070417 PARALLEL SOVEREIGNITY-Republic Of Lakotah

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SOVEREIGNTY REVISITED: INTERNATIONAL LAW and
PARALLEL SOVEREIGNTY of INDIGENOUS PEOPLES
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09 Lenzerini Publication 3/29/2007 1:43:55 PM
155
Sovereignty Revisited: International Law and
Parallel Sovereignty of Indigenous Peoples
FEDERICO LENZERINI
†
SUMMARY
I. INTRODUCTION: THE EVOLUTION OF THE CONCEPT OF SOVEREIGNTY
FROM POLITICAL THEORY TO INTERNATIONAL LAW ....................................156
II. SOVEREIGNTY, SELF-DETERMINATION OF PEOPLES, AND DEMOCRACY ....160
III. INDIGENOUS SOVEREIGNTY ..............................................................................163
IV. MAJOR POTENTIAL TITLES OF INDIGENOUS SOVEREIGNTY .........................166
A. Recognizing the Invalidity of the Original Title of Indigenous Lands
Occupation and of the Native Title’s Legal Significance.........................167
1. The relevant practice............................................................................167
2. The inadequacy of the recognition of the invalidity of the title of
terra nullius and of the legal significance of the Native Title, ex
se, as foundation of indigenous sovereignty......................................174
B. Delegation of Powers by the State..............................................................177
1. The practice of the delegation of sovereign powers by States in
international law...................................................................................177
2. The lack of relevant practice concerning the delegation of
sovereign powers by States to indigenous peoples...........................177
C. Rules of Customary International Law.....................................................180
1. The growing interest of international law for the protection of
the identity and the rights of indigenous peoples.............................180
2. The foundations of the existence of a norm of customary
international law concerning indigenous sovereignty ......................181
V. THE NATURE AND EXTENT OF INDIGENOUS SOVEREIGNTY UNDER
CUSTOMARY INTERNATIONAL LAW.................................................................183
VI. CONCLUSION .......................................................................................................183
† Ph.D., International Law, Researcher, University of Siena, Italy. This article is the revised version of a
paper presented at an international symposium on “A Modern Concept of Sovereignty: Perspectives from the
US and Europe,” jointly organized by the UT Law School and the University of Siena on 31 May-1 June 2004 in
Siena and on 14-16 April 2005 in Austin, TX.

156 TEXAS INTERNATIONAL LAW JOURNAL VOL. 42:155
I. INTRODUCTION: THE EVOLUTION OF THE CONCEPT OF
SOVEREIGNTY FROM POLITICAL THEORY TO INTERNATIONAL LAW
The controversial nature of the topic of indigenous sovereignty is inherent in its
very theorization, in that it constitutes a powerful challenge to the basic foundations
of international law. In order to properly understand whether and to what extent
such sovereignty actually exists within the framework of contemporary international
law, it is necessary to have a retrospective look at the evolution and development of
the concept of sovereignty in the modern world. Such preliminary investigation
serves the purpose of ascertaining whether the notion of sovereignty in international
law must be conceived in an absolute sense or, on the contrary, whether its scope is
subject to the influence of other competing values that could therefore represent the
foundations for asserting the existence of a given degree of indigenous sovereignty
parallel to the sovereign power held by the State.
At the time that the philosophy of sovereignty, in the modern sense of the term,
first developed it was certainly conceived as an absolute prerogative of the sovereign
entity. In Shakespeare’s Richard II, the former King of England, forced by Henry
IV to hand over his crown, is killed in prison by Sir Pierce of Exton, who thought
that it was Henry IV’s wish that Richard II be dead. When Sir Pierce of Exton
brings Richard II’s body before Henry IV, the new King bitterly blames the
murderer:
Exton, I thank thee not, for thou hast wrought
A deed of slander with thy fatal hand
Upon my head and this famous land.1
Then, he banishes him from the Kingdom:
With Cain go wander through shades of night,
And never show thy head by day nor light.2
The prophecy of disgrace incumbent upon Henry IV and England is a corollary of the
idea of the impossibility of destroying, even by assassination, the enduring nature of the
King, representing the mystical dignity and justice of sovereignty.3
The inherent dignity of
the King was above the earthly idea of life and death, and also above the law. The
conception of the sovereign power as the supreme entity, over the law and the life and death
of the subjects, was shared by most theorists and philosophers from the early modern times,
such as Nicolò Machiavelli, Jean Bodin, and Thomas Hobbes, although such an idea was
often the result of considerations of realpolitik rather than of supernaturalism-based
thoughts. In the words of Machiavelli:
1. WILLIAM SHAKESPEARE, RICHARD II act 5, sc. 6 (John Dover Wilson ed., Cambridge Univ. Press
1961) (1597).
2. Id.
3. See ERNST HARTWIG KANTORWICZ, THE KING’S TWO BODIES: A STUDY IN MEDIEVAL
POLITICAL THEOLOGY 405-09 (Princeton University Press 1997) (1957); see also Dan Philpott,
Sovereignty, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY para. 1 (Edward N. Zalta ed., 2003)
(explaining the enduring nature of political entities), http://plato.stanford.edu/entries/sovereignty (last
visited Oct. 6, 2006).

2006 SOVEREIGNTY REVISITED 157
Those who have been present at any deliberative assemblies of men will have
observed how erroneous their opinions often are; and in fact, unless they are
directed by superior men, they are apt to be contrary to all reason.4
. . . .
The only way to establish any kind of order there is to found a monarchical
government; for where the body of the people is so thoroughly corrupt that the
laws are powerless for restraint, it becomes necessary to establish some
superior power which with a royal hand, and with full and absolute powers,
may put a curb upon the excessive ambition and corruption of the powerful.5
In sum, it was just the public interest that required an absolute type of sovereignty,
which justified the use, by the prince, of any kind of instrument, irrespective of its
moral implications, including force (“the stick”), bribery, or deceit.
From these premises, the objective idea of sovereignty that emerged in early
modern Europe was of a power concentrated in the hands of an authority bundled
into a single entity, which governed a collectivity unified by the sharing of a single
set of interests and confined within territorial borders. The sovereign authority held
supremacy in the collective interest.6
When Europe came out of the Medieval darkness (politically speaking), the
internal absoluteness of sovereignty was not yet reflected in its external dimension.
In particular, the Holy Roman Empire retained a nearly exclusive power over
religious matters, and this allowed the Pope to interfere in the internal affairs of
independent “sovereign” States. The transition from the “vertical” structure—
headed by the Pope and the Holy Roman Empire—to the “horizontal” structure of
independent sovereign States—which in principle were equal in authority and legal
legitimacy—was consolidated in 1648 with the Peace of Westphalia (ending the
Thirty Years’ War in Europe), which introduced the so-called Westphalian
sovereignty. A number of States acquired uncontested independence, no longer the
subject of interferences from the Holy Roman Empire; the authority of princes and
kings over religion, with regard to the territories subjected to their sovereignty, was
definitely established.7
The principle of non-interference by any sovereign power in
the territorial affairs of other States became the main uncontested rule that
governed the system of international relations, and the authority of kings and princes
over their respective territories became “supreme.”
This evolution resulted in a concept of sovereignty that may be defined as
“supreme authority within a territory.”8
The first element of this definition is
“authority,” which has been defined by the philosopher R. P. Wolff as “the right to
command and correlatively the right to be obeyed”;9
the term “right” is central to
the definition since it indicates the legitimacy of sovereignty—founded on some
4. NICCOLO MACHIAVELLI, THE PRINCE & THE DISCOURSES 354 (Christian E. Detmold trans., A.S.
Barnes & Co., Inc. 1940) (1882).
5. Id. at 255.
6. See Philpott, supra note 3, para. 1.
7. Id. para. 2.
8. Id. para. 1 (emphasis omitted).
9. Robert Paul Wolff, The Conflict Between Authority and Autonomy, in AUTHORITY (Joseph Raz
ed., 1990).

legitimate basis.10
The second component of the concept is that “authority” is
“supreme,” in the sense that the sovereign power is superior to any other authority
which, to whatever extent, exercises governing functions over the territory
concerned;11
in a federal State, for example, the central government, identified in the
constitution of the federation, is superior to the governments of any “sub-State,”
which is part of the federation itself. Finally, a sovereign authority needs a territory,
delineated by political borders, over which it has the right of exercising its supreme
powers. Seen in these terms, sovereignty appears as having an absolute character,
characterized by the fact that no external entity may, in principle, interfere with its
exercise. The world is thus composed by a number of sovereign entities that have
absolute dominion within their territorial borders, all of these sovereign entities
being in a relationship of parallel equality with each other. In other words, they all
possess an identical set of sovereign features, and the sovereign powers belonging to
each of such entities stop exactly where the sovereign powers of another begin. This
is the so-called chunk theory of sovereignty, according to which sovereignty may only
be possessed “in full or not at all,” being represented as a monolithic chunk of
identical stones, any one of which is possessed by a sovereign entity.12
From the standpoint of international law, the translation of this theory into
practical terms shows the connection between the concept of sovereignty, at least in
its strict and narrowest sense, with the notion of constitutional or legal
independence. Etymologically speaking, one entity is independent when it is not
dependent on any other authority. In this context, the element of the territory is of
particular relevance since, according to international law, independence is linked to
a territorial area. It thus exists when the sovereign entity is able, at least to a
satisfactory extent, to freely dispose of its own territory without external
interferences; a sovereign power must have a government of its own, one not subject
to the control of another governmental body. In principle, in contemporary
international law, the entity which meets the necessary conditions for sovereignty is
the State. As a consequence, although the concept of sovereignty is to be
distinguished from the related concept of statehood, it is in fact strictly related to the
existence of a State. The other sovereign entities different from States (this latter
term being conceived in a strict sense), existing in the framework of contemporary
international law (like the European Union), derive from States and are the result of
a voluntary and conscious delegation of powers by States themselves. The
conception of sovereignty as a prerogative of States as independent entities enjoying
political dominion over a territorial area is clearly expressed by article 2 paragraph 4
of the Charter of the United Nations, which bans the threat or use of force “against
the territorial integrity or political independence of any state.”13
Having said this, the fact that the “sovereign equality” of States, which, in terms
of legal theory, is a corollary of the principle of sovereignty itself,14
exists only in
principle, since the degree of independence exercised by States varies greatly in
10. See Philpott, supra note 3, para. 1.
11. Id.
12. MICHAEL ROSS FOWLER & JULIE MARIE BUNCK, LAW, POWER, AND THE SOVEREIGN STATE:
THE EVOLUTION AND APPLICATION OF THE CONCEPT OF SOVEREIGNTY 64 (1995) (quoting INIS L.
CLAUDE, JR., NATIONAL MINORITIES: AN INTERNATIONAL PROBLEM 32 (1955)).
13. U.N. CHARTER art. 2, para. 4.
14. John H. Jackson, Sovereignty-Modern: A New Approach to an Outdated Concept, 97 AM. J. INT’L
L. 782 (2003) (noting that equality among nations solidifies the notion of sovereignty).

