7 New Eng. Int'l & Comp. L. Ann. 1 (2001)
Aboriginal Land Rights: The Effect of Common Law Decisions in Canada and Australia on International Law

handle is hein.journals/newenjic7 and id is 3 raw text is: ABORIGINAL LAND RIGHTS:
THE EFFECT OF COMMON LAW DECISIONS IN CANADA AND
AUSTRALIA ON INTERNATIONAL LAW
Charles E. Ehrlich*
The rights of ethnic minorities became salient within international law over the
course of the Twentieth Century. One of the most dramatic shifts in public international
law has concerned the treatment of indigenous populations and the rise of the concept of
aboriginal land rights. The new tendencies reached their most visible point with
groundbreaking decisions in the high courts of Australia and Canada. As Common Law
countries, interpretation of law played a role in both decisions, and the respective courts
cited new international custom as a basis for their decisions. This has produced an
interplay between the Common Law and international law, whereby Common Law
decisions both stem from changing international law and contribute to set the standard for
that international law. Many countries with indigenous populations do not employ the
Common Law, and can hardly be bound by the decisions of domestic courts in foreign
countries. Nevertheless, the weight of these decisions in the high courts of Common Law
countries does indeed contribute to the body of international law and contributes to a
changing paradigm. In this way, Common Law courts can, through their example and
insight into new interpretations, directly impact the state of the law as it can be applied in
Civil Law countries.
In this article, I will examine the current state of public international law
regarding aboriginal land rights as evidenced by high court decisions in Australia and
Canada, and ask if court decisions in Common Law countries can provide basis for
determining the current state of public international law, and therefore on its influence
even in Civil Law countries. Canadian and Australian high court decisions serve as good
examples, because these courts do sometimes rely on international customary law to
justify their decisions, which in turn means their decisions carry more international weight
than, for example, the decisions of the United States Supreme Court, which does not feel
bound by and does not attempt to interpret international law. A study of indigenous rights
This article appears in Volume 7 of the New England International and Comparative
Law    Annual,  an   electronic  publication  available  on  the  Internet  at
<http://www.nesl.edu/annual/index.htm>. As young experimental enterprise, the articles and
notes published in the Annual tend to be short pieces, less formal than conventional law
journal articles, which focus on provocative and current issues in the fields of international
and comparative law.
Dr. Ehrlich is Legal Counsel to the Claims Resolution Tribunal, Zurich,
Switzerland. He received his J.D. from The College of William and Mary 1999. In addition, he
holds the following degrees, D.Phil., The University of Oxford 1995; M.Sc. Econs., The
London School of Economics and Political Science 1992; A.B., Harvard College 1991.

I

What Is HeinOnline?

With comprehensive coverage of government documents and more than 2,400 journals from inception on hundreds of subjects such as political science, criminal justice, and human rights, HeinOnline is an affordable option for colleges and universities. Documents have the authority of print combined with the accessibility of a user-friendly and powerful database.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Already a HeinOnline Subscriber?