The Potential Impact of Indigenous Rights on the International Law of Nationality

Abstract

International law has long recognized that the power of a state to identify its nationals is a central attribute of sovereignty and firmly within the purview of domestic law. Yet these boundaries may be shifting, in part due to the effect of international human rights norms. In 2011, citizenship scholar Peter Spiro asked, “[w]ill international law colonize th[is] last bastion of sovereign discretion?” Ten years later, this essay reframes the question, asking whether the international law of Indigenous Peoples’ rights will “decolonize” the discretion, by encouraging its exercise in ways that respect and enable Indigenous connections to their traditional land. It considers this possibility in light of two recent cases decided by courts in Australia and Canada, both of which ascribe a distinctive legal status to non-citizen Indigenous persons: Love v. Commonwealth, Thoms v Commonwealth (“Love-Thoms,” Australian High Court) and R. v. Desautel (“Desautel,” British Columbia Court of Appeal, currently on appeal before the Supreme Court of Canada). In each case, the court in question recognized that some Indigenous non-citizens have constitutional rights to remain within the state's territory (and perhaps also a correlative right to enter it), by virtue of their pre-contact ancestral ties to land within the state's borders.