The United Nations Declaration on the Rights of Indigenous Peoples

A Contemporary Evaluation

Damien Short, Corinne Lennox, Julian Burger, Jessie Hohmann, Damien Short, Corinne Lennox, Julian Burger, Jessie Hohmann

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367619800
• eBook ISBN: 9781000258905
• Topic: Politics & International Relations
• Subtopic: Civil Law
• Index: Politics & International Relations

The development and adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was a huge success for the global indigenous movement. This book offers an insightful and nuanced contemporary evaluation of the progress and challenges that indigenous peoples have faced in securing the implementation of this new instrument, as well as its normative impact, at both the national and international levels.

The chapters in this collection offer a multi-disciplinary analysis of the UNDRIP as it enters the second decade since its adoption by the UN General Assembly in 2007. Following centuries of resistance by Indigenous peoples to state, and state sponsored, dispossession, violence, cultural appropriation, murder, neglect and derision, the UNDRIP is an achievement with deep implications in international law, policy and politics. 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.

This book was originally published as a special issue of The International Journal of Human Rights.

Introduction

Jessie Hohmann

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.¹ 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.² 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 rights³; as a ‘propulsive force’ – as Lenzerini puts it – in advancing the rights of Indigenous peoples under international law.⁴

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,⁵ while Gomez argues that the UNDRIP has become an unavoidable parameter of reference.⁶ 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,⁷ 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.⁸ Claridge illuminates one of the results of such activist struggles in Africa: the Okiek and Endorois cases under the African Regional Human Rights system.⁹ 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’¹⁰ 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.¹¹ 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.¹² Hobbs’ contribution also illuminates the legal and political entanglements in the ongoing treaty making process in Australia,¹³ 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).¹⁴

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 transnational 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.¹⁵ 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.¹⁶ 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.¹⁷ Hobbs reflects on treaty making processes between Indigenous peoples and the Australian state, looking at the efforts in the state of Victoria.¹⁸ 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.¹⁹

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-Arevalo²⁰ Patzer,²¹ Nagai²² and Young²³ 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.²⁴ 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.²⁵ In fact, as Indigenous peoples have argued, the land and environment cannot be separated from them as beings.²⁶ 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’.²⁷ 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?²⁸

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.²⁹ Giunta also argues that, in...

Table of contents

• Cover
• Title Page
• Copyright Page
• Table of Contents
• Citation Information
• Notes on Contributors
• 1 Introduction
• 2 The UNDRIP: an increasingly robust legal parameter
• 3 After the Declaration: next steps for the protection of indigenous peoples’ rights
• 4 The UNDRIP and the legal significance of the right of indigenous peoples to self-determination: a human rights approach with a multidimensional perspective
• 5 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
• 6 The World Bank’s new Environmental and Social Framework: some progress but many gaps regarding the rights of indigenous peoples
• 7 Implementing free prior and informed consent: the United Nations Declaration on the Rights of Indigenous Peoples (2007), the challenges of REDD+ and the case for the precautionary principle
• 8 Towards new development paradigms: the United Nations Declaration on the Rights of Indigenous Peoples as a tool to support self-determined development
• 9 Creating a space for indigenous rights: the Universal Periodic Review as a mechanism for promoting the rights of indigenous peoples
• 10 Looking back to move forward: the status of environmental rights under the UN Declaration on the Rights of Indigenous Peoples
• 11 Treaty making and the UN Declaration on the Rights of Indigenous Peoples: lessons from emerging negotiations in Australia
• 12 The self divided: the problems of contradictory claims to Indigenous peoples’ self-determination in Australia
• 13 Indigenous rights and the legal politics of Canadian coloniality: what is happening to free, prior and informed consent in Canada?
• 14 A critical evaluation of the domestic standards of the right to prior consultation under the UNDRIP: lessons from the Peruvian case
• 15 Implementing the rights of indigenous peoples in Japan: implications and challenges of forest certification for the Ainu
• 16 The approach to UNDRIP within the African Regional Human Rights System
• 17 Indigenous peoples’ rights in Morocco: subaltern narratives by Amazigh women
• 18 Reflections on indigenous peoples’ rights vis-à-vis the law of occupation
• Index