reality. It is necessary to emphasize that even for the most powerful States in the
world sovereignty is not absolute. For instance, a number of States have definitively
delegated a wide range of powers to other entities, as has happened with the
European Union. Thus, the so-called basket theory of sovereignty appears as much
more coherent to the concrete reality existing in the real world than the chunk
theory.15
According to the basket theory, sovereignty is to be seen “in variable
terms, as a basket of attributes and corresponding rights and duties.”16
Any
sovereign entity owns a basket, but the content of the different baskets varies
considerably; certain sovereign entities have baskets with many more attributes of
sovereignty than others, and as a result, entities possessing more of these attributes
have a higher degree of independence.
In addition, the extent of State sovereignty has been progressively
circumscribed by the evolution of international law, which, through freeing itself
from its original character as a corpus juridicum composed exclusively of norms
reflecting reciprocal concessions made by States vis-à-vis other governments with the
purpose of satisfying shared individual interests, has increasingly permeated the area
of State domestic jurisdiction for the safeguarding of values of universal relevance,
corresponding to interests shared by the international community as a whole. This
has resulted in a global context in which State sovereignty is constrained by a
number of international principles, in particular those concerning the prohibition of
the use of force, the delimitation of the special sphere of powers, the obligations
concerning the treatment of aliens, the protection of human rights and, more
recently, the protection of the environment and of cultural heritage, and is thus
limited in its scope.17
Although the beginning of such evolution of international law
is commonly traced back to the end of World War II, as a reaction to the awful
crimes committed during that tragic conflict, it actually began in the early nineteenth
century (with Emmerich de Vattel’s The Law of Nations) when some scholars felt
that the concept of sovereignty could no longer be thought of in absolute terms,
recognizing that a “sovereign” could be under the authority (de jure or de facto) of
another greater sovereign without losing its own “sovereignty.”18
In addition, since
the first half of the twentieth century, a number of scholars, conceiving the term
“State” in a broad sense, theorized the distinction between “sovereign” (i.e.
“independent”) and “semi-sovereign” (i.e., “dependent”) States, both possessing,
although to a different extent, the attributes of sovereignty.19
As a result of the previous considerations, it appears that, from the perspective
of international law, it is no longer appropriate to refer to sovereignty as supreme
authority within a territory, but rather as territorial independence subject to no legal
15. FOWLER & BUNCK, supra note 12, at 72-73.
16. Id. at 70.
17. See, e.g., Kofi Annan, Two Concepts of Sovereignty, THE ECONOMIST, Sept. 18, 1999 (“State
sovereignty, in its most basic sense, is being redefined—not least by the forces of globalization and
international co-operation.”).
18. U.N. ECOSOC, Comm. on Hum. Rts., Sub-Comm. on the Promotion and Protection of Hum.
Rts., Final Report of the Special Rapporteur: Indigenous Peoples’ Permanent Sovereignty over Natural
Resources, 19, U.N. Doc. E/CN.4/Sub.2/2004/30 (July 13, 2004) (prepared by Erica-Irene A. Daes) (quoting
EMMERICH DE VATTEL, THE LAW OF NATIONS 60 (American ed. 1805)).
19. See 1 GREEN HAYWORD HACKWORTH, DIGEST OF INTERNATIONAL LAW §§ 10-11 (1940) (noting
the difference between a state and a nation and the sub-categorization of states as “sovereign,”
“independent,” “dependent,” or “semi-sovereign”).

constraints except those imposed by international law. In this regard, it is evident
that the actual extent of such independence depends on the degree and the scope of
the constraints imposed on any sovereign entity by international law.
II. SOVEREIGNTY, SELF-DETERMINATION OF PEOPLES, AND
DEMOCRACY
The evolution of international law that has taken place in the last decades has
led not only to the restriction of the scope of State sovereignty, but also to the
conditioning of its constitutive elements, particularly its legitimacy. While it may be
argued that, until the second half of the twentieth century, the legitimacy of
sovereignty was ipso facto inherent in the reality of an effective power over a
territory and a community of people, in more recent times this situation has slightly
changed due to the development of a movement, still in fieri at present, pursuing the
idea that to be legitimate, sovereignty must be representative of the people living in
the territory upon which it extends its scope.
Under traditional international law, the forms of sovereignty and its ways of
management were part of the domestic jurisdiction of States. As a consequence, the
idea of sovereignty that developed in the early modern times,20
as well as its practical
applications (including dictatorial governments), were in no way inconsistent with
international law, for the simple reason that it was not a matter that international
law could interfere with. This notwithstanding, since the eighteenth century, the
philosophy of sovereignty was progressively modified, with the rising of popular
movements aimed at freeing peoples from the domination of despotic governments.
For example, article 3 of the Declaration of the Rights of Men and of the Citizen,
approved by the National Assembly of France on August 26, 1789, solemnly
declared that “[l]e principe de toute souveraineté réside essentiellement dans la
Nation. Nul corps, nul individu ne peut exercer d’autorité qui n’en émane
expressément.”21
Also more solemnly, the U.S. Declaration of Independence of July
4, 1776 had previously considered the principle of democracy as originating from the
“Laws of Nature” and by God Himself.22
Legally speaking, for nearly two centuries, the relevance of these proclamations
remained limited in scope to the States concerned, although they operated as sparks
for the rising of revolutionary movements pursuing the idea of democracy in
20. See HACKWORTH, supra note 19, § 1.
21. “The principle of all sovereignty resides essentially in the nation. No body nor individual may
exercise any authority which does not proceed directly from the nation.” DÉCLARATION DES DROITS DE
L'HOMME ET DU CITOYEN [DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN] art. 3 (France
1789), translation available at http://www.hrcr.org/docs/frenchdec.html.
22. “When in the Course of human events, it becomes necessary for one people to dissolve the
political bands which have connected them with another, and to assume among the powers of the earth, the
separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect
to the opinions of mankind requires that they should declare the causes which impel them to the
separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed
by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of
Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just
powers from the consent of the governed, --That whenever any Form of Government becomes destructive
of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying
its foundation on such principles and organizing its powers in such form, as to them shall seem most likely
to effect their Safety and Happiness.” THE DECLARATION OF INDEPENDENCE para. 1-2 (U.S. 1776).

different countries. Starting in the 1950s, the practice of the United Nations led to
the evolution of the principle of self-determination of peoples, already proclaimed
by article 1 paragraph 2 and article 55 of the U.N. Charter, towards a principle of
customary international law granting the right of independence to any people
subjected to foreign colonial domination. Such a principle, at least in its external
sense, exhausts its relevance to the situations of forcibly imposed foreign occupation,
without supporting the secessionist aspirations of minorities or ethnically-distinct
groups or meaning that any government of the world must be the expression of the
majority of its population. Thus, at present, it may not yet be maintained that a
principle of general international law establishing that any sovereign power must be
founded on democracy actually exists, since a number of non-democratic
governments still exist in the world and are tolerated by the international
community. This notwithstanding, it may not be sustained that international law is
totally unconcerned with this matter. Leaving aside the recent proclamations aimed
at justifying the violation of the sovereignty of others by using armed force with the
need of “exporting democracy,” the element of democracy is now part of the
dialogue among States (not only within the framework of developed countries) to a
progressively growing extent, so as to raise some doubts of the international legality
of certain particularly oppressive forms of government. At the declarative level, the
principle of democracy was, for example, proclaimed in 1990 by the final document
of the Copenhagen Meeting of the Conference on the Human Dimension of the
Conference on Security and Co-operation in Europe (CSCE) (representing thirty-
four countries, including the USSR, plus the Holy See), which recognized, among
other things, that
pluralistic democracy and the rule of law are essential for ensuring respect
for all human rights and fundamental freedoms, the development of
human contacts and the resolution of other issues of a related
humanitarian character [and welcomed] the commitment expressed by all
participating States to the ideals of democracy and political pluralism as
well as their common determination to build democratic societies based on
free elections and the rule of law.23
More recently, with the Warsaw Declaration of June 27, 2000, the “Community
of Democracies,” representing 106 States from all the different geographic, political,
and cultural areas of the world, agreed to respect and uphold some core democratic
principles and practices, including the rule that “[t]he will of the people shall be the
basis of the authority of government, as expressed by exercise of the right and civic
duties of citizens to choose their representatives through regular, free and fair
elections with universal and equal suffrage . . . .”24
The fact that the principle of democracy is pursued not solely by Western
countries is also demonstrated by other relevant international instruments, although
not binding per se, adopted at the regional level. For example, the Charter of the
Organization of American States (OAS) identifies the aim of “promot[ing] and
consolidat[ing] representative democracy” as one of the “essential purposes” of the
23. Conference on Security and Co-Operation in Europe: Document of the Copenhagen Meeting of
the Conference of the Human Dimension, June 29, 1990, 29 I.L.M. 1305, 1306.
24. Final Warsaw Declaration: Towards a Community of Democracies, June 27, 2000, 39 I.L.M. 1306.

