Legal significance of the UNDRIP

The Special Rapporteur on the Rights of Indigenous Peoples yesterday submitted his annual report to the United Nations General Assembly.  This will be the final such report to the General Assembly to be presented by the current Special Rapporteur, James Anaya, as his term as Special Rapporteur will end in April 2014.  This report provides an interesting reflection on the Special Rapporteur’s work over the six years that Anaya has been in the role.
He concludes his report with some key recommendations aimed at encouraging more effective and more comprehensive implementation of the UN Declaration on the Rights of Indigenous Peoples. Some of these recommendations are particularly relevant to the New Zealand context.
The Special Rapporteur points out that States’ descriptions of the Declaration as non-binding or ‘aspirational’ are not only unhelpful but also misleading. Prime Minister John Key has consistently characterized the Declaration in this way.
However, the Special Rapporteur notes that the Declaration does have significant legal implications.  First, it informs the binding human rights obligations that States have under the UN Charter:

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.]

Second, many of the basic rights affirmed in the Declaration constitute customary international law because they are well-established principles that most States recognize and expect must be complied with:

…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.

Third, the Special Rapporteur identifies that the rights contained within the Declaration reflect rights that are recognized in a number of legally binding human rights treaties and the Declaration consequently informs the interpretation and application of those treaties:

…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.

In any case, the Special Rapporteur also points out that the status of the Declaration and the weight given to it ought not to be measured by its technical legal significance:

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 Special Rapporteur suggests that arguments that characterize the Declaration as strictly non-binding and without legal obligation are fundamentally flawed and simply stand in the way of effective implementation of recognized human rights standards:

…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.

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