¹ UN General Assembly Resolution 61/295 (13 September 2007). Adopted by a recorded vote of 143 in favour to four against (Australia, Canada, New Zealand and United States), with 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa, Ukraine).

² J Gilbert, Indigenous Peoples' Land Rights under International Law: From Victims to Actors (Transnational Publishers, Ardsley, 2006).

³ See Stamatopoulou, E, ‘Indigenous Peoples and the United Nations: Human Rights as a Developing Dynamic’ (1994) 16 Hum Rts Q 58–81CrossRefGoogle Scholar.

⁴ See I Brownlie, Treaties and Indigenous Peoples (Clarendon Press, Oxford, 1992) 63.

⁵ The Forum is comprised of sixteen independent experts. Of those, eight are nominated by governments and elected by the Economic and Social Council, while eight are appointed by the President of the Council following consultation with indigenous organisations. The significance of the Forum lies in the fact that for the first time ‘representatives of States and non-State actors have been accorded parity in a permanent representative body within the United Nations Organisations proper.’ See J Carey and S Wiessner, ‘A New United Nations Subsidiary Organ: the Permanent Forum on Indigenous Issues’ ASIL Insights (April 2001), available at <http://www.asil.org/insights/insigh67.htm>.

⁶ See, for example, the numerous cases discussed in F Lenzerini (ed), Reparations for Indigenous Peoples: International and Comparative Perspectives (OUP, Oxford, 2008).

⁷ J Anaya, Indigenous Peoples in International Law (OUP, Oxford, 2004) 61–72.

⁸ Falk aptly includes the case of indigenous peoples within the ‘multifaceted worldwide phenomenon of responding to perceived examples of acute injustice previously inflicted on persecuted and victimized collective identities’, which is in turn part of a ‘significant trend in support of the pursuit of global justice’. R Falk, The Declining World Order: America's Imperial Geopolitics (Routledge, New York, 2004) 117 and 107.

⁹ ILO Convention No 107 of 1957 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, text available at <http://www.ilo.org/ilolex/cgi-lex/convde.pl?C107> accessed 14 August 2009; and ILO Convention No 169 of 1989 Concerning Indigenous and Tribal Peoples in Independent Countries, text available at <http://www.ilo.org/public/english/indigenous/>.

¹⁰ The relevant list is available at <http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C107> accessed 14 August 2009.

¹¹ See, for one, J Anaya, Indigenous Peoples in International Law (OUP, Oxford, 2004) 54–56. For a more favourable assessment of the instrument, see A Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture, and Land (CUP, Cambridge, 2007) 49–67.

¹² The relevant list is available at <http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?(C169)> accessed 14 August 2009.

¹³ The ILO Guide on the Convention correctly acknowledges that ILO No 169 ‘may be used as a tool to stimulate dialogue between governments and indigenous and tribal peoples, and in this way, to improve their situation.’ Thus if one intends to appreciate the importance of the instrument, he or she should not focus on its legal dimension, but rather consider the promotional role it has exercized. See ‘ILO Convention on Indigenous and Tribal Peoples, 1989 (No 169): A Manual’ (International Labour Office, Geneva, 2003) Foreword.

¹⁴ J Anaya, Indigenous Peoples in International Law (OUP, Oxford, 2004) 58.

¹⁵ Article 1(3) of ILO No. 169 specifies that ‘the use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.’

¹⁶ See, generally, Sinjela, M and Ramcharan, R, ‘Protecting Traditional Knowledge and Traditional Medicine of Indigenous Peoples through Intellectual Property Rights: Issues, Challenges and Strategies’ (2005) 12 Intl J Minority & Group Rts 1–24CrossRefGoogle Scholar.

¹⁷ Respectively, 999 UNTS 171 (16 December 1966) and 660 UNTS 195 (7 March 1966).

¹⁸ On the contribution of human rights instruments to the recognition and promotion of indigenous rights in international law, see P Thornberry, Indigenous Peoples and Human Rights (Manchester University Press, Manchester, 2002).

¹⁹ J Anaya, Indigenous Peoples in International Law (OUP, Oxford 2004) 290.

²⁰ A large number of international, and regional, institutions deal with indigenous peoples' rights, including, for example, the World Bank, the UN Development Programme, the World Intellectual Property Organisation, the Asian Development Bank, and several UN human rights treaty bodies. The Declaration represents the ideal instrument to coordinate each of these parallel actions. On this issue, see also Gilbert, J, ‘Indigenous Rights in the Making: the United Nations Declaration on the Rights of Indigenous Peoples’ (2007) 14 Intl J on Minority and Group Rts 207, 212CrossRefGoogle Scholar.

