A/HRC/57/62 Indigenous Peoples. The Declaration has also contributed to the development of – and at least partially reflects – general principles of international law and customary international law. A study conducted by a multinational committee of international law experts and approved by the International Law Association concluded that the Declaration “includes several key provisions which correspond to existing State obligations under customary international law”.5 Hence, it is increasingly argued that aspects of the Declaration already form part of customary international law.6 5. While the primary focus of the present study is on article 38 of the Declaration, it should also be analysed in conjunction with the interrelated provisions. 7 6. Article 38 of the Declaration affirms that: “States, in consultation and cooperation with Indigenous Peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.” This general requirement is elaborated on in other provisions, with specific affirmative measures expected from States in connection with the rights affirmed in the Declaration.8 7. The kind of State action required to operationalize the rights affirmed in the Declaration thus entails an ambitious programme of legal and policy reform, institutional measures and reparations for past wrongs, involving a myriad of State actors within their respective spheres of competence. The Chair of the Working Group on Indigenous Populations, the precursor to the Expert Mechanism, described that process as “belated Statebuilding”, a process “through which Indigenous Peoples are able to join with all the other peoples that make up the State on mutually agreed upon and just terms, after many years of isolation and exclusion”.9 8. Implementing the Declaration normally requires, or can be facilitated by, the adoption of new laws or the amendment of existing legislation, as envisaged in article 38 of the Declaration, which explicitly calls for appropriate “legislative measures”. Indigenous-specific policy and regulatory frameworks are still lacking or insufficient in most States, and may therefore also be required. It is important to note that the legal and institutional transformations required by the Declaration are not usually sufficiently addressed solely by enacting specific “Indigenous laws”, as many States have done. Rather, such transformations will involve changes to broader legal structures in key areas. Article 38 highlights the central role of Member States in promoting the substance of the Declaration and its connection to existing obligations to which they have committed under other international human rights instruments.10 9. The need for effective implementation through transformation of laws, policies and structures applies, inter alia, in relation to the provisions of the Declaration regarding the rights of Indigenous Peoples to self-determination (art. 3), to autonomy or self-government in matters relating to their internal and local affairs (art. 4) and to maintain and strengthen 5 6 7 8 9 10 GE.24-13517 Ibid, p. 7. See also International Law Association, “Kyoto Conference (2020): implementation of the rights of Indigenous Peoples”, available at https://www.ila-hq.org/en_GB/documents/ila-comm-implrights-ind-peoples-final-report-dec-13-2020; Federico Lenzerini, “Implementation of the UNDRIP around the world: achievements and future perspectives. The outcome of the work of the ILA Committee on the Implementation of the Rights of Indigenous Peoples”, The International Journal of Human Rights, vol. 23, No. 1–2 (2019), pp. 56–58; and James Anaya, “The role of international law in U.S. domestic advocacy and law reform”, presentation delivered at the Conference to Implement the United Nations Declaration on the Rights of Indigenous Peoples in the United States (15 March 2019), cited in Carpenter, Casaperalta and Lazore-Thompson, “Implementing the United Nations Declaration”. E/2009/43-E/C.19/2009/14, annex, para. 10. The interrelated provisions include those in articles 4, 5, 8 (2), 11 (2), 12 (2), 13 (2), 14 (3), 15 (2), 16 (2), 17 (2), 18, 19, 21 (2), 22 (2), 23, 24, 25, 26 (3), 27, 28 (2), 29 (2) and (3), 30 (2), 31 (2), 32 (2) and (3), 34, 35 and 36 (2) of the Declaration. A/HRC/9/9, para. 45. Erica-Irene A. Daes, “Some considerations on the rights of Indigenous Peoples to self-determination”, Transnational Law & Contemporary Problems, vol. 3, No. 1 (1993), available at https://heinonline.org/HOL/Page?handle=hein.journals/tlcp3&div=7&g_sent=1&casa_token=&collec tion=journals. See A/HRC/9/9. 3