A/68/317 64. Secondly, some aspects of the Declaration — including core principles of non-discrimination, cultural integrity, property, self-determination and related precepts that are articulated in the Declaration — constitute, or are becoming, part of customary international law or are general principles of international law, as found by the International Law Association after a committee of experts conducted an extensive survey of international and State practice in relation to the Declaration. 2 A norm of customary international law arises when a preponderance of States (and other actors with international personality) converge on a common understanding of the norm’s content and generally expect compliance with, and share a sense of obligation to, the norm. It cannot be much disputed that at least some of the core provisions of the Declaration, with their grounding in well-established human rights principles, possess these characteristics and thus reflect customary international law. 65. Finally, the Declaration is an extension of standards found in various human rights treaties that have been widely ratified and that are legally binding on States. Human rights treaties with provisions relating to the rights of indigenous peoples include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination. The human rights treaty bodies that interpret and apply these treaties now frequently apply their provisions in ways that reflect the standards in the Declaration and sometimes explicitly refer to the Declaration in doing so. This happens, in particular, with regard to treaty provisions affirming principles of non-discrimination, cultural integrity and self-determination: principles that are also incorporated into the Declaration and upon which the Declaration elaborates with specific reference to indigenous peoples. Although the Declaration is not necessarily dispositive when interpreting a treaty the provisions of which intersect with those of the Declaration, it provides important guidance of significant weight. 3 66. Whatever its legal significance, moreover, the Declaration has a significant normative weight grounded in its high degree of legitimacy. This legitimacy is a function not only of the fact that it has been formally endorsed by an overwhelming majority of United Nations Member States, but also the fact that it is the product of __________________ 2 3 13-42710 See International Law Association, 75th conference, resolution No. 5/2102, para. 2 (Sofia, 5 August 2012); International Law Association, Committee on the Rights of Indigenous Peoples, Final Report (2012). In communications to the Special Rapporteur, at least one State that has endorsed the Declaration has nonetheless taken the position that the Declaration should not be used to interpret treaties to which it is a party because the Declaration is not legally binding and because it was adopted subsequent to those treaties and not negotiated in their specific context. See Diplomatic Note by the Permanent Mission of the United States of America, Geneva, dated 17 November 2011, p. 5, in A/HRC/19/44. The Special Rapporteur considers this position to be at odds with a posture of support for the Declaration and to be jurisprudentially unsound. Inasmuch as States have embraced the principles of indigenous rights embodied in the Declaration by having voted in favour of it or declared support for it, it is hard to see how the Declaration could not be regarded as highly instructive in applying a treaty that is relevant to indigenous peoples. To decline to see the Declaration as instructive in this way goes against trends in international law and practice by which human rights treaties are interpreted in a dynamic fashion, in the light of new understandings and in accordance with the pro homine principle, which requires the application of human rights treaties in a way that most favours the protection of human rights. See Inter-American Court on Human Rights, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgement of 31 August 2001, paras. 146-148. 17/22