²¹ On soft law generally, see A Boyle, ‘Soft Law in International Law-Making’ in M Evans (ed), International Law (2^nd edn, OUP, Oxford, 2006) 141–158, and Chinkin, CM, ‘The Challenge of Soft Law: Development and Change in International Law’ (1989) 38 ICLQ 850–866CrossRefGoogle Scholar. For a critical view of soft law, see Klabbers, J, ‘The Undesirability of Soft Law’ (1998) 67 Nord J Intl L 381–391CrossRefGoogle Scholar.

²² It should be noted that certain General Assembly resolutions, eg those referred to in Article 17 of the United Nations Charter, are binding upon the organs and members States of the United Nations. See M Shaw, International Law(5^th edn, CUP, Cambridge, 2003) 108.

²³ In this regard, it has been aptly observed that soft law and hard law are connected and intertwined to such an extent that sometimes it may be difficult to draw clear-cutting distinctions between the two. For example, soft-law instruments may have a specific normative content that is actually ‘harder’ than certain ‘soft’ obligations included in some treaties, and, equally importantly, that non-binding instruments may provide for supervisory mechanisms characteristic of hard law texts. See, D Shelton, Law, ‘Non-Law and the Problem of ‘Soft Law’’ in D Shelton (ed), Commitment and Compliance: the Role of Non-Binding Norms in the International Legal System (OUP, Oxford, 2000) 10.

²⁴ ibid.

²⁵ ibid.

²⁶ At <http://www.ohchr.org/EN/NewsEvents/Pages/DeclarationIP.aspx> accessed 14 August 2009.

²⁷ Preambular paragraph 6.

²⁸ Preambular paras 7 and 8.

²⁹ art 43.

³⁰ Consider, for example, ILO Convention No 107 of 1957 (revised only in 1989) and the ‘stolen generation’ policy adopted by the Australian government up until the early 1970s. See ‘Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families’ (1997), available on the website of the Australian Human Rights and Equal Opportunity Commission at <http://www.hreoc.gov.au/pdf/social_justice/bringing_them_home_report.pdf> accessed 14 August 2009.

³¹ In particular, as noted above, in 1989 ILO Convention No. 107 was replaced by the more progressive ILO Convention No. 169, whose preamble affirms that ‘considering that the developments which have taken place in international law since 1957, as well as developments in the situation of indigenous and tribal peoples in all regions of the world, have made it appropriate to adopt new international standards on the subject with a view to removing the assimilationist orientation of the earlier standards … ’.

³² Preambular paragraph 2.

³³ Preambular para 3.

³⁴ art 8.

³⁵ The concept of ‘indigenous peoples’ in international law has clearly evolved from a narrow understanding related to ideas of historical precedence and colonial subjugation towards a more inclusive and functional understanding. Against this background, constructivist approaches to the issue of definition should be preferred to positivistic ones. On this issue, see Kingsbury, B, ‘“Indigenous Peoples” in International Law: a Constructivist Approach to the Asian Controversy’ (1998) 92 AJIL 414–457CrossRefGoogle Scholar.

³⁶ P Thornberry, Indigenous Peoples and Human Rights (Manchester University Press, Manchester, 2002) 375.

³⁷ As noted by Cassese, ‘current international law on self-determination is blind to the demands of ethnic groups (not constituting a racial group) and national, religious, cultural or linguistic minorities’. A Cassese, International Law (2^nd edn, OUP, Oxford, 2005) 61.

³⁸ See, generally, Z Skurbaty (ed), Beyond a One-Dimensional State: An Emerging Right to Autonomy? (Martinus Nijhoff Publishers, Leiden, 2005).

³⁹ A Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture, and Land (CUP, Cambridge, 2007) 102.

⁴⁰ Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, SJ Anaya, UN Doc A/HRC/9/9 (11 August 2008) para 40.

⁴¹ On the interaction between these three layers, see W Van Genugten and C Perez-Bustillo, ‘The Emerging International Architecture of Indigenous Rights: The Interaction between Global, Regional, and National Dimensions’ (2004) 11 Intl J on Minority and Group Rts 379–409.

⁴² As aptly observed by Irene-Erica A. Daes, ‘more is at stake, economically and politically, in this … Declaration than perhaps any other human rights instruments submitted for to the Commission on Human Rights for approval since the International Covenants of Human Rights.’ Daes, I, ‘Dilemmas Posed by the UN Draft Declaration on the Rights of Indigenous Peoples’ (1994) 63 Nord J Intl L 205, 211CrossRefGoogle Scholar.

⁴³ Among others, preambular paragraphs 1, 16, 17, and arts 1 and 46.

⁴⁴ Preambular paragraph 18.

