Does The UNDRIP Reflect Customary International Law Or General Principles Of International Law
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2.2 To what extent does the UNDRIP reflect customary international law or general principles of international law
Some scholars opined that some rights stated in the UNDRIP may already form part of the customary international law and other rights may become the fons et origo of later-emerging customary international law.
The question arises as to whether certain provisions in UNDRIP have already attained the status of customary international law. The answer to this question often starts with the description of the requirements of customary international law stated in the decision by the International Court of Justice (ICJ) in the North Sea Continental Shelf Case . The requirements include evidence of widespread state practice in addition to opinio juris which means the states’ belief that such practice is required by law. In other words, once the state practice and belief are established, the custom can form binding international law. Therefore, a declaration may become binding when its provisions, key parts or principles prescribed in it are in compliance with state practice and opinio juris.
There are opinions that some parts of the UNDRIP are already customary law. For instance, Professor Wiessner wrote that “UNDRIP is a solemn, comprehensive and authoritative response of the international community of States to the claims of Indigenous peoples, where maximum compliance is anticipated. Some of the rights stated in UDRP may already form part of customary