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Part II Subsidiary Human Rights Organs, 8 The Permanent Forum on Indigenous Issues

Madeleine Heyward

From: The United Nations and Human Rights: A Critical Appraisal (2nd Edition)

Edited By: Frédéric Mégret, Philip Alston

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved. Subscriber: null; date: 16 May 2022

Subject(s):
Indigenous peoples

(p. 291) The Permanent Forum on Indigenous Issues

8.1  Introduction

The Permanent Forum on Indigenous Issues (PFII) is the first permanent United Nations body in which state and non-state nominees hold equal status. It was established to fill a significant gap in the UN’s work with respect to indigenous peoples, which the Secretary General described as ‘the striking absence of a mechanism to ensure regular exchange of information among the concerned and interested parties—Governments, the United Nations system and indigenous peoples—on an ongoing basis’, and the lack of ‘mechanisms in the United Nations organizations which give the nominated representative of indigenous organizations or peoples an opportunity to provide expert advice or take part in decision-making’.1

Conceived in the late 1980s within the UN Working Group on Indigenous Populations (WGIP)—a subsidiary body of the Commission on Human Rights’ Sub-Commission on the Prevention of Discrimination and the Protection of Minorities with broad informal indigenous participation2—the idea of a permanent UN body with indigenous membership was taken up more broadly in 1993 by the World Conference on Human Rights and then the UN General Assembly.3 A review of existing mechanisms by the Secretary General concluded definitively that existing arrangements were not adequate to accommodate ‘full and effective involvement of indigenous people in the planning, implementation and evaluation of projects affecting them’.4 Following a series of workshops and meetings of an intersessional working group of the Commission on Human Rights, it was determined that the new mechanism would take the form of an advisory body to the Economic and Social Council (ECOSOC).5

The decision to place the PFII directly under ECOSOC allowed it a broad scope of work, not limited to the human rights machinery in Geneva. Its mandate is ‘to discuss (p. 292) indigenous issues within the mandate of the Council relating to economic and social development, culture, the environment, education, health and human rights’.6 In fulfilling this role, the Forum is to provide expert advice and recommendations on indigenous issues to ECOSOC, and, through ECOSOC, to UN programmes, funds and agencies; raise awareness and promote the integration and coordination of activities related to indigenous issues within the UN system; and prepare and disseminate information on indigenous issues.

The PFII is primarily a product of increasing recognition within the UN system of the need for more focused attention to protect and promote indigenous peoples’ rights—full accommodation of indigenous rights within existing human rights mechanisms and instruments ‘remains elusive’, and indigenous individuals and communities across the world continue to experience significant discrimination and social and economic disadvantage.7 Since the adoption in 2007 of the UN Declaration on the Rights of Indigenous Peoples, the first comprehensive and generally applicable international instrument on indigenous rights,8 the PFII has taken an increasingly rights-based approach across its mandate. The full picture of the impact of this practice is still emerging. In the preliminary analysis that follows, consideration is given to the PFII’s institutional landscape and its strengths and weaknesses as a protector and promoter of human rights, with a focus on implementation of the Declaration.

8.2  A ‘home’ for indigenous peoples at the UN

The first UN forum with significant indigenous participation was the WGIP—a small group of five independent ‘experts’ established by the Commission on Human Rights’ Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, with a mandate to ‘review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations’ and ‘give special attention to the evolution of standards concerning the rights of indigenous populations’.9 To fulfil this mandate, the WGIP took the unprecedented step of allowing representatives of indigenous peoples and organizations not fulfilling the formal requirements of ‘consultative status’ with ECOSOC to participate actively in its discussions. As described by Elsa Stamatopoulou, who became the first Chief of the PFII Secretariat in 2003, the inclusive working method of the WGIP was never formalized in writing, but ‘received the acquiescence of the parent bodies of the Working Group’—the Sub-Commission, the Commission on Human Rights, and ECOSOC—and was followed thereafter.10 With this ‘open door policy’, participation in the WGIP’s sessions (p. 293) grew from around 100 delegates at the first session in 1982, to 790—including representatives of 267 indigenous peoples’ and human rights organizations—when it completed the draft Declaration on the Rights of Indigenous Peoples in 1993.11

The decision in 2000 to establish the PFII arose through the internationalization of the indigenous rights movement, catalysed by the WGIP, and was considered a ‘revolutionary change’ in the UN’s institutional architecture.12 The Forum comprises sixteen independent experts—eight nominated by States and elected by ECOSOC, and eight appointed by the President of ECOSOC on the basis of broad consultations with indigenous organizations.13 The membership is geographically representative,14 and reflects a range of backgrounds and experiences across the government sector, community organizations and academia, with members serving in their personal capacities for three-year terms. The PFII’s indigenous representation and its position as a permanent body reporting directly to a core UN organ (rather than, like the WGIP, a working group of a sub-commission of a subsidiary body of that organ) were considered by many to significantly elevate indigenous issues within the UN hierarchy. At its opening session in 2002, then Secretary General Kofi Annan described the PFII as a ‘home’ for indigenous peoples at the UN.15

The Forum meets for two weeks each year at UN Headquarters in New York. It has continued the open working method adopted by the WGIP—attracting many hundreds of indigenous participants from around the world, in addition to representatives of States, UN bodies, and intergovernmental and non-governmental organizations in consultative status with ECOSOC. Each annual session produces a report and recommendations which are submitted to ECOSOC and distributed to other UN organs, funds, programmes and agencies. The Forum’s annual sessions are provided for within the regular budget of the UN and supported by a Permanent Secretariat at UN Headquarters.16

