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The legal value of the UNDRIP

As we already know, resolutions of the UN General Assembly are not binding per se, since they are considered ‘recommendations’ by Article 13.1 of the UN Charter.[1] [2] [3] [4] [5] However, under certain circumstances, some scholars argue that the General Assembly can have a ‘quasi-legislative competence’,82 and can participate in the process of progressive development of international law. When the resolution is adopted as a ‘Declaration’, the likelihood of having legal effects is much higher,83 as was the case with the Universal Declaration of Human Rights (1948). Some Declarations of the UN General Assembly, especially those aimed at proclaiming legal principles and adopted by a significant majority, can be considered an expression of the opinio iuris of states^4 one of the required elements for the formation of new rules of customary law if followed by consistent state practice. Thus, in 1962, the Office of Legal Affairs of the UN Secretariat adopted a highly relevant opinion regarding the legal nature of Declarations adopted by the UN General Assembly. According to this Memorandum, a Declaration ‘is a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are being enunciated’.85 Therefore, with the adoption of the UNDRIP as a ‘Declaration’, the international community is recognizing that the rights and principles enshrined in the UNDRIP are of special significance, generating expectations of maximum compliance. Provided that these expectations are followed by state practice, ‘a

Declaration can be considered as an instrument enunciating obligatory rules for states as customary law’.[5] [7] [8] [9]

When trying to ascertain the legal value of the UNDRIP, three elements are of utmost importance: the circumstances of the instrument’s adoption, the precision and normative nature of its content, and the existence of implementation mechanisms.

The adoption of the UNDRIP in 2007 is the result of more than twenty years of intense and controversial negotiations in which indigenous peoples and their close allies achieved very significant levels of participation. Undoubtedly, the way in which this process was conducted, together with its highly positive outcomes, will come to influence international norm-creation exercises in other areas of international law in general, and international human rights law in particular. H. Patrick Glenn situates the Declaration within a broader international law movement. In his view, the Declaration ‘would represent not simply a use or application of international law, in novel circumstances, but a major shift in the nature and direction of international law itself’77

The inclusiveness of the process and the support from a number of bodies and instances within the UN, and from states themselves, provides the Declaration with a high degree of legitimacy that is certain to increase compliance. The UN has been highly supportive from the outset, and we have already mentioned how relevant bodies such as the WGIP and the WGDD have adapted their procedural rules to the specificities and needs of indigenous representatives and organizations. The World Conference on Human Rights (1993) issued a strong call for the promotion and protection of the rights of indigenous peoples. According to the Vienna Declaration and Programme of Action, ‘States should, in accordance with international law, take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and nondiscrimination, and recognize the value and diversity of their distinct identities, cultures and social organization.^ At the same time, the World Conference urged the WGIP ‘to complete the drafting of a declaration on the rights of indigenous people’89 and recommended ‘that the General Assembly proclaim an international decade of the world’s indigenous people’.[10] This recommendation was welcomed by the General Assembly, which proclaimed the International Decade for the World’s

Indigenous People (1995—2004).[11] In spite of certain shortcomings,'[12] especially the failure to adopt the Declaration on the rights of indigenous peoples, a number of relevant institutional developments must be highlighted, in particular the creation of the Permanent Forum on Indigenous Issues (PFII, 2000) and the Special Rapporteur on the rights of indigenous peoples, two remarkable achievements on the part of the global indigenous movement. A Second International Decade of the World’s Indigenous People (20 05—14)[13] was announced by the General Assembly, with one of the basic goals of this new Decade being the adoption of the Declaration. The 2005 World Summit also focused specifically on the issue of the rights of indigenous peoples. As stated in the World Summit Outcome, ‘we reaffirm our commitment to continue making progress in the advancement of the human rights of the world’s indigenous peoples at the local, national, regional and international levels, including through consultation and collaboration with them, and to present for adoption a final draft United Nations declaration on the rights of indigenous peoples as soon as possible’ .[14] [15] [16] [17] [18] All these initiatives, and many others not mentioned in this chapter, unequivocally signal a ‘systemic interest in indigenous concerns within the UN system’.'5

The final vote on the UNDRIP at the UN General Assembly is also an indication of the international consensus regarding the document. As one scholar has highlighted in this respect,

the adoption of resolutions such as the UNDRIP should not be taken to have an intrinsic impact on customary international law, but rather to function as an inspiration for future practice and as an occasion for individual states to make collateral statements that clarify their attitude with regard to the customary law of indigenous rights.'6

The International Law Association (ILA) has also stressed the importance of looking beyond the votes on a specific resolution. According to the ILA, ‘the circumstances of adoption need to be examined closely. It is necessary to examine, not just who voted for the resolution as a whole, but also the explanations or comments accompanying each vote and the paragraph by paragraph votes of States.’'7 As we know, 144 states voted in favour of the Declaration, eleven abstained,'8 and four voted against. In an interesting development since 2007, the four states that voted against have now all endorsed the Declaration. Along the same lines, two of the abstaining states, Colombia and Samoa, have also made up their mind to subsequently endorse the Declaration. This overwhelming support for the UNDRIP shows a clear commitment on the part of the international community to support protection of the rights enshrined in the Declaration and promote compliance, and can be considered as clear evidence of opinio iuris which, if accompanied by consistent state practice, may give rise to new rules of customary international law.