Organization.25
Also at the OAS level, the Inter-American Democratic Charter
solemnly states that “[t]he peoples of the Americas have a right to democracy and
their governments have an obligation to promote and defend it.”26
Similarly, the 2004 Dar-Es-Salaam Declaration on Peace, Security, Democracy
and Development in the Great Lakes Region, adopted under the auspices of the
United Nations and the African Union, emphasizes the “need to respect democracy
and good governance”27
and to develop “a regional and inclusive vision for the
promotion of sustainable peace, security, democracy and development.”28
At the EU level, virtually all agreements concluded by the European
Community (EC) with developing countries are characterized by non-reciprocal
trade preferences. These preferences are granted with the aim of promoting the
social and economic development of the developing countries, and contain a “clause
of democracy” conditioning the implementation of the agreements by the EC on the
respect for the principle of democracy by the developing State.
Furthermore, for the purpose of the present analysis it is of paramount
importance that the right “to take part in the government of [one’s own] country,
directly or through freely chosen representatives” is included among fundamental
human rights by nearly all pertinent international instruments.29
Such a right, as
pointed out by the Universal Declaration of Human Rights, becomes effective when
[t]he will of the people [is] the basis of the authority of government; this
will [is to] be expressed in periodic and genuine elections which [must] be
by universal and equal suffrage and [must] be held by secret vote or by
equivalent free voting procedures.30
In the light of the preceding observations, it appears that the question of
whether a government is democratic or dictatorial is no longer a matter laying
“essentially within the domestic jurisdiction of any state,”31
and that, a fortiori,
although an international rule proclaiming the obligation for governments to be
founded on the free choice of their citizens does not yet exist ex se, the absolute
denial of any kind of democratic participation of the citizens in the life of the country
is no longer being tolerated by the international community. It is not just a problem
of democracy in a strict sense, but it is a matter that also invades the realm of
fundamental rights. The 2005 elections in Iraq, with the Iraqi people risking their
lives under the bullets of the rebels just for the opportunity to exercise their right to
vote,32
demonstrated how the right to participate in the choice of their own
government is perceived as fundamental by all the peoples of the world.
25. Protocol of Amendment to the Charter of the Organization of American States art. 2(b), Dec. 14,
1992, 33 I.L.M. 987, 989, available at http://www.oas.org/juridico/english/charter.html.
26. Organization of American States, Inter-American Democratic Charter art. 1, Sept. 11, 2001, 40
I.L.M. 1289, 1290, available at http://www.oas.org/OASpage/eng/Documents/Democratic_Charter.htm.
27. Dar-Es-Salaam Declaration on Peace, Security, Democracy and Development in the Great Lakes
Region, para. 4, Nov. 19-20, 2004, available at
http://www.icglr.org/common/docs/docs_repository/declarationdar-es-salaam.pdf.
28. Id. para. 13.
29. Universal Declaration of Human Rights, U.N. GAOR, 3d Sess., pt. 1, at 75, U.N. Doc. A/810
(1948), available at http://www.unhchr.ch/udhr/lang/eng.pdf.
30. Id. art. 21(3).
31. U.N. CHARTER art. 2, para. 7.
32. See Paul Wood, Courage and Euphoria as Iraq votes, BBC NEWS, Jan. 31, 2005, available at

III. INDIGENOUS SOVEREIGNTY
The observations developed in the previous sections serve primarily to define
the general context in light of which claims for “indigenous sovereignty,”
increasingly being raised in present times, are to be evaluated. This survey generally
indicated that sovereignty is commonly understood as an attribute of statehood, as a
result of the very nature of international law, which, having been created by Western
States, is mainly an expression of their interests and conceptions. If one looks at the
whole matter from a “conservative” perspective, one will conclude that, in principle,
this depiction of sovereignty has not significantly changed in the present times,
despite the development of certain principles, such as the self-determination of
peoples, which have only been capable of giving rise to specific exceptions to the
principle of sovereignty applicable solely to well-defined and limited circumstances
(i.e., in the event of colonial foreign domination). The contemporary international
legal order thus appears particularly impervious to claims, like those of indigenous
peoples, which threaten to disrupt the unfettered exercise of State sovereignty.
33
At
the same time, the international community is progressively recognizing the legal
relevance of a number of values (including the right of people to participate in the
government) that actually erode the traditional idea of sovereignty as the
unconditioned prerogative of the State.
In addition, an objective assessment of the inherent characters of most
indigenous nations34
demonstrates that they possess the qualities necessary for
qualifying an entity as a State according to international law, as defined by scholars35
and relevant practice:36
a) a permanent population; b) a defined territory; c)
government; and d) capacity to enter into relations with the other States (i.e.,
independence).37
There is no doubt that most indigenous peoples have always
retained permanent populations and, at the time of their defeat, controlled a defined
territory. With regard to the second requirement, the fact that the frontiers of their
respective territories were often not precisely defined does not preclude that
http://news.bbc.co.uk/1/hi/world/middle_east/4224435.stm.
33. See Dianne Otto, A Question of Law or Politics? Indigenous Claims to Sovereignty in Australia, 21
SYRACUSE J. INT’L L. & COM. 65, 79 (1995).
34. In the present work, “indigenous peoples” are treated as a unified legal category, although the
different indigenous communities existing in the world are characterized by remarkable differences which
may require that all general conclusions concerning the general category of “indigenous peoples” being
adapted to the specific peculiarities of each community concerned. As noted by Benedict Kingsbury, the
concept of “indigenous peoples” as a global concept “is . . . of great normative power for many relatively
powerless groups that have suffered grievous abuses, and it bears the imprimatur of representatives of
many such groups who are themselves shaping it while being shaped by it.” Benedict Kingsbury,
“Indigenous Peoples” in International Law: A Constructivist Approach to the Asian Controversy, 92 AM. J.
INT’L L. 414, 415 (1998). In addition, in principle the conclusions which will be drawn in the present work
are of a general character and thus applicable to most indigenous communities, provided that they are
adapted to the peculiarities of each group concerned when translated into concrete action in the real world.
35. See, e.g., HACKWORTH, supra note 19, at 47 (“[T]he term state . . . connotes, in the international
sense, a people permanently occupying a fixed territory, bound together by common laws and customs into
a body politic, possessing an organized government, and capable of conducting relations with other
states.”) But see IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 70-72 (6th ed. 2003).
36. See Convention on Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, available at
http://www.yale.edu/lawweb/avalon/intdip/interam/intam03.htm.
37. John Howard Clinebell & Jim Thomson, Sovereignty and Self-Determination: The Rights of Native
Americans under International Law, 27 BUFF. L. REV. 669, 673-79 (1978).

requirement from being satisfied, provided that they had a defined political
community.38
Some doubts could be raised with regard to nomadic tribes or peoples,
on account of their lack of a stable and “defined territory.”39
However, the concept
of statehood is to be contextualized at the time which is relevant with respect to
establishing whether a given entity could be considered as sovereign when it was
occupied by foreign invaders. In the case of the tribes inhabiting the Western
Sahara, the International Court of Justice (ICJ) emphasized that “sovereignty was
not generally considered as effected through occupation, but through agreements
concluded with local rulers.”40
This can be applied to most indigenous peoples at the
time when they were defeated by foreign settlers. Under this perspective, even
those indigenous peoples that were nomadic at the time of the occupation of their
own lands by foreign colonizers could meet the necessary requirements for being
considered “States” according to international law applicable at the relevant time.
In addition, the third criterion of statehood was certainly possessed by most
indigenous peoples as long as they retained control on their lands, as has been
confirmed by the ICJ in the Western Sahara case, although they used “schemes” of
government not recognized as such by the European settlers at the relevant time.41
Finally, their independence, i.e., their ability to enter into relations with other States,
is demonstrated by the myriad of treaties concluded by such peoples with other
sovereign States.42
However, it was on account of the presumed lack of sovereignty of indigenous
peoples over the lands traditionally occupied by them that, at the time that the
European colonizers placed their feet on the new lands the doctrine of discovery was
developed, based on the fictional status of terra nullius (i.e., owned by no one, free of
any internationally-recognizable legal authority), used for justifying in “legal” terms
the legitimacy of the occupation of the territories newly discovered. Such legitimacy
was sanctified by the Pope Alexander VI in the Bull Inter Caetera of May 3, 1493,
which recognized Spain’s sovereignty over all territories discovered after Christmas
1492 that were located West of an imaginary line drawn through the Atlantic Ocean
from the Artic Pole to the Antarctic Pole (to be distant one hundred leagues towards
the west and south from the Azores and Cape Verde), while granting Portugal
sovereignty upon whatever it discovered in Africa.43
38. BROWNLIE, supra note 35, at 71.
39. See 1 CHARLES CHENEY HYDE, INTERNATIONAL LAW CHIEFLY AS INTERPRETED AND APPLIED
BY THE UNITED STATES 16 (1922).
40. Western Sahara Advisory Opinion, 1975 I.C.J. 18, para. 80 (Oct. 17).
41. Id. para. 81.
42. Clinebell & Thomson, supra note 37, at 676-77.
43. “Among other works well pleasing to the Divine Majesty and cherished of our heart, this
assuredly ranks highest, that in our times especially the Catholic faith and the Christian religion be exalted
and be everywhere increased and spread, that the health of souls be cared for and that barbarous nations
be overthrown and brought to the faith itself . . . [Y]ou [sic] purpose also, as is your duty, to lead the
peoples dwelling in those islands and countries to embrace the Christian religion . . . [W]e . . . by the
authority of Almighty God conferred upon us . . . give, grant, and assign forever to you and your heirs and
successors, kings of Castile and Leon, forever, together with all their dominions, cities, camps, places, and
villages, and all rights, jurisdictions, and appurtenances, all islands and mainlands found and to be found,
discovered and to be discovered towards the west and south, by drawing and establishing a line from the
Arctic pole, namely the north, to the Antarctic pole . . . .” The Bull Inter Caetera of 1493, available at
http://www.dlncoalition.org/related_issues/inter_caetera.htm (English translation); see also Peter d’Errico,
Inaugural Lecture in the American Indian Civics Project at Humboldt State University, American Indian
Sovereignty: Now You See It, Now You Don’t (Oct. 24, 1997), available at
http://www.nativeweb.org/pages/legal/sovereignty.html.

