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    Indigenous claims have challenged a number of orthodoxies within state legal systems, one of them being the kinds of proof that can be admissible. In Canada, the focus has been on the admissibility and weight of oral traditions and histories. However, these novel forms are usually taken as alternative means of proving a set of facts that are not in themselves “cultural”, for example, the occupation by a group of people of an area of land that constitutes Aboriginal title. On this view, maps are a neutral technology for representing culturally different interests within those areas. Through Indigenous land use studies, claimants have been able to deploy the powerful symbolic capital of cartography to challenge dominant assumptions about “empty” land and the kinds of uses to which it can be put. There is a risk, though, that Indigenous understandings of land are captured or misrepresented by this technology, and that what appears neutral is in fact deeply implicated in the colonial project and occidental ideas of property. This paper will explore the possibilities for an alternative cartography suggested by digital technologies, by Indigenous artists, and by maps beyond the visual order.


Kirsten Anker Ph.D.
Associate Professor, McGill University Faculty of Law, Canada. Many thanks to the two anonymous reviewers for their frank and helpful feedback.

    This article sets out to contribute to the special issue devoted to multi-disciplinary legal research by discussing first the limits of purely doctrinal legal research in relation to a particular topic and second the relevant considerations in devising research that (inter alia) draws on non-legal, auxiliary disciplines to ‘fill in’ and guide the legal framework. The topic concerned is the (analysis of the) fundamental rights of minorities.
    The article starts with a long account of the flaws in the current legal analysis of the European Court of Human Rights regarding minorities’ rights, particularly the reduction in its analysis and the related failure to properly identify and weigh all relevant interests and variables. This ‘prelude’ provides crucial insights in the causes of the flaws in the Court’s jurisprudence: lack of knowledge (about the relevant interests and variables) and concerns with the Court’s political legitimacy.
    The article goes on to argue for the need for multi-disciplinary legal research to tackle the lack of knowledge: more particularly by drawing on sociology (and related social sciences) and political philosophy as auxiliary disciplines to identify additional interests and variables for the rights analysis. The ensuing new analytical framework for the analysis of minorities’ rights would benefit international courts (adjudicating on human rights) generally. To operationalise and refine the new analytical framework, the research should furthermore have regard to the practice of (a selection of) international courts and national case studies.


Kristin Henrard
Professor of minorities and fundamental rights at the Erasmus School of Law.
Artikel

Access_open On Fragments and Geometry

The International Legal Order as Metaphor and How It Matters

Journal Erasmus Law Review, Issue 1 2013
Keywords international law, fragmentation, archaeology, Foucault, geometry
Authors Nikolas M. Rajkovic
AbstractAuthor's information

    This article engages the narrative of fragmentation in international law by asserting that legal academics and professionals have failed to probe more deeply into ‘fragmentation’ as a concept and, more specifically, as a spatial metaphor. The contention here is that however central fragmentation has been to analyses of contemporary international law, this notion has been conceptually assumed, ahistorically accepted and philosophically under-examined. The ‘fragment’ metaphor is tied historically to a cartographic rationality – and thus ‘reality’ – of all social space being reducible to a geometric object and, correspondingly, a planimetric map. The purpose of this article is to generate an appreciation among international lawyers that the problem of ‘fragmentation’ is more deeply rooted in epistemology and conceptual history. This requires an explanation of how the conflation of social space with planimetric reduction came to be constructed historically and used politically, and how that model informs representations of legal practices and perceptions of ‘international legal order’ as an inherently absolute and geometric. This implies the need to dig up and expose background assumptions that have been working to precondition a ‘fragmented’ characterization of worldly space. With the metaphor of ‘digging’ in mind, I draw upon Michel Foucault’s ‘archaeology of knowledge’ and, specifically, his assertion that epochal ideas are grounded by layers of ‘obscure knowledge’ that initially seem unrelated to a discourse. In the case of the fragmentation narrative, I argue obscure but key layers can be found in the Cartesian paradigm of space as a geometric object and the modern States’ imperative to assert (geographic) jurisdiction. To support this claim, I attempt to excavate the fragment metaphor by discussing key developments that led to the production and projection of geometric and planimetric reality since the 16th century.


Nikolas M. Rajkovic
Lecturer in International Law at the University of Kent Law School. Contact: n.rajkovic@kent.ac.uk. The research for this article was supported by a Jean Monnet Fellowship from the Global Governance Programme of the Robert Schuman Centre for Advanced Studies, European University Institute. Further support was given for the presentation and discussion of earlier drafts by COST Action IS1003 “International Law between Constitutionalization and Fragmentation”, the Institute for Global Law and Policy of the Harvard Law School, the Kent Law School and the International Studies Association (San Francisco Annual Convention). I am indebted to the helpful feedback of Tanja Aalberts, Katja Freistein, Alexis Galan, Harry Gould, Outi Korhonen, Philipe Liste, Nicholas Onuf, Kerry Rittich, Harm Schepel, Anna Sobczak, Peter Szigeti, Wouter Werner and the two anonymous reviewers.
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