Law Commons^™

Decolonizing Indigenous Migration, Angela R. Riley, Kristen A. Carpenter

Publications

As global attention turns increasingly to issues of migration, the Indigenous identity of migrants often remains invisible. At the U.S.-Mexico border, for example, a significant number of the individuals now being detained are people of indigenous origin, whether Kekchi, Mam, Achi, Ixil, Awakatek, Jakaltek or Qanjobal, coming from communities in Venezuela, Honduras, Guatemala and other countries. They may be leaving their homelands precisely because their rights as Indigenous Peoples, for example the right to occupy land collectively and without forcible removal, have been violated. But once they reach the United States, they are treated as any other migrants, without regard …

(Indigenous) Language As A Human Right, Kristen Carpenter, Alexey Tsykarev

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The United Nations General Assembly has proclaimed 2022-2032 as the International Decade of Indigenous Languages. Building on lessons of the International Year of Indigenous Languages of 2019, the Decade will "draw attention to the critical loss of indigenous languages and the urgent need to preserve, revitalize and promote indigenous languages." These actions are necessary, in part, because existing laws and policies have proven inadequate to redress the legacy of state suppression of indigenous languages or ensure nondiscrimination in contemporary usage. In light of the International Year and Decade, this Article explores the rights of indigenous peoples to "use, revitalize, and …

Privatizing The Reservation?, Kristen A. Carpenter, Angela R. Riley

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The problems of American Indian poverty and reservation living conditions have inspired various explanations. One response advanced by some economists and commentators, which may be gaining traction within the Trump Administration, calls for the “privatization” of Indian lands. Proponents of this view contend that reservation poverty is rooted in the federal Indian trust arrangement, which preserves the tribal land base by limiting the marketability of lands within reservations. In order to maximize wealth on reservations, policymakers are advocating for measures that would promote the individuation and alienability of tribal lands, while diminishing federal and tribal oversight.

Taking a different view, …

Human Rights Racism, Anna Spain Bradley

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International human rights law seeks to eliminate racial discrimination in the world through treaties that bind and norms that transform. Yet law’s impact on eradicating racism has not matched its intent. Racism, in all of its forms, remains a massive cause of discrimination, indignity, and lack of equality for millions of people in the world today. This Article investigates why. Applying a critical race theory analysis of the legal history and doctrinal development of race and racism in international law, Professor Spain Bradley identifies law’s historical preference for framing legal protections around the concept of racial discrimination. She further exposes …

Standing Rock, The Sioux Treaties, And The Limits Of The Supremacy Clause, Carla F. Fredericks, Jesse D. Heibel

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The controversy surrounding the Dakota Access Pipeline (“DAPL”) has put the peaceful plains of North Dakota in the national and international spotlight, drawing thousands of people to the confluence of the Missouri and Cannonball Rivers outside of Standing Rock Sioux Reservation for prayer and peaceful protest in defense of the Sioux Tribes’ treaties, lands, cultural property, and waters. Spanning over 7 months, including the harsh North Dakota winter, the gathering was visited by indigenous leaders and communities from around the world and represents arguably the largest gathering of indigenous peoples in the United States in more than 100 years.

At …

Operationalizing Free, Prior, And Informed Consent, Carla F. Fredericks

Publications

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) has acknowledged varying ways in which international actors can protect, respect and remedy the rights of indigenous peoples. One of these methods is the concept of free, prior and informed consent (FPIC) as described in Articles 10, 19, 28 and 29. There has been much debate in the international community over the legal status of the UNDRIP, and member states have done little to implement it. In applied contexts, many entities like extractive industries and conservation groups are aware of risks inherent in not soliciting FPIC and have endeavored to …

Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On The Situation Of Indigenous Peoples In The Republic Of The Congo, S. James Anaya

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No abstract provided.

Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On The Situation Of Indigenous Peoples In Canada, S. James Anaya

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No abstract provided.

Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On Extractive Industries And Indigenous Peoples, S. James Anaya

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No abstract provided.

Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On The Situation Of Indigenous Peoples In The United States Of America, S. James Anaya

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No abstract provided.

Introduction, S. James Anaya

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No abstract provided.

Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On The Situation Of Maori People In New Zealand, S. James Anaya

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No abstract provided.

Introductory Remarks, James Anaya

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These remarks were delivered at a Corporate Responsibility and Human Rights panel held on Wednesday, April 9, 2014.

