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  • Author: Katja Göcke
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: Today, it is generally recognized that the relationship to land forms the basis of an indigenous people's identity, and that indigenous peoples' cultures cannot be preserved without a certain degree of control over land and natural resources. In the course of colonization, however, indigenous peoples lost ownership and control over most of their ancestral lands, and from the end of the 19th century onwards the existence of inherent indigenous land rights, i.e. rights not derived from the colonial powers but rooted solely in the use and ownership of the land by indigenous peoples since time immemorial, had been completely denied. This began to change in the 1960s. Due to increased pressure by national courts and international institutions, state governments started to recognize the continued existence of inherent indigenous land rights and to develop different policies to protect them. This paper looks at how indigenous peoples' land rights are nowadays recognized and protected in the United States of America, Canada, Australia, and New Zealand, and whether the different national approaches are in accordance with international legal standards. It will be shown that none of the States subject to this study acts completely in accordance with its obligations under international law, but that nevertheless all States have some strong points regarding the realization and protection of indigenous land rights and can learn from each other's experiences.
  • Topic: International Law
  • Political Geography: United States, America, Canada, Australia
  • Author: Giovana F. Teodoro, Ana Paula N.L. Garcia
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: The purpose of this article is to provide a new perspective in relation to the protection of property rights of indigenous and non-indigenous peoples. Through an analysis based on the jurisprudence of the Inter-American Human Rights System, it is possible to identify the core elements that justify the special protection concerning traditional territories, leading to a rationality that revolves around the unique bond that traditional peoples establish with their land. By studying the recent evolution of the debate within the Inter-American Court of Human Rights, the article intends to shift the focus from formal and constricted ethnic classifications to the underlying cultural identity aspects of the relationship between a certain people and its own land. This change of perspective allows the consolidation of a singular idea of property rights towards traditional territories. Aimed not only at indigenous peoples, but also to any community that shows a distinguished and deep cultural tie to its land, this particular property right notion leads to a more comprehensive and consistent protection of indigenous and non-indigenous peoples' fundamental rights.
  • Topic: International Law
  • Political Geography: United States, America
  • Author: Efrén C. Olivares Alanis
  • Publication Date: 11-2013
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: The right of indigenous peoples over their lands, territories, and natural resources has been developed in recent years by the Inter-American Court of Human Rights. When this right is in apparent or real conflict with the rights or interests of the extractive industry over these lands or natural resources, resolving the conflict presents complex legal and practical problems. The Inter-American Court has established standards that must be met in order to restrict indigenous peoples' rights over their lands and natural resources, as well as the requirement to conduct transparent consultations in good faith and, when applicable, obtain the free, prior, and informed consent of the affected indigenous peoples before a project can be approved in their territories. This article explores these standards and requirements, and analyzes their application by the Inter-American Court and the Inter-American Commission on Human Rights.
  • Topic: International Law
  • Political Geography: America
  • Author: Pierre Thielbörger
  • Publication Date: 06-2012
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: This article uses the case of the Libya intervention to address three general claims about international law. Firstly, it examines whether the reliance of the intervention on the mechanisms of collective security under the UN Charter suggests that international law relating to peace and security has finally overcome its post-9/11 crisis. It concludes that the resolution's vague wording – which makes the distinction between what is “legal” under the resolution, and what is not, hard to draw – undermines such an assumption. Secondly, it explores whether the Libya intervention has put new emphasis on what has been termed the “emerging right of democratic governance”. In spite of the underlying democracy-enhancing spirit of the execution of the intervention, Resolution 1973 was exclusively written in the language of human rights. It did little to indicate a changed attitude of States towards a norm of democratic governance. Finally, the article examines whether the case of Libya shows a renewed international attitude towards States which violate the most fundamental human rights of their citizens. The article concludes by suggesting that, in this third respect, a more muscular liberalism is indeed on the rise again in international law, challenging the formerly almighty concept of State sovereignty. In contributing to this subtle transformation, the Libyan case has made a genuine contribution to the development of the international legal order.
  • Topic: Security, Human Rights, International Law
  • Political Geography: America, Libya, United Nations
  • Author: Christian Volk
  • Publication Date: 11-2012
  • Content Type: Journal Article
  • Journal: The Goettingen Journal of International Law
  • Institution: The Goettingen Journal of International Law
  • Abstract: This paper argues that cosmopolitan constitutionalism suffers from a liberal bias when it comes to comprehend the challenges and conflicts of international politics. This liberal bias becomes obvious in the way cosmopolitan constitutionalism conceives the meaning and function of democracy in global governance. For the cosmopolitan constitutionalism, democracy is mainly thought of as a mechanism to guarantee a political process that brings about reasonable, sustainable and fair compromises between the diverging interests of states and individuals.
