The UN Declaration on the Rights of Indigenous Peoples and the Limits of the International Legal Project in the Indigenous Context
REFLECTIONS ON THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES AND INTERNATIONAL LAW, Stephen Allen, Alexandra Xanthaki, eds., Hart Publishing, Forthcoming
24 Pages Posted: 1 Nov 2009
Date Written: November 1, 2009
Many prominent indigenous representatives and sympathetic international lawyers/scholars have embraced the UN Declaration on the Rights of Indigenous Peoples (DRIP) on behalf of the international legal project, despite it being a non-binding international instrument. This essay questions the techniques used by some members of these constituencies to promote the significance of the DRIP for international law. In particular, it demonstrates the shortcomings of the version of the international legal project favoured by some indigenous rights advocates and the weaknesses in their legal arguments and rights theorising. Instead, this essay argues that the DRIP’s significance stems from the political legitimacy it embodies rather than its claimed international legal character. It suggests that the DRIP should be viewed as a highly persuasive tool to be utilised in the political contests that determine municipal laws and policies within the arena of the State. Indigenous peoples must seize this internationally sponsored opportunity to (re)engage in national political processes in order to make their particular cases for comprehensive municipal legal rights. The essay argues that political engagement at a national level is more likely to generate the political will needed to operationalise indigenous rights (thereby closing the existing ‘implementation gap’) than the currently preferred route of trying to impose international standards on ambivalent States, a process which typically leads to the creation of paper rights that do little to protect indigenous peoples in national settings.
Keywords: indigenous rights, international law, international legal theory
JEL Classification: K33
Suggested Citation: Suggested Citation