The fiction of terra nullius continued to be applied for a number of centuries,
until the end of the geographic discoveries, allowing the Europeans to colonize all
the newly discovered worlds. The only significant exception, at least in principle, to
such kind of practice was represented by the Treaty of Waitangi, which was signed
on February 6, 1840, in New Zealand between the chiefs of the Confederation of the
United Tribes of New Zealand and other Maori tribal leaders on one side and the
British Crown on the other side.44
Although the correct interpretation of the Treaty
has always been debated on account of the different meaning of the terms used in
the English version and in the Maori translation, the main content of the treaty may
be summarized as follows: the first article grants the Queen of the United Kingdom
“governorship” (kawanatanga) over New Zealand, while, according to the second,
the Maori chiefs retain rangatiratanga, which literally means “chieftainship,” but in
the light of the concrete meaning assigned to it by the Maori it may also mean
“absolute sovereignty,” “self-determination” or, to a certain extent,
“independence.”
45
In any event, it embraces the spiritual link the Maori have with
Papatuanuku (Earthmother or Mother Earth), and recognizes a certain degree of
Maori sovereignty over their ancestral lands.
Nowadays, the starting point of claims for indigenous sovereignty lies exactly in
the fact that indigenous peoples were, at the relevant time, illegitimately deprived of
the lands ancestrally occupied and governed by them as entities actually owning the
attributes of sovereignty pursuant to international law. The original perception that
such lands were to be considered as freely occupiable has in fact significantly
changed in more recent times.46
The fact that, for example, Native American tribes
were sovereign over their territories when they were subjugated by the Europeans
was already recognized in the early nineteenth century by Chief Justice Marshall of
the U.S. Supreme Court, in Johnson v. M’Intosh, by affirming that, at the time that it
was discovered by Columbus,
North America . . . was held, occupied, and possessed, in full sovereignty,
by various independent tribes or nations of Indians, who were the
sovereigns of their respective portions of the territory, and the absolute
owners and proprietors of the soil; and who neither acknowledged nor
owed any allegiance or obedience to any European sovereign or state
whatever.
47
Today, the concept of “indigenous sovereignty” (i.e., “tribal sovereignty”) is
generally meant as self-government (which may be considered as equivalent to
“internal self-determination”), the extent of which varies in the different States but,
in any event, would never be so wide as to override the supreme sovereign powers of
the national government. In other words, any “sovereign” prerogative recognized to
44. Treaty of Waitangi (N.Z. 1840), available at http://www.treatyofwaitangi.govt.nz/treaty.
45. Salmon, John et al, Te Tino Rangatiratanga, presented to the Methodist Church Council (May
1990).
46. The actual possession of sovereign powers by the native tribes of the Americas was already
recognized by the majority of scholars in the late nineteenth and early twentieth centuries. See, e.g.,
Clinebell and Thomson, supra note 37, at 680-81.
47. Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 545 (1823); Larry Sager, Rediscovering America:
Recognizing the Sovereignty of Native American Indian Nations, 76 U. DET. MERCY L. REV. 745, 746
(1999).

indigenous peoples would always be subjected to the control of the territorial State,
which may constantly limit or condition, pursuant to its own relevant constitutional
or legislative rules, the effective exercise of such prerogatives. The notion of
“indigenous sovereignty” is strictly linked to that of “aboriginal title,” which focuses
on the ownership by indigenous peoples of the lands occupied by them before the
arrival of foreign settlers. The latter concept is based on the assumption that when a
colonizing power has acquired sovereignty over a land belonging to indigenous
peoples, it would only mean that such power has gained the imperium (right to
govern), but not the dominium (ownership right), over such land.48
Such dominion
would be retained by the indigenous communities concerned unless “expressly
extinguished by statute or by voluntary sale or cession.”49
The fact that the title in point may be extinguished by statute means that it may
be unilaterally extinguished by the State. This observation may apparently be
extended to indigenous sovereignty in general, in the sense that, up to the present,
its effective enjoyment has been generally based on the determination of the
government of the State in which the indigenous communities concerned are located,
with the implication that the government could always withdraw any sovereign
prerogative to those communities.
The main purpose of the following sections is to ascertain whether this
apparently unconditional freedom of national governments to determine the scope
of indigenous sovereignty (inclusive of the power to absolutely deny any sovereign
prerogative to indigenous peoples) is today limited by international law, on account
of the most recent developments achieved by such law in the fields of human and
peoples’ rights and of relevant State practice. In other words, does international law,
and to what extent, support the legitimate aspiration of indigenous peoples “to
choose what their future will be,” as indigenous sovereignty has been efficaciously
summarized by a scholar?50
IV. MAJOR POTENTIAL TITLES OF INDIGENOUS SOVEREIGNTY
In light of the identification of the elements of the concept of sovereignty and
of the principles which may interfere with the determination of the extent of this
concept, summarily made in the previous sections, it is now possible to try to
ascertain what potential legal titles may be invoked for maintaining the existence of
sovereignty rights belonging to indigenous peoples under international law.
At a preliminary stage, it is necessary to emphasize that, according to the
notion of sovereignty followed in the present work, sovereignty of indigenous
peoples may only exist if, and to the extent that international law binds States, to
grant them the exercise of certain sovereign powers that indigenous peoples
themselves are in principle entitled to claim and possibly enforce, to whatever
extent, at the international level. The degree of indigenous sovereignty corresponds
to the scope that such sovereign powers, if existing, are protected by international
48. Cathy Marr, Robin Hodge & Ben White, Crown Laws, Policies, and Practices in Relation to Flora
and Fauna, 1840 – 1912, at 69 (Waitangi Tribunal 2001), available at http://www.waitangi-
tribunal.govt.nz/doclibrary/public/wai262/crownlawspolicies/Prelims.pdf.
49. Id.
50. See Robert B. Porter, The Meaning of Indigenous Nation Sovereignty, 34 ARIZ. ST. L.J. 75, 75
(2002).

law, in that it prevents States from having the opportunity of legally interfering with
their exercise, which is thus not subject to the decisional power of the territorial
government. In other words, States would not be able to condition the autonomy,
although limited, of indigenous peoples, by relying on their domestic law, and would
thus be compelled to respect the degree of sovereignty granted to them by
international law without interfering with its exercise. In the event, and to the extent
that, it exists, such kind of sovereignty would be parallel to that held by the
territorial State, in the sense that it could not invade the competences of the latter
which, for its part, could not inhibit indigenous peoples from enjoying their
sovereign powers as recognized by international law.
A. Recognizing the Invalidity of the Original Title of Indigenous Lands Occupation
and of the Native Title’s Legal Significance
1. The relevant practice
The “original sin” which led to the “occupation” by foreign settlers of the
ancestral lands of indigenous peoples lies, as previously emphasized, within the
fiction of terra nullius. At the time of the discovery and occupation of those lands,
the European colonizers claimed the legality of their conduct on the basis of the
alleged fact that no legal organization existed which governed such territories.
51
As
previously noted, this fiction was continued for a number of centuries, but in recent
times its legality has been strongly challenged, and eventually, denied.
At the international level, the invalidity of the principle of terra nullius has been
proclaimed by the ICJ in its 1975 Advisory Opinion on the Western Sahara, stating
that at the time of colonization by Spain the territory was not a land belonging to no
one, since it “was inhabited by peoples which, if nomadic, were socially and
politically organized in tribes and under chiefs competent to represent them.”52
It is
indisputable that at the time of the European occupation of the lands ancestrally
belonging to indigenous peoples virtually all these peoples were politically organized
in the sense explained by the ICJ.
A similar doctrine has been developed at the domestic level by most States
where indigenous communities live. In the United States, for example, the original
title of sovereignty of indigenous peoples has been recognized since the first half of
the nineteenth century, with the historical findings of Chief Justice John Marshall of
the United States Supreme Court.53
In the two historical cases Cherokee Nation v.
Georgia and Worcester v. Georgia, Chief Justice Marshall introduced a narrative of
the Indian tribes as nations, although “domestic dependent nations,” clearly denying
that their traditional lands were nullius at the time of their occupation by the
51. On the fiction of terra nullius and other related concepts under an historical perspective, see S.
JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW, 29-31 (2d ed. 2004).
52. Western Sahara Advisory Opinion, supra note 40, para. 81. In stating such a principle, the Court
finally endorsed what had been maintained for centuries by the most eminent international law writers,
including Francisco de Vitoria and Ugo Grotius. See T. W. Bennett & C.H. Powell, Aboriginal Title in
South Africa Revisited, 15 S. AFR. J. HUM. RTS. 449, 455-56 (1999).
53. See Cherokee Nation v. Georgia, 30 U.S. 1 (1831); see also Worcester v. Georgia, 31 U.S. 515
(1832).