The second element to be taken into account deals with the precision and normative content of the rights incorporated in the UNDRIP. First of all, it should be observed that the Declaration is the longest human rights instrument ever adopted in the UN. It was negotiated over a period of more than twenty years, allowing for substantive consultations and proposals as well as the development of highly precise provisions, in terms of both content and scope. Besides, as we have already mentioned, many of the provisions are evidence of pre-existing customary international law and conventional law, especially ILO Convention 169." As proclaimed in the Declaration itself, ‘the rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world’.[19] [20] [21] [22]

The final determining factor for calibrating the legal value of the UNDRIP is the existence of mechanisms for its implementation. The UNDRIP does not create specific follow-up mechanisms, but it relies on existing bodies at both international and state level. The only body explicitly mentioned is the Permanent Forum on Indigenous Issues (PFII), which is thus placed ‘at the forefront in ensuring the effective implementation of the Declaration’. 101 According to Article 42 of the Declaration,

The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.

In Luis Rodriguez-Pinero’s view, the main goal of this provision is ‘mainstreaming and operationalizing’102 the promotion of the rights enshrined in the Declaration within the activities of UN bodies, specialized agencies, regional organizations, and states. Therefore, measures for implementing the UNDRIP will need to be taken at three parallel and interrelated levels: international, regional, and national.

At the international level, it is clear that a large number of UN bodies and specialized agencies are increasingly using the UNDRIP as a point of reference when interpreting international legal standards and their mandates. First of all, the mechanisms created specifically to address indigenous issues refer explicitly to the UNDRIP as an interpretative guide. The PFII, which aims to mainstream indigenous issues throughout the whole UN system,[23] [24] [25] [26] [27] [28] plays a pivotal role and is thus in a key position for implementing the UNDRIP. In its 2008 session, the PFII welcomed the adoption of the Declaration and stated that it would constitute ‘its legal framework’.104 Similarly, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (SR) was also entrusted with the mandate of promoting the UNDRIP,m and has worked very hard to make this possible. As stated by James Anaya, former SR, the UNDRIP

represents an authoritative common understanding, at the global level, of the minimum content of the rights of indigenous peoples, upon a foundation of various sources of international human rights law ... The principles and rights affirmed in the Declaration constitute or add to the normative frameworks for the activities of United Nations human rights institutions, mechanisms and specialized agencies as they relate to indigenous peoples.106

Finally, the recently created Expert Mechanism on the Rights of Indigenous Peoples^ (EMRIP) is another body that can significantly contribute to implementation of the UNDRIP. Given its technical and advisory function as a body composed of five independent experts, the EMRIP is in a ‘privileged position to contribute to promoting authoritative interpretations of the standards of the Declaration’.^8

UN specialized agencies are also paying an increasing attention to indigenous peoples in their daily work. The United Nations Educational, Scientific, and Cultural Organization (UNESCO) has promoted a strong link between cultural diversity, human dignity, environmental protection, and indigenous peoples.

Accordingly, one of the guiding principles of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) is precisely the equal dignity and respect of all cultures. As proclaimed in Article 3 of the Convention, ‘the protection and promotion of the diversity of cultural expressions presuppose the recognition of equal dignity of and respect for all cultures, including the cultures of persons belonging to minorities and indigenous peoples’. As a clear signal of UNESCO’s commitment to the UNDRIP, the Organization participated in the Task Team of the Inter-Agency Support Group on Indigenous Issues (IASG) that adopted the United Nations Development Group (UNDG) Guidelines on Indigenous Peoples’ Issues[29] [30] [31] [32] in February 2008, issued to help orient UN country teams in their efforts to mainstream and integrate the principles of the Declaration in development programmes at the country level.

The World Health Organization (WHO) has also been very active in the promotion of indigenous peoples’ right to health. In the Geneva Declaration on the Health and Survival of Indigenous Peoples (1999), the WHO expressed its deep concern that ‘the health of Indigenous Peoples in every region of the world is acknowledged to be in a poor state due to the negation of our way of life and world vision, the destruction of our habitat, the decrease of bio-diversity, the imposition of substandard living and working conditions, the dispossession of traditional lands and the relocation and transfer of populations’. Since then, the WHO Assembly has adopted a number of resolutions to promote the right of indigenous peoples to the highest attainable standard of health.110

Last but not least, the World Bank has also adopted some relevant policy guidelines on indigenous peoples and has paid increasing attention to the normative developments related to indigenous peoples’ rights.m In its Revised Operational Policy and Bank Procedure on Indigenous Peoples, the World Bank recognizes that indigenous peoples ‘play a vital role in sustainable development and that their rights are increasingly being addressed under both domestic and international law’.n2

The UN human rights treaty bodies have gradually begun incorporating indigenous peoples’ rights into their interpretations of human rights conventions.113 More recently, they have referred explicitly to the UNDRIP as a point of reference when interpreting legal standards for international human rights. Along these lines, the recent World Conference on Indigenous Peoples invited the human rights treaty bodies ‘to consider the Declaration in accordance with their respective mandates’, and encouraged states ‘to include ... information on the situation of the rights of indigenous peoples, including measures taken to pursue the objectives of the Declaration, in reports to those bodies’.n4

