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Volumn 156, Issue 5, 2008, Pages 1341-1381

Indigenous peoples' courts: Egalitarian juridical pluralism, self-determination, and the United Nations declaration on the rights of indigenous peoples

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EID: 46449087032     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note
Times cited : (17)

References (273)
  • 1
    • 46449090297 scopus 로고    scopus 로고
    • United Nations Declaration on the Rights of Indigenous Peoples, GA. Res. 61/295, arts. 3, 4 & 34, U.N. Doc. A/RES/61/295 (Oct. 2, 2007) [hereinafter DRIP] (emphasis added).
    • United Nations Declaration on the Rights of Indigenous Peoples, GA. Res. 61/295, arts. 3, 4 & 34, U.N. Doc. A/RES/61/295 (Oct. 2, 2007) [hereinafter DRIP] (emphasis added).
  • 2
    • 46449094867 scopus 로고    scopus 로고
    • This assertion holds even given the nonbinding or soft law character of the Declaration and the parallel existence of binding multilateral treaties that deal, in greater or smaller measure, with indigenous peoples. For example, International Labor Organization Convention 169, a binding treaty, protects rights for indigenous peoples, but recognizes only very limited rights with regard to indigenous laws and customs. See infra notes 115-123 and accompanying text
    • This assertion holds even given the nonbinding or "soft law" character of the Declaration and the parallel existence of binding multilateral treaties that deal, in greater or smaller measure, with indigenous peoples. For example, International Labor Organization Convention 169 - a binding treaty - protects rights for indigenous peoples, but recognizes only very limited rights with regard to indigenous laws and customs. See infra notes 115-123 and accompanying text.
  • 3
    • 46449136654 scopus 로고    scopus 로고
    • Press Release, Office of the Spokesperson, U.N. Sec'y-Gen., Statement Attributable to the Spokesperson for the Secretary-General on the Adoption of the Declaration on the Rights of Indigenous Peoples (Sept. 13, 2007), available at http://www.un.org/ apps/sg/sgstats.asp?nid=2733.
    • Press Release, Office of the Spokesperson, U.N. Sec'y-Gen., Statement Attributable to the Spokesperson for the Secretary-General on the Adoption of the Declaration on the Rights of Indigenous Peoples (Sept. 13, 2007), available at http://www.un.org/ apps/sg/sgstats.asp?nid=2733.
  • 4
    • 46449097781 scopus 로고    scopus 로고
    • Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (Dec. 10, 1948) [hereinafter UDHR].
    • Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (Dec. 10, 1948) [hereinafter UDHR].
  • 5
    • 46449111447 scopus 로고    scopus 로고
    • See, e.g., Declaration on the Elimination of Discrimination Against Women, G.A. Res. 2263 (XXII), U.N. Doc. A/2263 (Nov. 7, 1967) [hereinafter DEDW];
    • See, e.g., Declaration on the Elimination of Discrimination Against Women, G.A. Res. 2263 (XXII), U.N. Doc. A/2263 (Nov. 7, 1967) [hereinafter DEDW];
  • 6
    • 46449114052 scopus 로고    scopus 로고
    • Declaration on the Elimination of All Forms of Racial Discrimination, G.A. Res. 1904 (XVIII), U.N. Doc. A/1904 (Nov. 20, 1963) [hereinafter DERD];
    • Declaration on the Elimination of All Forms of Racial Discrimination, G.A. Res. 1904 (XVIII), U.N. Doc. A/1904 (Nov. 20, 1963) [hereinafter DERD];
  • 7
    • 46449094280 scopus 로고    scopus 로고
    • Declaration of the Rights of the Child, GA. Res. 1386 (XIV), U.N. Doc. A/1386 (Nov. 20, 1959) [hereinafter DRC].
    • Declaration of the Rights of the Child, GA. Res. 1386 (XIV), U.N. Doc. A/1386 (Nov. 20, 1959) [hereinafter DRC].
  • 8
    • 46449116432 scopus 로고    scopus 로고
    • Most international lawyers and scholars take this view of such declarations. See 1 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 972 (Rudolf Bernhardt ed., 1992) (noting that although they are not treaties, the UN declarations are enunciat[ions of] important principles).
    • Most international lawyers and scholars take this view of such declarations. See 1 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 972 (Rudolf Bernhardt ed., 1992) (noting that although they are not treaties, the UN declarations are "enunciat[ions of] important principles").
  • 9
    • 46449098087 scopus 로고    scopus 로고
    • Wehere enough states act in a certain way (i.e., state practice) with the sense that they are legally obligated to do so (i.e., opinio juris), that state practice develops into customary international law, which is binding on all states. The DRIP could advance the development of customary international law related to indigenous peoples' rights if states implement - or begin to implement - its principles through state practice supported by opinio juris.
    • Wehere enough states act in a certain way (i.e., state practice) with the sense that they are legally obligated to do so (i.e., opinio juris), that state practice develops into customary international law, which is binding on all states. The DRIP could advance the development of customary international law related to indigenous peoples' rights if states implement - or begin to implement - its principles through state practice supported by opinio juris.
  • 10
    • 46449129983 scopus 로고    scopus 로고
    • See 1 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW, supra note 6, at 972 The prevailing opinion is that [UN declarations] do not as such have binding force, since the [GA] does not have the power to make decisions of this kind binding. Such declarations can, however, be wholly or in part an expression of existing rules or principles of international law. Moreover, as evidence of emerging new convictions and as a reflection of the practice of States adopting these declarations, they can influence the development of new norms of international law, either as general principles of law or as rules of customary international law, While the prevailing view of such declarations is indeed that they are not legally binding per se, it is worth noting that New Zealand, one of the four states to oppose the DRIP, thought otherwise: The Declaration is explained by its supporters as being an aspirational document intended to inspire rather t
    • See 1 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW, supra note 6, at 972 ("The prevailing opinion is that [UN declarations] do not as such have binding force, since the [GA] does not have the power to make decisions of this kind binding. Such declarations can, however, be wholly or in part an expression of existing rules or principles of international law. Moreover, as evidence of emerging new convictions and as a reflection of the practice of States adopting these declarations, they can influence the development of new norms of international law, either as general principles of law or as rules of customary international law."). While the prevailing view of such declarations is indeed that they are not legally binding per se, it is worth noting that New Zealand, one of the four states to oppose the DRIP, thought otherwise: The Declaration is explained by its supporters as being an aspirational document intended to inspire rather than to have legal effect. New Zealand does not, however, accept that a State can responsibly take such a stance towards a document that purports to declare the contents of the rights of indigenous people. We take the statements in the Declaration very seriously. For that reason we have felt compelled to take the position that we do.
  • 11
    • 46449091748 scopus 로고    scopus 로고
    • U.N. GAOR, 61st Sess., 107th plen. mtg. at 14-15, U.N. Doc. A/61/PV.107 (Sept. 13, 2007) (statement of Ambassador Rosemary Banks, Permanent Representative of New Zealand). The apparent view of New Zealand would seem to accord with an argument advanced by some that state practice is no longer essential to the formation of customary international law, and that opinio juris, as expressed in nonbinding declarations, is enough to crystallize instantaneously binding customary law.
    • U.N. GAOR, 61st Sess., 107th plen. mtg. at 14-15, U.N. Doc. A/61/PV.107 (Sept. 13, 2007) (statement of Ambassador Rosemary Banks, Permanent Representative of New Zealand). The apparent view of New Zealand would seem to accord with an argument advanced by some that state practice is no longer essential to the formation of customary international law, and that opinio juris, as expressed in nonbinding declarations, is enough to crystallize "instantaneously" binding customary law.
  • 12
    • 46449098398 scopus 로고    scopus 로고
    • Bin Cheng, Custom: The Future of General State Practice in a Divided World, in THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY DOCTRINE AND THEORY 513, 532 (R. St. J. Macdonald & Douglas M.Johnston eds., 1983).
    • Bin Cheng, Custom: The Future of General State Practice in a Divided World, in THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY DOCTRINE AND THEORY 513, 532 (R. St. J. Macdonald & Douglas M.Johnston eds., 1983).
  • 13
    • 46449136653 scopus 로고    scopus 로고
    • The total vote count was 143 states for and 4 against, with 11 abstentions. Australia, Canada, New Zealand, and the United States opposed the passage of the DRIP, while Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russia, Samoa, and the Ukraine abstained. U.N. GAOR, supra note 8, at 18-19. A few abstaining states justified their abstentions using reasons similar to those offered by the states voting against it. For example, Russia said that the DRIP was not a truly balanced document and did not enjoy consensus support,
    • The total vote count was 143 states for and 4 against, with 11 abstentions. Australia, Canada, New Zealand, and the United States opposed the passage of the DRIP, while Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russia, Samoa, and the Ukraine abstained. U.N. GAOR, supra note 8, at 18-19. A few abstaining states justified their abstentions using reasons similar to those offered by the states voting against it. For example, Russia said that the DRIP was not "a truly balanced document" and did not "enjoy consensus support,"
  • 14
    • 46449137571 scopus 로고    scopus 로고
    • id. at 16, while Colombia, like New Zealand, contended that some aspects of the Declaration [were] in direct contradiction with the Colombian internal legal system, including provisions of Articles 19, 30, and 32.
    • id. at 16, while Colombia, like New Zealand, contended that "some aspects of the Declaration [were] in direct contradiction with the Colombian internal legal system," including provisions of Articles 19, 30, and 32.
  • 15
    • 46449089383 scopus 로고    scopus 로고
    • Id. at 17-18
    • Id. at 17-18.
  • 16
    • 46449119426 scopus 로고    scopus 로고
    • While both the opposing and abstaining votes detracted from universal acceptance of the DRIP as universal is defined infra note 11, this Comment focuses only on responding to the arguments advanced by the four states actively voting against the DRIP-in part to emphasize that the DRIP's goals can best be fulfilled if states stop actively opposing it. Nevertheless, the analysis presented here is also largely responsive to many of the concerns of abstaining states
    • While both the opposing and abstaining votes detracted from universal acceptance of the DRIP (as "universal" is defined infra note 11), this Comment focuses only on responding to the arguments advanced by the four states actively voting against the DRIP-in part to emphasize that the DRIP's goals can best be fulfilled if states stop actively opposing it. Nevertheless, the analysis presented here is also largely responsive to many of the concerns of abstaining states.
  • 17
    • 46449110288 scopus 로고    scopus 로고
    • Press Release, U.N. Sec'y-Gen., supra note 3.
    • Press Release, U.N. Sec'y-Gen., supra note 3.
  • 18
    • 46449086716 scopus 로고    scopus 로고
    • I use universal to mean either favorable votes by all parties eligible to vote (i.e, member states) or adoption without a vote, signaling full support of member states. Thus, the Declaration on the Elimination of Discrimination Against Women, the Declaration on the Elimination of Racial Discrimination, and the Declaration of the Rights of the Child all enjoyed universal support in the sense that they passed unanimously. See 1967 U.N.Y.B. 514, U.N. Sales No. E.68.I.1;
    • I use "universal" to mean either favorable votes by all parties eligible to vote (i.e., member states) or adoption without a vote, signaling full support of member states. Thus, the Declaration on the Elimination of Discrimination Against Women, the Declaration on the Elimination of Racial Discrimination, and the Declaration of the Rights of the Child all enjoyed universal support in the sense that they passed unanimously. See 1967 U.N.Y.B. 514, U.N. Sales No. E.68.I.1;
  • 19
    • 46449109113 scopus 로고    scopus 로고
    • 1963 U.N.Y.B. 330, U.N. Sales No. 64.1.1;
    • 1963 U.N.Y.B. 330, U.N. Sales No. 64.1.1;
  • 20
    • 46449095173 scopus 로고    scopus 로고
    • 1959 U.N.Y.B. 192, U.N. Sales No. 60.1.1. Likewise, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, were adopted without vote and hence universally supported.
    • 1959 U.N.Y.B. 192, U.N. Sales No. 60.1.1. Likewise, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, were adopted without vote and hence universally supported.
  • 21
    • 46449097471 scopus 로고    scopus 로고
    • See 1992 U.N.Y.B. 722, U.N. Sales No. E.93.I.1; 1981 U.N.Y.B. 879, U.N. Sales. No. E.84.I.1.
    • See 1992 U.N.Y.B. 722, U.N. Sales No. E.93.I.1; 1981 U.N.Y.B. 879, U.N. Sales. No. E.84.I.1.
  • 22
    • 46449089716 scopus 로고    scopus 로고
    • However, the Universal Declaration of Human Rights did not enjoy universal support - eight states, including the former Soviet Union and South Africa, abstained. See U.N. GAOR, 2d Sess., 183d plen. mtg. at 933, U.N. Doc. A/PV.183 (Dec. 10, 1948) (noting forty-eight states voting for the UDHR, and abstentions by eight: the Byelorussian Soviet Socialist Republic, Czechoslovakia, Poland, Saudi Arabia, South Africa, the Ukrainian Soviet Socialist Republic, the Union of Soviet Socialist Republics, and Yugoslavia).
    • However, the Universal Declaration of Human Rights did not enjoy universal support - eight states, including the former Soviet Union and South Africa, abstained. See U.N. GAOR, 2d Sess., 183d plen. mtg. at 933, U.N. Doc. A/PV.183 (Dec. 10, 1948) (noting forty-eight states voting for the UDHR, and abstentions by eight: the Byelorussian Soviet Socialist Republic, Czechoslovakia, Poland, Saudi Arabia, South Africa, the Ukrainian Soviet Socialist Republic, the Union of Soviet Socialist Republics, and Yugoslavia).
