International Law Indigenous Peoples
by
Jérémie Gilbert
  • LAST REVIEWED: 19 July 2018
  • LAST MODIFIED: 26 June 2019
  • DOI: 10.1093/obo/9780199796953-0110

Introduction

The rights of indigenous peoples under international law have evolved greatly since the late 1980s. Efforts by indigenous peoples to get their rights recognized under international law started during the League of Nations in the early 1920s, but it was only in 2007 that the General Assembly of the United Nations (UN) adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The adoption of the declaration not only marks an important moment in terms of lawmaking; it also represents the achievement of long decades of lobbying and advocacy from indigenous peoples’ representatives. The UN declared the decade 1994–2004 as the First International Decade of the World’s Indigenous Peoples, and later 2005–2015 was declared the second such decade. The main objective was the strengthening of international cooperation for the solution of problems faced by indigenous people in such areas as human rights, the environment, education, and health. As a result, in 2002, the Permanent Forum on Indigenous Issues was established as an advisory body to the UN Economic and Social Council. But it was only in 2007 that the UN General Assembly adopted the UNDRIP, which universally proclaims and consolidates a specific international legal corpus of rights for indigenous peoples. The adoption of the declaration is representative of the significant legal developments of the rights of indigenous peoples under international law. The international legal framework concerns general human rights such as nondiscrimination and equality, as well as very specific collective rights such as self-determination, cultural rights, land rights, and control over natural resources. The establishment of a specific corpus of law dedicated to the rights of indigenous peoples, or sui generis rights, has also meant a proliferation of scholarly literature on the topic. This article does not propose to be exhaustive or comprehensive, but rather to offer a review of some of the texts that can guide the researcher or the reader through the vast and extensive existing literature. First, it focuses on some of the leading sources that provide a general overview on the rights of indigenous peoples. It then examines the institutional and regional approaches. And finally, it focuses on specific issues affecting indigenous peoples, namely historical claims, self-determination, land rights, natural resources, and development.

General Overviews and Reference Works

The literature regarding the rights of indigenous peoples is often very specialized either in terms of its focus on specific rights (Venne 1998, Alfredsson and Stravropoulou 2002), or in terms of its geographical scope (Richardson, et al. 2009). There are, however, a few texts that should be seen as essential general references, namely Anaya 2004, Thornberry 2002, and Kingsbury 2001.

  • Alfredsson, Gudmundur, and Maria Stravropoulou, eds. Justice Pending: Indigenous People and Other Good Causes—Essays in Honour of Erica-Irene A.Daes. Raoul Wallenberg Institute Human Rights Library. The Hague and New York: Martinus Nijhoff, 2002.

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    This Festschrift, honoring the work of Erica Daes, provides a relevant source on indigenous rights at the international legal level. The range of topics covered is extremely wide and provides a great source of primary materials. The annex contains several of the key UN documents developed by Daes over the years, including her key studies on land rights.

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    • Åhrén, Mattias. Indigenous Peoples’ Status in the International Legal System. Oxford: Oxford University Press, 2016.

      DOI: 10.1093/acprof:oso/9780198778196.001.0001Save Citation »Export Citation »E-mail Citation »

      This book offers an excellent analysis on the interaction between indigenous peoples and international law by focusing on the issue “peoplehood” and “equality.” In adopting such relevant approaches, the book manages to offer an in-depth and rich critical analysis of the main rights and institutional frameworks relevant to indigenous peoples under international law.

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      • Anaya, James. Indigenous Peoples under International Law. 2d ed. Oxford: Oxford University Press, 2004.

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        This book is probably one of the most influential monographs on the issue. The author examines the history of international law regarding indigenous peoples to explain the contemporary legal system and its impact on indigenous peoples. The book is full of essential references, and it should be seen as an essential read.

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        • Kingsbury, Benedict. “Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law.” New York University Journal of International Law and Politics (2001).

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          This article represents an extremely enlightening review on the rights of indigenous peoples and their place within the overall international human rights system. The aim of the article is to review the conceptual foundations on which indigenous peoples’ legal claim can rest. While written before the adoption of the UNDRIP, this article remains extremely relevant in its analysis of the different legal frameworks available to indigenous peoples’ claims.

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          • Richardson, Benjamin J., Shin Imai, and Kent McNeil, eds. Indigenous Peoples and the Law: Comparative and Critical Perspectives. Oxford: Hart, 2009.

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            This is a collective book published in 2009 with the aim of “taking stock” of the place of indigenous peoples’ rights within the national sphere, and it also provides some comparative analysis. Although it focuses mainly on the situation of indigenous communities in the Commonwealth, and predominately Australia, New Zealand, and Canada, it offers some relevant analysis on international legal issues.

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            • Thornberry, Patrick. Indigenous Peoples and Human Rights. Melland Schill Studies in International Law. Manchester, UK: Manchester University Press, 2002.

              DOI: 10.7228/manchester/9780719037931.001.0001Save Citation »Export Citation »E-mail Citation »

              This book presents a very comprehensive analysis on the rights of indigenous peoples under human rights law. It focuses on the evolution, the content, and the place of the rights of indigenous peoples within the human rights framework. The book is extremely rich in references and analysis, and it should be seen as an essential reference on the issue.

