Development with culture and identity

1. The legal status of the Declaration

… as a resolution adopted with the approval of an overwhelming majority of Member States, the Declaration represents a commitment on the part of the United Nations and Member States to its provisions, within the framework of the obligations established by the Charter of the United Nations.¹⁵¹

The Declaration does not create new or special rights for indigenous peoples; rather, it elaborates on existing human rights standards and articulates them as they apply to the particular situation of indigenous peoples. Therefore, the Declaration illustrates the interdependent and indivisible nature of international human rights norms and standards:

The United Nations Declaration on the Rights of Indigenous Peoples represents an authoritative common understanding, at the global level, of the minimum content of the rights of indigenous peoples, upon a foundation of various sources of international human rights law. The product of a protracted drafting process involving the demands voiced by indigenous peoples themselves, the Declaration reflects and builds upon human rights norms of general applicability, as interpreted and applied by United Nations and regional treaty bodies, as well as on the standards advanced by ILO Convention No. 169 and other relevant instruments and processes.

The Declaration does not attempt to bestow indigenous peoples with a set of special or new human rights, but rather provides a contextualized elaboration of general human rights principles and rights as they relate to the specific historical, cultural and social circumstances of indigenous peoples. The standards affirmed in the Declaration share an essentially remedial character, seeking to redress the systemic obstacles and discrimination that indigenous peoples have faced in their enjoyment of basic human rights. From this perspective, the standards of the Declaration connect to existing State obligations under other human rights instruments.¹⁵²

In a joint statement to celebrate the 2008 International Day of the World’s Indigenous People, the Acting High Commissioner for Human Rights, Kyung-wha Kang, and the Special Rapporteur on the rights of indigenous peoples, James Anaya, made this call for a political commitment to the Declaration:

The Declaration adopts language that imposes obligations and responsibilities on States.¹⁵⁴ Accordingly, the United Nations system is increasingly recommending that States take concrete and targeted actions in this regard. For example, the Special Rapporteur on the rights of indigenous peoples has made recommendations to States that they review their laws and policies that impact on indigenous peoples in light of the Declaration.¹⁵⁵

As noted previously, the rights of indigenous peoples are grounded in international human rights instruments. Provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the International Convention on the Elimination of All Forms of Racial Discrimination are particularly relevant to indigenous peoples’ issues. The treaty bodies have, in their reports and recommendations, provided general interpretations of the rights set out in these treaties and their application to indigenous peoples:

The Committee on the Elimination of Racial Discrimination issued general recommendation No. 23, which calls on States parties to ensure indigenous peoples’ rights to culture, land and political participation are recognized. It has also clarified that indigenous peoples’ rights, which are permanent rights, should not be confused with temporary “special measures” – which are measures intended to remedy past discrimination or to correct contemporary inequalities – in a general comment on special measures.

The Committee on the Rights of the Child adopted an important and extensive general comment on the rights of the indigenous child and has made references to the Declaration in its examination of State party reports.

The Human Rights Committee continues to invoke the right to self-determination in relation to indigenous peoples, particularly article 1 (2) (the right to freely dispose of natural wealth and the right to be secure in the means of subsistence). It has also highlighted the obligation on States to “ensure that indigenous peoples are able to exercise their right to free, prior and informed consent”.¹⁵⁶ Further, the Committee has interpreted article 27 (the right to culture) as a valid basis for indigenous peoples’ claims to land and resources.

The Committee on Economic, Social and Cultural Rights has also made reference to article 1 in relation to the effective enjoyment by indigenous peoples of their rights to ancestral domains, lands and natural resources. It has adopted a general comment on non-discrimination in relation to economic, social and cultural rights that is very relevant to indigenous peoples. The Committee has also adopted an important general comment on the right to take part in cultural life that contains substantial text on indigenous peoples and affirms the rights recognized in the Declaration. It relates territorial rights to cultural identity, using language from the Declaration about indigenous peoples’ right to own and control their lands, territories and resources, as well as stressing that States should respect the principle of free, prior and informed consent in all matters that affect the rights of indigenous peoples.

A number of additional factors add weight to the importance of the Declaration and its potential to influence human rights norms:

At the time of its adoption, the Declaration was supported by most States, with only four voting against it (Australia, Canada, New Zealand and the United States of America) and 11 abstentions.¹⁵⁷ The four States who voted against the Declaration have all since reversed their position. This worldwide support indicates an international consensus on the normative expression of the rights of indigenous peoples in a way that is coherent with existing international human rights standards. The consistent reference to the Declaration in the universal periodic review (UPR) process further highlights this international consensus.¹⁵⁸

The drafting of the Declaration extended over a period of 20 years. During this time, both indigenous peoples and States were actively involved in what a number of States described as “negotiations”.¹⁵⁹ Consequently, the Declaration is evidence of the common ground between the indigenous peoples of the world and United Nations Member States.¹⁶⁰ As the Special Rapporteur on the rights of indigenous peoples has noted, the advocacy and participation of indigenous peoples over decades gives a high degree of legitimacy to the Declaration and the norms contained within it “substantially reflect indigenous peoples’ own aspiration”.¹⁶¹

It is increasingly argued that aspects of the Declaration already form part of customary international law.¹⁶²