The UN Declaration on the Rights of Indigenous Peoples: A Flexible Approach to Addressing the Unique Needs of Varying Populations
Prasad, Viniyanka, Chicago Journal of International Law
In September of 2007, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples ("Declaration").1 The Declaration presents a comprehensive list of rights, unique to indigenous populations, which have often gone overlooked by national governments and international organizations. These rights touch nearly every aspect of indigenous groups' lives, including provisions addressing issues ranging from land rights to spiritual concerns to education and vocational needs. The terms of the Declaration include an enumeration of areas in which rights should be recognized along with details of potential remedies. Instead of establishing a rigid list of rules under which countries must manage indigenous affairs, the Declaration creates an adaptable set of standards that identify previously underobserved, yet significant, concerns of heterogeneous indigenous groups. The Declaration also mandates that nations expand discussion between governments and indigenous peoples to determine the adequacy of remedies for those concerns.
There were limited dissenters to the adoption, including New Zealand, Australia, and Canada.2 Among the foremost concerns of these countries was an article of the Declaration that awards restitution to indigenous groups for "land, territories, and resources" taken by national governments.3 The dissenters' apprehensions center on the sweeping language of the article; it could apply to an expansive portion of a nation's land and resources, since it purports to guarantee such access to all lands and resources that were "traditionally owned or otherwise occupied or used" by indigenous groups.4 These concerns are particularly problematic because if nations fear that the provisions are too broad on issues as fundamental as property rights, then the Declaration is unlikely to result in lasting international customs.
These fears and others can be addressed by the Declaration's greatest strength. The Declaration is a powerful tool chiefly because it mandates that national governments should provide remedies based on collaborative efforts with indigenous groups to unearth the specific needs of individual populations. Because indigenous groups are not homogenous, the text can be read to create an adjustable set of standards, rather than stagnant remedies, that are consistently re-evaluated for adequacy through conversations between national governments and indigenous groups and also through oversight by international bodies. This is apparent through various provisions, such as those mandating discussion between national governments and indigenous peoples.5 In addition, the Declaration calls for continuous assessments by international bodies, which promote compliance with the text, to ensure that the Declaration furthers its own goals.6 Though the issues raised in the Declaration enumerate paramount concerns of indigenous groups that should not be overlooked by national governments, the provisions for discussion and re-evaluation suggest that there is no single method for addressing these matters. Thus, while the Declaration recognizes restitution as the remedy most likely to address indigenous concerns, it allows national governments to cooperate with indigenous groups in order to determine the extent of a particular group's land needs and the best-suited remedy for that population.
This Development discusses the varying needs of indigenous groups of different nations and how this variance should be considered in order to encourage adherence to the spkit of the Declaration. Section II outlines the concerns of the indigenous groups of the three dissenter countries named above. This brief synopsis of the state of affairs of a few indigenous groups provides a framework under which international law should be evaluated. For example, the material in this section conveys a general failure by governments of industrialized nations to appreciate fully the issues that indigenous groups face. …