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              • Venne, Sharon Helen. Our Elders Understand Our Rights: Evolving International Law Regarding Indigenous Peoples. Penticton, BC: Theytus, 1998.

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                This book offers a compelling analysis on the evolution of international law. It includes a thorough review of the “doctrine of discovery” and its impact on indigenous peoples’ rights. It provides some relevant analysis on the evolution of international law, notably by taking a critical view of the place of indigenous peoples within the international legal architecture.

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                Institutional Approaches

                The rights of indigenous peoples assume a prominent place within the mandate of several international institutions. In recent years, the United Nations, but also the Organization of American States (OAS), the African Union (AU), and other specialized institutions such as the International Labour Organization (ILO), the Food and Agricultural Organization (FAO), and UNESCO, have started to focus some of their work on the rights of indigenous peoples.

                The United Nations and the Declaration

                The United Nations, and more particularly the Office of the High Commissioner for Human Rights (OHCHR), plays a central role in supporting the development of indigenous peoples’ rights (see Eide 2006 and Xanthaki 2007). The OHCHR, through its dedicated minority and indigenous rights unit, has supported indigenous claims through the different channels available under existing human rights monitoring bodies, and it has also provided institutional support to indigenous peoples in the protracted process that finally led to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (Allen and Xanthaki 2011, Charters and Stavenhagen 2009). The adoption of the declaration has led to the development of an important literature on aspects of the declaration, some of it being very critical (Barelli 2016, Engel 2011, Pulitano 2012).

                • Allen, Stephen, and Alexandra Xanthaki, eds. Reflections on the UN Declaration on the Rights of Indigenous Peoples. Oxford: Hart, 2011.

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                  This edited collection presents an in-depth academic analysis on the adoption and the content of the UNDRIP. The book not only looks at institutional, thematic, and substantive issues, but also provides a regional perspective on the potential impact of the declaration. It is an extremely rich collection involving several of the main academic writers on the rights of indigenous peoples.

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                  • Barelli, Mauro. Seeking Justice in International Law: The Significance and Implications of the UN Declaration on the Rights of Indigenous Peoples. Abingdon, UK, and New York: Routledge, 2016.

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                    A very incisive analysis on the role of the UNDRIP to support the rights of indigenous peoples. The book explores the distinctive features of indigenous peoples’ struggle for justice, reflecting on the extent to which the UNDRIP has managed (or not) to offer a sense of justice for indigenous peoples.

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                    • Charters, Claire, and Rodolfo Stavenhagen, eds. Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples. Copenhagen: International Work Group for Indigenous Affairs, 2009.

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                      This book retraces the years of advocacy and lobbying that it took to get to the UNDRIP, and also focuses on the future prospects for its implementation. This edited collection involves many authors who, for many years, were directly involved in the declaration. It provides a rich source not only on the history of the drafting of the UNDRIP, but also on the perspectives for its implementation.

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                      • Eide, Asbjørn. “Rights of Indigenous Peoples: Achievements in International Law during the Last Quarter of a Century.” Netherlands Yearbook of International Law 37.1 (2006): 155–212.

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                        Eide proposes a review of the achievement of the UN human rights system regarding the development of indigenous peoples’ rights since the late 20th century. The article examines the standard-setting efforts and international jurisprudence during that period, and as such provides some relevant inside views on the process and the role of the UN institutions.

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                        • Engel, Karen. “On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights.” European Journal of International Law 22.1 (2011): 141–163.

                          DOI: 10.1093/ejil/chr019Save Citation »Export Citation »E-mail Citation »

                          This article analyzes the legal value of the UNDRIP within the international human rights legal context. Contrary to many analyses that have hailed the declaration has having achieved the proclamation of self-determination, Engel examines how it is the result of a compromise that restricts the content of self-determination.

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                          • Hohmann, Jessie, and Marc Weller, eds. The UN Declaration on the Rights of Indigenous Peoples: A Commentary. Oxford: Oxford University Press, 2018.

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                            This edited collection provides a comprehensive thematic analysis of the declaration’s provisions, including the background to their inclusion and their practical enforcement.

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                            • Pulitano, Elvira, ed. Indigenous Rights in the Age of the UN Declaration. Cambridge, UK: Cambridge University Press, 2012.

                              DOI: 10.1017/CBO9781139136723Save Citation »Export Citation »E-mail Citation »

                              This is another edited collection focusing on the UNDRIP, but compared to many other collections focusing on the process that led to the declaration, it takes a critical approach to the declaration, and to law in general. One of the central questions that the collection wishes to examine is whether the UNDRIP is part of the increasingly important “legalization” process of indigenous peoples’ discourse.

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                              • Xanthaki, Alexandra. Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land. Cambridge, UK: Cambridge University Press, 2007.

                                DOI: 10.1017/CBO9780511494468Save Citation »Export Citation »E-mail Citation »

                                This book examines how the UN institutions have been a forum to receive indigenous peoples’ claims. The author specifically focuses on issues relating to self-determination, cultural rights, and land rights to analyze how the UN human rights machinery has been able to accommodate the specificity of indigenous peoples’ legal claims. The book contains compelling arguments on the development of a special cultural rights regime for indigenous peoples under international law.

