Who is Afraid of Big Bad Soft Law?

The mainstream press has picked up the story of the Menominee student who was banned from a basketball game at her school for speaking the phrase “I love you” in her native language.

Indigenous peoples from Namibia are asking for the international community to assist them with issues that deal with the potential loss of land, lack of recognition of their governmental structures, and other threats to their culture and traditions.

The Navajo Nation has filed a lawsuit alleging trademark infringement for the use of its name by a clothing retailer on items for sale.

These are examples from just the past week of issues that are being raised about the threats to indigenous peoples’ culture and language. Doubtless there are more examples that occurred in the last week that have not grabbed the attention of the press. Doubtless these stories are just part of a continuum of events that continues where the rights of indigenous peoples are not respected. What is different now than even in the recent past is the ability for groups to seek redress for rights violations, sometimes in domestic courts, sometimes by appealing to international community sympathy, sometimes by bringing more formal statements to the indigenous structures of the United Nations.

Which brings me to the question of who is afraid of big bad soft law? There is no agreement as to what the international legal status of the UN Declaration on the Rights of Indigenous Peoples is, or should be. Sometimes it is couched as a remedial agreement that does nothing more than restate existing rights and obligations which are found in other international human rights instruments. Sometimes it is presented as containing binding norms of international customary law, binding upon even those states who voted against the approval of the Declaration.

Those four states have now all reversed their initial opposition to the approval of the Declaration. These states—Australia, Canada, New Zealand and the United States—present an interesting quartet of states. At some point it would be an interesting research project to plumb in depth the factors that ultimately contributed to their initial rejection of approval of the Declaration. All four states were colonised by Britain and have common law systems. Can any parallels be drawn other than that? Each of these four states have dealt with indigenous peoples in very different ways. In the present day US and Canada, series of wars were fought between the English and the French over territory, and with indigenous groups sometimes caught up on the side of one or the other. New Zealand famously has the Treaty of Waitangi, Australia the site of the now discredited doctrine of terra nullius.

The four “No” states receive a lot of comment and attention. Relatively little is written in contrast about the eleven states who abstained from voting on the approval of the Declaration. And the ILO Convention 169 is international law that is binding upon the 20 states that have ratified it.

It would be interesting to compare the 20 states that have ratified the ILO Convention 169 to the four states that opposed the Declaration—a project that I will try to address in future blog posts—and to understand more of what factors led four states to initially oppose the Declaration and other states to ratify binding international law on indigenous peoples.