Europeans.54
In the words of Justice Marshall, those nations had been admitted by
the U.S. Constitution “among those powers who are capable of making treaties . . .
We have applied [the words ‘treaty’ and ‘nation’] to Indians, as we have applied
them to the other nations of the earth. They are applied to all in the same sense.”55
From this sentence it appears the Indian nations had sovereign rights
comparable to those owned by foreign States. Nevertheless, the fact that the native
peoples were recognized as “domestic dependent nations” implied that they were
permanently subordinated to Congress as a matter of American law and that, as the
majority of the Court held, “an Indian tribe or nation within the United States is not
a foreign state in the sense of the constitution, and cannot maintain an action in the
courts of the United States.”56
In more recent times, the Supreme Court explicitly recognized that “[b]efore
the coming of the Europeans, the tribes were self-governing sovereign political
communities,”57
and their powers are, in principle, “inherent powers of a limited
sovereignty which has never been extinguished,”58
although they are “no longer
‘possessed of the full attributes of sovereignty.’”59
Thus, in the words of the Supreme
Court,
[the] incorporation [of Indian tribes] within the territory of the United
States, and their acceptance of its protection, necessarily divested them of
some aspects of the sovereignty which they had previously exercised . . . .
In sum, Indian tribes still possess those aspects of sovereignty not
withdrawn by treaty or statute, or by implication as a necessary result of
their dependent status.60
These findings have been ultimately confirmed in the recent case of United
States v. Lara, when the Court defined the power of Indian tribes over their land and
people as “inherent sovereignty.”61
According to Justice Stevens, this is based on the
circumstance that such tribes “governed territory on this continent long before
Columbus arrived.”62
But the Court was very careful in confirming that Congress
has “plenary and exclusive powers over Indian affairs . . . .”63
In concrete terms, the
sovereign prerogatives of Indian nations entail, “in addition to the power to punish
tribal offenders, the . . . inherent power to determine tribal membership, to regulate
domestic relations among members, and to prescribe rules of inheritance for
members”;64
that is, the power of legislating with regard to the matters of tribal
competence and the corresponding authority to enforce respect of the relevant rules
within their jurisdictional limits, through the use of the means typical of any
54. Cherokee Nation, 30 U.S. at 17; Worcester, 31 U.S. at 559-60.
55. Worcester, 31 U.S. at 559-60. Justice Marshall found the theoretical foundation of indigenous
sovereignty in the fact that “a weaker power does not surrender its independence—its right to self-
government, by associating with a stronger, and taking its protection.” Id. at 561.
56. Cherokee Nation, 30 U.S. at 20.
57. United States v. Wheeler, 435 U.S. 313, 322-23 (1978).
58. Id. at 322 (quoting F. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 122 (1945)).
59. Id. at 323 (quoting U.S. v. Kagama, 118 U.S. 375, 381 (1886)).
60. Id.
61. U.S. v. Lara, 541 U.S. 193, 210 (2004).
62. Id.
63. Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U.S. 463, 470 (1979).
64. Montana v. United States, 450 U.S. 544, 564 (1981).

governmental authority, including tribal courts (existing since 1883). Although such
courts do not have full jurisdiction over non-Indians,65
they may exercise civil
authority over non-members within tribal lands to the extent necessary to protect
health, welfare, economic interests, or political integrity of the tribal nation.66
In
addition, as stated by the U.S. Supreme Court in 1990, they “possess their traditional
and undisputed power to exclude persons who they deem to be undesirable from
tribal lands . . . . Where jurisdiction to try and punish an offender rests outside the
tribe, tribal officers may exercise their power to detain and transport him to the
proper authorities.”67
Similar developments have characterized the evolution of the legal recognition
of the original title of indigenous sovereignty outside the United States. In
Australia, the turning point which led to a break with the past was the landmark
decision pronounced by the High Court in the 1992 case Mabo v. Queensland [No.2],
when the Court debunked the fiction of terra nullius as historically invalid and not in
accordance with modern standards of human rights and justice.68
The Court
recognized the survival of common law Native Title, in co-existence with the radical
(that is to say “sovereign,” or “plenary”) title of the British Crown, as implying the
right of aboriginal peoples “as against the whole world to possession, occupation, use
and enjoyment of” any portion of the lands owned by them prior to the
establishment of the British Colony of New South Wales in 1788, except in the case
that such title has been legally extinguished.69
It is a title that, in any event, may be
legally extinguished by the competent governmental authorities “by valid exercise of
their respective powers.”70
The principle proclaimed by the Court has successively
been taken in by national legislation, through the enactment of the Native Title Act
of 199371
and, following another important decision of the High Court, Wik v.
Queensland of 1996,72
the Native Title Amendment Act of 1998.73
Unfortunately, in
drafting such legislation, the Australian Parliament devoted primary attention to a
preoccupation with placating the interests of non-aboriginals on indigenous lands
threatened by the Court’s recognition of the aboriginal title.74
Also, thanks to the
fact that the High Court failed to address in concrete terms the issue concerning the
specific titles on the land, which could lead to the extinction of the Native Title,75
the
Australian Parliament recognized that, in the event of conflict between the Native
65. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978).
66. Montana, 450 U.S. at 566.
67. Duro v. Reina, 495 U.S. 676, 696-97 (1990).
68. Mabo v. Queensland [No.2] (1992) 175 C.L.R. 1, 40-42.
69. Id. at 2.
70. Id.
71. Native Title Act, 1993, pmbl. (Austl.), available at
http://scaleplus.law.gov.au/html/pasteact/2/1142/pdf/NativeTitle1993.pdf.
72. Wik v. Queensland (1996) 187 C.L.R. 1, 6-9.
73. Native Title Amendment Act, 1998, sched. 1, available at
http://scaleplus.law.gov.au/html/comact/10/5874/rtf/Act97of1998rtf.
74. Carlos Scott López, Reformulating Native Title in Mabo’s Wake: Aboriginal Sovereignty and
Reconciliation in Post-Centenary Australia, 11 TULSA J. COMP. & INT’L L. 21, 37-38 (2003). On “aboriginal
sovereignty” in Australia, see Otto, supra note 33, at 65. Gary D. Meyers & Sally Raine, Aboriginal Land
Rights in Transition (Part II): The Legislative Response to the High Court's Native Title Decisions in Mabo
v. Queensland and Wik v. Queensland, 9 TULSA J. COMP. & INT’L L. 95, 115 (2001).
75. López, supra note 74, at 34.

Title and other titles granted by the Crown, the latter prevail.76
More recently, in the
2002 judgments of Ward (also known as Miriuwung Gajerrong)77
and Wilson,78
the
High Court confirmed that the Native Title may be partially or totally extinguished
by competing titles granted by the Crown, such as pastoral and mining leases.79
In Canada aboriginal rights, including the Native Title, have been recognized at
the constitutional level since 1982, by the Constitution Act, stating that “[t]he
existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby
recognised and affirmed.”80
By virtue of this provision, all native rights existing at
the time of the adoption of the constitutional amendment, whether derived from
common law or treaty, are protected, while those that had been previously
extinguished have no constitutional protection. This protection is not absolute, and
may be overridden in the presence of certain conditions, which were defined by the
Supreme Court in the 1990 judgment concerning the case of Sparrow v. The Queen.81
In particular, according to the Court, “[l]egislation that affects the exercise of
aboriginal rights will be valid if it meets the test for justifying an interference with a
right recognized and affirmed” under the 1982 Constitution Act.82
Thus, any
legislative objective “must be attained in such a way as to uphold the honour of the
Crown and be in keeping with the unique contemporary relationship, grounded in
history and policy, between the Crown and Canada’s aboriginal peoples.”83
To meet this condition it is necessary that, first, a prima facie interference by
the legislation enacted by the Crown giving rise to an adverse restriction of the
exercise of the constitutionally protected natives’ rights is found;84
and, second, the
interference must be justified.85
The “justification test” involves two steps: the
existence of a valid legislative objective must be ascertained and, if such objective is
found, “the special trust relationship and the responsibility of the government vis-à-
vis aboriginal people” must be considered.86
That is, the legislative objective is to be
balanced with the special trust relationship between the Crown and aboriginal
peoples.
In 1995, the Canadian Government explicitly recognized the inherent right of
self-government of indigenous peoples, which
is based on the view that the Aboriginal peoples of Canada have the right
to govern themselves in relation to matters that are internal to their
communities, integral to their unique cultures, identities, traditions,
76. Id. at 39.
77. W. Australia v. Ward (2002) 213 C.L.R. 1.
78. Wilson v. Anderson (2002) 213 C.L.R. 401.
79. López, supra note 74, at 44-45.
80. Part II of the Constitution Act, 1982, Schedule B to the Canada Act 1982, ch. 11, sec. 35(1) (U.K.),
as reprinted in R.S.C., No. 44 (Appendix 1982), available at http://laws.justice.gc.ca/en/const/annex_e.html.
On the aboriginal title in Canada see Özlem Ülgen, Aboriginal Title in Canada: Recognition and
Reconciliation, 47 NETH. INT’L L. REV. 146, 150-51 (2000).
81. Sparrow v. The Queen, [1990] 1 S.C.R. 1075.
82. Id. at 1077 (under Section 35(1) of the Constitution Act).
83. Id. at 1078.
84. See id.
85. Id. at 1079.
86. Id.

languages and institutions, and with respect to their special relationship to
their land and their resources.87
And while differing views exist, “the Government acknowledges that the inherent
right of self-government may be enforceable through the courts.”88
The Supreme Court’s 1997 judgment concerning the case Delgamuukw v.
British Columbia89
is also of great importance, representing a clear step forward, “in
a more expansive and culturally sensitive way,”90
with respect to the jurisprudence of
the High Court of Australia concerning the Native Title. In particular, the Court
emphasized that the aboriginal title “encompasses the right to exclusive use and
occupation of land.”91
The “content of aboriginal title is not restricted to those uses
which are elements of a practice, custom or tradition integral to the distinctive
culture of the aboriginal group claiming the right,”92
but also incorporates modern
uses of the land, including mineral rights and the exploitation of minerals.93
In
addition, the Court considered the aboriginal title as inalienable, affirming that it
“cannot be transferred, sold or surrendered to anyone other than the Crown and, as
a result, is inalienable to third parties.”94
Also, the Court placed emphasis on the
opportunity to resolve disputes involving conflicting interests connected to the
aboriginal title through recourse to negotiations, by recalling what it had previously
said in Sparrow v. The Queen, that section 35(1) of the 1982 Constitution Act
“provides a solid constitutional base upon which subsequent negotiations can take
place.”95
In this context, “the Crown is under a moral, if not a legal, duty to enter
into and conduct those negotiations in good faith.”96
Finally, with respect to the
decisions taken by the Crown concerning aboriginal lands, the involvement of
aboriginal peoples is always to be ensured. This implies:
There is always a duty of consultation . . . . The nature and scope of the
duty of consultation will vary with the circumstances. In occasional cases,
when the breach is less serious or relatively minor, it will be no more than
a duty to discuss important decisions that will be taken with respect to
87. See MINISTRY OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, ABORIGINAL SELF-
GOVERNMENT: THE GOVERNMENT OF CANADA’S APPROACH TO IMPLEMENTATION OF THE INHERENT
RIGHT AND THE NEGOTIATION OF ABORIGINAL SELF-GOVERNMENT 5 (Ronald A. Irwin ed., Minister of
Public Works and Government Services Canada 1995), available at
http://www.iigr.ca/pdf/documents/1227_Aboriginal_SelfGovernme.pdf.
88. Id.
89. Delgamuukw v. British Columbia, [1997] S.C.R. 1010.
90. LARISSA BEHRENDT, PARLIAMENT OF AUSTRALIA LAW AND BILLS DIGEST GROUP, THE
PROTECTION OF INDIGENOUS RIGHTS: CONTEMPORARY CANADIAN COMPARISONS, RESEARCH PAPER
27 (2000), available at http://www.aph.gov.au/library/pubs/rp/1999-2000/2000rp27.htm#aboriginal.
91. Delgamuukw, [1997] S.C.R. at 1111.
92. Id. at 1087-88; see also R. v. Van der Peet, [1996] 2 S.C.R. 507, 579 (the aboriginal title “refers to a
broader notion of aboriginal rights arising out of the historic occupation and use of native ancestral lands,
which relate not only to aboriginal title, but also to the component elements of this larger right—such as
aboriginal rights to hunt, fish or trap, and their accompanying practices, traditions and customs—as well as
to other matters, not related to land, that form part of a distinctive aboriginal culture.”).
93. See Delgamuukw, [1997] S.C.R. at 1086.
94. Id. at 1081.
95. Id. at 1123 (quoting Sparrow v. The Queen, [1990] S.C.R. 1075, 1105).
96. Id.

