JURIST Guest Columnists S. James Anaya of the Rogers College of Law, University of Arizona, and Siegfried Wiessner of St. Thomas University School of Law say that the UN General Assembly’s recent landslide adoption of the UN Declaration on the Rights of Indigenous Peoples is a milestone in the re-empowerment of the world’s aboriginal groups, and that, in important parts, it reaffirms customary international law in the field …

The UN General Assembly’s adoption of the UN Declaration on the Rights of Indigenous Peoples on September 13, 2007 marked the end of a long journey, a milestone in the long and arduous march of what have come to be known as “indigenous peoples” through the major institution of organized intergovernmental society: the United Nations. It was a day of celebration for indigenous leaders and their rank and file scattered around the globe, united in a common fate of conquest, dispossession, marginalization and neglect, but also in the joy of rising again.

When the United Nations Working Group on Indigenous Populations was established in 1982, one of its key missions was the establishment of a declaration of rights of indigenous peoples. Indigenous peoples from around the world trekked to the Palais des Nations in Geneva each summer afterwards to articulate their claims to the members of the Working Group and state delegations. In 1993, under the inspirational leadership of long-time Chairperson Mrs. Erica-Irene Daes, agreement was reached by the Working Group on a “Draft Declaration on the Rights of Indigenous Peoples.” This draft became the basis for discussion within the UN Commission on Human Rights, which was replaced in 2006 by the Human Rights Council. In its first substantive decision, the Council on June 29, 2006, by a vote of 30 in favor, 2 against and 12 abstentions, adopted a revised text of the Declaration, and passed it on to the General Assembly for its final approval.

Beyond recognition of the right to self-determination, the Council’s text formulated an array of tailor-made collective rights, such as the right to maintain and develop their distinct political, economic, social and cultural identities and characteristics as well as their legal systems and to participate fully, “if they so choose,” in the political, economic, social and cultural life of the State. They were guaranteed the right not to be subjected to genocide or ethnocide, i.e., action aimed at or affecting their integrity as distinct peoples, their cultural values and identities, including the dispossession of land, forced relocation, assimilation or integration, the imposition of foreign lifestyles and propaganda. The stated rights guaranteed to indigenous peoples as groups, not only as individual persons, include the right to observe, teach and practice tribal spiritual and religious traditions; the right to maintain and protect manifestations of their cultures, archaeological-historical sites and artifacts; the right to restitution of spiritual property taken without their free and informed consent, including the right to repatriate Indian human remains; and the right to protection of sacred places and burial sites. Further listed are the rights to maintain and use tribal languages, to transmit their oral histories and traditions, to education in their language and to control over their own educational systems. They are afforded the right to maintain and develop their political, economic and social systems, and to determine and develop priorities and strategies for exercising their right to development. Their treaties with States should be recognized, observed and enforced. Last, but not least, the Declaration supports the right of indigenous people to own, develop, control, and use the lands and territories which they have traditionally owned or otherwise occupied and used, including the right to restitution of lands confiscated, occupied or otherwise taken without their free and informed consent, with the option of providing just and fair compensation wherever such return is not possible. The document, in particular, goes beyond ILO Convention No. 169 in its statements on self-determination, land and resource rights, as well as political autonomy.

With very few changes to this content — amendments that essentially emphasized already existing constraints on the right to self-determination and recognized the diversity of contexts – the Declaration was adopted last month by a landslide affirmative vote of 144 states in the United Nations General Assembly. Only four countries – the United States, Canada, Australia and New Zealand – voted against it, while Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russia, Samoa and Ukraine abstained.

The political significance of this remarkable success of the indigenous peoples’ movement cannot be understated. The United Nations can be justly proud of this day. What, however, is the legal effect of this instrument?

For one, a formal analysis of the Declaration dictates that it does not have legally binding effect per se. That is true for any, non-budget related resolution of the General Assembly. Yet, the name “Declaration” appears to give it a more solemn ring, takes it closer to most important policy statements of the organized world community — into the vicinity of instruments such as the 1948 Universal Declaration of Human Rights. While these documents are clearly not binding as treaties, individual component prescriptions of them might have become binding if they can be categorized as reflective or generative of customary international law.

States voting against this document, including the U.S., have rejected “any possibility that this document is or can become customary international law.” They stated that it does not constitute “evidence of customary international law,” as lacking support in state practice, and that it cannot provide “a proper basis for legal actions, complaints, or other claims in any international, domestic, or other proceedings.”

