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Articles

Creating a space for indigenous rights: the Universal Periodic Review as a mechanism for promoting the rights of indigenous peoples

Pages 125-148 | Received 28 Feb 2018, Accepted 11 Dec 2018, Published online: 11 Jan 2019
 

ABSTRACT

In 2006, the Human Rights Council created a new method of overseeing the implementation of universal human rights standards, including the rights of indigenous peoples, in the form of the Universal Periodic Review (UPR). The UPR is a peer-review mechanism which requires States to report on their human rights practices in a variety of fields every 4-5 years and encourages other States to discuss, and make recommendations on, these reports. Since the UPR was created, every member state of the United Nations (UN) had been reviewed twice, and some have been reviewed 3 times. The paper analyses the first two cycles of the UPR to identify the ways in which indigenous peoples can play a role in the process, and also to query how the rights of indigenous peoples have been raised as part of this mechanism. The article will conclude with a number of recommendations as to how indigenous groups can engage with the UPR process to their benefit in the future.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Noelle Higgins is a Senior Lecturer in the Law Department at Maynooth University, Ireland. She undertook her PhD on the topic of wars of national liberation at the Irish Centre for Human Rights, NUI Galway. She teaches and researches in a variety of fields of public international law, particularly human rights law and international criminal law. She was previously a member of the Irish Department of Foreign Affairs and Trade NGO Human Rights Committee 2010-2012 and Vice-Chair of the Royal Irish Academy’s Ethical, Political, Legal and Philosophical Studies Committee.

Notes

1. The NGO UPRInfo provides excellent online tools, which facilitate searches for keywords raised and recommendations made during the UPR.

2. UNGA Res 60/251, 15 March 2006. With regard to the history and functions of the Human Rights Council, see P.J. Flood, ‘The U.N. Human Rights Council: Is its Mandate Well-Designed?’, ILSA Journal of International and Comparative Law 15 (2008–2009): 472–84 and J. Matiya, ‘Repositioning the International Human Rights Protection System: The UN Human Rights Council’, Commonwealth Law Bulletin 36, no. 2 (2010): 313–24.

3. See H. Boekle, ‘Western States, the UN Commission on Human Rights and the “1235” Procedure: The Question of Bias Revisited’, Netherlands Quarterly of Human Rights 13 (1995): 367–402 and T. Franck, ‘Of Gnats and Camels: Is there a Double Standard in the United Nations?’, American Journal of International Law 78 (1984): 811–34. For a discussion of the transition from the Human Rights Commission to the Human Rights Council, see P.G. Lauren, ‘To Preserve and Build on its Achievements and to Redress its Shortcomings: The Journey from the Commission on Human Rights to the Human Rights Council’, Human Rights Quarterly 29 (2007): 307–45.

4. The Human Rights Council replaced the Human Rights Commission by virtue of UN General Assembly Resolution 60/251 (2006). See generally, B. Ramcharan, The UN Human Rights Council (UK: Routledge, 2011); M. Bossuyt, ‘The Human Rights Council: A First Appraisal’, Netherlands Quarterly of Human Rights 24, no. 4 (2006): 551–5 and N. Schrijver, ‘The UN Human Rights Council: A New “Society of the Committed” or Just Old Wine in New Bottles?’, Leiden Journal of International Law 20, no. 4 (2007): 809–23.

5. UNGA Res 60/251, 15 March 2006. For a discussion of the UPR see P.J. Flood, ‘The U.N. Human Rights Council: Is its Mandate well-designed?’, ILSA Journal of International and Comparative Law 15 (2008–2009): 472–84 and E. McMahon and M. Ascherio, ‘A Step Ahead in Promoting Human Rights? The Universal Periodic Review of the UN Human Rights Council’, Global Governance 18 (2012): 231–48.

6. Different States had varying views on the format they hoped the UPR would take. See Human Rights Peer Review, Draft Concept and Opinions Paper, prepared by Canada, 29 April 2005, at para. 9, www.humanrightsvoices.org/assets/attachments/documents/human_rights_peer_review_canada.pdf (accessed February, 2018).

7. UN Human Rights Council, ‘Institution-building of the United Nations Human Rights Council’, HRC Res 5/1 UN GAOR, 5th Sess., 9th mtg., (2007) 1 UN Doc A/HRC/5/1.