lands held pursuant to aboriginal title. Of course, even in these rare cases
when the minimum acceptable standard is consultation, this consultation
must be in good faith, and with the intention of substantially addressing
the concerns of the aboriginal peoples whose lands are at issue. In most
cases, it will be significantly deeper than mere consultation. Some cases
may even require the full consent of an aboriginal nation, particularly
when provinces enact hunting and fishing regulations in relation to
aboriginal lands.97
With regard to the African continent, a recent judgment of the Constitutional
Court of South Africa, concerning the Richtersveld indigenous community, is worth
mentioning.98
In this dispute, the community (belonging to family of the San people)
claimed restitution of its ancestral land, of which it had been progressively deprived
by the South African government from 1926 onwards (the “expropriation” was
completed in 1993) after the discovery of diamonds in its subsurface. The claim was
based on section 2(1) of Land Rights Act (Act 22 of 1994), which, in giving
effectiveness to section 25(7) of the South African Constitution of 1996, states that a
community dispossessed of its own land after June 19, 1913 (the date in which the
Natives Land Act 27 of 1913, which deprived black South Africans of the right to
own lands and rights in the land in the great majority of South African territory,
came into operation), as a result of past racially discriminatory laws or practices is
“entitled to restitution of a right in land.”99
In dealing with this case, the Court
preliminarily ascertained whether the Richtersveld Community could be considered
as owning the subject land prior to the annexation of the relevant territory by the
British Crown, which took place in 1847.100
The Court held that, at the relevant time,
the “land was communally owned by the community” concerned.101
This conclusion
was reached on the basis of indigenous law, i.e., “the law which governed [the] land
rights” of the Richtersveld Community at the relevant time,102
which is to be
evaluated in light of the social and philosophical vision and criteria proper of the
community, without making the error of “view[ing] indigenous law through the
prism of legal conceptions that are foreign to it,”103
and particularly, “without
importing English conceptions of property law.”104
Under indigenous law,
indigenous land rights included “communal ownership of the minerals and precious
stones,”105
as demonstrated by the fact that the Richtersveld Community commonly
used minerals for adornment purposes, that “outsiders were not entitled to prospect
for or extract minerals . . . [and] that the Richtersveld Community granted mineral
leases to outsiders between the years 1856 and 1910.”106
In light of this, and after
having ascertained that the 1847 annexation of the territory, in which the subject
land was located, by the British Crown did not imply the extinguishment of the
97. Id. at 1113.
98. See Alexkor Ltd. & Another v. Richtersveld Cmty. & Others, 2003 (5) SA 460 (CC) (S. Afr.),
available at http://www.constitutionalcourt.org.za/Archimages/758.PDF.
99. Id. para. 6 (quoting Land Rights Act).
100. Id. para. 32.
101. Id. para. 58.
102. Id. para. 50.
103. Id. para. 54.
104. Alexkor, 2003 (5) SA para. 50.
105. Id. para. 64.
106. Id. para. 61.

indigenous title over such land, the Court went on to consider whether, pursuant to
section 2(1) of the Land Rights Act, the dispossession of the rights of the
Richtersveld Community taking place after 1913 was the result of racially
discriminatory laws or practices.107
The conclusion was that, “given that indigenous
law ownership is the way in which black communities have held land in South Africa
since time immemorial,” the “inevitable impact” of the dispossession of land rights
belonging to the Richtersveld Community, in that it entailed the “failure to
recognise indigenous law ownership,” and “was racially discriminatory against black
people who were indigenous law owners.”108
In other words, according to the Court,
“the racial discrimination lay in the failure to recognize and accord protection to
indigenous law ownership while, on the other hand, according protection to
registered title[s]” of white diamond exploiters.109
The Court thus declared that the
Richtersveld Community was entitled to “restitution of the right to ownership of the
subject land (including its minerals and precious stones) and to the exclusive
beneficial use and occupation thereof.”110
The practice referred to in the present paragraph is not limited to a restricted
group of States, since most countries in whose territories indigenous peoples are
living have surrendered to the duty of recognizing a given degree of autonomy (i.e.,
sovereignty) in favor of such peoples. This has happened, for instance, in Norway,111
where, since 1971, significant legislative112
and judicial steps have eventually led to
the approval, in 1988, of the new article 110(a) of the Constitution, affirming that “it
is the responsibility of the authorities of the State to create conditions enabling the
Sami people to preserve and develop its language, culture and way of life.”113
In New
Zealand, the Treaty of Waitangi Act of 1975 finally gave effectiveness to the treaty
signed in 1840 by the British Crown with the Maori chiefs, by instituting the
Waitangi Tribunal and regulating disputes concerning the land and related rights
between indigenous and European-originated people according to a scheme not
dissimilar to that of intergovernmental negotiations.114
Also, in 1993, the
Constitutional Court of Colombia recognized that the exploitation of natural
resources in indigenous lands raised a constitutional problem which involved the
ethnic, cultural, social, and economic integrity of the communities that live therein.115
Last but not least, in recent years, Malaysian courts have recognized, the indigenous
right of ownership of their ancestral land based on customary law, although such
107. Id. para. 69, 82.
108. Id. para. 96.
109. Id. para. 99.
110. Alexkor, 2003 (5) SA para. 103.
111. With regard to North European countries, see Lauri Hannikainen, The Status of Minorities,
Indigenous Peoples, and Immigrant and Refugee Groups in Four Nordic States, 65 NORD. J. INT’L L. 1
(1996).
112. See Lov om reindrift [Reindriftsloven] [Reindeer Herding Act] (Norges lover 1978:49) (Nor.);
Lov om Sametinget og andre samiske rettsforhold [Sameloven] [Sami Act] (Norges lover 1987:56) (Nor.).
113. Norges grunnlov [Constitution] art. 110a (Nor.).
114. See López, supra note 74, at 74.
115. See Sentencia No. T-380/93, para. 7 (1993) (“La explotación de recursos naturales en territorios
indígenas plantea un problema constitucional que involucra la integridad étnica, cultural, social y
económica de las comunidades que sobre ellas se asientan.”), available at
http://bib.minjusticia.gov.co/jurisprudencia/CorteConstitucional/1993/Tutela/T-380-93.htm.

right may be terminated by the government, which retains the power to acquire the
lands concerned through the payment of adequate compensation.116
2. The inadequacy of the recognition of the invalidity of the title of terra
nullius and of the legal significance of the Native Title, ex se, as foundation
of indigenous sovereignty
Having ascertained the existence of a widespread practice, both at the
international and (especially) domestic level, that recognizes the original invalidity
of the title of occupation (based on the invention of the concept of terra nullius) of
the lands originally belonging to indigenous communities, the question which arises
concerns the relevance of such recognition in the framework of international law. In
other words, is such recognition capable of producing significant consequences at the
international level, thus creating some kind of foundation for indigenous claims of
sovereignty and corresponding State obligations?
A pragmatic and objective assessment of the whole matter shows quite clearly
that the answer to the question, in purely legal terms, is negative. According to
international law, sovereignty is linked to the effective control of a territory, and
when this effectiveness exists (accompanied by effective independence) it normally
amounts to sovereignty, irrespective of the way in which this control has been
attained. Relevant practice demonstrates that, also in recent history, the fact that a
territory has been acquired by using unlawful means has never constituted an
obstacle to the effective acquisition of sovereignty over the territory, except in
specific cases, essentially linked to the movement for decolonization. In the
contemporary international legal regime, the existing division of sovereignty among
States is well-crystallized, and the principle of (external) self-determination of
peoples may only attract (with the exception of colonial peoples) new situations
generated after the end of World War II.117
It is thus not applicable to the
occupation of the lands of indigenous peoples.
It is true that the express denial of the relevance of the original title of terra
nullius resulting from the practice illustrated in the preceding paragraph has an
indisputable moral significance, which may result in a strong pressure over States
aimed at persuading them to recognize a given degree of autonomy in favor of
indigenous peoples. Nevertheless, in strictly legal terms, the choice whether such
autonomy is to be granted or not, if considered solely under the perspective
examined in the present paragraph, lies in the free determination of the sovereign
territorial State.
Logically speaking, this conclusion could appear to change when considering
the whole matter from the perspective of decolonization, based on the principle of
self-determination of peoples. The fact that most indigenous peoples, as peoples
116. See Federico Lenzerini, The Interplay Between Environmental Protection and Human and
People’s Rights in International Law, 10 AFR. Y.B. INT’L L. 63, 105 (2002); Botswana bushmen win land
ruling, BBC NEWS, Dec. 13, 2006, available at http://news.bbc.co.uk/2/hi/africa/6174709.stm; see also the
very recent judgment (13 December 2006) of the High Court of Lobatse, Botswana, which held that the
national government had acted illegally in forcibly evicting the last tribal Bushmen (also known as the
Basarwa) from the Central Kalahari Game Reserve, in 2002, in order to exploit the diamond and mineral
resources located in that area. Consequently, the Court found that the Basarwa are entitled to live and
hunt on their ancestral lands in the Reserve.
117. See BENEDETTO CONFORTI, DIRITTO INTERNAZIONALE 22 (Napoli 2006).