This statement is true as it pertains to the non-binding nature of the Declaration itself. As far as it proclaims the absence of state practice in support of the content of the Declaration, the individual rights pronounced, it needs to be independently assessed — just like any other claim to the customary international law character vel non of any new rule. In the case of the UN Declaration on the Rights of Indigenous Peoples, the negative vote by four governments, even though they have a significant number of indigenous peoples living in their midst, does not necessarily invalidate the claims to the customary international law character of individual key parts of the instrument or of principles embedded in it. This distinct body of customary international law concerning indigenous peoples, not necessarily coextensive with the full reach of the present Declaration, had formed long before this vote occurred. The starting-point for any such analysis is the ICJ’s definition of the requirements needed to establish new customary international law, as stated in the North Sea Continental Shelf Case, i.e. there needs to be a very widespread and representative state practice in support of the purported new rule, including the s
pecially affected states, as well as a feeling to be obligated (opinio juris).

In analyzing the individual parts of the Declaration, we see that all new rules of customary international law, as found in our respective surveys of state and international practice of 1999, 2001, and 2004, still remain part of the global consensus. As stated in 1999, “indigenous peoples are entitled to maintain and develop their distinct cultural identity, their spirituality, their language, and their traditional ways of life.” Most of the provisions of the Declaration go to the preservation of culture, language, religion, and identity; and state practice in the states with indigenous peoples largely conforms to these legal tenets. Due to the strength of the indigenous renascence throughout the world, the original goal of assimilation of indigenous cultures into the maelstrom of the modern world has largely been abandoned in favor of preservation and reinvigoration of indigenous cultures, languages and religions. The legal guarantees of these claims are, however, not the real bones of contention.

One of the issues in contention remains the definition and extent of the right to self-determination. Due to the insistence of the African governments, this right was expressly conditioned by the principles favoring the territorial integrity and political unity of states, principles that are not absolute and that already conditioned the right of self-determination under international law. Now, very few, if any, indigenous peoples actually had asked for anything approaching a threat to the territorial integrity or political unity of existing states. The goal of “indigenous sovereignty,” in particular, was mostly defined in the sense of cultural and spiritual reaffirmation much more than in the Western sense of independent political power. Looking at state practice, very widespread agreement persists, as stated in 1999, that indigenous peoples “hold the right to political, economic and social self-determination, including a wide range of autonomy and the maintenance and strengthening of their own system of justice.” Even the U.S. Mission to the United Nations, in the explanation of its negative vote, pointed out that the “U.S. government recognizes Indian tribes as political entities with inherent powers of self-government as first peoples. In our legal system, the federal government has a government-to-government relationship with Indian tribes. In this domestic context, this means promoting tribal self-government over a broad range of internal and local affairs, including determination of membership, culture, language, religion, education, information, social welfare, maintenance of community safety, family relations, Economic [sic] activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.” This means at least the recognition of indigenous peoples’ control over their people within their lands. Canada, now an opponent, but under its previous government a longtime and fervent proponent of the Declaration, has guaranteed widespread autonomy via the concept of aboriginal and treaty rights in its 1982 Canadian Charter of Rights and Freedoms. In the 1840 Treaty of Waitangi, in exchange for the Crown’s sovereignty over New Zealand, the Maori retained what they called rangatiratanga, i.e. their chiefs’ authority, which included their power to own, use and manage Maori lands and other resources according to Maori ways. Colombia, a state abstaining from the Declaration, has accorded indigenous peoples in their various resguardos far-reaching rights of internal autonomy. Its 1991 Constitution guarantees respect for their institutions of self-government, including indigenous courts applying traditional customary standards.

The same is true for our finding according to which indigenous peoples have a right under customary international law to “demarcation, ownership, development, control and use of the lands they have traditionally owned or otherwise occupied and used.” This customary norm, found partly as the result of our global surveys of state practice, was cited by the Inter-American Commission in its referral of the Awas Tingni community’s complaint against Nicaragua to the Inter-American Court of Human Rights. The norm underlies the Inter-American Court’s interpretation of the right to property under Article 21 of the American Convention on Human Rights in its landmark decision in the Awas Tingni Case of August 31, 2001. Once a rule has attained the status of customary international law, it can only be abrogated by a new norm of customary law. This year, the African states dropped their initial lack of comfort with the land rights provisions of the Declaration.