Alongside the PFII, work on the rights of indigenous peoples has continued through the UN’s dedicated human rights institutions. In 2001, the Commission on Human Rights responded to ‘the urgent need to recognise, promote and protect more effectively the human rights and fundamental freedoms of indigenous people’ by appointing, as part of its system of thematic ‘special procedures’, the Special Rapporteur on the (p. 294) Situation of Human Rights and Fundamental Freedoms of Indigenous People.17 The Special Rapporteur’s mandate, which has since been extended, includes: promoting the Declaration on the Rights of Indigenous Peoples and other relevant international instruments; exchanging information on alleged violations of the human rights and fundamental freedoms of indigenous people; formulating recommendations and proposals on measures and activities to prevent and remedy violations; and examining ways and means of overcoming obstacles to full and effective protection.18 She is specifically requested to work in close cooperation with the PFII and to participate in its annual session; as well as to cooperate with other special procedures and subsidiary organs of the Human Rights Council, relevant UN bodies, treaty bodies and human rights regional organizations; and to develop a regular cooperative dialogue with all relevant actors.

Until 2007, when it was dissolved following the abolition of the Commission on Human Rights and the establishment of the Human Rights Council,19 the WGIP continued to hold annual meetings in Geneva to discuss indigenous peoples’ human rights issues. Arguments for its discontinuance in view of its overlap with the mandate of the PFII were rejected by many indigenous groups, who argued that it should continue to play a distinct role as ‘an expert body nominated by governments with a human rights mandate’, in contrast to the much broader role and composition of the PFII.20 When the WGIP was dissolved, indigenous organizations called for the creation of a new body under the Human Rights Council to continue its work.21 Proposed functions included reviewing and evaluating best practices and obstacles faced in the promotion and protection of indigenous peoples’ rights, advising on measures to ensure implementation of indigenous peoples’ rights, undertaking studies and research, and providing information for the Universal Periodic Review mechanism.22 A number of States expressed concerns regarding the potential for a new body to duplicate the work of the PFII and Special Rapporteur. The Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) was established as a compromise body with a very limited mandate: ‘to provide the Council with thematic expertise on the rights of indigenous peoples in the manner and form requested by the Council’, focusing on ‘studies and research-based advice’.23 After nearly ten years, the Council recently amended the EMRIP’s mandate to a broader remit (covering many of the functions initially proposed), including to provide expertise and advice on the rights of indigenous peoples as set out in the UN Declaration, and to ‘assist Member States, upon request, in achieving the ends of the Declaration through the promotion, protection and fulfilment of the rights (p. 295) of indigenous peoples’.24 Like the WGIP, the EMRIP initially comprised five state-nominated independent experts, now enlarged to seven (one from each of the seven indigenous sociocultural regions). It holds an annual five-day meeting, in which states and a range of non-state observers participate, and to which the Special Rapporteur and a member of the PFII are required to be invited ‘to enhance cooperation and avoid duplicating the work’.

8.3  ‘A new function’: the Declaration on the Rights of Indigenous Peoples

With the adoption of the Declaration on the Rights of Indigenous Peoples in 2007, a new dimension was added to the PFII’s work and the overlapping institutional mandates for promotion and protection of indigenous peoples’ rights. The General Assembly’s decision to adopt the Declaration, which represented the culmination of over two decades of negotiations, was hailed as a turning point: a multilateral commitment to ensuring the enjoyment by indigenous peoples of the universal human rights recognized as belonging to all people, and a recognition of the existence of rights unique to indigenous peoples.25 Article 1 of the Declaration notes indigenous peoples’ preexisting right ‘to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognised in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law’. The forty-five articles that follow blend existing human rights standards with elaborations and additions specific to indigenous peoples, and directives to states and UN bodies. Together, these provisions are proclaimed to set ‘the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world’.26

As a non-binding instrument, the Declaration on the Rights of Indigenous Peoples does not assign formal responsibility for overseeing implementation of its provisions to any particular institution. Article 42 states:

The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialised agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.

In the absence of a dedicated implementation mechanism, each of the three specialized UN mandate-holders embraced functions relating to the Declaration as a core aspect of (p. 296) its mandate. The Special Rapporteur, whose mandate from the Human Rights Council specifically includes promotion of the Declaration, gave significant consideration to the legal character of the Declaration and mechanisms for its operationalization,27 and has referred to the Declaration extensively in country reports and communications with governments. The communications summarized in the Special Rapporteur’s 2011 report to the Human Rights Council, for example, use the Declaration as ‘the principal normative frame of reference’ for situations from imprisonment of Mapuche in Chile to the treatment of unrecognized Bedouin villages in Israel, the effects of a palm oil plantation in Malaysia, artificial snowmaking in the United States, hydroelectric projects in Costa Rica and Ethiopia, and mining in Guatemala and Mexico.28 The EMRIP’s Chairperson-Rapporteur also identified the Declaration as a key part of the Mechanism’s ‘normative framework’, stating that it had ‘an important role in promoting the operationalisation of the rights affirmed in the Declaration and in mainstreaming them into the Council’s overall efforts to promote and protect all human rights’.29 This role has been formally confirmed and reinforced in the extension of the EMRIP’s mandate. Significantly, the PFII, which considers that the purpose of the Declaration ‘is to constitute the legal basis for all activities in the areas of indigenous issues’, determined on the basis of Article 42 that it had been ‘assigned an extended mandate with a new function’.30

The PFII adopted a ‘General Comment’ on Article 42, setting out its understanding of its obligations as ‘the only United Nations body expressly mentioned in the article’. The General Comment states:

As an advisory body to the Economic and Social Council, the Forum has so far had six mandated areas, namely indigenous issues related to economic and social development, culture, environment, education, health and human rights. Even though the Forum is a subsidiary body of the Council, the General Assembly can, as the global body within the United Nations system, extend and strengthen the mandate of the Forum. Article 42 introduces a new function and responsibility, which should be read in the light of the article as a source of international law.

