Papers by Jeremie Gilbert
Social Science Research Network, Apr 1, 2013
The last decade has witnessed a constitutional revival in Africa, with several countries adopting... more The last decade has witnessed a constitutional revival in Africa, with several countries adopting new constitutions. Several of these constitutions have been adopted following serious ethnic tensions, especially in the Great Lakes region. Because of the nature of the ethnic conflicts which were rooted in the repression of minority communities, the new constitutional frameworks regarding ethnicity and minority rights are going to be extremely significant for the peace and stability of the region. By analyzing the recently adopted constitutions of Rwanda, Burundi, and the Democratic Republic of Congo, this article seeks to examine the extent to which some of the most recently adopted constitutions of the continent are addressing, or not, the rights of the most marginalized minority communities. By focusing on the Great Lakes region, this article explores why there is still a general reluctance towards the recognition of minority rights in most African constitutions.
Sovereignty, Self-Determination, and Natural Resources
Oxford University Press eBooks, Nov 22, 2018
The issue of sovereignty over natural resources has been a key element in the development of inte... more The issue of sovereignty over natural resources has been a key element in the development of international law, notably leading to the emergence of the principle of States’ permanent sovereignty over their natural resources. However, concomitant to this focus on States’ sovereignty, international human rights law proclaims the right of peoples to self-determination over their natural resources. This has led to a complex and ambivalent relationship between the principle of States’ sovereignty over natural resources and peoples’ rights to natural resources. This chapter analyses this conflicting relationship and examines the emergence of the right of peoples to freely dispose of their natural resources and evaluates its potential role in contemporary advocacy. It notably explores how indigenous peoples have called for the revival of their right to sovereignty over natural resources, and how the global peasants’ movement has pushed for the recognition of the concept of food sovereignty.
Implementing indigenous peoples’ rights to lands, territories and resources
United Nations eBooks, Mar 12, 2021
Natural Resources and Human Rights
Oxford University Press eBooks, Nov 22, 2018
The management of natural resources is linked to broad issues of economic development, as well as... more The management of natural resources is linked to broad issues of economic development, as well as to political stability, peace, and security, but it is also intimately connected to the political, economic, social, and cultural rights of individuals and communities relying on these resources. Bad management of natural resources often leads to ill-planned development, misappropriation of land, corruption, bad governance, misaligned budget priorities, lack of strong institutional reforms, and weak policies coupled with a continued denial of human rights of local communities. This book analyses in details the connections that exist between the management of natural resources and human rights, offering a new innovative human rights-based approach to natural resources management. To do it offers a comprehensive analysis of the different norms, procedures, and approaches developed under human rights law that are relevant to the management of natural resources. Advocating for a less market and corporate approach to the control, ownership, and management of natural resources, this book supports the development of holistic and coherent integration of human rights law in the overall international legal framework governing the management of natural resources.
Indigenous Peoples’ Rights and the Declaration on the Rights of Peasants: Synergies and Challenges
Protecting Natural Resources
Oxford University Press eBooks, Nov 22, 2018
This chapter focuses on the connection between the international legal framework governing the co... more This chapter focuses on the connection between the international legal framework governing the conservation of natural resources and human rights law. The objective is to examine the potential synergies between international environmental law and human rights when it comes to the protection of natural resources. To do so, it concentrates on three main areas of potential convergence. It first focuses on the pollution of natural resources and analyses how human rights law offers a potential platform to seek remedies for the victims of pollution. It next concentrates on the conservation of natural resources, particularly on the interconnection between protected areas, biodiversity, and human rights law. Finally, it examines the relationship between climate change and human rights law, focusing on the role that human rights law can play in the development of the current climate change adaptation and mitigation frameworks.
The International Journal of Human Rights, Jan 29, 2020
This special issue of the journal is about one of the most significant, yet largely overlooked, i... more This special issue of the journal is about one of the most significant, yet largely overlooked, international rights instruments concerning indigenous peoples: the ILO Convention 169 on the rights of indigenous and tribal peoples. It offers a highly needed critical perspective bringing together practitioners, institutional actors, indigenous leaders and academics in an attempt to take stock of nearly 30 years of its existence.