8. UN Human Rights Council, ‘Institution-building of the United Nations Human Rights Council’, HRC Res 5/1 UN GAOR, 5th Sess., 9th mtg., (2007) 1 UN Doc A/HRC/5/1.

9. Human Rights Council Resolution 5/1, annex at 1.A.1.

10. Universal Declaration of Human Rights, proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217 A).

11. International Covenant on Civil and Political Rights, adopted by General Assembly resolution 2200A (XXI), 16 December 1966.

12. ILO Convention No. 169, Convention concerning Indigenous and Tribal Peoples in Independent Countries 1989.

13. For example, some regional instruments protect indigenous peoples’ rights, including the African Charter on Human and Peoples’ Rights (adopted 27 June 1981) OAU Doc CAB/LEG/67/3 rev. 5, 21 ILM 58 (1982).

14. United Nations Declaration of the Rights of Indigenous Peoples, adopted by General Assembly resolution 61/295, 2007.

15. See: J. Cooper, ‘Universal Periodic Review: A Potent Process for the Realization of Human Rights in Indigenous Homelands’, Cultural Survival Quarterly Magazine 38(2) (2014), https://www.culturalsurvival.org/publications/cultural-survival-quarterly/universal-periodic-review-potent-process-realization-human (accessed July, 2018).

16. E. McMahon, ‘Herding Cats and Sheep: Assessing State and Regional Behavior in the Universal Periodic Review Mechanism of the United Nations Human Rights Council’, www.upr-info.org/IMG/pdf/McMahon_Herding_Cats_and_Sheeps_July_2010.pdf, 12 (accessed February, 2018).

17. G. Sweeney and Y. Saito, ‘An NGO Assessment of the New Mechanisms of the UN Human Rights Council’, Human Rights Law Review 9, no. 2 (2009): 203–23, 210.

18. The UPR Extranet is http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRRegistration.aspx (accessed July, 2018).

19. See United Nations Human Rights Council, ‘UPR Mid-term Reports’, http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRImplementation.aspx. These mid-term reports are http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRImplementation.aspx (accessed July, 2018).

20. See United Nations Human Rights Council, ‘UPR NGOs Mid-term Reports’, http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPR-NGOs-Mid-term-reports.aspx (accessed July, 2018).

21. UPRInfo, ‘Follow-up Programme’, https://www.upr-info.org/followup/ (accessed July, 2018).

22. See resolution 16/21, 15 March 2011 and decision 17/119.

24. J. Cooper, ‘Universal Periodic Review: A Potent Process for the Realization of Human Rights in Indigenous Homelands’, Cultural Survival Quarterly Magazine 38(2) (2014), https://www.culturalsurvival.org/publications/cultural-survival-quarterly/universal-periodic-review-potent-process-realization-human (accessed July, 2018).

25. See United Nations Office of the High Commissioner on Human Rights, ‘3rd Cycle Universal Periodic Review National Report – Guidance Note’, www.ohchr.org/Documents/…/3rdCycle_GuidanceNotePreparationReports_EN.docx (accessed July, 2018).

26. See United Nations Office of the High Commissioner on Human Rights, ‘3rd Cycle Universal Periodic Review National Report – Guidance Note’, www.ohchr.org/Documents/…/3rdCycle_GuidanceNotePreparationReports_EN.docx (accessed July, 2018).

27. Under Article 22 of the ILO Constitution, each Member State must provide periodic reports to the International Labour Office on ratified conventions, setting out the measures taken to implement the provisions of those Conventions it has ratified.

28. See B. Saul, Indigenous Peoples and Human Rights (London: Hart Publishing, 2016) and B. Saul, ‘Introduction: Indigenous Peoples and Human Rights – Institutions and Influences’, Sydney Law School, Legal Studies Research Paper No. 16/39, May 2016, https://ssrn.com/abstract=2778903 (accessed February, 2018).

29. This provision states that ‘[i]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language’. Article 27 International Covenant on Civil and Political Rights, adopted by General Assembly resolution 2200A (XXI), 16 December 1966.

30. International Covenant on Economic, Social and Cultural Rights, adopted by General Assembly resolution 2200A (XXI), 16 December 1966. While no provisions of this instrument specifically refer to indigenous peoples, numerous of its provisions are of relevance to indigenous peoples, including Article 15(1), which states: ‘The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life … ’

31. International Convention on the Elimination of All Forms of Racial Discrimination, adopted General Assembly resolution 2106 (XX) of 21 December 1965. As with the International Covenant on Economic, Social and Cultural Rights, no provisions of this instrument explicitly deal with indigenous peoples. However, a number of provisions are relevant to this group, including Article 2(1), which states: ‘States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races’.

