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Abstract
Indigenous rights have developed in a very different trajectory than minority rights within the United Nations. This is remarkable given that indigenous rights were once seen as simply contained within the larger umbrella of minority rights, and that many groups can claim access to both the differing bodies of rights. The article proposes a model to explain the differences in the strength and effectiveness of minority and indigenous rights structures at the UN. This model characterises transnational campaign pressure as a key variable to explain the differences. Transnational networks have been studied for their effect on the transfer of norms from international to domestic spheres, but the effect of their pressure on the structures of international organisations has not been considered. The model highlights the effects that transnational networks have on the UN human rights structures. Yet the path of future development of indigenous and minority rights at the UN is uncertain. Understanding the effects that transnational networks have on UN human rights structures and how those structures in term impact upon the strength of minority and indigenous rights is an area ripe for continued research.
Notes
Rhiannon Morgan, ‘On Political Institutions and Social Movement Dynamics: The Case of the United Nations and the Global Indigenous Movement’, International Political Science Review 28, no. 3 (2007): 273, 277. (Emphasis added).
Ibid., 277–278.
Ibid., 278.
Andrea Muehlebach, ‘“Making Place” at the United Nations: Indigenous Cultural Politics at the UN Working Group on Indigenous Populations’, Cultural Anthropology16, no. 3 (2001): 415.
Ibid., 439.
Elsa Stamatopoulou, ‘Indigenous Peoples and the United Nations: Human Rights as a Developing Dynamic’, Human Rights Quarterly 16 (1994): 58, 69.
Chris Chapman and Kathryn Ramsay, ‘Two Campaigns to Strengthen United Nations Mechanisms on Minority Rights’, International Journal on Minority and Group Rights, 18 (2011): 185, 193. Emphasis added. They further comment again on the importance of space when discussing the need for a new forum for minority rights within the UN human rights structure: ‘This new forum should: a) be a space where minorities can raise issues and discuss possible solutions to problems’, 193, emphasis added. They further comment on the importance of space again – ‘…one hoped for outcome of the mechanisms – particularly the Forum – is to create a more effective space for minority activists to speak at the UN’, 199, emphasis added.
Natalie Schweizer, ‘The Power of Words? NGO Engagement in the Working Group on Minorities’, International Journal on Minority and Group Rights 18 (2011): 161, 181. Emphasis added.
Anna-Maria Biro and Corinne Lennox, ‘Introductory Study: Civil Society Actors and the International Protection Regime for Minorities’, International Journal on Minority and Group Rights 18 (2011): 135.
Ibid., 150.
Will Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy?’ in Reflections on the UN Declaration on the Rights of Indigenous Peoples, eds. Stephen Allen and Alexandra Xanthaki (Oxford: Hart Publishing, 2011), 183, 197. This observation is reflected in the model presented in this article – that the engagement in international levels of advocacy weakened rather than strengthened the minority rights movement.
See, on this point, Gregory Maney, ‘Transnational Mobilization and Civil Rights in Northern Ireland’, Social Problems 47 (2000): 153 and Clifford Bob, ‘Political Process Theory and Transnational Movements: Dialectics of Protest among Nigeria's Ogoni Minority’, Social Problems 49 (2002): 395.
David Meyer and Debra Minkoff, ‘Conceptualizing Political Opportunity’, Social Forces 82, no. 4 (2004): 1,457, 1,484.
Ibid., 1,484.
See generally Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy?’.
Ibid., 185.
Ibid., 185.
Ibid., 185.
Ibid., 201.
Ibid., 206.
Discussed infra.
Patrick Macklem, ‘Indigenous Recognition in International Law: Theoretical Observations’, Michigan Journal of International Law 30 (2008): 177, 207.
Morgan, ‘On Political Institutions’, 277–278.
Ibid., 90. See also Harold Koh, ‘Why Transnational Law Matters’, Penn State International Law Review 24, no. 4 (2006): 745.
Margaret Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca, NY: Cornell University Press, 1998), 12–13. See further discussion on the boomerang model infra.
Ibid., 12–13.
Ibid., 12–13.
Ibid., 13.
Ibid., 13. David Meyer notes a process that is similar to that of the boomerang model in his empirical research, ‘Protest and Political Opportunities’, Annual Review of Sociology 30 (2004): 125, 137.
James Franklin, ‘Shame on You: The Impact of Human Rights Criticism on Political Repression in Latin America’, International Studies Quarterly 52 (2008): 187, 207.
