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The UNDRIP and existing international law

To a great extent, many of the provisions embodied in the UNDRIP do not create new rights, but may be considered a reaffirmation of existing customary international law.67 As James Anaya, former Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, has argued, the Declaration ‘reflects the existing international consensus regarding the individual and collective rights of indigenous peoples in a way that is coherent with, and expands upon, international developments, including the interpretations of other human rights instruments by international bodies and mechanisms’.168 A similar view is expressed by Luis Rodriguez-Pinero, who claims that ‘most of the substantive rights enshrined in the Declaration, notably in key areas such as indigenous peoples’ selfdetermination, autonomy, participation, land and resource rights, cultural rights, and social and economic rights, relate to already existing human rights obligations derived from general treaties, as well as to specific legally-binding instruments on indigenous rights, such as ILO Convention 169’/9 The same conclusion can be found in a recent resolution adopted by the International Law Association (ILA). According to this authoritative opinion/0 ‘the 2007 UNDRIP as a whole cannot yet be considered as a statement of existing customary international law. However it includes several key provisions which correspond to existing state obligations under customary international law.vl Among the UNDRIP norms that may be regarded as evidence of customary international law, the ILA included the following: the right of indigenous peoples to self-determination, autonomy, and self-government; the right to participate in national decision-making with respect to decisions that may affect them; the right to free, prior, and informed consent (FPIC) on projects significantly impacting their rights and ways of life; the right to cultural identity; the right to lands, territories, and resources, including restitution of ancestral lands

Fundamental Freedoms of Indigenous People, S. James Anaya, UN Doc. A/HRC/9/9, 11 Aug. 2008, para. 36.

  • 67 J. Anaya and S. Wiessner, ‘The UN Declaration on the Rights of Indigenous Peoples: Towards Re-empowerment’, Jurist (3 Oct. 2007), .
  • 68 Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, UN Doc. A/HRC/9/9, 11 Aug. 2008, para. 43.
  • 69 L. Rodriguez-Pinero, ‘Where Appropriate: Monitoring/Implementing of Indigenous Peoples’ Rights under the Declaration’, in Charters and Stavenhagen (2009): 336.
  • 70 It has to be taken into account that, according to Art. 38.1.d of the Statute of the International Court of Justice (1945), ‘the teachings of the most highly qualified publicists of the various nations can be considered as subsidiary means for the determination of rules of law’ (emphasis added).
  • 71 Resolution No. 5/2012, 75th Conference of the ILA, Sofia, 26—30 Aug., para. 2.

of which they have been deprived in the past; the right to establish their own educational institutions and media; and the right to reparation and redress for wrongs indigenous peoples have suffered.[1] [2] [3] [4] [5] [6] [7] [8] [9]

This position was explicitly rejected by those states that voted against the UNDRIP (the United States, Canada, Australia, and New Zealand)/3 The clearest opposition came from the United States (USA), denying

any possibility that this document is or can become customary international law ... As this declaration does not describe current state practice or actions that states feel obliged to take as a matter of legal obligation, it cannot be cited as evidence of the evolution of customary international law/4

While recognizing the relevance of the position of these states, it should be noted that they ‘represent only a minority of states specially affected by the Declaration’^ As a consequence of this, the position of these states would be unable to prevent the emergence of international customary law/6 However, it is likely that they could have been considered persistent objectors, given that they opposed the text of the UNDRIP from the earliest drafting stages. Fortunately for the indigenous peoples’ cause, these four states have changed their official positions vis-a-vis the UNDRIP and endorsed it, having repeatedly reiterated that the Declaration is neither legally binding nor a statement of current international law, and will not influence their domestic legal orders.

Some of the provisions of the UNDRIP can even be considered as evidence of already existing rights under general international law, thus having an erga omnes effect. Among those norms that have turned into ius cogens norms, we may refer to ‘the right of peoples and individuals to be free from any kind of discrimination, in particular that based on their indigenous origin or identity’Th the right not to be subjected to any act of genocide/8 the right to practise their own cultural traditions and customs/9 or ‘the right to participate in decision-making in matters which would affect their rights’.8°

  • [1] Resolution No. 5/2012, 75th Conference of the ILA, Sofia, 26—30 Aug., para 2.
  • [2] For further details on the statements made by these countries, see Leticia Villeneuves contribution in this volume.
  • [3] United States, ‘Observations of the United States with respect to the Declaration on the Rightsof Indigenous Peoples: Explanation of Vote by Robert Hagen, U.S. Advisor, on the Declaration on theRights of Indigenous Peoples, to the UN General Assembly’, 13 Sept. 2007.
  • [4] Barelli (2009): 967.
  • [5] 76 M. Meza-Lopehandfa, ‘El derecho internacional de los derechos humanos y los pueblos indfge-nas’, in Los pueblos indigenas y el derecho, Jose Aylwin (coord.) (Santiago de Chile: LOM Ediciones, 2013): 466.
  • [6] Art. 2, UNDRIP. 78 Art. 7.
  • [7] 79 Art. 11. On the role of indigenous customary law for the development of indigenous peo
  • [8] ples and for the establishment of an intercultural justice and equity, see the illuminating essay by B.Tobin, Indigenous Peoples, Customary Law and Human Rights: Why Living Law Matters (New York:Routledge, 2014).
  • [9] 8° Art. 18.
 
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