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Publisher: Oxford University Press
Languages: English
Types: Article
Subjects:
In most societies nomadic peoples face discrimination. At the heart of this discrimination frequently lies the crucial issue of property in land. The sharing of lands between nomads and settled agriculturalist societies has often led to violent confrontation. Access to land is a determining factor for many nomadic peoples as whether or not nomads have access to land will determine the survival of their mobile lifestyle. Historically nomadic peoples have not been regarded as having any rights to land because their nomadic lifestyle was not considered to fulfil the criterion of ‘effective occupation’ of the land. By exploring the evolution of international law regarding nomadic peoples’ land rights, this article analyses how human rights law could provide nomadic peoples with rights to use their lands. Ultimately, this article argues that under the banner of international human rights law, nomadic peoples are gaining the right to live on their land in their traditional ways through the gradual establishment of a specific corpus of law dedicated to the rights of nomads.
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    • See Bogue, 'Apology for Nomadology', (2004) 6 Interventions 169; and Berland and Salo, 'Peripatetic Communities: An Introduction', (1986) 21/22 Nomadic Peoples 1.
    • Semi-nomadic peoples are peoples who move seasonally but have permanent homes for part of the year. See, for example, Council of Europe Committee of Ministers Recommendation (2004)14, 1 December 2004, which refers to semi-nomadic peoples as peoples who set up their winter residence for a maximum period of six months and then move on.
    • See Liegeois and Gheorghe, Roma/Gypsies: A European Minority (London: Minority Rights Group, 1995).
    • See Schweitzer et al. (eds), Hunters and Gatherers in the ModernWorld: Conflict, Resistance, and Self-Determination (New York: Berghahn Books, 2000).
    • Johnson v M'Intosh 21 U.S. 543 at 573^90.
    • For a comprehensive overview of terra nullius, see Bedjaoui, Terra nullius,'droits' historiques et autode¤ termination (The Hague: Sijthoff, 1975).
    • Advisory Opinion, ICJ Reports 1975, 12.
    • For example, see Makkonen, Identity, Difference and Otherness, The Concepts of 'Peoples', 'Indigenous People' and 'Minority' in International Law (Helsinki: Erik Castren Institute of International Law and Human Rights, 2000).
    • Martinez-Cobo, Study of the Problem of Discrimination Against Indigenous Populations, E/CN.4/ Sub.2/1986/7/Add.4 at para. 379.
    • Article 1(1), Convention No. 169 on Indigenous and Tribal Peoples 1989, 1650 UNTS 383.
    • See Barsh, 'Revision of ILO Convention No. 107', (1987) 81 American Journal of International Law 756.
    • International Labour Conference, Partial Revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107), 75th Session, Report IV (1), 1987 at 9.
    • Ibid. at 65^6.
    • International Labour Conference, Partial Revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107), 76th Session, Report IV (2B), 1989 at 14.
    • Article 14, ILO Convention No. 169.
    • 101 Burke, supra n. 34 at 26.
    • 102 Ibid. at 31.
    • 103 R v Marshall; R v Bernard (SCC) [2005] 2 SCR 220, (2005) SCC 43.
    • 104 See the comments of LeBel J in R v Marshall, ibid. at para. 126: 'nomadic life might have given rise to specific rights exercised at specific places or within identifiable territories, but never to a connection with the land itself in the absence of evidence of intensive and regular use of the land.'
    • 105 See Borrows,'Listening for a Change: The Courts and Oral Tradition', (2001) 39 Osgoode Hall Law Journal 1; and Cooter and Fikentscher, 'Indian Common Law: The Role of Custom in American Indian Tribal Courts', (1998) 46 American Journal of Comparative Law 509.
    • 106 For example, nomadic or semi-nomadic Roma communities would not qualify as indigenous. See Henrard, 'The Building Blocks for an Emerging Regime for the Protection of a Controversial Case of Cultural Diversity: The Roma', (2004) 10 International Journal on Minority and Group Rights 183.
    • 107 See Kingsbury, 'Indigenous Peoples in International Law: A Constructivist Approach to the Asian Controversy', (1998) 29 American Journal of International Law 414; and Hitchcock, 'Human Rights and Indigenous Peoples in Africa and Asia', in Forsythe and McMahon (eds), Human Rights and Diversity: Area Studies Revisited (Lincoln: University of Nebraska Press, 2002) at 205.
    • 108 The text of the UN Declaration on the Rights of Indigenous Peoples was adopted by the Human Rights Council on 29 June 2006, A/HRC/1/L.10, and by the UN General Assembly on 13 September 2007, GA/10612. See Gilbert,'Indigenous Rights in the Making: The United Nations Declaration on the Rights of Indigenous Peoples', (2007) 14 International Journal on Minority and Group Rights 207.
    • 109 On this issue, see generally Casimir and Rao, supra n. 48.
    • 110 Bj rklund, 'Sa¤ mi Reindeer Pastoralism as Indigenous Resource Management System in Northern Norway: A Contribution to the Common Property Debate', (1990) 21 Development and Change 75.
    • 111 Berger, 'Conflict Over Natural Resources Among Pastoralists in Northern Kenya: A Look at Recent Initiatives in Conflict Resolution', (2003) 15 Journal of International Development at 246.
    • 112 Campbell, 'Ethnic Minorities and Development', (2004) 4 Ethnicities 5 at 12.