⁴⁵ On the relationship between individual and collective rights, see, among others, Jones, P, ‘Human Rights, Group Rights, and Peoples’ Rights' (1999) 21 Hum Rts Q 80–107CrossRefGoogle Scholar; Sanders, D, ‘Collective Rights’ (1991) 13 Hum Rts Q 368–386CrossRefGoogle Scholar; Holder, C and Corntassel, J, ‘Indigenous Peoples and Multicultural Citizenship: Bridging Collective and Individual Rights’ (2002) 24 Hum Rts Q 126–151CrossRefGoogle Scholar; Buchanan, A, ‘The Role of Collective Rights in the Theory of Indigenous Peoples' Rights’ (1993) 3 Transnat‘l L & Contemp Probs 89–108Google Scholar.

⁴⁶ Particularly, the African Charter on Human and Peoples’ Rights, 1520 UNTS No 26, 363 (27 June 1981). See Articles 19–24.

⁴⁷ These considerations refer to the context of human rights instruments proper, and not, for example, to the case of ILO Conventions.

⁴⁸ United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by General Assembly Resolution 47/135 of 18 December 1992.

⁴⁹ Preambular paragraph 22.

⁵⁰ arts 1, 2, 6, 7, 8, 9, 14, 17, 24, 33, 35, 40, and 44.

⁵¹ art 1.

⁵² The Declaration's vision resembles the indigenous belief according to which the very identity of indigenous peoples ‘is shaped by the dynamic balance between and linkage of [their] collective and individual rights.’ See the ‘Explanatory Note on the Collective Rights of Indigenous Peoples, Proposal by Indigenous Representatives, submitted during the Seventh Session of the Working Group on the Draft Declaration, UN Doc E/CN.4/2002/98, Annex II.

⁵³ E-I A Daes, Indigenous Peoples: Keepers of Our Past— Custodians of Our Future (IWGIA, Copenhagen, 2008) 155.

⁵⁴ See, among others, A Boyle and C Chinkin, The Making of International Law (OUP, Oxford, 2007); C Chinkin, ‘Normative Development in the International Legal System’, in D Shelton (ed), Commitment and Compliance: the Role of Non-Binding Norms in the International Legal System (OUP, Oxford, 2000) 21–42; A Hurrell, ‘International Law and the Changing Constitution of International Society’, in M Byers (ed), The Role of Law in International Politics: Essays in International Relations and International Law (OUP, Oxford, 2001) 327–347.

⁵⁵ See Chinkin, CM, ‘The Challenge of Soft Law: Development and Change in International Law’ (1989) 38 ICLQ 850, 861CrossRefGoogle Scholar.

⁵⁶ See L Rodriguez-Pinero, Indigenous Peoples, Postcolonialism, and International Law: the ILO Regime (1919–1989) (OUP, Oxford, 2005) 121–139.

⁵⁷ Twenty-seven States had ratified it before the entry into force of ILO Convention No 169, see (n 10).

⁵⁸ Twenty States have so far ratified ILO Convention No 16 see (n 12).

⁵⁹ ‘Report of the Working Group on Indigenous Populations on its First Session’ UN Doc E/CN.4/Sub.2/1982/33 (25 August 1982) paras 25–33 and 54.

⁶⁰ ‘Report of the Working Group on Indigenous Populations on its Fourth Session’ UN Doc E/CN.4/Sub.2/1985/22 (27 August 1985) para 62.

⁶¹ As aptly observed by an indigenous representative of the Saami Council, ‘there exists[ed] a clear link between the absence of universal instrument protecting the rights of indigenous peoples and the problems faced by indigenous peoples. See ‘Report of the Working Group on the Draft Declaration on its Second Session’ UN Doc E/CN.4/1997/102 (10 December 1996) para 55.

⁶² D Shelton, ‘Law, Non-Law and the Problem of “Soft Law”’ in D Shelton (ed), Commitment and Compliance: the Role of Non-Binding Norms in the International Legal System (OUP, Oxford, 2000) 13.

⁶³ C Chinkin, Human Rights and the Politics of Representation: Is There a Role For International Law, in M Byers (ed) The Role of Law in International Politics: Essays in International Relations and International Law (OUP, Oxford, 2001) 141.

⁶⁴ For an overview, see R Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (University of California Press, Berkeley, 2003).

⁶⁵ A Eide, ‘Rights of Indigenous Peoples: Achievement in International Law During the Last Quarter of a Century’ (2006) 37 Neth Int‘l L Rev 155, 162.