The pioneers of attempting to mainstream indigenous peoples’ rights into their work were the Human Rights Committee (HRC) and the Committee on the Elimination of All Forms of Racial Discrimination (CERD). The HRC has progressively interpreted the cultural rights enshrined in Article 27 of the International Covenant on Civil and Political Rights (ICCPR), linking them to the way in which indigenous peoples enjoy their lands and natural resources. Accordingly, the HRC has observed that ‘culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law’.n5 In a very similar way, the CERD has also established strong links between racial discrimination and the dispossession of indigenous peoples’ land and cultural rights. The CERD has affirmed that it is ‘conscious of the fact that in many regions of the world indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized.’n6 Accordingly, ‘the Committee especially calls upon States parties to recognize and protect the rights of indigenous peoples to own, develop, control instruments such as the United Nations Declaration on the Rights of Indigenous Peoples and the OAS Draft American Declaration on the Rights of Indigenous Peoples. These instruments in turn have played an instrumental role in the adoption by many countries in the region of constitutional and legal provisions recognizing the pluriethnic and multicultural nature of their societies and the specific rights of indigenous peoples’ (emphasis added), Inter-American Development Bank, Operational Policy on Indigenous Peoples, GN-2296, 11 Mar. 2004, Annex I, para 1.4, .

  • 113 Thornberry (2002): 116. See the very useful Compilation of the indigenous-related jurisprudence of the relevant UN human rights treaty bodies by Fergus Mackay (comp.), Indigenous Peoples and United Nations Human Rights Bodies (Moreton- i n-Marsh: Forest Peoples Programme, 2013), .
  • 114 Outcome Document of the High-Level Plenary Meeting of the General Assembly Known as the World Conference on Indigenous Peoples, UN Doc. A/RES/69/2, 22 Sept. 2014, para. 29.
  • 115 Human Rights Committee, General Comment No. 23: Article 27 (Rights of Minorities), 8 Apr. 1994, UN Doc. CCPR/C/21/Rev.1/Add.5, para. 7 (emphasis added).
  • 116 CERD, General Recommendation 23, Rights of Indigenous Peoples (1997), UN Doc. A/52/ 18, para. 3.

and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories’.[33] [34] [35] [36] [37] [38]

The Convention on the Rights of the Child (CRC) was one of the first core human rights treaties that explicitly recognized the rights of indigenous children,n8 and the Committee on the Rights of the Child has been increasingly active in trying to promote the UNDRIP. As the Committee affirmed in a recent General Comment expressly devoted to the rights of indigenous children, the UNDRIP ‘provides important guidance on the rights of indigenous peoples’.n9 Other treaty bodies such as the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW Committee) and the Committee on Economic, Social, and Cultural Rights (Com. ESCRs) are also paying increasing attention to the specific concerns of indigenous peoples and are developing relevant decisions and observations using the UNDRIP as the legal point of reference. The CEDAW Committee has focused on the particularly marginalized position of indigenous women in relation to the enjoyment of a number of human rights. 12° When the Committee issued its Concluding Observations on Nepal, it declared that it was ‘deeply concerned about the multiple forms of discrimination against disadvantaged groups of women such as Dalit and indigenous women’.121 Similarly, the Com. ESCRs has explicitly referred to the specific needs and the especially vulnerable situation of indigenous peoples in terms of a number of rights. For instance, in the context of the right to food, the Committee emphasized that ‘a particular vulnerability is that of many indigenous population groups whose access to their ancestral lands may be threatened’.^ The same rationale has been applied by the

Committee regarding the indigenous peoples’ rights to education,123 health,124 and water.!25

This promising evolution experienced by human rights treaty bodies has made it clear that ‘whenever issues relating to human rights violations against indigenous peoples by states are raised they will utilize the UNDRIP as the interpretative standard by which to judge state compliance under the conventions’.06

At the regional level, both the Inter-American Court of Human Rights07 and the African Commission on Human and Peoples’ Rights08 are using the UNDRIP

