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Opposition to the UNDRIP: Resistance to the Potential Hardening of Soft Law?

The UNDRIP was adopted as part of UNGA Resolution 61/295, on 13 September 2007. The adoption of this instrument, detailing human rights provisions in the particular context of indigenous peoples, was, however, far from an easy process. It was the result of nearly twenty-five years of debates and negotiations among member states of the UN, between member states and indigenous peoples, and between indigenous peoples themselves.54

The voting record on the Declaration at the UNGA was the following: 144 votes in favour, eleven abstentions, and four oppositions. The four opposition votes were cast by Australia, Canada, New Zealand, and the United States.55 Such behaviour was a puzzling occurrence within the history of the UNGA, especially on matters pertaining to human rights. Only once before had a member state cast a vote in opposition to the adoption of a declaration which fell under the human rights category.5[1] [2] Moreover, a majority of such declarations (fourteen out of twenty-two in UN history) had been adopted by acclamation, signifying consensus among the members of the Assembly. 5[3]

The four states that opposed the adoption of the Declaration made statements in explanation of their vote, at the UNGA, right before draft resolution A/61/L.67 was submitted for the member states’ approval. All of them started by stressing their commitment to indigenous rights and their long-standing involvement in the work of the various committees leading to the draft Declaration. However, all four claimed that it was not possible for them to vote in favour. In fact, eschewing the option of avoiding commitment through abstention (or absence on voting), they further claimed that they had to formally oppose the adoption of the UNDRIP. They did so for very similar reasons, calling upon comparable arguments. This section exposes, in essence, the official explanation of these states’ objections to the UNDRIP. 5[4] Their remarks can be grouped in two categories, as they relate to the UNDRIP’s content or to its soft form and possible effects.

  • [1] 4 A. Eide, ‘The Indigenous Peoples, the Working Group on Indigenous Populations and theAdoption of the UN Declaration on the Rights of Indigenous Peoples’, in Making the DeclarationWork: The United Nations Declaration on the Rights of Indigenous Peoples, ed. C. Charters and R.Stavenhagen (Copenhagen: IWGIA, 2009): 34. The extent to which this could be due to the specificities of the case and/or of the subject matter will be explored in this chapter. For further details on thisprocess, see the chapter by Felipe Gomez Isa in this volume. 55 UNGA Res. 61/295 (n. 1).
  • [2] 52 The United States of America, on the UNGA Declaration on the Right to Development. ForUN declarations on human rights, see: United Nations, ‘Declarations and Conventions Contained inGeneral Assembly Resolutions—Human Rights’, .
  • [3] 57 United Nations, ‘Declarations and Conventions Contained in General Assembly Resolutions—Human Rights’, .
  • [4] 58 Data includes statements made at the UNGA in explanation of the vote, official documents published by the relevant governmental bodies in explanation of the states’ position, as well as statementsby the relevant departments or heads of state and official governmental press releases.
 
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