    • 113 The African Commission's Working Group of Experts on Indigenous Populations/ Communities reported that 'many African governments have tended to apply development paradigms focusing on assimilationist approaches designed to turn indigenous peoples into sedenterized crop cultivating farmers on the assumption that the ways of life of indigenous peoples have to change because they are 'primitive','backward','unproductive'and degrading to the environment.' See Report of the African Commission's Working Group of Experts on Indigenous Populations/Communities, 22 April 2005.
    • 114 Hitchcock, '''Hunting is Our Heritage'', The Struggle for Hunting and Gathering Rights among the San of Southern Africa', Paper presented at the 8th International Conference on Hunting and Gathering Societies, October 1998, Osaka, Japan.
    • 115 The Royal Proclamation, reprinted in Kennedy (ed.), Documents of the Canadian Constitution, 1759^1915 (Toronto: Oxford University Press, 1918) at 20.
    • 116 For example, see Treaty 3 between Her Majesty the Queen and the Saulteaux Tribe of the Ojibbeway Indians 1873, which provides: 'Her Majesty further agrees with her said Indians, that they, the said Indians, shall have the right to pursue their avocations of hunting and fishing throughout the tract surrendered.'
    • 117 See Miller, 'Native Rights: Indians Hunting and Fishing Rights', (1991) 21 Environmental Law 1291.
    • 130 Krakover, 'Urban Settlement Program and Land Dispute Resolution: The State of Israel Versus the Negev Bedouin', (1999) 47 GeoJournal 551.
    • 131 Menon,'International Boundaries ^ A Case Study of the Guyana-Surinam Boundary', (1978) 27 International and Comparative Law Quarterly 738 at 740. However, he notes that there were a few exceptions, for example, the Boro people of the west Amazon, the Maidu of California and the Vedda of Ceylon.
    • 132 See Brody, The Other Side of Eden, Hunter-Gatherers, Farmers and the Shaping of the World (London: Faber and Faber Ltd, 2001).
    • 133 As quoted in Sillanpa« a« , Impact of International Law on Indigenous Rights in Northern Europe (Ottawa: Indian and Northern Affairs Canada, 1992) at 6.
    • 134 East, 'Ethiopia-Somalia', in Day (ed.), Border and Territorial Disputes, 2nd edn (Harlow: Longman, 1987) at 114^6.
    • 135 As quoted by the International Court of Justice in Territorial Dispute (Libya v Chad), supra n. 44 at para. 53. For the historical background to this treaty, see Dadi, 'Me¤ moire du Gouvernement de la Re¤ publique du Tchad, Chapitre III', ibid.
    • 136 ILO Recommendation 104, supra n. 65 at para. 35.
    • 137 Jowitt, Dictionary of English Law, 1st edn (London: Sweet and Maxwell, 1959) at 279.
    • 138 For an overview on the situations of the Travellers, see Keane, 'International Law and the Ethnicity of Irish Travellers', (2005) 11 Washington and Lee Race and Ethnic Ancestry Law Journal 43.
    • 139 As regards Roma/Gypsy communities it is estimated that 20 to 40 percent of the Roma population in Europe retain a nomadic or semi-nomadic lifestyle, see Liegeois and Gheorghe, supra n. 16.
    • 140 For an overview of the situation of the Roma, see Pogany, 'Accomodating an Emergent National Identity: The Roma of Central and Eastern Europe', (1999) 6 International Journal on Minority and Group Rights 149.
    • 141 See Gilbert,'Still No Place to Go: Nomadic Peoples' Territorial Rights in Europe', (2004/2005) 4 European Yearbook on Minority Issues 141.
    • 142 See Council of Europe Parliamentary Assembly Recommendation 563 (1969) on the Situation of Gypsies and Other Travellers in Europe, 30 September 1969; Council of Europe Committee of Ministers Resolution (75) 13 on the Social Situation of Nomads in Europe, 22 May 1975; Council of Europe Committee of Ministers Recommendation No. R (83) 1 on Stateless Nomads and Nomads of Undetermined Nationality, 22 February 1983; and Standing Conference of Local and Regional Authorities of Europe Resolution 125 (1981) on the Role and Responsibility of Local and Regional Authorities in Regard to the Cultural and Social Problems of Populations of Nomadic Origin, 29 October 1981.
    • 143 Council of Europe Parliamentary Assembly Recommendation 1203 (1993) on Gypsies in Europe, 2 February 1993.
    • 144 Council of Europe European Commission Against Racism and Intolerance General Policy Recommendation No. 3: Combating Racism and Intolerance Against Roma/Gypsies, 6 March 1998, CRI (98) 29 rev.
    • 145 CERD, General Recomendation XXVII on Discrimination against Roma, 16 August 2000, HRI/GEN/1/Rev.7 at 224; 8 IHRR 310 (2001) at para. 32.
    • 146 Ibid. at para. 31.
    • 147 Concluding Observations of the Committee on the Elimination of Racial Discrimination: United Kingdom of Great Britain and Northern Ireland, 10 December 2003, CERD/C/63/CO/ 11 at para. 22.
    • 148 Concluding Observations of the Committee on the Elimination of Racial Discrimination: United Kingdom of Great Britain and Northern Ireland, 18 March 1996, CERD/C/304/Add.9 at para. 15.
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