The Role of Soft Law in the International Legal System: The Case of the United Nations Declaration on the Rights of Indigenous Peoples

Abstract

The 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) represents the culmination of an extraordinary process which has fundamentally transformed the status of indigenous peoples under international law. However, whereas the historic and symbolic importance of the instrument is indisputable, its overall value remains controversial. More precisely, since the UNDRIP does not per se create legally binding obligations, some doubts exist with regard to its legal significance and capacity to affect State behaviour. This article discusses these two intertwined issues in conjunction with an analysis of the evolving indigenous rights regime at the international level, with a view to establishing the overall potential impact of the UNDRIP. It argues that, given the specific context and circumstances, the non-binding nature of the instrument does not fundamentally undermine its value. By contrast, a number of factors suggest that the UNDRIP can generate reasonable expectations of conforming behaviour.

Note: This is a pre-print version of the article published in the International and Comparative Law Quarterly (details above). Please cite to the final published version. The full article can also be downloaded from City Research Online, the institutional repository of City University London.

Keywords: Soft Law, United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP, DRIP, Indigenous Peoples' Rights