The papers collected in this special issue of the International Journal of Human Rights consider the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as it enters the second decade since its adoption by the UN General Assembly in 2007. The adoption of the UNDRIP was the result of years of resistance by Indigenous peoples to state, and state sponsored dispossession, violence, cultural appropriation, murder, neglect and derision. It is an achievement with deep implications in international law and politics. But in many ways it also represents just the beginning – the opening of new ways forward that include advocacy, activism, and the careful and hard-fought crafting of new relationships between Indigenous peoples and states and their dominant populations and interests.
The papers collected here came out of a conference hosted at the School of Advanced Study (SAS), University of London, and jointly sponsored and organised by the SAS; the Centre for European and International Legal Affairs (CEILA) at Queen Mary, University of London; the City Law School, City, University of London; and the University of Lapland, in October 2017. We aimed to bring together a multi-disciplinary group of Indigenous and non-Indigenous scholars with a common interest in UNDRIP to reflect on the achievements, and assess the future challenges for Indigenous peoples, since the adoption of the UNDRIP in 2007.
While there is widespread recognition of the rights of Indigenous peoples, there are still countless areas of conflict in which rights are violated, peoples are displaced and lands despoiled. Indigenous peoples everywhere face numerous challenges and remain some of the most marginalised individuals and communities on earth.Footnote1 The impact, and potential, of the UNDRIP remains contested, and Indigenous peoples and activists face new challenges – political, environmental, existential – while old problems, and their effects, persist. What role has the UNDRIP played in Indigenous struggles since its adoption? To what extent has it been implemented, and with what effects? How can the Declaration best be brought to bear for Indigenous peoples – for instance, as an instrument of international (soft) law, as a platform for advocacy, as a commitment of principle, or in yet other ways? What next steps are needed in international diplomacy, activism and law?
The papers in this volume address these questions in a number of ways. They are written by people from across the world, and shine a light on some of the regional challenges facing Indigenous peoples in their quest to realise the rights under UNDRIP and beyond, at the same time that a number of common themes emerge from the papers as areas of particular importance. This introduction maps out some of the common themes and concerns addressed in the papers included in this special issue.
A number of papers rightly celebrate the achievement of the UNDRIP as the culmination of decades of efforts to decolonise, as Gómez-Iza notes, both international law and the United Nations, and to transform Indigenous persons – and peoples – from objects to subjects of international law.Footnote2 The UNDRIP is recognised as a major effort to redress past injustice, and to force a new framework for the recognition of Indigenous peoples and their rightsFootnote3; as a ‘propulsive force’ – as Lenzerini puts it – in advancing the rights of Indigenous peoples under international law.Footnote4
A number of authors also attempt to distil the ‘hard’ from ‘soft’ law in the Declaration. These papers take stock of the impact of the declaration as a legal instrument. Specifically, Lenzerini's paper draws on the in-depth studies of the ILA Committee on the Implementation of the UNDRIP, and he notes that states generally treat the declaration as of a binding legal character,Footnote5 while Gomez argues that the UNDRIP has become an unavoidable parameter of reference.Footnote6 But it is particularly notable how many of the papers, while acknowledging the UNDRIP as an important way-marker, are primarily turned toward the future. The authors recognise the work still to be done, and the challenges to overcome, in implementing the UNDRIP, and in otherwise realising and protecting the rights, status, and continuing survival and vitality of Indigenous peoples in the world.
In many papers, it is clear that we need ongoing political and activist struggles, to be carried out nationally and transnationally, to push for the meaningful implementation of the UNDRIP. Several of the papers point to the opportunities at the international level, through various global governance structures, inter-governmental organisations and human rights monitoring mechanisms. Higgins identifies the need for domestic activism around the UN's Universal Periodic Review (UPR) process,Footnote7 while Soderbergh and Lewis demonstrate the importance of activism and engagement with the World Bank in the consultations around – and application of – the new Environmental and Social Framework.Footnote8 Claridge illuminates one of the results of such activist struggles in Africa: the Okiek and Endorois cases under the African Regional Human Rights system.Footnote9 Gilbert and Lennox also examine the review processes of the Sustainable Development Goals (SDGs) and the ‘data revolution’ required by the SDGs, which has the potential to meet Indigenous people's ‘data sovereignty’Footnote10 demands.