Kathryn Sikkink, ‘Patterns of Dynamic Multilevel Governance and the Insider–Outsider Coalition’, in Transnational Protest and Global Activism: People Passions and Power, eds., Donatella Della Porta and Sidney Tarrow (Lanham, ML: Rowman and Littlefield, 2005), 169–171.
Ibid., 165.
Kristina Hahn, ‘NGOs’ Power of Advocacy: The Construction of Identities in UN Counter-Human Trafficking Policies', in Evaluating Transnational NGOs: Legitimacy, Accountability, Representation, eds., Jens Steffek and Kristina Hahn (Houndsmill, UK: Palgrave Macmillan 2010), 222.
Ibid., 222.
Ibid., 222.
Ibid., 223.
Marianne Beisheim and Klaus Dingwerth, ‘The Link Between Standard-Setting NGO's Legitimacy and Effectiveness: An Exploration of Social Mechanisms’, in Evaluating Transnational NGOs: Legitimacy, Accountability, Representation, eds. Jan Steffek and Kristina Hahn (Houndsmill, Basingstoke, UK: Palgrave MacMillian, 2010), 74.
Ibid., 74.
Raffaele Marchetti and Mario Pianta, ‘Understanding Networks in Global Social Movements’, www.essex.ac.uk/ecpr/events/generalconference/pisa/papers/PP543.pdf.
Kathryn Sikkink, ‘Human Rights, Principled Issue-networks, and Sovereignty in Latin America’, International Organization 47, no. 3 (1993): 411, 412.
Ibid., 412.
Ibid., 415.
R. Charli Carpenter, ‘Setting the Advocacy Agenda: Theorizing Issues Emergence and Non-Emergence in Transnational Advocacy Networks’, International Studies Quarterly 51 (2007): 99, 101.
R. Charli Carpenter, ‘Studying Issue (Non-) Adoption in Transnational Advocacy Networks’, International Organization 61, no. 3 (2007): 643, 663.
Ibid., 663.
Ibid., 663.
Sidney Tarrow and Donatella della Porta, ‘Conclusion: “Globalization”, Complex Internationalism, and Transnational Contention’, in Transnational Protest and Global Activism: People Passions and Power, eds. Donatella della Porta and Sidney Tarrow (Lanham, ML: Rowman and Littlefield, 2005), 238.
Sidney Tarrow, ‘The Dualities of Transnational Contention: “Two Activist Solitudes” or a New World Altogether?’, Mobilizaion 10, no. 1 (2005): 53, 57.
Ibid., 57.
Tarrow and della Porta, ‘Conclusion’, 238.
Ibid., 239.
Ibid., 239.
Ibid., 239.
Gregory Maney, ‘Rival Transnational Networks and Indigenous Rights: The San Blas Kuna in Panama and the Yanomami in Brazil’, Political Opportunities, Social Movements and Democratization 23 (2001): 103, 109.
Jeff Corntassel, ‘Partnership in Action? Indigenous Political Mobilization and Co-optation During the First UN Indigenous Decade’, Human Rights Quarterly 29, no. 1 (1995–2004): 137, 140.
Ibid., 140.
Ibid., 140.
Ibid., 139–141.
Ibid., 140.
Ibid., 140–141.
See generally, James Anaya, ‘United Nations Special Rapporteur on the Rights of Indigenous Peoples’, http://unsr.jamesanaya.org/ (accessed on 20 September 2011).
James Anaya, ‘International Human Rights and Indigenous Peoples: The Move Towards the Multicultural State’, Arizona Journal of International and Comparative Law 21, no. 1 (2004): 13, 18.
Ibid., 274–275. Morgan, ‘On Political Institutions’, 274–275.
Ibid., 274.
Ibid., 274.
Ibid., 274.
Ibid., 274.
Ibid., 275.
Carpenter, ‘Studying Issue (Non-) Adoption’, 663.
R. Charli Carpenter, ‘Setting the Advocacy Agenda: Theorizing Issue Emergence and Nonemergence in Transnational Advocacy Networks’, International Studies Quarterly 99, no. 51, (2007): 102.
Ibid., 101.
Keck and Sikkink, Activists Beyond Borders, 6–7. They also offer this explanation of campaigns: ‘Campaigns are processes of issue construction constrained by the action context in which they are to be carried out: activists identity a problem, specify a cause, and propose a solution, all with an eye towards producing procedural, substantive, and normative change in their area of concern’, 8.
