Indg1002 Indigenous Peoples And Civil Assessment Answers

Answer:

Undoubtedly, the reception of the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) marked a new dawn for the rights of the indigenous people across the globe. It was received against the backdrop of numerous concerted efforts and struggles of governments to afford the native individuals rights within their jurisdictions.[1] Notably, its chief objective is to protect and foster the rights of indigenous people. When the UNDRIP was adopted on September 13^th 2007 by United Nation General Assembly 144 states voted in favor of it while 4 states voted against it. It is instructive to note that Australia was part of the states that voted against it and declared that they would not be bound by it. The challenging question lying embedded in the aforementioned fact is whether the UNDRIP confers international legal personality on Australia despite the fact that it declared that it will not be bound by it. Ideally, International legal personality is concept of international law that imposes obligations and responsibilities on states. This paper is poised to respond to the issue of whether the UNDRIP has gained the force of customary international law or the general international law thereby conferring international legal personality on Australia as a non member state.

The 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was brought to force as result of the determination of the indigenous people to safeguard their rich culture, customs, traditions, institutions, land and territories.[2] Before the promulgation of the UNDRIP there was a widespread violation of indigenous peoples rights. This included numerous evictions from their land and erosion of their culture tradition and customs. The 144 countries that signed the treaty are bound by it following the principle of puctus sunt servanda that imposes an imperative on states parties to a treaty to apply it in good faith.[3] In addition, the UNDRIP is binding on the member states and by dint of article 27 of the Vienna convention on the law of treaties no member state can invoke domestic law to justify a breach of the dictates of the (UNDRIP). It is apparent that there is no opposition as to whether the UNDRIP is binding on the states that voted in its favor. However, it bears noting that the nerve of the reasoning behind Australia reluctance to be bound by the UNDRIP is that it has engendered its own domestic human rights mechanisms for the protection of the rights of indigenous people, which it argues are adequate.

International legal personality is precept of international law that gives a state obligations and responsibilities under international law. International legal personality creates subjects of international law.[4] This implies that entities that have an international legal personalities have duties and rights that be enforced before an international judicial system or tribunal. States, by virtue of being the principal organ underpinning international law, are deemed to have an international legal personality. Even despite the fact that a state may not a party to an international legal instrument, the international legal personality of a state is not eroded away. States have an original international legal personality gives them absolute rights and duties under international law.[5] Precisely, the inherent legal personality of states profoundly relates to the principle of jus cogens in international law that which includes norms that should not be derogated by any state in the international community. Entities that have an international legal personality can enforce rights, bring claims for damages pursuant to any international legal instrument or any source of international law. To this extent, the question that begs then is whether the Australian indigenous people have an international legal personality giving them the ability to enforce their rights and meet their obligation under the United Nations Declaration on the Rights of Indigenous Peoples.

The UNDRIP confers upon international legal personality on the Australian indigenous people by way of customary international law. [6]It is imperative to note that customary international law is binding on all states since it embodies norms that cannot be derogated. Although the complete document of the 2007 UNDRIP cannot be considered as customary international law there is a considerable amount of evidence in the UNDRIP that shows a profound correlation of the provisions of the UNDRIP and the obligations of a state pursuant to customary international law. A striking example of provisions of the UNDRIP that correspond with some norms tenets of customary international law include the indigenous people right to self determination, the right to participation in national decision that affect them, the right to land, cultural identity, territories and  resources. Australia vehemently denied any possibility that the UNDRIP could have the force of international customary law. The widespread acceptance of the UNDRIP and its provisions that correspond to other customary international legal norms is evidence of opinion juris  thereby giving some of its provisions the force of customary international law  and subsequently confers international legal upon the Australian indigenous people.   

 The UNDRIP is legally binding on Australia as a state and the indigenous people in Australia cannot all but some of its provisions. This is premised from the fact that it depends on the existing international and domestic legal mechanisms that have been placed to promote and protect human rights. The legality and the binding nature of the UNDRIP is drawn from the fact that it has received widespread acceptance and countries such as Australia that had also rejected it have now accepted it.[7] Treaty bodies under the United Nations have also interpreted indigenous people rights under the UNDRIP from the international human rights law perspective. In addition the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights have also been applying some of the provisions in the UNDRIP as a basis of their legal reasoning in the decisions and finding they make. However, it is worth noting that this widespread acceptance and practice of the international community following the UNDRIP does no not imply that the UNDRIP embodies the general principle of international law. The document is legally binding and confers upon international legal personality on the Australian indigenous people only to the extent that the principles it contain correspong to the general principles of international human rights law.

