Indigenous Peoples and Human Rights

By Patrick Thornberry | Go to book overview
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4

The age of rights 1

If the iron cage of sovereignty-based international law continued to imprison the legal imagination, its power loosened significantly in the twentieth century. In terms of State actors, the opening out of the system to all `peace-loving' States 2 under the impetus of self-determination implied that the Eurocentric mould was broken or badly damaged. 3 On possible types of international actor/participant, 4 the phrases of the ICJ in the Reparations case continue to resound:

The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective action of States has already given rise to instances of action upon the international plane by certain entities which are not States. 5

Leaving aside the arcane language of subjects and objects, a range of entities - States, international organisations, peoples, individuals, transnational corporations, etc., presently participate in international law, as do indigenous peoples and minority groups. This flexibility is reflected only to a limited extent in current articulations of sources of international law. 6 The entities do not all participate in the same way: State rights are not the same as for

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1
After N. Bobbio, The Age of Rights (Cambridge, Polity Press, 1996).
2
Article 4.1 of the UN Charter.
3
In a vast literature, one of the best general accounts remains that by A. Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press, 1995). See also C. Tomuschat (ed.), Modern Law of Self-Determination (Dordrecht, Martinus Nijhoff, 1993).
4
For a lucid explanation of `participant' language, see R. Higgins, Problems and Process: International Law and How we Use It (Oxford, Clarendon Press, 1994), ch. 3.
5
ICJ Reports 1949, 174, at 178-9.
6
Article 38 of the Statute of the ICJ, taken as a contemporary account of the sources of international law, values the contributions of courts and jurists, and unspecified

-89-

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