The domestic practice of the four states opposing the Declaration likewise is not opposed to the principle of recognizing indigenous peoples’ right to lands. Australia’s courts had invigorated the international indigenous peoples’ movement with their decisions in Mabo and Wik, which preceded the Native Title Act and land settlements with Aboriginal peoples. The Canadian government had proceeded with land settlement claims and treaties; and the U.S., in its Observations on the Declaration, only objected to what it perceived to be the “overly broad and inconsistent” language of the provisions on land and resources. It maintained that the “intent of the States in the Working Group was to encourage the establishment of mechanisms at the national level for the full legal recognition and protection of the lands, territories and resources indigenous peoples possess by reason of traditional ownership, occupation, or use, as well [as] those which they have otherwise acquired. Furthermore, it was intended that such recognition should take into account the customs, traditions, and land tenure systems of the indigenous peoples concerned.” Thus, any potential disagreement with the Declaration is a matter of a possibly limiting interpretation, not a denial of the right itself.

Furthermore, no state opposed the provision of the Declaration that mandates the observance of treaties between States and indigenous peoples. That is in line with our finding according to which “governments are to honor and faithfully observe their treaty commitments to indigenous nations.”

The U.S. has also stated that the declaration’s “failure to define the phrase “indigenous peoples” is “debilitating to the effective application and implementation of the declaration.” “This obvious shortcoming will subject application of the declaration to endless debate, especially if entities not properly entitled to such status seek to enjoy the special benefits and rights contained in the declaration.” One of us had made this argument years ago and suggested an appropriate definition, while the other favors the flexibility retained in the Declaration as passed. The most interesting aspect of the U.S. argument is, however, the at least implicit recognition that indigenous peoples do have a “status,” that they enjoy “special benefits and rights contained in the declaration.” Somehow, that does not sit well with the other U.S. argument that it be solely an “aspirational declaration with political and moral, rather than legal, force.” The language of “rights” and “status” is the language of law. By participating in this process and the concern shown over the years for special rights and status of indigenous peoples on the international plane, the four opposing states have demonstrated an opinio juris, a willingness to be bound if the provisions as finally formulated were in line with their detailed policy preferences.

In any event, only a jus cogens norm requires virtual unanimity of all member
s of the world community. The internal practice of the four opposing states, as well as their consent to accord a special status and rights to indigenous peoples in principle, makes them part of the world consensus on customary international law as formulated above. At most, they can be considered persistent objectors to certain contents of the Declaration. This status appears to be very much in doubt, however, at least for Canada, as it counted itself through many years amongst the staunchest supporters of the Declaration and indigenous peoples’ rights — until its government changed in February 2006.

The Declaration on the Rights of Indigenous Peoples and the customary law character vel non of the various rights it proclaims will be analyzed in further detail by a new International Law Association Committee on the Rights of Indigenous Peoples. As Chair and Member of this body, we look forward to your comments and suggestions.

Bibliography

United Nations Declaration on the Rights of Indigenous Peoples, September 13, 2007, available at http://www.ohchr.org/english/issues/indigenous/declaration.htm

Siegfried Wiessner, Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis, 12 HARVARD HUMAN RIGHTS JOURNAL 57 (1999), available at http://www.law.harvard.edu/students/orgs/hrj/iss12/index.shtml

S. James Anaya & Robert A. Williams, Jr., The Protection of Indigenous Peoples’ Rights over Lands and Natural Resources Under the Inter-American Human Rights System, 14 HARVARD HUMAN RIGHTS JOURNAL 33 (2001), available at http://www.law.harvard.edu/students/orgs/hrj/iss14/williams.shtml

S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW (2d ed. 2004)

Explanation of vote by Robert Hagen, U.S. Advisor, on the Declaration on the Rights of Indigenous Peoples, to the UN General Assembly, with Annex: Observations of the United States with respect to the Declaration on the Rights of Indigenous Peoples, September 13, 2007, USUN Press Release # 204(07), available at http://www.diplomacymonitor.com/stu/dm.nsf/dn/dn9694A1E7EC293A8585257355006729CE

S. James Anaya is James J. Lenoir Professor of Human Rights Law and Policy at the James E. Rogers College of Law, University of Arizona. Siegfried Wiessner is Professor of Law and Director of the Graduate Program in Intercultural Human Rights at St. Thomas University School of Law in Miami, Florida.
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