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standards. Even if not empowered to directly apply the Declaration, domestic courts
may and should use the Declaration as an interpretive guide in applying provisions
of domestic law.
57. But legal recognition and judicial action are only potential preconditions for
operationalizing indigenous peoples’ rights under the Declaration, at the local level.
The former Special Rapporteur noted that recent processes of constitutional and
legal reform in various countries have not necessarily led to actual changes in the
daily lives of indigenous peoples and that an “implementation gap” continues to
exist between “legislation and the day-to-day reality”.19 Bridging this gap requires
the concerted, goal-oriented action of a myriad of governmental actors within the
scope of their respective fields of competence and involves a mixture of political
will, legal reform, technical capacity and financial commitment.
3.
Indigenous peoples
58. The objective stated in the eighteenth preambular paragraph of the Declaration
of enhancing “harmonious and cooperative relations between the State and
indigenous peoples” involves indigenous communities, authorities and organizations
as fundamental actors in realizing the rights affirmed in this instrument. The
Declaration’s affirmation of the right to self-determination and extension of that
right into the different spheres of indigenous life requires positive engagement, in a
spirit of partnership, by both States and indigenous peoples, without which the
Declaration would never be effective.
59. Therefore, wide affirmation of the rights of indigenous peoples in the
Declaration does not only create positive obligations for States, but also bestows
important responsibilities upon the rights-holders themselves. This interaction
between the affirmation of rights and the assumption of responsibilities is
particularly crucial in areas in which the Declaration affirms for indigenous peoples
a large degree of autonomy in managing their internal and local affairs. Positive
action by indigenous peoples’ organizations is required, by definition, for the
exercise of their rights to maintain and develop institutions and mechanisms of selfgovernance. The Declaration simultaneously acknowledges the economic
implications of indigenous self-government or autonomy, affirming indigenous
peoples’ rights to State financial and technical assistance and international
cooperation in order to exercise their rights and fulfil their responsibilities in this
regard (articles 4 and 39).
60. Notably, indigenous peoples are called upon to exercise responsibilities for the
preservation, exercise and development of their cultural heritage and expressions.20
The Declaration further acknowledges indigenous peoples’ intergenerational
responsibilities, including environmental stewardship, with regard to their
traditional lands, territories and resources (articles 25 and 29).
61. The implementation of the Declaration by indigenous peoples may also require
them to develop or revise their own institutions, traditions or customs through their
own decision-making procedures. The Declaration recalls that the functioning of
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19
20
18
E/CN.4/2006/78, para. 5.
Article 12, para. 1 (right to indigenous spiritual and religious traditions); article 13, para. 1
(right to their languages, literature and philosophies); article 31, para. 1 (right to their traditional
knowledge and technologies).
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