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Contents
- Preliminary Material
- Dedication
- Contents
- Table of Cases
- International
- African Commission on Human and Peoples’ Rights
- Committee on the Elimination of Racial Discrimination
- European Court of Human Rights
- European Patent Office
- Inter-American Commission and Court of Human Rights
- International Arbitration
- International Centre for Settlement of Investment Disputes (ICSID)
- International Court of Justice
- International Criminal Court for Rwanda
- International Criminal Tribunal for Yugoslavia
- Permanent Court of Arbitration
- Permanent Court of International Justice
- UN Commission on International Trade Law (UNCITRAL)
- UN Human Rights Committee
- US Military Tribunal
- World Trade Organisation
- National
- International
- Table of Legislation
- List of Abbreviations
- List of Contributors
- Main Text
- Introduction
- Part I The UNDRIP’s Relationship to Existing International Law
- Ch.1 Who Are ‘Indigenous Peoples’?: An Examination of Concepts Concerning Group Membership in the UNDRIP
- Ch.2 The Making of the UNDRIP
- 1 Introduction
- 2 Background
- 2.1 Historical Antecedents
- 2.2 Convention 107 and the Birth of the Modern Indigenous Peoples’ Regime
- 2.3 The Indigenous Rights Movement and Its Inclusion on the UN Human Rights Agenda
- 2.4 ILO Convention 169
- 2.5 The Mainstreaming of Indigenous Peoples’ Rights in International Human Rights Law and Practice
- 3 The UN Declaration: Drafting and Negotiation
- 4 The UN Declaration: Final Adoption
- 5 Conclusion: The Declaration as Part of Modern International Human Rights Law
- Ch.3 Relationship to Human Rights, and Related International Instruments
- 1 Introduction
- 1.1 What Is the Relationship between Indigenous Peoples’ Right to Self-Determination and States’ Sovereign Rights, Including Their Right to Respect for Their Territorial Integrity?
- 1.2 What Is the Relationship between Indigenous Peoples’ Right to Self-Determination and the Jurisdiction Exercised Today by States Internally?
- 1.3 ‘Collectivization’ of Rights that are Traditionally Understood to Apply to Individuals Only
- 1.4 Absence of a General Human Rights ‘Safeguard Clause’ in the UNDRIP
- 1.5 Tentative Conclusion
- 2 On the Relationship between Indigenous Peoples’ Right to Self-Determination and States’ Sovereign Rights, Including Their Right to Territorial Integrity
- 3 On the Relationship between Indigenous Peoples’ Right to Self-Determination and the Jurisdiction Today Exercised by States Internally
- 4 On the ‘Collectivization’ of the Right to Non-Discrimination and Other Human Rights Conventionally Understood to Apply to Individuals Only
- 5 Absence of a General Human Rights ‘Safeguard Clause’
- 6 Conclusion
- 1 Introduction
- Ch.4 The UNDRIP and Interactions with International Investment Law
- 1 Introduction
- 2 The UNDRIP and Indigenous Rights of Relevance for International Investment Law
- 3 The UNDRIP, Indigenous Rights, and Foreign Investments in the Jurisprudence of Human Rights Monitoring Institutions
- 4 The UNDRIP and Indigenous Rights in the Jurisprudence of Investment Tribunals
- 5 The UNDRIP’s Contribution to Existing Means to Deal with Indigenous Rights in Investment Contexts
- 6 The UNDRIP’s Aspiration: Improved Solutions to Deal with Investment Law and Indigenous Rights
- 6.1 Reference to Human/Indigenous Rights in Investment Treaties
- 6.2 Cultural/Human Rights Exception Clauses in Investment Treaties
- 6.3 A Right to Intervention of Indigenous Peoples?
- 6.4 Mandatory ex ante Human Rights/Cultural Impact Assessments?