See, for instance, Carpenter, ‘Setting the Advocacy Agenda’, 102.
Ibid.
See, for instance, Ibid.
Ibid.
Sidney Tarrow and Doug MacAdam, ‘Scale Shift in Transnational Contention’, Transnational Protest and Global Activism: People Passions and Power, eds. Donatella Della Porta and Sidney Tarrow (Lanham, ML: Rowman and Littlefield, 2005), 126.
See generally ibid.
Donatella Della Porta and Mario Diani, Action Forms, Repertoires, Cycles of Protest in Social Movements (Oxford: Blackwell, 2006), 188.
Daniel Myers and Pamela Oliver, ‘The Opposing Forces Diffusion Model: The Initiation and Repression of Collective Violence’ (Working Paper and Technical Report Series, No. 1999-01, University of Notre Dame Department of Sociology, 1999), 3.
Maney, ‘Rival Transnational Networks and Indigenous Rights’, 132.
See Oona Hathaway, ‘Between Power and Principle: An Integrated Theory of International Law’, University of Chicago Law Review 72 (2005): 469; and Oona Hathaway, ‘Why Do Countries Commit to Human Rights Treaties?’, Journal of Conflict Resolution 51, no. 4 (2007): 588.
Hathaway, ‘Between Power and Principle’, 474, 514. Hathaway comments that collateral consequences ‘can prove to be just as important as, if not more important than, formal legal enforcement of the treaty requirements in influencing states’ behavior', in Hathaway, ‘Why Do Countries Commit’, 595.
Hathaway, ibid., 596–597.
Ibid., 597.
Sheryl Lightfoot, ‘Emerging International Indigenous Rights Norms and “Over-Compliance” in New Zealand and Canada’, Political Science 62, no. 1 (2010): 84, 85. See also Sheryl Lightfoot, ‘Indigenous Rights in International Politics: The Case of “Overcompliant” Liberal States’, Alternatives 33 (2008): 83, 84–85.
Lightfoot, ‘Emerging International Indigenous Rights Norms’, 89–90; Lightfoot, ‘Indigenous Rights in International Politics’, 84–85.
Lightfoot, ‘Emerging International Indigenous Rights Norms’, 104.
Ibid., 103–104.
Ibid., 103 (emphasis in the original).
Ibid., 103.
Ibid., 104.
Charles Hale, ‘Does Multiculturalism Menace? Governance, Cultural Rights and the Politics of Identity in Guatemala’, Journal of Latin American Studies 34 (2002): 485, 519. He further explains those rights that are seen as acceptable and those that are not: ‘identity as product of individual choice rather than collective mobilisation; anti-racism as opposition to individual acts of discrimination rather than struggle against structural inequity; work to value Maya culture as the encouragement of self-esteem and self-help rather than collective empowerment’, 521.
Ibid., 519. See generally on this point, Sarah Sargent, ‘Indigenous Children's Rights – International Law, Self-Determination and Intercountry Adoption in Guatemala’, Contemporary Issues in Law 10, no. 1 (2010): 1.
Lightfoot, ‘Emerging International Indigenous Rights Norms’, 101.
Ibid., 101.
Ibid., 101.
Ibid., 101. See also Hale, ‘Does Multiculturalism Menace?’
Lightfoot, ‘Indigenous Rights in International Politics’, 91.
Ibid., 90.
Lightfoot, ‘Emerging International Indigenous Rights Norms’, 101–104.
Ibid. Lightfoot argues that the over-compliance paradox seen in New Zealand and Australia is rooted in contemporary state utilisation of the Doctrine of Discovery to apply and interpret law in relation to indigenous peoples. See 101–104. The consequences of this medieval legal doctrine to the modern-day positioning of states on indigenous issues should not be underestimated and is a current focus of investigation of the United Nations Permanent Forum on Indigenous Issues. See, for instance, Tonya Frichner, ‘Impact on Indigenous Peoples of the International Legal Construct Known as The Doctrine of Discovery, Which Has Serviced as the Foundation of the Violation of Their Human Rights’, E/C.19/2010/13, 3 February 2010.