32. Convention on the Rights of the Child, adopted by General Assembly resolution 44/25 of 20 November 1989. Articles 17, 29 and 30 specifically mention indigenous peoples. Article 30 states: ‘In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language’.

33. See Preamble, Convention on the Rights of People with Disabilities, adopted by General Assembly resolution A/RES/61/106 of 13 December 2006.

34. For example, the 6th state report from New Zealand on the ICCPR to the Human Rights Committee contains numerous references to the Māori population and discusses various topics, including education, incarceration rates, equality, language, political representation, amongst others. CCPR/C/NZL/6, 24 July 2015.

35. See B. Saul, Indigenous Peoples and Human Rights (Hart Publishing, London, 2016) and A. Xanthaki, ‘Indigenous Rights in International Law over the Last 10 Years and Future Developments: Reflections on a Decade of International Law’, Melbourne Journal of International Law 10 (2009): 27–37.

36. This can be seen from the work of the Committee on Economic, Social and Cultural Rights, which, in General Comment No 14, recognised the rights of indigenous peoples to control their own health services and to have medical care delivered in a manner which is culturally appropriate. CESCR, General Comment No 14: The Right to the Highest Attainable Standard of Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), 22"d sess, Agenda Item 3, UN Doc E/C. 12/2000/4 (11 August 2000). See A. Xanthaki, ‘Indigenous Rights in International Law over the Last 10 Years and Future Developments: Reflections on a Decade of International Law’, Melbourne Journal of International Law 10 (2009): 27–37, 28.

38. UPRInfo, ‘The Butterfly Effect’, (UPRInfo Geneva, 2016), iv.

40. Ibid.

41. Priority is given on the following bases: Grassroots and national CSOs; National coalitions; CSOs that have submitted a report to the UPR and are committed to engaging in the process, in particular in the implementation phase; A broad representation of the various human rights issues representing the concerns of the local population. In particular, a balance is sought amongst civil and political rights, and economic, social and cultural rights; and ensuring a gender perspective for each Pre-sessions; where possible, gender parity amongst panellists is also sought.

42. J. Cooper, ‘Universal Periodic Review: A Potent Process for the Realization of Human Rights in Indigenous Homelands’, Cultural Survival Quarterly Magazine 38(2) (2014), https://www.culturalsurvival.org/publications/cultural-survival-quarterly/universal-periodic-review-potent-process-realization-0 (accessed July, 2018).

43. Ibid.

44. See S. Gujadhur and M. Limon for Universal Rights Groups, ‘Towards the Third Cycle of the UPR: Stick or Twist’ (2016), https://www.universal-rights.org/wp-content/uploads/2016/07/URG_UPR_stick_or_twist.pdf (accessed July, 2018), p. 5.

45. See: From commitments to actions: the stakeholder’s outcomes charter on the UPR of Kenya’, http://s.upr-info.org/kenyacharter (accessed July, 2018).

46. See: WGHR Press Release, Comprehensive review of India’s human rights record at the UN Human Rights Council: Glaring Omissions, Some Progress, September 21, 2012, http://www.wghr.org/pdf/WGHR%20UPR%20press%20release%20 21.09.2012.pdf (accessed July, 2018).

47. UPRInfo, ‘Beyond Promises’, https://www.upr-info.org/sites/default/files/general-document/pdf/2014_beyond_promises.pdf (accessed July, 2018), p. 8.

48. UPRInfo, ‘Beyond Promises’, https://www.upr-info.org/sites/default/files/general-document/pdf/2014_beyond_promises.pdf (accessed July, 2018), p. 64.

50. Ibid.

51. Ibid.

52. Ibid.

53. Ibid.

54. Ibid.

55. Ibid.

56. Ibid.

57. United Nations Declaration of the Rights of Indigenous Peoples, adopted by General Assembly resolution 61/295, 2007.

59. Ibid.

60. Ibid.

61. Ibid.

62. Ibid.

63. ILO Convention No. 169, Convention concerning Indigenous and Tribal Peoples in Independent Countries 1989.

65. Ibid.

66. Ibid.

67. Reconciliation Australia, ‘The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)’, p. 1, https://www.reconciliation.org.au/wp-content/uploads/2017/11/Reconciliation-Australia-United-Nations-Declaration-on-the-Rights-of-Indigenous-Peoples-UNDRIP.pdf (accessed July, 2018).

