In Mandating Recognition: International Law and Native/Aboriginal Title, author and RRI Fellow Owen J. Lynch analyzes leading international and national laws and judicial cases recognizing or otherwise supportive of Native/aboriginal title. The paper evinces widespread and growing evidence that international law is moving towards (and arguably already is) mandating legal recognition of Native/aboriginal title to indigenous territories and ancestral domains. It references decisions of the International Court of Justice (ICJ), the Inter-American Court (IAC), and the African Commission on Human and Peoples Rights (Asia has yet to constitute any juridical entity comparable to the IAC or its European and African counterparts).
This emerging mandate in favor of Native/aboriginal title is also apparent in international conventions and declarations as well as at least 14 nation-states that are already obliged under domestic law albeit in differing ways to recognize Indigenous Peoples’ and others’ Native/aboriginal titles. In addition, since 1968, 11 African nations have recognized customary rights as including property rights in their constitutions and/or land laws, as have major international law conventions declarations and other instruments that are supportive of Native/aboriginal title and are also identified. Finally, the paper summarizes leading cases and instruments in comparative/national (international customary) laws that are likewise supportive of legal recognition.
The essay is not intended to be exhaustive; nor can it be 100 percent up to date. Rather it establishes that the trend in international law—as conventionally understood as well as customary international law as evinced in the domestic law of a growing number of nation-states—is towards mandating the legal recognition of native/aboriginal title.