  • 23
    • 46449136006 scopus 로고    scopus 로고
    • In addition, the Declaration on the Granting of Independence for Colonial Countries and Peoples (the Colonial Peoples' Declaration, GA. Res. 1514 (XV, U.N. Doc A/4684 Dec. 14, 1960, was not universally supported, as nine states abstained
    • In addition, the Declaration on the Granting of Independence for Colonial Countries and Peoples (the Colonial Peoples' Declaration), GA. Res. 1514 (XV), U.N. Doc A/4684 (Dec. 14, 1960), was not universally supported, as nine states abstained.
  • 24
    • 46449114049 scopus 로고    scopus 로고
    • See U.N. GAOR, 15th Sess., 947th plen. mtg. at 1273-74, U.N. Doc. A/PV.947 (Dec. 14, 1960) (noting eighty-nine states voting for and abstentions by nine states: Australia, Belgium, the Dominican Republic, France, Portugal, Spain, South Africa, the United Kingdom, and the United States). Despite its lack of universal support, however, the UDHR is nevertheless considered the foundational document of the modern human rights system, and colonialism per se has become indefensible foreign policy and a violation of the right to external self-determination.
    • See U.N. GAOR, 15th Sess., 947th plen. mtg. at 1273-74, U.N. Doc. A/PV.947 (Dec. 14, 1960) (noting eighty-nine states voting for and abstentions by nine states: Australia, Belgium, the Dominican Republic, France, Portugal, Spain, South Africa, the United Kingdom, and the United States). Despite its lack of "universal" support, however, the UDHR is nevertheless considered the foundational document of the modern human rights system, and colonialism per se has become indefensible foreign policy and a violation of the right to external self-determination.
  • 25
    • 46449134141 scopus 로고    scopus 로고
    • See infra Part.I.B.2 (comparing external and internal self-determination).
    • See infra Part.I.B.2 (comparing external and internal self-determination).
  • 26
    • 46449087869 scopus 로고    scopus 로고
    • See supra note 9
    • See supra note 9.
  • 27
    • 46449129094 scopus 로고    scopus 로고
    • On January 23, 2006, the Conservative Party of Canada won a plurality of the seats in Parliament, creating the proportionally smallest minority government since Confederation in 1867. See Elections Canada, 39th General Election: Official Results (Jan. 23, 2006), http://www.elections.ca/ scripts/OVR2006/25/map.pdf. The next year, Canada's UN representative commented that although his government sought a document that would advance indigenous rights and promote harmonious arrangements between indigenous peoples and the States in which they live, it voted against the DRIP because the final text did not address some of [its] concerns.
    • On January 23, 2006, the Conservative Party of Canada won a plurality of the seats in Parliament, creating the proportionally smallest minority government since Confederation in 1867. See Elections Canada, 39th General Election: Official Results (Jan. 23, 2006), http://www.elections.ca/ scripts/OVR2006/25/map.pdf. The next year, Canada's UN representative commented that although his government sought a "document that would advance indigenous rights and promote harmonious arrangements between indigenous peoples and the States in which they live," it voted against the DRIP because the final text "did not address some of [its] concerns."
  • 28
    • 46449093386 scopus 로고    scopus 로고
    • note 8, at, statement of Ambassador John McNee, Permanent Representative of Canada
    • U.N. GAOR, supra note 8, at 12 (statement of Ambassador John McNee, Permanent Representative of Canada).
    • supra , pp. 12
    • GAOR, U.N.1
  • 29
    • 84888467546 scopus 로고    scopus 로고
    • text accompanying notes 17-19
    • See infra text accompanying notes 17-19.
    • See infra
  • 30
    • 46449084940 scopus 로고    scopus 로고
    • Note, however, that New Zealand's ultimate reasons for voting against the DRIP are more like those of Canada than those of Australia and the United States. See infra notes 21-22 and accompanying text.
    • Note, however, that New Zealand's ultimate reasons for voting against the DRIP are more like those of Canada than those of Australia and the United States. See infra notes 21-22 and accompanying text.
  • 31
    • 46449090006 scopus 로고    scopus 로고
    • U.N. GAOR, supra note 8, at 12 (statement of Ambassador John McNee, Permanent Representative of Canada). In addition to those three concerns, Mr. McNee also mentioned without elaboration concerns about the provisions on self-government without recognition of the importance of negotiations; on intellectual property; on military issues; and on the need to achieve an appropriate balance between the rights and obligations of indigenous peoples, Member States and third parties.
    • U.N. GAOR, supra note 8, at 12 (statement of Ambassador John McNee, Permanent Representative of Canada). In addition to those three concerns, Mr. McNee also mentioned without elaboration concerns about the provisions "on self-government without recognition of the importance of negotiations; on intellectual property; on military issues; and on the need to achieve an appropriate balance between the rights and obligations of indigenous peoples, Member States and third parties."
  • 32
    • 46449103253 scopus 로고    scopus 로고
    • Id. at 12-13
    • Id. at 12-13.
  • 33
    • 46449125041 scopus 로고    scopus 로고
    • See Press Release, U.S. Mission to the UN, Statement by H.E. Ambassador Rosemary Banks, on Behalf of Australia, New Zealand and the United States, on Item 64(a) The Declaration on the Rights of the Indigenous Peoples, in the Third Committee of the 61st UN General Assembly (Oct. 16, 2006), available at http:// www.usunnewyork.usmission.gov/press_releases/ 20061016_294.html.
    • See Press Release, U.S. Mission to the UN, Statement by H.E. Ambassador Rosemary Banks, on Behalf of Australia, New Zealand and the United States, on Item 64(a) The Declaration on the Rights of the Indigenous Peoples, in the Third Committee of the 61st UN General Assembly (Oct. 16, 2006), available at http:// www.usunnewyork.usmission.gov/press_releases/ 20061016_294.html.
  • 34
    • 46449090910 scopus 로고    scopus 로고
    • Id
    • Id.
  • 35
    • 46449108832 scopus 로고    scopus 로고
    • The joint statement also addressed concerns similar to those raised by Canada, specifically regarding provisions dealing with land and resources, as well as concerns about some provisions being potentially discriminatory and concerns about the lack of a definition of indigenous peoples. See id. Nevertheless, the overall focus of the statement was clearly the consequences of conferring a self-determination right on indigenous peoples. Indeed, the concern about leaving indigenous peoples undefined was explicitly rooted in the overarching self-determination worry: The lack of definition, means that separatist or minority groups, with traditional connections to the territory where they live, could seek to exploit this declaration to claim the right to self-determination
    • The joint statement also addressed concerns similar to those raised by Canada - specifically regarding provisions dealing with land and resources - as well as concerns about some provisions being "potentially discriminatory" and concerns about the lack of a definition of "indigenous peoples." See id. Nevertheless, the overall focus of the statement was clearly the consequences of conferring a self-determination right on indigenous peoples. Indeed, the concern about leaving "indigenous peoples" undefined was explicitly rooted in the overarching self-determination worry: "The lack of definition... means that separatist or minority groups, with traditional connections to the territory where they live[,]... could seek to exploit this declaration to claim the right to self-determination...."
  • 36
    • 46449115837 scopus 로고    scopus 로고
    • Id. To be clear, however, it is not the position of this Comment that the other reasons provided by the opposing states are not important to their continued opposition, or even that those reasons are entirely without merit. Rather, in arguing that the opposing states, especially the United States and Australia, cannot legitimately rely on fears about self-determination (as they have defined and used the term) in opposing the DRIP, this Comment attempts to encourage a candid debate about the real issues of discord - issues that fundamentally come down to unstated disagreements over the meaning of internal self-determination (the right conferred by the DRIP) to the extent that such a right implies rights to autonomous governance and control over lands and resources.
    • Id. To be clear, however, it is not the position of this Comment that the other reasons provided by the opposing states are not important to their continued opposition, or even that those reasons are entirely without merit. Rather, in arguing that the opposing states, especially the United States and Australia, cannot legitimately rely on fears about self-determination (as they have defined and used the term) in opposing the DRIP, this Comment attempts to encourage a candid debate about the real issues of discord - issues that fundamentally come down to unstated disagreements over the meaning of "internal self-determination" (the right conferred by the DRIP) to the extent that such a right implies rights to autonomous governance and control over lands and resources.
  • 37
    • 46449121901 scopus 로고    scopus 로고
    • DRIP, supranote 1, art. 46(1).
    • DRIP, supranote 1, art. 46(1).
  • 38
    • 46449128466 scopus 로고    scopus 로고
    • U.N. GAOR, supra note 8, at 14-15 (statement of Ambassador Rosemary Banks, Permanent Representative of New Zealand). New Zealand specifically remained opposed to article 26 on lands and resources, article 28 on redress, and articles 19 and 32 on a right of veto over the State.
    • U.N. GAOR, supra note 8, at 14-15 (statement of Ambassador Rosemary Banks, Permanent Representative of New Zealand). New Zealand specifically remained opposed to "article 26 on lands and resources, article 28 on redress, and articles 19 and 32 on a right of veto over the State."
  • 39
    • 46449126246 scopus 로고    scopus 로고
    • at 14. New Zealand also mentioned in passing its opposition to Article 31, which relates to intellectual property rights
    • Id. at 14. New Zealand also mentioned in passing its opposition to Article 31, which relates to intellectual property rights. Id.
    • Id
  • 40
    • 46449112387 scopus 로고    scopus 로고
    • See supra note 8
    • See supra note 8.
  • 41
    • 46449093386 scopus 로고    scopus 로고
    • note 8, at, statement of Ambassador Robert Hill, Permanent Representative of Australia
    • U.N. GAOR, supra note 8, at 11 (statement of Ambassador Robert Hill, Permanent Representative of Australia).
    • supra , pp. 11
    • GAOR, U.N.1
  • 42
    • 46449125312 scopus 로고    scopus 로고
    • Id
    • Id.
  • 43
    • 46449117654 scopus 로고    scopus 로고
    • id
    • id.
  • 44
    • 46449128474 scopus 로고    scopus 로고
    • International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
    • International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
  • 45
    • 46449094595 scopus 로고    scopus 로고
    • International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR].
    • International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR].
  • 46
    • 46449136005 scopus 로고    scopus 로고
    • Press Release, U.S. Mission to the UN, Explanation of Vote by Robert Hagen, U.S. Advisor, on the Declaration of the Rights of Indigenous Peoples, to the UN General Assembly (Sept. 13, 2007), available at http://www.usunnewyork.usmission.gov/ press_releases/20070913_204.html. This characterization of the Common Article 1 right to self-determination is somewhat misleading. The understanding that the right carries with it a right to full independence under certain circumstances (e.g., classic colonialism) is held by more than some. Indeed, this understanding is held by the vast majority of international legal scholars and has almost certainly crystallized into a binding customary international norm through state practice with opinio juris.
    • Press Release, U.S. Mission to the UN, Explanation of Vote by Robert Hagen, U.S. Advisor, on the Declaration of the Rights of Indigenous Peoples, to the UN General Assembly (Sept. 13, 2007), available at http://www.usunnewyork.usmission.gov/ press_releases/20070913_204.html. This characterization of the Common Article 1 right to self-determination is somewhat misleading. The understanding that the right carries with it a right to "full independence under certain circumstances" (e.g., classic colonialism) is held by more than "some." Indeed, this understanding is held by the vast majority of international legal scholars and has almost certainly crystallized into a binding customary international norm through state practice with opinio juris.
  • 47
    • 46449114941 scopus 로고    scopus 로고
    • See LORI FISLER DAMROSCH ET AL., INTERNATIONAL LAW: CASES AND MATERIALS 268-69 (4th ed. 2001) (noting that self-determination has been accepted as a principle of customary as well as treaty law and that it was classically understood... as a right of the people in non-self-governing territories (i.e., colonies) freely to determine their political status). This full independence scenario presumably comports with the first of Australia's two defined scenarios.
    • See LORI FISLER DAMROSCH ET AL., INTERNATIONAL LAW: CASES AND MATERIALS 268-69 (4th ed. 2001) (noting that self-determination has been "accepted as a principle of customary as well as treaty law" and that it was classically "understood... as a right of the people in non-self-governing territories (i.e., colonies) freely to determine their political status"). This "full independence" scenario presumably comports with the first of Australia's two defined scenarios.
  • 48
    • 84886342665 scopus 로고    scopus 로고
    • text accompanying note 23
    • See supra text accompanying note 23.
    • See supra
  • 49
    • 46449135133 scopus 로고    scopus 로고
    • Press Release, U.S. Mission to the UN, supra note 28 (emphasis added).
    • Press Release, U.S. Mission to the UN, supra note 28 (emphasis added).
  • 50
    • 46449089388 scopus 로고    scopus 로고
    • Id. (emphasis added).
    • Id. (emphasis added).
  • 51
    • 46449112975 scopus 로고    scopus 로고
    • See U.N. Econ. Sc Soc Council [ECOSOC] Res. 1995/32, U.N. Doc. E/RES/ 1995/32 (July 25, 1995).
    • See U.N. Econ. Sc Soc Council [ECOSOC] Res. 1995/32, U.N. Doc. E/RES/ 1995/32 (July 25, 1995).
  • 52
    • 46449089723 scopus 로고    scopus 로고
    • Press Release, U.S. Mission to the UN, supra note 28.
    • Press Release, U.S. Mission to the UN, supra note 28.