  • 123 The Committee highlighted that States must ‘fulfil (facilitate) the acceptability of education by taking positive measures to ensure that education is culturally appropriate for minorities and indigenous peoples’, Committee on ESCRs, General Comment No. 13: The Right to Education (Art. 13), UN Doc. E/C.12/1999/10, 8 Dec. 1999, para. 50.
  • 124 ‘The Committee considers that indigenous peoples have the right to specific measures to improve their access to health services and care. These health services should be culturally appropriate, taking into account traditional preventive care, healing practices and medicines. States should provide resources for indigenous peoples to design, deliver and control such services so that they may enjoy the highest attainable standard of physical and mental health. The vital medicinal plants, animals and minerals necessary to the full enjoyment of health of indigenous peoples should also be protected. The Committee notes that, in indigenous communities, the health of the individual is often linked to the health of the society as a whole and has a collective dimension. In this respect, the Committee considers that development-related activities that lead to the displacement of indigenous peoples against their will from their traditional territories and environment, denying them their sources of nutrition and breaking their symbiotic relationship with their lands, has a deleterious effect on their health’, Committee on ESCRs, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), UN Doc. E/C.12/2000, 11 Aug. 2000, para. 27.
  • 125 ‘States parties should ensure that there is adequate access to water for subsistence farming and for securing the livelihoods of indigenous peoples’, Committee on ESCRs, General Comment No. 15: The Right to Water (Arts. 11—12), UN Doc. E/C.12/2002/11, 20 Jan. 2003, para. 7.
  • 126 M. B. Trask, Afterword: Implementing the Declaration’, in Pulitano (2012): 335. The recently created universal periodic review (UPR) by the UN Human Rights Council can also be considered as a window of opportunity for mainstreaming indigenous peoples’ rights and the UNDRIP within the UN human rights bodies. Accordingly, the World Conference of Indigenous Peoples encouraged ‘Member States to include, as appropriate, information on the situation of the rights of indigenous peoples, including measures taken to pursue the objectives of the Declaration ... during the universal periodic review’, Outcome Document of the High-Level Plenary Meeting of the General Assembly Known as the World Conference on Indigenous Peoples, UN Doc. A/RES/69/2, 22 Sept. 2014, para. 29. On the limited impact of the UPR on indigenous rights so far, see: D. O. Martinez, Los pueblos indigenas a la conquista de sus derechos (Madrid: Boletfn Oficial del Estado, 2012): 878—9. An interesting analysis of how the rights of indigenous peoples were dealt with during the first cycle of the UPR can be found in N. Higgins, ‘Advancing the Rights of Minorities and Indigenous Peoples: Getting UN Attention Via the Universal Periodic Review’, Netherlands Quarterly of Human Rights vol. 32/4 (2014): 379^07.
  • 127 A general overview of the impact of the Inter-American system for human rights on the UNDRIP can be found in: M. S. Campbell, ‘Contribucion del sistema interamericano en la definicion e interpretacion de la Declaracion de la ONU sobre los Derechos de los Pueblos Indigenas’, in Los derechos indigenas tras la Declaracion: el desafio de la implementation, ed. F. Gomez Isa and M. Berraondo (Bilbao: Universidad de Deusto, 2013): 113—36.
  • 128 On the conflicting emergence of indigenous peoples’ rights in the African context, see: F. Viljoen, International Human Rights Law in Africa (Oxford: Oxford University Press, 2012); F. Mukwiza Ndahinda, Indigenousness in Africa: A Contested Legal Framework for Empowerment of Marginalised Communities (The Hague: Asser Press, 2011); Jeremie Gilbert, ‘Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the African Commission on Human and Peoples’ Rights’, International and Comparative Law Quarterly vol. 60 (2011): 245—70. On the position of African States vis-a-vis the process of adoption of the UNDRIP and the UNDRIP itself, see: A. K. Barume, ‘Responding to the Concerns of the African States’, in Charters and Stavenhagen (2009): 170—83.

as one of the legal bases for their findings and decisions.09 The UNDRIP, and the positive vote by Suriname at the UN General Assembly, were used by the Inter-American Court of Human Rights in its judgment on Saramaka People v. Suriname,[39] [40] [41] [42] [43] [44] [45] a case in which the Court affirmed the indigenous peoples’ rights over land, territories, and natural resources. The Court affirmed that states have the obligation ‘to obtain the consent of indigenous and tribal peoples to carry out large-scale development or investment projects that have a significant impact on the right of use and enjoyment of their ancestral territories’.0! This is a far- reaching decision, since the Court implicitly recognized that these standards are operative principles of international law irrespective of the normative scope of the Declaration and despite the fact that the state involved in this specific case is not a party to ILO Convention 169. More recently, the Inter-American Court has also explicitly referred to the UNDRIP in the Case of Kichwa Indigenous People of Sarayaku v. Ecuador2 The decision of this regional human rights Court to resort to the UNDRIP must be seen as a very positive step towards its implementation in the Americas. In Loreto Ferrer’s view, the decisions by the InterAmerican Court ‘constitute authorized interpretations of the rights enshrined in the American Convention ... and other legal instruments. Therefore, they have erga omnes effects.’i33 Accordingly, the provisions of the UNDRIP must be used by states at least ‘as parameters to interpret their human rights obligations’.04

The African Commission on Human and Peoples’ Rights (ACHPR) has also been open to incorporating the UNDRIP in the legal framework it is bound to apply. Just some two months after the approval of the UNDRIP, the ACHPR welcomed its adoption and stated that ‘the Declaration will become a very valuable tool and a point of reference for its efforts to ensure the promotion and protection of indigenous peoples’ rights on the African continent’.°5 In a memorable decision in May 2009,136 the African Commission stated that the forcible eviction of the Endorois people from their traditional lands near Lake Bogoria by the government of Kenya without prior consultation and with no provision for compensation was a violation of a number of rights under the African Charter on Human and Peoples’ Rights (ACHPR) and under the UNDRIP.137 The African Commission has also urged that existing treaty obligations be interpreted in light of the provisions of the UNDRIP. The UNESCO World Heritage Convention (1972) does not require the free, prior, and informed consent of indigenous peoples to inscribe indigenous sites on the World Heritage List. Against this background, the World Heritage Committee inscribed Lake Bogoria National Reserve on the World Heritage List without the free, prior, and informed consent of the Endorois, and despite the fact that the Endorois Welfare Council had urged the Committee to defer the nomination because of the lack of meaningful consultation. The ACHPR first considered that the decision constituted ‘a violation of the Endorois’ right to development under Article 22 of the African Charter’.138 At the same time, the Commission urged the World Heritage Committee and UNESCO to review their procedures ‘in order to ensure that the implementation of the World Heritage Convention is consistent with the UN Declaration on the Rights of Indigenous Peoples’.^9 At the national level, indigenous peoples’ rights have also been gradually recognized both legislatively and judicially, 1[46] [47] [48] [49] [50] [51] [52] [53] [54] [55] [53] [57] [58] [59] [60] [61] [62] [63] [64] [65] [66] [67] [68] [69] [70] [71] [72] [73] opening avenues for their effective implementation.!4! First of all, many states, especially in Latin America, have undergone constitutional changes for the incorporation of indigenous peoples’ rights, thus heralding the emergence of so-called multicultural constitutionalism.1^ The most significant development was in Bolivia/43 where a law^4 was adopted to explicitly incorporate the UNDRIP in the country’s domestic legal system. At the judicial level, the Colombian Constitutional Court/45 the Constitutional Court of Peru/46 and the Supreme Court of Belize have all used the UNDRIP in certain decisions. It is worth noting that the Supreme Court of Belize issued ‘the first court judgment ever to apply the UNDRIP ... barely a month after its adoption’.^ The Supreme Court referred specifically to Belize’s vote in favour of the UNDRIP as a clear commitment to future compliance in the Case of the Maya Villages of Belize. As stated by the Supreme Court, ‘General Assembly resolutions are not ordinarily binding on member states. But where these resolutions or Declarations contain principles of general international law, states are not expected to disregard them.’i4® And the Court continued emphasizing that ‘it is of some signal importance ... that Belize voted in favour of the