As these papers demonstrate, while these international engagements are valuable, they may not translate into success at the national level. This is partly due to the complexity, political sensitivity, and legal paradoxes of activism around Indigenous rights in the often polarised domestic sphere. This is discussed by Young, who illuminates the contestations over the ‘self’ that is to be ‘self-determined’ in the context of the Native Title Act in Australia, and its framework for Indigenous rights.Footnote11 The question over who speaks as the agent of self-determination, this paper shows, is deeply contested within Indigenous groups, and cannot easily be separated from the ongoing effects of colonialism. Gagliardi also illuminates the issue of who has power to speak, or act, as Indigenous with reference to the struggles of Amazigh women in Morocco.Footnote12 Hobbs’ contribution also illuminates the legal and political entanglements in the ongoing treaty making process in Australia,Footnote13 while Alva-Arevalo reveals the tense and often violent Peruvian political situation in which Indigenous rights struggles unfold, and its impact on the potential for meaningful rights fulfilment for Indigenous communities, with particular reference to the principle of Free, Prior and Informed Consent (FPIC).Footnote14
Given the continuing challenges that face Indigenous communities, many authors contributing here suggest that it is time to push for new or complementary inter- and trans-national mechanisms to further implement and realise Indigenous rights. Burger asks whether it is time for a binding convention on the rights of Indigenous peoples in international law, which would build on, and potentially strengthen the UNDRIP in a number of key areas.Footnote15 Likewise, Giunta argues that a binding convention could resolve existing tensions among rights to culture, trade, and the environment, and bring added coherence to international law in these areas.Footnote16 Nagai, meanwhile, shows that international forest certification programmes can be used productively as part of a ‘business and human rights’ approach to protecting the rights of Indigenous peoples, focusing on Japan.Footnote17 Hobbs reflects on treaty making processes between Indigenous peoples and the Australian state, looking at the efforts in the state of Victoria.Footnote18 If successful these would, for the first time, bring into being a new inter-national relationship between Indigenous peoples and the colonial Australian state. Other new paths forward include ‘bio-cultural protocols’ adopted by Indigenous peoples and operationalised by the Nagoya Protocol. As Lennox and Gilbert argue, these provide important frameworks for implementing FPIC, as well as for achieving self-determined development.Footnote19
Of the multiple issues facing Indigenous peoples ‘on the ground’ the effects of extractive industries appear in this volume as one of the most pressing and serious. Alva-ArevaloFootnote20 Patzer,Footnote21 NagaiFootnote22 and YoungFootnote23 point to the ways in which extractive industries that exploit natural resources in ways that damage – often in irreparable fashion – the lands and territories of Indigenous communities present some of the biggest challenges facing these communities today. This is partly because of the scale of the impacts of these industries, and the irreparable harm they cause to the land both through the immediate physical despoliation of mining and logging, and the long-term environmental impacts that remain for generations to come, even if the physical marks fade.Footnote24 It is also partly because, as Giunta notes, rights to land, environment, resources and territories of Indigenous peoples cannot be separated from their existence as distinct peoples and their collective identity.Footnote25 In fact, as Indigenous peoples have argued, the land and environment cannot be separated from them as beings.Footnote26 Finally it is because – as Lennox and Gilbert set out in their contribution – the vast majority of these projects are undertaken under a paradigm of ‘development as aggression’.Footnote27 That is, dominant development paradigms impose views of what development ‘is’ that are paternalistic and which bear little relationship to the aspirations and world views of Indigenous peoples. Has the UNDRIP catalysed the concept and practice of self-determined development they ask?Footnote28
Climate change, to which so many extractive industries (and the dominant development paradigm itself) contribute, will impact on all the world's inhabitants, Indigenous or not, animal or plant. But it is clear that vulnerable human communities – including Indigenous communities – are likely to suffer the most from its impacts. In their contribution, Short and Raftopoulos argue that we can harness the principle of Free, Prior and informed Consent (FPIC) under the UNDRIP, and argue for a need to make the precautionary principle central to implementing FPIC, in order to protect the planet's biodiversity, and help create climate and human rights responsive policies in the face of climate change.Footnote29 Giunta also argues that, in the face of a changing climate, a reframing of land and resources rights in favour of environmental rights can better protect Indigenous peoples’ subsistence rights.Footnote30
