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December 2014, No. 3 Vol. LI, Conference Diplomacy

The participation of indigenous peoples at the United Nations has enabled them to work together peacefully and in partnership with States to advance their issues and rights.¡±
The World Conference on Indigenous Peoples, 22-23 September 2014, United Nations, New York.

On 22 September 2014, the first-ever World Conference on Indigenous Peoples (WCIP) was held at United Nations Headquarters in New York.?This was a two-day high-level plenary meeting of the General Assembly in which indigenous representatives from around the world met with Member States, United Nations System entities, non-governmental organizations (NGOs) and specialized agencies to share perspectives and best practices on the realization of their rights. The Conference resulted in an action-oriented outcome document¹ that reaffirmed the commitment to promote and advance indigenous peoples¡¯ inalienable rights and pursue the objectives of the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly on 13 September 2007.

There is no question that the presence and collaboration of indigenous peoples at the United Nations has gained significant prominence in the past few decades as a result of conference diplomacy. In an interview with UNTV, Nobel Peace Prize winner Rigoberta Mench¨² said that for indigenous peoples, events such as the WCIP are ¡°a sign of hope¡± towards ¡°full life and not just survival.¡±² When analyzed within the context of the history of the relation between indigenous peoples and the United Nations, Ms. Mench¨²¡¯s words are a powerful testimony to the goals and aspirations of the some 370 million indigenous peoples worldwide who yet today ¡°face systemic discrimination and exclusion from political and economic power.¡±³

For almost a century, indigenous peoples have been bringing their claims to the attention of the international community. Even before the establishment of the United Nations in 1945, indigenous peoples effectively advocated for their rights by appealing to the League of Nations. Earlier in the 1920s, Chief Deskaheh, from the Haudenosaunee Confederacy, and Maori religious leader T.W. Ratana travelled to Geneva to defend the right of their people to their lands and religious practices. Both were denied permission to speak, a decision that carried on centuries of discrimination and denial of rights to indigenous peoples under international law.⁴ The legacy of these early examples of unsuccessful international diplomacy would however be passed on to future generations of indigenous leaders who, starting from the late 1970s, travelled once again to the United Nations to advocate for indigenous rights and self-determination.⁵ In 1982 the Working Group on Indigenous Populations was established by the United Nations Economic and Social Council as part of the Sub-Commission on the Promotion and Protection of Human Rights (then known as the Sub-Commission on Prevention of Discrimination and Protection of Minorities). In 1985 the Working Group began drafting a Declaration on the Rights of Indigenous Peoples, which was completed in draft form in 1993. That year was also proclaimed the International Year of the World¡¯s Indigenous People. And in June of that same year, indigenous peoples participated at, and some even addressed, the Second World Conference on Human Rights in Vienna. It was at this conference that United Nations Member States recognized their responsibility in promoting and affirming the rights of indigenous peoples and made recommendations for the creation of a Permanent Forum on Indigenous Issues (UNPFII) within the United Nations structure. In 1994 the General Assembly of the United Nations launched the International Decade of the World¡¯s Indigenous People (1995-2004) with the intent to increase the United Nations commitment to promoting indigenous rights worldwide. This would expand into a Second Decade of the World¡¯s Indigenous Peoples (2005-2015) in order to further strengthen international cooperation in solving the problems affecting indigenous communities. More significantly, it highlighted the urgency to develop action-oriented programmes aimed at the improvement of indigenous peoples¡¯ lives in areas such as culture, education, health, human rights, the environment and social and economic development.⁶ Indigenous peoples are also the focus of the Post-2015 Development Agenda as it has been recognized that the implementation of a human rights-based approach to development should address the theme of indigenous peoples and inequalities.⁷

There are currently three main bodies within the United Nations System that deal specifically with indigenous issues: the United Nations Permanent Forum on Indigenous Issues, the Special Rapporteur on the rights of indigenous peoples, and the Expert Mechanism on the Rights of Indigenous Peoples.