  • 53
    • 46449139542 scopus 로고    scopus 로고
    • Id. Note that while it may indeed be the case that the mandate (and power) of the Working Group did not extend to qualifying, limiting, or expanding self-determination rights, as that term is used in Common Article 1, this does not mean that the mandate of the Working Group did not include the articulation of aspirational self-determination rights as specifically applied to indigenous peoples, Thus, there would be (1) self-determination as legally binding on states party to the ICCPR and ICESCR, and (2) self-determination in the specific context of indigenous peoples, as aspired to by the DRIP. The argument that the mandate of the Working Group included the articulation of self-determination rights is conclusively supported by the very wording of the mandate itself. In its Resolution 1995/32, ECOSOC specifically stated that it was creating the Working Group for the sole purpose of elaborating a draft declaration, considering the draft United Nations decl
    • Id. Note that while it may indeed be the case that the mandate (and power) of the Working Group did not extend to qualifying, limiting, or expanding self-determination rights, as that term is used in Common Article 1, this does not mean that the mandate of the Working Group did not include the articulation of aspirational self-determination rights as specifically applied to "indigenous peoples," Thus, there would be (1) self-determination as legally binding on states party to the ICCPR and ICESCR, and (2) self-determination in the specific context of indigenous peoples, as aspired to by the DRIP. The argument that the mandate of the Working Group included the articulation of self-determination rights is conclusively supported by the very wording of the mandate itself. In its Resolution 1995/32, ECOSOC specifically stated that it was creating the Working Group for "the sole purpose of elaborating a draft declaration, considering the draft United Nations declaration on the rights of indigenous peoples annexed to resolution 1994/45 of 26 August 1994 of the Subcommission on Prevention of Discrimination and Protection of Minorities...."
  • 54
    • 46449132012 scopus 로고    scopus 로고
    • ECOSOC Res. 1995/32, supra note 31, ¶ 2 (emphasis added). The draft referred to by ECOSOC, which was the only draft the Working Group was required to consider, contained an Article 3 self-determination right that was identical to that in the final draft of the DRIP approved by the GA on September 13.
    • ECOSOC Res. 1995/32, supra note 31, ¶ 2 (emphasis added). The draft referred to by ECOSOC, which was the only draft the Working Group was required to consider, contained an Article 3 self-determination right that was identical to that in the final draft of the DRIP approved by the GA on September 13.
  • 56
    • 46449084362 scopus 로고    scopus 로고
    • Press Release, U.S. Mission to the UN, supra note 28 (emphasis added).
    • Press Release, U.S. Mission to the UN, supra note 28 (emphasis added).
  • 57
    • 46449086715 scopus 로고    scopus 로고
    • Id
    • Id.
  • 58
    • 46449134556 scopus 로고    scopus 로고
    • See HENRYJ. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 138-39 (2d ed. 2000). Despite proposals to the contrary, the [UN] Charter stopped shy of incorporating a bill of rights, prompting the establishment of a commission to draft the UDHR, which was adopted by the GA in 1948,
    • See HENRYJ. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 138-39 (2d ed. 2000). "Despite proposals to the contrary, the [UN] Charter stopped shy of incorporating a bill of rights," prompting the establishment of a commission to draft the UDHR, which was adopted by the GA in 1948,
  • 59
    • 46449096650 scopus 로고    scopus 로고
    • Id. Between 1948 and 1976, when ICCPR and ICESCR entered into force, the UDHR was broadly known and frequently invoked [because]... it was the only broad-based human rights instrument available,
    • Id. Between 1948 and 1976, when ICCPR and ICESCR entered into force, the UDHR was "broadly known and frequently invoked [because]... it was the only broad-based human rights instrument available,"
  • 60
    • 46449117068 scopus 로고    scopus 로고
    • Id. For a more detailed analysis of the drafting history of the UDHR, see generally JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ORIGINS, DRAFTING, AND INTENT (1999).
    • Id. For a more detailed analysis of the drafting history of the UDHR, see generally JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ORIGINS, DRAFTING, AND INTENT (1999).
  • 61
    • 46449100357 scopus 로고    scopus 로고
    • See generally MORSINK, supra note 36, at 36-91
    • See generally MORSINK, supra note 36, at 36-91.
  • 62
    • 46449107577 scopus 로고    scopus 로고
    • See H. LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS 61 (1950) (noting that international practice did not, until recently, accept the implications of [the] view that the individual is a subject of international law).
    • See H. LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS 61 (1950) (noting that "international practice did not, until recently, accept the implications of [the] view" that the individual is "a subject of international law").
  • 64
    • 46449092448 scopus 로고    scopus 로고
    • In such a scenario, B would be exercising diplomatic protection on behalf of its citizens, and under the traditional system, it would base its claim not on a violation of its citizens' human rights, but on a violation of its own sovereign dignity. In any case, any satisfaction it received (e.g., an apology or money damages) would belong to the state and not to the victims. See Mavrommatis Palestine Concessions (Greece v. Gr. Brit), 1924 P.C.I.J. (ser. B) No. 3, at 7 (Aug. 30) (By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a state is in reality asserting its own rights-its right to ensure, in the person of its subjects, respect for the rules of international law.).
    • In such a scenario, B would be exercising "diplomatic protection" on behalf of its citizens, and under the traditional system, it would base its claim not on a violation of its citizens' human rights, but on a violation of its own sovereign dignity. In any case, any satisfaction it received (e.g., an apology or money damages) would belong to the state and not to the victims. See Mavrommatis Palestine Concessions (Greece v. Gr. Brit), 1924 P.C.I.J. (ser. B) No. 3, at 7 (Aug. 30) ("By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a state is in reality asserting its own rights-its right to ensure, in the person of its subjects, respect for the rules of international law.").
  • 65
    • 46449102951 scopus 로고    scopus 로고
    • See Louis Henkin, International Law: Politics, Values and Functions, in 4 RECUEIL DES COURS: COLLECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL LAW 13, 209 (1989) ([F]or hundreds of years international law and the law governing individual life did not come together.... What a State did inside its borders in relation to its own nationals remained its own affair, an element of its autonomy, a matter of its 'domestic jurisdiction.').
    • See Louis Henkin, International Law: Politics, Values and Functions, in 4 RECUEIL DES COURS: COLLECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL LAW 13, 209 (1989) ("[F]or hundreds of years international law and the law governing individual life did not come together.... What a State did inside its borders in relation to its own nationals remained its own affair, an element of its autonomy, a matter of its 'domestic jurisdiction.'").
  • 66
    • 46449109988 scopus 로고    scopus 로고
    • See Henry J. Steiner, Securing Human Rights: The First Half-Century of the Universal Declaration, and Beyond, HARV. MAG., Sept.-Oct 1998, at 45 ([The UDHR] has retained its place of honor in the human rights movement. No other document has so caught the historical moment, achieved the same moral and rhetorical force, or exerted as much influence on the movement as a whole.... [It has] forever chang[ed] the discourse of international relations on issues vital to human decency and peace.).
    • See Henry J. Steiner, Securing Human Rights: The First Half-Century of the Universal Declaration, and Beyond, HARV. MAG., Sept.-Oct 1998, at 45 ("[The UDHR] has retained its place of honor in the human rights movement. No other document has so caught the historical moment, achieved the same moral and rhetorical force, or exerted as much influence on the movement as a whole.... [It has] forever chang[ed] the discourse of international relations on issues vital to human decency and peace.").
  • 67
    • 46449083765 scopus 로고    scopus 로고
    • See UDHR, note 4, arts. 3
    • See UDHR, supra note 4, arts. 3, 5-12, 22-26.
    • supra
  • 68
    • 46449085811 scopus 로고    scopus 로고
    • See id. art. 17.
    • See id. art. 17.
  • 69
    • 84963456897 scopus 로고    scopus 로고
    • note 37 and accompanying text
    • See supra note 37 and accompanying text.
    • See supra
  • 70
    • 46449111756 scopus 로고    scopus 로고
    • See Douglas Donoho, Human Rights Enforcement in the Twenty-First Century, 35 GA. J. INT'L Sc COMP. L. 1, 5 (2006) (noting the significantly limited enforcement capacity of the international human rights system).
    • See Douglas Donoho, Human Rights Enforcement in the Twenty-First Century, 35 GA. J. INT'L Sc COMP. L. 1, 5 (2006) (noting the "significantly limited enforcement capacity" of the international human rights system).
  • 71
    • 46449114938 scopus 로고    scopus 로고
    • See Optional Protocol to the International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), art. 2, U.N. Doc A/6316 (Dec. 16, 1966) ([I]ndividuals who claim that any of their rights enumerated in the Covenant have been violated... may submit a written communication to the [Human Rights] Committee for consideration.). The Second Optional Protocol to the ICCPR, which the United States has not signed, deals with abolition of the death penalty.
    • See Optional Protocol to the International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), art. 2, U.N. Doc A/6316 (Dec. 16, 1966) ("[I]ndividuals who claim that any of their rights enumerated in the Covenant have been violated... may submit a written communication to the [Human Rights] Committee for consideration."). The Second Optional Protocol to the ICCPR, which the United States has not signed, deals with abolition of the death penalty.
  • 72
    • 46449118550 scopus 로고    scopus 로고
    • See Second Optional Protocol to the International Covenant on Civil and Political Rights, GA. Res. 44/128, Annex, art. 1, U.N. Doc. A/RES/44/128/Annex (Dec. 15, 1989) (Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.).
    • See Second Optional Protocol to the International Covenant on Civil and Political Rights, GA. Res. 44/128, Annex, art. 1, U.N. Doc. A/RES/44/128/Annex (Dec. 15, 1989) ("Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.").
  • 73
    • 46449138065 scopus 로고    scopus 로고
    • UN Office of the High Comm'r for Human Rights, Fact Sheet No. 2 (Rev. 1), The International Bill of Human Rights (1996), http://www.unhchr.ch/html/menu6/ 2/fs2.htm. Note that in addition to the International Bill of Human Rights, there are a number of important topical human rights treaties, some of which are explored later in this Comment as they relate to indigenous peoples' rights.
    • UN Office of the High Comm'r for Human Rights, Fact Sheet No. 2 (Rev. 1), The International Bill of Human Rights (1996), http://www.unhchr.ch/html/menu6/ 2/fs2.htm. Note that in addition to the International Bill of Human Rights, there are a number of important topical human rights treaties, some of which are explored later in this Comment as they relate to indigenous peoples' rights.
  • 74
    • 46449119427 scopus 로고    scopus 로고
    • See, e.g., International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158, Annex, U.N. Doc. A/RES/45/49 (Dec. 18, 1990);
    • See, e.g., International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158, Annex, U.N. Doc. A/RES/45/49 (Dec. 18, 1990);
  • 75
    • 46449093382 scopus 로고    scopus 로고
    • Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 43;
    • Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 43;
  • 76
    • 46449121554 scopus 로고    scopus 로고
    • Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 112;
    • Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 112;
  • 77
    • 46449120026 scopus 로고    scopus 로고
    • Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13;
    • Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13;
  • 78
    • 46449104396 scopus 로고    scopus 로고
    • International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 U.N.T.S. 211.
    • International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 U.N.T.S. 211.
  • 79
    • 46449099786 scopus 로고    scopus 로고
    • ICCPR, note 26, art, emphasis added
    • ICCPR, supra note 26, art. 1(1) (emphasis added);
    • supra , vol.1 , Issue.1
  • 80
    • 46449135678 scopus 로고    scopus 로고
    • ICESCR, supra note 27, art. 1(1) (emphasis added). In addition to the above-quoted text, Article 1(2) also states, in paragraph 2, that [a] ll peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
    • ICESCR, supra note 27, art. 1(1) (emphasis added). In addition to the above-quoted text, Article 1(2) also states, in paragraph 2, that [a] ll peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
  • 81
    • 46449105173 scopus 로고    scopus 로고
    • ICCPR, note 26, art
    • ICCPR, supra note 26, art. 1 (2);
    • supra , vol.1 , Issue.2
  • 82
    • 46449092449 scopus 로고    scopus 로고
    • ICESCR, supra note 27, art. 1 (2). Paragraph 3 creates a binding obligation on states to promote self-determination in colonies and their ilk: [t]he States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
    • ICESCR, supra note 27, art. 1 (2). Paragraph 3 creates a binding obligation on states to promote self-determination in colonies and their ilk: "[t]he States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations."
  • 83
    • 46449084078 scopus 로고    scopus 로고
    • ICCPR, supra note 26, art. 1(3); ICESCR, supra note 27, art. 1(3).
    • ICCPR, supra note 26, art. 1(3); ICESCR, supra note 27, art. 1(3).
  • 84
    • 46449100948 scopus 로고    scopus 로고
    • U.N. Charter art. 1, para. 2.
    • U.N. Charter art. 1, para. 2.
  • 85
    • 46449120352 scopus 로고    scopus 로고
    • ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL 11 (1995).
    • ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL 11 (1995).
  • 86
    • 46449119428 scopus 로고    scopus 로고
    • Id
    • Id.
  • 87
    • 46449090575 scopus 로고    scopus 로고
    • See id. at 13 (noting that for President Wilson, self-determination was the key to lasting peace in Europe, while for V.I. Lenin, it was a means of realizing the dream of worldwide socialism).
    • See id. at 13 (noting that for President Wilson, self-determination "was the key to lasting peace in Europe," while for V.I. Lenin, "it was a means of realizing the dream of worldwide socialism").
  • 88
    • 46449136973 scopus 로고    scopus 로고
    • The Fourteen Points, Wilson's general principles for building a post-war international system, are reprinted in WILSON'S IDEALS 112-15 (Saul K. Padover ed., 1942).
    • The Fourteen Points, Wilson's general principles for building a post-war international system, are reprinted in WILSON'S IDEALS 112-15 (Saul K. Padover ed., 1942).
