Customary International Law Norms on Indigenous Rights in Comparative Case Law

This research project is part of a larger research programme on Indigenous rights in constitutional and international law. Within this particular project, the faculty member is examining decisions of different domestic courts that bear on customary international law on Indigenous rights. The role for the student would particularly involve examining decisions of Latin American domestic courts and tribunals as well as InterAmerican Human Rights Court jurisprudence in an ongoing examination of what light these judgments can shed on developing customary international law norms in this area.

The analysis of customary international law norms looks to state practice (which can include judicial decisions) and to opinio juris (a belief that the practice comes from binding norms of customary international law). Latin American judicial decisions, in particular, have had some particularly interesting results in relation to some indigenous rights questions, including on consultation with indigenous peoples, which has been a particular area of focus in some past and current research for the faculty member involved in this project. The faculty members continues to be interested in consultation, but is also interested in examining in these contexts other Indigenous rights, including property rights, cultural rights, language rights, and religious rights. He also has a major interest in the general interaction between Indigenous rights and natural resource development.

Although the faculty member’s research team has included some Spanish-speaking members already (and the faculty member has limited Spanish reading abilities), he is particularly enthusiastic to recruit in a student or students who would be well-positioned to examine in detail a variety of Latin American jurisprudence on these topics while having the chance to engage in discussion of comparative perspectives from other case law.

The particular research in this project involves extensive case law research and analysis, comparison of different cases, and potentially writing about cases either on their own or in conjunction with other cases that can help to flesh out particular norms of international law.

The faculty member publishes extensively and, in addition to numerous articles or book chapters, has published books on Canadian constitutional law, indigenous rights doctrines in Canadian constitutional law, natural resource jurisdiction in Canada, and collective rights as an operative concept for understanding rights held by groups, including indigenous groups. He has also commenced a major stream of international law writing that relates to indigenous rights and will be pleased to involve students in this research project related to that stream.

Wendy Ortega Pineda
Faculty Supervisor: 
Dwight Newman
Partner University: