Undrip: Reflect On Customary International Law
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
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This is illustrated in an advisory opinion by the ICJ in the Legality of the Threat or Use of Nuclear Weapons case, where the court notes that the “General Assembly resolutions, even if they are not binding, may ... provide evidence important for establishing the existence of a rule or the emergence of an opinio juris.” In addition, Emmanuel Voyiakis states that “General Assembly Resolutions can provide inspiration for the development of new customary international practices … [and] such Resolutions may often help to sharpen existing customary practices.” Similarly, in an advisory opinion on the Western Sahara , the ICJ take note of the UNGA’s suggestion that its declarations and resolutions should be considered by the ICJ as one way in which the development of international law may be …show more content…
They are the persistent objector since they object to it at the very early stage of its drafting. The US has refused to recognise the UNDRIP as or become customary international law because they opined that the UNDRIP does not describe current state practice or actions that provide for the state’s legal obligation. The Canada also supported this approach, stating that the UNDRIP has no legal effect in Canada and its provisions do not represent customary international law. Similarly, the Australia highlighted that the UNDRIP is an aspirational declaration with political and moral force but no legal force; and it is neither envisioned to be legally binding nor reflecting the customary international
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