UNPFII, which ultimately replaced the Working Group on Indigenous Populations, is a high-level and unique body that focuses on advice and coordination on indigenous issues and raises awareness about them. Composed of 16 members, 8 of whom are indigenous experts, the forum is mandated to ¡°address indigenous issues related to economic and social development, culture, the environment, education, health and human rights.¡±⁸

The Special Rapporteur, first appointed by the Commission on Human Rights in 2001, is mandated with promoting ¡°constructive agreements between States and indigenous peoples.¡± He or she ¡°reports on the overall human rights situations on indigenous peoples in selected countries,¡± and ¡°addresses specific cases of alleged violations of the rights of indigenous peoples¡± by communicating directly with the?Governments where such violations have occurred. He or she also conducts periodic studies on topics that relate specifically to ¡°the promotion and protection of the rights of indigenous peoples.¡±⁹

The Expert Mechanism on the Rights of Indigenous Peoples was established in 2007 as a subsidiary body to the Human Rights Council. Composed of five independent experts on the rights of indigenous peoples, one from each of the world¡¯s five geopolitical regions, the Expert Mechanism ¡°provides the Human Rights Council with thematic advice, in the form of studies and research, on the rights of indigenous peoples.¡± It may also suggest proposals for consideration and approval.¹⁰ While diverse in scopes and mandates, these three distinct bodies carry out their tasks in a coordinated manner and can be considered complementary. They meet annually to coordinate their activities and share information.¹¹

Altogether they testify to the unprecedented access that indigenous peoples have acquired in the United Nations human rights system these past few decades and the overall reconfiguration of human rights within such a system.

Yet, the most successful example of conference diplomacy in the advancement of indigenous rights remains, to date, the United Nations Declaration on the Rights of Indigenous Peoples (hereby the Declaration).¹² On 13 September 2007 the General Assembly adopted this landmark document, bringing to a close nearly twenty-five years of negotiations between States and indigenous peoples. Described as ¡°the most comprehensive instrument detailing the rights of indigenous peoples in international law and policy,¡±¹³ it has been widely celebrated as a groundbreaking achievement for indigenous peoples and the United Nations System as well as a momentous success for international law. As stated by the Secretary-General of the United Nations Ban Ki-moon, ¡°The Declaration is a visionary step towards addressing the human rights of indigenous peoples. It sets out a framework on which States can build or rebuild their relationships with indigenous peoples ...it provides a momentous opportunity for States and indigenous peoples to strengthen their relationships, promote reconciliation, and ensure that the past is not repeated.¡±¹⁴

Scholars have pointed out the uniqueness of the Declaration in that it is the first international law document written with the direct participation and collaboration of the right bearers themselves. More significantly, they have underscored the fundamental human rights that the Declaration affirms for Indigenous Peoples, including ¡°rights of equality, self-determination, property and cultural integrity.¡±¹⁵ All four countries that originally vetoed the Declaration (Australia, Canada, New Zealand and the United States of America) have now reversed their position and have fully committed themselves to advance the rights of indigenous peoples within the borders of their own jurisdictions, a clear indication of the worldwide consensus that the Declaration has received as a result of the efforts of a global indigenous movement.¹⁶ And to those who continue to doubt whether or not the Declaration, by its own nature, can be considered a legally binding text, international legal scholars and experts in indigenous rights respond that most of its provisions can be considered reflective of customary international law and, as such, States are obliged to honour them.¹⁷

In his 2012 Report on the Situation of Indigenous Peoples in the United States, former Special Rapporteur on the rights of indigenous peoples James Anaya argues that the Declaration is ¡°an extension of the commitment assumed by United Nations Member States¡ªincluding the United States¡ªto promote and respect human rights under the United Nations Charter, customary international law, and multilateral human rights treaties to which the United States is a Party.¡±¹⁸

No less significant has been the controversy surrounding the apparent dichotomy between individual and collective rights that the Declaration presents and the question of to what extent indigenous peoples, as stated in article 3 of the Declaration, do indeed ¡°have the right to self-determination¡± and can ¡°freely determine their political status and freely pursue their economic, social and cultural development.¡±¹⁹ Such ambiguities in the language of the Declaration have been passionately debated among scholars upon considering specifically the articles focusing on rights to lands, territories and resources (notably articles 25 and 26).

