Although technically a resolution, the Declaration has legal significance, first, because it reflects an important level of consensus at the global level about the content of indigenous peoples’ rights, and that consensus informs the general obligation that States have under the Charter — an undoubtedly binding multilateral treaty of the highest order — to respect and promote human rights, including under Articles 1 (2), 1 (3), 55 and 56 of the Charter. The Declaration was adopted by an overwhelming majority of Member States and with the support of indigenous peoples worldwide and, as noted earlier, the few States that voted against the Declaration each subsequently reversed their positions. Especially when representing such a widespread consensus, General Assembly resolutions on matters of human rights, having been adopted under the authority of the Charter itself, can and do inform Member States’ obligations under the human rights clauses of the Charter. [see Ian Brownlie, Principles of Public International Law (Oxford, 7th ed., 2009), p. 15.]
…some aspects of the Declaration — including core principles of non-discrimination, cultural integrity, property, self-determination and related precepts that are articulated in the Declaration — constitute, or are becoming, part of customary international law or are general principles of international law, as found by the International Law Association after a committee of experts conducted an extensive survey of international and State practice in relation to the Declaration.2 A norm of customary international law arises when a preponderance of States (and other actors with international personality) converge on a common understanding of the norm’s content and generally expect compliance with, and share a sense of obligation to, the norm. It cannot be much disputed that at least some of the core provisions of the Declaration, with their grounding in well-established human rights principles, possess these characteristics and thus reflect customary international law.
…the Declaration is an extension of standards found in various human rights treaties that have been widely ratified and that are legally binding on States. Human rights treaties with provisions relating to the rights of indigenous peoples include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination. The human rights treaty bodies that interpret and apply these treaties now frequently apply their provisions in ways that reflect the standards in the Declaration and sometimes explicitly refer to the Declaration in doing so. This happens, in particular, with regard to treaty provisions affirming principles of non-discrimination, cultural integrity and self-determination: principles that are also incorporated into the Declaration and upon which the Declaration elaborates with specific reference to indigenous peoples. Although the Declaration is not necessarily dispositive when interpreting a treaty the provisions of which intersect with those of the Declaration, it provides important guidance of significant weight.
Whatever its legal significance, moreover, the Declaration has a significant normative weight grounded in its high degree of legitimacy. This legitimacy is a function not only of the fact that it has been formally endorsed by an overwhelming majority of United Nations Member States, but also the fact that it is the product of years of advocacy and struggle by indigenous peoples themselves. The norms of the Declaration substantially reflect indigenous peoples’ own aspirations, which after years of deliberation have come to be accepted by the international community. The Declaration’s wording, which has been endorsed by Member States, explicitly manifests a commitment to the rights and principles embodied in the Declaration. It is simply a matter of good faith that States adhere to that expression of commitment to the norms that indigenous peoples themselves have advanced.
…the significance of the Declaration is not to be diminished by assertions of its technical status as a resolution that in itself has a non-legally binding character. The Special Rapporteur reiterates that implementation of the Declaration should be regarded as political, moral and, yes, legal imperative without qualification.