Search Results (22)

The article examines possible amendments to the Australian legislative regime regulating and protecting Indigenous cultural heritage in an offshore, including underwater, context. It suggests that there are significant reforms that are needed to bring the existing domestic legislative regime into conformity with the expectations of contemporary international law, particularly as manifested in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In reaching this conclusion, the article proceeds by examining recent Australian jurisprudence and archaeological studies, considering offshore Indigenous cultural heritage as well as the current Australian domestic legislative framework. It then proceeds to examine the relevant provisions of both UNDRIP and the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage (UCH Convention). The article identifies that the UCH Convention operates to ignore any legitimate role for Indigenous peoples and does not provide an appropriate foundation for legislative reform. The article concludes by suggesting the content of appropriate legislative reforms that accord with the expectations in UNDRIP. Full article

This article identifies the nature of Traditional Owners’ interests in Sea Country and addresses issues associated with all offshore energy projects—gas and wind. Exploring the impacts of offshore development on First Nations’ cultural heritage, the article proposes integration of free, prior and informed consent (FPIC) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), into the regulatory and legislative offshore environment. In the Australian context, this particularly regards administrative and regulatory reforms to overcome uncertainty arising from recent decisions in the Federal Court. The international focus on new energy has fast-tracked many processes that sideline First Nations’ rights, hitherto understood within the onshore minerals extraction regimes. The reforms proposed in this article recognise an international commitment to enact the principles contained in the UNDRIP and other relevant international law. Full article

The Doctrine of Christian Discovery is a series of fifteenth-century papal bulls that served as the theological and legal justification for the colonization of the world and the enslavement of the Original Free Nations, starting first on the African continent before spreading across the globe. In the 1800s, these bulls and other documents like The Requerimiento and colonial charters would be codified and enshrined together in U.S. law as the Doctrine of Christian Discovery, becoming the foundation of property law and international law. Also, considering what Peter d’Errico calls Federal Anti-Indian Law, we will trace and document how this framework of domination began with the Catholic crowns of Europe and transformed into the dominion theology found within Christian nationalist theologies today. Our research highlights how the Doctrine became enshrined and encoded within Protestantism and the imagined “secular” of the U.S. and Canada, countries who rhetorically espouse separation of church and state while justifying land theft, treaty violations, and the abuse of Indigenous nations and peoples through the Doctrine. We craft a genealogy of Christian domination by carefully analyzing primary sources, especially the colonial charters. We will conclude by juxtaposing the domination framework and the Haudenosaunee Confederacy’s principles of the Gayanashagowa (Great Law of Peace). Full article

Three models/methods are given to understand the extreme international variation in available and occupied hospital bed numbers. These models/methods all rely on readily available data. In the first, occupied beds (rather than available beds) are used to measure the expressed demand for hospital beds. The expressed occupied bed demand for three countries was in the order Australia > England > USA. Next, the age-standardized mortality rate (ASMR) has dual functions. Less developed countries/regions have low access to healthcare, which results in high ASMR, or a negative slope between ASMR versus available/occupied beds. In the more developed countries, high ASMR can also be used to measure the ‘need’ for healthcare (including occupied beds), a positive slope among various social (wealth/lifestyle) groups, which will include Indigenous peoples. In England, a 100-unit increase in ASMR (European Standard population) leads to a 15.3–30.7 (feasible range) unit increase in occupied beds per 1000 deaths. Higher ASMR shows why the Australian states of the Northern Territory and Tasmania have an intrinsic higher bed demand. The USA has a high relative ASMR (for a developed/wealthy country) because healthcare is not universal in the widest sense. Lastly, a method for benchmarking the whole hospital’s average bed occupancy which enables them to run at optimum efficiency and safety. English hospitals operate at highly disruptive and unsafe levels of bed occupancy, manifesting as high ‘turn-away’. Turn-away implies bed unavailability for the next arriving patient. In the case of occupied beds, the slope of the relationship between occupied beds per 1000 deaths and deaths per 1000 population shows a power law function. Scatter around the trend line arising from year-to-year fluctuations in occupied beds per 1000 deaths, ASMR, deaths per 1000 population, changes in the number of persons hidden in the elective, outpatient and diagnostic waiting lists, and local area variation in births affecting maternity, neonatal, and pediatric bed demand. Additional variation will arise from differences in the level of local funding for social care, especially elderly care. The problems associated with crafting effective bed planning are illustrated using the English NHS as an example. Full article

