While the UN Declaration on the Rights of Indigenous Peoples may not be legally binding per se, in important parts, it reaffirms customary international law, say two law professors.
THE UN General Assembly's adoption of
the UN Declaration on the Rights of Indigenous Peoples on 13 September 2007
marked the end of a long journey, a milestone in the long and arduous march of
what have come to be known as 'indigenous peoples' through the major
institution of organised intergovernmental society: the United Nations. It was
a day of celebration for indigenous leaders and their rank and file scattered
around the globe, united in a common fate of conquest, dispossession,
margina-lisation and neglect, but also in the joy of rising again.
When the United Nations Working Group on
Indigenous Populations was established in 1982, one of its key missions was the
establishment of a declaration of rights of indigenous peoples. Indigenous
peoples from around the world trekked to the Palais des Nations in Geneva each
summer afterwards to articulate their claims to the members of the Working
Group and state delegations. In 1993, under the inspirational leadership of
long-time Chairperson Mrs Erica-Irene Daes, agreement was reached by the
Working Group on a 'Draft Declaration on the Rights of Indigenous Peoples'.
This draft became the basis for discussion within the UN Commission on Human
Rights, which was replaced in 2006 by the Human Rights Council. In its first
substantive decision, the Council on 29 June 2006, by a vote of 30 in favour,
two against and 12 abstentions, adopted a revised text of the Declaration, and
passed it on to the General Assembly for its final approval.
Collective
rights
Beyond recognition of the right to
self-determination, the Council's text formulated an array of tailor-made
collective rights, such as the right to maintain and develop their distinct
political, economic, social and cultural identities and characteristics as well
as their legal systems and to participate fully, 'if they so choose', in the
political, economic, social and cultural life of the state. They were
guaranteed the right not to be subjected to genocide or ethnocide, i.e., action
aimed at or affecting their integrity as distinct peoples, their cultural
values and identities, including the dispossession of land, forced relocation,
assimilation or integration, the imposition of foreign lifestyles and
propaganda. The stated rights guaranteed to indigenous peoples as groups, not
only as individual persons, include the right to observe, teach and practise
tribal spiritual and religious traditions; the right to maintain and protect
manifestations of their cultures, archaeological-historical sites and
artifacts; the right to restitution of spiritual property taken without their
free and informed consent, including the right to repatriate Indian human
remains; and the right to protection of sacred places and burial sites. Further
listed are the rights to maintain and use tribal languages, to transmit their
oral histories and traditions, to education in their language and to control
over their own educational systems. They are afforded the right to maintain and
develop their political, economic and social systems, and to determine and
develop priorities and strategies for exercising their right to development.
Their treaties with states should be recognised, observed and enforced. Last,
but not least, the Declaration supports the right of indigenous people to own,
develop, control, and use the lands and territories which they have
traditionally owned or otherwise occupied and used, including the right to
restitution of lands confiscated, occupied or otherwise taken without their free
and informed consent, with the option of providing just and fair compensation
wherever such return is not possible. The document, in particular, goes beyond
International Labour Organisation (ILO) Convention No. 169 in its statements on
self-determination, land and resource rights, as well as political autonomy.
With very few changes to this content -
amendments that essentially emphasised already-existing constraints on the
right to self-determination and recognised the diversity of contexts - the
Declaration was adopted in September by a landslide affirmative vote of 144
states in the United Nations General Assembly. Only four countries - the United
States, Canada, Australia and New Zealand - voted against it, while Azerbaijan,
Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russia, Samoa
and Ukraine abstained.
Legal
effect
The political significance of this
remarkable success of the indigenous peoples' movement cannot be understated.
The United Nations can be justly proud of this day. What, however, is the legal
effect of this instrument?
For one, a formal analysis of the
Declaration dictates that it does not have legally binding effect per se. That
is true for any non-budget-related resolution of the General Assembly. Yet, the
name 'Declaration' appears to give it a more solemn ring, and takes it closer
to most important policy statements of the organised world community - into the
vicinity of instruments such as the 1948 Universal Declaration of Human Rights.
While these documents are clearly not binding as treaties, individual component
prescriptions of them might have become binding if they can be categorised as
reflective or generative of customary international law.
States voting against this document,
including the US, have rejected 'any possibility that this document is or can
become customary international law'. They stated that it does not constitute
'evidence of customary international law', as lacking support in state
practice, and that it cannot provide 'a proper basis for legal actions,
complaints, or other claims in any international, domestic, or other
proceedings'.
