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THE LEGAL STATUS OF THE UN DECLARATION ON THE

RIGHTS OF INDIGENOUS PEOPLES
Mr. Stephen Wheatley
Reader in InternationalLaw and Directorof the Centrefor InternationalGovernance
(University of Leeds).

After more than a decade of dialogue involving representatives of indigenous peoples, the
United Nations Commission on Human Rights Sub-Commission on Prevention of
Discrimination and Protection of Minorities adopted in August 1994 a Draft United Nations
Declaration on the Rights of Indigenous Peoples.

00

On 19 June 2006, the Draft was

approved by the UN Human Rights Council, and forwarded to the General Assembly,
which adopted, on 13 September 2007 (with minor amendments),"" resolution 61/295,
"The United Nations Declaration on the Rights of Indigenous Peoples". 102 The participation
of indigenous peoples was regarded as significant, with the representative of Peru observing
in the General Assembly that it lent 'unquestionable legitimacy to the document.' 1 03 The
Declaration represents a significant advance in the recognition of indigenous peoples as
subjects of international law, and a vindication of the strategy of activists for indigenous
peoples to "internationalize" their demands for the recognition of (collective) 'rights' for
indigenous peoples, separate and distinct from the body of (individual) international human

100 United Nations Commission on Human Rights Sub-Commission on Prevention of Discrimination and Protection of Minorities: Draft
United Nations Declaration On The Rights Of Indigenous Peoples, adopted 26 August 1994, reprinted 34 ILM (1995) 541.

101 A delay of one year was promoted by the concerns of African states around the use of the language on self-determination and lack of
a definition of "indigenous" people: UN Press Release, UN Doc. GA/10612.

102 GA Res. 61/295, adopted 13 September 2007, 'The United Nations Declaration on the Rights of Indigenous Peoples' (hereafter UN
Declaration on the Rights of Indigenous Peoples).

103 UN Doc. A/61/PV.107 (13 September 2007), p. 10.

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rights law, 1 04 and related rights of minorities

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- demands which had often found little

support in domestic political arenas.

In terms of the legal status of the Declaration, General Assembly resolutions do not by
themselves create international law obligations. 106 The UN press release describes the UN
Declaration on the Rights of Indigenous Peoples as a 'non-binging text'.

107

A number of

possibilities follow. First, that as it does not fit within the pedigree of legal sources
10
recognized in the system of international law,o
the Declaration is of no (direct) interest to

the international lawyer: it may reflect emerging normative standards (lex ferenda), but
does not represent an accurate statement of international law as it now stands (lex lata). 109
Second, the Declaration may represent the emergence of a 'modern' form of customary
international law, deduced from international instruments rather than the identification of
state practice. 110 Customary international human rights law has often developed through the
adoption of "legislative" instruments by the General Assembly of the United Nations,
notably the Universal Declaration of Human Rights. This argument may be difficult to
sustain however given the extent to which the Declaration "develops" international law on
indigenous peoples, and the absence of consensus in its adoption - notably the opposition
of liberal democracies with significant indigenous populations (Australia, Canada, New
Zealand, and the United States), who argued that the Declaration was not legally binding;

104 See, for example, Universal Declaration of Human Rights: GA Res. 217(HI1)A, adopted 10 December 1948, 'International Bill of
Human Rights'.

105 Cf. GA Res. 47/135, adopted 18 December 1992, 'Declaration on the Rights of Persons belonging to National or Ethnic, Religious
and Linguistic Minorities'.

106 Cf. Article 10, UN Charter.

107 UN Press Release, UN Doc. GA/ 10612.

108 Article 38(1), Statute, International Court of Justice.

109 The General Assembly 'proclaims the following United Nations Declaration on the Rights of Indigenous Peoples as a standard of
achievement to be pursued': Preamble, UN Declaration on the Rights of Indigenous Peoples (emphasis added).

I10

See Anthea Roberts, 'Traditional and modern approaches to customary international law: a reconciliation' (2001) 95 American

Journal of International Law, 757, 758.