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                                The International Labour Organization (ILO)

                                The International Labour Organization (ILO) was one of the first international institutions to focus on the rights of indigenous peoples, with support from indigenous workers dating back from the 1920s (Rodríguez-Piñero 2005). More than an institution working solely on the work conditions of indigenous peoples, the ILO has over the years become the main lawmaking body when it comes to the human rights of indigenous peoples, with the ILO Convention 169 (see International Labour Organization 2009) still being the only internationally biding treaty on the rights of indigenous peoples (Swepston 1990). The ILO has also proven to be a very efficient tool at the national and regional level (Thornberry and Viljoen 2009).

                                • International Labour Organization. Indigenous and Tribal People’s Rights in Practice: A Guide to ILO Convention No. 169. Geneva, Switzerland: International Labour Organization, 2009.

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                                  This guide provides a very detailed account on the content and the meaning of the ILO Convention. The guide also provides many practical illustrations based on the experiences, good practices, and lessons learned by indigenous peoples throughout the world. This is a very useful and complete guide that goes beyond the usual descriptive nature of such institutional guides. It is also full of references.

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                                  • Rodríguez-Piñero, Luis. Indigenous Peoples, Postcolonialism, and International Law: The ILO Regime (1919–1989). Oxford: Oxford University Press, 2005.

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                                    This book proposes an in-depth and thorough review of the work of the ILO when it comes to indigenous peoples. The book offers an insightful analysis on the process leading to the revision of ILO Convention 107 and the adoption in 1989 of the revised Indigenous and Tribal Peoples Convention (Convention 169).

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                                    • Swepston, Lee. “A New Step in the International Law on Indigenous and Tribal Peoples: ILO Convention No. 169 of 1989.” Oklahoma City University Law Review 15 (1990): 677–714.

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                                      Despite being dated, this article remains essential to understand the move from the ILO Convention 107 to the Convention 169 in 1989. The author was involved directly in this process, and this article offers a compelling inside story on the importance of and also the difficulties faced when updating and reforming the ILO system when it comes to indigenous peoples.

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                                      • Thornberry, Francesca, and Frans Viljoen, eds. Overview Report of the Research Project by the International Labour Organization and the African Commission on Human and Peoples’ Rights on the Constitutional and Legislative Protection of the Rights of Indigenous Peoples in 24 African Countries. Geneva, Switzerland: International Labour Office, 2009.

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                                        The report proposes a thematic analysis, based on research undertaken at the national level in twenty-four selected African countries. As a result, this report provides a very rich and detailed analysis on the laws regarding indigenous peoples in most of Africa, as well as the role and place of the ILO Convention.

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                                        Other Institutions

                                        Most of the international legal literature focuses on the UN human rights system and its institutions. However, an important part of the rights of indigenous peoples are evolving in other forums, such as the FAO, the World Bank (MacKay 2001–2002), or the World Trade Organization (MacKay 2010). There is an emerging focus on the role of these international institutions, often within edited collection that focus on international institutions (Graber, et al. 2012). See also Rimmer 2015.

                                        • Graber, Christoph Beat, Karolina Kuprecht, and Jessica Christine Lai, eds. International Trade in Indigenous Cultural Heritage: Legal and Policy Issues. Cheltenham, UK: Edward Elgar, 2012.

                                          DOI: 10.4337/9780857938312Save Citation »Export Citation »E-mail Citation »

                                          This edited collection covers several international legal fields, including trade law, intellectual property, cultural property, cultural heritage law, and human rights. It offers a rare insight in the work of trade-related issues and indigenous peoples.

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                                          • MacKay, Fergus. “Universal Rights or a Universe unto Itself: Indigenous Peoples’ Human Rights and the World Bank’s Draft Operational Policy 4.10 on Indigenous Peoples.” American University International Law Review 17.3 (2001–2002): 527–624.

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                                            While written in 2002 and before the World Bank adopted its current policies regarding indigenous peoples, this article remains particularly relevant for understanding the impact of the work of the World Bank on the rights of indigenous peoples. The article provides a good historical background and is full of references.

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                                            • MacKay, Fergus. “Indigenous Peoples and International Financial Institutions.” In International Financial Institutions and International Law. Edited by Daniel Bradlow and David B. Hunter, 287–320. Alphen aan den Rijn, The Netherlands: Kluwer Law International, 2010.

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                                              This chapter offers a rare and insightful review of all the policies regarding indigenous peoples adopted by the multiple international financial institutions (IFIs). It analyzes to what extent the policies adopted by the IFIs integrate (or not) the right to free, prior, and informed consent, which is essential before any financial support is provided by international lending institutions.

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                                              • Rimmer, Matthew, ed. Indigenous Intellectual Property: A Handbook of Contemporary Research. Cheltenham, UK: Edward Elgar, 2015.

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                                                A very useful interdisciplinary handbook focusing on the international legal framework governing indigenous intellectual property (IP). It offers relevant analysis in the fields of copyright law, trademark law, patent law, trade secrets law, and cultural heritage.

