After the Declaration: next steps for the protection of indigenous peoples’ rights

ABSTRACT

The article presents arguments in favour of beginning the process of elaborating a convention on the rights of indigenous peoples.

KEYWORDS:

• Human rights
• indigenous peoples
• Declaration on indigenous peoples rights

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Julian Burger is a Fellow at the Human Rights Consortium, School of Advanced Study, University of London and Visiting Professor at the Human Rights Centre, University of Essex. For more than 20 years he headed the indigenous peoples and minorities programme at the Office of the United Nations High Commissioner for Human Rights and was responsible for the negotiations leading up to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples. The author expresses appreciation to Dr Claire Charters, Dr Andrew Ereuti and Dr Corinne Lennox for their valuable comments and suggestions.

Notes

1. Certain states recognise that some of the core rights of the UNDRIP are binding since they reflect existing human rights law but only one state, Bolivia, has formally integrated the Declaration into its legal framework.

2. There is an argument that UNDRIP's being binding is a distraction as it is its legitimacy that will determine implementation whether binding as a matter of formal law or not (comment by Dr Claire Charters). See also Luis Rodriguez-Pinero Royo, ‘“Where Appropriate”: Monitoring/Implementing of Indigenous Peoples’ Rights Under the Declaration’, in Making the Declaration Work, eds. C. Charters and R. Stavenhagen (Copenhagen: IWGIA, 2009).

3. The American Declaration on the Rights of Indigenous Peoples was adopted by the Organization of American States on 15 June 2016. It is available at https://www.oas.org/en/sare/documents/DecAmIND.pdf. In the case of Colombia, there are several occasions where the state exempts itself from articles. This is notable in the case of article XXIX (4) covering consultation and consent. See footnote 4 to the Declaration.

4. See, for example, the arguments put forward by the Special Rapporteur James Anaya in his report to the Human Rights Council (A/HRC/9/9) especially paras. 40–1.

5. This appears implicit in the report of the Expert Mechanism on the Rights of Indigenous Peoples on ‘Ten Years of Implementation of the UN Declaration on the Rights of indigenous Peoples: good practices and lessons learned’, A/HRC/36/56, paras 9 and 10. For example, in paragraph 10 of the report it is stated that ‘ … many of the rights contained in the Declaration are already guaranteed by major international human rights instruments and have been given significant normative strength, including through the work of the treaty bodies, regional and national courts.’

6. See ILO ratification of conventions available at http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO:11300:P11300_INSTRUMENT_ID:312314:NO. Luxembourg has signed the Convention but it will not enter into force until June 2019.

7. See paragraph 33 of the Outcome document of the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples, A/69/L.1. See also General Assembly resolution A/C.3/70/L.26/Rev.1, paragraph 19.

8. See, for example, the compilation of comments regarding the participation of indigenous peoples in Annex 1 to General Assembly report A/70/990, paragraph 2.

9. Author's observations.

10. An extreme manifestation of President Duterte efforts to delegitimize human rights defenders was the inclusion of the Special Rapporteur Victoria Tauli-Corpuz on a list of terrorist suspects. See The Guardian: https://www.theguardian.com/world/2018/mar/09/philippines-lists-un-special-rapporteur-on-terrorist-hit-list-rodrigo-duterte.

11. Global Witness, ‘Defenders of the Earth: Global Killings of Land and Environment Defenders in 2016’. See also https://www.globalwitness.org/en/blog/new-data-reveals-197-land-and-environmental-defenders-murdered-2017/.

12. For example, in 2017 President Temer's government proposed freezing indigenous land demarcations thereby stopping work on some 700 land claims. See World Resources Institute, ‘Land Ruling Threatens Brazil's Indigenous Peoples and Climate Commitments’, http://www.wri.org/blog/2017/09/opinion-land-ruling-threatens-brazils-indigenous-peoples-and-its-climate-commitments.

13. In 2011 indigenous peoples living in the TIPNIS national Park protested against the building of a highway through their territory. This led to violent confrontations with the government of Evo Morales. TIPNIS (Isiboro Secure National Park and Indigenous Territory) is in the lowlands region of the country and is home to over 12,000 indigenous people. The 2014 Ley de Mineria y Metalurgia, No.535, articles 207–216 considerably weaken indigenous communities faced with mining activities on their lands, including by criminalising opposition to mining operations and applying penalties for illegal occupation of mine sites. Article 208, for example, referring to the UNDRIP explicitly states that indigenous peoples have no right of veto – ‘no otorgan a los sujetos de la consulta previa el derecho a veto a la ejecución de las actividades de la explotación minera’. (Author's translation: ‘does not authorize the beneficiaries of prior consultation the right of veto with regard to the implementation of mining exploitation activities’).

14. Although the Human Rights Council's Universal Periodic Review is being effectively used by some indigenous delegations it does not constitute either a public space for denunciations of human rights abuses or a monitoring mechanism.