  • Topic: International Law
  • Political Geography: America
  • Author: Matias Spektor
  • Publication Date: 06-2011
  • Content Type: Journal Article
  • Journal: Americas Quarterly
  • Institution: Council of the Americas
  • Abstract: Read any Brazilian foreign policy college textbook and you will be surprised. Global order since 1945 is not described as open, inclusive or rooted in multilateralism. Instead, you learn that big powers impose their will on the weak through force and rules that are strict and often arbitrary. In this world view, international institutions bend over backwards to please their most powerful masters. International law, when it is used by the strong, is less about binding great powers and self-restraint than about strong players controlling weaker ones. After finishing the book, you couldn't be blamed for believing that the liberal international order has never established the just, level playing field for world politics that its supporters claim. This intellectual approach is responsible for the ambiguity at the heart of Brazilian strategic thinking. On one hand, Brazil has benefited enormously from existing patterns of global order. It was transformed from a modest rural economy in the 1940s into an industrial powerhouse less than 50 years later, thanks to the twin forces of capitalism and an alliance system that kept it safe. On the other hand, the world has been a nasty place for Brazil. Today, it is one of the most unequal societies in the world. Millions still live in poverty and violence abounds. In 2009, there were more violent civilian deaths in the state of Rio de Janeiro alone than in the whole of Iraq. No doubt a fair share of the blame belongs to successive generations of Brazilian politicians and policymakers. But some of it is a function of the many inequities and distortions that recur when you are on the “periphery” of a very unequal international system. The result is a view of global order that vastly differs from perceptions held by the United States. Take, for instance, Brazilian perceptions of “international threats.” Polls show that the average Brazilian worries little about terrorism, radical Islam or a major international war. Instead, the primary fears concern climate change, poverty and infectious disease. Many Brazilians, in fact, fear the U.S., focusing in particular on the perceived threat it poses to the natural riches of the Amazon and the newfound oil fields under the Brazilian seabed. Perceptions matter enormously. It is no wonder that the Brazilian military spends a chunk of its time studying how Vietnamese guerrillas won a war against far superior forces in jungle battlefields. Nor should it be a surprise that Brazil is now investing heavily in the development of nuclear-propulsion submarines that its admirals think will facilitate the nation's ability to defend oil wells in open waters. But Brazil is nowhere near being a revolutionary state. While its leaders believe that a major transition of global power is currently underway, they want to be seen as smooth operators when new rules to the game emerge. Their designs are moderate because they have a stake in preserving the principles that underwrite Brazil's emergence as a major world player. They will not seek to radically overturn existing norms and practices but to adapt them to suit their own interests instead. Could Brazilian intentions change over time? No doubt. Notions of what constitutes the national interest will transform as the country rises. Brazil's international ambitions are likely to expand—no matter who runs the country. Three factors will shape the way national goals will evolve in the next few years: the relationship with the U.S., Brasilia's strategies for dealing with the rest of South America, and Brazil's ideas about how to produce global order. When it Comes to the U.S., Lie Low Brazilian officials are used to repeating that to be on the U.S. “radar screen” is not good. In their eyes, being the source of American attention poses two possible threats. It either raises expectations in Washington that Brazil will work as a “responsible stakeholder” according to some arbitrary criteria of what “responsible” means, or it turns Brazil into a target of U.S. pressure when interests don't coincide. As a result, there is a consensus among Brazilians that a policy of “ducking”—hiding your head underwater when the hegemonic eagle is around—has served them well. Whether this judgment is correct or not is for historians to explore. But the utility of a policy based on such a consensus is declining fast. You cannot flex your diplomatic muscle abroad and hope to go unnoticed. Furthermore, being a “rising state” is never a mere function of concrete things, such as a growing economy, skilled armies, mighty industries, a booming middle class, or a functional state that is effective in tax collection and the provision of public goods. The perception of other states matters just as much. And nobody's perception matters more than that of the most powerful state of all: the United States. Brazil's current rise is therefore deeply intertwined with the perception in Washington that Brazil is moving upwards in global hierarchies. Securing the acceptance or the implicit support of the U.S. while maintaining some distance will always be a fragile position to maintain. But as Brazil grows more powerful, it will be difficult to accomplish its global objectives without the complicity—and the tacit acceptance—of the United States. For Brazil this means that the “off the radar” option will become increasingly difficult. Not the Natural Regional Leader Brazil accounts for over 50 percent of South America's wealth, people and territory. If power were a product of relative material capabilities alone, Brazil would be more powerful in its own region than China, India, Turkey or South Africa are in theirs. But Brazil is not your typical regional power. It has sponsored layers of formal institutions and regional norms, but its leaders recoil at the thought of pooling sovereignty into supranational bodies. Yes, Brazil has modernized South American politics by promoting norms to protect democracy and to establish a regional zone of peace, but its efforts at promoting a regional sense of shared purposes have been mixed and, some say, halfhearted at best. Brazilian public opinion and private-sector business increasingly doubt the benefits of deep regional integration with neighbors, and plans for a South American Free Trade Zone have gone asunder. And yes, according to the Stockholm International Peace Research Institute (SIPRI), from 1998 to 2007, Brazil spent far more on its armed forces than Argentina, Chile, Colombia, and Venezuela combined. Yet, Brazil's ability to project military power abroad remains minimal. The end result is that many challenge the notion that Brazil is a regional leader. From the perspective of smaller neighboring countries, it remains a country that is too hard to follow sometimes. If you are sitting on its borders, as 10 South American nations do, you find it difficult to jump on its bandwagon. This is problematic for Brazil. As a major and growing regional creditor, investor, consumer, and exporter, its own economic fate is interconnected with that of its neighbors. Crises abroad impact its banks and companies at home as never before. Populism, ethnic nationalism, narcotics trafficking, guerrilla warfare, deforestation, unlawful pasturing, economic decay, and political upheaval in neighbors will deeply harm Brazilian interests. Whether, when and how Brazil will develop the policy instruments to shape a regional order beneficial to itself remains to be seen. But curiously enough, Brazilian leaders do not normally think their interests in South America might converge with those of the United States. On the contrary, Brazil in the twenty-first century has geared its regional policies to deflect, hedge, bind, and restrain U.S. power in South America to the extent that it can. This is not to say that Brazil is a stubborn challenger of U.S. interests in the region. That would be silly for a country whose success depends on the perception of economic gain and regional stability. But it means that future generations of Brazilians might discover that if they want to unlock some of the most pressing problems in the region, perhaps they will have to reconsider their attitude towards the United States...