- 6.5 Conclusions on the UNDRIP’s Potential for Improved Solutions
- 7 Conclusion
- Part II Group Identity, Self-Determination, and Relations with States
- Ch.5 Self-Determination of Indigenous Peoples: Articles 3, 4, 5, 18, 23, and 46(1)
- 1 Introduction
- 2 Background to the Issue of Self-Determination
- 3 Issues and Challenges
- 4 Context: Other Instruments Related to Self-Determination
- 5 Context: Other Rights Related to Self-Determination
- 6 Negotiating Self-Determination of Indigenous Peoples
- 7 The Adoption of the UN Declaration and Its Final Text
- 8 International Practice Concerning Self-Determination of Indigenous Peoples
- 9 Constitutional Provisions on Indigenous Peoples and Self-Determination
- 10 Autonomy, Self Government, and Political Participation
- 11 Conclusion
- Ch.6 The UNDRIP and the Rights of Indigenous Peoples to Existence, Cultural Integrity and Identity, and Non-Assimilation: Articles 7(2), 8, and 43
- 1 Introduction
- 2 The Drafting History of Articles 7(2), 8, and 43.
- 3 Legal Status and Implications of the Rights in Articles 7(2), 8, and 43
- 3.1 Collective Rights to Cultural Survival
- 3.2 The Prohibition of Genocide
- 3.3 An Emerging Prohibition of Ethnocide or Cultural Genocide?
- 3.3.1 The Concept of Ethnocide or Cultural Genocide in International Law
- 3.3.2 Related Concepts and Protections in International Law: Standards of Non-Assimilation and Cultural Survival
- 3.3.3 Developing Standards on Cultural Survival and the Link with States’ Duties to Protect Lands and Territories
- 3.3.4 Conclusions on the Prohibition of Ethnocide and Cultural Genocide in the Declaration
- 3.4 The Specific Heads of Article 8(2) and the Duty to Prevent
- 3.4.1 Article 8(2)(a): The Duty to Protect Cultural Integrity and Identity
- 3.4.2 Article 8(2)(b) and Dispossession from Lands, Territories, and Resources
- 3.4.3 Article 8(2)(c) and the Prohibition of Forced Population Transfer
- 3.4.4 Article 8(2)(d) and Forced Assimilation or Integration
- 3.4.5 Article 8(2)(e) and Propaganda Designed to Promote or Incite Racial or Ethnic Discrimination
- 3.5 Minimum Standards, Dignity, and Well-Being
- 4 Conclusion
- Ch.7 Equality and Non-Discrimination in the UNDRIP: Articles 2, 6, and 7(1)
- Ch.8 Indigenous Belonging: Membership and Identity in the UNDRIP: Articles 9, 33, 35, and 36
- 1 Introduction: The Lack of Definition and the Interplay of Legal Regimes
- 2 Drafting History: Right to Belong, Right to Determine Membership, Right to Determine Responsibilities of Members, and Right to Maintain Relations across Borders
- 3 Analysis of Article 9: The Right to Belong
- 4 Analysis of Article 33: Right to Determine Own Identity or Membership
- 4.1 Is an ‘Indigenous People’ the Same as an ‘Indigenous Community or Nation’?
- 4.2 What Does It Mean to Determine Identity or Membership?
- 4.3 What Limitations Are There on ‘Customs and Traditions’?
- 4.4 What Does It Mean to Have Citizenship in the States in Which They Live?
- 4.5 What Are the Rights with Regard to Structures and Institutions of Membership?
- 5 Analysis of Article 35: Right to Determine Responsibility of Members
- 6 Analysis of Article 36: The Right to Maintain Relations across Borders
- 7 Conclusion
- Ch.9 Free, Prior, and Informed Consent in the UNDRIP: Articles 10, 19, 29(2), and 32(2)
- Ch.5 Self-Determination of Indigenous Peoples: Articles 3, 4, 5, 18, 23, and 46(1)
- Part III Rights to Culture
- Ch.10 Culture: Articles 11(1), 12, 13(1), 15, and 34
- 1 Introduction
- 2 Drafting History of Relevant Provisions
- 3 Specific Issues with regard to Cultural Rights
- 3.1 Definition of Culture
- 3.2 The Scope of the Right to Culture
- 3.3 Rights to Cultural Customs and Traditions (Article 11(1))
- 3.4 Tangible Indigenous Heritage (Article 11(1) of the UNDRIP)
- 3.5 Rights to Spiritual and Religious Tradition (Article 12 of the UNDRIP)
- 3.6 Rights to Intangible Heritage (Article 13 of the UNDRIP)