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                                                Regional and Comparative Approaches

                                                Regional institutions play a very important role regarding indigenous peoples’ rights, notably the inter-American system of human rights, which has adopted a proactive approach to indigenous rights (Stavenhagen 1988, MacKay 2002), and more recently the African human rights system, which has followed suit (African Commission on Human and Peoples’ Rights, and International Work Group for Indigenous Affairs 2003, Mukwiza Ndahinda 2011). In some instances, the international legal framework is even lagging behind regional institutions, which have been much more proactive in receiving claims from indigenous peoples (Barelli 2010). In general, the rights of indigenous peoples are extremely influenced by comparative legal approaches, notably within the Commonwealth legal systems, where an important body of law has developed (Havemann 1999, McHugh 2004). As such, an important part of the literature concentrates on regional perspectives, though there is also a focus on comparative national perspectives (Wiessner 1999, Dersso 2010). See also Erni 2008.

                                                • African Commission on Human and Peoples’ Rights, and International Work Group for Indigenous Affairs. Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities. Banjul, Gambia: African Commission on Human and Peoples’ Rights, 2003.

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                                                  This report provides in-depth research on the place of indigenous peoples’ rights in Africa. It offers a review of the conditions and the entrenched discrimination faced by indigenous peoples. It also offers a specific and relevant description of indigenous communities in Africa.

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                                                  • Barelli, Mauro. “The Interplay between Global and Regional Human Rights Systems in the Construction of the Indigenous Rights Regime.” Human Rights Quarterly 32.4 (November 2010): 951–979.

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                                                    Barelli offers an analysis on the contribution of the three main human rights regional systems, namely the inter-America, African, and European systems, on the international architecture of indigenous rights. To undertake this analysis, the article focuses on three issues—the definition of indigenous rights, self-determination, and land rights—to examine how the regional systems have proposed some political and legal solutions to these thorny issues.

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                                                    • Dersso, Solomon, ed. Perspectives on the Rights of Minorities and Indigenous Peoples in Africa. Pretoria, South Africa: Pretoria University Law Press, 2010.

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                                                      This is one of the very few, and one of the most complete, collections on the rights of indigenous peoples in Africa. While not focusing only on indigenous rights, it provides a very comprehensive review of the issues at stake for indigenous peoples on the continent. The book includes several chapters by some of the main actors in this field, and it contains essential references on the issue.

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                                                      • Erni, Christian, ed. The Concept of Indigenous Peoples in Asia: A Resource Book. Copenhagen: International Work Group for Indigenous Affairs, 2008.

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                                                        This edited collection primarily focuses on the issue of definition and identification of indigenous peoples in Asia. It comes as an answer to the so-called “Asian” controversy. While predominately focusing on the issue of the definition, the book also provides some legal, historical, cultural, and international underpinnings of the indigenous peoples of Asia. The collection also contains several references to some specific Asian countries.

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                                                        • Havemann, Paul, ed. Indigenous Peoples’ Rights in Australia, Canada, and New Zealand. Oxford: Oxford University Press, 1999.

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                                                          This collection focuses on the emergence of a specific approach to indigenous rights under common law. Published in 1999, it presents some rich analysis on the interaction between indigenous peoples, the law, the courts, and the political agendas of several states when it comes to the rights of indigenous peoples.

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                                                          • MacKay, Fergus. A Guide to Indigenous Peoples’ Rights in the Inter-American Human Rights System. Copenhagen: International Work Groups for Indigenous Affairs, 2002.

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                                                            This book focuses on the work of the inter-American institutions, not only in the context of the region, but also regarding the impact of the international jurisprudence. While this book was published in 2002, it remains essential for understanding the place of the inter-American system of human rights for the protection of indigenous peoples’ rights.

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                                                            • McHugh, Paul G. Aboriginal Societies and the Common Law: A History of Sovereignty, Status, and Self-Determination. Oxford: Oxford University Press, 2004.

                                                              DOI: 10.1093/acprof:oso/9780198252481.001.0001Save Citation »Export Citation »E-mail Citation »

                                                              Based on a historical review, this book analyzes the relationship between the common law and indigenous peoples. Its detailed and rich analysis on issues of sovereignty and self-determination in the context of North America and Australasia makes it relevant to understanding these issues at the international level. The book also contains extremely rich references to historical sources.

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                                                              • Mukwiza Ndahinda, Felix. Indigenousness in Africa: A Contested Legal Framework for Empowerment of “Marginalized” Communities. The Hague: T. M. C. Asser, 2011.

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                                                                A very significant and comprehensive analysis on the use of the framework of indigenous peoples’ rights in Africa. The book relies on a solid legal analysis of the relevance of international law to support the claims of indigenous peoples across Africa.

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                                                                • Stavenhagen, Rodolfo. Derecho indígena y derechos humanos en América Latina. Mexico City: Instituto Interamericano de Derechos Humanos, 1988.

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                                                                  While a bit out of date, as it was written in 1988, Stavenhagen’s book remains a “classic” for its thorough analysis on the relationships between states and their indigenous populations in the Americas.

