Indigenous Peoples and Human Rights

By Patrick Thornberry | Go to book overview

Introduction

Scope of the work: human rights instruments and principles

The present work does not attempt to explore the whole of international law as it connects with the indigenous. The focus is principally on human rights instruments and principles. A chapter also attempts to unravel some of the historical underpinnings of the relationship between indigenous peoples and the system we understand as international law. The author broadly shares the sentiments expressed by, inter alios, Brownlie and Merrills, 1 in support of the idea that human rights, or minority rights, or indigenous rights, are part of that system. On the other hand, human rights, minority and indigenous rights are capable of engendering important systemic modifications to international law, and have done so. 2 The explorations in the present work suggest a measure of openness in the articulation and application of human rights norms - that they are developmental, adaptive and sensitive to a degree to local interpretations - imperfectly expressed in doctrines such as the `margin of appreciation'. 3 To this may be contrasted the idea that human rights should always try to mimic the court-centred domestic systems, and

____________________
1
I. Brownlie (F. M. Brookfield, ed.), Treaties and Indigenous Peoples (Oxford, Clarendon Press, 1992); J. Merrills, `Environmental protection and human rights: conceptual aspects', in A. Boyle and M. Anderson (eds.), Human Rights Approaches to Environmental Protection (Oxford, Clarendon Press, 1996), pp. 25-41.
2
The international community is witness to an ongoing realignment of sovereignty and human rights, producing issues around such as the Pinochet case (immunity and human rights), the NATO bombing of Kosovo (territorial integrity and human rights) and the emergence of the International Criminal Court (criminal responsibility and human rights). See P. Thornberry, `“Come, friendly bombs” - international law in Kosovo', in K. Drezov, B. Gokay and D. Kostovicova (eds.), Kosovo: Myths, Conflict and War (Keele, European Research Centre, 1999), pp. 75- 91 (revised as Kosovo: the Politics of Delusion (London, Portland, Frank Cass, 2001).
3
A particular favourite in the jurisprudence of the European Convention on Human Rights.

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