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

ABSTRACT

The ILA Committee on the Implementation of the Rights of Indigenous Peoples has the purpose of ascertaining the level of implementation of the main legal standards enshrined in the UNDRIP. The Committee's work has so far been based on case studies assessing the degree of implementation of international legal rules concerning the rights of indigenous peoples in specific countries or regions of the world. At the time of this writing, the partial results of the work of the Committee evidence a global reality in the context of which the existence and binding character in principle of international legal standards concerning the rights of indigenous peoples are generally accepted and recognised by States, especially at the level of the legislature and the judiciary. On the other hand, however, in many countries the effective degree of practical implementation and effective realisation of the rights of indigenous peoples is still rather unsatisfactory. This is a crucial aspect, as the phase of implementation is decisive in order to ensure effectiveness of human rights – including indigenous peoples’ rights. It is therefore imperative that the level of effective implementation of the international legal standards concerning indigenous peoples’ rights is increased in many areas of the world.

KEYWORDS:

• United Nations Declaration on the rights of indigenous peoples
• ILA Committee on the Implementation of the Rights of Indigenous Peoples
• implementation
• customary international law
• indigenous peoples

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Federico Lenzerini Professor of International Law and Human Rights, University of Siena (Italy). Rapporteur of the International Law Association's Committee on the Implementation of the Rights of Indigenous Peoples. Email: [email protected]

Notes

1. For the full list of members of the Committee see http://www.ila-hq.org/index.php/committees (accessed 30 November 2017).

2. Most case studies are also available at <http://www.ila-hq.org/index.php/committees>. The decision of whether or not they should be uploaded on the Committee's webpage is left to their respective authors.

3. Also available at <http://www.ila-hq.org/index.php/committees>.

4. See Grand River Enterprises Six Nations, LTD., et Al. v. United States of America, Award of 12 January 2011, available at <https://www.italaw.com/sites/default/files/case-documents/ita0384.pdf> (accessed 30 November 2017), para. 210.

5. See, respectively, paragraphs 4, 5, 7 and 10 of the Resolution.

6. See Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Judgment of 27 June 1986, I.C.J. Reports 1986, p. 14, para. 186 (emphasis added).

7. See Case of the Yakye Axa Indigenous Community v. Paraguay, Series C No. 125, Judgment of 17 June 2005 (Merits, Reparations and Costs).

8. See Case of the Yakye Axa Indigenous Community v. Paraguay, para. 147.

9. See Case of the Yakye Axa Indigenous Community v. Paraguay, para. 149.

10. See Case of the Yakye Axa Indigenous Community v. Paraguay, para. 149.

11. See Case of the Yakye Axa Indigenous Community v. Paraguay, para. 149.

12. See Economic and Social Council, Report of the Commission on Human Rights (E/3616/Rev. l), 18th Session, 19 March–14 April 1962, para. 105.

13. See Federico Lenzerini, ‘Rights of Indigenous Peoples under Customary International Law’, in International Law Association, The Hague Conference (2010), Rights Of Indigenous Peoples, Interim Report, http://www.ila-hq.org/index.php/committees, p. 43 ff.; ‘Rights of Indigenous Peoples under Customary International Law’, in International Law Association, Sofia Conference (2012), Rights Of Indigenous Peoples, Final Report, ibid., p. 28 f.

14. In particular, the UNDRIP is ‘noted’ in the twenty-sixth recital of the Preamble of the 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity, available at <https://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf> (accessed 16 January 2018).

15. See General Comment No. 21, ‘Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights)’, UN Doc. E/C.12/GC/21, 21 December 2009, para. 7.

16. See General Comment No. 11 (2009), ‘Indigenous children and their rights under the Convention’, UN Doc. CRC/C/GC/11, January 2009, para. 10.

17. 1577 UNTS 3.

18. See <https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en> (accessed 26 January 2018).

19. See General Comment No. 11, para. 82.

20. See, inter alia, Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, Series C No. 245, Judgment of 27 June 2012 (Merits and reparations), para. 166 and footnote 217.

21. ILO Convention (No. 169) concerning Indigenous and Tribal People in Independent Countries, 27 June 1989, 1650 UNTS 383.

22. See Case of the Saramaka People v. Suriname, Series C No. 172, Judgment of 28 November 2007 (Preliminary Objections, Merits, Reparations, and Costs), paras. 131 and 138; Comunidad Garífuna Triunfo De La Cruz Y Sus Miembros Vs. Honduras, Series C No. 305, Judgment of 8 October 2015 (Merits, Reparations, and Costs), para. 171; Case of the Kaliña and Lokono Peoples v. Suriname, Series C No. 309, Judgment of 25 November 2015 (Merits, Reparations and Costs), para. 296 (footnote 335).

23. See Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, Series C No. 245, Judgment of 27 June 2012 (Merits and Reparations), paras. 160, 166, 180 and 187; Case of the Kaliña and Lokono Peoples v. Suriname, paras. 196 and 202.

24. See Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, para. 215.

25. Case of Norín Catrimán et Al. (Leaders, Members and Activist of the Mapuche Indigenous People) v. Chile, Series C No. 279, Judgment of 29 May 2014, para. 203; Caso Miembros de la Aldea Chichupac y Comunidades Vecinas del Municipio de Rabinal vs. Guatemala, Series C No. 328, Judgment of 30 November 2016 (Preliminary Objections, Merits, Reparations, and Costs), para. 319 (footnote 369).