While recognizing that ‘[t]he Declaration is not a treaty and it accordingly does not have the binding force of a treaty’, the PFII’s General Comment states that ‘this does not (p. 297) at all mean that the Declaration is without any legally binding effect’—it understands some parts of the Declaration as containing binding interpretations of existing human rights treaty obligations,31 and others as reflecting custom.32 Beyond the traditional sources of international law, it considers that ‘[t]he binding value of the Declaration must be seen in the wider normative context of the innovations that have taken place in international human rights law in recent years’—the procedure through which it was drafted has conferred upon it a ‘special status’:

It was developed during a decade of negotiations between representatives of States and representatives of indigenous peoples, ‘negotiations’ being a word used several times by State representatives. This long-lasting procedure resulted in a document expressing a broad common ground, which has now also been endorsed by the General Assembly. Even though it is not formally an agreement, in reality, the document is by way of its creation an instrument almost universally agreed upon. In this way, the Declaration is part of a practice that has advanced a growing ‘rapprochement’ between declarations and treaties.33

To the extent that its provisions do not (or not yet) reflect customary international law, or represent binding interpretations of obligations under human rights treaties, the Declaration may be described as a ‘non-treaty’. Like ‘non-papers’ in diplomatic negotiations, it does not necessarily represent the views of all states concerned. States would almost certainly not have agreed to a number of its extensive and far-reaching provisions in a legally binding instrument. Indeed, as Davis notes, the international indigenous movement has ‘indicated a preference for the Declaration to remain non-binding in international law … to move toward a convention on the rights of indigenous peoples would be detrimental to indigenous rights because such a convention would be unlikely to attract enough signatures to become an international instrument’.34

Yet the Declaration is highly significant in practice. Unlike many ‘soft’ instruments, it is in the form of a treaty, consisting of carefully worded, negotiated text phrased in (p. 298) obligatory terms. Each provision setting out a right of indigenous peoples is unambiguously worded: ‘Indigenous peoples have the right …’ The words ‘States shall’ appear twenty-two times in the Declaration’s forty-five provisions. Though states are not formally bound by the Declaration to respect these rights or carry out these directives, the provisions are clearly set out as standards against which they have agreed to be judged. Though some states may express disagreement with some of the standards, there is no formal way to ‘opt out’ by refusing to sign or ratify, and the Declaration will be relied upon as agreed by the UN’s plenary body ‘regardless of how each State voted in the General Assembly or their subsequent position’.35 Moreover, the Declaration is almost completely unprecedented in representing an agreement not only between states in their relations with one another, but between States and the non-State actors it concerns, creating an additional moral imperative to meet its standards.

To fulfil its ‘new and extensive responsibility’ to promote respect for and full application of the provisions of the Declaration and follow up the effectiveness of the Declaration, the PFII committed to determining its authority and methods ‘by way of a reading of article 42 on the basis of the Declaration as a whole’, guided by ‘the workings of the Forum so far, the purpose of article 42 and the normal way of protecting human rights within the UN system’.36

8.4  The PFII as non-treaty body: overseeing implementation of the Declaration

In its General Comment on Article 42, the PFII indicated its understanding that the treaty bodies of the human rights conventions ‘should be regarded as models for the Forum’ in fulfilling its role to ‘promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration’. In view of the common characteristics of the human rights treaty bodies, three key methods—in addition to general promotional and educative activities which fall clearly within the scope of its core mandate—can be identified for the PFII to fulfil the function it identified in relation to the Declaration: i) reviewing implementation of the Declaration; ii) responding to particular cases of failure to respect the provisions of the Declaration; and iii) issuing interpretations or guidance on implementation of provisions of the Declaration in the form of further ‘general comments’ or similar recommendations and reports.37

Because the Declaration is a non-binding instrument, and the activities to be undertaken by the PFII in overseeing its implementation are not clearly mandated, the use of methods developed by the human rights treaty bodies is in some respects (p. 299) constrained—for example, there is no obligation for states to report to the PFII, and no right of individual petition. However, with a broad mandate and a ‘soft’ instrument, the PFII is also in some respects less constrained—as Alston notes, ‘it is inevitably difficult to achieve flexible institutional and substantive changes in the context of a regime which has its foundations in a range of treaties, each of which was, to some extent, drafted in such a way as to limit the possibilities of dramatic change from within’.38 Employed cautiously, in cooperation with the Special Rapporteur, EMRIP and other relevant bodies, methods developed by the treaty bodies have strong potential to take on new dimensions in the PFII’s institutional context and enhance the effectiveness of the Declaration in positively influencing the behaviour of states and other powerful actors in relation to the rights of indigenous peoples.

(a)  Implementation review

The PFII understands Article 42 of the Declaration to imply an authority for it ‘to arrange dialogues with States regarding application of the Declaration and, thereafter, to follow up on its effectiveness by making conclusions relating to each State’s behavior’, with ‘criticism on implementation gaps and demands for reforms’.39 It considers that Article 42 ‘implies that States have a duty to respond to a demand by the Forum for dialogue on the Declaration’—however, as it ‘does not expressly empower the Forum to summon States to appear in the meetings of the Forum and answer the questions put by the members’, there are strong ‘practical and political reasons not to put this conclusion to the test’. Thus, the PFII has developed ‘[c]reative’ methods, ‘such as dispatching to States a questionnaire regarding implementation’—with information from indigenous peoples’ organisations, non-governmental organisations and Forum members as ‘important supplementary material’—to form the basis for ‘constructive dialogue followed by concluding remarks from the Forum’.40

