REDD and Indigenous Peoples (part 1)

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced (please refer to the date produced below). However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer-client relationship. You should seek legal advice to take account of your own interests. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

Date produced: 09/11/2009

It has been suggested that in the text of Non Paper 39 (draft text on REDD) references to international “agreements” should be replaced with the term “instrument” or “human rights instrument”. What is the distinction between an “agreement” and an “instrument” in this context and should an alternative formulation be used?

1. Summary of advice: The term “international instrument” is broader than the term “international agreement”. The term “international agreement” is likely to include 169 Indigenous and Tribal Peoples’ Convention 1989 (ILO 169), but is unlikely to include the 2007 United Nations Declaration on the Rights of Indigenous People (UNDRIP), because UNDRIP is not an agreement.

The term “international instruments”, or “international human rights instruments”:
o is likely to include ILO 169 (which is a legally binding international instrument), and
o may include UNDRIP, although this is open to debate as it is unclear whether the term “international instruments” or “international human rights instruments” is intended to refer only to instruments which are binding at international law (which UNDRIP is not), or to all international instruments (whether binding or not).

Whether “international instruments” or “international human rights instruments” will ultimately be interpreted as including UNDRIP will depend on how the negotiating text is interpreted as a whole, and whether the parties intended to include non-binding instruments.
One way of increasing the likelihood that the term “international instruments” will be interpreted to include UNDRIP is to expressly refer to UNDRIP in the Preamble to the main negotiating text. Other options are considered in detail below.
The detailed reasons for this advice are set out below.

2. This advice considers the two main human rights instruments which are relevant to indigenous rights in the context of REDD:
• The Indigenous and Tribal Peoples Convention 1989 (ILO 169), and
• The United Nations Declaration on the Rights of Indigenous People.

Indigenous and Tribal People’s Convention (ILO 169)
ILO 169 can be described as a treaty or international agreement. It is a multilateral treaty which is intended to be legally binding on the parties who have signed and ratified it (Art 37). The Convention is only binding on those States which have ratified it (Art 38.1). However, the ILO Convention is not widely ratified: of the 181 States which are members of the ILO, only 20 States have ratified the Convention, although many of these States contain tropical forests and are likely to participate in REDD (e.g. Argentina, Bolivia, Brazil, Chile, Ecuador and Peru. Annex A contains a list of States which have ratified ILO 169.

United Nations Declaration on the Rights of Indigenous People, 2007 (UNDRIP)
On 13 September 2007, the UN General Assembly passed a resolution adopting the Declaration on the Rights of Indigenous Peoples (UNDRIP) by a vote of 143 for: 4 against (Canada, NZ, Australia and the US voted against its adoption). Australia subsequently changed its position and signed the Declaration in 2009. The Declaration’s language is similar to, although stronger, than that of ILO 169 in relation to the protection of indigenous peoples’ rights. The Declaration is not legally binding under international law.

3. Distinction between the terms international “agreement” and “instrument”

There is no precise nomenclature for the terms “international agreement” or “international instrument” in international law.

3.1 International agreements
International agreements generally fall under the broader umbrella term of “treaties”.
Shaw notes that:
“Treaties are known by a variety of differing names, ranging from Conventions, International Agreements, Pacts, General Acts, Charters, through to Statutes, Declarations and Covenants. All these terms refer to a similar transaction, the creation of written agreements whereby the states participating bind themselves to act in a particular way or to set up particular relations between themselves.”
However, in relation to a similar list of synonyms for the term “treaty”, Malanczuk notes that “some of these words have alternative meanings (that is, they can also mean something other than treaties), which makes the problem of terminology even more confusing.”
International agreements are generally of a bilateral or multilateral nature (i.e. a direct inter-parties agreement of some form). They can be either binding or non-binding: this will depend upon whether the parties intend to create legal obligations between themselves (in which case the agreement will be a binding treaty), or whether the agreement is simply an expression of commonly held principles or objectives.
By way of example, in the context of international human rights, the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966) can both be characterised as binding international agreements or treaties. By comparison, the 1948 Universal Declaration on Human Rights is a resolution of the UN General Assembly, and is not, strictly speaking, binding at international law.
The ILO Convention 169 is likely to be interpreted to be an “international agreement”. The Convention has the form of a treaty in that it is an inter-parties agreement, it provides for individual State parties to ratify it, and it provides that it will be legally binding upon those that do. It is therefore likely to constitute an “international agreement” under paragraph 4(e) of Non-Paper 39.
The situation is different for resolutions and declarations of the UN General Assembly. Although it is arguable, on the one hand, that a resolution could be an “agreement” between nations, it is more likely that it would not be interpreted as such because declarations have generally been treated as a separate species of international instrument.
Resolutions of the UN General Assembly are not binding on member states, although they may, within time, be considered to be an expression of customary international law. Rather, resolutions or declarations are usually general expressions by States of principles or recommendations to which they aspire.
UNDRIP follows this format. It sets out a range of principles and states that these constitute a “standard of achievement to be pursued in a spirit of partnership and mutual respect”. The language does not express an intention that the resolution is intended to be legally binding upon those States which voted to adopt it. In this regard, UNDRIP does not contain any provisions which relate to ratification or enforcement, but rather, requires States to “take the appropriate measures, including legislative measures, to achieve the ends of this Declaration”. UNDRIP is thus unlikely to be interpreted to be an “international agreement”.