The principle of FPIC enshrined in the UNDRIP is potentially powerful in giving Indigenous peoples a meaningful voice in when – or whether – developmental projects can be carried out on their lands and territories. It is clear that FPIC under the UNDRIP is stronger than it is in other legal contexts.Footnote31 For this reason, FPIC is a major topic of concern in the papers in this volume. Alva considers issues of FPIC in Peru, where the volatile situation on the ground, and the interplay between politics, domestic legislation, and the UNDRIP's standards demonstrate the difficulty of using the UNDRIP as a shield against extractive projects.Footnote32 Patzer also analyses the difficult questions raised by the disparities between FPIC under the UNDRIP, and as conceptualised by domestic courts, in particular in Canada as an ‘extractivist’ colonial state.Footnote33
Not far below the surface in a number of the papers is the question of what constitutes meaningful self-determination for Indigenous peoples in the wake of the UNDRIP. For Young, one of the risks for Indigenous peoples engaging in political and legal strategies through UNDRIP lies in the particular conception of the self that must be recognised. In Young's view, the UNDRIP does not succeed in overcoming the perils of recognition of Indigenous peoples within the frame of colonial and imperial law and power.Footnote34 Dorothee Cambou also tackles the question of self-determination head-on, asking what self-determination means in the context of the UNDRIP's explicit preservation of territorial integrity, and suggesting that we need to take a multidimensional approach to self-determination, which is democratic, and which protects autonomy and effective participation in decision making.Footnote35 Lennox and Gilbert examine what meaningful self-determination looks like in the space of development policy, where the concept of self-determined development, advanced by Indigenous peoples at the international level, including through litigation, is finding some realisation through tools like bio-cultural community protocols negotiated by local Indigenous communities. Other Indigenous peoples face particular situations of legal difficulty in realising their right to self-determination under the UNDRIP. Stein, for instance, examines the situation of the Bedouin in the West Bank, and asks how the UNDRIP might be made applicable to them in a situation of occupation, where the occupying power is prevented under international law from imposing a new legal regime over occupied territory, and where Indigenous populations cannot exercise self-determination.Footnote36
If Indigenous peoples, individuals and communities are to flourish, we need to accept that it must be on their own terms. The UNDRIP represents an undeniable step towards decolonising international law and the United Nations, recognising Indigenous peoples as relevant actors and subjects. But it is a step, and there are many more to be taken. While many of us have celebrated the achievement of the UNDRIP, and with good reason, the papers collected in this volume turn their faces to the future, so that invariably, the UNDRIP appears as a platform for departure, rather than a destination. Where might we go now, they ask, and how might we get there? Each offers its own answer, with the author cognisant that each answer is only a partial one. Together, the papers demonstrate that concerted action, on many fronts, is still needed.
To measure the impact of UNDRIP, including its use in the legal and policy spheres, we appeal for more research in this area. If UNDRIP is to serve as an instrument of international law, we need to document better how it is being applied in different contexts. This will help to build a dataset of state (and non-state actor) practice and influence norm socialisation on the many provisions of UNDRIP. We need to understand and engage with Indigenous worldviews and approaches to the UNDRIP, and to provide support for Indigenous struggles under it, which will take place over the next decades.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Dr Jessie Hohmann works on international law and human rights, with a special focus on the rights of Indigenous peoples and the right to housing. She is the lead editor of ‘The UN Declaration on the Rights of Indigenous Peoples: A Commentary’ (OUP 2018).
Notes
1. See Camilo Pérez-Bustillo and Jessie Hohmann, ‘Indigenous Rights to Development, Socio-Economic Rights, and Rights for Groups with Vulnerabilities: Articles 20–22, 24, and 44’, in The Declaration on the Rights of Indigenous Peoples: A Commentary, ed. Jessie Hohmann and Marc Weller (OUP, 2018) p 485–6.
