Selective endorsement without intent to implement: indigenous rights and the Anglosphere

Abstract

In human rights commitment theory, state commitments to international regimes are generally interrogated as a binary calculation – either a state commits to a rights regime or it does not. This binary remains the dominant standard largely because existing scholarship focuses on state ratification of human rights treaties. However, when the analysis of state commitment is opened up to include human rights instruments other than treaties (e.g. human rights declarations), many more possibilities of nuanced state commitment behaviour can emerge in the grey zone between commitment and non-commitment. For example, if state commitments are defined more broadly to include public endorsements and expressions of support for human rights declarations, states exhibit a wider variety of commitment behaviour beyond the binary of ratification or non-ratification. This article aims to identify and discuss one such nuance of state commitment behaviour: the practice of selective endorsement, a pattern that lies at the intersection of rationalist and constructivist expectations on state commitment behaviour. The pattern of endorsements of the United Nations Declaration on the Rights of Indigenous Peoples by Anglosphere states demonstrates the practice of selective endorsement. By selectively endorsing Indigenous rights, the Anglosphere states: (1) removed concerns over the legitimacy of the process by which such rights norms emerged; (2) underscored the normative importance of this particular cluster of norms while simultaneously qualifying their status; and (3) strategically, collectively and unilaterally wrote down the content of the norms themselves so that they would align with the community's current policies and practices thus assuring compliance without any intent of further implementation. Indigenous rights activists must continue to place substantial political and moral pressure on states, demanding effective domestic implementation of the original Indigenous rights norms, regardless of the Anglosphere's selective endorsement of the Indigenous Rights Declaration.

Keywords:

• Indigenous peoples
• human rights
• activism
• international law

Notes

Such scholarship includes, for example, Beth A. Simmons Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge, Cambridge University Press, 2009); Oona Hathaway, ‘Do Human Rights Treaties Make a Difference?’ Yale Law Journal III (2002): 1935–2042; Andrew Moravcsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’ International Organization 54 (2000): 217–252; and Daniel A. Farber, ‘Rights as Signals’, Journal of Legal Studies 31(I) (Part I) (2002): 83–98.

Simmons, Mobilizing for Human Rights, 58.

Kal Raustiala and Anne-Marie Slaughter, ‘International Law, International Relations and Compliance’, in Handbook of International Relations, eds. T. Risse, B.A. Simmons and W. Carlsnaes, (London: Sage, 2002), 538–558.

‘Compliance’ is defined as state conformity with a rule, following Raustiala and Slaughter's definition, ‘International Law’, 539.

Simmons Mobilizing for Human Rights, 58.

For example, Abram Chayes and Antonia Handler Chayes ‘On Compliance’, International Organization 47(1993): 175–205; George W. Downs, David M. Rocke and Peter N. Barsoom, ‘Is the Good News about Compliance Good News About Cooperation?’, International Organization 50 (1996): 379–406; and Moravcsik, ‘The Origins of Human Rights Regimes’.

For example: Friedrich V. Kratochwil, Rules, Norms, and Decisions on the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge, Cambridge University Press, 1989); Jeffrey Checkel, ‘Why Comply? Social Learning and European Identity Change’, International Organization 55(2001): 553–588; and Thomas M. Franck, The Power of Legitimacy among Nations (New York: Oxford University Press, 1990).

The ‘Anglosphere’, a term and concept that is enjoying increased prominence in social and political discourse, implies much more than use of a common English language. As James Bennett noted in ‘America and the West: The Emerging Anglosphere’, Orbis 46 (2002): 111, membership in the Anglosphere also ‘requires adherence to the fundamental customs and values that form the core of English-speaking countries’.

Jerome Shestack, ‘The Legal Profession and Human Rights: Globalization of Human Rights Law’, Fordham International Law Journal 21 (1997): 560.

United Nations General Assembly, Department of Public Information, ‘General Assembly Adopts Declaration on the Rights of Indigenous Peoples’, news release, 13 September 2007.

The debate over whether or not to capitalise the word ‘Indigenous’ is far from resolved. This author prefers to capitalise, although many others do not. Quotations will be reproduced in their original form, capitalised or not.

Jenny Macklin, ‘Statement on the United Nations Declaration on the Rights of Indigenous Peoples’ (speech, Australian Parliament, Canberra, Australia, 3 April 2009).

Hon. Dr. Pita Sharples, ‘UNPFII Opening Ceremony New Zealand Statement’ (speech, United Nations Permanent Forum on Indigenous Issues, New York, 19 April 2010).

Indian and Northern Affairs Canada, ‘Canada Endorses the United Nations Declaration on the Rights of Indigenous Peoples’, http://www.ainc-inac.gc.ca/ai/mr/nr/s-d2010/23429-eng.asp (accessed 10 January 2011).

Barack Obama, ‘Remarks by the President at the White House Tribal Nations Conference’ (speech, The White House, Washington, DC, 16 December 2010).