  • 89
    • 46449117364 scopus 로고    scopus 로고
    • For an excellent historical account of the formation of the League of Nations, including significant treatment of the use of the concept of self-determination, see generally MARGARET MACMILLAN, PARIS 1919: SIX MONTHS THAT CHANGED THE WORLD (2001).
    • For an excellent historical account of the formation of the League of Nations, including significant treatment of the use of the concept of self-determination, see generally MARGARET MACMILLAN, PARIS 1919: SIX MONTHS THAT CHANGED THE WORLD (2001).
  • 90
    • 46449096646 scopus 로고    scopus 로고
    • See CASSESE, supra note 51, at 19-21 (describing Wilson's conception of self-determination as containing four variants: (1) the right of people to choose their form of government; (2) a means of restructuring... the states of central Europe in accordance with national desires; (3) a criterion governing territorial change (that is, taking the interests of populations into account when states divide up territory); and (4) a factor, but not a decisive one, in settling claims of colonies to independence).
    • See CASSESE, supra note 51, at 19-21 (describing Wilson's conception of self-determination as containing four "variants": (1) the right of people to choose their "form of government"; (2) a means of "restructuring... the states of central Europe in accordance with national desires"; (3) a "criterion governing territorial change" (that is, taking the interests of populations into account when states divide up territory); and (4) a factor, but not a decisive one, in settling claims of colonies to independence).
  • 91
    • 76849091874 scopus 로고
    • Sept. 11, note 54, at
    • Woodrow Wilson, Speech at Billings, Montana (Sept. 11, 1919), in WILSON'S IDEALS, supra note 54, at 109.
    • (1919) supra , pp. 109
    • Wilson, W.1    Speech at Billings, M.2
  • 92
    • 46449127745 scopus 로고    scopus 로고
    • This view was expressed most famously by V.I. Lenin. See supra note 53 and accompanying text
    • This view was expressed most famously by V.I. Lenin. See supra note 53 and accompanying text.
  • 93
    • 46449136972 scopus 로고    scopus 로고
    • For an in-depth historical review of the Aaland Islands case, see generally JAMES BARROS, THE ALAND ISLANDS QUESTION: ITS SETTLEMENT BY THE LEAGUE OF NATIONS (1968).
    • For an in-depth historical review of the Aaland Islands case, see generally JAMES BARROS, THE ALAND ISLANDS QUESTION: ITS SETTLEMENT BY THE LEAGUE OF NATIONS (1968).
  • 94
    • 46449086133 scopus 로고    scopus 로고
    • Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question, LEAGUE OF NATIONS O.J. 5 (Special Supp. No. 3, 1920) [hereinafter Aaland Islands].
    • Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question, LEAGUE OF NATIONS O.J. 5 (Special Supp. No. 3, 1920) [hereinafter Aaland Islands].
  • 95
    • 46449128165 scopus 로고    scopus 로고
    • Id. (emphasis added). Note that despite deciding that national groups did not have a right to self-determination that outweighed state sovereignty, the Aaland Islands opinion did decide that the League of Nations could appropriately take action on the case without infringing state sovereignty because Finland was not a definitely constituted State (having recently become independent from Russia).
    • Id. (emphasis added). Note that despite deciding that national groups did not have a right to self-determination that outweighed state sovereignty, the Aaland Islands opinion did decide that the League of Nations could appropriately take action on the case without infringing state sovereignty because Finland was not a "definitely constituted State" (having recently become independent from Russia).
  • 96
    • 46449105781 scopus 로고    scopus 로고
    • Id. at 14. This resulted in an agreement between Finland and Sweden giving the Aaland Islanders a degree of autonomous local government. See Minutes of the Thirteenth Session of the Council of the League of Nations, in 2 LEAGUE OF NATIONS O.J. 701-02 (1921) [hereinafter Aaland Islands Agreement] (providing the text of the agreement);
    • Id. at 14. This resulted in an agreement between Finland and Sweden giving the Aaland Islanders a degree of autonomous local government. See Minutes of the Thirteenth Session of the Council of the League of Nations, in 2 LEAGUE OF NATIONS O.J. 701-02 (1921) [hereinafter Aaland Islands Agreement] (providing the text of the agreement);
  • 97
    • 34548654283 scopus 로고    scopus 로고
    • note 51, at, discussing the use of the principle of self-determination to grant autonomy to the Aaland Islanders
    • CASSESE, supra note 51, at 27-33 (discussing the use of the principle of self-determination to grant autonomy to the Aaland Islanders).
    • supra , pp. 27-33
    • CASSESE1
  • 98
    • 46449089719 scopus 로고    scopus 로고
    • CASSESE, supra note 51, at 29-30
    • CASSESE, supra note 51, at 29-30.
  • 99
    • 46449135131 scopus 로고    scopus 로고
    • Id
    • Id.
  • 101
    • 46449104865 scopus 로고    scopus 로고
    • Id
    • Id.
  • 102
    • 46449092764 scopus 로고    scopus 로고
    • See Aaland Islands Agreement, supra note 60, at 701-02.
    • See Aaland Islands Agreement, supra note 60, at 701-02.
  • 103
    • 46449135397 scopus 로고    scopus 로고
    • For example, the Belgian representative to the UNCIO argued that Article 1 (2) of the draft UN Charter, which dealt with self-determination, was based on confusion. He further averred that it was dangerous and might lead to its invocation by national minorities for secessionist purposes. Belgian Delegation Amendment to Paragraph 2 of Chapter I, in 6 U.N. INFO. ORG., DOCUMENTS OF THE UNITED NATIONS CONFERENCE ON INTERNATIONAL ORGANIZATION IN SAN FRANCISCO 300 (1945).
    • For example, the Belgian representative to the UNCIO argued that Article 1 (2) of the draft UN Charter, which dealt with "self-determination," was based on "confusion." He further averred that it was "dangerous" and might lead to its invocation by national minorities for secessionist purposes. Belgian Delegation Amendment to Paragraph 2 of Chapter I, in 6 U.N. INFO. ORG., DOCUMENTS OF THE UNITED NATIONS CONFERENCE ON INTERNATIONAL ORGANIZATION IN SAN FRANCISCO 300 (1945).
  • 105
    • 46449104104 scopus 로고    scopus 로고
    • See CASSESE, supra note 51, at 42 (States were unable positively to define self-determination.).
    • See CASSESE, supra note 51, at 42 ("States were unable positively to define self-determination.").
  • 106
    • 46449116106 scopus 로고    scopus 로고
    • See U.N. Charter arts. 55, 56 (generally requiring states to take joint and separate action to advance the purposes of the UN with regard to economic development, human rights, and other concerns);
    • See U.N. Charter arts. 55, 56 (generally requiring states to take "joint and separate action" to advance the purposes of the UN with regard to economic development, human rights, and other concerns);
  • 108
    • 46449112386 scopus 로고    scopus 로고
    • See CASSESE, supra note 51, at 44 (claiming that these groups were the predominant advocates of the anticolonial theory). This view of self-determination had previously been articulated by V.I. Lenin, around the same time that President Wilson articulated his views of the concept.
    • See CASSESE, supra note 51, at 44 (claiming that these groups were the predominant advocates of the anticolonial theory). This view of self-determination had previously been articulated by V.I. Lenin, around the same time that President Wilson articulated his views of the concept.
  • 109
    • 84963456897 scopus 로고    scopus 로고
    • note 53 and accompanying text;
    • See supra note 53 and accompanying text;
    • See supra
  • 110
    • 46449094594 scopus 로고    scopus 로고
    • see also G. STARUSHENKO, THE PRINCIPLE OF NATIONAL SELF-DETERMINATION IN SOVIET FOREIGN POLICY 6-10 (Ivanov Mumjiev trans. 1964).
    • see also G. STARUSHENKO, THE PRINCIPLE OF NATIONAL SELF-DETERMINATION IN SOVIET FOREIGN POLICY 6-10 (Ivanov Mumjiev trans. 1964).
  • 111
    • 34548654283 scopus 로고    scopus 로고
    • See note 51, at, discussing the rhetorical battle between states advocating for external self-determination and those advocating for internal self-determination
    • See CASSESE, supra note 51, at 45-46 (discussing the rhetorical battle between states advocating for external self-determination and those advocating for internal self-determination).
    • supra , pp. 45-46
    • CASSESE1
  • 112
    • 46449123091 scopus 로고    scopus 로고
    • Isador Lubin, U.S. Views on Self-Determination, 27 DEP'T ST. BULL. 269, 269, 271 (1952) (reprinting the statement, of the U.S. representative to the UN Economic and Social Council).
    • Isador Lubin, U.S. Views on Self-Determination, 27 DEP'T ST. BULL. 269, 269, 271 (1952) (reprinting the statement, of the U.S. representative to the UN Economic and Social Council).
  • 113
    • 46449131722 scopus 로고    scopus 로고
    • ICCPR, note 26, art
    • ICCPR, supra note 26, art. 1(1);
    • supra , vol.1 , Issue.1
  • 114
    • 46449112388 scopus 로고    scopus 로고
    • ICESCR, note 27, art
    • ICESCR, supra note 27, art. 1 (1) ;
    • supra , vol.1 , Issue.1
  • 115
    • 46449114343 scopus 로고    scopus 로고
    • see also supra note 50 and accompanying text (reproducing the relevant text of Article 1).
    • see also supra note 50 and accompanying text (reproducing the relevant text of Article 1).
  • 116
    • 46449124508 scopus 로고    scopus 로고
    • CASSESE, supra note 51, at 47
    • CASSESE, supra note 51, at 47.
  • 117
    • 46449096647 scopus 로고    scopus 로고
    • Id.;
    • Id.;
  • 118
    • 46449099787 scopus 로고    scopus 로고
    • see also Antonio Cassese, The Self-Determination of Peoples, in THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 92, 92 (Louis Henkin ed., 1981).
    • see also Antonio Cassese, The Self-Determination of Peoples, in THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 92, 92 (Louis Henkin ed., 1981).
  • 119
    • 46449117953 scopus 로고    scopus 로고
    • See DOMINIC MCGOLDRICK, THE HUMAN RIGHTS COMMITTEE: ITS ROLE IN THE DEVELOPMENT OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 247-50 (1991).
    • See DOMINIC MCGOLDRICK, THE HUMAN RIGHTS COMMITTEE: ITS ROLE IN THE DEVELOPMENT OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 247-50 (1991).
  • 120
    • 46449139823 scopus 로고    scopus 로고
    • The emphasis on external self-determination is probably rooted in the international law principle of noninterference in the domestic affairs of states that is embodied in Article 2(7) of the UN Charter. See U.N. Charter art. 2, para. 7 withholding authority from the UN to intervene in matters which are essentially within the domestic jurisdiction of any state, The Human Rights Committee emphasized this point in a 1984 report specifically addressing Common Article 1
    • The emphasis on external self-determination is probably rooted in the international law principle of noninterference in the domestic affairs of states that is embodied in Article 2(7) of the UN Charter. See U.N. Charter art. 2, para. 7 (withholding authority from the UN "to intervene in matters which are essentially within the domestic jurisdiction of any state"). The Human Rights Committee emphasized this point in a 1984 report specifically addressing Common Article 1.
  • 121
    • 46449101269 scopus 로고    scopus 로고
    • See U.N. Human Rights Comm., Report of the Human Rights Committee 143, U.N. Doc. A/39/40 (1984) ([A]ll States parties to the Covenant should take positive action to facilitate realization of and respect for the right of peoples to self-determination.... [However,] States must refrain from interfering in the internal affairs of other States and thereby adversely affecting the exercise of the right to self-determination,);
    • See U.N. Human Rights Comm., Report of the Human Rights Committee 143, U.N. Doc. A/39/40 (1984) ("[A]ll States parties to the Covenant should take positive action to facilitate realization of and respect for the right of peoples to self-determination.... [However,] States must refrain from interfering in the internal affairs of other States and thereby adversely affecting the exercise of the right to self-determination,");
  • 122
    • 46449135973 scopus 로고    scopus 로고
    • see also CASSESE, supra note 51, at 62-63 (noting that historically, the Committee has primarily emphasized the external dimension of self-determination... [and] that contracting States were debarred by the principle of non-interference from inquiring as to whether internal self-determination was being implemented in other States).
    • see also CASSESE, supra note 51, at 62-63 (noting that historically, the Committee has "primarily emphasized the external dimension of self-determination... [and] that contracting States were debarred by the principle of non-interference from inquiring as to whether internal self-determination was being implemented in other States").
  • 123
    • 46449098086 scopus 로고    scopus 로고
    • Colonial Peoples' Declaration, supra note 11. In both the Colonial Peoples' Declaration and the DRIP, reproduction of Common Article 1 extends only to its first paragraph, which declares the right of self-determination for all peoples. The second paragraph-declaring the right of all peoples to freely dispose of their natural wealth and resources-is not included.
    • Colonial Peoples' Declaration, supra note 11. In both the Colonial Peoples' Declaration and the DRIP, reproduction of Common Article 1 extends only to its first paragraph, which declares the right of self-determination for all peoples. The second paragraph-declaring the right of all peoples to "freely dispose of their natural wealth and resources"-is not included.
  • 124
    • 46449132638 scopus 로고    scopus 로고
    • Compare id. and DRIP, supra note 1, with ICCPR, supra note 26, art. 1(1), andICESCR, supranote 27, art. 1(1).
    • Compare id. and DRIP, supra note 1, with ICCPR, supra note 26, art. 1(1), andICESCR, supranote 27, art. 1(1).
