Realism and The U.N. Declaration on the Rights of Indigenous Peoples

Much hay was made late last week when the United States endorsed the 2007 United Nations’ Declaration on the Rights of Indigenous Peoples, or the UNDRIP.


But as one friend put it, the Declaration is little more than a “non-binding gesture of goodwill,” for my money, not unlike a Christmas card. And in fact, the Christmas cards you receive this month may have more meaning behind them.

Many tribal interests have lauded the Obama Administration’s decision to endorse the instrument, but the functional difference the endorsement makes for indigenous rights in the United States is anyone’s guess.

Realistically, the Declaration does precious little to alter the domestic policy of nations’ toward their indigenous populations. Nothing in the UNDRIP, for example, requires that nations consult with indigenous peoples prior to making decisions on issues affecting them. Article 19 of the Declaration provides:

Article 19

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

While the language of the Article reads like a robust mandate, the Declaration is actually non-binding on signatory governments. The actual language from the Declaration’s Preamble merely “encourages” states to comply with the instrument’s provisions. This, of course, means that signatory parities are free to disregard the Declaration so long as they make a good faith effort to implement its aspirations.

To be fair, this criticism is not specific to the UNDRIP. The problem of weak mandates is endemic to many areas of international law, even where the instruments in question are actually said to be binding on the signatory parties. Consider the matter of Dann v. U.S..

There, the Dann sisters routinely grazed their cattle on public lands that were once part of the Western Shoshone Reservation. When the U.S. Government slapped a fine on the sisters for grazing without a permit, the Danns claimed that the lands were part of their ancestral territory, and that the fine violated their indigenous human rights. Naturally, the matter was litigated in the U.S. Courts where the Danns lost at every level, including the United States Supreme Court.

Having exhausted their domestic remedies, the Danns brought their petition before the Inter-American Commission on Human Rights which issued a sweeping finding of violation against the U.S. Government.

While the matter might seem like a win in any domestic court in the world, in international law the outcome was quite the contrary. In response to the IACHR opinion, the U.S. Government flatly ignored the Commission’s ruling, seized the Danns cattle, and dismissed the entire proceeding as the misguided effort of two Indians to upset the settled expectations of tribal property law.

Note carefully, that this was the outcome litigated under an international law instrument that is said to be ‘binding’ upon the signatory parties. If a binding instrument produces such incongruous results, the long-term viability of a non-binding instrument is a legitimate concern for advocates seeking to affirm rights on behalf of indigenous peoples under the Declaration.

– Posted using BlogPress from my iPad

2 responses to “Realism and The U.N. Declaration on the Rights of Indigenous Peoples”

  1. As a Amerindian female, the declaration give us a recognizable platform to stand on. Most people today forget who the indigenous people of America are. the millions of females crated from the Earth, for America, we have been given new identities after identities that dis respect our right to stand in our truth. whether or not the declaration is binding or not, 35 million indigenous Americans living in the ghettos of the United States can now deal with racism from a point of truth instead of abstract symbolism. We as a people have always seeked remedy by waiting for our time, well the time has come. the declaration has opened the way to be recognized. We are not a vanished race of people we have always been here. we the Amerindians,aka the Negros, the blacks and the african Americans.Now we have a choice to be in our truth or remain invisible and in bondage.

  2. Hi Rev-Thanks for dropping by! A couple of reactions to your comments. You concluded your remarks with a point about truth, so I'll start there. As much as I appreciate the emotional impact that the Declaration has made on much of Indian Country here in the U.S., I think this confuses the hope of change with actual change. The simple fact is that the Declaration does nothing to mandate change in the domestic policies of signatory countries toward indigenous peoples. Absent such an mandate, the Declaration is not the catalyst for change that some advocates think it is. You also mentioned that the Declaration provides a 'recognizable platform to stand on,' and I agree with this point in many respects. If the Declaration has any usefulness at all, it will be as an instrument that Indigenous peoples can invoke when challenging the policy norms within their own countries. But again, the ability to invoke an international norm matters little unless domestic governments are actually open to reconsidering their domestic policies. As a quick example, consider that the U.S. Government is party to the Geneva Convention, and yet asserted its sovereignty while conducting enhanced interrogation techniques at Guantanamo Bay, Cuba. This was done in spite of widespread international opposition. The Geneva Convention, of course, is an instrument that is said to be binding. The point of the post, and this reply is simply to inject a dose of realism into the fervor surrounding the Declaration's endorsement by the U.S. While it's great to have an international instrument to invoke in the assertion of rights, unless a domestic government is willing to reconsider its policies, little practical change can occur.

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