For the treaty bodies established under the core human rights conventions, review of compliance is undertaken primarily on the basis of reports required to be submitted by the States parties to each convention. The PFII’s capacity to perform a similar function in respect of the Declaration is hampered by the absence of any reporting requirement in respect of implementation of its provisions—the submission of government information on which dialogues can be based is entirely dependent on political will. The unfortunate corollary of this need to ‘advance along a voluntary road’ is that only those states that are already strongly committed to protecting the rights of indigenous peoples, and consider themselves to be largely in conformity with the provisions of the Declaration, (p. 300) are likely to engage. While there may nonetheless be a body of states willing to participate in dialogue with the PFII and voluntarily submit information in advance of its annual sessions, the picture that emerges from the PFII’s monitoring may be misleading as to the general status of implementation of the Declaration internationally. Moreover, its provision of ‘criticism on implementation gaps and demands for reforms’ is likely limited to a greater extent than other human rights review mechanisms by the need to preserve the willingness of states to engage in dialogue and induce additional states to enter into dialogue.

Despite the disadvantage of lacking a formal reporting mechanism, the PFII possesses some advantages in composition and procedure relevant to implementation monitoring that the treaty bodies lack. With its membership of indigenous-nominated as well as State-nominated experts and its inclusive working methods, it is a participatory mechanism with a strong sense of ownership among those whose rights the Declaration is intended to protect—its annual sessions attract, in addition to some seventy state delegations and thirty-five intergovernmental bodies, more than 1000 indigenous participants from all parts of the world.41 In developing its implementation monitoring function pursuant to the broad indication from the General Assembly that it should ‘promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration’, the PFII is—subject to the need to exercise caution so as not to provoke a negative reaction from states—free to develop innovative methods and to involve a range of non-state actors in its review processes. It may also undertake country visits, with state consent and within its resource capabilities (country visits have been made, for example, to Bolivia, Paraguay and Colombia)—as well as work in cooperation with the Special Rapporteur, who develops a number of State-specific reports on the protection of indigenous peoples’ rights each year, based largely on country visits.

The gradual adoption of an implementation review function by the PFII could be significant in developing the influence of the Declaration on State practice (particularly given the limited extent to which its implementation will be monitored by the core human rights mechanisms in Geneva, which are focused on treaty obligations).42 Provided that the PFII’s implementation review function is developed with prudence, (p. 301) it may be hoped that the willingness of states to accept constructive criticism from the Forum on their protection of the rights of indigenous peoples will grow over time, as has their acceptance of the monitoring work of the core human rights treaty bodies (which arguably was always more a function of the relationship of cooperation forged between states and those bodies than the force of a somewhat theoretical legal obligation).43

It should also be noted that the PFII is—with its broad mandate to raise awareness and promote the integration and coordination of relevant activities within the UN system and provide expert advice and recommendations to UN programmes, funds and agencies—well placed to promote and review implementation of the Declaration by powerful intergovernmental actors which impact on the extent to which indigenous peoples’ rights are recognized and protected. As indicated by Stamatopoulou, much of the PFII’s work is oriented towards a ‘culture change’ that ‘should be catalytic in terms of policies, laws, budgets and overall practices of the UN system, and have an impact at the national and local level’.44 With the support of the Inter-Agency Support Group on Indigenous Peoples’ Issues—an ad hoc group established to support the work of the PFII with a current membership of forty-four institutions, including a range of UN bodies and specialised agencies, and major development actors including the World Bank—the PFII has begun work towards ‘mainstreaming’ of the rights recognized in the Declaration into work across the UN system. It has held ‘constructive dialogue’ regarding implementation of the Declaration with several UN bodies, including the Office of the High Commissioner for Human Rights (OHCHR), International Fund for Agricultural Development (IFAD), Food and Agriculture Organization (FAO), World Intellectual Property Organization (WIPO), UN Development Programme (UNDP), UN Population Fund (UNPFA), UN Department of Economic and Social Affairs (DESA) and UN Children’s Fund (UNICEF)—as well as international financial institutions, including the World Bank, African Development Bank, Asian Development Bank, Inter-American Development Bank and International Finance Corporation. These bodies have begun to take action in response to the PFII’s recommendations—for example, ILO, UNDP, OHCHR and UNICEF jointly established a multi-donor trust fund focused on implementing the Declaration; FAO adopted a new organisational policy on indigenous and tribal peoples; and IFAD established a dedicated indigenous peoples’ forum.45 The PFII’s broad capacity for inter-institutional implementation promotion and review—not available to the human rights treaty bodies, and more flexible than that of the Human Rights Council—may be a significant tool for the PFII in enhancing the effectiveness of the Declaration in practice.

(p. 302) (b)  Responding to rights violations

A second method the PFII may employ is the provision of institutional responses to particular instances of failure to comply with the provisions of the Declaration. Unlike a number of the human rights treaty bodies, the PFII does not have the mandate to consider individual complaints regarding rights violations. It does, however, as noted above, have significant capacity to bring together a wide range of representatives of indigenous peoples, indigenous organizations, and broader human rights organizations—many of whom travel to attend its annual sessions with the aim of sharing information about rights violations.46 The PFII has employed a number of techniques to respond to the rights violations which come to its attention, including: directly naming the countries concerned in its annual reports (for example, the 2010 annual report expressed the PFII’s ‘deep concern’ about changes in policy on bilingual education in Australia considered inconsistent with the Declaration) or in press releases (such as the 2008 press release calling for urgent action to put an end to violence against indigenous communities in Bolivia);47 meeting with other relevant UN bodies to bring particularly egregious rights violations to their attention (for example, the PFII Chairman met with the President of the Security Council regarding violence against indigenous communities in the Democratic Republic of the Congo in 2003); engaging in confidential dialogue with representatives of the state concerned;48 and assisting complainants in accessing human rights treaty body complaint mechanisms where relevant and available.49