The United Nations Committee on the Elimination of Racial Discrimination reviewed the United States in 2008 and Australia in 2010. The Human Rights Council's Universal Periodic Review included Canada and New Zealand in 2009 and the United States in 2010. All of these United Nations human rights reports mentioned these countries' opposition to the Indigenous Rights Declaration and recommended that they change their positions.

Margaret E. Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca, NY: Cornell University Press, 1998).

Harold Schmidl, The Political Writings of Harold D. Lasswell (Glencoe, IL: The Free Press, 1951).

Les Malezer, ‘Statement by the Chairman, Global Indigenous Caucus’ (speech, United Nations, New York, 13 September 2007).

United Nations Permanent Forum on Indigenous Issues, Frequently Asked Questions – Declaration on the Rights of Indigenous Peoples, New York, 2007.

United Nations General Assembly, ‘General Assembly Adopts Declaration on the Rights of Indigenous Peoples’ (news release, 13 September 2007).

United Nations, ‘Adoption of Declaration on Rights of Indigenous Peoples a Historic Moment for Human Rights, UN Expert Says’, 14 September 2007.

James S. Anaya, ‘Statement by James Anaya, Special Rapporteur on the Rights of Indigenous Peoples on the Obligations of States to Implement the Declaration on the Rights of Indigenous Peoples’(speech, United Nations, New York, 18 October 2010).

Thomas Risse, Stephen C. Ropp and Kathryn Sikkink, eds., The Power of Human Rights: International Norms and Domestic Change (Cambridge: Cambridge University Press, 1999).

Victoria Tauli-Corpuz, ‘Message of Victoria Tauli-Corpuz, Chairperson of the UN Permanent Forum on Indigenous Issues, on the Occasion of the Adoption by the General Assembly of the Declaration on the Rights of Indigenous Peoples’ (speech, United Nations, New York, 13 September 2007).

Ibid.

Anaya, ‘Statement’.

Sheryl Lightfoot, ‘Emerging International Indigenous Rights Norms and “Over-Compliance” in New Zealand and Canada’, Political Science 62 (2010): 84.

Honourable Robert Hill, ‘Explanation of Vote by the Hon. Robert Hill, Ambassador and Permanent Representative of Australia to the United Nations’ (speech, United Nations, New York, 13 September 2007).

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Macklin, ‘Statement on the United Nations Declaration’.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Rosemary Banks, ‘Declaration on the Rights of Indigenous Peoples Explanation of Vote’ (speech, United Nations, New York, 13 September 2007).

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Sharples, ‘UNPFII Opening Ceremony’.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Banks, ‘Declaration on the Rights of Indigenous Peoples’.

John McNee, ‘Statement by Ambassador McNee to the General Assembly on the Declaration on the Rights of Indigenous Peoples’ (speech, United Nations, New York, 13 September 2007).

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Debora Steel Windspeaker, ‘Luke Warm Endorsement Receives Tepid Response’, Aboriginal Multi-Media Society (AMMSA), http://www.ammsa.com/publications/windspeaker/luke-warm-endorsement-receives-tepid-response (accessed 11 January 2011).

Indian and Northern Affairs Canada, ‘Canada Endorses the United Nations Declaration’.

Canada Governor General, ‘A Stronger Canada. A Stronger Economy. Now and for the Future. Speech from the Throne: March 3, 2010’, (speech, Ottawa, 3 March 2010).

Indian and Northern Affairs Canada, ‘Canada Endorses the United Nations Declaration’.

Ibid.

Ibid.

Ibid.

Ibid.

Indian and Northern Affairs Canada, ‘Backgrounder: Canada's Endorsement of the United Nations Declarations on the Rights of Indigenous Peoples’, November 2010, http://www.ainc-inac.gc.ca/ai/mr/nr/s-d2010/23429bk-eng.asp (accessed 10 January 2011).

Ibid.

Robert Hagen, ‘Explanation of Vote by Robert Hagen, US Advisor, on the Declaration on the Rights of Indigenous Peoples, to the UN General Assembly’ (speech, United Nations, New York, 13 September 2007).

Ibid.

United States Mission to the United Nations, ‘Observations of the United States with Respect to the Declaration on the Rights of Indigenous Peoples’ (news release, New York, 13 September 2007).

Ibid.

Ibid.

Ibid.

Ibid.

Susan E. Rice, ‘Remarks by Ambassador Susan E. Rice, US Permanent Representative to the United Nations, at the UN Permanent Forum on Indigenous Issues’ (speech, United Nations, New York, 20 April 2010).

Obama, ‘Remarks at the Tribal Nations Conference’.

The White House, ‘Announcement of US Support for the United Nations Declaration on the Rights of Indigenous Peoples, Initiatives to Promote the Government-to-Government Relationship & Improve the Lives of Indigenous Peoples’ (news release, Washington, DC, 16 December 2010).

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.