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Specificities of the UNDRIP case: substance and process

The case of the UNDRIP is peculiar in a few respects. First, its substance relates to salient domestic issues in former colonial states where there are unresolved disputes with indigenous populations, concerning land rights for instance. As such, there would be a point in saying that the issue is more sensitive and harder to address for states in that situation like the four opposing ones: the full implementation of the provisions of the Declaration could prove extremely costly materially (e.g. in relation to land rights and natural resources exploitation) as well as affect the essence of those states’ sovereignty (since it would require a re-evaluation of their exclusive jurisdiction over parts of their territory). Thus, the fact that some of the substantive rights included in the Declaration are rights to be claimed against the state itself (as opposed to others that would, for instance, impose negative duties on states not to infringe on citizens’ rights) sets the Declaration apart from other instruments of a similar type.

The UNDRIP is also quite unique in terms of the process leading to its adop- tion.94 Indeed, a broad range of participants were involved in its development since very early stages (states, subsidiary bodies of the UN, NGOs, etc.). But more importantly, it included, almost from the start, a strong representation of the beneficiaries of the rights set forth in the instrument, representatives of various indigenous peoples.[1]5 States were thus not able, in that case, to negotiate and amend the text in the usual framework of state-centric fora, a point mentioned initially by the opposing states as a regrettable aspect of the whole process.96 While this can be seen as a unique feature of this case, it also reflects broader dynamics in the evolution of the international legal order, where new actors (international organizations, non-state actors, private entities) are increasingly participating in the development of soft law standards, curtailing states’ exclusive jurisdiction on it and limiting their ability to control the evolution of an instrument once they actually commit to it. Some states’ responses to that challenge in the UNDRIP case are thus rather likely to be replicated in the future.

Finally, non-state actors’ involvement in that case was not only important at the drafting stage: organized domestic groups, as well as transnational ones, also mobilized to push for the full implementation of the Declaration as soon as it was adopted. Such groups may have a greater political weight in states where there are important indigenous communities, and where they can actually enter the political arena to advance their claims, either through domestic (democratic) institutions, or through multilateral bodies of which their state is a party. While this would necessitate further research, the case of the UNDRIP points towards the possibility that these factors could now make it harder for democratic states to join soft law instruments as a tool of cheap talk.[2] [3] [4] Where institutions exist to oversee the implementation of an instrument and where organized groups are politically mobilized, domestically or transnationally, to request full compliance with soft standards, states might have to think twice about joining without any kind of qualifying statement. The fear of signing a blank cheque through the adoption of a theoretically non-binding instrument, from which obligations of an undefined nature could potentially arise, may be enough to warrant opposition on sensitive (and potentially costly) topics, in spite of the usual normative pull of human rights instruments.

  • [1] 4 For a more detailed account of the process and of indigenous peoples’ participation at variousstages, see Felipe Gomez Isa’s chapter in this volume. 95 Victoria Tauli-Corpuz, ‘How the UN Declaration on the Rights of Indigenous Peoples GotAdopted’, . 96 The United States initially went as far as saying that ‘the process was unfortunate and extraordinary in any multilateral negotiating exercise and [set] a poor precedent with respect to United Nations practice’, UN Doc. A/61/PV. 107, 15.
  • [2] This is in line with an argument made by Hathaway regarding binding human rights treaties.See: O. Hathaway, ‘The Cost of Commitment’, Stanford Law Review vol. 55 (2003).
  • [3] 9® See e.g.: the proceedings of the 2014 World Conference on Indigenous Peoples and its outcomedocument. ‘Outcome Document of the High-Level Plenary Meeting of the General Assembly knownas the World Conference on Indigenous Peoples.’ UNGA Res. 69/1 (22 Sept. 2014).
  • [4] Especially on matters such as the right to self-determination, or the requirements of free, prior,and informed consent.
 
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