originally subject to alien domination, would factually meet the legal requirements
for having access to self-determination (in the meaning of the term which led to
decolonization) is logically undeniable on the basis of the ICJ’s decision in the
Western Sahara case118
and of the 1960 Declaration on the Granting of Independence
to Colonial Countries and Peoples;119
in addition, the fact that the rejection of the
legal fiction of terra nullius, both at the international and domestic level, implies the
acknowledgement of the prior occupation by indigenous peoples of their ancestral
lands. Nevertheless, the fact remains that the content of international law is
determined only by States, which may establish, through their consistent practice
and mental behaviour (i.e., opinio juris), whether a given rule exists or not, often at
the prejudice of legal coherence. This circumstance was recalled by the U.S. Court
of Appeals in the recent judgment United States v. Yousef, when the Court stated
that, for determining the content of international law, one must primarily consider
“the formal lawmaking and official actions of States and only secondarily . . . the
works of scholars as evidence of the established practice of States.”120
With this
incontestable dogma in mind, prior consideration is to be attributed to the fact that
States have always strongly opposed (and continue to oppose) the recognition of the
right to self-determination, conceived in its external connotation, in favor of
indigenous peoples. This is demonstrated, in particular, by the very first article of
the only binding international instrument in force at the universal level specifically
dealing with such peoples, the 1989 ILO Convention No. 169 Concerning Indigenous
and Tribal Peoples in Independent Countries, which makes it clear that “[t]he use of
the term ‘peoples’ in this Convention shall not be construed as having any
implications as regards the rights which may attach to the term under international
law.”121
In addition, it is a fact that most States, although recognizing a limited
degree of indigenous sovereignty, consider such sovereignty as subordinated to the
circumstance that the territorial government does not exercise its right to extinguish
the aboriginal title within the context of the exercise of its sovereign power over the
national territory. Most of the aforementioned judgments have been based on acts,
laws, or statutes enacted by the States concerned that, as they have been adopted, in
principle, may always be abrogated. Furthermore, in some countries, like Australia,
the Native Title, although recognized in principle, is very precarious in practice, and
may be easily extinguished by granting alternative titles over the land to non-
aboriginals. Consequently, the recognition of such title at the domestic level, within
the restricted terms just noted, may not, on its own, be considered as an argument
capable of granting indigenous peoples the chance to claim and enforce their
sovereign rights under international law against the “plenary” sovereign title of the
territorial State.
However, the most recent developments concerning the matter at issue could
support the inference that this conclusion should be subject to change. In particular,
twelve years after its approval by the Sub-Commission on the Promotion and
Protection of Human Rights (formerly “Sub-Commission on Prevention of
118. See supra note 40 and corresponding text.
119. G.A. Res. 1514, at 66, U.N. GAOR, 15th Sess., Supp. No. 16, U.N. Doc. A/4494 (Dec. 14, 1960).
120. United States v. Yousef, 327 F.3d 56, 103 (2d Cir. 2003).
121. Int’l Labour Org. [ILO], Convention (No. 169) Concerning Indigenous and Tribal Peoples in
Independent Countries (Sept. 5, 1991) [hereinafter ILO Convention (No. 169)] (adopted by the General
Conference of the International Labour Organisation on June 27, 1989, in force beginning September 5,
1991), available at http://www.ilo.org/ilolex/english/convdisp1.htm.

Discrimination and Protection of Minorities”), in June 2006, the Human Rights
Council was finally able to adopt the U.N. Draft Declaration on the Rights of
Indigenous Peoples, which had previously been delayed for such a long time due to
the very fact of the use of the term “peoples” in the draft text and the implications
associated to this term in international law.122
The Declaration expressly recognizes
the right of indigenous peoples to self-determination, encompassing the right to
freely determine “their political status and freely pursue their economic, social and
cultural development” (article 3), “the right to autonomy or self-government in
matters relating to their internal and local affairs” (article 4), and “the right to
maintain and strengthen their distinct political, legal, economic, social and cultural
institutions” (article 5).123
May the adoption of this Declaration be considered as
evidence that States have surrendered to the need of recognizing indigenous
sovereignty? It is too soon, at the moment of writing, to provide an answer to this
question. The adoption of the Declaration is certainly a very significant
development in this respect, but one cannot ignore that certain major countries
(including Australia, Canada, and the United States) have opposed its approval—
preventing its final adoption by the General Assembly so far—and in any event only
time will tell whether it will attain a relevant role in the context of pertinent
international practice. For this reason, at the moment, legal caution suggests
supporting the conclusion that neither the recognition of the invalidity of the original
title of occupation of the ancestral land belonging to indigenous peoples nor the
principle of self-determination may be invoked, in themselves, as legal bases for
claims of indigenous sovereignty, although this implicates a clear lack of coherence
between international norms that would be unacceptable in any “advanced”
domestic legal regime.
Having said this, even at the present stage, the adoption of the Declaration by
the Human Rights Council may be considered as an important manifestation of State
practice, and it thus raises the question whether customary international law has
evolved toward the recognition of indigenous sovereignty. This idea would be
strongly reinforced in the event that the recognition by most countries of the Native
Title could be considered as the result of the implementation of an international
obligation binding States to take such conduct or as the element of diuturnitas
progressively leading to the shaping of such an obligation, to recognize a given
degree of sovereignty in favor of indigenous peoples. In these cases, an international
customary provision having such content should be considered, respectively, as
actually established or in the process of being crystallized in its definitive shape. We
will try to asses the existence and nature of the norm below.
122. U.N. Human Rights Council, Report to the General Assembly on the First Session of the Human
Rights Council, art. 45, G.A. Res. 1/L.10, U.N. Doc. A/HRC/1/L.10 (June 30, 2006) [hereinafter First
Session of the Human Rights Council].
123. Id.

B. Delegation of Powers by the State
1. The practice of the delegation of sovereign powers by States in
international law
In abstract terms, another possible title for indigenous sovereignty could be the
one resulting in the delegation of powers by territorial States, handing over certain
sovereign prerogatives to indigenous communities. It is a model which is currently
practiced in the context of international law, and is capable of limiting State
sovereignty in favor of alternative sovereign powers that, in certain circumstances,
may be imposed upon the same States which have transferred them to the non-State
sovereign entity concerned. That is the model of international organizations, to the
extent that they retain binding powers. These powers are delegated by member
States through the ratification of the agreements instituting such organizations or
additional ad hoc treaties, sometimes to the extent that the organization concerned
owns the exclusive authority of legislating with regard to certain matters, imposing
the results of such authority upon the member States. The main example of this
reality is given by the European Community, in the context of which the Council of
Ministers (which often needs the approval of the European Parliament) retains the
primary legislative authority with respect to the matters of competence of the
Community, while member States may exercise their outstanding normative powers
only to a limited extent and always in accordance with the rules adopted by the
Council.
In this context, one could certainly object that, in any event, the sovereignty of
international organizations is never of absolute character, since member States
always retain the power of withdrawing from any organization they are member of,
thus revoking the powers previously delegated. Even the Constitutional Treaty of
the European Union (not yet in force at the time of writing) takes a clear position on
this previously unresolved problem by affirming that “[a]ny Member State may
decide to withdraw from the Union in accordance with its own constitutional
requirements.”124
This notwithstanding, the effectiveness of this kind of sovereignty
is undeniable, as it is indisputable that it actually supersedes the determination of the
States concerned, which may even be constrained to accept it against their own will.
2. The lack of relevant practice concerning the delegation of sovereign
powers by States to indigenous peoples
In general terms, this method of acquisition of sovereignty does not apply to the
case of indigenous peoples according to the contemporary international practice.
Although certain limited sovereign powers may be delegated to them by States, they
are usually confined to the realm of domestic law, where the government concerned
retains the supreme authority for regulating, limiting, and eventually withdrawing
such powers under its domestic law. Consequently, as noted in the previous
paragraph, the powers granted to indigenous peoples by States are generally not
124. Treaty Establishing a Constitution for Europe, adopted June 18, 2004, art. I-60.

enforceable at the international level, in the sense that such peoples may not rely on
them for asserting the existence of international obligations binding territorial States
to grant them a given degree of autonomy.
This conclusion could only change where certain sovereign powers were
delegated to indigenous communities pursuant to an international treaty; in that
case, ratifying States would be bound to respect their international obligation, vis-à-
vis their consociates, of recognizing and granting in favor of indigenous peoples the
effective exercise of the rights and powers contemplated by the agreement(s)
concerned. In that case, it would be possible to properly talk about indigenous
sovereignty as the result of delegation of powers by States.
At present, the foremost multilateral treaty concerning indigenous peoples is
the 1989 ILO Convention (No. 169).125
The main purpose of the document was to
remove the “assimilationist orientation” of the previously adopted Indigenous and
Tribal Populations Convention (No. 107) through the partial revision of its
provisions.126
The aspirations of indigenous peoples “to exercise control over their
own institutions, ways of life and economic development and to maintain and
develop their identities, languages and religions, within the framework of the States
in which they live” are thus recognized, acknowledging their right, to a certain level
of autonomy as well as to participate in decisions concerning their own interests.127
In any event, it does not seem that the Convention grants effective attributes of
sovereignty in favor of indigenous peoples. Part I recognizes their right to be
consulted with regard to “legislative or administrative measures which may affect
them directly” and to participate (“to at least the same extent as other sectors of the
population”) at all levels of decision-making concerning programs or policies
affecting them directly.128
They also have the right to decide their own priorities “for
the process of development as it affects their lives, beliefs, institutions and spiritual
well-being and the land they occupy or otherwise use,”129
as well as the right to have
their customs with respect to penal matters, “taken into consideration” by the
judicial authorities dealing with such matters.130
It does not seem that these may be
considered as attributes of sovereignty, but rather as rights that are recognized by
citizens in any democratic State. The main theme that emerges from Part I of the
Convention is the goal of ensuring that members of indigenous communities receive
the same treatment granted to other “sectors of the population,” taking into account
their own peculiar customs and traditions.131
This conclusion could appear rather different when looking at Part II, which
deals with land rights. Article 14 proclaims the obligation of recognizing “[t]he
rights of ownership and possession of the peoples concerned over the lands which
they traditionally occupy,” adding that “measures shall be taken in appropriate cases
to safeguard the right of the peoples concerned to use lands not exclusively occupied
125. ILO Convention (No. 169), supra note 121.
126. Int’l Labour Org. [ILO], Indigenous and Tribal Populations Convention (No. 107) (Sept. 5, 1991)
[hereinafter ILO Convention (No. 107)] (adopted by the General Conference of the International Labour
Organisation on June 5, 1957, entered into force Feb. 6, 1959), available at
http://www.ilo.org/ilolex/english/convdisp1.htm.
127. ILO Convention (No. 169), supra note 121.
128. Id.
129. Id.
130. Id.
131. Id.