⁶⁶ Interestingly, according to the predominant view among analysts of social movements, ‘access to institutions leads to co-optation and deradicalization as challenges modify their claims to ones that are more acceptable with authorities.’ Yet the case of the indigenous movement, which refused to give up its fundamental claims, proved that this is not always necessarily the case. See Morgan, R, ‘On Political Institutions and Social Movement Dynamics: the Case of the United Nations and the Global Indigenous Movement’ (2007) 28 Intl Political Science Rev 273, 282CrossRefGoogle Scholar.

⁶⁷ A Boyle and C Chinkin, The Making of International Law (OUP, Oxford, 2007) 212.

⁶⁸ A Boyle, ‘Soft Law in International Law-Making’ in M Evans (ed), International Law (2^nd edn, OUP, Oxford, 2006) 145.

⁶⁹ Joyner, C, ‘UN General Assembly Resolutions and International Law: Rethinking the Contemporary Dynamics of Norm-Creation’ (1981) 11 Cal West Intl L J 445, 470Google Scholar.

⁷⁰ Lande, G R, ‘The Changing Effectiveness of General Assembly Resolutions’ (1964) 58 ASIL PROC 162, 163Google Scholar.

⁷¹ Draft Programme of Action for the Second International Decade of the World's Indigenous People, Report of the Secretary General, Addendum A/60/270/Add.1 (26 August 2005).

⁷² Xanthaki, A, ‘Indigenous Rights in International Law over the Last 10 Years and Future Developments’ (2009) 10 Melbourne J Intl L, 1, 10Google Scholar.

⁷³ Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep 1996, 226, para 70. It has also been argued that ‘the process of drafting and voting for non-binding normative instruments also may be considered a form of State practice.’ D Shelton, ‘Law, Non-Law and the Problem of “Soft Law”’, in D Shelton (ed), Commitment and Compliance: the Role of Non-Binding Norms in the International Legal System (OUP, Oxford, 2000) 1.

⁷⁴ The International Court of Justice, while discussing whether a conventional rule can be considered to have become a general rule of international law, found that widespread and representative participation in a convention might suffice ‘provided it include that of States whose interests [are] specially affected.’ North Sea Continental Shelf, Judgment, ICJ Reports 1969, 3, para 73.

⁷⁵ The numbers vary according to different sources. For an overview of most of these countries, see ‘The Indigenous World’ published in May every year by the influential NGO International Work Group for Indigenous Affairs, available at <http://www.iwgia.org/sw162.asp> accessed 14 August 2009. In addition, even States which do not belong to this group may be affected by the Declaration with regard to their foreign policy. This is confirmed, for example, by the fact that ILO No 169 has been also ratified by States such as the Netherlands and Spain.

⁷⁶ ‘The Rights of Indigenous Peoples’ UN Office of the High Commissioner for Human Rights Fact Sheet No 9 (Rev 1), available at <http://www.ohchr.org/Documents/Publications/FactSheet9rev.1en.pdf> accessed 14 August 2009. The combined indigenous population of the USA, Canada, New Zealand and Australia, instead, does not reach 10 million. These countries have not ratified ILO No 169. The Indigenous World 2009 (International Work Group for Indigenous Affairs, Copenhagen 2009). On the question of how many indigenous people exist on the planet, see P Thornberry, Indigenous Peoples and Human Rights (Manchester University Press, Manchester, 2002) 15–18.

⁷⁷ Approximately, New Zealand 17 per cent, Australia 2.5 per cent, Canada 3.6 per cent, USA 1.4 per cent (minus Alaska and including those who identify as Native American in combination with another ethnic identity). Compare these numbers to those of countries such as Guatemala (60 per cent), Bolivia (62 per cent), Mexico (13 per cent), Nepal (37 per cent), Malaysia (12 per cent) and the Philippines (10 per cent). The Indigenous World 2009 (International Work Group for Indigenous Affairs, Copenhagen, 2009).

⁷⁸ See S Allen, The UN Declaration on the Rights of Indigenous Peoples: Towards a Global Legal Order on Indigenous Rights?, available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1400665> accessed 14 August 2009; and J Anaya and S Wiessner, ‘The UN Declaration on the Rights of Indigenous Peoples: Towards Re-Empowerment, Jurist Legal News and Research Forum’ (3 October 2007) available at <http://jurist.law.pitt.edu/forumy/2007/10/un-declaration-on-rights-of-indigenous.php> accessed 14 August 2009.

⁷⁹ In this regard, two additional points should be made. First, given that the opposition of these four States was not directed toward the Declaration as a whole, a number of fundamental articles and principles would nevertheless remain unaffected. Secondly, these negative votes should be reconsidered in the light of important developments which have recently occurred in the concerned countries, especially in Canada and Australia. See section 4.c below.

