To Bind or Not to Bind: The United Nations Declaration on the Rights of Indigenous Peoples Five Years On

Article excerpt

Abstract

In 2012, the United Nations Declaration on the Rights of Indigenous Peoples ('UNDRIP') celebrates its fifth birthday. Since its adoption by the UN General Assembly in 2007, the UNDRIP has inspired expansive academic commentary. This literature has scrutinised every aspect of the UNDRIP, from questioning the strategy and motives of its Indigenous co-drafters, to its ostensible delimiting of Indigenous peoples' right to self-determination in international law, as well as the controversial unilateral expansion by the UN Permanent Forum on Indigenous Issues of its mandate to be the supervisory mechanism of state's implementation of the UNDRIP. In particular, there is acute interest in the UNDRIP's status in customary international law, no doubt generated by the over-eager scholars who claimed at the outset that some of the rights contained within the Declaration already form part of customary international law. The anxiety over whether aspects of the UNDRIP are binding or not binding is palpable, yet less attention is paid by the purveyors of this interpretation to the limitations of customary international law and the unrealistic expectations such speculation creates in Indigenous communities. Given the scrutiny it has attracted, this article traces some of the key themes emerging from the somewhat discursive multi-disciplinary commentary of the past five years, in order to reflect on the significance of the UNDRIP's fifth anniversary.

I Introduction

In 2012, the United Nations Permanent Forum on Indigenous Issues (PFII') celebrated the fifth anniversary of the United Nations Declaration on the Rights of Indigenous Peoples ('UNDRIP'). (1) This was an emotional event for those who attended because the UNDRIP, as adopted by the UN General Assembly ('GA') in 2007, had taken almost two) decades to progress through the UN system. (2) During this period the negotiations between Indigenous peoples and states were antagonistic and at times intractable. (3) Even the passage of the Declaration through the Third Committee of the GA was mired in suspense when the African Group voted to delay consideration of the text by the GA. (4) Its eventual adoption in 2007 with a recorded vote of 143 in favour, 4 against and 11 abstentions was met with the broad acclamation of Indigenous peoples and many states; although the negative votes cast by the USA, Canada, Australia and New Zealand ('CANZUS') certainly tempered the celebrations for many.

In its draft form, the UNDRIP attracted relatively uncritical scholarly attention except for the occasional prescient piece identifying future challenges, such as balancing the tension between individual and collective rights in the context of Indigenous women's rights. (5) It is unsurprising then that the UNDRIP--a new human rights instrument--has attracted so much comment and scrutiny--across disciplines--since its adoption. No doubt the UNDRIP has been of particular study because of the romantic political narrative--the Indigenous domain challenging the might of the Westphalian state--and calling into question the legitimacy of the territorial integrity of the state today. (6) The symbolism of 'Indigenous' peoples interposed in the UN system of state sovereignty has amplified the UNDRIP's attractiveness to legal and political scholars as fertile ground for critical analysis. In many ways, the UNDRIP is a rich and layered text that enables scholars and students to engage in many vertical, cross-cutting controversies in international law, such as UN reform, human rights enforcement and the role of non-state actors in the UN system.

Perhaps more surprising, though, is the discursive nature of the commentary; it is variable in nature and contains competing interpretations of its character (status in international law) and its content (the norms expressed therein)--even the motives of its non-state beneficiaries are scrutinised. It has been an exacting but illuminating challenge to monitor the competing legal interpretations of the text and competing interpretations of Indigenous peoples' political strategy. …

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