Wendt explains that these are very powerful in influencing the actions that a group takes: ‘Group beliefs are often inscribed in “collective memory” the myths, narratives, and traditions that constitute who a group is and how it relates to others…as long as individuals see themselves as having an allegiance and commitment to the group, collective memories will be available as a resource for mobilizing collective action even if they are not believed’. Alexander Wendt, Social Theory of International Politics (Cambridge, Cambridge University Press, 1999), 163. This statement points out the very ingrained nature of identity and the beliefs that help to create it. Changing the foundational collective myths is what Lightfoot's call for a change from ‘state-centric reconciliation’ to ‘an indigenous model of reconciliation’ requires. Lightfoot, ‘Emerging International Indigenous Rights Norms’, 103–104. Such a transformation is not as straightforward nor as easily achieved as her call for a change might suggest.
Chapman and Ramsay, ‘Two Campaigns to Strengthen’, 194.
Ibid., 196.
Ibid., 196.
Ibid., 196.
Ibid., 196.
Muehlebach, ‘“Making Place” at the United Nations’, 440.
S. James Anaya, ‘Indigenous Peoples and International Law Issues’, American Society of International Law Proceedings 92 (1998): 96, 99.
Aliza Organick, ‘Listening to Indigenous Voices: What the UN Declaration on the Rights of Indigenous Peoples Means for US Tribes’, U.C. Davis Journal of International Law & Policy 16 (2009): 171, 18.
Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy?’, 187.
Ibid., 188.
Ibid., 194–195.
Ibid., 202–203.
Ibid., 202.
Ibid., 203.
Siegfried Wiessner, ‘Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples’, Vanderbilt Journal of Transnational Law 41 (2008): 1,141, 1,159–1,160.
An indigenous NGO pointed to the four no states as promoting ambiguous meanings within the declaration and to the United States arguing that the right of self-determination should be subject to domestic law, rather than an international right. See ‘Our Land, Our Identity, Our Freedom: A Roundtable Discussion’, http://www.culturalsurvival.org/publications/cultural-survival-quarterly/none/our-land-our-identity-our-freedom-roundtable-discussio (accessed 20 September 2011). Wiessner, ‘Indigenous Sovereignty’, 1160, comments that this NGO, ‘Cultural Survival and other indigenous NGOS blamed large powers, including the United States, Canada, Australia, New Zealand and Russia, for lobbying the African states and thereby causing the delay’.
Morgan, ‘On Political Institutions’, 283.
Morgan, ‘On Political Institutions’, 283–284.
Morgan, ‘On Political Institutions’, 284.
Morgan, ‘On Political Institutions’, 284.
Hurst Hannum, ‘Contemporary Development in the International Protection of the Rights of Minorities’, Notre Dame Law Review 66 (1990): 1,431, 1,437.
See for instance, Hannum, ‘Contemporary Development in the International Protection of the Rights of Minorities’, 1,436.
See on the point of achieving the status of peoples and the right to self-determination that attaches to that recognition, James Anaya, ‘Indigenous Peoples in International Law’, 97–115; Siegfried Wiessner, ‘Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples’, Vanderbilt Journal of Transnational Law 41 (2008): 1,141, 1,149–1,152,1,154; Aliza Organick, ‘Listening to Indigenous Voices’, 172, 183–184.
See UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities A/RES/47/135, 18 December 1992, stating ‘Inspired by the provisions of article 27 of the International Covenant on Civil and Political Rights concerning the rights of persons belonging to ethnic, religious and linguistic minorities’.
Emphasis added. Article 27 of the International Covenant on Civil and Political Rights.
‘Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’, E/CN.4/Sub.2/AC.5/2005/2, 4 April 2005.
Ibid., para 14.
Tom Hadden, ‘The United Nations Working Group on Minorities’, International Journal on Minority and Group Rights 14 (2007): 285, 285.
Ibid., 285.
Chapman and Ramsay, ‘Two Campaigns to Strengthen’, 187.
See on this point Will Kymlicka, ‘The Internationalization of Minority Rights’, International Journal of Constitutional Law 6, no. 1 (2007): 1.
‘Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’, E/CN.4/Sub.2/AC.5/2005/2, 4 April 2005, para 17.
Organick, ‘Listening to Indigenous Voices’, 179.
Ibid., 179; Wiessner, ‘Indigenous Sovereignty’, 1,152–1,153.
Organick, ‘Listening to Indigenous Voices’, 179.
S. James Anaya, Indigenous Peoples in International Law (Oxford: Oxford University Press, 2004), 62.
See United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res 61/295, UN Doc A/Res/61/295, 13 September 2007. See also Organick, ‘Listening to Indigenous Voices’, 173, 177–188. See also Alexandra Xanthaki, ‘Indigenous Rights in International Law Over the Past 10 Years and Future Developments’, Melbourne Journal of International Law 10 (2009): 27, and Wiessner, ‘Indigenous Sovereignty’.