  • 125
    • 46449088466 scopus 로고    scopus 로고
    • Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (Namibia), Advisory Opinion, 1971 I.C.J. 16 (June 21).
    • Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (Namibia), Advisory Opinion, 1971 I.C.J. 16 (June 21).
  • 126
    • 46449093385 scopus 로고    scopus 로고
    • Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (Oct. 16).
    • Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (Oct. 16).
  • 128
    • 46449114940 scopus 로고    scopus 로고
    • Namibia, 1971 I.C.J, at 31 ([T] he subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them.).
    • Namibia, 1971 I.C.J, at 31 ("[T] he subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them.").
  • 129
    • 46449120355 scopus 로고    scopus 로고
    • See Western Sahara, 1975 I.C.J. at 31, 30 (declaring that [t]he principle of self-determination as a right of peoples, and its application for the purpose of bringing all colonial situations to a speedy end, were enunciated in [the Colonial Peoples' Declaration], and that the Declaration was a system of decolonization based on the [principle of] self-determination);
    • See Western Sahara, 1975 I.C.J. at 31, 30 (declaring that "[t]he principle of self-determination as a right of peoples, and its application for the purpose of bringing all colonial situations to a speedy end, were enunciated in [the Colonial Peoples' Declaration]," and that the Declaration was "a system of decolonization based on the [principle of] self-determination");
  • 130
    • 46449138069 scopus 로고    scopus 로고
    • Namibia, 1971 I.C.J, at 31 (noting that there is little doubt that the ultimate objective... was the self-determination and independence of the peoples concerned);
    • Namibia, 1971 I.C.J, at 31 (noting that there is "little doubt that the ultimate objective... was the self-determination and independence of the peoples concerned");
  • 131
    • 46449110867 scopus 로고    scopus 로고
    • CASSESE, supra note 51, at 72-73 (noting that the right of self-determination as applied to colonial peoples only concerns external self-determination, that is, the choice of the international status of the people and the territory where it lives, and that once a people has exercised its right to external self-determination, the right expires).
    • CASSESE, supra note 51, at 72-73 (noting that the right of self-determination as applied to colonial peoples "only concerns external self-determination, that is, the choice of the international status of the people and the territory where it lives," and that "once a people has exercised its right to external self-determination, the right expires").
  • 132
    • 46449119161 scopus 로고    scopus 로고
    • For example, the United Kingdom has declared to the GA that internal self-determination requires that [peoples] should be enabled to exercise other rights [conferred in the ICCPR and ICESR]..., such as the rights to freedom of thought and expression; the right of peaceful assembly and freedom of association; the right to take part in the conduct of public affairs, either directly or through freely chosen representatives; and the right to vote and be elected at genuine periodic elections.
    • For example, the United Kingdom has declared to the GA that internal self-determination requires that [peoples] should be enabled to exercise other rights [conferred in the ICCPR and ICESR]..., such as the rights to freedom of thought and expression; the right of peaceful assembly and freedom of association; the right to take part in the conduct of public affairs, either directly or through freely chosen representatives; and the right to vote and be elected at genuine periodic elections.
  • 133
    • 46449127741 scopus 로고    scopus 로고
    • BRIT. Y.B. INT'L L. 432 (1984). The United States has similarly declared that [f]reedom of choice is indispensable to the exercise of the right of self-determination, For this freedom of choice to be meaningful, there must be corresponding freedom of thought, conscience, expression, movement and association. Subjects of International Law, 1974 DIGEST § 5, at 48 (internal quotation marks omitted);
    • BRIT. Y.B. INT'L L. 432 (1984). The United States has similarly declared that "[f]reedom of choice is indispensable to the exercise of the right of self-determination, For this freedom of choice to be meaningful, there must be corresponding freedom of thought, conscience, expression, movement and association." Subjects of International Law, 1974 DIGEST § 5, at 48 (internal quotation marks omitted);
  • 134
    • 46449093672 scopus 로고    scopus 로고
    • see also CASSESE, supra note 51, at 53 ([I]n order to understand the exact parameters of internal self-determination one must refer to the other provisions of the [ICCPR].).
    • see also CASSESE, supra note 51, at 53 ("[I]n order to understand the exact parameters of internal self-determination one must refer to the other provisions of the [ICCPR].").
  • 135
    • 46449096931 scopus 로고    scopus 로고
    • See CASSESE, supra note 51, at 101 ([T]he right to internal self-determination is neither destroyed nor diminished by its having already once been invoked and put into effect).
    • See CASSESE, supra note 51, at 101 ("[T]he right to internal self-determination is neither destroyed nor diminished by its having already once been invoked and put into effect").
  • 136
    • 46449128166 scopus 로고    scopus 로고
    • Id. at 102
    • Id. at 102.
  • 137
    • 46449126535 scopus 로고    scopus 로고
    • See supra note 78 and accompanying text. However, some scholars have argued that recent practice suggests an emerging customary right to internal self-determination - or a right to democracy - for states' entire populations.
    • See supra note 78 and accompanying text. However, some scholars have argued that recent practice suggests an emerging customary right to internal self-determination - or a right to democracy - for states' entire populations.
  • 138
    • 34548699828 scopus 로고
    • The Emerging Right to Democratic Governance, 86
    • See, e.g
    • See, e.g., Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AM. J. INT'L L. 46 (1992);
    • (1992) AM. J. INT'L L , vol.46
    • Franck, T.M.1
  • 139
    • 46449109115 scopus 로고    scopus 로고
    • Anne-Marie Slaughter, International Law in a World of Liberal States, 6 EUR. J. INT'I. L. 503, 511 (1995).
    • Anne-Marie Slaughter, International Law in a World of Liberal States, 6 EUR. J. INT'I. L. 503, 511 (1995).
  • 140
    • 46449132980 scopus 로고    scopus 로고
    • See generally LEE C. BUCHHEIT, SECESSION: THE LEGITIMACY OF SELF- DETERMINATION 27-31 (1978).
    • See generally LEE C. BUCHHEIT, SECESSION: THE LEGITIMACY OF SELF- DETERMINATION 27-31 (1978).
  • 141
    • 46449117651 scopus 로고    scopus 로고
    • G.A. Res. 2625 (XXV), Annex, U.N. Doc. A/8082/Annex (Oct. 24, 1970) [hereinafter Declaration on Friendly Relations].
    • G.A. Res. 2625 (XXV), Annex, U.N. Doc. A/8082/Annex (Oct. 24, 1970) [hereinafter Declaration on Friendly Relations].
  • 142
    • 84963456897 scopus 로고    scopus 로고
    • notes 59-67 and accompanying text
    • See supra notes 59-67 and accompanying text.
    • See supra
  • 143
    • 46449122491 scopus 로고    scopus 로고
    • Declaration on Friendly Relations, supra note 89, at 124
    • Declaration on Friendly Relations, supra note 89, at 124.
  • 144
    • 46449127742 scopus 로고    scopus 로고
    • For the text of Article 46(1) of the DRIP, see supra text accompanying note 20.
    • For the text of Article 46(1) of the DRIP, see supra text accompanying note 20.
  • 145
    • 46449111150 scopus 로고    scopus 로고
    • Declaration on Friendly Relations, supra note 89, at 124. Note that the United States initially proposed a different text, which would have read, The existence of a sovereign and independent State possessing a representative Government, effectively functioning as such to all distinct peoples within its territory, is presumed to satisfy the principle of equal rights and self-determination as regards these peoples.
    • Declaration on Friendly Relations, supra note 89, at 124. Note that the United States initially proposed a different text, which would have read, "The existence of a sovereign and independent State possessing a representative Government, effectively functioning as such to all distinct peoples within its territory, is presumed to satisfy the principle of equal rights and self-determination as regards these peoples."
  • 146
    • 46449086132 scopus 로고    scopus 로고
    • CASSESE, supra note 51, at 115 (emphasis added) (citation omitted). The U.S. proposal thus would have gone much further than does the adopted text by explicidy recognizing the self-determination rights (as embodied in effectively functioning representative government) of ethnic groups - distinct peoples - within a state's territory. However, the U.S. proposal was vehemently opposed by many developing countries, which argued that it could be used to support secession by ethnic groups.
    • CASSESE, supra note 51, at 115 (emphasis added) (citation omitted). The U.S. proposal thus would have gone much further than does the adopted text by explicidy recognizing the self-determination rights (as embodied in effectively functioning representative government) of ethnic groups -
  • 147
    • 46449134552 scopus 로고    scopus 로고
    • See id. at 115-18. During the drafting process leading up to the adoption of the savings clause, a suggestion by Lebanon led to a compromise proposal that - in addition to including a savings clause - would have read, in relevant part, States enjoying full sovereignty and independence, and possessed of a government representing the whole of their population, shall be considered to be conducting themselves in conformity with the principle of equal rights and self-determination of peoples as regards that population including the indigenous population and without distinction as to race, creed or colour.
    • See id. at 115-18. During the drafting process leading up to the adoption of the savings clause, a suggestion by Lebanon led to a compromise proposal that - in addition to including a savings clause - would have read, in relevant part, "States enjoying full sovereignty and independence, and possessed of a government representing the whole of their population, shall be considered to be conducting themselves in conformity with the principle of equal rights and self-determination of peoples as regards that population including the indigenous population" "and without distinction as to race, creed or colour."
  • 151
    • 46449110291 scopus 로고    scopus 로고
    • See CASSESE, supra note 51, at 120-21
    • See CASSESE, supra note 51, at 120-21.
  • 152
    • 46449111757 scopus 로고    scopus 로고
    • See id. at 120 (State practice in the UN from the 1970s to the present evidences that the provision granting internal self-determination to racial groups persecuted by central government has become part of customary international law.).
    • See id. at 120 ("State practice in the UN from the 1970s to the present evidences that the provision granting internal self-determination to racial groups persecuted by central government has become part of customary international law.").
  • 153
    • 46449123391 scopus 로고    scopus 로고
    • See id. at 120-21 (citing GA. Res. 41/101, U.N. Doc. A/RES/41/101 (Dec. 4, 1986) (condemning generally the apartheid in South Africa);
    • See id. at 120-21 (citing GA. Res. 41/101, U.N. Doc. A/RES/41/101 (Dec. 4, 1986) (condemning generally the apartheid in South Africa);
  • 154
    • 46449106343 scopus 로고    scopus 로고
    • GA. Res. 3.1/154 A, U.N. Doc. A/RES/31/154/A (Dec. 20, 1976) ([c]ondemning the illegal racist minority regime in Zimbabwe);
    • GA. Res. 3.1/154 A, U.N. Doc. A/RES/31/154/A (Dec. 20, 1976) ("[c]ondemning the illegal racist minority regime" in Zimbabwe);
  • 155
    • 46449129980 scopus 로고    scopus 로고
    • S.C. Res. 460, U.N. Doc. S/RES/460 (Dec. 21, 1979) (declaring that the people of Zimbabwe have an inalienable right... to self-determination, freedom and independence);
    • S.C. Res. 460, U.N. Doc. S/RES/460 (Dec. 21, 1979) (declaring that the people of Zimbabwe have an "inalienable right... to self-determination, freedom and independence");
  • 156
    • 46449090008 scopus 로고    scopus 로고
    • S.C. Res. 417, U.N. Doc. S/RES/417 (Oct. 31, 1977) ([r]eaffirming.. . the legitimacy of the struggle of the South African people for the elimination of apartheid and racial discrimination)).
    • S.C. Res. 417, U.N. Doc. S/RES/417 (Oct. 31, 1977) ("[r]eaffirming.. . the legitimacy of the struggle of the South African people for the elimination of apartheid and racial discrimination")).
  • 157
    • 46449116107 scopus 로고    scopus 로고
    • See id. at 124.
    • See id. at 124.
  • 158
    • 46449096036 scopus 로고    scopus 로고
    • Declaration on Friendly Relations, supra note 89, at 124
    • Declaration on Friendly Relations, supra note 89, at 124.
  • 159
    • 46449120950 scopus 로고    scopus 로고
    • Note, however, that given state practice and extensive opinio juris, the existence of customary law supporting even an extremely limited right of oppressed groups to secede is doubtful. See CASSESE, supra note 51, at 122 (States have been adamant in rejecting even the possibility that nations, groups and minorities be granted a right to secede from the territory in which they live.).
    • Note, however, that given state practice and extensive opinio juris, the existence of customary law supporting even an extremely limited right of oppressed groups to secede is doubtful. See CASSESE, supra note 51, at 122 ("States have been adamant in rejecting even the possibility that nations, groups and minorities be granted a right to secede from the territory in which they live.").
  • 160
    • 46449086440 scopus 로고    scopus 로고
    • But see BUCHHEIT, supra note 88, at 46 (considering possible 'grounds' for the right of separatist self-determination within international law).
    • But see BUCHHEIT, supra note 88, at 46 (considering possible "'grounds' for the right of separatist self-determination within international law").
  • 161
    • 46449100354 scopus 로고    scopus 로고
    • DRIP, supranote 1, art. 46(1).
    • DRIP, supranote 1, art. 46(1).
  • 162
    • 84963456897 scopus 로고    scopus 로고
    • notes 9-34 and accompanying text
    • See supra notes 9-34 and accompanying text.