3.2 International instruments
The term “international instrument” is broader in scope than the term “international agreement”.
The term “international instrument” is used to refer to a very broad range of international documents which include not only treaties and international agreements, but also declarations, resolutions, charters, protocols and memoranda of understanding. The term “international instruments” is not defined under the 1969 Vienna Convention on the Law of Treaties.
The term “international instruments” can be used to refer to both binding and non-binding international documents. This can cause confusion. Often the text of a document will expressly state whether “international instruments” refers only to legally binding documents, (in which case the phrase “international legal instruments” or “international instruments which are legally binding” might be used), or to all documents regardless of whether they are binding or not.
By way of example, the Universal Declaration on Human Rights 1948 is often referred to as an international instrument, even though it is not, strictly speaking, binding under international law (i.e. it is not a treaty). Indeed Brownlie describes the Universal Declaration as “non-binding instrument”, but goes on to say that it “is not a legal instrument”, because “some of its provisions, [such as] the reference to a right of asylum, could hardly be said to represent legal rules”.

4. Recommendations regarding para 4(e) of Non-Paper 39
In the context of the proposed para 4(e) of Non-Paper 39 and the various options which are available, I make the following recommendations:
• The clearest way of ensuring that UNDRIP is caught is to expressly refer to it (as is presently done in square brackets). However, it is recognised that this may not be possible.
• If the text were to use the phrase “international instruments” or “international human rights instruments”, it would still be unclear whether this refers only to legally binding international instruments (in which case it would not include UNDRIP), or to all international instruments, binding or not (in which case it would catch UNDRIP).
o Note: In the event of a subsequent dispute, it would then be a matter for treaty interpretation as to whether the text of para 4(e) was intended to include non-binding instruments or not, e.g. was it the intention of the parties to include non-binding international instruments. It is difficult to anticipate what the result is likely to be.
• An alternative is that the text could refer to “international agreements and declarations”, which is more likely to include UNDRIP. There may still be some uncertainty, as it could be argued that “declarations” was intended only to refer to binding declarations, which UNDRIP is not.
• A further alternative is that the text could refer to “international human rights instruments and declarations”, which would make it clearer that it was intended that declarations such as UNDRIP would be included.
• Another option which would increase the likelihood that the proposed paragraph 4(e) of the REDD text will be interpreted to include UNDRIP is to refer specifically to UNDRIP (and also ILO 169) in the Preamble to the whole of the negotiating text.
It should be noted that a risk of proposing certain wording during a negotiation, and then having that wording rejected, could be used in subsequent proceedings as evidence that the text did not intend to refer to or include the thing rejected.

5. Should the text refer to “instruments” or “human rights instruments”?
Referring only to “international instruments” will catch a broad range of international documents. This introduces some element of uncertainty as it is difficult to anticipate exactly which international instruments might be caught, although they must be “relevant” to the issue at hand.
Using the term “human rights instruments” makes it clearer that the text is referring to instruments such as the ICCPR, ICESCR, possibly the UN Declaration on Human Rights, regional human rights agreements and possibly UNDRIP (see discussion above regarding whether “instruments” includes both binding and non-binding documents).
However, one relevant treaty which the phrase “human rights instruments” may inadvertently exclude, but which contains some protections for indigenous people, is the 1992 Convention on Biological Diversity, as this is not generally considered to be a human rights instrument.
For example, Article 8 of the Biodiversity Convention deals with In-situ conservation and provides:
Each Contracting Party shall, as far as possible and as appropriate:
(j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices;…