  • 142 See e.g.: D. L. Van Cott, The Friendly Liquidation of the Past: The Politics of Diversity in Latin America (Pittsburgh: University of Pittsburgh Press, 2000); Multiculturalism in Latin America: Indigenous Rights, Diversity and Democracy, ed. R. Sieder (London: Palgrave, 2002); D. Bonilla Maldonado, La constitution multicultural (Bogota: Siglo del Hombre Editores, 2006); B. Clavero, ‘Derechos indfgenas y constituciones latinoamericanas’, in Pueblos indigenas y derechos humanos, ed. M. Berraondo (coord.) (Bilbao: Universidad de Deusto, 2006): 313—38; Pueblos indi- genas: constituciones y reformas politicas en America Latina, ed. R. Yrigoyen Fajardo (Lima: Instituto Internacional de Derecho y Sociedad, 2010).
  • 143 The new constitutions of Bolivia (2009) and Ecuador (2008) are leading examples of a new wave of constitutionalism known asplurinationalconstitutionalism. See: A. Schilling-Vacaflor and R. Kuppe, ‘Plurinational Constitutionalism: A New Era of Indigenous-State Relations?’, in New Constitutionalism in Latin America: Promises and Practices, ed. D. Nolte and A. Schilling-Vacaflor (Farnham: Ashgate, 2012): 347—70; C. Mamani Condori, ‘Bolivia: pueblos indfgenas y estado plurinacional’, in Isa and Ardanaz (2011): 179-98.
  • 144 Ley3760de los derechos de los pueblos indigenas, 7 Nov. 2007. Along the same lines, the Parliament of Nicaragua adopted a formal statement to welcome the adoption of the UNDRIP, and to promote the ‘harmonization of the domestic legal system’ with the provisions of the UNDRIP, Declaration A.N. No. 001-2008, 11 Mar. 2008, para. 4.
  • 145 F. Gomez Isa, ‘Cultural Diversity, Legal Pluralism, and Human Rights from an Indigenous Perspective: The Approach by the Colombian Constitutional Court and the Inter-American Court of Human Rights’, Human Rights Quarterly vol. 36 (2014): 736 and following. A recent decision by the Colombian Constitutional Court on prior consultation to indigenous peoples used ILO Convention 169, the jurisprudence of the Inter-American Court of Human Rights, and the UNDRIP as the legal foundations, Corte Constitucional de Colombia, Sentencia T-129, 3 Mar. 2011, 72. An in-depth analysis of this decision can be found in: C. Zapata, ‘Judgement T-129 of 2011 of the Colombian Constitutional Court’, in Ferrer and Borraz (2013): 333-8.
  • 146 The Constitutional Court of Peru has also referred to ILO Convention 169, the jurisprudence of the Inter-American Court of Human Rights and the UNDRIP to reaffirm the rights of indigenous peoples to their lands and territories in the Tres Islas indigenous community Case, Sentencia del Tribunal Constitucional, Exp. No. 01126-2011-HC/TC, 11 Sept. 2012, para. 23.
  • 147 Maia S. Campbell and S. James Anaya, ‘The Case of the Maya Villages of Belize: Reversing the Trend of Government Neglect to Secure Indigenous Land Rights’, Human Rights Law Review vol. 8/ 2 (2008): 377.
  • 148 Manuel Coy, Maya Village of Conejo, Manuel Caal, Perfecto Makin, Melina Makin Claimants v. Attorney General of Belize, Minister of Natural Resources, and Environmental Defendants, Supreme Court of Belize, 18 Oct. 2007, para. 131.

Declaration’.[74] [74] [76] [77] Finally, the Court was of the view that Article 26 of the UNDRIP reflects ‘the growing consensus and the general principles of international law on indigenous peoples and their lands and resources’.^0

While we must welcome these progressive jurisprudential developments at domestic level, we also cannot ignore that ‘what initially seemed a positive trend towards the materialization of ... the Declaration at the domestic level, turned out to be isolated events’. 151 Loreto Ferrer goes on to express further caution: ‘since the adoption of the Declaration, most Latin American states have been reluctant to accept its applicability in the domestic sphere, being relegated to just an aspira- tional document ... Many judges and magistrates in the region do not know the Declaration or see it as an aspirational document.’^

In sum, as this chapter has shown, there is a significant emerging practice at the international, regional, and domestic levels that provides solid ground for the conclusion that the UNDRIP has become a point of reference when interpreting and applying indigenous rights, and that at least some of the key provisions of the UNDRIP have already become customary international law, or are in the process of emerging as new rules of customary law.