    • See supra
  • 163
    • 46449135398 scopus 로고    scopus 로고
    • See generally FRANCISCO DE VITORIA, THE FIRST REFLECTO ON THE INDIANS LATELY DISCOVERED (John Pawley Bate trans., 1917) (1696),
    • See generally FRANCISCO DE VITORIA, THE FIRST REFLECTO ON THE INDIANS LATELY DISCOVERED (John Pawley Bate trans., 1917) (1696),
  • 164
    • 46449088762 scopus 로고    scopus 로고
    • reprinted in JAMES BROWN SCOTT, THE SPANISH ORIGIN OF INTERNATIONAL LAW: FRANCISCO DE VITORIA AND HIS LAW OF NATIONS app. A, at xiii (1934).
    • reprinted in JAMES BROWN SCOTT, THE SPANISH ORIGIN OF INTERNATIONAL LAW: FRANCISCO DE VITORIA AND HIS LAW OF NATIONS app. A, at xiii (1934).
  • 165
    • 46449134143 scopus 로고    scopus 로고
    • Id. app. A, at xxv.
    • Id. app. A, at xxv.
  • 166
    • 46449137574 scopus 로고    scopus 로고
    • Id. app. A, at xiii (emphasis added).
    • Id. app. A, at xiii (emphasis added).
  • 167
    • 46449120027 scopus 로고    scopus 로고
    • Id. app. A, at xlv-xlvi (emphasis added). The distinction between those laws that were proper and those that were not seems to be determined by the extent to which social organization mirrored the European system,
    • Id. app. A, at xlv-xlvi (emphasis added). The distinction between those laws that were "proper" and those that were not seems to be determined by the extent to which social organization mirrored the European system,
  • 168
    • 46449085515 scopus 로고    scopus 로고
    • See S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 18 (2d ed. 2004) (noting that the Indians could be characterized as 'unfit' because they failed to conform to the European forms of civilization with which Vitoria was familiar).
    • See S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 18 (2d ed. 2004) (noting that "the Indians could be characterized as 'unfit' because they failed to conform to the European forms of civilization with which Vitoria was familiar").
  • 169
    • 46449133265 scopus 로고    scopus 로고
    • As U.S. Indian Commissioner Nathaniel Taylor wrote in 1868, the United States, as the guardian of all the Indians under [its] jurisdiction, had the most solemn duty to protect and care for, to elevate and civilize them. NATHANIEL G. TAYLOR, ANNUAL REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS (1868),
    • As U.S. Indian Commissioner Nathaniel Taylor wrote in 1868, the United States, "as the guardian of all the Indians under [its] jurisdiction," had the "most solemn duty to protect and care for, to elevate and civilize them." NATHANIEL G. TAYLOR, ANNUAL REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS (1868),
  • 170
    • 46449123390 scopus 로고    scopus 로고
    • reprinted in part in DOCUMENTS OF UNITED STATES INDIAN POLICY 123, 126 (Francis Paul Prucha ed., 2d ed. 1990).
    • reprinted in part in DOCUMENTS OF UNITED STATES INDIAN POLICY 123, 126 (Francis Paul Prucha ed., 2d ed. 1990).
  • 171
    • 46449114344 scopus 로고    scopus 로고
    • 21 U.S. (8 Wheat.) 543, 590 (1823).
    • 21 U.S. (8 Wheat.) 543, 590 (1823).
  • 172
    • 46449132317 scopus 로고    scopus 로고
    • Id. at 590-92. Later, in Worcester v. Georgia, Justice Marshall seemed to revise his early views on the discovery doctrine, holding that it regulated the right given by discovery among the European discoverers; but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man.
    • Id. at 590-92. Later, in Worcester v. Georgia, Justice Marshall seemed to revise his early views on the discovery doctrine, holding that it "regulated the right given by discovery among the European discoverers; but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man."
  • 173
    • 46449109415 scopus 로고    scopus 로고
    • U.S, 6 Pet, 515, 554 1832, Thus, in Worcester, the Court seemed to recognize the continued possession of the tribes' inherent natural right to their lands
    • U.S. (6 Pet.) 515, 554 (1832). Thus, in Worcester, the Court seemed to recognize the continued possession of the tribes' inherent natural right to their lands.
  • 174
    • 46449122819 scopus 로고    scopus 로고
    • 30 U.S. (5 Pet.) 1, 17(1831).
    • 30 U.S. (5 Pet.) 1, 17(1831).
  • 175
    • 46449110863 scopus 로고    scopus 로고
    • See supra Part I.B (discussing the historical link between minority rights and self-determination).
    • See supra Part I.B (discussing the historical link between minority rights and self-determination).
  • 176
    • 46449119429 scopus 로고    scopus 로고
    • ILO, Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, International Labour Conference, art. 3, June 26, 1957, No. 107, 328 U.N.T.S. 247 [hereinafter ILO Convention No. 107].
    • ILO, Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, International Labour Conference, art. 3, June 26, 1957, No. 107, 328 U.N.T.S. 247 [hereinafter ILO Convention No. 107].
  • 177
    • 46449118552 scopus 로고    scopus 로고
    • See ANAYA, supra note 105, at 55-58
    • See ANAYA, supra note 105, at 55-58.
  • 178
    • 46449127122 scopus 로고    scopus 로고
    • Id. at 58 (internal quotation marks omitted).
    • Id. at 58 (internal quotation marks omitted).
  • 179
    • 46449134554 scopus 로고    scopus 로고
    • Id. (internal quotation marks omitted).
    • Id. (internal quotation marks omitted).
  • 180
    • 46449101757 scopus 로고    scopus 로고
    • ILO, Convention Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, No. 169, 1650 U.N.T.S. 383 [hereinafter ILO Convention No. 169].
    • ILO, Convention Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, No. 169, 1650 U.N.T.S. 383 [hereinafter ILO Convention No. 169].
  • 181
    • 46449105487 scopus 로고    scopus 로고
    • Id. pmbl
    • Id. pmbl.
  • 182
    • 46449084652 scopus 로고    scopus 로고
    • Id. art. 13
    • Id. art. 1(3).
  • 183
    • 46449129381 scopus 로고    scopus 로고
    • See ILO, ILO CONVENTION ON INDIGENOUS AND TRIBAL PEOPLES, 1989 (NO. 169): A MANUAL 9 (2003) [hereinafter ILO MANUAL], available http://www.ilo.org/ public/libdoc/ilo/2003/103B09_345_engl.pdf (Convention No. 169 does not place any limitations on the right to self-determination, It is compatible with any future international instruments which may establish or define such a right.).
    • See ILO, ILO CONVENTION ON INDIGENOUS AND TRIBAL PEOPLES, 1989 (NO. 169): A MANUAL 9 (2003) [hereinafter ILO MANUAL], available http://www.ilo.org/ public/libdoc/ilo/2003/103B09_345_engl.pdf ("Convention No. 169 does not place any limitations on the right to self-determination, It is compatible with any future international instruments which may establish or define such a right.").
  • 184
    • 46449139541 scopus 로고    scopus 로고
    • See id. at 10 noting that an important aim of Convention No. 169 is to set up the conditions for self-management and discussing examples of indigenous self-management as indicative of self-government, Note that the contours of self- government have the potential to be significantly varied, such that a limited municipal self-government, like the one being offered to the First Nations in southern Canada, and a highly autonomous regime, like the one described in the proposed Bolivian constitution, are arguably both examples of self-government. See infra Part III. Given Convention No. 169's cautionary note about self-determination and its interpretive materials, the concept of self-management would appear to fall on the limited side of the self-government spectrum
    • See id. at 10 (noting that an "important aim of Convention No. 169 is to set up the conditions for self-management" and discussing examples of "indigenous self-management" as indicative of "self-government"). Note that the contours of "self- government" have the potential to be significantly varied, such that a limited municipal self-government, like the one being offered to the First Nations in southern Canada, and a highly autonomous regime, like the one described in the proposed Bolivian constitution, are arguably both examples of "self-government." See infra Part III. Given Convention No. 169's cautionary note about self-determination and its interpretive materials, the concept of "self-management" would appear to fall on the limited side of the "self-government" spectrum.
  • 185
    • 46449121899 scopus 로고    scopus 로고
    • See ILO Convention No. 169, supra note 115, art. 8.
    • See ILO Convention No. 169, supra note 115, art. 8.
  • 186
    • 46449122189 scopus 로고    scopus 로고
    • Id. art. 82
    • Id. art. 8(2).
  • 187
    • 46449118256 scopus 로고    scopus 로고
    • Id. art. 91
    • Id. art. 9(1).
  • 188
    • 46449118255 scopus 로고    scopus 로고
    • For a thorough treatment of disparity between the the letter and spirit of ILO Convention No. 169, see LUIS RODRÍGUEZ- PIÑERO, INDIGENOUS PEOPLES, POSTCOLONIALISM, AND INTERNATIONAL LAW: THE ILO REGIME (1919-1989) 320-31 (2005).
    • For a thorough treatment of disparity between the the letter and spirit of ILO Convention No. 169, see LUIS RODRÍGUEZ- PIÑERO, INDIGENOUS PEOPLES, POSTCOLONIALISM, AND INTERNATIONAL LAW: THE ILO REGIME (1919-1989) 320-31 (2005).
  • 189
    • 46449127743 scopus 로고    scopus 로고
    • The preamble contains a series of clauses beginning with present or past participles - such as [g]uided by, [c]oncerned, and [r]ecognizing - that are indicative of motivation. See DRIP, supra note 1, pmbl.
    • The preamble contains a series of clauses beginning with present or past participles - such as "[g]uided by," "[c]oncerned," and "[r]ecognizing" - that are indicative of motivation. See DRIP, supra note 1, pmbl.
  • 190
    • 46449096648 scopus 로고    scopus 로고
    • See DRIP, note 1, pmbl
    • See DRIP, supra note 1, pmbl.
    • supra
  • 191
    • 46449086997 scopus 로고    scopus 로고
    • See ANAYA, supra note 105, at 58
    • See ANAYA, supra note 105, at 58.
  • 192
    • 46449128790 scopus 로고    scopus 로고
    • For further discussion of the principles developed in ILO Convention No. 169, see supra notes 111-123 and accompanying text.
    • For further discussion of the principles developed in ILO Convention No. 169, see supra notes 111-123 and accompanying text.
  • 193
    • 46449084916 scopus 로고    scopus 로고
    • See DRIP, note 1, pmbl
    • See DRIP, supra note 1, pmbl.
    • supra
  • 194
    • 46449128470 scopus 로고    scopus 로고
    • For a review of the historical link between minority rights and self-determination, see supra Part I.B.
    • For a review of the historical link between minority rights and self-determination, see supra Part I.B.
  • 195
    • 46449089067 scopus 로고    scopus 로고
    • See DRIP, supranote 1, pmbl.
    • See DRIP, supranote 1, pmbl.
  • 196
    • 46449112391 scopus 로고    scopus 로고
    • For a discussion of the difference between positive and negative rights in the constitutional setting, see David P. Currie, Positive and Negative Constitutional Rights, 53 U. CHI. L. REV. 864 1986, which compares the German constitutional framework, based largely on positive rights, with the U.S. framework, based largely on negative rights
    • For a discussion of the difference between positive and negative rights in the constitutional setting, see David P. Currie, Positive and Negative Constitutional Rights, 53 U. CHI. L. REV. 864 (1986), which compares the German constitutional framework, based largely on positive rights, with the U.S. framework, based largely on negative rights.
  • 197
    • 46449098085 scopus 로고    scopus 로고
    • See DRIP, supra note 1, arts. 38, 41-46. Article 38 requires states, in consultation and cooperation with indigenous peoples, to take appropriate measures... to achieve the ends of the DRIP.
    • See DRIP, supra note 1, arts. 38, 41-46. Article 38 requires states, "in consultation and cooperation with indigenous peoples," to take "appropriate measures... to achieve the ends" of the DRIP.
  • 198
    • 46449089386 scopus 로고    scopus 로고
    • Id. art. 38. In one sense, it is clearly implementation oriented, in that it explains how (i.e., in cooperation) states should implement the DRIP. It may also be interpretation oriented - by calling on states to achieve the ends of the DRIP in cooperation with indigenous peoples, it could be read to suggest that the rights in the DRIP are not conferred unilaterally on indigenous peoples.
    • Id. art. 38. In one sense, it is clearly implementation oriented, in that it explains how (i.e., in "cooperation") states should implement the DRIP. It may also be interpretation oriented - by calling on states to achieve the ends of the DRIP in cooperation with indigenous peoples, it could be read to suggest that the rights in the DRIP are not conferred unilaterally on indigenous peoples.
  • 199
    • 46449132316 scopus 로고    scopus 로고
    • Id. art. 46(1).
    • Id. art. 46(1).
  • 200
    • 46449116714 scopus 로고    scopus 로고
    • Compare id. with Declaration on Friendly Relations, supra note 89, at 124.
    • Compare id. with Declaration on Friendly Relations, supra note 89, at 124.
  • 201
    • 46449128471 scopus 로고    scopus 로고
    • Compare ICCPR, supra note 28, art 1,
    • Compare ICCPR, supra note 28, art 1,
  • 202
    • 46449138663 scopus 로고    scopus 로고
    • and ICESCR, note 29, art. 1
    • and ICESCR, supra note 29, art. 1,
    • supra
  • 203
    • 46449131724 scopus 로고    scopus 로고
    • with DRIP, supranote 1, art. 1.
    • with DRIP, supranote 1, art. 1.
  • 204
    • 46449094278 scopus 로고    scopus 로고
    • DRIP, supranote 1, art. 1.
    • DRIP, supranote 1, art. 1.
  • 205
    • 46449113553 scopus 로고    scopus 로고
    • Id. art. 2
    • Id. art. 2.
  • 206
    • 84888494968 scopus 로고    scopus 로고
    • text accompanying notes 124-128
    • See supra text accompanying notes 124-128.
