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  • Author: Gaetano Pentassuglia
  • Publication Date: 02-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: As expert analysis concentrates on indigenous rights instruments, particularly the long fought for 2007 UN Declaration on the Rights of Indigenous Peoples, a body of jurisprudence over indigenous land and resources parallels specialized standard-setting under general human rights treaties. The aim of the present article is to provide a practical and comparative perspective on indigenous land rights based on the process of jurisprudential articulation under such treaties, principally in the Inter-American and African contexts. While specialized standards inevitably generate a view of such rights (and, indeed, indigenous rights more generally) as a set of entitlements separate from general human rights, judicial and quasi-judicial practice as it exists or is being developed within regional and global human rights systems is effectively shaping up their content and meaning. I argue that indigenous land rights jurisprudence reflects a distinctive type of human rights discourse, which is an indispensable point of reference to vest indigenous land issues with greater legal significance. From a practical standpoint, focussing on human rights judicial and quasi-judicial action to expand existing treaty-based regimes and promote constructive partnerships with national courts, though not a panacea to all the intricacies of indigenous rights, does appear to offer a more realistic alternative to advocacy strategies primarily based on universally binding principles (at least at this stage) or the disengagement of domestic systems from international (human rights) law.
  • Topic: Human Rights, United Nations
  • Political Geography: Africa, America
  • Author: Solomon T. Ebobrah
  • Publication Date: 08-2011
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: According to the Protocol to the African Charter on Human and Peoples' Rights establishing the African Court on Human and Peoples' Rights, the main function of the Court is to complement the protective mandate of the already existing African Commission on Human and Peoples' Rights. Thus, complementarity was introduced into the framework of the African human rights system. Since then, the concept of complementarity has also been brought into play in the Protocol to the Statute of the proposed African Court of Justice and Human Rights. Although the interim rules of procedure of the Court and of the Commission have sought to give meaning to the concept of complementarity, there is still very little understanding of how it will pan out in the system. Questions abound as to the exact implication it would have on the existing mechanisms of the Commission. Almost nothing has been said or written on its impact on the African Committee of Experts on the Rights and Welfare of the Child. Against this background, this article argues that complementarity in the African human rights system can be applied positively by adopting a normative approach that allows for the prescription of what the system's supervisory institutions should do and how they should relate to each other in their work. The article argues further that the justifications for the introduction of judicial organs can also be employed to prescribe complementary functions for each supervisory institution. It concludes that applying complementarity positively would require encouraging each institution to focus on its strengths with a view to strengthening the overall effectiveness of the system.
  • Topic: Human Rights
  • Political Geography: Africa