26. See Case of the Kaliña and Lokono Peoples v. Suriname, paras. 221 and 251 (footnote 298)

27. See Caso de los Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y Sus Miembros vs. Panamá, Series C No. 284, Judgment of 14 October 2014 (Preliminary Objections, Merits, Reparations, and Costs), para. 118; Comunidad Garífuna Triunfo De La Cruz Y Sus Miembros Vs. Honduras, paras. 103 and 136; Case of the Kaliña and Lokono Peoples v. Suriname, paras. 139 (footnote 178) and 180.

28. See CCJ Appeal No BZCV2014/002, BZ Civil Appeal No. 27 of 2010, The Maya Leaders Alliance v. The Attorney General of Belize, 30 October 2015, [2015] CCJ 15 (AJ), para. 53.

29. See The Maya Leaders Alliance v. The Attorney General of Belize, para. 54.

30. See Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, Communication No. 276/03, 25 November 2009, available at <http://www.achpr.org/files/sessions/46th/comunications/276.03/achpr46_276_03_eng.pdf> (accessed 15 January 2018), para. 204.

31. 21 ILM 58 (1982).

32. See Application No. 006/2012, African Commission on Human and Peoples’ Rights v. Republic of Kenya, Judgment of 26 May 2017, available at <http://en.african-court.org/images/Cases/Judgment/Application%20006-2012%20-%20African%20Commission%20on%20Human%20and%20Peoples%E2%80%99%20Rights%20v.%20the%20Republic%20of%20Kenya..pdf> (accessed 15 December 2017), paras. 125–126.

33. Available in Spanish at <https://www.lexivox.org/norms/BO-L-3760.xhtml> (accessed 16 January 2018).

34. See ‘Protecting indigenous peoples rights in Africa: The Congolese 2011 Law’, available at <http://www1.chr.up.ac.za/chr_old/indigenous/documents/Congo%20Brazz/Legislation/Comment%20on%20the%20Congolese%20legislation%20on%20Indigenous%20Peoples.doc> (accessed 17 January 2018).

35. See ‘Statement of Ms. Victoria Tauli-Corpuz’, United Nations Special Rapporteur on the Rights of Indigenous Peoples, to the Expert Mechanism on the Rights of Indigenous Peoples, Tenth Session, 12 July 2017, Tenth Anniversary of the United Nations Declaration on the Rights of Indigenous Peoples, available at <http://unsr.vtaulicorpuz.org/site/index.php/statements/190-emrip-undrip> (accessed 17 January 2018).

36. See Claims 171 and 172 of 2007, Aurelio Cal et al v. Attorney General of Belize, 18 October 2007, available at <http://www.law2.arizona.edu/depts/iplp/outreach/maya_belize/documents/ClaimsNos171and172of2007.pdf> (accessed 16 January 2018), para. 132

37. See Claim No. 394 of 2013, Sarstoon Temash Institute for Indigenous Management et. Al. v. The Attorney General of Belize et Al., 3 April 2014, available at <https://www.elaw.org/system/files/bz.claim394of2013.satiim.pdf> (accessed 16 January 2018), para. 19.

38. See ‘Statement of Ms. Victoria Tauli-Corpuz’, note 35 above.

39. See Court of Appeal of Valdivia, Decision/Rol No. 243-2010, 4 August 2010, Considerando No.4, described by Alexandra Tomaselli and Rainer Hofmann, ‘Case study. Land and water rights in Chile’, prepared for the ILA Committee on the Implementation of the Rights of Indigenous Peoples, available at <http://www.ila-hq.org/index.php/committees> (accessed 16 January 2017), p. 9.

40. See First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (Representing the Minister of Indian and Northern Affairs Canada), 26 January 2016, 2016 CHRT 2, available at <https://fncaringsociety.com/sites/default/files/2016%20CHRT%20Ruling%20on%20FN%20child%20welfare%20case.pdf> (accessed 15 January 2018), para. 452.

41. See First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (Representing the Minister of Indian and Northern Affairs Canada), para. 453.

42. See First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (Representing the Minister of Indian and Northern Affairs Canada), para. 455.

43. See Takanobu Kiriyama and Yuko Osakada, ‘The Ainu in Japan – The Ainu and International Law’, Report prepared for the ILA Committee on the Implementation of the Rights of Indigenous Peoples, Revised version submitted on 14 November 2017, available at <http://www.ila-hq.org/index.php/committees> (accessed 15 January 2017), p. 5.

44. See Kiriyama and Osakada, ‘The Ainu in Japan – The Ainu and International Law’, p. 5.

45. For more details see Kiriyama and Osakada, ‘The Ainu in Japan – The Ainu and International Law’, 6–8.

46. See Federica Prina and Alexandra Tomaselli, ‘Land and fishing rights of indigenous peoples in Russia’, Report prepared for the ILA Committee on the Implementation of the Rights of Indigenous Peoples, p. 22, http://www.ila-hq.org/index.php/committees (accessed January 16, 2017).

47. See Prina and Tomaselli, ‘Land and fishing rights of indigenous peoples in Russia’, 20–21.

48. See ‘Statement of Ms. Victoria Tauli-Corpuz’, note 35 above.

49. See ‘Indigenous leaders at UN headquarters to discuss landmark rights declaration’, cbcnews, 24 April 2017, available at <http://www.cbc.ca/news/indigenous/undrip-one-year-since-implementing-1.4083450> (accessed 26 January 2018).

50. See ‘Indigenous leaders at UN headquarters to discuss landmark rights declaration’.