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Statements related to the UNDRIP’s content

First, all four countries had strong substantive objections to some ofthe Declaration’s provisions. The main preoccupations of the quartet were with articles revolving around land rights, resources, and redress,59 particularly the requirements of recognition of indigenous land rights in spite of other legal rights to land (including claims settled with indigenous populations) in their domestic legal framework. Regarding the use of resources, they critiqued the Declaration’s requirement of ‘free, prior and informed consent’ of the peoples concerned for a state to make use of indigenous land or resources contained therein. Canada, New Zealand, and the United States claimed that it would effectively give indigenous peoples a veto power over a democratic government’s decision, or ‘imply different classes of citizenship, where indigenous people have a right of veto that other groups or individuals do not have’.60

Another central aspect of the opposition to the Declaration relates to the right to self-determination. Australia expressed its ‘dissatisfaction’ with the references to such a right in the document, as it conceived of self-determination solely in external terms and thus claimed that it was inadequate for the UNDRIPN The United States was particularly concerned with the fact that, instead of articulating a new concept of self-determination as self-government within the state, the Working Group took what the US representative dubbed a ‘wholly inappropriate approach of reproducing the text of ICCPR and ICESCR article 1 in article 3 of the Declaration, with no intention that both articles mean the same thing or define the same legal obligations’^ Such ambiguities were exacerbated by the lack of a definition of ‘indigenous peoples’ in the Declaration, a conscious and long-argued choice of the Working Group, but explicitly dissatisfactory to Australia and the United States.

An additional overarching concern was the incompatibility of the text of the Declaration with these states’ domestic frameworks. All four states mentioned it as an integral part of their justification for refusing to support the Declaration. New Zealand, for instance, claimed that the main argument precluding its adoption of the Declaration was that it ‘include[d] provisions that are ... fundamentally incompatible with [its] democratic processes, [its] legislation and [its] constitutional arrangements’. The other states coupled the argument about the incompatibility with their domestic frameworks with broader comments on the ‘failure’ of the Declaration to ensure its meaningfulness, potential for implementation, and wide support of the international community^3 or to become a ‘strong’ text ‘which could have provided practical guidance to all States’^4

64 UN Doc. A/61/PV.107, 13 (Canada).

These four states stressed those substantive objections as the core of their incapacity to implement the provisions of the Declaration as it stood.65 Some articles were deemed ‘overly broad and unclear and ... susceptible of a wide variety of interpretations’ by Canada,[1] [2] [3] [4] [5] [6] [7] [8] while the United States lamented that the text was ‘confusing and risk[ed] endless conflicting interpretations and debate about its application’^7 Moreover, they complained that ‘the aspirational principles and collective rights described in the declaration [were] typically written in extremely general and absolute terms’^8 This last point is particularly puzzling since broad guidelines and principles, in more or less precise formulations, are the hallmark of most declaratory, aspirational documents.

For all of the opposing states, however, the opposition to some provisions of the Declaration was expressed along with a commitment in principle to the promotion and protection of indigenous peoples’ rights. This challenges expectations of state commitment to soft law instruments, especially in the field of human rights. Indeed, if all four states agreed in principle to the idea of a declaration on indigenous peoples’ rights, commitment should not have raised any major issue. If states firmly considered that they were to remain in control and, thus, be able to evaluate the potential obligations arising from the instrument in its soft form and the extent of the required implementation efforts/9 substantive concerns would have been effectively alleviated.

  • [1] New Zealand, e.g., claimed that ‘this text is ... clearly unable to be implemented by many states,including those that will be voting in favour of its adoption’. UN Doc. A/61/PV. 107, 14.
  • [2] UN Doc. A/61/PV. 107, 13 . 67 UN Doc. A/61/PV.107, 15.
  • [3] 68 UN Doc. A/61/PV. 107, 15.
  • [4] 69 Characteristics which are commonly presented as advantages of soft law forms.
  • [5] 7° UN Doc. A/61/PV. 107, 12.
  • [6] 71 The exact wording of the Australian statement is part of the United States’ supplementary observations. United States, ‘Observations of the United States with Respect to the Declaration on the
  • [7] Rights of Indigenous Peoples’.
  • [8] UN Doc. A/61/PV. 107, 13.
 
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