Last week in Canada, with federal MPs returning to Parliament amidst the continuation of countrywide protests by indigenous peoples, an opposition MP introduced a private member’s bill (Bill C-469) to require the Canadian government to ensure that all federal laws are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (A/RES/61/295). I’ll state clearly at the outset that this isn’t the first such proposal of its kind, with two other private member’s bills with the same general intent of giving domestic legal effect to the Declaration having been introduced in June 2008 (Bill C-569) and February 2009 (Bill C-328), later reinstated in March 2010. But the discussion that has ensued with respect to enacting domestic legislation to give a non-legally binding declaratory text status and pull within domestic law raises interesting questions for our understanding of the sources of international legal obligation (versus the sources of aspiration and political commitment), as well as concerns about the impact of UN efforts that raise unmet expectations. On the other hand, this may simply strike readers in other jurisdictions as very strange, at least in those jurisdictions where there is no chance that a domestic court would ever rely upon, or even cite, a General Assembly resolution text.
The United Nations Declaration on the Rights of Indigenous Peoples – often called the DRIP or UNDRIP by those in search of a short form – is a non-legally binding declaratory text that was adopted by the UN General Assembly on 13 September 2007 by way of a resolution. The Declaration is contained in an annex to the resolution. It is a lengthy text, consisting of 46 articles, with previous declaratory texts in the field of human rights having contained say ten or twelve general principles. It is also much more detailed in the wording of its commitments, and it was adopted by way of a recorded vote.
The need for a vote was itself not without precedent, even in the field of human rights, with the 1986 Declaration on the right to development (A/RES/41/128) having been adopted by a recorded vote of 146 in favour, 1 against (the United States) and 8 abstentions (A/41/PV.97 at 64). But a vote within the field of human rights is, nonetheless, unusual.
The norm, and ideal, for those engaged in efforts at standard-setting is to adopt a new declaration “without a vote”, with the hope that the consensus achieved within the international fora will then provide the foundational basis, or agreement-in-principle, on the parameters for the successful negotiation of a future treaty text. This pattern of building support for an agreed framework for the future negotiation of a legally-binding text through the adoption by the General Assembly of a non-legally binding declaration was first established by the adoption of the 1948 Universal Declaration of Human Rights (A/RES/217 A III), which was followed many years later by the adoption, signature and then ratification of the two legally-binding International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights respectively. Additional examples can be found in the fields of racism, women’s rights, the rights of disabled persons, torture, and enforced disappearances, with the adoption of a declaratory text by the UN General Assembly being followed years later by the negotiation of a legally-binding treaty text to address matters in these fields. (A helpful listing of the declarations and conventions found in General Assembly resolutions that demonstrates this chronological pattern can be found here)
By contrast, the United Nations Declaration on the Rights of Indigenous Peoples was adopted by a recorded vote, with four democratic countries with significant indigenous populations voting no. These no-voting countries were Australia, Canada, New Zealand and the United States. As for a consensus among those voting yes, this is also not as clear if what is meant is agreement as to the content of all the provisions found within the Declaration. Several countries placed on record their country’s position with respect to certain provisions and certain themes and aspects, with these explanations of vote (EOVs) serving a purpose akin to adding a statement of understanding when a country signs and/or ratifies a treaty, while also providing source material for any future search for state practice. The official record of the day’s discussions within the General Assembly marking the adoption of the Declaration contains the verbatim recording of these statements (see UN Document A/61/PV.107 starting at page 10). (UN press releases also contain unofficial vote counts, but the UN advises that researchers wanting an official tally should rely on the meeting records.)
Clearly, many were upset with the negative votes lodged by Australia, Canada, New Zealand and the United States. However, it must be remembered that a declaratory text is “adopted” by a deliberative body, an assembly of the representatives of states. There is no “signing” involved, (as is often misreported by journalists), nor is there an opportunity to hold the vote again as the action has taken place. All that a no-voting state can do, if it wishes to show a change of position after the vote, is publicly state that it now supports the adoption of the Declaration. However, since the vote has past, as has the opportunity to issue an EOV, the no-voting country must use other means to publicize the terms of its endorsement.
