II EMERGING HUMAN RIGHTS REGIMES
The Role of Soft Law in the Progressive Development of Indigenous Peoples’ Rights
Felipe Gomez Isa
Indigenous peoples have been systematically excluded from the process of evolution of International Human Rights Law.1 The International Labour Organization (ILO) adopted in 1957 and 1989 the two major conventional instruments for the recognition and protection of indigenous peoples’ rights (ILO Convention No. 107 and ILO Convention No. 169, respectively). Despite the current relevance of ILO Convention No. 169, it faces significant problems in terms of scope (only twenty- two states have ratified it so far), content, and effective mechanisms for implementation.
In the 1970s and 1980s the United Nations (UN) started to pay increasing attention to the situation of indigenous peoples worldwide, introducing a number of initiatives to adequately deal with their claims and opening institutional spaces for their meaningful participation. Against the background of the emerging mobilization of indigenous peoples at both domestic and international level, certain relevant soft law documents were adopted, and UN human rights treaty bodies and UN specialized agencies gradually focused on the marginalized situation of indigenous peoples. The most remarkable achievement within this movement has been the adoption, on 13 September 2007, of the United Nations Declaration on the Rights of Indigenous Peoples2 (UNDRIP) by an overwhelming majority at the UN General Assembly. Since the 1980s, the adoption of such a document was one of the main demands of indigenous organizations and representatives. Being fully aware of its non-binding nature, they were convinced that the UN
- 1 F. Gomez Isa, ‘The Right to Development: Translating Indigenous Voice(s) into Development Theory and Practice’, in Improving Delivery in Development: The Role of Voice, Social Contract, and Accountability, The World Bank Legal Review vol. 6, ed. J. Wouters, A. Ninio, T. Doherty, and H. Cisse (Washington, DC: The World Bank, 2015): 91.
- 2 UN Doc. GA Resolution 61/295, 13 Sept. 2007.
Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and John Cerone. © Stephanie Lagoutte, Thomas Gammeltoft- Hansen, and John Cerone 2016. Published 2016 by Oxford University Press.
Declaration could play a relevant role in the dynamic and challenging interplay between hard and soft law, thus contributing significantly to the recognition and implementation of indigenous rights at both domestic and international level. In this sense, the Declaration’s context and content, as well as the institutional architecture for its implementation and the circumstances under which it was adopted, help clarify its legal scope and likelihood of influencing both state behaviour and the actions of international organizations as regards indigenous peoples, in particular the UN.
This chapter is aimed at exploring the potential, as well as the limitations and contradictions, of soft law instruments (primary soft law) and soft law decisions and general comments (secondary soft law) in terms of fostering the process of progressively developing indigenous peoples’ rights. In fact, in spite of its very recent adoption, the Declaration has already had far-reaching legal implications. For example, in November 2007, Bolivia not only adopted a law that incorporated the UNDRIP into its domestic legal system, but also included some of its provisions in the new Constitution approved in 2009. Along the same lines, certain domestic courts, the Inter-American Court of Human Rights, the African Commission on Human and Peoples’ Rights, and the UN human rights treaty bodies have used the UNDRIP as the legal basis for some ground-breaking decisions affirming indigenous rights.
The second part of the chapter analyses the contradictory nature of international law as far as indigenous peoples are concerned. While traditional international law played a significant role in the process of subjugation and domination of indigenous peoples, contemporary international law has been used by indigenous peoples as a privileged avenue for articulating their claims and calling for reparation of the historical injustices perpetrated against them. The third section analyses the emergence of soft law as a conceptual category, its main contours, and its influence on both international law in general and international human rights law in particular. This essay’s core lies in section 4, where I delineate how soft law has been of utmost importance for the evolution of indigenous peoples’ rights in the last decades. The UNDRIP has marked the culmination of the progressive process of recognition of indigenous rights. Irrespective of its uncertain legal nature, it has become an indispensable point of reference when interpreting the rights of indigenous peoples at both domestic and international level, thus performing a norm-filling function. At the same time, some provisions of the UNDRIP have already become customary law, or are in the process of emerging as new customary rules of international law. By virtue of this evolutionary legal process, soft law can also play what the editors of this volume refer to as a norm-creating role.