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                                                                  • Wiessner, Siegfried. “Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis.” Harvard Human Rights Journal 12 (1999): 57–128.

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                                                                    This article adopts a global comparative analysis to examine how indigenous peoples have been victims of national legal systems. Based on this analysis, it offers a view on how international law could provide a platform to challenge the problems faced at the national level. While written in 1999, this article remains extremely useful to understand the dynamic between international law and the national systems.

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                                                                    Definition, “Indigenism,” and the Indigenous Rights Movement

                                                                    The analysis on the rights of indigenous peoples often starts with the question of defining who indigenous peoples are (Kingsbury 1998). While the working definitions proposed by Martinéz Cobo, and later by Erica-Irene Daes, are often used as working definitions, there is a general agreement on the fact that no strict legal definition is needed (Daes 1996). Nonetheless, the lack of a clear-cut definition at the international level has led to a large literature on the issue (Meijknecht 2001). Closely related to the issue of definition, a large part of the literature also examines the development and the strength of the indigenous movement (Tennant 1994, Barsh 1994). The emergence of a strong corpus of specific rights for indigenous peoples is the result of years of intense lobbying by international indigenous activists and indigenous organizations (Wilmer 1993). As such, the emergence of a strong global indigenous movement has given rise to the development of a literature that analyzes the indigenous movement often referred to as “indigenism” (Niezen 2003).

                                                                    • Barsh, Russel Lawrence. “Indigenous Peoples in the 1990s: From Object to Subject of International Law.” Harvard Human Rights Journal 7 (1994): 33–86.

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                                                                      This article examines how the development of international law has meant the slow recognition of indigenous peoples as “subjects” of rights rather than “objects” of international law. It suggests that there is a growing acceptance in international law of the collective identity and distinct rights of indigenous peoples, which is still lacking the full recognition of indigenous peoples’ legal personality.

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                                                                      • Daes, Erica-Irene A. Standard-Setting Activities: Evolution of Standards Concerning the Rights of Indigenous People. Working Paper by the Chairperson-Rapporteur, on the Concept of “Indigenous People.” UN Doc. E/CN.4/Sub.2/AC.4/1996/2, 10 June 1006. New York: United Nations Economic and Social Council, 1996.

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                                                                        This report from the UN Special Rapporteur of the former Working Group on Indigenous Populations is useful because it provides a historical review of the practice of international and national institutions regarding the definition of indigenous peoples, along with a summary of the viewpoint of some of the main indigenous representatives on the issue.

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                                                                        • Kingsbury, Benedict. “‘Indigenous Peoples’ in International Law: A Constructivist Approach to the Asian Controversy.” American Journal of International Law 92.3 (July 1998): 414–457.

                                                                          DOI: 10.2307/2997916Save Citation »Export Citation »E-mail Citation »

                                                                          Because of its very articulated criticism of the Western and orthodox definition of indigenous peoples as applying mainly in North America, New Zealand, and Australia, this article became a semantic and fundamental argumentation on a broader and more inclusive definition that includes communities from Asia, but also by extension Africa.

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                                                                          • Meijknecht, Anna. Towards International Personality: The Position of Minorities and Indigenous Peoples in International Law. Antwerp, Belgium: Intersentia, 2001.

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                                                                            Meijknecht examines the place of indigenous peoples within the theories relating to the definition of the legal personality under international law. This book remains one of the few comprehensive studies on traditional theories of legal personality under international law in regard to indigenous peoples. From this perspective, this book offers rich analysis on issues of personal legal theories and their applications to indigenous peoples.

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                                                                            • Niezen, Ronald. The Origins of Indigenism: Human Rights and the Politics of Identity. Berkeley: University of California Press, 2003.

                                                                              DOI: 10.1525/california/9780520235540.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                              This book examines the emergence of an international and transnational indigenous identity. It offers a compelling and complete picture on how the indigenous representatives from all over the world have united their call to push for the recognition of their rights at the international level.

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                                                                              • Tennant, Chris. “Indigenous Peoples, International Institutions, and the International Legal Literature from 1945–1993.” Human Rights Quarterly 16.1 (February 1994): 1–57.

                                                                                DOI: 10.2307/762410Save Citation »Export Citation »E-mail Citation »

                                                                                This article offers a review of the literature on indigenous peoples from 1945 to 1993, focusing on how the representation of indigenous peoples has been dominated by two stereotypes: the noble and ignoble primitive. It contains a very rich and complete list of sources, mainly historical, on the issue of definition.

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                                                                                • Wilmer, Franke. The Indigenous Voice in World Politics: Since Time Immemorial. Newbury Park, CA: SAGE, 1993.

                                                                                  DOI: 10.4135/9781483326610Save Citation »Export Citation »E-mail Citation »

                                                                                  Wilmer’s book examines how the legacy of colonialism still affects indigenous peoples. The book is also critical of the international system based on Eurocentric models of sovereignty; the norm of the “nation-state”; and economic growth, industrialization, and “development.” Written from an international relations perspective, this book offers some relevant development on the role played by indigenous representatives for the development of new legal arguments.