The governance of the water, energy, and food (WEF) nexus is significant in the Arctic, where environmental changes are occurring at an accelerated pace, intensifying resource dynamics and geopolitical implications. Against the backdrop of a rapidly evolving Arctic landscape shaped by the global climate change, melting ice, and resource exploration, the WEF nexus emerges as a vital framework for understanding and addressing the region’s complex resource interdependencies. Nonetheless, legal research in this context is still in its early stages, and, specifically in the context of the Arctic, we did not find any such research. This study assesses a nexus approach to WEF in Arctic’s transdisciplinary and multifaceted environment from an international law perspective to address the intricate dynamics that shape the resilience and security of WEF resources in an increasingly interconnected and accessible Arctic. Our objective in this study is to introduce international law as an overarching network of international rules and principles, legal instruments, and relevant institutions as a starting point to address the WEF governance intricacies in the Arctic, facilitating the harmonization of diverse interests, ensuring equitable access to resources, and promoting sustainable development. We argue that international law constitutes the essential means to address a nexus approach to WEF and its issues and complexities in a transboundary context within the Arctic. By examining existing international legal frameworks applicable to the Arctic and related instruments, policies, journals, and other publications, this paper seeks to canvas how international law is in support of a nexus approach to WEF in this region. Full article

The specialized literature, leading organizations, and international law, like the Paris Agreement, have increasingly recognized the relevance of Indigenous Peoples’ and Local Communities’ contributions to climate change adaptation. Despite this, few studies have investigated how their rights are considered in relevant public policies and decision-making processes. This article explores how the rights of protection and participation of Traditional Peoples and Communities are incorporated in climate- and environment-related public policy documents and examines how community members perceive their engagement in the drafting of those documents and their implementing agencies. For this purpose, it uses a Brazilian traditional community as a case study and undertakes a content analysis of a set of plans and programs applying to its territory and a series of interviews with local members. The findings reveal that while there are a few references to Traditional Peoples and Communities in the diagnosis parts of the plans and programs, they are scarce in substantive parts like objectives and measures. In addition, those references rarely relate to traditional knowledge. These results are also visible in local plans. Moreover, community members appear to feel poorly protected from climate change impacts, misinformed about these plans and programs, and overlooked when it comes to the insertion of their traditional knowledge of climate action measures into these plans and programs. The poor recognition of the protected status of these peoples and communities in the context of climate change highlights the need for a more sensitive and robust design of climate and environment-related plans and programs, ensuring the incorporation of their valuable contributions and traditional knowledge. Further efforts are required to acknowledge this gap and to better bridge the translation of international law into national and municipal plans, and programs, and effectively involve Traditional Peoples and Communities. Full article

This paper investigates whether and how International Law on Indigenous Peoples (ILIP) can complement protections granted under International Refugee Law (IRL) and International Human Rights Law (IHRL) to refugees in camps in Thailand. Presently, there are over 90,000 refugees from Myanmar in Thailand, confined to nine camps along the Thailand–Myanmar border. These refugees belong to different ethnic minority groups, but the vast majority are Karen—Indigenous Peoples from the Thailand–Myanmar border regions. They have fled to Thailand due to persecution by Myanmar authorities and segments of the Myanmar population. To date, Thailand has refused to become a party to the 1951 Refugee Convention or its 1967 Protocol. The country has failed to develop an asylum system and its laws continue to regard refugees as ‘illegal migrants’. These refugees have been surviving in conditions of profound rightlessness. I posit that ILIP has a critical role to play in addressing the protection gaps and limitations in IRL and IHRL. In particular, the ILIP system of collective rights is vital in recognising the specific needs of refugees who are indigenous peoples. ILIP therefore provides a potent tool to make IRL and IHRL more responsive to the protection needs of indigenous refugees. Full article