With its capacity to convene large gatherings of indigenous organizations, the PFII also contributes significantly to the Special Rapporteur’s work in responding to rights violations. Though she is specifically mandated to engage in information exchange on alleged rights violations, including with governments and indigenous people, communities and organizations, and to formulate recommendations and proposals on measures and activities to prevent and remedy violations, the Special Rapporteur has limited resources and thus limited ability to meet with indigenous peoples and access information about rights violations.50 The Special Rapporteur holds public dialogues in the margins of the PFII’s annual session, providing her with the opportunity to hear statements from a wide range of organizations to inform her work.51 This puts the Rapporteur in the quite unique situation, by UN human rights standards, (p. 303) of having an entire body of people closely acquainted with relevant rights violations easily accessible once a year in New York (no such thing exists even for the most recent human rights treaties, the Convention on the Rights of Persons with Disabilities or the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families).

Though the PFII does not have an explicit mandate regarding means by which it may respond to particular rights violations, it has developed a number of informal techniques by which violations may be addressed—including ‘naming and shaming’, issuing recommendations, meeting directly with relevant actors, and working indirectly through the Special Rapporteur. As with implementation monitoring, the cautious development of a practice of applying these methods to instances of failure to respect the provisions of the Declaration may gather strength over time.

(c)  General comments

Finally, the PFII may publicize its understanding of the meaning of provisions of the Declaration and guidance for their implementation in the form of further ‘general comments’ or similar recommendations and reports. With its mandate to prepare and disseminate information on indigenous issues, provide expert advice and recommendations, raise awareness and promote the integration and coordination of activities within the UN system, the PFII arguably has a stronger basis for offering general guidance on implementation of the Declaration than the Human Rights Committee has under the direction to provide, together with its responses to parties’ reports on implementation of the International Covenant on Civil and Political Rights, ‘such general comments as it may consider appropriate’.52 The general comments published by the treaty bodies, presented as their interpretation of the relevant human rights treaties, have become one of the most significant and influential tools available to them in increasing the effectiveness of the treaties they oversee. The interpretations they provide of the requirements for implementation of treaty obligations are widely considered authoritative, offering more detailed standards against which government action or inaction may be judged by a range of relevant actors, including domestic courts and non-governmental organizations.

Though the context for the PFII as ‘non-treaty body’ is different from that of the human rights treaty bodies, as the Declaration is formally a non-binding instrument, general comments or recommendations may be expected to perform a similar function in adding detail and practical advice for implementation of fairly general provisions. If considered authoritative and credible, such advice is likely to be widely relied on by actors instrumental in implementation of the Declaration—including other intergovernmental institutions, non-governmental bodies, domestic agencies, and even (p. 304) international and domestic courts.53 Comments or recommendations might deal with particular provisions of the Declaration, particular challenges in or obstacles to implementation cutting across various provisions, or broader cross-cutting thematic issues affecting implementation.

The PFII may face two key challenges in this method of promoting respect for and application of the Declaration (in addition to the broader challenge of state reticence). First, because it is not the only UN body with a mandate in respect of the Declaration and the rights reflected in it, institutional cooperation is required to ensure that the PFII’s understanding of provisions of the Declaration and its recommendations for effective implementation are consistent with those expressed by other relevant actors. In particular, the Special Rapporteur and the EMRIP, whose mandates in respect of indigenous peoples’ rights overlap with that of the PFII, should be part of any standard-setting work undertaken. Each of the three mandate-holders has begun to offer interpretations of and recommendations on the Declaration: the PFII in extensive recommendations contained in its annual reports, including special thematic recommendations:54 the Special Rapporteur in reports dealing with the character and content of the Declaration and mechanisms to operationalize it, the elements of the duty to consult, corporate responsibility with respect to indigenous rights, and other specific matters including extractive industries and indigenous rights, and the rights of indigenous women and girls;55 and the EMRIP in studies for the Human Rights Council on matters such as the right to education, the right to participate in decision-making, rights with respect to cultural heritage, languages and culture, and access to justice.56 While efforts at (p. 305) cooperation are made—including informal input by the PFII into the EMRIP’s work, interactive dialogue during sessions of the three mechanisms, and some dedicated coordination meetings would increase the effectiveness of efforts to provide authoritative interpretations and recommendations in relation to the Declaration, and guard against the mandate-holders undermining one another.57 An ‘Update on the promotion and application’ of the Declaration prepared for the PFII’s 2019 session incorporates analysis and recommendations for all three mechanisms on advances and challenges related to eight issues covered by the Declaration.58 If the three mechanisms could agree on the best ways to interpret and apply the Declaration, each contributing their distinct expertise, their collective voices expressing this understanding—for example, through a common general comment annexed to the annual report of each—would be more influential.

The second challenge, related to the first, is to ensure that the need for ‘drafting by committee’—magnified by the multiple institutional actors involved—does not compromise the quality of further general comments or similar recommendations. As for the human rights treaty bodies, the force and impact of any general comments adopted by the PFII in respect of the Declaration will depend on their persuasiveness and analytical rigour. As noted by Mechlem, because ‘the drafting of a General Comment is a process in which a large number of actors pursue their interests and advance their views, the treaty bodies must be guided by a clear method when making their interpretive decisions’ to ensure that they are able to offer guidance on the provisions interpreted ‘in a principled and legally convincing way’.59 The PFII, which usually has a significant number of legally trained members, is well equipped to undertake the task of drafting general comments on the Declaration, but should take care to ensure an effective drafting process which allows for cooperation with other relevant institutional actors and broad consultation in accordance with its participatory nature, while ensuring the development of clear and persuasive text.

