voting against Namibia’s amendment. On 9 November 2006, the African Group published their concerns in a document entitled Draft Aide Memoire – United Nations Declaration on the Rights of Indigenous Peoples.
At the time of the Draft Aide Memoire, many African States held a unified, and seemingly hostile position towards the UNDRIP. However, since then there have been many developments at the African level, which has led to a change in how the human rights norms contained within the UNDRIP are seen, understood and interpreted in the African context. In order to gain a better understanding of the protections offered to indigenous peoples on the African continent, it is necessary to examine the concerns raised in the Draft Aide Memoire and highlight how these concerns have been addressed at the regional level. The purpose of this Chapter is to do just that, examine in particular how the issue of defining indigenous peoples has been tackled on the African continent, how the right to self-determination has unfolded for indigenous peoples in Africa, and how indigenous peoples’ right to free, prior and informed consent has been interpreted at the regional level.
However, this then begs the question: What is Canada’s ‘duty to consult’? What is the content of this ‘duty’? Does this ‘duty’ even exist? If it does, is there a discrepancy between the established ‘duty to consult’ and the legislative amendments included in Bill C-38 and Bill C-45?
The purpose of this article is to attempt to answer all of these questions. To do this, we will begin by examining contemporary Canadian jurisprudence on the issue, including reviewing the relevant case law in order to gain an insight into the procedural substance of the ‘duty to consult’. Following this, in an attempt to enrich and deepen the discussion concerning the recent developments in Canada, we will outline the emergence of consultation norms at the international level, and highlight recent jurisprudence that takes into consideration consultation duties at the Inter-American Court of Human Rights. The article will conclude by juxtaposing the emergence of the international and regional norms regarding consultation duties with current events in Canada, in order to confirm the discrepancy between the recent legislative amendments and domestic jurisprudence, international law, international human rights law, and regional human rights law.
Our hope is that this article will not only inform readers of current events in Canada but also enrich the current discourse on the participatory rights of indigenous peoples in the context of land and natural resource development.
Unfortunately, despite these developments, along with recent jurisprudence emanating from the African Commission on Human and Peoples’ Rights, the rights of indigenous peoples in Africa have not received such unanimous recognition or acceptance. Arguments over which groups constitute ‘indigenous peoples’ in this region are ongoing while foreign investors are purchasing or leasing massive portions of land far below market prices, often without the consent of those who live from the land, threatening the very survival of the communities at issue.
The purpose of this presentation will to examine indigenous peoples’ land rights and their application in Africa considering the phenomenon of land grabbing taking place throughout the Continent. To that end, this presentation will: provide an overview of the development of indigenous peoples’ land rights in the international arena, with particular focus on the International Labour Organization Conventions, jurisprudence from the United Nations treaty bodies, and regional perspectives emanating from the Inter-American Court of Human Rights; analyze the concept of indigenous peoples in Africa; and conclude with some remarks on land grab in Africa and the (in)compatibility of these practices with emerging standards on indigenous rights such as free, prior and informed consent.
In other Asian countries where colonial regimes were established, the principle of national unity was asserted as part of the decolonization and nation-building processes, effectively suppressing any special recognition for indigenous peoples. Government officials were wary of providing legal recognition and status to indigenous peoples, fearing that political instability and threats to territorial integrity would follow.
In recent years, however, there has been a noticeable shift in how some Asian states have approached this topic. A number of countries have granted indigenous peoples constitutional recognition or distinct legal status, or have developed special laws in an attempt to address the specific human rights issues facing indigenous peoples, most notably land rights. Although this shift should be applauded, indigenous peoples continue to experience many forms of human rights violations, with the most serious perhaps being the loss of traditional lands and territories to “land grabbing” by a variety of actors, development projects commissioned by the State, the establishment of protected nature reserves and plantations, and the granting of logging concessions. Reports suggest that indigenous peoples throughout Asia are routinely being displaced, witnessing the degradation of their traditional environment, and continuing to be among the most discriminated against, the most socially and economically marginalized, and the most politically subordinated of any population group.
This paper will begin by providing an overview of the existing international human rights framework, binding and non-binding, in relation to indigenous peoples and, more specifically, indigenous peoples’ land rights across Asia. Following that, this paper will provide a detailed case study of three countries: Cambodia, the Philippines, and Malaysia. These three countries have been chosen as they all recognize indigenous peoples’ land rights to some extent, whether through constitutional amendments, legislative reform, or domestic jurisprudence. However, as mentioned above, the reality for indigenous peoples is that their customary rights to traditional lands have not been entirely recognized or respected. Moreover, indigenous peoples appear to be absent from decision-making processes in relation to policies that may affect them directly. This paper will highlight this implementation gap between the rights of indigenous peoples in law and practice and provide recommendations for the future."
Indigenous peoples, on the other hand, have always articulated their collective rights, and, to their credit, achieved notable success. While there is no doubt that these achievements should be applauded, what is also of interest, and deserves further study, are the ways in which human rights jurisprudence concerning indigenous peoples’ collective rights intermingle, cross-fertilize and integrate. This dynamic relationship between the various sources of indigenous rights law has had a tremendous impact locally, changing how States interact with the indigenous peoples living within its borders.
The first aim of this paper will be to explore the above-mentioned topics in detail with a particular eye on the African human rights systems. Secondly, this paper will examine how they relate to the Endorois case that was recently decided by the African Commission on Human and Peoples’ Rights. This paper will conclude with an investigation into what this could mean for indigenous peoples’ rights in the African context.