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Home arrow Law arrow Tracing the roles of soft law in human rights


Indigenous peoples have used contemporary international law and international institutions as close allies in their struggle for recognition and the elimination of historically rooted patterns of subjugation, dispossession, and cultural assimilation. As part of this evolution, indigenous peoples have become subjects of rights under international law rather than objects of protection. Soft law norms have played a major role in this process, contributing significantly to the transformation of the dynamics of international law, and paving the way for its flexibilization, deformalization, and, ultimately, democratization. The UNDRIP, adopted in 2007 by the UN General Assembly ‘as a standard of achievement to be pursued in a spirit of partnership and mutual respect’,153 must be seen as the culmination of a long and difficult journey in which indigenous peoples themselves and their representatives have been the driving force and key participants. Many of the provisions enshrined in the Declaration simply reaffirm existing customary rules of international law, while others point to future developments in what it may be considered a norm- creating function. Irrespective of the uncertain legal nature of the UNDRIP per se, it has become an unavoidable point of reference when dealing with indigenous peoples’ rights. The recent experience of UN bodies, specialized agencies, human rights treaty bodies, regional human rights courts, and commissions, as well as some domestic courts, clearly demonstrates the strong persuasive authority and interpretative function of the UNDRIP. The challenge ahead is to systematically mainstream the provisions of the Declaration into the routines of those bodies, thus enabling its effective implementation at both the international and the domestic level»4

!54 For an alternative view, outlining the possible risks associated with the mainstreaming and progressive ‘hardening’ of human rights soft law, see Leticia Villeneuves contribution to this volume.

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