Indigenous Peoples, Natural Resources and Permanent Sovereignty

Andrea Mensi, Ph.D. (2021), Bocconi University Milan, is postdoctoral researcher in international law at the USI University of Lugano. He is a generalist public international lawyer with interest in indigenous and minority rights as well as an attorney practicing before the ECtHR.

Acknowledgements


Abbreviations


Table of Cases


Table of Statutes and Statutory Instruments


Introduction


Part 1

States, Sovereignty and Peoples’ Rights

1 The Principle of Permanent Sovereignty over Natural Resources as a Right of States

 1 Preliminary Remarks


 2 Sovereignty over Territory in International Law

 2.1 Origins of Territorial Sovereignty


 2.2 Territorial Sovereignty in Current International Law


 2.3 Territorial Sovereignty as Opposed to Property Rights




 3 Permanent Sovereignty over Natural Resources

 3.1 Elaboration via the UN General Assembly


 3.2 The UN Declaration on Permanent Sovereignty over Natural Resources


 3.3 Elaboration in General Multilateral Treaties


 3.4 Elaboration in International Case Law


 3.5 The Current Content under Customary International Law of the Principle of Permanent Sovereignty over Natural Resources




 4 Concluding Remarks




2 The Conceptualization of Indigenous Peoples in International Law

 1 Preliminary Remarks


 2 Early Legal Theories on Indigenous Peoples

 2.1 The Doctrine of Discovery


 2.2 The Irrelevance of Indigenous Peoples as Such in Classic International Law




 3 Indigenous Individuals under International Human Rights Law

 3.1 Indigenous Individuals


 3.2 Indigenous Individuals as Members of Minority Groups




 4 Indigenous Peoples as a Category of ‘Peoples’

 4.1 Peoples as the Population of the Whole of a State


 4.2 Peoples as Distinct Subjects from the Population of a State as a Whole







 5 Indigenous as Other Non-independent Peoples

 5.1 ILO Convention No 169


 5.2 The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)


 5.3 The American Declaration on the Rights of Indigenous Peoples (ADRIP)


 5.4 The Proposed Nordic Saami Convention


 5.5 Peoples’ Rights in the African Charter




 6 Indigenous ‘Communities’


 7 Concluding Remarks


Part 2

Indigenous Rights with Respect to Natural Resources before UNDRIP

3 Individual and Collective Indigenous Rights and Natural Resources

 1 Preliminary Remarks


 2 The Rights of Indigenous Individuals with Respect to Natural Resources under International Human Rights Law

 2.1 Universal Instruments


 2.2 Regional Instruments




 3 The Rights of Indigenous Peoples under ILO Convention No 169


 4 The Rights of Indigenous as Peoples under International Human Rights Law

 4.1 Common Article 1 of the ICCPR and ICESCR


 4.2 African Charter on Human and Peoples’ Rights




 5 Concluding Remarks




4 Permanent Sovereignty over Natural Resources as a People’s Right

 1 Preliminary Remarks


 2 Rights over Natural Resources as Part of the Right of All Peoples to Self-Determination

 2.1 Common Article 1 ICCPR and ICESCR


 2.2 Article 21 of the African Charter on Human and Peoples’ Rights




 3 Permanent Sovereignty over Natural Resources and Colonial and Equivalent Peoples

 3.1 General Framework


 3.2 Specific Instances




 4 The Content of Permanent Sovereignty over Natural Resources as a Right of Peoples

 4.1 Generally Applicable Rules


 4.2 Accordance with International Law




 5 Permanent Sovereignty over Natural Resources and Indigenous Peoples


 6 Concluding Remarks




Part 3

The Impact of the UNDRIP on Indigenous Rights with Respect to Natural Resources

5 Indigenous Peoples’ Rights with Respect to Natural Resources in UNDRIP

 1 Preliminary Remarks


 2 Indigenous Collective Rights with Respect to Lands, Territories and Natural Resources

 2.1 Terminology Adopted by the Declaration


 2.2 Collective Rights to Cultural and Spiritual Relationship with Respect to Natural Resources


 2.3 Collective Rights with Respect to Lands and Natural Resources


 2.4 Recognition and Adjudication of Rights with Respect to Lands, Territories and Natural Resources


 2.5 The Right to Redress


 2.6 Consultations and Free, Prior and Informed Consent




 3 Indigenous Rights with Respect to Natural Resources in the UNDRIP and Permanent Sovereignty


 4 Concluding Remarks




6 Indigenous Peoples’ Rights with Respect to Natural Resources after UNDRIP

 1 Preliminary Remarks


 2 UNDRIP Influence on Later International Instruments

 2.1 Indigenous Peoples and Natural Resources in the ADRIP


 2.2 Indigenous Collective Rights with Respect to Natural Resources in the Proposed Nordic Saami Convention




 3 The UNDRIP Influence on Regional Jurisprudence

 3.1 The Inter-American System


 3.2 The Caribbean System


 3.3 The European Framework


 3.4 The African System




 4 Influence on Domestic Jurisprudence and Legislation

 4.1 The Application of UNDRIP Principles by Domestic Courts


 4.2 UNDRIP Influence on Domestic Legislation




 5 UNDRIP Influence on International and Human Rights Bodies


 6 Indigenous ‘Permanent Sovereignty’ over Natural Resources after undirp


 7 Concluding Remarks




 Conclusions

 1 Permanent Sovereignty over Natural Resources as a Right of Peoples


 2 Indigenous Peoples as ‘Peoples’ with a Right to Self-Determination


 3 Indigenous Peoples’ Rights with Respect to Natural Resources


 4 Indigenous Peoples’ Rights with Respect to Natural Resources and Permanent Sovereignty


 5 Future Developments in International Law on Indigenous Rights




Bibliography


Index