15. Expert Group Meeting, ‘Dialogue on an Optional Protocol to the United Nations Declaration on the Rights of Indigenous Peoples’, January 28–29, 2015.

16. Expert Group Meeting on an optional protocol to the United Nations Declaration on the Rights of Indigenous Peoples, January 27–29, 2015, paper submitted by James Anaya, PFII/2015/EGM.

17. Ibid, paper submitted by Suhas Chakma, PFII, 2015/EGM.

18. HRC resolution 33/25 of 30 September 2016.

19. Technical reviews are generally undertaken by the secretariat of the United Nations with a view to ensuring conformity with existing norms and instruments, and in terms of language, style and structure. They also provide an opportunity for a neutral body to identify areas of duplication or omission.

20. E/CN.4/Sub.2/1994/2/Add.1.

21. The mandate reads:

By resolution 1995/32 of 3 March 1995, the Commission on Human Rights decided to establish an open-ended inter-sessional working group of the Commission on Human Rights with the sole purpose of elaborating a draft declaration, considering the draft contained in the annex to resolution 1994/45 of 26 August 1994 of the Sub-Commission on Prevention of Discrimination and Protection of Minorities (now the Sub-Commission on the Promotion and Protection of Human Rights) entitled “Draft United Nations declaration on the rights of indigenous peoples” for consideration and adoption by the General Assembly within the International Decade of the World's Indigenous People.

22. Article 44 reads: ‘All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals.’ For an interesting feminist critique of the Declaration see Raunna Kuokkanen, ‘Indigenous Women's Rights in International Law: Challenges of the UN Declaration on the Rights of Indigenous Peoples’, in Handbook of indigenous peoples rights, eds. C. Lennox and D. Short (Routledge, 2016), 129–45.

23. Author's observation. The no change position was a central negotiating strategy agreed upon in the indigenous caucuses that prepared a single indigenous position for the plenary meetings.

24. Conference on Environment and Development, Rio de Janeiro, June 1992, Agenda 21, Chapter 26 and World Conference on Human Rights, Vienna, June 1993.

25. Ad-hoc open-ended working group on article 8 (j) and related articles. For further information on indigenous peoples’ participation see https://www.cbd.int/traditional/participation.shtml.

26. ‘Toward a Global Baseline of Carbon Storage in Collective Lands’, Rights and Resources, November 2016. ‘Tropical forest carbon in indigenous territories: a global analysis’, a report prepared for UNFCCC COP21, December 2015, by Alianza de Mezoamericana de Pueblos y Bosques and others. et al., December 2015. See also Paola Totaro, ‘Indigenous peoples best custodians of threatened forests’, Reuters Foundation at https://www.reuters.com/article/us-forests-landrights-conference-idUSKBN16S2QA.

27. Article 2 of the Convention for the Safeguarding of the Intangible Cultural Heritage.

28. Article 14, for example, states:

Each State Party shall endeavour, by all appropriate means, to: (a) ensure recognition of, respect for, and enhancement of the intangible cultural heritage in society, in particular through: (i) educational, awareness-raising and information programmes, aimed at the general public, in particular young people; (ii) specific educational and training programmes within the communities and groups concerned; (iii) capacity-building activities for the safeguarding of the intangible cultural heritage, in particular management and scientific research; and (iv)non-formal means of transmitting knowledge.

Article 15 invites states to ‘ … endeavour to ensure the widest possible participation of communities, groups and, where appropriate, individuals that create, maintain and transmit such heritage, and to involve them actively in its management.’

29. Paris Agreement, Article 7, para 5.

30. The United Nations Guiding Principles on Business and Human Rights provides a voluntary framework for businesses.

31. Ley del Derecho a la Consulta Previa a los Pueblos Indigenas u Originarios, reconocido en el Convenio 169 de la Organizacion Internacional del Trabajo (OIT).

32. Ibid, article 15.

33. See note 6.

34. International Finance Corporation, Performance Standard, para. 12. The same paragraph notes that consent may be considered granted even if some individuals or groups may not agree. In practice, many development banks apply the IFC Performance Standards as conditions of lending.

35. European Bank for Reconstruction and Development, Performance Requirement 7 on indigenous peoples, May 2014, para 29.

36. See for example the report of the EGM on indigenous peoples: development with culture and development, January 2010, E/C.19/2010/14

37. The concept of ‘buen vivir’ as a fundamental objective of the state has been incorporated into the Constitutions of Ecuador and Bolivia.

38. E/CN.4/Sub.2/1983/21/Add.8 paras 627–8.

39. The American Declaration on the Rights of Indigenous Peoples includes issues that were not taken up by the UNDRIP, such as the rights of indigenous peoples in voluntary isolation. The Inter-American Court of Human Rights and the African Commission and Court on Human and Peoples Rights have adopted decisions that greatly advance understanding of indigenous peoples’ rights.

40. Bolivia, for example, has incorporated the UNDRIP into its legislation.