⁸⁰ See, among others, G Abi-Saab, ‘Cours General de Droit International Public’ (1987) 207 Recueil des Cours de l'Academie de Droit International 160 and 161; D Shelton, Law, ‘Non-Law and the Problem of “Soft Law”’ in D Shelton (ed), Commitment and Compliance: the Role of Non-Binding Norms in the International Legal System, (OUP, Oxford, 2000) 13–17; G R Lande, ‘The Changing Effectiveness of General Assembly Resolutions’ (1964) 58 ASIL PROC 162–170; and Ellis, ME, ‘The New International Economic Order and General Assembly Resolutions: the Debate Over the Legal Effects of General Assembly Resolutions Revisited’ (1985) 15 Cal West Intl L J 647–704Google Scholar.

⁸¹ Yet important events in connection with the progressive recognition of indigenous peoples' rights in international law anticipated this final stage of the process. For an account of these events, see Stamatopoulou, E, ‘Indigenous Peoples and the United Nations: Human Rights as a Developing Dynamic’ (1994) 16 Hum Rts Q 58–81CrossRefGoogle Scholar; RL Barsh, ‘Indigenous Peoples: An Emergent Object of International Law’ (1986) 80 AJIL 369–385; J Anaya, Indigenous Peoples in International Law (OUP, Oxford, 2004) 49–72.

⁸² Commenting on the then Draft Declaration, Anaya noted that the Draft stood ‘in its own right as an authoritative statement of norms concerning indigenous peoples on the basis of generally applicable human rights principles’ and that ‘the extensive deliberations leading to the draft declaration, in which indigenous peoples themselves played a leading role, enhance the authoritativeness and legitimacy of the draft.’ J Anaya, Indigenous Peoples in International Law, (OUP, Oxford, 2004) 65.

⁸³ ‘UN Forum Chairperson Decries Delay in Adopting Declaration on Indigenous Rights’, 12 December 2006, Available at <http://www.un.org/apps/news/story.asp?NewsID=20959&Cr=indigenous> accessed 14 August 2009.

⁸⁴ See ‘Report of the Working Group on Indigenous Populations on its Fourth Session’ UN Doc E/CN.4/Sub.2/1985/22 (27 August 1985) para 58.

⁸⁵ UN Doc E/CN.4/1994/2.Add.1 (20 April 1994).

⁸⁶ For a more detailed analysis of the history of the Declaration, see S Errico, ‘The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview’ and Errico, S, ‘The UN Declaration on the Rights of Indigenous Peoples is Adopted: An Overview’ (2007) 7 HRL Rev 741–759Google Scholar.

⁸⁷ In the latter case, indigenous organizations had to apply to the Coordinator of the International Decade of the World's Indigenous People. Although States had to be consulted before accrediting the participation of indigenous organizations, their consent was not required, and ultimately a large number of indigenous organisations attended the relevant sessions.

⁸⁸ R Falk, Human Rights Horizons: the Pursuit of Justice in a Globalizing World (Routledge, New York, 2000) 62–63.

⁸⁹ See, for example, the statements of the representatives of Denmark, Canada, Norway, Chile, Sweden, USA, Colombia and the Russian Federation at the Second Session of the WGDD. ‘Report of the Working Group on the Draft Declaration on its Second Session’ UN Doc E/CN.4/1997/102 (10 December 1996) paras 23–34.

⁹⁰ At the Human Rights Council 30 States voted in favour and 4 voted against (with 11 abstentions).

⁹¹ UNGA Res 49/214 (23 December 1994).

⁹² UNGA Res 59/174 (20 December 2004) para 12.

⁹³ See the list of documents submitted by UN organizations at each Session of the PFII on the website of the Forum, at <http://www.un.org/esa/socdev/unpfii/index.html>.

⁹⁴ Vienna Declaration and Program of Action, adopted by the World Conference on Human Rights on 25 June 1993, paras 28 and 29. Text available at <http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.CONF.157.23.En> accessed 14 August 2009.

⁹⁵ Durban Declaration and Programme of Action, adopted by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban, South Africa, from 31 August to 8 September 2001, para 206. Text available at <http://www.unhchr.ch/pdf/Durban.pdf> accessed 14 August 2009.

⁹⁶ 2005 World Summit Outcome, included in UNGA 60/1 (16 September 2005) para 105. More generally, it is remarkable that, while pledging to take action on crucial global issues such as sustainable development, terrorism, peace building and human rights, the final document also refers in several circumstances to the issue of indigenous peoples. See para 127. The text of the document is available at <http://daccessdds.un.org/doc/UNDOC/GEN/N05/487/60/PDF/N0548760.pdf?OpenElement> accessed 14 August 2009.