    • See supra
  • 207
    • 46449095175 scopus 로고    scopus 로고
    • A suggested partnership between indigenous peoples and states is not necessarily apparent from the text of Article 3, nor is it implied by Article 46 standing alone. If Article 38 is considered an interpretation-oriented provision, see supra note 130, then perhaps the spirit of cooperation and partnership is implied in Article 3 self-determination. However, reading Article 3 by itself suggests a unilaterally conferred right: Indigenous peoples have the right to... freely determine their political status....
    • A suggested partnership between indigenous peoples and states is not necessarily apparent from the text of Article 3, nor is it implied by Article 46 standing alone. If Article 38 is considered an interpretation-oriented provision, see supra note 130, then perhaps the spirit of "cooperation" and "partnership" is implied in Article 3 self-determination. However, reading Article 3 by itself suggests a unilaterally conferred right: "Indigenous peoples have the right to... freely determine their political status...."
  • 208
    • 46449132634 scopus 로고    scopus 로고
    • DRIP, note 1, art. 3 emphasis added
    • DRIP, supra note 1, art. 3 (emphasis added).
    • supra
  • 209
    • 84886342665 scopus 로고    scopus 로고
    • text accompanying note 63
    • See supra text accompanying note 63.
    • See supra
  • 210
    • 84963456897 scopus 로고    scopus 로고
    • notes 77-78 and accompanying text
    • See supra notes 77-78 and accompanying text.
    • See supra
  • 211
    • 46449126838 scopus 로고    scopus 로고
    • DRIP, supranote 1, art. 4.
    • DRIP, supranote 1, art. 4.
  • 212
    • 46449090906 scopus 로고    scopus 로고
    • In explaining its opposition to the DRIP, the United States conceded that Article 4 limit[s] the scope of Article 3, but concluded that it nevertheless could not support the DRIP. Press Release, U.S. Mission to the UN, supra note 28. This assertion is odd for two reasons, First, if Article 4 did indeed limit the scope of Article 3 to autonomy or self-government, then the U.S. position that Article 3 could support a concept of self-government would seem to require the United States to drop its objections to self-determination (because self-determination would mean nothing more than self-government, Second, the assertion mistakenly seems to rest on the maxim expressio unius est exclusio alterius the express mention of one thing excludes all others, However, that maxim of statutory construction seems inappropriate for Article 4, where the language in exercising their right suggests a broader availability of optio
    • In explaining its opposition to the DRIP, the United States conceded that Article 4 "limit[s] the scope" of Article 3, but concluded that it nevertheless could not support the DRIP. Press Release, U.S. Mission to the UN, supra note 28. This assertion is odd for two reasons, First, if Article 4 did indeed limit the scope of Article 3 to "autonomy or self-government," then the U.S. position that Article 3 could support a concept of "self-government" would seem to require the United States to drop its objections to self-determination (because self-determination would mean nothing more than "self-government"). Second, the assertion mistakenly seems to rest on the maxim expressio unius est exclusio alterius (the express mention of one thing excludes all others). However, that maxim of statutory construction seems inappropriate for Article 4, where the language "in exercising their right" suggests a broader availability of options. In any case, expressio unius has been heavily criticized by scholars as a logical and practical fallacy.
  • 213
    • 46449137577 scopus 로고    scopus 로고
    • See, e.g., RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 282 (1985) (arguing that the canon is based on the assumption of legislative omniscience, because it would make sense only if all omissions in legislative drafting were deliberate). It has also been rejected by a unanimous Supreme Court at least once.
    • See, e.g., RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 282 (1985) (arguing that the canon is "based on the assumption of legislative omniscience, because it would make sense only if all omissions in legislative drafting were deliberate"). It has also been rejected by a unanimous Supreme Court at least once.
  • 214
    • 46449133268 scopus 로고    scopus 로고
    • See Herman & MacLean v. Huddleston, 459 U.S. 375, 387 n.2S (1983) (We... reject application of the maxim of statutory construction, expressio unius....).
    • See Herman & MacLean v. Huddleston, 459 U.S. 375, 387 n.2S (1983) ("We... reject application of the maxim of statutory construction, expressio unius....").
  • 215
    • 46449098889 scopus 로고    scopus 로고
    • See supra Part.I.B.
    • See supra Part.I.B.
  • 216
    • 84888494968 scopus 로고    scopus 로고
    • text accompanying notes 115-123
    • See supra text accompanying notes 115-123.
    • See supra
  • 217
    • 46449091750 scopus 로고    scopus 로고
    • In addition to autonomy or self-government and the particular rights that accompany it, the exercise of internal self-determination could include, for example, an extensive affirmative action program to increase the representation of indigenous populations that have been historically discriminated against. This kind of a program would accord with the application of internal self-determination to racial and religious groups under the Declaration on Friendly Relations. See supra notes 89-100 and accompanying text.
    • In addition to "autonomy or self-government" and the particular rights that accompany it, the exercise of internal self-determination could include, for example, an extensive affirmative action program to increase the representation of indigenous populations that have been historically discriminated against. This kind of a program would accord with the application of internal self-determination to racial and religious groups under the Declaration on Friendly Relations. See supra notes 89-100 and accompanying text.
  • 218
    • 46449116429 scopus 로고    scopus 로고
    • The most important self-determination rights fleshed out by the DRIP include the rights to maintain and strengthen, distinct political, legal, economic, social and cultural institutions (Article 5, establish and control their educational systems and institutions (Article 14, participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions (Article 18, maintain and develop their political, economic and social systems or institutions (Article 20, control the lands, territories and resources which they have traditionally owned (Article 26, determine and develop priorities and strategies for the development or use of their lands Article 32, determine their own identity or membership in accordance with their customs and tradi
    • The most important self-determination rights fleshed out by the DRIP include the rights to "maintain and strengthen... distinct political, legal, economic, social and cultural institutions" (Article 5); "establish and control their educational systems and institutions" (Article 14); "participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions" (Article 18); "maintain and develop their political, economic and social systems or institutions" (Article 20) ; control "the lands, territories and resources which they have traditionally owned" (Article 26) ; "determine and develop priorities and strategies for the development or use of their lands" (Article 32); "determine their own identity or membership in accordance with their customs and traditions" (Article 33); and "promote, develop and maintain their institutional structures... and, in cases where they exist, juridical systems or customs, in accordance with international human rights standards" (Article 34). DRIP, supra note 1, arts. 5, 14, 18, 20, 26 & 32-34.
  • 219
    • 46449110865 scopus 로고    scopus 로고
    • art. 34 (emphasis added).
    • art. 34 (emphasis added).
  • 220
    • 46449133266 scopus 로고    scopus 로고
    • In the case of the ICCPR, the specific rights giving meaning to internal self-determination are those that assure the exercise of authentic self-government for the whole population of a state. See CASSESE, supra note 51, at 101. Likewise, in the case of the DRIP, the specific rights that give meaning to self-determination are those that assure such self-government for the indigenous peoples within a state. However, because the means of securing self-government for a whole population differ from the means of securing self-government for a subnational group,
    • In the case of the ICCPR, the specific rights giving meaning to internal self-determination are those that assure the exercise of "authentic self-government" for the whole population of a state. See CASSESE, supra note 51, at 101. Likewise, in the case of the DRIP, the specific rights that give meaning to self-determination are those that assure such self-government for the indigenous peoples within a state. However, because the means of securing self-government for a whole population differ from the means of securing self-government for a subnational group,
  • 222
    • 46449125310 scopus 로고    scopus 로고
    • See supra note 84 and accompanying text (noting that internal self-determination in the ICCPR has historically been measured with reference to other substantive rights conferred in the treaty).
    • See supra note 84 and accompanying text (noting that internal self-determination in the ICCPR has historically been measured with reference to other substantive rights conferred in the treaty).
  • 223
    • 84963456897 scopus 로고    scopus 로고
    • notes 18, 34, and accompanying text
    • See supra notes 18, 34, and accompanying text.
    • See supra
  • 224
    • 46449087280 scopus 로고    scopus 로고
    • See supra Part II.A.
    • See supra Part II.A.
  • 225
    • 46449103256 scopus 로고    scopus 로고
    • See generally WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS (1995).
    • See generally WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS (1995).
  • 226
    • 3543110805 scopus 로고    scopus 로고
    • Instituto Nacional de Estadística, República de Bolivia [National Statistical Institute of Bolivia
    • Instituto Nacional de Estadística, República de Bolivia [National Statistical Institute of Bolivia], 2001 Censo de Población y Vivienda [2001 Census of Population and Housing], http://www.ine.gov.bo/cgi-bin/ Redatam/RG4WebEngine.exe/Dictionary?&BASE=TallCreac&ITEM= DEMOG26&MAIN=WebServerMain.inl.
    • (2001) Censo de Población y Vivienda [2001 Census of Population and Housing]
  • 227
    • 46449122188 scopus 로고    scopus 로고
    • See Bolivia Opposition Calls Strike, BBC NEWS, Nov. 27, 2007, http://news.bbc.co.uk/2/hi/americas/7114506.stm (The president has made rewriting the constitution a key part of his reform agenda to give the indigenous majority greater political power but the issue has deepened regional and ethnic divisions in the country.).
    • See Bolivia Opposition Calls Strike, BBC NEWS, Nov. 27, 2007, http://news.bbc.co.uk/2/hi/americas/7114506.stm ("The president has made rewriting the constitution a key part of his reform agenda to give the indigenous majority greater political power but the issue has deepened regional and ethnic divisions in the country.").
  • 228
    • 46449086996 scopus 로고    scopus 로고
    • See COMISIÓN JUDICIAL, ASAMBLEA CONSTITUYENTE DE BOLIVIA [JUDICIAL COMMISSION, CONSTITUTIONAL ASSEMBLY OF BOLIVIA],
    • See COMISIÓN JUDICIAL, ASAMBLEA CONSTITUYENTE DE BOLIVIA [JUDICIAL COMMISSION, CONSTITUTIONAL ASSEMBLY OF BOLIVIA],
  • 229
    • 46449108235 scopus 로고    scopus 로고
    • INFORME DE LA SUBCOMISIÓN DE JUSTICIA COMUNITARIA [REPORT OF THE SUBCOMMISSION FOR COMMUNITY JUSTICE] 9 (2007) [hereinafter S UBCOMMISSION REPORT] (on file with author) (describing the community justice system).
    • INFORME DE LA SUBCOMISIÓN DE JUSTICIA COMUNITARIA [REPORT OF THE SUBCOMMISSION FOR COMMUNITY JUSTICE] 9 (2007) [hereinafter S UBCOMMISSION REPORT] (on file with author) (describing the community justice system).
  • 230
    • 46449114345 scopus 로고    scopus 로고
    • ASAMBLEA CONSTITUYENTE DE BOLIVIA [CONSTITUTIONAL ASSEMBLY OF BOLIVIA], NUEVA CONSTITUCIÓN POLÍTICA DEL ESTADO [NEW POLITICAL CONSTITUTION OF THE STATE] (Dec. 2007) [hereinafter DRAFT CONSTITUTION], available at http://www.laconstituyente.org/files/Libros/nuevacpebolivia.pdf.
    • ASAMBLEA CONSTITUYENTE DE BOLIVIA [CONSTITUTIONAL ASSEMBLY OF BOLIVIA], NUEVA CONSTITUCIÓN POLÍTICA DEL ESTADO [NEW POLITICAL CONSTITUTION OF THE STATE] (Dec. 2007) [hereinafter DRAFT CONSTITUTION], available at http://www.laconstituyente.org/files/Libros/nuevacpebolivia.pdf.
  • 231
    • 46449121259 scopus 로고    scopus 로고
    • The latifundio system involved the expropriation of indigenous lands and the creation of large estates on which the indigenous population served as feudal labor for white or mestizo landowners. See HERBERT S. KLEIN, A CONCISE HISTORY OF BOLIVIA 209-10 2003, noting that [t]hrough the constant expansion of the [latifundio] system, land distribution [in Bolivia] had become one of the most unjust in Latin America, with six percent of landowners controlling ninety-two percent of the cultivated land by the time of the 1952 revolution
    • The latifundio system involved the expropriation of indigenous lands and the creation of large estates on which the indigenous population served as feudal labor for white or mestizo landowners. See HERBERT S. KLEIN, A CONCISE HISTORY OF BOLIVIA 209-10 (2003) (noting that "[t]hrough the constant expansion of the [latifundio] system, land distribution [in Bolivia] had become one of the most unjust in Latin America," with six percent of landowners controlling ninety-two percent of the cultivated land by the time of the 1952 revolution).
  • 232
    • 46449104867 scopus 로고    scopus 로고
    • See id. at 214-15 (explaining how peasant mobilization forced the regime to create the Agrarian Reform Commission).
    • See id. at 214-15 (explaining how peasant mobilization forced the regime to create the Agrarian Reform Commission).
  • 233
    • 46449134144 scopus 로고    scopus 로고
    • In particular, the agrarian reform was focused on the altiplano in the west and left intact the old system in Santa Cruz and other lowlands regions to the east. See id. at 215 (noting that Santa Cruz and some other medium-sized hacienda regions were excepted from the reform).
    • In particular, the agrarian reform was focused on the altiplano in the west and left intact the old system in Santa Cruz and other lowlands regions to the east. See id. at 215 (noting that Santa Cruz and some other medium-sized hacienda regions were excepted from the reform).
  • 234
    • 46449132636 scopus 로고    scopus 로고
    • NANCY GREY POSTERO, NOW WE ARE CITIZENS: INDIGENOUS POLITICS IN POST-MULTICULTURAL BOLIVIA 4 (2007).