- 3.7 Cultural Rights in Education (Article 15 of the UNDRIP)
- 3.8 Indigenous Juridical Customs and Systems (Article 34 of the UNDRIP)
- 4 Conclusions
- Ch.11 Intellectual Property and Technologies: Article 31
- 1 Introduction
- 2 Drafting History
- 3 A Right to Cultural Heritage
- 3.1 Background: Cultural Identity of Indigenous Peoples and National and International Cultural Heritage Rules and Policies
- 3.2 Cultural Heritage and the Right to Self-Determination
- 3.3 Dimensions of the Right: Maintenance and Development
- 3.4 Control, Protection, and Prior Informed Consent
- 3.5 The 2009 CESCR’s General Comment 21 on the Right of Everyone to Take Part in Cultural Life
- 3.6 In Detail: The World Heritage Listing Procedure and the Management of World Heritage Sites
- 3.7 In Detail: Return of Dislocated Cultural Property
- 3.8 Conclusion
- 4 A Right to Traditional Knowledge
- 4.1 Background and Context
- 4.2 Definition
- 4.3 A Right of Indigenous Peoples to Use, Practice, and Develop Traditional Knowledge
- 4.4 Control and Protection of Traditional Knowledge
- 4.5 Controlling Uses of Traditional Knowledge by Way of Prior Informed Consent
- 4.6 Controlling and Protecting Traditional Knowledge: Intellectual Property Implications
- 4.7 Conclusion
- 5 A Right to Traditional Cultural Expressions
- 6 The Right to Manifestations of Sciences, Technologies, and Cultures
- 6.1 Subject Matter
- 6.1.1 ‘Manifestations of Their Sciences, Technologies, and Cultures’
- 6.1.2 Human Resources
- 6.1.3 Genetic Resources
- 6.1.4 Seeds
- 6.1.5 Medicines
- 6.1.6 Knowledge of Properties of Fauna and Flora
- 6.1.7 Oral Traditions and Literatures and Designs
- 6.1.8 Sports and Traditional Games
- 6.1.9 Visual and Performing Arts and the Lack of an Explicit Mention of Music
- 6.2 Dimensions of the Right
- 6.3 Conclusion
- 6.1 Subject Matter
- 7 The Right of Indigenous Peoples to Intellectual Property over Their Heritage, Knowledge, and Expressions
- 8 State Action and Participation (Article 31, Paragraph 2)
- 9 Assessment: Relevance and Impact on International Law
- Ch.12 Media: Article 16
- Ch.13 Indigenous Education and the UNDRIP: Article 14
- 1 Introduction
- 2 History and Meaning of Article 14
- 3 Issues and Analysis of International Legal Framework
- 4 Regional Law and Domestic Practices
- 5 Conclusion: Measuring Success and Other Implementation Questions
- Ch.10 Culture: Articles 11(1), 12, 13(1), 15, and 34
- Part IV Rights to Land and Territory, Natural Resources, and Environment
- Ch.14 Indigenous Peoples’ Rights to Lands, Territories, and Resources in the UNDRIP: Articles 10, 25, 26, and 27
- 1 Introduction
- 2 Importance and Development of the Rights to Lands, Territories, and Resources in the Declaration, and Their Relationship to Other International Legal Instruments
- 2.1 Relevance and Importance of Indigenous Peoples’ Rights to Lands, Territories, and Resources
- 2.2 Historical Development of Provisions Relating to Lands, Territories, and Resources in the Declaration
- 2.3 Overlap between Other International Jurisprudence on Lands, Territories, and Resources and the Declaration
- 3 The Drafting History of the Declaration’s Articles 10 and 25 to 27
- 4 Specific Issues
- 4.1 Approach to Interpretation, Fragmentation, and Overlaps between Rights in the Declaration
- 4.2 Removals of Indigenous Peoples from Their Lands, Territories, and Resources: Article 10
- 4.3 Indigenous Peoples’ Spiritual Relationship with Their Traditionally Owned, Occupied, and Used Lands, Territories, and Resources: Article 25
- 4.4 Indigenous Peoples’ Rights to Their Lands, Territories, and Resources: Article 26
- 4.5 Rights to Lands, Territories, and Resources Possessed by Indigenous Peoples: Article 26(2)
- 4.5.1 Degree of Indigenous ‘Possession’ Required to Give Rise to a State Obligation to Legally Recognize Indigenous Peoples’ Rights to Lands, Territories, and Resources: Article 26(2) and (3)