The provisions contained in the Declaration with regard to indigenous peoples¡¯ rights to their lands, critics have noted, are deeply entrenched in the language of (Western) individual rights and fail to address the complex philosophical and epistemological tenets underlying the indigenous relationship and connection to the earth. For indigenous peoples in the United States specifically, the language of the Declaration is a painful reminder of a long history of land dispossession sanctioned in the ¡°courts of the conqueror,¡± to use the words of Chief Justice John Marshall in the infamous Johnson v. M¡¯Intosh (1823), whose legacy continues on to the present.²⁰ In the draft expert commentary to the Declaration, written by the International Law Association Committee on the Rights on Indigenous Peoples in 2010, the authors argue for a ¡°robust¡± interpretation of Indigenous Peoples¡¯ rights to their land stating that ¡°indigenous peoples¡¯ ¡®lands, territories and resources¡¯ [in the text of the Declaration] must be interpreted broadly, consistently with their own understanding of ¡®the whole of the symbolic space in which a particular indigenous culture has developed¡¯ including not only the land but also the ¡®sacred landscape¡¯ that corresponds to their worldview.¡±²¹ The extent to which States and the international community are going to undertake such an educational process will become key in the implementation phase.

Both indigenous and non-indigenous advocates have pointed out the urgency for States to work with indigenous peoples in a spirit of partnership and respect towards interpreting and implementing the Declaration. Indigenous communities themselves have spearheaded educational programs by distributing user-friendly guides mindful of the tenet that, ¡°It is using the Declaration that breathes life into it!¡±²² ±¬ÁϹ«Éç community, on its own part, has also taken up the challenge to continue to work towards transforming the Declaration in its entirety into living law. As specifically mandated by the Declaration in article 42, the United Nations Permanent Forum on Indigenous Issues has the responsibility to contributing to the ¡°respect for and full application¡± of the Declaration, meaning that the Forum¡¯s task is to make sure that the provisions of the Declaration are implemented at the local and national level and, more significantly, that the Declaration be incorporated into national law and policy. Similarly, various United Nations treaty bodies, as reported in a statement issued by the chairperson of UNPFII, Grand Chief Ed John, on the occasion of the high-level commemoration of the fifth anniversary of the adoption of the Declaration, have invoked the rights articulated in the Declaration in their periodic reviews of States parties. Among such bodies, as indicated in the statement, are the Committee on the Rights of the Child (CRC) and the Committee on the Elimination of Racial Discrimination (CERD). The statement further indicates that ¡°States have also invoked the Declaration during the process of the Universal Periodic Review of the Human Rights Council.¡±²³

Yet, advocating and implementing the provisions of the Declaration is only the first step. I have argued elsewhere that the language of the Declaration contains the seeds for a significant reorientation of human rights discourse in a cross-cultural and cross-epistemological framework.²⁴ Recognizing the deep spiritual relationship that indigenous peoples have with their lands, a relationship shaped by notions of responsibility and reciprocal obligation, means recognizing an alternative world view to five hundred years of history based on conquest and dispossession of indigenous lands and cultures. As stated by Grand Chief John:

The elders remind us to ¡®take care of the land, and it will take care of you¡¯. But now these lands and the decisions about them lay somewhere else. These decisions to mine, log or dam have profound impacts on Indigenous peoples¡ªmuch of it negative. But the Declaration can be used as the foundation of each and every claim for the recognition and protection of the inextricable spiritual linkage between we, indigenous peoples, and our lands and the natural world.²⁵

Within this context, I have argued that the Declaration can be used as the foundation towards decolonizing international law and building a new architecture of human rights. Grand Chief John goes on to explain that the United Nations, ¡°this house of hope for all peoples is also the House of hope for Indigenous peoples. It is where Indigenous peoples come to tell their stories and their challenges, hoping that the international community will listen, will pay attention and act with compassion.¡±²⁶ It remains to be seen whether the stories that indigenous peoples keep telling at the United Nations ¡°house¡± will be heard and acted upon in order for them to enjoy the right to a full life as peoples under international law.??

Notes

1??? General Assembly resolution 69/2. Available from .

2??? UN/Indigenous Mench¨² Wrap, New York, 22 September 2014. Available from .

3??? State of the World¡¯s Indigenous Peoples (United Nations Publications, ST/ESA/328), (New York, United Nations, 2009), p. 1. Available from .

4??? In 1550, at the Council of the Indies, the supreme governing body of Spain¡¯s colonies in the Americas, it was decided that indigenous peoples could not be granted legal rights and be included in the judicial system of nation states. Guided by the principle of the Doctrine of Discovery, European countries legitimized the conquest and exploitation of non-Christian territories and peoples. For further reading on the historical context, see among others James Anaya, Indigenous Peoples in International Law (Oxford, Oxford University Press, 2004) and Sharon-Helen Venne, Our Elders Understand Our Rights: Evolving International Law Regarding Indigenous Peoples (Penticton, Theytus Books, 1998).

