To bind or not to bind: the United Nations Declaration on the Rights of Indigenous Peoples five years on.

• Author: Davis, Megan

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. It is a necessary exercise to read, make sense of and engage with the divergent issues arising from this inquiry because it can be influential in fashioning a global understanding of both the character and content of the Declaration. The teachings of the most qualified publicists are a source of international law as a subsidiary means for the determination of rules of law; although this attracts competing interpretations as to its cogency. (7) The majority of the UNDRIP literature by no means constitutes that. Still, in the absence of a comprehensive and authoritative travaux preparatoires, it may be that some of these sources are used to reconstruct meaning or discern content. Indeed I have noticed law students' comprehension of the meaning of the text and their understanding of the usefulness of the UNDRIP to Indigenous peoples is being heavily influenced by this literature in the essays they produce.

The explicit reasoning for much of the discussion and debate in the literature turns on the question of its status in international law: to bind or not to bind? The anxiety that is present in the literature over the character of the UNDRIP is no doubt informed by the over-eager approach of some scholars prematurely to claim aspects of the UNDRIP as already constituting customary international law. (8) The eagerness to claim customary status has been met with caution by some, given the conservative nature of international law, especially the complexity surrounding the formation of custom. (9) Still, it would seem that the Declaration exists in an amorphous in-between state of constituting both a 'nonbinding', influential and aspirational statement of soft law but equally an instrument that reflects already binding rules of customary international law. These claims of binding norms have animated the attention of Indigenous communities. (10) So, it is worthwhile to trace the literature the UNDRIP has generated since its adoption, as it provides us with a layered narrative of the contribution of the Declaration to Indigenous peoples rights in international law so far, and gives us some Insight into the developing character of the UNDRIP. Indeed we must take this seriously because of the exigency of the Indigenous international project to buttress the contemporary and ongoing Indigenous struggles around the world and to stem the tide of cultural destruction. For example, the rapid pace at which languages are disappearing has been central to the most recent constitutional recognition project in Australia. So too has been the destruction of sacred sites and cultural heritage. For this reason, it is important also to reflect on the dissonant tenor of some of this literature which is surprisingly negative and even, on occasions, mean spirited about the motives and capabilities of Indigenous peoples in this project.

Part of the aim of this article is to be descriptive and draw from the discursive body of UNDRIP literature to lay out the major issues that have emerged since its adoption. The article begins by providing a truncated version of the development of the UNDRIP from its early conception in the UN Working Group on Indigenous Peoples ('WGIP'), to its challenging passage through the Commission on Human Rights ('CHR') Working Group ('CHRWG') (the Human Rights Council replaced and assumed most of the mandates, functions and mechanisms of the Commission on Human Rights) to the Third Committee of the GA. Part III draws a picture of the competing interpretations and anxieties that have emerged since the UNDRIP's adoption by the GA in relation to content and character. Here, I will extract and examine in more detail the most important elements of the scholarly captivation with the UNDRIP. Regarding the content, I focus on three controversies: a) the question of whether the UNDRIP contains existing rights or sal genetic rights; b) Article 3, the right to self-determination; and c) art 42 and the purported role of the PFII as an oversight mechanism for the implementation of the UNDRIP. Then, regarding character, I will turn to the discussion in the literature of the competing interpretations of: a) UNDRIP as 'soft' law; and b) the UNDRIP and customary international law. These elements of the scholarly discourse are the most useful in capturing the anxieties that have emerged since the UNDRIP's adoption. Part IV will examine the literature problematising the participation of Indigenous peoples in the drafting of the UNDRIP.

II History of the UNDRIP

The genesis of the UNDRIP can be traced back to the work of the first specialised UN mechanism to examine Indigenous peoples' human rights issues, the Working Group on Indigenous Populations ('WGIP'). The WGIP was established in 1982 by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, as authorised by the Economic and Social Council ('ECOSOC'). (11) The now-decommissioned WGIP was a body of five experts and its mandate was to review 'developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations' and 'to give special attention to the evolution of standards concerning the rights of such populations'. (12)

A unique feature of the WGIP was the frank and open environment of the meeting. Nurtured by the low-hanging status of the working group--as a subsidiary of the Sub-Commission on Prevention of Discrimination and Protection of Minorities--and the 'review of developments' mandate, this convergence enabled Indigenous peoples to air grievances about the state's violation of Indigenous peoples human rights. (13) This aided the WGIP's role in cultivating substantial evidence of the nature and extent of those violations in relative anonymity; very few states regularly attended the annual working group. (14) It was through this process that it...