68. National report submitted in accordance with paragraph 15 (a) of the annex to Human Rights Council resolution 5/1, Australia, A/HRC/WG.6/10/AUS/1, 5 November 2010, para. 14.

69. Ibid, para. 35.

70. Ibid, para. 59.

71. Summary prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15 (c) of the annex to Human Rights Council resolution 5/1, Australia, A/HRC/WG.6/10/AUS/3, 11 November 2011, para. 52.

72. Ibid, para. 56.

73. Joint Submission submitted by the Aboriginal and Torres Strait Islander Legal Services of Australia (ATSILS) composed of: Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd; Aboriginal Legal Rights Movement Inc; Aboriginal Legal Service (NSW/ACT); Aboriginal Legal Service of Western Australia (Inc.), Perth (Australia); Central Australian Aboriginal Legal Aid Service; North Australian Aboriginal Justice Agency; and Victorian Aboriginal Legal Service Co-operative Limited, Fitzroy, Victoria (Australia).

74. Summary prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15 (c) of the annex to Human Rights Council resolution 5/1, Australia, A/HRC/WG.6/10/AUS/3, 11 November 2011, para. 55.

75. Ibid.

76. Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1, Australia, A/HRC/WG.6/10/AUS/2, 15 November 2010.

77. Ibid, para. 41.

78. Ibid, para. 43.

80. Ibid.

82. Ibid, p. 2.

83. Ibid.

84. Ibid.

85. Ibid, p. 3.

86. Ibid, p. 13.

87. Australia’s National Action Plan (2012), https://lib.ohchr.org/HRBodies/UPR/Documents/Session10/AU/ImplementationAustralia_1.pdf (accessed July, 2018).

88. These 3 documents are available on the website of the Human Rights Council, at: https://www.ohchr.org/en/hrbodies/upr/pages/uprimplementation.aspx (accessed July, 2018).

89. Australia’s National Action Plan (2012), https://lib.ohchr.org/HRBodies/UPR/Documents/Session10/AU/ImplementationAustralia_1.pdf (accessed July, 2018), p. 24.

90. National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21, Australia, A/HRC/WG.6/23/AUS/1, 7 August 2015.

91. Ibid, para. 13.

92. Ibid, para. 40.

93. Ibid, para. 39.

94. Ibid, para. 115.

95. Ibid, para. 116.

96. Summary prepared by the Office of the United Nations High Commissioner for Human Rights in accordance with paragraph 15 (c) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21, Australia, A/HRC/WG.6/23/AUS/3, 10 August 2015.

97. Ibid, para. 66.

98. Ibid, para. 67.

99. Ibid, para. 66.

100. Compilation prepared by the Office of the United Nations High Commissioner for Human Rights in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21, Australia, A/HRC/WG.6/23/AUS/2, 31 August 2015.

101. Ibid, para. 60.

102. Commonwealth of Australia, ‘Brining them Home. Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families’ (1997), https://www.humanrights.gov.au/sites/default/files/content/pdf/social_justice/bringing_them_home_report.pdf (accessed: July, 2018).

103. Compilation prepared by the Office of the United Nations High Commissioner for Human Rights in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21, Australia, A/HRC/WG.6/23/AUS/2, 31 August 2015, para. 60.

104. Ibid, para. 61.

106. Ibid.

107. Reconciliation Australia, ‘The United Nations Declaration on the Rights of Indigenous Peoples’, https://www.reconciliation.org.au/wp-content/uploads/2017/11/Reconciliation-Australia-United-Nations-Declaration-on-the-Rights-of-Indigenous-Peoples-UNDRIP.pdf (accessed July, 2018).

108. Address to the 4th session of the UN Human Rights Council by UN Secretary-General, Ban Ki-moon, www.un.org/apps/news/story.asp?NewsID=21834#.UYD0q6JayPc (accessed July, 2018).

109. A.M. Abebe, ‘Of Shaming and Bargaining: African States and the Universal Periodic Review of the United Nations Human Rights Council’, Human Rights Law Review 9, no. 1 (2009): 1–35, 19.

110. UN Watch, Mutual Praise Society. Country scorecard and evaluation of the Universal Periodic Review system of the UN Human Rights Council. Presented at the United Nations Human Rights Council, February 6, 2009.

