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Can UNDRIP Be Enforced?

It was four and a half years ago—September 13, 2007 to be precise—that the U.N. General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The product of 30 years of negotiations among indigenous organizations, indigenous leaders and U.N. agencies, the declaration enshrines the individual human rights and collective rights of Indigenous Peoples in terms of self-government, land, education, employment, health and other areas.

It’s a bold vision. But can it be upheld?

Some 140 participants recently addressed that question at the American Indian Studies Association’s (AISA) 13th annual conference on February 2 and 3 at Arizona State University. Dedicated to improving course offerings and scholarship from an indigenous perspective, the group has been meeting for about 25 years. Only in the past 13, though, have they adopted a conference format, with presentation of papers.

The theme of this year’s conference was “Making the U.N. Declaration on the Rights of Indigenous Peoples Work for Tribal Communities.” Debra Harry, executive director of the Indigenous Peoples Council on Biocolonialism, sounded the call in her keynote address. Indigenous Peoples, she urged, should not negotiate away their inherent rights. Indeed, they should challenge the countries in which they live to recognize and honor them.

That’s what UNDRIP is all about. It bans discrimination and marginalization of Indigenous Peoples, and promotes their rights to political participation and free and informed consent on issues over land, resources and intellectual property rights. Both individual U.N. officials and the United Nations Permanent Forum on Indigenous Issues advocate that UNDRIP be enacted via indigenous advocacy for application in courts, policy-making and economic activities.

Before UNDRIP, the record was mixed. For example, the Supreme Court of Belize used the declaration’s free-and-informed-consent clauses to protect Mayan rights to land and resources within the Temash and Sarstoon National Park in southern Belize. However, in November 2011, the Belize government defied the Supreme Court ruling and granted American companies rights to drill for oil in the park.

Consider, too, the Awas Tingni Community in Nicaragua, which won an Inter-American Court of Human Rights case in 2001. The court held that the Nicaraguan government violated Awas Tingni rights by granting foreign companies economic concessions on Awas Tingni traditional lands without tribal consent. The case supports international indigenous rights to protect traditional territorial rights and supports rights to sovereign political and economic recognition.

All of this, and more, was on the minds of the AISA participants. Not surprisingly, there was a broad range of opinion about the declaration’s content and feasibility. For instance, a panel on discrimination said that if tribes want to conform to the declaration, their governments may have to reconsider blood quantum criteria for membership. The issue is antithetical to the declaration, since blood quantum offers a racial basis for community membership—and is therefore discriminatory.

The big picture was more challenging. Some presenters argued that the declaration is largely symbolic and not enforceable as international law. Others countered that the declaration’s moral force and its support by the international legal community and courts has helped establish stronger understanding and support for its goals.

And still others were concerned that the declaration, curiously enough, addresses a vision of indigenous rights only indirectly. Yes, it takes up the cause of human and civil rights—but only within the framework and authority of national state political and legal institutions. This simply is not acceptable to most Indigenous Peoples, considering that indigenous nations preceded the formation of nation-states and had inherent rights to self-government from time immemorial.

So how to implement the declaration? There were plenty of suggestions, including strengthening direct representation of indigenous nations within the present system of U.N. agencies and indigenous nongovernmental organizations. And tribal governments could codify as tribal law their own interpretations of indigenous rights, powers of self-government, and similar matters with nation-states, the U.N., and international agencies. One thing is for sure: the conversation about UNDRIP is far from over.