by them, but to which they have traditionally had access for their subsistence and
traditional activities.”132
Article 15 even recognizes the right of indigenous peoples,
to be “specially safeguarded” to the natural resources pertaining to their lands,
which includes the right “to participate in the use, management and conservation of
these resources.”133
Nevertheless, paragraph 2 of the same article, although
providing the right of the peoples concerned to be consulted and to participate in the
benefits drawing from “programmes for the exploration or exploitation of such
resources pertaining to their lands,” in the end authorizes State parties to perform
such activities in any case, subject only to the condition to grant “fair compensation”
in favor of the autochthonous communities which sustain damages as a result of the
said activities.134
In addition, according to article 16, such communities may even be
removed from their ancestral lands, although only in exceptional cases (the
exceptionality of which is in any case decided by the State concerned) and following
special procedures.135
In such cases, the peoples concerned have the right to return
to their traditional lands “as soon as the grounds for relocation cease to exist.”136
But, when the return is not possible (again, it is up to the State to decide) the State
concerned is only obliged to grant them full compensation for “any resulting loss or
injury.”137
As a consequence, it is pretty clear that land rights provided for by Part II
of the Convention amount, rather than to sovereign powers, to a mere right of
ownership that is generally recognized by most States in favor of any citizen (despite
that in the case of indigenous peoples such right is of a collective character), a right
that may be expropriated when it is required by public needs, subject only to the
granting of fair compensation in favor of the expropriated person(s). There is no
delegation of sovereignty, as this term is understood in international law, made by
States in favor of indigenous peoples.
There is no need to emphasize the scarce impact of ILO Convention (No. 169)
in the framework of the international legal order, on account of the fact that, to date,
only seventeen countries have ratified this Convention, with the exclusion of key
countries such as Australia, Canada, New Zealand, all African States, and the
United States.138
The content of ILO Convention (No. 169) reflects the typical scheme of
contemporary State practice in the field of indigenous peoples, mainly consisting of
granting to such peoples certain participatory or local rights, which never amount to
actual internationally relevant sovereign powers (that is to say sovereign powers
claimable at the international level by whatever entity against a State); such rights
are ultimately subject to the supreme authority of the territorial government. It is
thus not possible, in the present state of international law, to assert that there
actually is a model of delegation of powers by States in favor of indigenous peoples
which may effectively be considered as a title of indigenous sovereignty.
132. Id. art. 14.
133. ILO Convention (No. 169), supra note 121, art. 15.
134. Id. art. 15, para. 2.
135. Id. art. 16.
136. Id. art. 16, para. 3.
137. Id. art. 16, para. 5.
138. It has been ratified by Argentina, Brazil, Bolivia, Columbia, Costa Rica, Denmark, Dominica,
Ecuador, Fiji, Guatemala, Honduras, Mexico, Netherlands, Norway, Paraguay, Peru, Bolivarian Republic
of Venezuela. ILO Convention (No. 169), available at http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169.

C. Rules of Customary International Law
1. The growing interest of international law for the protection of the identity
and the rights of indigenous peoples139
In the framework of international law, the various legal and judicial approaches
taken by States with regard to indigenous peoples (as discussed earlier),140
as well as
ILO Convention (No. 169), are certainly to be considered as examples of
international practice. As is well known, practice is, together with opinio juris, one
of the two constitutive elements of customary international law. It is thus opportune
to investigate whether such practice—which has today reached a worldwide
dimension and is rather constantly reiterated—is accompanied by the other element
of customary international law, i.e., opinio juris—with the purpose of ascertaining
whether an international principle exists (or is at least emerging)—in the form of an
international customary obligation, one which (all) States are bound to observe,
establishing the right of indigenous peoples to actually enjoy a given degree of
sovereignty within the territory in which they live. In practical terms, it is necessary
to ascertain whether the practice is to some extent the consequence of the
perception, by the States concerned, of the necessity to comply with applicable
international law or, on the contrary, it is simply the result of the natural evolution of
their internal law irrespective of the existence of any related international obligation.
In order to fulfill this task, the first task is to determine whether indigenous peoples
represent an “element” of interest of international law, as well as the “terms”
according to which such interest has evolved.
It is indubitable that in the last two decades the international community has
drastically modified its approach towards indigenous peoples. They have turned
from the characterization of obstacles to the fulfilment of State interests, into a
“value” perceived as worth protecting in its own idiosyncratic nature by all relevant
actors of international law. This is definitely indicated by pertinent practice. For
example, as already stressed, in 1989, the International Labor Organization revised
its assimilationist Convention (No. 107) by adopting the more progressive
Convention, No. 169, which recognizes the right of indigenous peoples to preserve
their own identity and to develop according to their way of life and to their beliefs.
Also, in 1993 the U.N. General Assembly launched the First International Decade of
the World’s Indigenous People (1994-2004) with the main purpose of strengthening
international cooperation for the solution of the main problems faced by indigenous
peoples in areas such as human rights, environment, development, education, and
health.141
Although the Decade did not reach its main purpose, i.e., the adoption of
the Draft Declaration on the Rights of Indigenous Peoples, the Declaration was later
adopted by the Human Rights Council in June 2006,142
during the Second
139. For excellent work on the status of indigenous peoples in international law, see generally Anaya,
supra note 501.
140. See discussion supra Part IV.A.1.
141. See G.A. Res. 48/163, at 1, U.N. Doc. A/RES/48/163 (Feb. 18, 1994), at 2. For a discussion of the
outcomes of the Decade, see generally The Secretary-General, Report of the Secretary-General on the
Preliminary Review by the Coordinator of the International Decade of the World’s Indigenous People on the
Activities of the United Nations System in Relation to the Decade, Delivered to the Economic and Social
Council, U.N. Doc. E/2004/82 (June 25, 2004).
142. The Draft Declaration, although ignoring sovereignty per se, includes most of the significant

International Decade of the World’s Indigenous People (starting from January 1st
,
2005) which was proclaimed in 2004 by the General Assembly.143
Still, at the U.N.
level, a Working Group on Indigenous Populations (established by ECOSOC Res.
1982/34) has existed since the early 1980s as a subsidiary organ of the Sub-
Commission on the Promotion and Protection of Human Rights, carrying out a two-
fold mandate consisting of reviewing developments pertaining to the promotion and
protection of human rights and fundamental freedoms of indigenous peoples and
devoting attention to the evolution of international standards concerning indigenous
rights.144
Outside the U.N., the activity of the World Bank in the field of indigenous
peoples’ rights is worth mentioning. In particular, the Bank’s Draft Operational
Policy 4.10, ultimately revised in 2004, has the main purpose of contributing to the
Bank’s “mission of poverty reduction and sustainable development by ensuring that
the development process fully respects the dignity, human rights, economies, and
cultures of Indigenous Peoples.”145
On account of these (and other)146
developments, it is logical to maintain that
indigenous peoples have finally emerged as a distinct subject of international law,
and are thus holders of rights (and, of course, duties) under this legal regime.
2. The foundations of the existence of a norm of customary international law
concerning indigenous sovereignty
Having ascertained this, it is now time to assess whether the existence of
binding rules in some way relating to indigenous sovereignty may be found within
the contemporary system of international law. With this purpose in mind, one could
refer to the ICJ’s 1975 Advisory Opinion on Western Sahara.147
With its finding on
the fiction of terra nullius, the Court “destroyed” the foundations on which the
assumed legitimacy of the possession of traditional indigenous lands by modern
governments is based. Although, as already noted, this is not in itself sufficient for
challenging the integrity of State sovereignty from a strictly legal perspective, it does
powers that “sovereign” indigenous peoples would wish to assert, including self-determination, the ability
to define their own identity and membership, “the right to autonomy or self-government in matters
relating to their internal and local affairs,” as well as the rights to participate in national decision-making
that affects them, to own, use, develop, and control their lands, territories, and natural resources, and to
freely determine their political status and freely pursue their economic, social, and cultural development.
First Session of the Human Rights Council, supra note 122, at 58-73.
143. See G.A. Res. 59/174, U.N. GAOR, 59th Sess., Supp. No. 49, U.N. Doc. A/RES/59/174 (Feb. 24,
2005).
144. For the last report of the Working Group on Indigenous Populations available at the time of
writing, see Comm. on Human Rights, Sub-Comm. on the Promotion and Protection of Human Rights,
Working Group on Indigenous Populations, Information on Achievements of the Working Group: Note by
the Secretariat, U.N. Doc. E/CN.4/Sub.2/2005/26 (Aug. 12, 2005).
145. World Bank Operational Policies, at 1, World Bank Doc. OP 4.10 (July 2005), available at
http://wbln0018.worldbank.org/Institutional/Manuals/OpManual.nsf/B52929624EB2A3538525672E00775F
66/0F7D6F3F04DD70398525672C007D08ED?OpenDocument (last visited Mar. 21, 2005).
146. The examples of practice quoted in the text are not intended to be comprehensive. There are
many others indicia showing that customary international law is actually concerned with indigenous
peoples. See, in this sense, Anaya, supra note 51, at 61.
147. See Western Sahara Advisory Opinion, supra note 40.

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