⁹⁷ D Shelton, ‘Law, Non-Law and the Problem of “Soft Law”’ in D Shelton (ed), Commitment and Compliance: the Role of Non-Binding Norms in the International Legal System (OUP, Oxford, 2000) 14.

⁹⁸ Memorandum of the Office of Legal Affairs, UN Secretariat, 34 UN ESCOR, Supp (No 8), 15, UN Doc E/CN.4/1/610 (1962), cited in D Shelton, Soft Law, The George Washington University Law School Public Law and Legal Theory Working Paper No 332, Legal Studies Research Paper No. 322, 4. Available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1003387> accessed 14 August 2009.

⁹⁹ Joyner, C, ‘UN General Assembly Resolutions and International Law: Rethinking the Contemporary Dynamics of Norm-Creation’ (1981) 11 Cal West Intl L J 445, 460Google Scholar.

¹⁰⁰ Moreover, Article 32 crucially requests that, before approving any project affecting indigenous lands, territories or other resources, States ‘shall consult and cooperate with indigenous peoples in order to obtain their free and informed consent.’

¹⁰¹ 1992 Convention on Biological Diversity, Article 8(j), 31 ILM 818 (1992).

¹⁰² P Birnie and A Boyle, International Law & The Environment (2^nd edn, OUP, Oxford, 2002) 82.

¹⁰³ The Rio Declaration on Environment and Development (14 June 1992), 31 ILM 874 (1992).

¹⁰⁴ See P Thornberry, Indigenous Peoples and Human Rights (MUP, Manchester, 2002), 116–181.

¹⁰⁵ Article 27 refers to ‘ethnic, religious or linguistic minorities’, yet the Committee has promoted a particular reading of the provision aimed to address specific issues related to indigenous peoples. For example, with regard to the right to culture included in the Article, the Committee stated that ‘culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples.’ See HRC General Comment No 23, The Rights of Minorities (Art. 27), available at <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/fb7fb12c2fb8bb21c12563ed004df111?Opendocument> accessed 14 August 2009.

¹⁰⁶ P Thornberry, Indigenous Peoples and Human Rights (MUP, Manchester, 2002), 202, fn 202.

¹⁰⁷ CERD General Recommendation N 23 on Indigenous Peoples (18 August 1997) available at <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/73984290dfea022b802565160056fe1c?Opendocument> accessed 14 August 2009.

¹⁰⁸ The General Recommendation further emphasises that such compensation should as far as possible take the form of lands and territories. It should also be noted that the recent jurisprudence of the Inter-American Court of Human Rights provides further support for the content of Article 28. See, in particular, Comunidad Indigena Yakye Axa v Paraguay, Inter-American Court of Human Rights, Series C 125 (2005).

¹⁰⁹ See for example the statement of the representative of the US at the Second Session of the WGDD. ‘Report of the Working Group on the Draft Declaration on its Second Session’, UN Doc E/CN.4/1997/102 (10 December 1996) para 325.

¹¹⁰ Among others, the representative of Venezuela proposed the following wording: ‘Indigenous peoples have a right to self-determination. By virtue of that right they have the right to autonomy, or self-government in matter relating to their internal and local affairs … ’, ‘Report of the Working Group on the Draft Declaration on its Second Session’, UN Doc E/CN.4/1997/102 (10 December 1996) para 318.

¹¹¹ For example, summarizing the debate on the right to self-determination that took place at the WGDD, the Chairperson-Rapporteur once noted that ‘there was broad agreement that, in the context of the draft declaration, the right to self-determination could not be exercised to the detriment of the independence and territorial integrity of the State’, and that some governments were ready to accept the article ‘on the understanding that it did not imply a right of secession’, whereas others were ready to clarify the content of article 3 in order to make it acceptable to others. ‘Report of the Working Group on the Draft Declaration on its Fifth Session’, UN Doc E/CN.4/2000/84 (6 December 1999) paras 83–85.

¹¹² See (n 44).

¹¹³ For a comprehensive analysis of indigenous peoples' right to self-determination, see P Aikio and M Scheinin (eds), Operationalizing the Right of Indigenous Peoples to Self-Determination (Abo Akademi University, Abo, 2000). See also A Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture, and Land (CUP, Cambridge, 2007) chapter 4.

¹¹⁴ See, for example, the following Concluding Observations: Mexico 1999 (CCPR/C/79/Add.109, 27 July 1999, para 19); Norway 1999 (CCPR/C/79/Add.112, 1 November 1999, para 17); and Sweden 2002 (CCPR/CO/74/SWE, 24 April 2002, para 15); and the following Individual Communications: Apirana Mahuika et al v New Zealand case, Communication No. 547/1993, CCPR/C/70/D/547/1993 (27 October 2000) para 9.2; and JGA Diergaardt v Namibia case, Communication No 760/1997, CCPR/C/69/D/760/1997 (6 September 2000) para 10.3.