111. D. Frazier, ‘Evaluating the Implementation of UPR Recommendations: A Quantitative Analysis of the Implementation Efforts of Nine UN Member States’, https://www.upr-info.org/sites/default/files/general-document/pdf/-david_frazier_paper_upr_implementation_2011-2.pdf (accessed February, 2018).

112. See, for example, R. Brett, A Curate’s Egg, Quaker United Nations Office August 2009, http://www.quno.org/sites/default/files/resources/A%20Curate%27s%20Egg.pdf (accessed July, 2018).

113. See, for example, Human Rights Watch, Curing the Selectivity Syndrome. The 2011 Review of the Human Rights Council, https://www.hrw.org/sites/default/files/reports/hrc0610webwcover.pdf (accessed July, 2018) and E. McMahon, The Universal Periodic Review: A Work in Progress. An Evaluation of the First Cycle of the New UPR Mechanism of the United Nations Human Rights Council, 2012, http://library.fes.de/pdf-files/bueros/genf/09297.pdf (accessed July, 2018).

114. See, for example, UPRInfo, Universal Periodic Review; On the Road to Implementation, (2012), www.upr-info.org (accessed July, 2018). A number of studies have reviewed the UPR from the perspective of children’s rights. See, for example, Children’s Rights Information Network, Status of Children’s Rights in the UPR, (November, 2010), www.crin.org/resources/infoDetail.asp?ID=22015&flag=report#vv (accessed February, 2018), J. Jolley, An Academic Study of the Universal Periodic Review (UPR) from the Perspective of Children’s Rights, (2012), https://resourcecentre.savethechildren.net/sites/default/files/documents/6982.pdf (accessed July, 2018), and N. Higgins, ‘Advancing the Rights of Minorities and Indigenous Peoples: Getting UN Attention via the Universal Periodic Review’, Netherlands Quarterly of Human Rights 34 (2014): 379–407. Other reviews have concentrated on the experience of specific States of the UPR, see, for example, E. Dewhurst, and N. Higgins, ‘Ireland and the Universal Periodic Review: A Two way Process’, Socio-Legal Studies Review 1 (2012): 140–51.

115. See E. McMahon, The Universal Periodic Review: A Work in Progress. An Evaluation of the First Cycle of the New UPR Mechanism of the United Nations Human Rights Council, 2012, http://library.fes.de/pdf-files/bueros/genf/09297.pdf (accessed February, 2018).

116. See H. Fridlund, ‘A butterfly effect-steps to improve UPR implementation’, OpenGlobalRights, January 2017, https://www.openglobalrights.org/butterfly-effect-steps-to-improve-upr-implementation/ (accessed July, 2018).

117. Office of the Attorney General and Department of Justice, ‘Universal Periodic Review, 2nd Cycle Implementation Matrix 2015–2019’, https://www.upr-info.org/sites/default/files/general-document/pdf/kenya_2nd_cycle_final_matrix_2016.pdf (accessed July, 2018).

118. See https://www.youtube.com/watch?v=5R-spwu0YXc (accessed July, 2018).

119. However, it is a very positive move that indigenous peoples are establishing a voice in certain UN organs, by means of UN General Assembly Resolution 71/321 (2017), Enhancing the Participation of Indigenous Peoples’ Representatives and Institutions in Meetings of Relevant United Nations Bodies on Issues Affecting Them.

120. S. Gujadhur and M. Limon for Universal Rights Groups, Towards the Third Cycle of the UPR: Stick or Twist (2016), https://www.universal-rights.org/wp-content/uploads/2016/07/URG_UPR_stick_or_twist.pdf (accessed July, 2018), p. 4.

121. IWIGA, The Indigenous World 2011, IWIGA, Copenhagen (2011), 515.

122. J. Cooper, ‘Universal Periodic Review: A Potent Process for the Realization of Human Rights in Indigenous Homelands’, Cultural Survival Quarterly Magazine 38(2) (2014), https://www.culturalsurvival.org/publications/cultural-survival-quarterly/universal-periodic-review-potent-process-realization-0 (accessed July, 2018).

123. Reconciliation Australia, ‘The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)’, https://www.reconciliation.org.au/wp-content/uploads/2017/11/Reconciliation-Australia-United-Nations-Declaration-on-the-Rights-of-Indigenous-Peoples-UNDRIP.pdf (accessed July, 2018).

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