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                                                                                  Colonization, Historical Claims, and Reparations

                                                                                  Indigenous peoples’ rights are historically grounded, not only because indigenous peoples have “historical continuity with pre-invasion and pre-colonial societies” (Martinéz Cobo) but also, and mainly, because they have been victims of serious historical human rights violations. International legal theories have very often been developed as a result of the interaction between the colonial powers and the indigenous communities they encountered (Williams 1993, Keal 2003, Anghie 2007). From this perspective, historical sources are important for understanding contemporary claims for reparations and restitution (Lenzerini 2009), and for treaty making between indigenous peoples and states (Langton, et al. 2005). See also Resiman 1995.

                                                                                  • Anghie, Antony. Imperialism, Sovereignty and the Making of International Law. Cambridge, UK: Cambridge University Press, 2007.

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                                                                                    Because of the importance of colonialism in the dispossession of indigenous peoples, a large part of the book is directly concerned with the rights of indigenous peoples. It covers issues relating to territory that are intrinsically connected to historical legal theories of dispossession. The book offers both a fascinating and an appalling account on the inherent colonial roots of international law.

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                                                                                    • Keal, Paul. European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness of International Society. Cambridge, UK: Cambridge University Press, 2003.

                                                                                      DOI: 10.1017/CBO9780511491467Save Citation »Export Citation »E-mail Citation »

                                                                                      This book examines the historical role of international law in justifying the dispossession of indigenous peoples from the perspective of international relations. It provides some useful analysis on the relationship between international relations, international law, and indigenous peoples, from both a historical and a contemporary perspective.

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                                                                                      • Langton, Marcia, Maureen Tehan, Lisa Palmer, and Kathryn Shain, eds. Honour among Nations? Treaties and Agreements with Indigenous Peoples. Carleton, Australia: Melbourne University Press, 2005.

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                                                                                        While the book focuses predominately on the situation in Australia, it also offers some insightful reflections on treaty making, notably by focusing on issues of implementation and monitoring. It not only provides a historical account of treaty making, but also adopts a resolute contemporary approach by examining more recent treaties, notably agreements between corporations and indigenous peoples.

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                                                                                        • Lenzerini, Federico, ed. Reparations for Indigenous Peoples: International and Comparative Perspectives. Oxford: Oxford University Press, 2009.

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                                                                                          This edited book on reparations is one of the first to address such an important topic in a systematic manner. The first part of the book covers the “global” perspective on international law and reparations, while the second part focuses on specific cases of reparations for indigenous peoples at the international, regional, and domestic levels.

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                                                                                          • Resiman, Michael. “Protecting Indigenous Rights in International Adjudication.” American Journal of International Law 89.2 (1995): 350–362.

                                                                                            DOI: 10.2307/2204207Save Citation »Export Citation »E-mail Citation »

                                                                                            This article is one of the very few sources to examine the interaction between the International Court of Justice (ICJ) and indigenous peoples. Ultimately, very few cases that have reached the ICJ directly concern indigenous peoples; this article examines some of these claims. It notably brings some interesting views on the lack of integration of indigenous peoples’ rights by the court.

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                                                                                            • Williams, Robert A. The American Indian in Western Legal Thought: The Discourse of Conquest. Oxford: Oxford University Press, 1993.

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                                                                                              This book offers an insightful analysis on the impact of theories of just war and the impact of these theories on the rights of indigenous peoples. While focusing predominately on the situation in the Americas, it offers a critical analysis of the colonial theories that have marked colonization of indigenous territories, not only in the Americas but globally.

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                                                                                              Self-Determination, Sovereignty, and Collective Rights

                                                                                              Self-determination represents the quintessence of indigenous rights, as the right to self-determination is probably both the most important and the most controversial right for indigenous peoples (Daes 1993). Indigenous peoples have successfully defended their own interpretation and understanding of self-determination, which includes the core values of freedom and equality, but also their right to control their destiny when it comes to the use of their lands and natural resources (Lam 2000, Knop 2002). The claim to self-determination is also related to the fundamental issue of sovereignty and self-government, which is also integrated in the literature regarding self-determination (Pekka and Scheinin 2000). Closely related to self-determination and sovereignty, indigenous peoples have also made claims for the inclusion and the recognition of their collective rights under a legal system that is predominately concerned with either states or individual rights (Primeau and Corntassel 1995, Karpe 2008). Due to its fundamental importance, most of the literature examines the rights to self-determination (see also General Overviews and Reference Works).

                                                                                              • Daes, Erica-Irene A. “Some Considerations on the Right of Indigenous Peoples to Self-Determination.” Transnational Law and Contemporary Problems 3.1 (1993): 35–45.

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                                                                                                This article, which was written at the start of what was going to be a twenty-year-long process of negotiations, sets some of the fundamental issues regarding self-determination for indigenous peoples. Daes examines how self-determination is essential for indigenous peoples, and also how its meaning is different from what traditionally is associated with secession.

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                                                                                                • Karpe, Philippe. Le droit des collectivités autochtones. Paris: L’Harmattan, 2008.

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                                                                                                  This book examines to what extent law and legal institutions are able (or not) to address the collective claims of indigenous peoples. It offers a rare and rich analysis on the clash between individual and collective rights arguing for the “decolonization” of law.