¹¹⁵ Concluding Observation on Australia 2000 (A/55/40, 24 July 2000, paras 498–528, section 3: Principal subjects of concern and recommendations).

¹¹⁶ Concluding Observations on Canada 1999 (CCPR/C/79/Add.105, 7 April 1999, para 8).

¹¹⁷ For an overview of CERD's approach to self-determination, see General Recommendation No. 21: Right to Self determination (23 August 1996), available at <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/dc598941c9e68a1a8025651e004d31d0?Opendocument> accessed 14 August 2009.

¹¹⁸ A Boyle and C Chinkin, The Making of International Law (OUP, Oxford, 2007) 222.

¹¹⁹ ibid 223.

¹²⁰ According to Boyle and Chinkin, the reference to sustainable development in the ICJ's decision on the Case Concerning the Gabcikovo-Nagymaros Dam shows that, although ‘sustainable development is not in the nature of a legal obligation, it does represent a policy goal or principle that can influence the outcome of litigation and the practice of States and international organisations, and it may lead to significant changes and developments in the existing law.’ ibid 224.

¹²¹ See, among others, ILO Convention No. 169 Articles 13, 14 and 15; CERD General Recommendations No 23 on Indigenous Peoples (18 August 1997) see (n 100); World Bank Operational Policies 4.10 of 1 July 2005, para 16, available at <http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/EXTPOLICIES/EXTSAFEPOL/0,,contentMDK:20543990~menuPK:1286666~pagePK:64168445~piPK:64168309~theSitePK:584435,00.html>. See also the following section on the jurisprudence of the Inter-American Court of Human Rights.

¹²² Manuel Coy et al v The Attorney General of Belize et al, Supreme Court of Belize, Claims No 171 and 172 (10 October 2007).

¹²³ ibid para 132.

¹²⁴ The crucial interaction between the three levels is repeatedly highlighted in the plan of action for the Second International Decade of the World's Indigenous People. ‘Draft Programme of Action for the Second International Decade of the World's Indigenous People’, Report of the Secretary-General, UN Doc.A/60/270 (18 August 2005).

¹²⁵ ibid para 9(v).

¹²⁶ Established by Economic and Social Council Resolution 2000/22.

¹²⁷ ‘Internationalizing the Indigenous Peoples’ Movement and Indigenous Peoples' Rights' Paper presented by the Chairperson of the Forum, Ms Victoria Tauli-Corpuz, the 1^st International Conference on Cordillera Studies: Indigenous Peoples and Local Communities in Transition, University of the Philippines Baguio, 7–9 February 2008.

¹²⁸ Commission on Human Rights Resolution 2001/57. The mandate, originally for three years, was later renewed for a further three years by Commission on Human Rights Resolution 2004/62.

¹²⁹ UN Doc A/HRC/L.26 (25 September 2007).

¹³⁰ SR Ratner, ‘Does International Law Matter in Preventing Ethnic Conflict?’ (2000) 32 NYU J of Intl L & Politics 591, 668.

¹³¹ As of today, the Special Rapporteur has conducted the following country-visits: Guatemala (UN Doc E/CN.4/2003/90/Add.2); The Philippines (UN Doc E/CN.4/2003/90/Add.3); Mexico (UN Doc. E/CN.4/2004/80/Add.2); Chile (on two occasions, UN Doc E/CN.4/2004/80/Add.3 and UN Doc A/HRC/12/34/Add.6); Colombia (UN Doc.E/CN.4/2005/88/Add.2); Canada (UN Doc E/CN.4/2005/88/Add.3 and Corr.1); South Africa (UN Doc E/CN.4/2006/78/Add.2); New Zealand (UN Doc E/CN.4/2006/78/Add.3); Ecuador (UN Doc A/HRC/4/32/Add.2); Kenya (UN Doc A/HRC/4/32/Add.3); Bolivia (UN Doc A/HRC/11/11); Nepal (UN Doc A/HRC/12/34/Add.3); Brazil (UN Doc A/HRC/12/34/Add.2).

¹³² ‘Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Rodolfo Stavenhagen’, Addendum, Study Regarding Best Practices Carried Out To Implement the Recommendations Contained in the Annual Reports of the Special Rapporteur, UN Doc A/HRC/4/32/Add.4 (26 February 2007).

¹³³ For more details on the appointment, see <http://www2.ohchr.org/english/issues/indigenous/rapporteur/index.htm> accessed 14 August 2009.

¹³⁴ UN Doc CERD/C/USA/CO/6 (February 2008) para 29.

