Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of Indigenous Peoples

Article excerpt

[For over twenty years, indigenous peoples have worked toward the adoption of the United Nations Declaration on the Rights of Indigenous Peoples. When the Declaration was passed on 13 September 2007, it was a triumph for indigenous peoples who had struggled with the rigidities of standard-setting in the UN system. The drawn out process of standard-setting was also a reflection of the complex issues that Member States' had to grapple with, including acceptance of indigenous peoples' right to self-determination in international law as well as recognition of indigenous peoples' right to lands, territories and resources. This article describes the long process towards the Declaration for indigenous peoples and states, focuses on the frustrations of UN standard-setting for indigenous peoples and explains the importance of the Declaration for indigenous Australia.]


I   Introduction
II  The Historical Development of the Declaration on the Rights of
    Indigenous Peoples
      A Who are Indigenous Peoples?
      B Standard-Setting in the UN Working Group on Indigenous
      C Participation in the Working Group
III The Politics of the Indigenous Declaration
      A The Controversy of the Working Group's Procedures
          1 The Skill of the Chairperson-Rapporteur
          2 The Indigenous 'No Change' Position
          3 Breaking the Deadlock
          4 The Breakthrough
          5 Some Observations on the Process
      B Adopting the Declaration: The African Delay
          1 The Advisory Opinion of the African Commission on Human
      C Reflections on the Most Controversial Provisions
          1 Indigenous Peoples' Right to Self-Determination
          2 The Sell-Determination Compromise
          3 Translating Self-Determination into Domestic Systems: What
            Does It Mean?
          4 Collective Rights
          5 Land and Resources
IV  The Way Forward
      A The Legal Status of the Declaration
          1 Immediate Impact
          2 From a Declaration to a Convention?
          3 The Impact of the Declaration on Australian Law
      B The Federal Government's Position--Explaining the Delay
V   Conclusion


The United Nations Declaration on the Rights of Indigenous Peoples was adopted on 13 September 2007 as a non-binding, aspirational declaration of the General Assembly. (1) The adoption of the Declaration was a triumph for indigenous peoples after persevering for more than 20 years to secure an international instrument aimed at recognising the distinct cultural rights of indigenous peoples and providing redress for the injustice of dispossession. It was also a triumph for the United Nations, which had made the adoption of such a declaration the major objective of the UN International Decade of the World's Indigenous Peoples (1995-2004). (2)

Even so, the Commission on Human Rights' open-ended inter-sessional Working Group elaborating the Draft Declaration ('WGDD') laboured for over a decade to negotiate the final draft. (3) The protracted and polemical debate that defined 11 years of drafting resulted in only two articles being provisionally adopted between the first drafting session in November 1995 and the 10th session in 2004. (4)

This commentary describes the long journey toward the Declaration undertaken by the international indigenous peoples movement. Since its early engagement with the UN in the 1970s, an international legal instrument has been a major goal of the movement. As an indigenous lawyer and academic who participated in the drafting process, this commentary aims to provide an insight into UN standard-setting from an indigenous perspective. Indigenous peoples' reflections on standard-setting in the UN system are important because the development of the Declaration was the first time that states had drafted a human rights instrument directly with the rights-holders empowered by the instrument. …


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