The rights and duties that have been reflected in the UNDRIP have now been echoed in the domestic legal instruments. These shows that while the UNDRIP as a whole is not legally binding some of the provisions have conferred an international legal personality on the indigenous people. This stems from the fact the government has undertaken to fulfill the legal obligations that have been imposed by the UNDRIP. The indigenous people of Australia can enforce the rights that have been entrenched in the UNDRIP especially if those rights do not contravene any legal provisions enacted within that jurisdiction. The UNDRIP is an instrument that echoes international universal human rights. This also implies that it creates legal obligations and rights. Suffice to say, any person whose rights under the declaration have been infringed is entitled to bring a legal claim, not pursuant to the declaration but because the rights that have been violated are either customary international laws or general principles of international law. This therefore implies that the UNDRIP does not directly confer international legal personality but it may be doing so indirectly through it provisions.

Some legal commentators have noted the UNDRIP is a mere declaration of the United Nation General assembly is not a binding within the realm of international law.[8] The primary rationale is that some of the provisions of the declaration do not have a legal force. It has also been argued that the UNDRIP creates special legal rights for the indigenous people which creates a notions of inequality and discrimination against potherb people. Conversely, it has also been argued that the provisions of the UNDRIP area only an extension of international human rights law. The Law Council of Australia noted that the legality of the UNDRIP is attributed to the fact it contains principles that are generally protected by international treaties and customary law. However, the document as a whole is not a legal document per see but some of its provisions have an international legal force. This implies that some rights and duties under the declaration that ordinarily would confer international legal personality may not be able to do so because they lack the force of international law.

Conclusion

It is a plausible conclusion that the legal status of the United Nations Declaration on the Rights of Indigenous Peoples has been a subject of legal a magnanimous legal contention. Despite the fact a resolution passed by the United Nation General assembly does not have a legal force, it can be argued that it inspires the future of customary international law. It can also be concluded that the declaration as a while does not have an international legal force but some of its provisions that profoundly relate to existing customary international law and general principles of international law have an inherent legal force that confers international legal personality on the Australian indigenous people. The right to self determination in international is a rigorous example of a provision in the United Nations Declaration on the Rights of Indigenous Peoples that has a legal force and confers international legal personality on the Australian indigenous people. Since the government Australia is still adamant that declaration does not confer international legal personality it can be argued that it does not have any duty under the declaration. Despite the shortcomings that derived from academic and scholarly arguments it can be argued that the UNDRIP has played a significant role in inspiring domestic regulation of the indigenous people rights. Accordingly, the dominant view of this paper is that the United Nations Declaration on the Rights of Indigenous Peoples has limited international legal personality. The Australian indigenous people can only enjoy its legal personality to the extent that the provisions in question correspond with customary international law.

References

Davis, Megan. "Data and the United Nations Declaration on the Rights of Indigenous Peoples." INDIGENOUS DATA SOVEREIGNTY (2016): 25.

Davis, Megan. "Indigenous struggles in standard-setting: The United Nations Declaration on the rights of indigenous peoples." Melb. J. Int'l L. 9 (2008): 439.

Davis, Megan. "To bind or not to bind: The United Nations declaration on the rights of indigenous peoples five years on." Austl. Int'l LJ 19 (2012): 17.

Lino, Dylan. "The politics of inclusion: the right of self-determination, statutory Bills of Rights and Indigenous peoples." Melb. UL Rev. 34 (2010): 839.

Macklem, Patrick. "Indigenous Recognition in International Law: Theoretical Observations." Mich. J. Int'l L. 30 (2008): 177.

Nijman, Janne Elisabeth. "The concept of international legal personality: an inquiry into the history and theory of international law." (2004).

Portmann, Roland. Legal personality in international law. Vol. 70. Cambridge University Press, 2010.

[1] Macklem, Patrick. "Indigenous Recognition in International Law: Theoretical Observations." Mich. J. Int'l L. 30 (2008): 177.

[2] Davis, Megan. "To bind or not to bind: The United Nations declaration on the rights of indigenous peoples five years on." Austl. Int'l LJ 19 (2012): 17.

[3] Vienna Convention on the Law of Treaties

[4] Nijman, Janne Elisabeth. "The concept of international legal personality: an inquiry into the history and theory of international law." (2004).

[5] Portmann, Roland. Legal personality in international law. Vol. 70. Cambridge University Press, 2010.

[6] Lino, Dylan. "The politics of inclusion: the right of self-determination, statutory Bills of Rights and Indigenous peoples." Melb. UL Rev. 34 (2010): 839.

[7] Davis, Megan. "Data and the United Nations Declaration on the Rights of Indigenous Peoples." INDIGENOUS DATA SOVEREIGNTY (2016): 25.

[8] Davis, Megan. "Indigenous struggles in standard-setting: The United Nations Declaration on the rights of indigenous peoples." Melb. J. Int'l L. 9 (2008): 439.