Interestingly, this is what has happened with the United Nations Declaration on the Rights of Indigenous Peoples. The first of the four states to change its position was Australia, with a federal election in November 2007 resulting in a change of government a few months after the General Assembly vote. On 3 April 2009, a formal statement of support for the Declaration was made by the Indigenous Affairs Minister Jenny Macklin on behalf of the Australian Government. New Zealand then followed suit, expressing its support for the Declaration a year later, on 19 April 2010, in a speech delivered by New Zealand’s Minister of Māori Affairs, Dr Pita Sharples, during the first day of the ninth session of the UN Permanent Forum on Indigenous Issues in New York. Canada was next, issuing a statement on 10 November 2010 endorsing the principles of the Declaration, while also repeating its concerns with certain provisions and adding the caveat of consistency with Canada’s Constitution and laws. A month later, on 16 December 2010, President Obama announced that the United States would “lend its support” to the Declaration during the second White House Tribal Nations Conference.
As noted above, Canada’s statement of support contained a caveat, with the text of its endorsement also reiterating Canada’s main areas of concern, specifically: “the provisions dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, States and third parties.” This language is identical to that used in Canada’s explanation of vote delivered in 2007 within the General Assembly (and recorded at pages 12-13 of the official record: A/61/PV.107).
Which brings us back to the private member’s bill. Canadian jurisprudence already imposes an obligation of consultation, not consent, with the latter term suggesting a requirement to agree, although there will be arguments that while the Declaration uses the word consent what was intended was consultation. Canadian law also requires a balancing of rights to a standard that is reasonable in a democratic society, rather than the higher standard of strict necessity and “just and compelling in a democratic society” that is found in article 46 of the Declaration. I raise these points not to critique the Declaration here, but to ask about the true intentions or implications of a campaign to incorporate declarations into domestic law, and also to raise a concluding point about the future for drafting declarations.
Is it the intention of the proposed domestic law to mandate the compliance of Canadian laws with the Declaration as endorsed? In other words, does the domestic incorporation of a declaratory text also include the domestic incorporation of the terms upon which a state gave its endorsement? Or is the intention, in light of those terms, to change Canadian law and jurisprudence to a position viewed as being more in sync with the Declaration? Or is the goal simply to give further domestic attention to the Declaration so as to legitimate the Declaration as an interpretive source to be used by the domestic courts? (albeit that at least two members of the Supreme Court of Canada felt no constraint in citing an earlier draft (!) version of the Declaration in 2001: Minister of National Revenue v. Mitchell 2001 SCC 33).
Admittedly, a private member’s bill has little chance of success. But what about the broader impact of the discussion it has triggered, as well as the expectations it has raised, with respect to the wider understanding of the sources of international legal obligation? Should the international community bother with efforts to draft legally-binding human rights treaties intended to stand the test of time, if all one needs to do is convince most member states within the General Assembly to adopt a non-binding political text and then later push for domestic legislation to give that text domestic legal effect? And what about the process of lodging reservations and interpretive declarations, a practice that is permitted under most human rights treaties (subject to general treaty law rules)? And lastly, what about the future for drafting declaratory texts to set aspirational standards to encourage all states to work towards improvements, if the actions taken within some states scare negotiators to require more and more specific wording, or more “no” votes? Do we want an international community of states where states find the need to absent themselves from joining a consensus that might help encourage change elsewhere?
In the interests of disclosure, the author did take part in the negotiation of the United Nations Declaration on the Rights of Indigenous Peoples at the General Assembly. She left government service in 2008 and the views presented in this post are her personal views. Official copies of the UN documentation referred to in this post can be obtained from the ODS database using the UN document symbols provided: see http://documents.un.org