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did not reflect state practice, or general principles of law; and was not capable of
contributing to the development of customary international law.11
The third possibility is that the Declaration constitutes a form of 'soft' international law.
Whilst framed in terms of 'law', the UN Declaration on the Rights of Indigenous Peoples
lies outside of the Westphalian frame of state-law and inter-nation, and is not (from the
perspective of positive international law) legally binding. I12 The globalization of
governance has though broken the Westphalian frame of law-making, with international law
now including both traditional forms of state and inter-state law, and new forms of
'international governance' not linked to the exercise of sovereign authority. The
Restatement of Foreign Relations notes that whilst resolutions of the UN General Assembly
are not included as a source of law in Article 38(1), Statute of the International Court of
Justice, the provision was drafted prior to the growth and proliferation of international
organizations since 1945,113 and it is not possible to conclude that resolutions of
international organizations are irrelevant in the development of general and customary
international law. In particular, the resolutions of universal international organizations
(principally the United Nations), 'if not controversial and if adopted by consensus or virtual
unanimity, are given substantial weight.' 1 1 4
The relevant question is not whether the UN Declaration on the Rights of Indigenous
Peoples is 'hard' or 'soft' law, but in a system of global governance that relies only to a
minimal extent on formal, judicial-type, mechanisms of dispute resolution and coercive
enforcement measures whether it is 'law', and the consequences that follow from a
determination that the Declaration is international ('soft') law. Recent literature has for

Ill See the positions of the United States (USUN Press release No. 204(07), 13 September 2007), and Australia, Canada, and New
Zealand (UN Doe. A/61/PV.107 (13 September 2007)); also, Colombia, and the United Kingdom, which emphasized that the Declaration
was not legally binding and did not have any retroactive application on 'historical episodes': ibid., p. 22.

112 It can only become part of ('hard') international law when adopted in a treaty, or emerges as part of customary international law.

113 Restatement (Third) of Foreign Relations Law 103 (1987), reporter's note 2.
114 Ibid., "comment" (emphasis added).

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example questioned the efficacy of international human rights instruments in terms of

improving the position of actual human persons. The importance of ('hard') international
human rights law treaties appears to lie more in their ability to construct legitimate
standards of state conduct, which in turn acts to constitute domestic systems of law (and
related domestic politics)." 5 Global governance norms, both 'hard' and 'soft', establish a
'shared expectation about appropriate behaviour', 116 and it is noteworthy that in debates in
the General Assembly, the representative of Australia observed that the 'aspirational
contents' of the UN Declaration on the Rights of Indigenous Peoples would be relied on 'in
setting standards by which States would be judged in their relations with indigenous
peoples.'

117

Traditional forms of (Westphalian, i.e. state and inter-nation) law enjoy presumptive
political authority (the doctrine of the rule of law). In the modern age, state law relies for its
authority on its democratic legitimacy; inter-state law on a combination of contractual and
democratic (i.e. deliberative) legitimacy (pacta sunt servanda and the process of rational
deliberation which precedes the reaching of agreement). In relation to new forms of
international governance, political legitimacy is provided by a combination of three factors,
which will be weighted according to the circumstances of the particular case: first, the
source of political authority (in this case the United Nations); second, the extent to which it
is accepted that the non-state actors is pursuing good governance aims and methods; and
finally, in circumstances of imperfect knowledge and reasonable disagreement, the
epistemic authority of the non-state actor, its claim to be the possessor of political truth. A
democratic understanding of epistemic authority focuses on decision-making procedures
(transparent processes of deliberation in which all those affected by the exercise of political
authority are able to take part), and the accountability of non-state actors to those affected
by their activities.
115 Oona A. Hathaway, 'Do human rights treaties make a difference?' (2002) 111 Yale Law Journal 1935, 2021.

116 Martha Finnemore, National interests in international society (1996), p. 22. Vaughan Lowe has made the point that whilst 'soft-law'
norms are not legally binding, they form part of a 'broader normative context within which expectations of what is reasonable or proper
State behaviour are formed': Vaughan Lowe, International law (2007), p. 95-6.

117 UN Doc. A/61/PV107 (13 September 2007), p. 12. See also the comments by Finland, Guyana, and Turkey: ibid.

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Adopted within the constitutional framework of the United Nations, with the participation
of indigenous peoples ("those affected"), the UN Declaration on the Rights of Indigenous
Peoples has a strong claims to epistemic authority, i.e. to be regarded as the most significant
statement at the level of global governance on the relationships between states and
indigenous peoples, and indigenous peoples and individuals. It will both legitimize certain
demands of indigenous peoples (to self-determination, for example), and de-legitimises
others (any claim for respect for cultural norms inconsistent with international human rights
standards, and any general right of secession). It provides, if you like, a 'template' for good
(i.e. legitimate) state/indigenous peoples relations (consistent with global governance
norms), defining the terms of political participation, and the possibilities and limits of that
participation.
The text of the Declaration can be found here: http://www.un.org/documents/resga.htm.

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