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Statements related to the UNDRIP’s soft form

When looking at the nature of the instrument, it is important to recall that, like other UNGA resolutions, the UNDRIP was widely recognized by the UN member states (across voting positions) as a non-legally binding, aspirational document. Among its opponents, Australia, Canada, and the United States unequivocally agreed on that point. Australia stated that ‘it [was] the clear intention of all states that it be an aspirational declaration with political and moral force, but not legal force’,7° a point echoed in identical form by the United States in its supplementary observations7! and shared equally by Canada.72

New Zealand adopted a more nuanced stance, as it did not clearly deny all legal value for the instrument. Instead, it insisted on the importance to be conferred on the document, in contrast to other actors stressing its aspirational nature. It contended that ‘it [could] not accept that a state [could] responsibly take such a stance [focusing on a merely aspirational nature] towards a document that purports to declare the contents of the rights of indigenous people’.[1] [2] [3] [4] [5] [6] [7] The fact that it took the Declaration ‘very seriously’, coupled with disagreements regarding its content, served as central justification for its opposition. This alludes to a greater value granted to the instrument, compared to what its counterparts were ready to admit. In fact, the three others went further and insisted that the ‘declaration does not provide a proper basis for legal actions, complaints, or other claims in any international, domestic, or other proceedings’/4

Still, New Zealand joined the three other opponents of the Declaration in declaring that the text of the Declaration was not to be considered ‘reflective of international law’.75 All four states went into further details, by making it clear that they did not consider that the UNDRIP entertained any link with CIL. As Australia put it: ‘this declaration does not describe current state practice or actions states consider themselves obliged to take as a matter of law, it cannot be cited as evidence of the evolution of customary international law’/6 Once again, it echoed word for word a comment made by the United States in its supplementary observations/7 It is easy to identify, in this statement, claims denying the presence of both state practice and opinio juris, the two constitutive elements of CIL. The United States further rejected ‘any possibility that this document is or can become customary international law’/8 New Zealand made a similar statement, claiming that the Declaration ‘does not state propositions which are reflected in State practice or which are or will be recognised as general principles of law’/9

  • [1] UN Doc. A/61/PV107, 14 (New Zealand).
  • [2] As stated by Australia (UN Doc. A/61/PV. 107, 12). 75 UN Doc. A/61/PV. 107, 12.
  • [3] 76 UN Doc. A/61/PV107, 12 (Australia).
  • [4] 77 United States, ‘Observations of the United States with Respect to the Declaration on the Rights
  • [5] of Indigenous Peoples’.
  • [6] United States, ‘Observations of the United States with Respect to the Declaration on the Rightsof Indigenous Peoples’.
  • [7] UN Doc. A/61/PV107, 15.
 
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