Kymlicka, ‘The Internationalization of Minority Rights’, 6.
Organick, ‘Listening to Indigenous Voices’, 173.
Megan Davis, ‘Indigenous Struggles in Standard Setting: The United Nations Declaration on the Rights of Indigenous Peoples’, Melbourne Journal of International Law 9, no. 2 (2008): 439, 440.
Ibid., 443–444.
See http://www.un.org/esa/socdev/unpfii/en/members.html (accessed 20 September 2011). Morgan comments on the significance of the establishment of the Permanent Forum and its membership: ‘the UN Permanent Forum on Indigenous Issues has been celebrated by many indigenous activists as the official and permanent incorporation of indigenous peoples into the UN structure. Comprised of eight state and eight indigenous members, the forum represents a unique form of institutionalization in that state and indigenous members work as equals in the realization of its threefold mandate’. Morgan, ‘On Political Institutions’, 278.
Ronald Niezen, ‘Recognizing Indigenism: Canadian Unity and the International Movement of Indigenous Peoples’, Comparative Studies in Society and History 42, no. 1 (2000): 119, 121.
Ibid., 120–121.
Ibid., 120–121.
Ibid., 121.
Ibid., 120–121.
See Chapman and Ramsay, ‘Two Campaigns to Strengthen’, generally.
Natalie Schweizer, ‘The Power of Words?’, 161, 181.
Ibid., 169.
Albeit a sometimes contested identity that does not go without challenge, see for instance, Adam Kuper, ‘The Return of the Native’, Current Anthropology 44, no. 3 (2003): 389.
Melanie Ram, ‘Democratization through European Integration: The Case of Minority Rights in the Czech Republic and Romania’, Studies in Comparative European Development 38, no. 2 (2003): 28, 40.
Alison Brysk, ‘Turning Weakness Into Strength: The Internationalization of Indian Rights’, Latin American Perspectives 89, no. 23 (1996): 38, 41.
Ibid., 45. Erik Bluemel comments on this characteristic of the indigenous movement, saying, ‘Indigenous forms of organization have proven tremendously flexible and evolutionary, with identity formation occurring from splinter or sub-groups within localized ethnic groups to the localized ethnic group identity itself to an indigenous identity to a pan-indigenous identity, as well as the many other lines along which indigenous identity is formed’. Erik Bluemel, ‘Separating Instrumental from Intrinsic Rights: Toward an Understanding of Indigenous Participation in International Rule-Making’, American Indian Law Review 30 (2005): 57, 90.
Brysk, ‘Turning Weakness Into Strength’, 51.
Ibid., 51.
Ibid., 51.
Rhiannon Morgan, ‘Advancing Indigenous Rights at the United Nations: Strategic Framing and its Impact on the Normative Development of International Law’, Social and Legal Studies 13, no. 4 (2004): 481, 487–496.
Ibid., 487–496.
See, for example, discussion by Schweizer, ‘The Power of Words?’, 179–181.
Chapman and Ramsey, ‘Two Campaigns to Strengthen’, 198. This echoes the point made in the Biro-Lennox research.
Maney, ‘Rival Transnational Networks and Indigenous Rights’, 108.
Morgan, ‘On Political Institutions’, hints at this type of pressure on the structures of the United Nations through the active roles of non-state actors, when she comments that ‘The UN is a complex inter-organizational structure containing pools of creativity that derive from the organization's role in the promotion and protection of human rights, where institutional actors other than or in tandem with member states may act as progressive forces in redefining institutional culture and rules in the consideration of interests and concerns other than those of member states’, 285.
Barsh, ‘Indigenous Peoples in the 1990s: From Object to Subject of International Law’, Harvard Human Rights Journal 7 (1994): 33.
For instance, Morgan comments that ‘the global indigenous movement has developed in close relation to the UN system’, citing one of the important provisions of the UN as that of ‘institutional spaces or “nests” through which to mobilize activists and connect them to each other.’ Morgan, ‘On Political Institutions’, 276.
Kymlicka ‘Beyond the Indigenous/Minority Dichotomy?’, 194.
See generally Organick, ‘Listening to Indigenous Voices’, 178–186, discussing the involvement of indigenous groups in the development of the UNDRIP.