- 4.5.2 Practical Difficulties in Recognizing Indigenous Peoples’ Rights to Their Lands, Territories, and Resources
- 4.5.3 Domestic Law Consistent with the Right of Indigenous Peoples to Their Lands, Territories, and Resources
- 4.5.4 Resources
- 4.5.5 Processes to Recognize and Adjudicate Indigenous Peoples’ Rights to Their Lands, Territories, and Resources: Article 27
- 5 Conclusion
- Ch.15 Control over Natural Resources and Protection of the Environment of Indigenous Territories: Articles 29, 30, and 32
- 1 Introduction
- 2 The Overall Drafting History of the Provisions
- 3 Control and Use of Natural Resources
- 4 Implementation of Projects Affecting Indigenous Territories
- 5 Defining Priorities and Strategies for Development
- 6 Redress and Participation in Benefits
- 7 Conservation and Protection of the Environment
- 8 Military Activities in Indigenous Territories
- 9 Conclusions
- Ch.14 Indigenous Peoples’ Rights to Lands, Territories, and Resources in the UNDRIP: Articles 10, 25, 26, and 27
- Part V Economic and Social Rights
- Ch.16 Labour Rights: Article 17
- 1 Introduction
- 2 Drafting of Article 17
- 3 Detailed Examination of Article 17
- 4 Concluding Remarks
- Ch.17 Indigenous Rights to Development, Socio-Economic Rights, and Rights for Groups with Vulnerabilities: Articles 20–22, 24, and 44
- 1 Introduction
- 1.1 The Provisions in Context
- 1.2 Relevance and Importance of the Issue Area
- 1.3 An Emerging Architecture of International Poverty Law
- 1.4 Pre-Existing Standards on the Right to Development, Economic, Social, and Cultural Rights, and the Rights of Specific Vulnerable Groups
- 1.4.1 Right to Development
- 1.4.1.1 Development in International Law: Underlying Principles and Development Policy Framework
- 1.4.1.2 The Right to Development as a Human and Peoples’ Right
- 1.4.1.3 International and Regional Development Agencies and Development Policy
- 1.4.1.4 Sustainable Development
- 1.4.1.5 Indigenous-Driven and Indigenous World-View-Based Development
- 1.4.2 The Socio-Economic Rights of Indigenous Peoples
- 1.4.3 Groups with Special Vulnerabilities
- 1.4.1 Right to Development
- 2 The Drafting History of the Articles
- 3 Analysing the Impact of Articles 21, 22, 24, and 44 on International Law and Policy
- 4 Conclusion
- 1 Introduction
- Ch.16 Labour Rights: Article 17
- Part VI International Assistance, Reparations, and Redress
- Ch.18 Legal Implementation and International Cooperation and Assistance: Articles 37–42
- 1 Introduction
- 2 The Drafting History of Articles 37 to 42
- 3 Deepening the Exegesis of Articles 37 to 42 of the UNDRIP
- 3.1 Article 37—Honouring Treaties: Evaluating Obstacles in Current International Law
- 3.2 Article 38—the Duty to Take Measures to Achieve the Ends of the UNDRIP
- 3.3 Article 39—International Cooperation and Assistance
- 3.4 Article 40—Access to Justice and Remedies
- 3.5 Article 41—International Cooperation and Assistance by the United Nations and Other Intergovernmental Organizations
- 3.6 Article 42 of the UNDRIP—the Duty to Work on the Full Realization of the UNDRIP by All Relevant UN Bodies
- 4 The Legal Significance of Articles 37 to 42 of the UNDRIP under the Perspective of Customary International Law
- 5 Conclusion—Articles 37 to 42 of the UNDRIP: From Aspirations to Real Effects on the Ground
- Ch.19 Reparations, Restitution, and Redress: Articles 8(2), 11(2), 20(2), and 28
- 1 Introduction: The Complex Dynamics of Reparations for Indigenous Peoples
- 2 The Drafting History of the Provisions concerning Reparation, Restitution, and Redress Included in the UNDRIP
- 3 Exegesis of the Relevant UNDRIP Provisions
- 4 The Provisions of the UNDRIP on Reparations, Restitution, and Redress as Reflective of Customary International Law
- 5 Conclusion
- Ch.18 Legal Implementation and International Cooperation and Assistance: Articles 37–42
- Further Material