  • [1] Art. 13.1 of the UN Charter: ‘The General Assembly shall initiate studies and make recommendations for the purpose of: a) promoting international co-operation in the political field and encouragingthe progressive development of international law and its codification; b) promoting international cooperation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, orreligion’ (emphasis added).
  • [2] R. Falk, ‘On the quasi-legislative competence of the General Assembly’, American Journal ofInternational Law vol. 60 (1960): 782. Along the same lines see: O. Y. Asamoah, The Legal Significanceof the Declarations of the General Assembly of the United Nations (The Hague: Martinus NijhoffPublishers, 1966): 2.
  • [3] But ‘there is no magic in the label’, as the ILA has underlined, International Law Association,‘Statement of Principles Applicable to the Formation of Customary International Law’ (Final Reportof the Committee, London Conference, 2000): 63.
  • [4] According to the International Court of Justice (ICJ), the ‘'opinio iuris may, though with alldue caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towardscertain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled Declarationon Principles of International Law concerning Friendly Relations and Co-operation among States inaccordance with the Charter of the United Nations’. The effect of consent to the text of such resolutions cannot be understood as merely that of a ‘reiteration or elucidation’ of the treaty commitmentundertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves, ICJ Reports, ‘Military andParamilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,Judgment’ (1986): 100, para. 188. This position has been reiterated by the ICJ in an advisory opinionissued in 1996. In its view, ‘General Assembly resolutions, even if they are not binding, may ... provideevidence important for establishing the existence of a rule or the emergence of an opinio iuris, ICJReports, ‘Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion’ (1996): 226, para. 70.A criticism of this line of reasoning by the ICJ can be found in M. Mendelson, ‘The Nicaragua Caseand Customary Law’, Coexistence vol. 26 (1989): 85.
  • [5] Memorandum of the Office of Legal Affairs, UN Secretariat, UN Doc. E/CN.4/L.610, 2Apr. 1962.
  • [6] Memorandum of the Office of Legal Affairs, UN Secretariat, UN Doc. E/CN.4/L.610, 2Apr. 1962.
  • [7] Glenn (2011): 174. A very similar position has been expressed by Will Kymlicka, for whom theDeclaration can be seen ‘as a victory for international law itself’, W. Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy?’, in Allen and Xanthaki (2011): 183.
  • [8] Vienna Declaration and Programme of Action, World Conference on Human Rights, UN Doc.A/CONF.157/23, 12 July 1993, para. 20.
  • [9] Vienna Declaration and Programme of Action, World Conference on Human Rights, UN Doc. A/CONF.157/23, 12 July 1993, para. II, 28.
  • [10] Vienna Declaration and Programme of Action, World Conference on Human Rights, UN Doc. A/CONF.157/23, 12 July 1993, para. II, 32.
  • [11] Resolution 48/163, 18 Feb. 1994.
  • [12] A very critical analysis of the outcomes of the First Indigenous Decade can be found in, J.Corntassel, ‘Partnership in Action? Indigenous Political Mobilization and Co-optation During theFirst UN Indigenous Decade (1995—2004)’, Human Rights Quarterly vol. 29 (2007): 137—66.
  • [13] Resolution 59/174, 24 Feb. 2005.
  • [14] 94 Resolution 60/1, 16 Sept. 2005 (emphasis added). 95 Morgan (2011): 28.
  • [15] 96 E. Voyiakis, ‘Voting in the General Assembly as Evidence of Customary International Law?’, in
  • [16] Allen and Xanthaki (2011): 222.
  • [17] International Law Association, Rights of Indigenous Peoples, Report of the Hague Conference(2010): 58.
  • [18] Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, RussianFederation, Samoa, and Ukraine.
  • [19] This position is also advanced by the newly nominated UN Special Rapporteur on the rights of
  • [20] indigenous peoples, V. Tauli-Corpuz, Report of the Special Rapporteur of the Human Rights Councilon the Rights of Indigenous Peoples, UN Doc. A/69/267, 6 Aug. 2014, para. 13.
  • [21] 1°° Art. 43. Ю1 Barelli (2009): 978.
  • [22] 102 L. Rodrfguez-Pinero, ‘La “implementacion” de la Declaracion: las implicaciones del Artfculo42’, in La declaracion sobre los derechos de lospueblos indigenas: hacia un mundo intercultural y sostenible,ed. N. Alvarez, D. Oliva, and N. Zuniga (Madrid: Los Libros de la Catarata, 2009): 74—5.
  • [23] In 2002, the Inter-Agency Support Group on Indigenous Issues (IASG) was created to supportthe PFII in the goal of promoting dialogue and cooperation between UN bodies and agencies dealingwith indigenous issues. The IASG is composed of thirty-one bodies, departments, funds and agenciesof the UN. See J. Burger, ‘Making the Declaration Work for Human Rights in the UN System’, inCharters and Stavenhagen (2009): 309—10. The IASG adopted a very interesting statement just afterthe adoption of the UNDRIP in 2007. In its opinion, ‘this landmark action of the United Nationsbears political, legal, symbolic and moral significance, as well as constituting a crucial opportunity forthe UN system and other inter-governmental organizations to critically reflect upon their engagementwith indigenous peoples’ issues and, according to Article 42 of the Declaration, to promote respect andfull application of its provisions and follow-up effectiveness’, .
