Indigenous Peoples' Land Rights under International Law

From Victims to Actors. Second Revised Edition

This book addresses the right of indigenous peoples to live, own and use their traditional territories, and analyses how international law addresses this. Through its meticulous examination of the interaction between international law and indigenous peoples’ land rights, the work explores several burning issues such as collective rights, self-determination, property rights, cultural rights and restitution of land. It delves into the notion of past violations and the role of international law in providing for remedies, reparation and restitution. It also argues that there is a new phase in the relationship between States, indigenous peoples and private actors, such as corporations, in the making of territorial agreements.

The first edition of this ground-breaking book was published in 2006, at the time the negotiations for the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) were still underway. The adoption of the Declaration in 2007 marks an important moment not only in terms of law-making, but also represents the achievement of long decades of lobbying and advocacy from indigenous peoples’ representatives. This fully revised new edition reflects on the 10 years which have followed the adoption of the UNDRIP and examines its impact regarding indigenous peoples’ land rights. Its aim is not only to assess the importance of the UNDRIP in terms of international standards, but also to reflect on the ‘maturing’ of international law in relation to indigenous peoples’ land rights. Over the last 10 years these have reached a new level of visibility and a voluminous new jurisprudence and doctrine have been developed.

Praise for the first edition:
"Gilbert’s passion for his subject is palpable and illuminates every page, as do his zeal to expose international law’s complicity in indigenous peoples’ loss of their territories and tentative hope that international law might now provide some protection of indigenous peoples’ lands. The choice of topic is also to be applauded. There are few texts that examine indigenous peoples’ land rights in such depth.”
Claire Charters, Associate Professor, University of Auckland, New Zealand (in International and Comparative Law Quarterly (ICLQ)

"Gilbert’s gaze is firmly fixed on the future and the question how international law will reflect lex ferenda on indigenous land rights. His interpretation of international law must be seen in this light. He is looking beyond the current controversies in the rights discourse towards a more conciliatory phase in state-indigenous relations. International law undoubtedly has an important role to play in his vision, but its primary function is to facilitate dialogue rather than as a combative and adversarial mechanism. (..) Gilbert’s book is a tour de force on indigenous territoriality.”
Stephen Allen, Senior Lecturer in Law, Queen Mary University London, United Kingdom (in International Journal on Minority and Group Rights

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Biographical Note

Jérémie Gilbert is Professor of International and Comparative Law at the University of East London, United Kingdom. His main area of research is on international human rights law, and more particularly the rights of indigenous peoples. He has widely published on the rights of indigenous peoples, looking in particular at their right to land and natural resources.

Review Quotes

"Gilbert’s passion for his subject is palpable and illuminates every page, as do his zeal to expose international law’s complicity in indigenous peoples’ loss of their territories and tentative hope that international law might now provide some protection of indigenous peoples’ lands. The choice of topic is also to be applauded. There are few texts that examine indigenous peoples’ land rights in such depth.”
Claire Charters, Associate Professor, University of Auckland, New Zealand (in International and Comparative Law Quarterly (ICLQ), volume 57, number 2, April 2008, pp. 491).

"Gilbert’s gaze is firmly fixed on the future and the question how international law will reflect lex ferenda on indigenous land rights. His interpretation of international law must be seen in this light. He is looking beyond the current controversies in the rights discourse towards a more conciliatory phase in state-indigenous relations. International law undoubtedly has an important role to play in his vision, but its primary function is to facilitate dialogue rather than as a combative and adversarial mechanism. (..) Gilbert’s book is a tour de force on indigenous territoriality.”
Stephen Allen, Senior Lecturer in Law, Queen Mary University London, United Kingdom (in International Journal on Minority and Group Rights 15 (2008) pp.117–131)

Table of contents

Preface
About the author; Table of Cases; Table of Instruments; List of abbreviations; Introduction
Territoriality: The Thread of Indigenous Cultures
PART I: INDIGENOUS PEOPLES AS VICTIMS: THEORIES OF DISPOSSESSION
Chapter 1: Means of Acquisition
A. The Conquest of Indigenous Territories
1. Justifications of Conquest: Commerce, Christianity and Civilization; 2. Discriminatory Rules of Conquest
B. The Occupation of Indigenous Territories
1. The Post-Westphalian Order: Dichotomy Between Nations and Indigenous Communities; 2. Occupation of ‘Vacant’ Territories: Terra Nullius as a Legal Fiction; 3. Terra Nullius by Other Means: Contemporary Forms of Denial
Chapter 2: Means of Extinguishment
A. The Extinguishment of Indigenous Territorial Sovereignty by Colonial Treaties
1. A Process of Retrogression: From International Law to “Domestic Dependent Nations”; 2. The “Trail of Broken Treaties”: Contemporary Enforcement of Colonial Treaties
B. Theories of Extinguishable Indigenous Land Rights
1. Discovery: A Theory of Extinguishable Right of Occupancy; 2. Contemporary Theories of Extinguishable Indigenous Title
PART II: INDIGENOUS PEOPLES AS SUBJECTS: THEORIES OF PROTECTION
Chapter 3: Land Rights as Proprietary Rights
A. Property Rights: Sources and Content
1. Weaknesses and Promises of the Property Rights Discourse; 2. Indigenous Peoples’ Right to Collective Land Ownership
B. Effective Measures of Protection and Demarcation
1. Restriction on Land Transferability: The Danger of Paternalism; 2. Land Identification and Demarcation
C. Reparation, Restitution and Compensation
1. The Right to Restitution; 2. Addressing Past Dispossession: The Role of Human Rights
Chapter 4: Land Rights as Cultural Rights
A. Land is Life: Land Rights as Subsistence Rights
1. Land Rights as a Means to a Collective Existence; 2. Right to Subsistence, Access to Livelihood and the Right to Life
B. Land Rights as a Way of Life: Traditions and Spirituality
1. The Minority Rights Approach; 2. Religion, Spirituality and Land Rights
C. Land Rights as Cultural Heritage: Towards a Right to Cultural Integrity
1. The Cultural Heritage Approach: The Danger of Compartmentalisation; 2. The Holistic Approach: Land Rights as Cultural Integrity
PART III INDIGENOUS PEOPLES AS ACTORS: NEGOTIATING LAND RIGHTS
Chapter 5: Self-Determination, Territoriality and Consent
A. The Self-Determination and Land Rights Nexus
1. The Caveat of Self-Determination: States’ Territorial Integrity; 2. The Relational and Interpretative Values of Self-determination
B. Self-determination, Natural Resources and Consent
1. Self-determination, Land Rights and Natural Resources; 2. Self-determination and Free, Prior and Informed Consent
Chapter 6: Development, Globalisation and Land Rights
A. Development, Participation and Land Rights
1. ‘Development Aggression’, the Right to Development & Land Rights; 2. Development, Effective Participation and Consent
B. Ownership and Control of Natural Resources: From Subsistence to Benefit-Sharing
1. Ownership and Control of Natural Resources: A Right to Subsistence?; 2. Towards a Right to Benefit-Sharing?
C. Nature Conservation, Exploitation of Natural Resources, and Private Actors
1. Nature Conservation, Tourism & Indigenous Peoples’ Land Rights: towards co-management?; 2. Corporations, Human Rights Law and Land Rights
Conclusion; Selected Bibliography; Index.

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