Indigenous Issues in the Teaching of International Law

Abstract

This article illuminates the points at which indigenous peoples and their legal systems may be raised in general courses on public and private international law and in courses on specialised areas of public international law (including international intellectual property; international environmental law; international human rights law; international law of the sea; cultural heritage law; international economic law; international criminal law; international labour law). (1) In private international law, the recognition of indigenous customary law can be characterised as raising classic conflict of laws issues concerning the choice of substantive law applicable to a particular dispute and the persons involved in it. In places where indigenous legal institutions persist, it may also be necessary to resolve a choice of 'jurisdiction' question (so to speak, for there will seldom be indigenous 'courts' readily equivalent to civil or common law institutions). The teaching of indigenous issues as part of a private international law curriculum can shed light on the diversity of law systems and institutions which may be engaged by that subject, beyond the more typical (and in some ways more straightforward) 'conflicts' arising between different national or sub-national (federal) law systems. (2) In public international law, indigenous peoples are central to the historical development of foundational concepts such as acquisition of title to territory, sovereignty, Statehood, colonization and decolonization, self-determination, legal personality, and treaty-making. In addition, indigenous peoples surface in numerous specialised branches of public international law, including human rights, environmental law, law of the sea, intellectual property law, cultural heritage law, economic law, criminal law, and labour law. Whether an international law of indigenous peoples per se has emerged, or by contrast general international law applies to indigenous peoples in particularised ways, is a ripe jurisprudential question which can itself be taught as a theoretical question of some importance in the development (and diversification and fragmentation) of international law as a whole.

Keywords: indigenous peoples, private international law, public international law, conflict of laws, international law teaching, curriculum development, legal education

JEL Classification: K10, K30, K33