  • [24] UN Permanent Forum on Indigenous Issues, ‘Report of the Seventh Session’, UN Doc. E/C.19/2008/23. Some members of the PFII have claimed that, given the special legitimacy and radical novelty of the UNDRIP, it should have some legally binding effects. This view has been expressed, amongothers, by Bartolome Clavero, for whom ‘although the Declaration is not a treaty between states, itconstitutes a convention or covenant between states and peoples, between the member states of theUnited Nations and indigenous peoples’, Nota sobre elAlcance delMandato contenido en elArtlculo 42de la Declaracion sobre los Derechos de los Pueblos Indlgenasy el mejor modo de satisfacerlopor parte del foropermanente para las cuestiones indlgenas, Submitted by Bartolome Clavero, UN Doc. E/C.19/2008/CRP.6, 26 Mar. 2008, 9. A legally sound criticism of this position can be found in Rodrfguez-Pinero(2009): 74.
  • [25] Human Rights Council, Resolution 6/12, 28 Sept. 2007.
  • [26] 1°6 Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedomsof Indigenous People, S. James Anaya, UN Doc. A/HRC/9/9, 11 Aug. 2008, paras 85 and 88.
  • [27] Human Rights Council, Resolution 6/36, 14 Dec. 2007.
  • [28] Ю8 Rodrfguez-Pinero (2009): 334—5.
  • [29] United Nations Development Group, Guidelines on Indigenous Peoples' Issues, UN Doc. HR/P/PT/16, 1 Feb. 2008, in .
  • [30] For instance, resolution 54.16 (May 2001) requested the WHO to develop a global strategy onindigenous health. See also resolutions 47.27, 48.28, 49.26, 50.31, 51.24, and 53.10 on the WHO’scontribution to achieving the objectives of the International Decade of the World’s IndigenousPeoples. On the involvement of the WHO in indigenous issues, see WHO Activities on the Health ofIndigenous and Tribal Peoples, UN Doc. E/CN.19/2002/2/Add.8, 9 Apr. 2002.
  • [31] World Bank Legal Department, Legal Note on Indigenous Peoples (8 Apr. 2005).
  • [32] World Bank, OP/BP 4.10, Indigenous Peoples, July 2005 (revised Apr. 2013), in . The revision that was adopted in 2013 can be viewed as a missedopportunity to have mentioned the UNDRIP as a standard to be considered by the Bank when implementing development projects affecting indigenous peoples. See in this sense J. Burger, ‘The UNDeclaration on the Rights of Indigenous Peoples: From Advocacy to Implementation’, in Allen andXanthaki (2011): 57. The Inter-American Development Bank has also adopted an Operational Policyon Indigenous Peoples. Unlike the World Bank, the Inter-American Development Bank explicitlymentions ‘the emergence of an international legal framework on the rights of indigenous peoples,including the adoption in 1989 of ILO Convention 169 ..., as well as the drafting of important new
  • [33] CERD, General Recommendation 23, Rights of Indigenous Peoples (1997), UN Doc. A/52/18, para. 5.
  • [34] According to Art. 30 of the CRC (1989), ‘in those States in which ethnic, religious or linguisticminorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy hisor her own culture, to profess and practise his or her own religion, or to use his or her own language’.
  • [35] 119 UN Committee on the Rights of the Child (CRC), General Comment No. 11 (2009): IndigenousChildren and their Rights under the Convention [on the Rights of the Child], UN Doc. CRC/C/GC/ 11, 12 Feb. 2009.
  • [36] 12° This is the case with access to health by indigenous women. As stated by the Committee, ‘thereare societal factors that are determinative of the health status of women and men and can vary amongwomen themselves. For that reason, special attention should be given to the health needs and rightsof women belonging to vulnerable and disadvantaged groups, such as ... indigenous women ...’,CEDAW Committee, General Recommendation No. 24 (1999): Women and Health (Art. 12), UNDoc. A/54/38/Rev. 1, 5 Feb. 1999, para. 6.
  • [37] CEDAW Committee, Concluding Observations, Nepal, UN Doc. CEDAW/C/NPL/CO/4—5,29 July 2011, para. 39. However, there are a number of concluding observations on states with indigenous peoples that did not make any reference to indigenous women (Bangladesh, Costa Rica, Kenya,South Africa, and Algeria), in Mackay (2013): 130.
  • [38] Committee on ESCRs, General Comment No. 12: The Right to Adequate Food (Art. 11), UNDoc. E/C.12/1999/5, 12 May 1999, para. 13.
  • [39] The European Union (EU) has also used the authority of the UNDRIP to grant an exception toits general ban on the import of seal products to Inuit traders who hunt seals in accordance with theirtraditional customs for the purpose of subsistence. According to Art. 3.1 of Regulation No. 1007/2009of the European Parliament and of the Council on trade in seal products, ‘the placing on the market ofseal products shall be allowed only where the seal products result from hunts traditionally conductedby Inuit and other indigenous communities and contribute to their subsistence’. The Preamble of thisRegulation makes an explicit reference to the UNDRIP: ‘The fundamental economic and social interests of Inuit communities engaged in the hunting of seals as a means to ensure their subsistence shouldnot be adversely affected. The hunt is an integral part of the culture and identity of the members ofthe Inuit society, and as such is recognized by the United Nations Declaration on the Rights of IndigenousPeoples, Official Journal of the European Union, L 286/36, 31 Oct. 2009 (emphasis added).