    • NANCY GREY POSTERO, NOW WE ARE CITIZENS: INDIGENOUS POLITICS IN POST-MULTICULTURAL BOLIVIA 4 (2007).
  • 236
    • 46449088465 scopus 로고    scopus 로고
    • Participación Popular [Popular Participation], Ley No. 1551 (Apr. 20, 1994) (Bol.), available at http://www2.minedu.gov.bo/pre/ley/ley1551. pdf.
    • Participación Popular [Popular Participation], Ley No. 1551 (Apr. 20, 1994) (Bol.), available at http://www2.minedu.gov.bo/pre/ley/ley1551. pdf.
  • 237
    • 46449116713 scopus 로고    scopus 로고
    • Servicio Nacional de Reforma Agraria [National Service for Agrarian Reform], Ley No. 1715 (Oct. 18, 1996) (Bol.), available at http://www.inra.gov.bo/portalv2/Uploads/Normas/ley1715.pdf.
    • Servicio Nacional de Reforma Agraria [National Service for Agrarian Reform], Ley No. 1715 (Oct. 18, 1996) (Bol.), available at http://www.inra.gov.bo/portalv2/Uploads/Normas/ley1715.pdf.
  • 239
    • 46449137575 scopus 로고    scopus 로고
    • Id
    • Id.
  • 240
    • 46449099477 scopus 로고    scopus 로고
    • See Elva Terceros Cuéllar, Derecho Indígena en la Legislación [Indigenous Law in legislation], in SISTEMA JURÍDICO INDÍGENA [INDIGENOUS JURIDICAL SYSTEM] 35, 44-46 (Centro de Estudios Jurídicos e Investigación Social ed., 2003) (comparing the existing Bolivian system to the constitutional systems of Colombia, Ecuador, Peru, Paraguay, and Venezuela).
    • See Elva Terceros Cuéllar, Derecho Indígena en la Legislación [Indigenous Law in legislation], in SISTEMA JURÍDICO INDÍGENA [INDIGENOUS JURIDICAL SYSTEM] 35, 44-46 (Centro de Estudios Jurídicos e Investigación Social ed., 2003) (comparing the existing Bolivian system to the constitutional systems of Colombia, Ecuador, Peru, Paraguay, and Venezuela).
  • 241
    • 46449110586 scopus 로고    scopus 로고
    • See DRAFT CONSTITUTION, supra note 155, pt. 2, tit. III (defining as separate and exclusive jurisdictional authorities the courts of ordinary justice and those of indigenous justice).
    • See DRAFT CONSTITUTION, supra note 155, pt. 2, tit. III (defining as separate and exclusive jurisdictional authorities the courts of ordinary justice and those of indigenous justice).
  • 242
    • 46449120354 scopus 로고    scopus 로고
    • Id. arts. 203, 206, 212.
    • Id. arts. 203, 206, 212.
  • 243
    • 46449124216 scopus 로고    scopus 로고
    • To contrast with just one example, tribal courts in the U.S. system are not constitutionally mandated; rather, they are created under the auspices of Congress's Article I powers and are thus akin to administrative courts. Any decisions by U.S. tribal courts can be overturned by a simple act of Congress. See Catherine T. Struve, Tribal Immunity and Tribal Courts, 36 ARIZ. ST. L.J. 137, 137 (2004) ([T]he Supreme Court has stripped tribes of many of the positive aspects of governmental authority[, including] key aspects of legislative and adjudicative authority . . . .);
    • To contrast with just one example, tribal courts in the U.S. system are not constitutionally mandated; rather, they are created under the auspices of Congress's Article I powers and are thus akin to administrative courts. Any decisions by U.S. tribal courts can be overturned by a simple act of Congress. See Catherine T. Struve, Tribal Immunity and Tribal Courts, 36 ARIZ. ST. L.J. 137, 137 (2004) ("[T]he Supreme Court has stripped tribes of many of the positive aspects of governmental authority[, including] key aspects of legislative and adjudicative authority . . . .");
  • 244
    • 46449084653 scopus 로고    scopus 로고
    • id. at 145 (discussing Congress's plenary power over Indian tribes).
    • id. at 145 (discussing "Congress's plenary power over Indian tribes").
  • 245
    • 46449120645 scopus 로고    scopus 로고
    • See generally, note 165 studying the practice of indigenous justice in the western Amazon region of the country
    • See generally SISTEMA JURÍDICA INDÍGENA, supra note 165 (studying the practice of indigenous justice in the western Amazon region of the country);
    • supra
    • SISTEMA JURÍDICA, I.1
  • 246
    • 46449094593 scopus 로고    scopus 로고
    • MARCELO FERNÁNDEZ OSCO, LA LEY DEL AYULLU [THE LAW OF THE AYULLU] (2000) (studying the practice of indigenous justice in the eastern altiplano region).
    • MARCELO FERNÁNDEZ OSCO, LA LEY DEL AYULLU [THE LAW OF THE AYULLU] (2000) (studying the practice of indigenous justice in the eastern altiplano region).
  • 247
    • 46449132982 scopus 로고    scopus 로고
    • SUBCOMMISSION REPORT, supra note 154, at 24
    • SUBCOMMISSION REPORT, supra note 154, at 24.
  • 248
    • 46449110864 scopus 로고    scopus 로고
    • Comisión Judicial, Asamblea Constituyente de Bolivia [Judicial Commission, Constitutional Assembly of Bolivia], Diagnóstico de la Justicia Ordinaria [Diagnosis of Ordinary Justice], at slide 9 (2007) (on file with author).
    • Comisión Judicial, Asamblea Constituyente de Bolivia [Judicial Commission, Constitutional Assembly of Bolivia], Diagnóstico de la Justicia Ordinaria [Diagnosis of Ordinary Justice], at slide 9 (2007) (on file with author).
  • 249
    • 46449130907 scopus 로고    scopus 로고
    • SUBCOMMISSION REPORT, supra note 154, at 24
    • SUBCOMMISSION REPORT, supra note 154, at 24.
  • 250
    • 46449134838 scopus 로고    scopus 로고
    • See, e.g., Elba Flores Gonzales, Chiquitanos: Monte Verde y Lomerío, in SISTEMA JURÍDICA INDÍGENA, supra note 165, at 57, 143 (noting that indigenous communities in the Chiquitos region of Bolivia have traditionally resolved disputes internally because of custom, unfamiliarity with civil justice systems, and hostility from civil authorities).
    • See, e.g., Elba Flores Gonzales, Chiquitanos: Monte Verde y Lomerío, in SISTEMA JURÍDICA INDÍGENA, supra note 165, at 57, 143 (noting that indigenous communities in the Chiquitos region of Bolivia have traditionally resolved disputes internally because of custom, unfamiliarity with civil justice systems, and hostility from civil authorities).
  • 251
    • 46449089385 scopus 로고    scopus 로고
    • One could possibly argue, however, that the general Article 34 right to develop juridical systems - though not requiring EJP per se - has crystallized as instant customary international law given the opinio juris of 144 states who voted for the DRIP. See Cheng, supra note 8, at 532 ([O]pinio juris can arise or change instantaneously.).
    • One could possibly argue, however, that the general Article 34 right to develop juridical systems - though not requiring EJP per se - has crystallized as instant customary international law given the opinio juris of 144 states who voted for the DRIP. See Cheng, supra note 8, at 532 ("[O]pinio juris can arise or change instantaneously.").
  • 252
    • 46449134553 scopus 로고    scopus 로고
    • In developing EJP, the Constitutional Assembly has made specific reference to its existing international legal obligations under ILO Convention No. 169; while EJP probably is not required by Convention No. 169, Bolivia's belief that it is required counts as opinio juris.
    • In developing EJP, the Constitutional Assembly has made specific reference to its existing international legal obligations under ILO Convention No. 169; while EJP probably is not required by Convention No. 169, Bolivia's belief that it is required counts as opinio juris.
  • 253
    • 46449091749 scopus 로고    scopus 로고
    • See, note 154, at, noting the international law foundation for EJP
    • See SUBCOMMISSION REPORT, supra note 154, at 11-12 (noting the international law foundation for EJP).
    • supra , pp. 11-12
    • SUBCOMMISSION, R.1
  • 254
    • 46449088759 scopus 로고    scopus 로고
    • DRIP, note 1, art. 4
    • DRIP, supra note 1, art. 4.
    • supra
  • 256
    • 46449088168 scopus 로고    scopus 로고
    • See, note 155, art. 192 giving indigenous courts expansive subject-matter jurisdiction over legal relationships and violations of rights within their territory
    • See DRAFT CONSTITUTION, supra note 155, art. 192 (giving indigenous courts expansive subject-matter jurisdiction over legal relationships and violations of rights within their territory);
    • supra
    • DRAFT, C.1
  • 257
    • 46449122190 scopus 로고    scopus 로고
    • id. (allowing indigenous courts to make nonrenewable decisions regarding which cases they will hear).
    • id. (allowing indigenous courts to make nonrenewable decisions regarding which cases they will hear).
  • 258
    • 46449084932 scopus 로고    scopus 로고
    • DRIP, note 1, art. 43
    • DRIP, supra note 1, art. 43.
    • supra
  • 259
    • 46449085225 scopus 로고    scopus 로고
    • See note 159, at, 17 noting extensive interest of indigenous groups in participating in the constitutional assembly
    • See POSTERO, supra note 159, at 2-3, 17 (noting extensive interest of indigenous groups in participating in the constitutional assembly).
    • supra , pp. 2-3
    • POSTERO1
  • 260
    • 46449111445 scopus 로고    scopus 로고
    • DRIP, note 1, art. 38
    • DRIP, supra note 1, art. 38.
    • supra
  • 261
    • 46449095775 scopus 로고    scopus 로고
    • Id. art. 43
    • Id. art. 43.
  • 262
    • 46449121898 scopus 로고    scopus 로고
    • For an explanation of this approach in U.S. domestic law, see Gonzales v. Raich, 545 U.S. 1, 42 (2005) (O'Connor, J., dissenting) (One of federalism's chief virtues, of course, is that it promotes innovation by allowing for the possibility that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. (emphasis added) (internal quotation marks omitted)).
    • For an explanation of this approach in U.S. domestic law, see Gonzales v. Raich, 545 U.S. 1, 42 (2005) (O'Connor, J., dissenting) ("One of federalism's chief virtues, of course, is that it promotes innovation by allowing for the possibility that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." (emphasis added) (internal quotation marks omitted)).
  • 263
    • 46449093386 scopus 로고    scopus 로고
    • note 8, at, statement of Ambassador Robert Hill, Permanent Representative of Australia
    • U.N. GAOR, supra note 8, at 12 (statement of Ambassador Robert Hill, Permanent Representative of Australia).
    • supra , pp. 12
    • GAOR, U.N.1
  • 264
    • 46449106661 scopus 로고    scopus 로고
    • See supra notes 180-181 and accompanying text. In addition, the contention that customary law is not law, whether true or not, is not only somewhat irrelevant, but also reminiscent of Francisco Vitoria's questionable conclusion that while the Indians had laws and magistrates, they had no proper laws nor magistrates.
    • See supra notes 180-181 and accompanying text. In addition, the contention that "customary law is not law," whether true or not, is not only somewhat irrelevant, but also reminiscent of Francisco Vitoria's questionable conclusion that while the Indians had "laws" and "magistrates," they had "no proper laws nor magistrates."
  • 265
    • 84963456897 scopus 로고    scopus 로고
    • notes 104-105 and accompanying text
    • See supra notes 104-105 and accompanying text.
    • See supra
  • 266
    • 84963456897 scopus 로고    scopus 로고
    • notes 32-34 and accompanying text
    • See supra notes 32-34 and accompanying text.
    • See supra
  • 267
    • 46449083789 scopus 로고    scopus 로고
    • See supra note 33
    • See supra note 33.
  • 268
    • 46449095774 scopus 로고    scopus 로고
    • Press Release, U.S. Mission to the U.N., Statement on Indigenous Issues Agenda Item on Human Rights, to the Third Session of the Permanent Forum (May 17, 2004) (emphasis added), available at http://www.usunnewyork. usmission.gov/press_releases/20040517_083.html.
    • Press Release, U.S. Mission to the U.N., Statement on Indigenous Issues Agenda Item on Human Rights, to the Third Session of the Permanent Forum (May 17, 2004) (emphasis added), available at http://www.usunnewyork. usmission.gov/press_releases/20040517_083.html.
  • 269
    • 46449093383 scopus 로고    scopus 로고
    • Id
    • Id.
  • 270
    • 46449086131 scopus 로고    scopus 로고
    • Id. (emphasis added).
    • Id. (emphasis added).
  • 271
    • 46449121865 scopus 로고    scopus 로고
    • U.S. Nat'l Sec. Council, Position on Indigenous Peoples (Jan. 18, 2001), available at http://www1.umn.edu/humanrts/usdocs/indigenousdoc.html.
    • U.S. Nat'l Sec. Council, Position on Indigenous Peoples (Jan. 18, 2001), available at http://www1.umn.edu/humanrts/usdocs/indigenousdoc.html.
  • 272
    • 46449130906 scopus 로고    scopus 로고
    • DRIP, note 1, art
    • DRIP, supra note 1, art. 26(3).
    • supra , vol.26 , Issue.3
  • 273
    • 46449096933 scopus 로고    scopus 로고
    • See Press Release, U.N. Sec'y-Gen., supra note 3.
    • See Press Release, U.N. Sec'y-Gen., supra note 3.


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