This statement is true as it pertains to
the non-binding nature of the Declaration itself. As far as it proclaims the
absence of state practice in support of the content of the Declaration, the
individual rights pronounced, it needs to be independently assessed - just like
any other claim to the customary international law character vel non of any new
rule. In the case of the UN Declaration on the Rights of Indigenous Peoples,
the negative vote by four governments, even though they have a significant
number of indigenous peoples living in their midst, does not necessarily
invalidate the claims to the customary international law character of
individual key parts of the instrument or of principles embedded in it. This
distinct body of customary international law concerning indigenous peoples, not
necessarily co-extensive with the full reach of the present Declaration, had
formed long before this vote occurred. The starting point for any such analysis
is the International Court of Justice (ICJ)'s definition of the requirements
needed to establish new customary international law, as stated in the North Sea
Continental Shelf Case, i.e., there needs to be a very widespread and
representative state practice in support of the purported new rule, including
the specially affected states, as well as a feeling to be obligated (opinio
juris).
State
practice
In analysing the individual parts of the
Declaration, we see that all new rules of customary international law, as found
in our respective surveys of state and international practice of 1999, 2001,
and 2004, still remain part of the global consensus. As stated in 1999,
'indigenous peoples are entitled to maintain and develop their distinct
cultural identity, their spirituality, their language, and their traditional
ways of life.' Most of the provisions of the Declaration go to the preservation
of culture, language, religion, and identity; and state practice in the states
with indigenous peoples largely conforms to these legal tenets. Due to the
strength of the indigenous renascence throughout the world, the original goal
of assimilation of indigenous cultures into the maelstrom of the modern world
has largely been abandoned in favour of preservation and reinvigoration of
indigenous cultures, languages and religions. The legal guarantees of these
claims are, however, not the real bones of contention.
One of the issues in contention remains
the definition and extent of the right to self-determination. Due to the
insistence of the African governments, this right was expressly conditioned by
the principles favouring the territorial integrity and political unity of
states, principles that are not absolute and that already conditioned the right
of self-determination under international law. Now, very few, if any,
indigenous peoples actually had asked for anything approaching a threat to the
territorial integrity or political unity of existing states. The goal of
'indigenous sovereignty', in particular, was mostly defined in the sense of
cultural and spiritual reaffirmation much more than in the Western sense of
independent political power.
Looking at state practice, very
widespread agreement persists, as stated in 1999, that indigenous peoples 'hold
the right to political, economic and social self-determination, including a
wide range of autonomy and the maintenance and strengthening of their own
system of justice'. Even the US Mission to the United Nations, in the
explanation of its negative vote, pointed out that the 'US government
recognises Indian tribes as political entities with inherent powers of
self-government as first peoples. In our legal system, the federal government
has a government-to-government relationship with Indian tribes. In this
domestic context, this means promoting tribal self-government over a broad
range of internal and local affairs, including determination of membership,
culture, language, religion, education, information, social welfare,
maintenance of community safety, family relations, Economic [sic] activities,
land and resources management, environment and entry by non-members, as well as
ways and means for financing these autonomous functions.' This means at least
the recognition of indigenous peoples' control over their people within their
lands.
Canada, now an opponent, but under its
previous government a longtime and fervent proponent of the Declaration, has
guaranteed widespread autonomy via the concept of aboriginal and treaty rights
in its 1982 Canadian Charter of Rights and Freedoms. In the 1840 Treaty of
Waitangi, in exchange for the Crown's sovereignty over New Zealand, the Maori
retained what they called rangatiratanga, i.e., their chiefs' authority, which
included their power to own, use and manage Maori lands and other resources
according to Maori ways. Colombia, a state abstaining from the Declaration, has
accorded indigenous peoples in their various resguardos far-reaching rights of
internal autonomy. Its 1991 Constitution guarantees respect for their
institutions of self-government, including indigenous courts applying
traditional customary standards.
The same is true for our finding
according to which indigenous peoples have a right under customary
international law to 'demarcation, ownership, development, control and use of
the lands they have traditionally owned or otherwise occupied and used'. This
customary norm, found partly as the result of our global surveys of state
practice, was cited by the Inter-American Commission in its referral of the
Awas Tingni community's complaint against Nicaragua to the Inter-American Court
of Human Rights. The norm underlies the Inter-American Court's interpretation
of the right to property under Article 21 of the American Convention on Human
Rights in its landmark decision in the Awas Tingni Case of 31 August 2001. Once
a rule has attained the status of customary international law, it can only be
abrogated by a new norm of customary law. This year, the African states dropped
their initial lack of comfort with the land rights provisions of the
Declaration.
