seth korman on ancestral lands and customary international law


Seth Korman, ‘Indigenous Ancestral Lands and Customary International Law’, University of Hawai ‘i Law Review 32 (2009-2010), pp. 391-463.

In lieu of an abstract, here’s part of the introduction:

The debate over the existence of customary law protecting the land rights of indigenous peoples is relatively new. While there is commentary and scholarship on the emergence of indigenous land rights in various countries and in international law, arguments supporting an international right tend to look mostly at treaties and some accumulated state practice, and not to the deeper underpinnings of customary law.’ This is understandable, as the absence of a universally signed treaty or a definitive International Court of Justice (ICJ) ruling on the issue of indigenous property rights forces observers to dive into the murky field of customary international law, a body of law derided by outspoken critics like Justice Scalia as a “20th-century invention of internationalist law professors and human rights advocates,”‘ yet recognized as real law by the United States Supreme Court,’ the ICJ, and most nations throughout the world.

This article looks at the existence of a customary norm protecting indigenous ancestral territory by applying contemporary understandings of customary international law to the current state of indigenous real property protections in various parts of the world. By looking at the many domestic, international, and supranational developments in the campaign for increased protection for native property rights through a lens of state action and international legal obligation, this article seeks to demonstrate that the framework for the establishment of such a norm is in fact already in place, especially amongst post-colonial nations with large indigenous populations. Part I of this article provides a contemporary assessment of the relevant aspects of customary international law, and looks at the existing requirements for proving its existence. Parts II and III then examine the various domestic and international developments protecting indigenous ancestral lands that might demonstrate—or at least provide evidence towards-the potential existence of custom: Part II surveys both state action and legal obligations of various nations, while Part III looks at secondary indicators, including treaties, international instruments, and additional international law that bears on theissue of indigenous land rights. Parts II and III simply present evidence, following the rule of thumb that, when trying to prove custom-a job the International Law Commission (ILC) admits to be “a herculean task”–the volume of evidence is of utmost importance. Part IV then applies this evidence to the framework for proving customary international law, and demonstrates that the current body of law relating to customary land rights may reveal an emerging custom in international law, albeit one that remains vague and ill- defined.

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