5??? Among the international bodies associated with the United Nations, the International Labour Organization (ILO) was the first and only organization to address indigenous issues. In 1957, it adopted Convention 107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries. Despite the assimilationist and paternalistic approach, this was the first global treaty to specifically address Indigenous Peoples¡¯ rights. Convention 107 was revised in 1989 to become Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries. International Labour Organization website: Indigenous and Tribal Peoples, available from .

6??? History of Indigenous Peoples and the International System. UNPFII website. Available from?.

7??? An e-discussion on the theme ¡°Indigenous Peoples and Inequalities¡± was co-moderated by the Secretariat of the UNPFII and UNICEF between 27 November and 19 December 2012. See . For the results of the discussion, see .?

8??? Leaflet no. 6: The Permanent Forum on Indigenous Issues, p.1. Available from .

9??? United Nations Human Rights: Office Of The High Commissioner Of Human rights. Available from .?Since June 2014, Ms. Victoria Tauli-Corpuz has assumed responsibilities as the current UN Special Rapporteur on the Rights Of Indigenous Peoples.

10? Office of the High Commissioner of Human Rights website. The Expert Mechanism on the Rights of Indigenous Peoples. Available from .

11? United Nations. Office of the High Commissioner for Human Rights, Indigenous Peoples and the United Nations Human Rights System, Fact Sheet No.9/Rev.2 (New York and Geneva, United Nations, 2013), p.17. Available from .

12? Available from .

13? Indigenous Peoples and the United Nations Human Rights System, p. 4.

14? Secretary General¡¯s Message, International Day of the World¡¯s Indigenous People, 9 August 2008. Available from?.

15? James Anaya, Report of the Special Rapporteur on the rights of indigenous peoples, 30 August 2012 (A/HRC/21/47/Add.1), p.19. Available from .

16? The Declaration was unanimously approved by a vote of 144 in favour, 11 abstentions and 4 against it. United Nations Permanent Forum on Indigenous Issues. Declaration on the Rights of Indigenous Peoples. Available from .

17? International Law Association, Sofia Conference (2012), Rights of Indigenous Peoples, Final Report, p.31. Available from .

18? Anaya, Report of the Special Rapporteur, p.19. For a detailed discussion on ¡°the synergy¡± between the Declaration and international human rights law, see Walter Echo-Hawk, In the Light of Justice: The Rise of Human Rights in Native America and the UN Declaration on the Rights of Indigenous Peoples (Golden, Colorado, Fulcrum Publishing, 2013), p. 91-94.

19? United Nations Declaration on the Rights of Indigenous Peoples, p. 3 ¨C 4. Among other scholarly works on the Declaration see Anaya, Indigenous Peoples in International Law, p.36; see also Alexandra Xanthaki, Indigenous Rights and the United Nations Standards: Self-Determination, Culture and Land (Cambridge, Cambridge University Press, 2007), p. 29.

20? Johnson v. M¡¯Intosh was the first of three 19th century landmark United States Supreme Court cases that would define federal Indian law. In Johnson the court held that ¡°conquest gives a title [to Indian land]¡± and that ¡°however extravagant the pretension of converting the discovery of an inhabited continent into conquest may appear it becomes the law of the land and cannot be questioned.¡± See Echo-Hawk, In the Light of Justice, p. 13.

21? Interim Report to the 74th International Law Association Conference, The Hague, the Netherlands, 2010, p.21. Available from?.?

22? The Community Guide to the UN Declaration on the Rights of Indigenous Peoples (Sydney, Australian Human Rights Commission, 2010), p.12.

23? Statement by UNPFII Chairperson Grand Chief Ed John, High-level Event to Commemorate the 5th anniversary of the adoption of the UN Declaration On The Rights Of Indigenous Peoples, 17 May 2012. Available from .

24? Elvira Pulitano,¡° ¡®The Right to Enjoy all Human Rights¡¯: the UN Declaration On The Rights Of Indigenous Peoples and the Potential for Decolonial Cosmopolitanism,¡± forthcoming in The World, The Text, and the Indian: Global Dimensions of Native American Literature, Scott Lyons, ed. (New York, SUNY Press).

25?? Statement by UNPFII Chairperson Grand Chief Ed John.

26?? Ibid.