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                                                                                                  • Knop, Karen. Diversity and Self-Determination in International Law. Cambridge, UK: Cambridge University Press, 2002.

                                                                                                    DOI: 10.1017/CBO9780511494024Save Citation »Export Citation »E-mail Citation »

                                                                                                    This book is not about indigenous peoples’ rights only, but is also an exploration of the importance of self-determination as a norm to protect and promote diversity. This includes indigenous peoples, but also women, and notably indigenous women. The book contains a review and analysis of some of the leading texts and academic commentaries on self-determination (until the date of publication).

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                                                                                                    • Lam, Maivan Clech. At the Edge of the State: Indigenous Peoples and Self Determination. Ardsley, NY: Transnational Publishers, 2000.

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                                                                                                      This monograph was written at the time of the drafting of the UNDRIP as a reaction to the raging debate raised by the UN Working Group on Indigenous Peoples on the issue of self-determination. Lam’s book proposes a clear historical and theoretical, but also practical and legal, analysis of the rights to self-determination when it comes to indigenous peoples.

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                                                                                                      • Pekka, Aikio, and Martin Scheinin, eds. Operationalizing the Right of Indigenous Peoples to Self-Determination. Åbo, Finland: Institute for Human Rights, Åbo Akademi University, 2000.

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                                                                                                        This edited collection provides a theoretical, practical, and comprehensive overview on the debates, and also on the importance of self-determination. The publication includes eleven of the most established experts in this field, hence it should be seen as an essential collection on the issue.

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                                                                                                        • Primeau, Tomas Hopkins, and Jeff Corntassel. “Indigenous ‘Sovereignty’ and International Law: Revised Strategies for Pursuing ‘Self-Determination.’” Human Rights Quarterly 17.2 (1995): 343–365.

                                                                                                          DOI: 10.1353/hrq.1995.0015Save Citation »Export Citation »E-mail Citation »

                                                                                                          This article argues that, under international law, human rights and cultural rights might be a better strategy to pursue indigenous peoples’ rights. This 1995 article remains relevant to examine the debate between the activists who claim that self-determination and sovereignty claims are essential, and the other camp that argues that human rights law, with its language on cultural diversity and equality, should be preferred.

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                                                                                                          Land Rights and Natural Resources

                                                                                                          Under international law, one of the central claims by indigenous peoples is for the recognition of their fundamental rights over their lands and territories (Gilbert 2016, Barume 2010). This territorial claim includes a strong call for the recognition of their rights over the natural resources contained in their ancestral lands (Anaya and Williams 2000, Pasqualucci 2009). For most indigenous communities, the notion of territory includes a collective rights-based approach to the access, disposal, and use of natural resources (Scheinin 2000). See also Inter-American Commission on Human Rights 2010.

                                                                                                          • Anaya, James, and Robert A. Williams. “The Protection of Indigenous Peoples’ Rights over Lands and Natural Resources under the Inter-American Human Rights System.” Harvard Human Rights Journal 14 (2000): 33–87.

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                                                                                                            While focusing on land rights within the inter-American system of human rights, this article offers a reflection on the international legal system and its approach to land rights for indigenous peoples globally. The article notably highlights the development of international customary law on the issue of land rights.

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                                                                                                            • Barume, Albert Kwokwo. Land Rights of Indigenous Peoples in Africa: With Special Focus on Central, Eastern and Southern Africa. Copenhagen: International Work Group for Indigenous Affairs, 2010.

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                                                                                                              This book focuses on land rights for indigenous peoples in Africa, and also offers a global snapshot by looking at the recognition of land rights in other jurisdictions. It offers an in-depth analysis of some of the land cases filed by indigenous peoples in selected African countries.

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                                                                                                              • Gilbert, Jeremie. Indigenous Peoples’ Land Rights under International Law: From Victims to Actors. 2d ed. Leiden, The Netherlands: Martinus Nijhoff, 2016.

                                                                                                                DOI: 10.1163/9789004323254Save Citation »Export Citation »E-mail Citation »

                                                                                                                This book explores how indigenous peoples have been the victims of the rules governing title to territory since the inception of international law, and how, under the current human rights regime, indigenous peoples have gained the status of actors of international law. The work explores several key issues, such as collective rights, self-determination, autonomy, property rights, and restitution of land.

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                                                                                                                • Inter-American Commission on Human Rights. Indigenous and Tribal Peoples’ Rights over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System. Washington, DC: Organization of American States, 2010.

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                                                                                                                  The report is based on the legal instruments of the inter-American system, providing an analysis and review of land rights under international law. It offers an in-depth analysis of several key issues such as consultation, participation, and the connection between land rights and other fundamental human rights.

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                                                                                                                  • Pasqualucci, Jo. “International Indigenous Land Rights: A Critique of the Jurisprudence of the Inter-American Court of Human Rights in Light of the United Nations Declaration on the Rights of Indigenous Peoples.” Wisconsin International Law Journal 27 (2009): 51–98.

