PATRICK MACKLEM, University of Toronto - Faculty of Law
Email: p.macklem@utoronto.ca

Drawing on a classic essay by Hans Kelsen, this Article addresses the status of indigenous peoples in international law. It argues that the criteria for determining the legal existence of indigenous peoples in international law are a function of the nature and purpose of international indigenous rights. The twentieth century legal history of international indigenous rights, from their origins in international protection of indigenous workers in colonies to their contemporary expression in the United Nations Declaration on the Rights of Indigenous Peoples, demonstrates that their purpose is to mitigate injustices produced by how the international legal order treats sovereignty as a legal entitlement that it distributes among collectivities it recognizes as states. The criteria by which indigenous peoples can be said to exist in international law relate to their historic exclusion from the distribution of sovereignty initiated by colonization that lies at the heart of the international legal order.

MATTHEW L.M. FLETCHER, Michigan State University College of Law
Email: matthew.fletcher@law.msu.edu

The Supreme Court's certiorari process is a barrier to justice for parties like Indian tribes and individual Indians. Statistically, there is a near zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari in more than a quarter of petitions filed by the traditional opponents to tribal sovereignty, states. Why?

The Supreme Court has long maintained that the certiorari process is a neutral and objective means of eliminating patently frivolous petitions from consideration. This empirical study of preliminary memoranda drafted by the Supreme Court law clerk pool demonstrates the likelihood that the Court's certiorari process is neither objective nor neutral. Cert pool clerks overstate the relative merits and importance of petitions filed by states against tribal interests, while understating the merits and importance of tribal petitions.

In this study of more than 162 certiorari petitions filed between 1986 and 1994, a majority of petitions brought by state and local governments received favorable treatment from the cert pool while recommending denial in all but a single tribal petition, often labeling them "factbound" and "splitless." The impact of this weighted review of cert petitions is that a disproportionate number of state government petitions are granted while very few tribal petitions are granted.

HANNIBAL TRAVIS, Villanova University - School of Law, Florida International University - College of Law
Email: hannibal.travis@fiu.edu

This Article provides historical and legal support for the contention that the Sudanese government is guilty of genocide in southern Sudan, the Nuba mountains, and the Darfur region. Specifically, the government and the militias it sponsors have massacred civilians in these regions on a wide scale, starved and enslaved their inhabitants, committed widespread rape, burned hundreds or thousands of villages, and blocked humanitarian aid from reaching the victims in such a way as to ensure that mass deaths resulted. For these reasons, this Article disagrees with the 2005 report of the the International Commission of Inquiry on Darfur, submitted to the U.N. Secretary-General in early 2005 at the request of the U.N. Security Council, which concluded that the element of genocidal intent was missing because the government had not exterminated the entire population of Darfur. This Article applies the Genocide Convention, in light of the precedents established by national and international tribunals that have construed it over the years, to establish that genocide has occurred in Sudan because the Sudanese military and allied militia have killed and wounded many members of identifiable indigenous African groups by means of repeated and large-scale destructive and discriminatory acts. Genocidal intent may be inferred under such circumstances, as it was after the genocides in German-occupied Europe, the former Yugoslavia, and Rwanda.

This Article also attempts to account for the inadequate international response to genocide in Sudan by reference to the incentives of the Sudanese government and its allies and trading partners to drive indigenous African populations off their land in order to exploit the substantial oil deposits that have been opened to exploration by multinational corporations such as the China National Petroleum Corp. The proceeds of Sudanese oil sales enrich governments with seats on the Security Council, both directly through state-controlled oil companies and indirectly by growing their oil and arms industries. Multinational corporations and their respective governments have therefore armed the perpetrators of genocide in Sudan, and have helped sustain an apathetic international response. After suffering from this dynamic for more than a decade, indigenous African leaders in Sudan, as well as international human rights advocates, have argued that Sudan's oil revenues represent a source of leverage over the government's genocidal policies. This Article argues that Sudan's oil revenues, and those of its multinational corporate partners, should be tapped to compensate Sudan's indigenous African populations for their human and material losses, and to secure for them a fair share of their country's natural resources. Such a compensatory approach to the problem of genocide in Sudan may also transcend some of the difficulties that genocide scholars have identified as inhibiting the effectiveness of international criminal prosecutions as deterrents to genocidal conduct, including the inadequacy of punishing a few token officials for the policies of an entire regime, which can muster thousands of members of heavily-armed and well-organized army and militia units.