2. See Felipe Gómez-Isa, ‘The UNDRIP: An Increasingly Robust Legal Parameter’, 3.
3. See particularly Gómez-Iza (n 2) and Federico Lenzerini, ‘Implementation of the UNDRIP Around the world: Achievements and Future Perspectives: The Outcome of the Work of the ILA Committee on the Implementation of the Rights of Indigenous Peoples’.
4. Lenzerini, (n 3) 5.
5. Ibid., 8.
6. Gómez-Iza (n 2).
7. Noelle Higgins, ‘Creating a Space for Indigenous Rights: The Universal Periodic Review as a Mechanism for Promoting the Rights of Indigenous Peoples’.
8. Corinne Lewis and Carl Soderbergh ‘The World Bank's New Environmental and Social Framework: Some Progress but Many Gaps regarding the Rights of Indigenous Peoples’.
9. Lucy Claridge, ‘The Approach to UNDRIP within the African Regional Human Rights System’.
10. Tahu Kukutai and John Taylor, eds., Indigenous Data Sovereignty: Toward an Agenda (ANU Press, 2016).
11. Stephen Young, ‘The Self Divided: The Problems of Indigenous Peoples’ Contradictory Self-determination Claims in Australia’.
12. Silvia Gagliardi, ‘Indigenous Peoples’ Rights in Morocco: Subaltern Narratives by Amazigh Women’.
13. Harry Hobbs, ‘Treaties and the United Nations Declaration on the Rights of Indigenous Peoples in Australia’.
14. Amelia Alva-Arevalo, ‘A Critical Evaluation of the Domestic Standards of the Right to Prior Consultation under the UNDRIP. Lessons from the Peruvian Case’.
15. Julian Burger, ‘After the Declaration: Next Steps for the Protection of Indigenous Peoples’ Rights’.
16. Adriana Giunta, ‘The Status of Environmental Rights under the UN Declaration on the Rights of Indigenous Peoples on the Occasion of Its Tenth Anniversary: Looking Back to Move Forward’.
17. Fumiya Nagai, ‘Implementing the Rights of Indigenous Peoples in Japan: Implications and Challenges of Forest Certification for the Ainu’.
18. Hobbs (n 13).
19. Jérémie Gilbert and Corinne Lennox, ‘The UNDRIP and Self-Determined Development: Analysing the Sustainable Development Goals (SDGs), Adjudication and Community Protocols’.
20. Alva-Arevalo, (n 14).
21. Jeremy Patzer ‘Indigenous Rights and the Legal Politics of Canadian Coloniality: What Is Happening to Free, Prior, and Informed Consent in Canada?’
22. Nagai (n 17).
23. Young (n 11).
24. See for example ‘Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya: Extractive Industries Operating Within or Near Indigenous Territories’ A/HRC/18/35 11 July 2011 and Jerry Mander and Victoria Tauli-Corpuz, Paradigm Wars: Indigenous Peoples’ Resistance to Globalization (Sierra Club Books 2006).
25. Giunta (n 16) 2.
26. See for example, in the context of Australia, Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge, 2015); C. F. Black, The Land Is the Source of the Law: A Dialogic Encounter with Indigenous Jurisprudence (Routledge, 2011). See also Mander and Tauli-Corpuz, (n 24).
27. Lennox and Gilbert (n 19) 1.
28. Ibid.
29. Malayna Raftopolous and Damien Short, ‘Implementing Free Prior and Informed Consent: The United Nations Declaration on the Rights of Indigenous Peoples, the Challenges of REDD+ and the Case for the Precautionary Principle’.
30. Giunta (n 16).
31. See Mauro Barelli, ‘Free, Prior, and Informed Consent in the UNDRIP: Articles 10, 19, 29(2) and 32(2)’, in Jessie Hohmann and Marc Weller, eds., (n 1).
32. Alva-Arevalo, (n 14).
33. Patzer, (n 21).
34. Young, (n 11).
35. Dorothée Cambou ‘The UNDRIP and the Legal Significance of Self-Determination: A Multidimensional Approach’.
36. Shlomit Stein, ‘Reflections on Indigenous Peoples Rights vis-à-vis the Law of Occupation’.