The Judge And The Drone, Justin Desautels-Stein

Publications

Among the most characteristic issues in modern jurisprudence is the distinction between adjudication and legislation. In the some accounts, a judge's role in deciding a particular controversy is highly constrained and limited to the application of preexisting law. Whereas legislation is inescapably political, adjudication requires at least some form of impersonal neutrality. In various ways over the past century, theorists have pressed this conventional account, complicating the conceptual underpinnings of the distinction between law-application and lawmaking. This Article contributes to this literature on the nature of adjudication through the resuscitation of a structuralist mode of legal interpretation. In the structuralist …

Indigenous Peoples And The Jurisgenerative Moment In Human Rights, Kristen A. Carpenter, Angela R. Riley

Publications

As indigenous peoples have become actively engaged in the human rights movement around the world, the sphere of international law, once deployed as a tool of imperial power and conquest, has begun to change shape. Increasingly, international human rights law serves as a basis for indigenous peoples' claims against states and even influences indigenous groups' internal processes of decolonization and revitalization. Empowered by a growing body of human rights instruments, some as embryonic as the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), indigenous peoples are embracing a global "human rights culture" to articulate rights ranging from …

Tribal Rights, Human Rights, Kristen A. Carpenter, Angela R. Riley

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No abstract provided.

The Human Rights Of Indigenous Peoples: United Nations Developments, S. James Anaya

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No abstract provided.

An Unintended Casualty Of The War On Terror, Aya Gruber

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As the dust of the Bush administration's war on terror settles, casualties are starting to appear on the legal battlefield. The United States' human rights reputation and the Supreme Court's international influence lay wounded in the wake of U.S. policies that flouted international law by advocating torture, suborning indefinite detention, and erecting irregular tribunals. Through declining citation, the courts of the world are telling the Supreme Court that if it does not respect international and foreign law, international and foreign courts will not respect it. Some might object that the Supreme Court should not be lumped with the Bush administration …

The Double Weakness Of Girls: Discrimination And Sexual Violence In Haiti, Benedetta Faedi Duramy

Publications

This Note is about poverty, inequality, and sexual violence. Using empirical research, it explores cultural beliefs, practices of abuse, and criminal justice responses to the widespread and systematic rape affecting girls in the shantytowns of Port-au-Prince, Haiti. Dominated by the vestiges of the French colonization and plagued by destitution and political instability, Haiti faces rampant violence and disarray leaving the majority of its population in unbearable conditions of despair. Often regarded as a pariah state by the international community and erratically supported or invaded by foreign players, Haiti remains a forgotten country despoiled by human rights violations, decadence, and turmoil.

Sending The Self-Execution Doctrine To The Executioner, Aya Gruber

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No abstract provided.

Keynote Address: Indigenous Peoples And Their Mark On The International Legal System, S. James Anaya

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No abstract provided.

Today's Indian Wars: Between Cyberspace And The United Nations, S. James Anaya

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No abstract provided.

Indian Givers: What Indigenous Peoples Have Contributed To International Human Rights Law, S. James Anaya

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No abstract provided.

Divergent Discourses About International Law, Indigenous Peoples, And Rights Over Lands And Natural Resources: Toward A Realist Trend, S. James Anaya

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In this article renowned scholar S. James Anaya analyzes the divergent assessments of international law's treatment of indigenous peoples' demands to lands and natural resources. The author explores several strains of arguments that have been advanced within this debate, including state-centered arguments and human rights-based arguments. The author also examines the shortcomings of recurring interpretive approaches to international law that consider indigenous peoples' rights to land and resources. From this analysis the author identifies a more promising approach within the human rights framework--which he describes as a realist approach--that focuses on the confluence of values, power, and change. The author …

Indigenous Peoples’ Participatory Rights In Relation To Decisions About Natural Resource Extraction: The More Fundamental Issue Of What Rights Indigenous Peoples Have In Lands And Resources, James Anaya

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No abstract provided.

Environmentalism, Human Rights And Indigenous Peoples: A Tale Of Converging And Diverging Interests, S. James Anaya

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No abstract provided.

Customary International Law, S. James Anaya

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No abstract provided.

International Law In The Nigerian Legal System, Christian N. Okeke

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The central argument of this paper is that the character of a nation's system of law is inextricably connected with its socio-economic, cultural, religious and political make-up. To understand the attitude of a nation towards other nations, one must not be ignorant of the laws through which that nation gives expression to its sense of justice and regulates its structure. Furthermore, one must bear in mind that each system of law has different concepts through which its law is expressed, language through which it is explained, categories by which it is organized, and legal rules which themselves embody the law …

Wisdom Across The Atlantic: North America And The European Experience, Paul S. Kibel

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No abstract provided.

"The Sacred Rights Of The Weak": Pain, Sympathy, And The Culture Of Individual Rights In Antebellum America, Elizabeth B. Clark

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In 1835 an antislavery sympathizer leaving a lecture by Theodore Dwight Weld went home to dream that she was transported above the world; looking down at the United States, she saw "multitudes of sable figures, bending beneath a scorching sun -- their backs lacerated by the whip -- scourged, maimed, loaded with irons -- subject to every insult -- and exposed to every gust of unbridled passions." The dreamer, a Mrs. Sturges, drew from many discourses in describing her lengthy dream, but the fundamental trope of her visionary narrative was the story of the suffering slave, a trope that in …