  • Topic: Foreign Policy, International Law, Islam
  • Political Geography: United States, America, Washington, Brazil, Argentina, Colombia, South America, Venezuela, Chile
  • Author: Lucas Lixinski
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article examines the jurisprudence of the Inter-American Court of Human Rights in several areas of adjudication which initially did not fall under the instrument, such as environmental rights, international humanitarian law, and investors' rights. In all these areas, the Court has used instruments 'foreign' to the Inter-American system as a means to expand the content of rights in the American Convention. As a result, the umbrella of protection of this instrument, and the reach of the Court, is far greater than originally envisaged. After analysing the specific provision on interpretation of the American Convention on Human Rights as compared to the equivalent mechanisms in the Vienna Convention on the Law of Treaties, the article analyses several case studies of expansionism in the case law of the Court, asking throughout the analysis the question whether this helps the unity or the fragmentation of international law. The article argues that this exercise in expansionism, albeit imperfect, eventually contributes to the unity of international law. In this sense, this expansionism happens within controlled boundaries, and the use of external instruments is more of a validation of findings the Court could make based solely on the Inter-American instruments, rarely creating new rights.
  • Topic: Human Rights, International Law
  • Political Geography: America, Vienna
  • Author: Roger Smith
  • Publication Date: 10-2010
  • Content Type: Journal Article
  • Journal: Ethics International Affairs Journal
  • Institution: Carnegie Council
  • Abstract: This new book from Larry May is not a study of genocide, but rather an attempt to draw attention to the conceptual and practical difficulties and ''puzzles'' of conceptualizing and prosecuting genocide under international law. May also argues for expanding the list of groups that are protected under international law against genocide to include gender, culture, and language in addition to race, ethnicity, religion, and national origin. The book's central thesis, however, is that genocide is not ''the crime of crimes,'' and that it differs little from various crimes against humanity. May reminds us that under international law genocide does not necessarily even involve killing, and he goes on to ask why it should be regarded as worse than other crimes committed systematically against civilians. Since genocide is about the destruction of groups, not individuals, what is special about groups, and what is the ''unique harm'' that genocide involves as a result of the destruction of a group?
  • Topic: International Law
  • Political Geography: United States, America
  • Author: Dapo Akande, Sangeeta Shah
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article examines the extent to which state officials are subject to prosecution in foreign domestic courts for international crimes. We consider the different types of immunity that international law accords to state officials, the reasons for the conferment of this immunity and whether they apply in cases in which it is alleged that the official has committed an international crime. We argue that personal immunity (immunity ratione personae) continues to apply even where prosecution is sought for international crimes. Also we consider that instead of a single category of personal immunity there are in fact two types of such immunity and that one type extends beyond senior officials such as the Head of State and Head of Government. Most of the article deals with functional immunity (immunity ratione materiae). We take the view that this type of immunity does not apply in the case of domestic prosecution of foreign officials for most international crimes. However, we reject the traditional arguments which have been put forward by scholars and courts in support of this view. Instead we consider the key to understanding when functional immunity is available lies in examining how jurisdiction is conferred on domestic courts.
  • Topic: Government, International Law
  • Political Geography: America
  • Author: Courtney N. Meyers
  • Publication Date: 01-2009
  • Content Type: Journal Article
  • Journal: European Affairs
  • Institution: The European Institute
  • Abstract: Timed for the Obama administration's Pentagon, this RAND study says government leaders should take more account of the lessons learned from people "on the ground" in recent successful (and unsuccessful) ventures in state-rebuilding. Best practice means strong local command (involving the military under civilian leadership) which is heeded in national capitals.
  • Topic: International Law, United Nations
  • Political Geography: United States, America