8.5  Concluding observations

The PFII’s participatory structure and broad mandate give it a unique role within the UN system as a protector and promoter of human rights. Its establishment as a (p. 306) standing body with permanent indigenous representation and a mandate to provide expert advice, information and recommendations and to raise awareness and promote inter-institutional coordination was a major step forward in the UN’s engagement with indigenous peoples. Since the adoption of the UN Declaration on the Rights of Indigenous Peoples, the PFII’s work has focused more directly on monitoring and facilitating implementation of indigenous peoples’ rights, a function in some ways akin to that of the human rights treaty bodies.

In fulfilling and further developing this role, the PFII must cautiously negotiate the ‘continuing reticence on the part of States to allow too much ‘breathing space’ for human rights monitoring’:60 each of the methods described above—reviewing implementation, responding to particular violations, and providing guidance through general comments or similar recommendations—should be carefully applied to the Declaration as a ‘soft’ instrument and adapted to the PFII’s particular institutional weaknesses and strengths. With different powers and responsibilities to those of the treaty bodies, the PFII’s role as a protector and promoter of human rights is both more and less constrained. Potential disadvantages include the absence of any requirement for states to participate in its work and overlapping institutional mandates. Advantages include the Forum’s strong participatory nature, the potential for coordination in overlapping mandates to strengthen its influence, and its broad scope of work in relation to other UN agencies, programmes and funds.

The 2014 high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples reaffirmed states’ support for the Declaration on the Rights of Indigenous Peoples and requested the Secretary-General to develop, with broad consultation, a system-wide action plan to ensure a coherent approach to achieving the ends of the Declaration, which is now in effect.61 As the PFII plays its part in strengthened efforts to promote respect for and full application of the provisions of the Declaration and following up its effectiveness, continued coordination and compromise, particularly with the Special Rapporteur and EMRIP, will be essential. Working together, the three mechanisms can form a tripartite structure with a presence in both New York and Geneva and a consistent message about the nature and scope of indigenous peoples’ rights and what must be done to protect and promote them. Effectively carried out, the PFII’s work in this respect may gradually amount to nothing less than ‘a small revolution in the UN system’:62 a non-treaty negotiated with non-state actors, overseen by a UN body in which non-state actors are equal participants, implemented with ‘determined gradualism’ until it produces the changes needed among those with responsibilities for indigenous peoples’ rights.

Footnotes:

1  Review of the Existing Mechanisms, Procedures and Programmes within the United Nations Concerning Indigenous People: Report of the Secretary-General, GA, 51st session, Doc. A/51/493, 14 October 1996, 38 (‘Secretary-General’s Review’).

2  See M Lâm, At the Edge of the State: Indigenous Peoples and Self-Determination (Transnational Publishers, 2000) 76–7.

3  Report of the World Conference on Human Rights, Vienna, 14–25 June 1993: Report of the Secretary-General, Doc. A/CONF.157/24 (Part I), 13 October 1993, Ch III, Section II; GA Res. 48/163, 18 February 1994.

4  Secretary-General’s Review, 38.

5  See J Debeljak, ‘Barriers to the Recognition of Indigenous Peoples’ Human Rights at the United Nations’ (2000) 26 Monash University Law Review 159, 187–94.

6  ECOSOC Res. 22, 28 July 2000.

7  D Dorough, ‘Human Rights’ in PFII (2009) State of the World’s Indigenous Peoples 189, 191.

8  GA Res. 61/295, 13 September 2007 (‘the Declaration’).

9  ECOSOC Res. 34, 7 May 1982.

10  E Stamatopoulou, ‘Indigenous Peoples and the United Nations: Human Rights as a Developing Dynamic’ (1994) 16 Human Rights Quarterly 58, 68–9.

11  H Minde, ‘The Destination and the Journey: Indigenous Peoples and the United Nations from the 1960s through 1985’ in H Minde (ed), Indigenous Peoples: Self-determination, Knowledge, Indigeneity (Eburon Academic Publishers, 2008) 49, 73. See also E Daes, ‘The Spirit and Letter of the Right to Self-Determination of Indigenous Peoples: Reflections on the Making of the United Nations Draft Declaration’ in P Aikio and M Scheinin (eds), Operationalizing the Right of Indigenous Peoples to Self-Determination (Institute for Human Rights, 2000) 67, 72.

12  L Malezer, ‘Permanent Forum on Indigenous Issues: “Welcome to the Family of the UN” ’ in J Castellino and N Walsh (eds) International Law and Indigenous Peoples (Martinus Nijhoff Publishers, 2005) 67, 85.

13  ECOSOC Res. 22, 28 July 2000.

14  Members nominated by governments are elected on the basis of the five UN regional groupings (Africa; Asia; Eastern Europe; Latin America and the Caribbean; and Western Europe and other States); while members nominated by indigenous organizations represent the seven sociocultural regions determined to give broad representation to the world’s indigenous peoples (Africa; Asia; Central and South America and the Caribbean; the Arctic; Central and Eastern Europe, Russian Federation, Central Asia and Transcaucasia; North America; and the Pacific).

15  Annan, Speech to Permanent Forum on Indigenous Issues, New York, 24 May 2002, cited in Malezer, above n 12, 85.

16  GA Res. 57/191, 18 December 2002.

17  CHR Res. 2001/57, 24 April 2001.

18  HRC Res. 6/12, 28 September 2007; CHR Res. 2004/62, 21 April 2004.

19  ECOSOC Res. 2, 22 March 2006; GA Res. 60/251, 15 March 2006.

20  See Debeljak, above n 5, 193.

21  Report of the Working Group on Indigenous Populations on is[what should this be?] Twenty-Fourth Session (Geneva, 31 July–4 August 2006), Doc. A/HRC/Sub.1/58/22, 14 August 2006, Annex IV, 27–30.