¹³⁵ See Pasqualucci, JM, ‘The Evolution of International Indigenous Rights in the Inter-American Human Rights System’ (2006) 6 HRL Rev 281–322Google Scholar.

¹³⁶ Mayagna (Sumo) Awas Tingni Community v Nicaragua, Inter-American Court of Human Rights, Series C 79 (2001); Moiwana Community v Suriname, Inter-American Court of Human Rights, Series C 124 (2005); Comunidad Indigena Yakye Axa v Paraguay, Inter-American Court of Human Rights, Series C 125 (2005); Sawhoyamaxa Indigenous Community v Paraguay, Inter-American Court of Human Rights, Series C 146 (2006); Saramaka People v Suriname, Inter-American Court of Human Rights, Series C 172 (2007).

¹³⁷ For a critical assessment of this inclination, see Neuman, GL, ‘Import, Export, and Regional Consent in the Inter-American Court of Human Rights’ (2008) 19 EJIL 101–123CrossRefGoogle Scholar.

¹³⁸ Mayagna (Sumo) Awas Tingni Community v Nicaragua, Inter-American Court of Human Rights, Series C 79(2001) para 146. See also, The Right to Information on Consular Assistance in the Framework of Guarantees for Due Legal Process, Advisory Opinion OC-16/99, Inter American Court of Human Rights, Series A 16(1999) para 114.

¹³⁹ For example, in Comunidad Indigena Yakye Axa v Paraguay, Inter-American Court of Human Rights, Series C 125 (2005), para 128; Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-American Court of Human Rights, Series A 18(2003), para. 120; The Right to Information on Consular Assistance in the Framework of Guarantees for Due Legal Process, Advisory Opinion OC-16/99, Inter American Court of Human Rights, Series A 16(1999), para 115.

¹⁴⁰ Comunidad Indigena Yakye Axa v Paraguay, Inter-American Court of Human Rights, Series C 125 (2005), para 128.

¹⁴¹ Saramaka People v Suriname, Inter-American Court of Human Rights, Series C 172 (2007). More specifically, while considering whether, and to what extent, Suriname could grant concessions for the exploration and extraction of natural resources found within Saramaka territory, the Court considered, inter alia, Article 32 of the Declaration. See para 131.

¹⁴² F Viljoen, International Human Rights Law in Africa, (OUP, Oxford, 2007) 279–280.

¹⁴³ ACHPR/Res 65 (XXXIV) 03 Resolution on the Adoption of the Report of the African Commission's Working Group on Indigenous Populations/Communities, (2003). Available at <http://www.achpr.org/english/resolutions/resolution70_en.html> accessed 14 August 2009.

¹⁴⁴ For an overview of the African position on the Declaration prior to its adoption, W van Genugten, ‘The African Move Towards the Adoption of the 2007 Declaration on the Rights of Indigenous Peoples: the Substantive Arguments behind the Procedures’ available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1103862> accessed 14 August 2009.

¹⁴⁵ ACHPR/Res.121 (XXXXII) 07 Resolution on the United Nations Declaration on the Rights of Indigenous Peoples, 28 November 2007. Available at <http://www.achpr.org/english/resolutions/resolution121_en.htm> accessed 14 August 2009.

¹⁴⁶ Ley 3760 de los Derechos de los Pueblos Indígenas del Mundo of 7 November 2007. See <http://www.presidencia.gov.bo/prensa/marc_vpr.asp?id=200711065> accessed 30 October 2008.

¹⁴⁷ ‘Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People’ SJ Anaya, UN Doc A/HRC/9/9 (11 August 2008), para 54.

¹⁴⁸ See ‘United We Stand—Support for United Nations Indigenous Rights Declaration a Watershed Moment for Australia’ (3 April 2009) available at <http://www.hreoc.gov.au/about/media/media_releases/2009/21_09.html>accessed 14 August 2009.

¹⁴⁹ See ‘UN Experts Welcome Canadian House of Commons Endorsement of the Declaration on the Rights of Indigenous Peoples’ (18 April 2008) available at <http://www.unog.ch/unog/website/news_media.nsf/(httpNewsByYear_en)/0DF2B67C18A6B662C125742F00321882?OpenDocument> accessed 30 October 2008.

¹⁵⁰ See ‘Diet officially declares Ainu indigenous’ The Japan Times Online (7 June 2008) available at <http://search.japantimes.co.jp/member/member.html?mode=getarticle&file=nn20080607a1.html> accessed 30 October 2008.

¹⁵¹ Manuel Coy et al v The Attorney General of Belize et al, Supreme Court of Belize, Claims No 171 and 172 (10 October 2007). The following passages refer to paras 118–134.