The adoption and ratification of new conventions and treaties under international law designed to protect both Indigenous peoples and the rights of nature have resulted in successful rulings by local, federal, and regional courts in favor of Indigenous groups engaged in class-action suits against their governments. In 2012 and 2019, respectively, the Sarayaku Kichwa and the Huaorani and Cofán peoples of the Ecuadorian Amazon won cases against the Ecuadorian government for its lack of consultation on planned oil exploration. Such cases upholding the correct application of the right to Free, Prior, and Informed Consent (FPIC) under international treaties are rare; more often, Western judicial systems and environmental impact assessments have been used to serve corporate interests, as exemplified by the Aguinda v. Texaco case initiated in 1993 and the planned operations of Andes Petroleum in Orellana province 2019–2020, respectively. Indigenous and non-Western epistemologies tend to be incompatible with state-driven liberal secular capitalism—hence Indigenous efforts to prevent land seizures and the expansion of the extractive frontier into Indigenous territories in the Amazon rainforest have been undermined by the imperatives of modernization/developmentalism. These same forces have stimulated demand for gold, the legal and illegal mining of which, along the Napo river, have caused the contamination of the waters of the Amazon, threatening the health of Indigenous and non-indigenous riverine communities. Full article

Articles 27 and 34 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) recognise Indigenous Peoples’ laws. Art. 34 gives Indigenous Peoples the right to maintain their juridical systems or customs in accordance with international human rights standards. Although the UNDRIP is soft law, its core is arguably customary law and, therefore, a binding source of law. For States with Indigenous People, such as Norway, the UNDRIP is of paramount importance, from a legal, political, and not least moral perspective. This paper discusses norm hierarchies and tensions that are created in the meeting between the Indigenous customary law of the Sámi and statutory domestic Norwegian law. The introduction of customary, commonly unwritten, Indigenous rules into the judicial portfolio of a State creates an obvious challenge: what is their legal status? Can Indigenous law set aside domestic statutory norms? Some might argue that due to historical wrong, Indigenous law should always take precedence when domestic law conflicts with it. While Norwegian domestic law acknowledges the precedence of certain core human rights treaties over domestic laws, the same is not valid for Indigenous rights. How then should Indigenous custom be dealt with before a court of law, and how do the different legal systems relate to each other? This paper is foremost based on theoretical, to a lesser degree also on empirical material. It discusses on a general level the relationship between different legal systems within the same State and, on a specific level, the dealing of the Norwegian courts with Sámi Indigenous laws and customs. Full article

Media accounts of hundreds of unmarked graves of children at the sites of residential schools in Canada in 2021 is one more urgent call for all Canadians to start walking the path for reconciliation, decolonization, and anti-racism. In this exploratory reflection utilizing hermeneutical phenomenology, my journey to reconciliation is described. Through a review of Indigenous law and sovereignty, Canadian numbered treaties, and residential schools, this article explores justice, discovering the truth, and advancing reconciliation. In order to achieve justice, first ethnocentrism, or our evaluation of Indigenous cultures according to our preconceived preference for our own standards and customs, must be recognized, exposed, and set aside. Without our own ethnocentric attachment, and consequently with an open mind, we can hear the truth of Indigenous peoples and internalize it. Examples include the truth of the treaties and residential schools. The reconciliation path entails pursuing justice; this includes recognizing both Indigenous sovereignty and Indigenous law. This path doesn’t ‘restore’ relations historically, but does build reconciliation for the future. However, the process will not be comfortable. The reward will be a more equitable and inclusive society. Full article

The general purpose of regulating chemical and hazardous waste in international legal frameworks is to protect against life-threatening and adverse impacts on the environment during its generation and use at the domestic level and global transfer. Implementing these global regimes can be effective at the national level when the top leadership makes environmental protection a priority agenda in its policy and legislation, shifting from a traditional economic development attitude to harmonizing environmental, human rights, and economic growth needs. To this end, the joint plans and actions of institutions, which should be augmented by public involvement and judicial activism, play crucial roles. Mining companies should also be part of this cooperative framework, changing their enclave attitude and exclusionary approach. This paper analyzes the implementation of chemical- and hazardous-waste-based global regimes in Ethiopia by adopting a comparative method as a lesson from other jurisdictions. It argues that realizing multilateral agreements remains in the dock due to legal and practical gaps. The applicable domestic laws are flawed, exhibiting inconsistency, fragmentation, and inadequacy. Additionally, the state’s conduct does not balance its or investors’ economic interests with those of indigenous people, including their health, livelihood, and the environment. Thus, it recommends legal rectification and practical compliance with international law to realize the sustainable viability of human health and environmental media. Full article