22  See documentation for informal meeting to discuss the most appropriate mechanisms to continue the work of the Working Group on Indigenous Populations, 6–7 December 2007, online at https://www.ohchr.org/EN/Issues/IPeoples/Pages/InformalMeeting.aspx.

23  HRC Res. 6/36, 14 December 2007.

24  HRC Res. 33/25, 30 September 2016.

25  See generally: ‘General Assembly Adopts Declaration on Rights of Indigenous Peoples: ‘Major Step Forward’ Towards Human Rights for All, Says President’, UN press release, Doc. GA/10612, 13 September 2007; Anaya and Wiessner, ‘The UN Declaration on the Rights of Indigenous Peoples: Towards Reempowerment’ Jurist (3 October 2007).

26  UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution/adopted by the General Assembly, 2 October 2007, A/RES/61/295, Article 43.

27  See, for example, Report of the Special Rapporteur on the Situation of the Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, UN HRC, 9th sess, Doc. A/HRC/9/9, 211 August 2008.

28  Report by the Special Rapporteur on the Rights of Indigenous Peoples, S. James Anaya, Addendum, Communications sent, replies received and follow-up, UN HRC, 18th session, Doc. A/HRC/18/35/Add.1, 22 August 2011.

29  Report of the Expert Mechanism on the Rights of Indigenous Peoples on its First Session (Geneva, 1–3 October 2008), Doc. A/HRC/10/56, 8 January 2009.

30  Report on the Eighth Session (18–29 May 2009), Doc. E/C.19/2009/14, Annex:

General comments to the follow-up to the recommendations of the Permanent Forum on Indigenous Issues on implementation of the United Nations Declaration on the Rights of Indigenous Peoples and on dialogue with the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples and other special rapporteurs: ‘Article 42 of the United Nations Declaration on the Rights of Indigenous Peoples’ (‘General Comment’).

31  The General Comment states: ‘The Declaration forms a part of universal human rights law … The human rights treaty bodies will need to refer to the Declaration, as their practice already indicates, whenever dealing with indigenous rights’. Relevant treaties include the International Covenant on Civil and Political Rights (opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)), the International Covenant on Economic, Social and Cultural Rights (opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976)), the International Convention on the Elimination of All Forms of Racial Discrimination (opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969)), and the Convention on the Rights of the Child (opened for signature 20 November 1989, 1577 UNTS 44 (entered into force 2 September 1990)).

32  The General Comment states: ‘A number of the articles … may already today have the quality of customary law by virtue of policies implemented in national jurisdictions. As expressions of international customary law, they must be applied regardless of the nature of the document in which they are stated or agreed’. For further commentary, see generally J Anaya and S Wiessner, ‘The UN Declaration on the Rights of Indigenous Peoples: Towards Reempowerment’ Jurist (3 October 2007); J Anaya, ‘The Emergence of Customary International Law Concerning the Rights of Indigenous Peoples’ (2005) 12 Law and Anthropology 127; S Wiessner, ‘Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples’ (2008) 41 Vanderbilt Journal of Transnational Law 1141.

33  General Comment.

34  M Davis, ‘Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of Indigenous Peoples’ (2008) 9 Melbourne Journal of International Law 439, 467.

35  General Comment, para 8.

36  General comment, para 18.

37  See generally Report of the International Expert Group Meeting on the Role of the Permanent Forum on Indigenous Issues in the Implementation of Article 42 of the United Nations Declaration on the Rights of Indigenous Peoples, PFII, 8th session, Doc. E/C.19/2009/2, 4 February 2009.

38  P Alston, ‘Beyond ‘Them’ and ‘Us’: Putting Treaty Body Reform into Perspective’ in P Alston and J Crawford (eds), The Future of UN Human Rights Treaty Monitoring (Cambridge University Press, 2000) 501, 522.

39  General Comment.

40  General Comment. Questionnaires sent by the Forum Secretariat to Member States, Indigenous Peoples, the UN System and National Human Rights Institutions are available as part of documentation for its sessions at https://www.un.org/development/desa/indigenouspeoples/unpfii-sessions-2.html.

41  See Implementation of the Human Rights Mandate of the Permanent Forum on Indigenous Issues, PFII, 6th sess, Doc. E/C.19/2007/6, 9 March 2007; E Stamatapoulou, ‘United Nations Permanent Forum on Indigenous Issues: A Multifaceted Approach to Human Rights Monitoring’ in G Alfredson, J Grimheden, B Ramcharan, and A de Zayas (eds), International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th. Möller (2nd edn, Martinus Nijhoff, 2009) 355, 361–2. On the closed nature of the treaty bodies’ review procedures, see generally A Clapham, ‘UN Human Rights Reporting Procedures: An NGO Perspective’ in P Alston and J Crawford (eds), The Future of UN Human Rights Treaty Monitoring (Cambridge University Press, 2000) 175, 187–93.

42  While at least two of the treaty bodies have made reference to the Declaration (see CERD, Report of the Committee on the Elimination of Racial Discrimination, Seventy-Second Session (18 February–7 March 2008), Seventy-Third Session (28 July–15 August 2008), Doc. A/63/18 (2008), at 500; CRC, General Comment No. 11 (2009): Indigenous children and their rights under the Convention, Doc. CRC/C/GC/11, 12 February 2009, para 10), others appear to have been more reluctant (see Clavero, The UN Declaration on the Rights of Indigenous Peoples: its first year’, in International Work Group for Indigenous Affairs (2009) The Indigenous World 2009 585). At least one commentator has noted the lack of attention to the rights of indigenous peoples by the Universal Periodic Review mechanism: see J Carling, ‘UN Human Rights Council Periodic Review’ in International Work Group for Indigenous Affairs (2009) The Indigenous World 621.