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                                                                                                                    This article offers a critical analysis of some of the main cases that were received by the Inter-American Court and Inter-American Commission on Human Rights by focusing on the issue of control over natural resources. It offers a compelling analysis on the interaction between international and regional norms, and proposes a critical analysis of the approach adopted by the inter-American system.

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                                                                                                                    • Scheinin, Martin. “The Right to Enjoy a Distinct Culture: Indigenous and Competing Uses of Land.” In The Jurisprudence of Human Rights Law: A Comparative Interpretive Approach. Edited by Allan Rosas, Theodore Orlin, and Martin Scheinin, 253–286. Åbo, Finland: Institute for Human Rights, Åbo Akademi University, 2000.

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                                                                                                                      Despite being written in 2000, this chapter remains one of the best analyses on the connection between the right of minorities to enjoy their own culture, protected under the International Covenant on Civil and Political Rights (ICCPR), and the right of indigenous peoples to land. The chapter also contains some references to other international legal platforms as well as cases at the national level that concern claims to land rights.

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                                                                                                                      Development and the Environment

                                                                                                                      Indigenous peoples often live in territories that are rich in natural resources. This frequently leads to either the exploitation of these resources or the classification of these resources within programs of natural and wildlife conservation (Colchester 1994). In the two situations, exploitation or conservation, indigenous peoples often lose the right to use their territories. This happens either under the label of environmental protection or under the banner of development (Westra 2008). In most situations, developmental projects have meant, and still imply, displacement, forced relocation, and loss of culture for indigenous peoples (Mander and Tauli-Corpuz 2007). From this perspective, indigenous peoples have claimed a new approach to the right to development, which should be based on respect for their human rights and customary laws (Tobin 2014) and on the integration and respect of their rights within climate change (Tsosie 2009), biodiversity (Metcalf 2003), and poverty reduction agendas (Hall and Patrinos 2012).

                                                                                                                      • Colchester, Marcus. Salvaging Nature: Indigenous Peoples, Protected Areas and Biodiversity Conservation. Darby, PA: Diane, 1994.

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                                                                                                                        Mainstream conservationists have often sought to impose their vision of natural resource management on indigenous peoples, without taking into account those peoples’ rights under international law. While out of date and in need of an update, this booklet remains a “classic” when it comes to the clash between environmental protection and the rights of indigenous peoples.

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                                                                                                                        • Hall, Gilette, and Harry Anthony Patrinos, eds. Indigenous Peoples, Poverty, and Development. Cambridge, UK: Cambridge University Press, 2012.

                                                                                                                          DOI: 10.1017/CBO9781139105729Save Citation »Export Citation »E-mail Citation »

                                                                                                                          There have been several studies on the economic situation of indigenous peoples, but this is one of the very few global studies on the issue of poverty. While having a global reach, the book focuses on the specific situation of indigenous peoples in seven countries around the world (Central African Republic, China, Congo, Gabon, India, Laos, and Vietnam).

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                                                                                                                          • Mander, Jerry, and Victoria Tauli-Corpuz, eds. Paradigm Wars: Indigenous Peoples’ Resistance to Globalization. San Francisco: Sierra Club Books, 2007.

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                                                                                                                            The book is based on firsthand accounts from activists throughout the world, and it provides some basic facts and understanding on the relationship between international financial institutions and indigenous peoples. The annex contains some of the leading declarations made by indigenous peoples, such as the Cancun Declaration, the Kimberley Declaration, and the Mataatua Declaration.

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                                                                                                                            • Metcalf, Cherie. “Indigenous Rights and the Environment: Evolving International Law.” Ottawa Law Review 35.1 (2003): 101–140.

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                                                                                                                              This is one of the rare articles that offer an analysis of the Convention on Biodiversity and other environmental instruments in the light of international legal instruments dedicated to the rights of indigenous peoples.

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                                                                                                                              • Tobin, Brendan. Indigenous Peoples, Customary Law and Human Rights—Why Living Law Matters. Abingdon, New York: Earthscan, 2014.

                                                                                                                                DOI: 10.4324/9781315778792Save Citation »Export Citation »E-mail Citation »

                                                                                                                                This book offers a rich analysis on the importance of indigenous peoples’ customary laws. It notably analyzes the interaction between international human rights law and customary laws, offering a very compelling analysis on indigenous peoples’ own legal systems and their place within the international legal doctrine.

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                                                                                                                                • Tsosie, Rebecca. “Climate Change, Sustainability, and Globalization: Charting the Future of Indigenous Environmental Self-Determination.” Environmental and Energy Law and Policy Journal 4 (2009): 188–255.

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                                                                                                                                  Tsosie has written a lot on the issue of climate and indigenous peoples. In this article she offers a review of the international legal framework regarding climate change and its impact on indigenous peoples.

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                                                                                                                                  • Westra, Laura, ed. Environmental Justice and the Rights of Indigenous Peoples: International and Domestic Legal Perspectives. London: Earthscan, 2008.

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                                                                                                                                    This book offers some interesting analysis on the relationship between environmental issues and the rights of indigenous peoples. One of the strong points of the book is to focus on the responsibilities of transnational companies and the emerging law and jurisprudence regarding the rights of indigenous peoples when it comes to violations of those rights by companies.

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