The Article concludes by exploring different potential approaches to the question of how best to compensate victims of genocide and crimes against humanity in Sudan. One model is provided by the Darfur Peace Agreement, which calls for the government to pay $30 million in compensation to victims of genocide in Darfur. This amount, divided among the families of more than 450,000 murdered Darfurians, is of course too paltry to be unacceptable to leaders of indigenous Africans in Sudan. For this reason, the former chief prosecutor of the International Criminal Tribunal for the former Yugoslavia, as well as Human Rights Watch and Amnesty International, have argued that a more appropriate model may be provided by the U.N. Compensation Commission (UNCC), which levied reparations obligations directly against Iraq's oil exports as a result of its invasion and attempted annexation of Kuwait in 1990. The UNCC has already awarded more than $21.8 billion in reparations to Kuwaiti, Saudi, Jordanian, Palestinian, Israeli, and American corporations and citizens injured in their businesses or persons as a result of the war and related events. A similar commission for Sudan would actually be more justifiable than the UNCC was, among other reasons because millions, rather than a few thousand, civilians have been killed in Sudan. A third model looks to the multinational corporation that knowingly provide a genocidal government with the resources to carry out its policies, or that reward it for displacing civilians from resource-rich areas. This model is exemplified by the Second Circuit's recent opinion in Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007), which held that oil corporations that aid and abet violations of customary international law may be sued for damages under the Alien Tort Claims Act if they they willingly supplied the means for a government to violate customary international law prohibitions against genocide or torture.

The Article closes with the observation that genocide in Sudan and elsewhere is often motivated by the incentive of a dominant group to expropriate a foreign or minority population's land, natural resources, property, and uncompensated labor. The restitution or redistribution of these resources stolen by governments and multinational corporations may deter genocide as an instrument of public policy by making it less profitable, and, more importantly, provide some means for populations driven from their ancestral homes and lands to survive. In Sudan and eastern Chad, where displaced civilians have sometimes been reduced to eating tree bark and drinking fetid water to stay alive, the question of compensation as a human rights and human security measure could not be more urgent.

KEVIN JON HELLER, Melbourne Law School
Email: kevinjonheller@gmail.com

The ICC is often derided as the "African Criminal Court." That criticism cannot easily be dismissed: all of the Office of the Prosecutor's (OTP) current investigations focus on African states -- Uganda, the Central African Republic, the Democratic Republic of Congo, and the Sudan -- and it is analyzing the situations in three other African states, Cote D'Ivoire, Kenya, and Chad, to determine whether formal investigation is warranted. At the same time, the OTP has declined to investigate the situations in a number of non-African states, such as Venezuela and Iraq -- the latter despite its conclusion that there was a "reasonable basis to believe" that UK nationals had willfully killed a number of civilians and subjected a number of others to inhumane treatment.

The OTP has not denied -- nor could it -- that it has focused exclusively on situations in Africa. Instead, it has argued that its investigative decisions have been driven solely by an objective assessment of the gravity of the various situations, as required by Article 53 of the Rome Statute. In its view, the African situations are simply graver than the non-African situations, because they involve far greater numbers of victims.

This essay critiques the OTP's quantitative conception of situational gravity. More specifically, it argues that the OTP should de-emphasize the number of victims in a situation in favor of three qualitative factors when it determines the gravity of a situation: (1) whether the situation involves crimes that were committed systematically, as the result of a plan or policy; (2) whether the situation involves crimes that cause "social alarm" in the international community; and (3) whether the situation involves crimes that were committed by States, instead of by rebel groups.

JENNIFER SANDER, York University - Osgoode Hall Law School
LADAN MEHRANVAR, affiliation not provided to SSRN
SHIN IMAI, York University - Osgoode Hall Law School
Email: simai@osgoode.yorku.ca

Canadian mining company Goldcorp breaches indigenous law in Guatemala.

V. RUKMINI RAO, Saheli Resource Center for Women
Email: vrukminirao@yahoo.com

The article examines the social dimensions of poverty in the context of gender, dalit, tribal and Muslim minorities in the country. Reviewing the process of globalisation in the country, it notes that the largest section of workers continue to work in the unorganised sector. The shifting of global capital to the South and particularly to India has increased opportunities for women to work in the garment export industry. Characterised by low pay and poor working conditions, the industry exploits women. The fear of job loss has led to new forms of resistance by women workers not only at the workplace but within the community linking with social movements for protection and advancement.

Small and marginal farmers including women agricultural workers are impacted by global markets leading to destruction of rural livelihoods. Dalit women have demonstrated how to create household food security by internalising inputs and creating alternative markets. Policy planners need to learn from these experiences and upscale at a national level. Regenerating commons and promoting non-chemical agriculture are other means to restore ecological balance and economic health of the agriculture sector.

Tribal, dalit and Muslim minority socio-economic rights are eroded further due to the process of globalisation. To move towards more inclusive growth, public spending on education and health has to increase. Responding to people's movements the state needs to implement pro-people policies and programmes. Mobilising women into SHGs is seen as a panacea to ensure women's development. Currently, it has created a debt burden on women. An alternative agenda for empowerment is outlined for action.