This article argues that the (Western-oriented) right to religion has been proven inadequate in protecting Indigenous Peoples’ rights. It recognizes that this is partly because of the distinctive characteristics of Indigenous religions, which differ from other dominant religions, but also because of the way in which religion has been used by colonialism with dramatic effects on Indigenous Peoples and their beliefs, spiritualities, and worldviews. The article focuses on Latin America to argue further that in addition to colonialism, the early Constitutions also attacked Indigenous religions. As Indigenous rights are more acknowledged in Latin America, we take this region as an excellent, albeit painful, example of how Indigenous religions have been pushed aside even in the most positive contexts. The article uses the constitutional and legal arrangements in Latin American states, mainly Ecuador and Bolivia, to critically assess the protection that these favorable to Indigenous Peoples legal systems’ guarantee to Indigenous rights despite a persistent implementation gap. Also, this article highlights the weaknesses of the international system in mitigating the manifold threats that Indigenous Peoples have to face on a daily basis in their struggle to maintain and transmit their religions and spirituality, including the assault of other religions and sects into their communities and the so-called neo-extractivism. The article finally draws some concluding remarks and recommendations on how to improve the freedom of and violations from religion(s) of Indigenous Peoples in the context of Latin America as well as international law more broadly. Full article

Asserting the right to meaningful representation, challenging the epistemological and methodological expansion of global corporate capitalism and its impacts on Indigenous Peoples’ territories and cultures, aligns with the implementation of global treaties and conventions that are part of key international laws regarding issues of climate change, biodiversity conservation, education, global health, human rights, and sustainable development. Indigenous Peoples have been consistently excluded from nation state visions of modernity and development, which continues to limit their full participation in global sustainable development initiatives and their meaningful representation therein. Increasing the visibility of this struggle is imperative for Indigenous Peoples, particularly around the strategic areas in which the implementation of global sustainable development treaties, policies, and goals continues to affect their rights. This article inquires whether Indigenous Peoples’ emancipatory appropriation of media means from a transnational perspective that breaks their regional enclosure can contribute to decolonize the world. More specifically, it questions how a new Indigenous global media network would contribute to decolonize the relations between Indigenous Peoples and nation states. A wider mapping of Indigeneity that decolonizes sustainable development becomes critical in order to formally document the efforts of Indigenous Peoples to reconstruct and restore their epistemic and material relations. This article questions how an Indigenous global media network around new nexus research can benefit Indigenous Peoples, and make visible the incorporation of the recommendations and principles from international law emanated from the self-determined voices of Indigenous leaders, experts, and policy makers to decolonize global sustainable development goals. Full article

Indigenous peoples’ environments can be easily disrupted by foreign investments, and disputes have occasionally occurred over the past few years. The objective of this research article is to examine if current international investment law, especially its investor-state dispute settlement (ISDS) mechanism, could provide necessary protection to Indigenous rights. We searched all publicly available ISDS cases from 2000 to 2020, and selected 10 typical ones for comprehensive case study by using various research methods such as doctrinal legal research and comparative analysis. Our research revealed that Indigenous peoples’ participation in the ISDS proceedings is legally restrained, time-consuming, and rarely favorably decided by the arbitral tribunals. Responsibility for such undesirable outcomes rests with all stakeholders involved in the process, while the consequences of post-arbitration tend to be “triple losing”. These findings highlight the quest for a more sustainable international investment regime that promotes Indigenous peoples’ wellbeing and environment protection. We argue that future reform could be promoted not only over ISDS procedural matters, but also by upgrading substantive rules in international investment agreements (IIAs), emphasizing free, prior, and informed consent (FPIC), and strengthening foreign investors’ corporate social responsibilities (CSR). Full article

Religion and public policy are interconnected across a variety of issues. One aspect where this linkage has been understudied is religion and Indigenous sacred sites protection. This article aims to address this gap by analyzing how Indigenous women’s activism advances this cause. The focus is on how Indigenous Peoples, specifically women, use grassroots activism to provoke change on public policy in the context of the protection of Indigenous sacred sites. Two case studies are used to illustrate this concept: the American “Women of Standing Rock” and the Canadian “Idle No More” grassroots social movements. My analysis draws from interpretative methods. Interpretative research revolves around the concept of individuals as active producers of meaning. The women-led grassroots social movements at issue highlight a fundamental lack of awareness of the historical and current struggles of Indigenous Peoples, both in the US and Canada. Modern technologies and social media provide democratic means for grassroots social movements to be heard and empowered. The growing movement by Indigenous women to assert their rights, and their quest for self-determination in land use and sacred sites protection create a positive discourse that advances Indigenous women’s position in crossing the obstacles onto “institutional places of privilege,” hence influencing public policy. Full article