State of the World’s Indigenous Peoples: Rights to Lands, Territories and Resources: IMPLEMENTING: indigenous peoples’ rights to lands, territories and resources
Federico Lenzerini (ed.), Reparations for Indigenous Peoples: International and Comparative Perspectives
Human Rights Law Review, Aug 6, 2010
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Means of Acquisition
Brill | Nijhoff eBooks, 2016
Traditionally, international law recognizes five different forms of territorial acquisition: occu... more Traditionally, international law recognizes five different forms of territorial acquisition: occupation, prescription, cession, accretion and conquest. To different extents, these forms of territorial acquisition have largely contributed to indigenous dispossession. Regarding the theories of acquisition of indigenous territories, two main categories emerged: first the acquisition by conquest and second the acquisition of so-called legally "empty" territories. The first section of this chapter examines the rules that guided the conquest of indigenous territories, while the second section focuses on theories that advocate the non-existence of indigenous peoples' territorial rights. The chapter also highlights that the rules governing the conquest of territories have been applied in a particularly discriminatory manner against indigenous peoples.Keywords: indigenous dispossession; indigenous peoples; international law; territorial rights; victims
Land Rights as Proprietary Rights
Brill | Nijhoff eBooks, 2016
This chapter examines how human rights law has sought to addresses indigenous peoples' land c... more This chapter examines how human rights law has sought to addresses indigenous peoples' land claims through two angles: first under the banner of proprietary rights and second by dealing with the past through the notion of reparation and restitution. Even though, under international law, provisions concerning property rights do not specifically focus on land rights, in the context of indigenous peoples' rights this chapter explores how the discourse on property rights could relate to indigenous peoples' right to the ownership and/or use of their lands. The chapter is divided into two sections with the first one examining the development of the right for indigenous peoples to collectively own their lands through the property rights discourse; and the second one evaluating the establishment of a regime based on a cultural right for indigenous to use their land.Keywords: indigenous people; property rights; reparation; restitution
Means of Extinguishment
Brill | Nijhoff eBooks, 2016
Life and Natural Resources
Oxford University Press eBooks, Nov 22, 2018
This chapter analyses the potential role that human rights law can play when control over natural... more This chapter analyses the potential role that human rights law can play when control over natural resources is associated with loss of life. It examines three different approaches. The first focuses on livelihood and examines situations where life is in danger for lack of access to natural resources essential to sustaining life, and explores how the right to life can be interpreted to include access to essential natural sources such as water and food. The second approach focuses on accountability for crimes during ‘resources conflicts’, and examines the relationship between international human rights law, international humanitarian law, and international criminal law with the objective of analysing the criminal approach to armed conflicts connected to natural resources. The third approach relates to the protection of individuals who have lost their lives, or whose physical integrity is in jeopardy, as result of their personal engagement to protect natural resources. It focuses on the rights of ‘environmental defenders’ and ‘land and natural resources defenders’—those who have become human rights defenders as a result of their actions taken to protect natural resources.
Perspectives on Cultural Genocide
Oxford University Press eBooks, Jan 18, 2018
Cultural genocide broadly refers to ‘the extermination of a culture that does not involve physica... more Cultural genocide broadly refers to ‘the extermination of a culture that does not involve physical extermination of its people’. This chapter examines how, from a criminal law concept, cultural genocide has moved to a concept aimed at protecting cultural diversity. This chapter in Section II will first examine how and why the crime was rejected under international criminal law. Based on this analysis, it will then examine how human rights law, which was meant to address the issue of cultural protection of minorities, has in fact left this area of the law undeveloped. Section III will then assess to what extent the notion of cultural genocide can act as an important tool for conflict prevention when minorities’ cultural assets are under attack. Finally, Section IV will explore how the indigenous peoples’ rights movement has renewed the idea that prohibiting cultural genocide constitutes an essential elements of human rights law.
Development, Globalisation and Land Rights
Brill | Nijhoff eBooks, 2016
This book addresses the right of indigenous peoples to live, own and use their traditional territ... more This book addresses the right of indigenous peoples to live, own and use their traditional territories, and analyses how international law addresses this. Through its meticulous examination of the interaction between international law and indigenous peoples’ land rights, the work explores several burning issues such as collective rights, self-determination, property rights, cultural rights and restitution of land. It delves into the notion of past violations and the role of international law in providing for remedies, reparation and restitution. It also argues that there is a new phase in the relationship between States, indigenous peoples and private actors, such as corporations, in the making of territorial agreements.
Self-determination, Territoriality and Consent
Brill | Nijhoff eBooks, 2016
This book addresses the right of indigenous peoples to live, own and use their traditional territ... more This book addresses the right of indigenous peoples to live, own and use their traditional territories, and analyses how international law addresses this. Through its meticulous examination of the interaction between international law and indigenous peoples’ land rights, the work explores several burning issues such as collective rights, self-determination, property rights, cultural rights and restitution of land. It delves into the notion of past violations and the role of international law in providing for remedies, reparation and restitution. It also argues that there is a new phase in the relationship between States, indigenous peoples and private actors, such as corporations, in the making of territorial agreements.
Land Rights as Cultural Rights
Brill | Nijhoff eBooks, 2016
Introduction – Territoriality: The Thread of Indigenous Cultures
Brill | Nijhoff eBooks, 2016
This book addresses the right of indigenous peoples to live, own and use their traditional territ... more This book addresses the right of indigenous peoples to live, own and use their traditional territories, and analyses how international law addresses this. Through its meticulous examination of the interaction between international law and indigenous peoples’ land rights, the work explores several burning issues such as collective rights, self-determination, property rights, cultural rights and restitution of land. It delves into the notion of past violations and the role of international law in providing for remedies, reparation and restitution. It also argues that there is a new phase in the relationship between States, indigenous peoples and private actors, such as corporations, in the making of territorial agreements.
Icon-international Journal of Constitutional Law, Apr 1, 2013
Kwasi Prempeh's reply to my article rightly highlights the failure of current African constitutio... more Kwasi Prempeh's reply to my article rightly highlights the failure of current African constitutionalism to embrace "minority rights," to a certain extent unexpected given the previous authoritarian rejection of minority or ethnic markers and the consequent potential for such provisions to form part of the contemporary political reaction to this early post-independence landscape. His argument relies on an understanding that all groups have found some form of expression or representation in this process, however imbalanced or skewed in favor of certain ethnicities or minorities. The aim of my article was not to present minority rights or recognition of ethnic difference as an essential legal requirement, but to consider why certain groups have been excluded from the political process so well described by Prempeh, and how their particular and complex interests need translation into rights. My argument is propelled by the absence of certain voices, identifiable groups for whom textual silence in legal terms has formed part of a deliberate strategy of economic, social and territorial dispossession. Prempeh argues that specific constitutional protection for minorities is unnecessary to ensure a larger protection for minorities. Two of the main arguments developed by Prempeh are that first of all there is no real need or demand for constitutional changes and, secondly, that the constitutional route might not be the adequate path for the protection of the minorities.
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Papers by Jeremie Gilbert