43  See Alston, above n 37, 522.

44  Stamatapoulou, above n 41, 362.

45  See PFII, Report on the Ninth Session (19–30 April 2010), Doc. E/C.19/2010/15; PFII, Report on the Tenth Session (16–27 May 2011), Doc. E/C.19/2011/14.

46  See Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, HRC, 12th session, Doc. A/HRC/12/34, 15 July 2009, para 11.

47  PFII, Report on the Ninth Session (19–30 April 2010), Doc. E/C.19/2010/15; Press Release from the Chairperson of the United Nations Permanent Forum on Indigenous Issues Regarding the Recent Events in Bolivia, 18 September 2008.

48  See Stamatapoulou, above n 41, 363–5.

49  Author interview with Carol Pollack, Secretariat of the PFII, New York, 28 October 2009.

50  See Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, HRC, 12th session, Doc. A/HRC/12/34, 15 July 2009, paras 32–5.

51  Ibid, paras 11–12; Implementation of the Human Rights Mandate of the Permanent Forum on Indigenous Issues, PFII, 6th session, Doc. E/C.19/2007/6, 9 March 2007, para 37.

52  International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Article 40.

53  It may be noted that provisions of the Declaration have been cited by the Inter-American Court of Human Rights: see eg Saramaka People v Suriname [2007] Inter-Am Court HR (ser C) No 172; and relied on as ‘importing … significant obligations for the State’ by at least one domestic court: see Aurelio Cal v Attorney-General of Belise, Claim 121/2007 (Supreme Court, Belise, 18 October 2007).

54  PFII, Report on the Fourteenth Session (20 April–1 May 2015), Doc. E/C.19/2015/10; PFII, Report on the Thirteenth Session (12–23 May 2014), Doc. E/C.19/2014/11 (including special recommendations on Principles of good governance consistent with the Declaration: articles 3 to 6 and 46); PFII, Report on the Twelfth Session (20–31 May 2013), Doc. E/C.19/2013/25; PFII, Report on the Eleventh Session (7–18 May 2012), Doc. E/C.19/2012/13 (including special recommendations on The Doctrine of Discovery: its enduring impact on indigenous peoples and the right to redress for past conquests (articles 28 and 37 of the Declaration)); PFII, Report on the Tenth Session (16–27 May 2011), Doc. E/C.19/2011/14; PFII, Report on the Ninth Session (19–30 April 2010), Doc. E/C.19/2010/15 (including special recommendations on Indigenous peoples: development with culture and identity; articles 3 and 32 of the Declaration); PFII, Report on the Eighth Session (18–29 May 2009), Doc. E/C.19/2009/14.

55  Report of the Special Rapporteur on the rights of indigenous peoples, Victoria Tauli Corpuz, HRC, 30th sess, Doc. A/HRC/30/41, 6 August 2015; Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, HRC, 24th sess, Doc. A/HRC/24/41, 1 July 2013; Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, HRC, 21st sess, Doc. A/HRC/21/47, 6 July 2012; Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, HRC, 15th sess, Doc. A/HRC/15/37, 19 July 2010; Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, HRC, 12th sess, Doc. A/HRC/12/34, 15 July 2009; Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, HRC, 9th sess, Doc. A/HRC/9/9, 11 August 2008.

56  Promotion and protection of the rights of indigenous peoples with respect to their cultural heritage: Study by the Expert Mechanism on the Rights of Indigenous Peoples, Doc. A/HRC/30/53, 19 August 2015; Access to justice in the promotion and protection of the rights of indigenous peoples: Study by the Expert Mechanism on the Rights of Indigenous Peoples, Doc. A/HRC/24/50, 30 July 2013; Role of languages and culture in the promotion and protection of the rights and identity of indigenous peoples: Study by the Expert Mechanism on the Rights of Indigenous Peoples, Doc. A/HRC/21/53, 16 August 2012; Final report of the study on indigenous peoples and the right to participate in decision-making: Report of the Expert Mechanism on the Rights of Indigenous Peoples, Doc. A/HRC/18/42, 17 August 2011; Study on Lessons Learned and Challenges to Achieve the Implementation of the Right of Indigenous Peoples to Education: Report of the Expert Mechanism on the Rights of Indigenous Peoples, Doc. A/HRC/12/33, 31 August 2009.

57  Discussions at the International Expert Seminar on the Role of UN Mechanisms with a Specific Mandate Regarding the Rights of Indigenous Peoples indicated considerable overlap in the three mechanisms’ plans for work relating to the Declaration. If these plans were carried out by the mechanisms independently, there would be significant potential for their objectives to be undermined. The EMRIP, for example, expressed an interest in developing and adopting ‘general thematic comments and recommendations on the rights of indigenous peoples … somewhat similar to the general comments adopted by treaty bodies’. See ‘International Expert Seminar on the Role of UN Mechanisms with Specific Mandate Regarding the Rights of Indigenous Peoples: Madrid, 4–6 February 2009’, available at http://www2.ohchr.org/english/issues/indigenous/rapporteur/docs/ReportExpertSeminarMadrid.pdf.

58  Update on the promotion and application of the United Nations Declaration on the Rights of Indigenous Peoples, Doc. E/C.19/2019/6, 5 February 2019.

59  K Mechlem, ‘Treaty Bodies and the Interpretation of Human Rights’ (2009) 42 Vanderbilt Journal of Transnational Law 905, 928–9.

60  Stamatapoulou, above n 41, 365.

61  GA Res. 69/2, 25 September 2014; System-wide action plan for ensuring a coherent approach to achieving the ends of the United Nations Declaration on the Rights of Indigenous Peoples, Doc E/C.19/2016/5, 19 February 2016.

62  M Dodson, ‘Comment’ in S Pritchard (ed), Indigenous Peoples, the United Nations and Human Rights (Federation Press, 1998) 62.