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Further insights from belated adoption of the UNDRIP

Within a few years of the vote consecrating the adoption of the UNDRIP,[1] [2] [3] all opponents reversed their position and endorsed the instrument^4 Such behaviour is also quite unusual. Indeed, contrary to treaty instruments (which are usually open to ratification at any time a state so wishes) the endorsement of a UNGA declaration is usually to be made on the voting day. Beyond that, no procedure exists for a state to formally modify its position towards a given UNGA resolution (and declarations contained therein). The only way for a state to express its desire to modify its position is through a unilateral declaration of its intent to do so. Such a move, however, is not formally recorded at the UN and does not alter the voting record.85

Rather than undermining this chapter’s claims, the statements made by those four states as they were changing their positions confirm that the fear of ‘harder’ effects for soft law was at the heart of their decision not to join it in the first place. Indeed, all opposing states eventually supported the Declaration, without any changes having been made to its content, form, or drafting process. What appears to have changed, above all, is their evaluation of the form of the instrument and its potential effects.86 After what the United States presented as a ‘thorough review’ process,87 all states re-evaluated their position and concluded that it was possible to make qualified statements of acceptance, interpreting the provisions of the Declaration within the boundaries of their own domestic constitutional, legal, and political frameworks.88 They still restated that the adoption of the Declaration does not carry direct legal effects in their domestic legal order and does not change their existing constitutional and legal frameworks, even if the level of openness to such an eventuality differed among the four states.89 In sum, they considered it was possible to interpret the Declaration and its potential effects in a manner consistent with their domestic orders and objectives, something that was not possible when the Declaration was first presented for adoption.

Obviously, many factors can lead to such a change of position.90 What we can notice, though, is that the instrument is valued and that the potential for it to

  • 85 Therefore, there is no data readily available on the frequency of such changes in a state’s position. Considering the nature of the procedure and of the instruments concerned, we can reasonably presume that it is not a frequent occurrence.
  • 86 Or the acceptability of such a scenario, in the case e.g. of a new government taking a different stance on the issue.
  • 87 US Department of State, ‘UN Declaration on the Rights of Indigenous Peoples Review’ (16 Dec. 2010): 1.
  • 88 E.g. Canada declared that it was now ‘confident [that it] can interpret the principles expressed in the Declaration in a manner that is consistent with [its] Constitution and legal framework’. Aboriginal Affairs and Northern Development Canada, ‘Canada’s Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples’, 12 Nov. 2010, . New Zealand noted that its statement of support for the Declaration ‘reaffirms the legal and constitutional frameworks that underpin New Zealand’s legal system, noting that those existing frameworks define the bounds of New Zealand’s engagement with the declaration’. New Zealand, ‘National Government to Support UN Rights Declaration (Statement by PM John Key)’, 20 Apr. 2010, . Australia qualified their statement of support with mention of their interpretation of problematic provisions (e.g.: ‘Article 46 makes it clear that the

Declaration cannot be used to impair Australia’s territorial integrity or political unity____ While

there is continuing international debate about the meaning of “free, prior and informed consent”, we will consider any future interpretations in accordance with Article 46.’ Australia, ‘Statement of Support to the United Nations Declaration on the Rights of Indigenous Peoples, The Hon Jenny Macklin MP’, 3 Apr. 2009), .

  • 89 Australia, New Zealand, and the United States have touched upon the possibility of modifying their domestic legal frameworks in various (albeit limited) ways following the standards set forth in the Declaration.
  • 90 One could think of, e.g., pressures from domestic constituencies or domestic or international lobby groups, changes of governments (which happened in all opposing states except Canada between

become binding (or for claims to arise on its basis) is acknowledged by states. This explains the insistence to mention that it will not directly be changing domestic legal orders, or evidence the development of any obligation under international law. Even in the reversal of their position, we still find in those four states’ positions a firm intent not to be bound by the provisions of the document, or at least, a firm intent not to be bound unless the state can autonomously work out the content of the duties imposed on it by the Declaration and integrate them in its domestic framework to its liking, not through an obligation arising erga omnes from the Declaration’s provisions.

  • [1] United States, ‘Observations of the United States with Respect to the Declaration on the Rightsof Indigenous Peoples’, 15.
  • [2] Australia approved it on 3 Apr. 2009. Australia, ‘Statement of Support to the United NationsDeclaration on the Rights of Indigenous Peoples, The Hon Jenny Macklin MP’, 3 Apr. 2009, . Canada did so on 12 Nov. 2010: Aboriginal Affairs and Northern Development Canada, ‘Canada’sStatement of Support on the United Nations Declaration on the Rights of Indigenous Peoples’, 12 Nov.2010, . New Zealand on 20Apr. 2010. NZ Ministry of Foreign Affairs and Trade, ‘Statement by Hon Dr Pita Sharples, Ministerof Maori Affairs, Ninth Session of the United Nations Permanent Forum on Indigenous Issues’, 19Apr. 2010, The United States approved it on 16 Dec. 2010. The White House, ‘Remarks by the President atthe White House Tribal Nations Conference’, 16 Dec. 2010, .
  • [3] It is important to note that two of the states who initially abstained during the vote on theUNDRIP, Colombia and Samoa, also reversed their position. This might confirm the tendency towardsuniversal endorsement of the Declaration and its provisions (see Felipe Gomez Isa’s chapter in thisvolume). In the case of Colombia, it could contribute further evidence to the emergence of a regionalcustom. But it could also be a response to pressures to rally, from and for domestic or internationalactors and constituencies. The behaviour of these two actors is outside the scope of this chapter, whichfocuses on the four opposing states (considering that formal opposition is a truly unusual—and somewhat more consequential—stance regarding the adoption of UNGA human rights declarations). Still,the interplay with the position of abstaining states, especially in terms of belated acceptance of theDeclaration, would warrant further research.
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