Michigan International Law Journal, Vol. 30, No. 1, 2008
47 Pages Posted: 20 Oct 2008 Last revised: 10 Nov 2008
Date Written: October 16, 2008
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.
Keywords: indigenous rights, international law, UN Declaration on the Rights of Indigenous Peoples, International Labour Organization, sovereignty, international human rights
Suggested Citation: Suggested Citation
Macklem, Patrick, Indigenous Recognition in International Law: Theoretical Observations (October 16, 2008). Michigan International Law Journal, Vol. 30, No. 1, 2008; U Toronto, Legal Studies Research Paper No. 08-21. Available at SSRN: https://ssrn.com/abstract=1285652
The Human Rights of Indigenous Peoples, in Light of the New Declaration, and the Challenge of Making Them Operative: Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People