The domestic practice of the four states
opposing the Declaration likewise is not opposed to the principle of
recognising indigenous peoples' right to lands. Australia's courts had
invigorated the international indigenous peoples' movement with their decisions
in Mabo and Wik, which preceded the Native Title Act and land settlements with
Aboriginal peoples. The Canadian government had proceeded with land settlement
claims and treaties; and the US, in its Observations on the Declaration, only
objected to what it perceived to be the 'overly broad and inconsistent'
language of the provisions on land and resources. It maintained that the
'intent of the States in the Working Group was to encourage the establishment
of mechanisms at the national level for the full legal recognition and
protection of the lands, territories and resources indigenous peoples possess
by reason of traditional ownership, occupation, or use, as well [as] those
which they have otherwise acquired. Furthermore, it was intended that such
recognition should take into account the customs, traditions, and land tenure
systems of the indigenous peoples concerned.' Thus, any potential disagreement
with the Declaration is a matter of a possibly limiting interpretation, not a
denial of the right itself.
Furthermore, no state opposed the
provision of the Declaration that mandates the observance of treaties between
states and indigenous peoples. That is in line with our finding according to
which 'governments are to honour and faithfully observe their treaty
commitments to indigenous nations.'
The US has also stated that the
Declaration's 'failure to define the phrase "indigenous peoples"' is
'debilitating to the effective application and implementation of the
declaration'. 'This obvious shortcoming will subject application of the
declaration to endless debate, especially if entities not properly entitled to
such status seek to enjoy the special benefits and rights contained in the
declaration.' One of us had made this argument years ago and suggested an
appropriate definition, while the other favours the flexibility retained in the
Declaration as passed. The most interesting aspect of the US argument is,
however, the at-least-implicit recognition that indigenous peoples do have a
'status', that they enjoy 'special benefits and rights contained in the
declaration'. Somehow, that does not sit well with the other US argument that
it be solely an 'aspirational declaration with political and moral, rather than
legal, force'. The language of 'rights' and 'status' is the language of law. By
participating in this process and the concern shown over the years for special
rights and status of indigenous peoples on the international plane, the four
opposing states have demonstrated an opinio juris, a willingness to be bound if
the provisions as finally formulated were in line with their detailed policy
preferences.
In any event, only a jus cogens norm
requires virtual unanimity of all members of the world community. The internal
practice of the four opposing states, as well as their consent to accord a
special status and rights to indigenous peoples in principle, makes them part
of the world consensus on customary international law as formulated above. At
most, they can be considered persistent objectors to certain contents of the
Declaration. This status appears to be very much in doubt, however, at least
for Canada, as it counted itself through many years amongst the staunchest
supporters of the Declaration and indigenous peoples' rights - until its
government changed in February 2006.
S James Anaya is James J Lenoir
Professor of Human Rights Law and Policy at the James E Rogers College of Law,
University of Arizona. Siegfried Wiessner is Professor of Law and Director of
the Graduate Program in Intercultural Human Rights at St. Thomas University
School of Law in Miami, Florida. This article is reproduced from the JURIST
website <jurist.law.pitt.edu>.
Bibliography
United Nations Declaration on the Rights
of Indigenous Peoples, 13 September 2007, available at
http://www.ohchr.org/english/issues/indigenous/declaration.htm
Siegfried Wiessner, 'Rights and Status
of Indigenous Peoples: A Global Comparative and International Legal Analysis',
Harvard Human Rights Journal 12 (1999), available at
http://www.law.harvard.edu/students/orgs/hrj/iss12/index.shtml
S James Anaya & Robert A Williams,
Jr., 'The Protection of Indigenous Peoples' Rights over Lands and Natural
Resources Under the Inter-American Human Rights System', Harvard Human Rights
Journal 14 (2001), available at
http://www.law.harvard.edu/students/orgs/hrj/iss14/williams.shtml
S. James Anaya, Indigenous Peoples in
International Law (2nd ed. 2004)
Explanation of vote by Robert Hagen, US
Adviser, on the Declaration on the Rights of Indigenous Peoples, to the UN
General Assembly, with Annex: Observations of the United States with respect to
the Declaration on the Rights of Indigenous Peoples, 13 September 2007, USUN
Press Release # 204(07), available at http://www.diplomacymonitor.com/stu/dm.nsf/dn/dn9694A1E7EC293A8585257355006729CE