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overcome their debilitating effects and advancing toward a strong global
commitment to the Declaration and its implementation. Also discussed is the need
for greater awareness of the Declaration and of its role as and instrument of
reconciliation and social harmony.
A.
The normative weight of the Declaration
60. Throughout the course of his mandate, the Special Rapporteur has heard
numerous Governments emphatically characterize the Declaration on the Rights of
Indigenous Peoples as non-binding or merely aspirational, thereby according the
Declaration a diminished status and rationalizing a diminished commitment to its
terms. Although the Special Rapporteur has addressed the issue of the Declaration’s
status in past reports, given the persistent references to the Declaration as
non-binding, the Special Rapporteur would like to again provide some observations
on this issue.
61. The Special Rapporteur readily acknowledges that, under prevailing
international law doctrine, declarations adopted by resolution of the United Nations
General Assembly, unlike treaties, are not themselves direct sources of law. But to
say simply that the Declaration is non-binding is an incomplete and potentially
misleading characterization of its normative weight. It has long been widely
understood that standard-setting resolutions of the General Assembly can and
usually do have legal implications, especially if called “declarations”, a
denomination usually reserved for standard-setting resolutions of profound
significance.
62. The General Assembly has a long history of adopting declarations on various
human rights issues, including the first international human rights instrument of the
United Nations, the Universal Declaration of Human Rights, adopted in 1948. These
declarations, like other resolutions, are adopted by the General Assembly under the
authority granted to it under Article 13 (1) (b) of the Charter of the United Nations
to make recommendations for the purpose of assisting with the realization of human
rights and fundamental freedoms for all without distinction as to race, sex, language,
or religion.
63. Although technically a resolution, the Declaration has legal significance, first,
because it reflects an important level of consensus at the global level about the
content of indigenous peoples’ rights, and that consensus informs the general
obligation that States have under the Charter — an undoubtedly binding multilateral
treaty of the highest order — to respect and promote human rights, including under
Articles 1 (2), 1 (3), 55 and 56 of the Charter. The Declaration was adopted by an
overwhelming majority of Member States and with the support of indigenous
peoples worldwide and, as noted earlier, the few States that voted against the
Declaration each subsequently reversed their positions. Especially when
representing such a widespread consensus, General Assembly resolutions on matters
of human rights, having been adopted under the authority of the Charter itself, can
and do inform Member States’ obligations under the human rights clauses of the
Charter. 1
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Ian Brownlie, Principles of Public International Law (Oxford, 7th ed., 2009), p. 15.
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