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Opposition as a clear intent not to be bound

The four states devoted a substantial part of their interventions to arguments related to the content of the Declaration. Most of their comments referred to a level of precision too low to act as a clear guide for the state, thus rendering domestic implementation imprecise and impossible when coupled with the particulars of their domestic situation and legal framework. However, considering that the instrument is deemed to be in a soft, aspirational form, such oppositions to the particular wording (or claims about lack of precision therein) should not, in theory, be an impediment to state commitment. Indeed, if states can remain in control of the interpretation to be given to soft law provisions and the extent to which they intend to implement them and comply with them, substantive provisions should not prevent a state from agreeing to the instrument in principle. In this case, opposing states’ motives for disagreeing with the content of the Declaration rather appeared to take their source in the increased or potentially ‘harder’ obligatory value that these states envision for the instrument, following its adoption.

Arguments on the form and effects of the instrument made a great part of the four opposing states’ interventions in explanation of their vote. However, such points were not called upon as justifications for their behaviour; the remarks on the form and effects of the instrument were not framed as arguments per se, as they were not formulated and expressed by any of them as constituting a reason not to commit to the Declaration. Why, then, would states feel the need to dedicate a substantial part of their interventions to such a matter? This chapter argues that they did so in an attempt to block possible interpretations that could arise, on the basis of the adoption of the Declaration at the UNGA, to grant an increased value to the UNDRIP in international law. When coupling the potential effects of soft law surveyed above with the remarks made at the UN on that occasion, it clearly appears that the four opposing states’ interventions raised all potential functions and effects of soft law, only for the purpose of denying the very possibility of them all.

First, thinking of the potential of soft law as a precursor of more intensely legalized forms, Australia made it clear that the UNDRIP could not ‘provide a basis for the elaboration of other international instruments, whether binding or nonbinding’.[1] [2] As such, it was also denying its potential to constitute a new standard filling a gap in existing rights instruments and act as a reference point for further developments and claims. Likewise, conceiving of the possibility that soft law acts as a complement to existing instruments, Australia, Canada, and the United States insisted that the UNDRIP could not form a basis for actions, complaints, or other claims, thus denying it any complementary value in legal proceedings.

On another level, states’ declarations showed a strong insistence on denying all links or possibility that the UNDRIP would eventually be linked to CIL, which definitely rings a ‘persistent objector’ bell. Indeed, the theory of the persistent objector posits that a new norm of CIL ‘will not be binding on persistent objectors who have demonstrated their unwillingness to be bound by it before the rule becomes established’^1 There is no ambiguity in the four actors’ statements: they clearly opposed the fact that the Declaration could form CIL, as well as the idea that it could evidence any constitutive aspect of CIL (state practice and opinio juris). To this end, they even highlighted the fact that they had opposed the current text of the Declaration since the early stages of its drafting. What such insistence reveals is a clear concern on these states’ part that the provisions of the UNDRIP could be recognized as CIL and, should recognition happen, the intention for their state not to be bound by the new customary provisions.

Finally, even when focusing on the political impacts of the Declaration, the four opposing states objected to the possibility that the UNDRIP could become the new reference point in terms of indigenous peoples’ rights. They attempted to stress the disagreement (or at least, the lack of consensus) around the instrument to undermine its legitimacy, claiming that it ‘[could] not enjoy universal support to become a true standard of achievement’^2 By insisting on the lack of consensus as a fundamental shortcoming of the document, the opposing states tried to limit its possible political impact just as much as its (potential) legal value.

In sum, the four opposing states expressed that the basis of their objection was related to the content of the Declaration. Still, they dedicated a substantial part of their statements in explanation of their position, to address clearly each of the potential functions and effects a soft law instrument and its provisions could gain over time, only to deny the possibility of them all in the case at hand. This cannot be mere coincidence. It shows both a belief in the potential effects of provisions contained in a soft law instrument, and a clear intent not to be bound should such unintended effects materialize after the adoption of the Declaration.

  • [1] UN Doc. A/61/PV. 107, 12. This is something that Australia will not be able to control or limitin any way. Hence, such a worry shows their concern with limiting all possible effects of soft law for the UNDRIP.
  • [2] Elias (2009).
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