  • [40] Inter-American Court of Human Rights, Saramaka People v. Suriname (Preliminary Objections,Merits, Reparations, and Costs), Judgment of 28 Nov. 2007, Series C No. 172, paras 131 and 138.
  • [41] Inter-American Court of Human Rights, Saramaka People v. Suriname (Preliminary Objections,Merits, Reparations, and Costs), Judgment of 28 Nov. 2007, Series C No. 172, para. 129.
  • [42] Inter-American Court of Human Rights, Case of Kichwa Indigenous People of Sarayaku v. Ecuador(Merits and Reparations), Judgment of 27 June 2012, Series C No. 245, paras 160 and 166.
  • [43] L. Ferrer, ‘The Application of the United Nations Declaration on the Rights of IndigenousPeoples in Latin America’, in Indigenous Peoples' Human Rights in Domestic Courts, ed. L. Ferrer andP. Borraz (Madrid: Almaciga, 2013): 294.
  • [44] Ferrer in Ferrer and Borraz (2013).
  • [45] ACHPR, Resolution 121 (XXXXII) on the UN Declaration on the Rights of IndigenousPeoples, 28 Nov. 2007.
  • [46] 6 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf
  • [47] of Endorois Welfare Council v. Kenya, Communication 276/2003, para. 232. The African Commission
  • [48] relied to a great extent on the indigenous jurisprudence of the Inter-American Court of Human Rights,
  • [49] in a clear example of cross-fertilization between regional human rights systems.
  • [50] 137 P Borraz, ‘The Endorois Case: Indigenous Peoples’ Rights in the African Regional Human
  • [51] Rights System’, in Ferrer and Borraz (2013): 211—16.
  • [52] 138 ACHPR, Resolution 197 on the Protection of Indigenous Peoples’ Rights in the Context of the
  • [53] World Heritage Convention and the Designation of Lake Bogoria as a World Heritage Site, 5 Nov.
  • [54] 2011, para. 1.
  • [55] 139 ACHPR, Resolution 197 on the Protection of Indigenous Peoples’ Rights in the Context of the
  • [56] World Heritage Convention and the Designation of Lake Bogoria as a World Heritage Site, 5 Nov.
  • [57] 2011, para. 2.
  • [58] 140 Countries that have affirmed the right of indigenous peoples to their cultural identity, their
  • [59] cultural rights, land rights, right to autonomy and participatory rights include Argentina, Australia,
  • [60] Bangladesh, Botswana, Brazil, Cambodia, Canada, Chile, Colombia, Costa Rica, India, Laos, Malaysia,
  • [61] Mexico, New Zealand, Nicaragua, Norway, Paraguay, Peru, South Africa, and Taiwan, among many
  • [62] others, International Law Association, ‘Rights of Indigenous Peoples’, Interim Report (The Hague
  • [63] Conference, 2010): 49—50.
  • [64] 141 In the aftermath of the adoption of the UNDRIP, the Japanese Diet adopted a resolution rec
  • [65] ognizing the Ainu as an indigenous people, Resolution on Recognition of Ainu as Indigenous People, No.
  • [66] 169th Diet Session, 6 June 2008, . Nepal and
  • [67] the Philippines have used the UNDRIP as a normative reference in their processes of constitutional
  • [68] reform, in Report of the Special Rapporteur on the Situation of Human Rights and Fundamental
  • [69] Freedoms of Indigenous People, S. James Anaya, UN Doc. A/HRC/9/9, 11 Aug. 2008, para. 53.A less successful experience refers to Bangladesh, where the government refused to incorporate some
  • [70] provisions of the UNDRIP in the Constitution. On the other hand, the debate on the UNDRIP had
  • [71] positive effects on the position of indigenous peoples in public discourse. See an interesting account of
  • [72] this process in E. Gerharz, ‘Recognizing Indigenous People, The Bangladeshi Way: The United Nations
  • [73] Declaration, Transnational Activism and the Constitutional Amendment Affair of 2011’, IndigenousPolicy Journal vol. 24/4 (2014).
  • [74] Manuel Coy, Maya Village of Conejo, Manuel Caal, Perfecto Makin, Melina Makin Claimantsv. Attorney General of Belize, Minister of Natural Resources, and Environmental Defendants, SupremeCourt of Belize, 18 Oct. 2007, para. 131.
  • [75] Manuel Coy, Maya Village of Conejo, Manuel Caal, Perfecto Makin, Melina Makin Claimantsv. Attorney General of Belize, Minister of Natural Resources, and Environmental Defendants, SupremeCourt of Belize, 18 Oct. 2007, para. 131.
  • [76] Ferrer (2013): 292. Similar concerns have also been expressed by Stephen Allen. In his view,‘instead of adducing evidence of uniform or consistent behaviour regarding adherence to certain indigenous rights on the part of such states, many indigenous advocates marshal the best particular practiceof the most ‘enlightened’ states on indigenous/human rights issues. This data is then presented asevidence of the general practice of affected states ... They ignore any practices to the contrary’, S. Allen,‘The UN Declaration on the Rights of Indigenous Peoples and the Limits of the International LegalProject’, in Allen and Xanthaki (2011): 233-4.
  • [77] Ferrer (20 1 3): 2 92. 153 UNDRIP, Preamble, para. 24.
 
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