The Indigenous World 2024: European Union Engagement with Indigenous Issues
The European Union (EU) is a political and economic union of 27 Member States. Its legislative and executive powers are divided between the main EU institutions: the European Parliament (co-legislative authority), the Council of the European Union (co-legislative and executive authority) and the European Commission (executive authority). In addition, the EU has its own diplomatic service, the European External Action Service (with EU Delegations throughout the world).
The EU maintains trade relations with the whole world and is the biggest donor of development aid. Aside from its influence within the territory of its Member States and its influence in international organizations, the EU also has a global impact, being an international key player in the area of human rights, development, and monitoring of corporate and environmental issues.
The EU forms part of the international process of promotion and protection of Indigenous Peoples’ rights. Five EU Member States have ratified International Labour Organization (ILO) Convention No 169[1] and the EU supported the adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007 as well as the Outcome Document of the World Conference on Indigenous Peoples in 2014.
In recent years, the EU has moved from a relatively passive position regarding recognition of Indigenous Peoples' rights to much more active involvement in ensuring the effectiveness of these rights in its policies.
2023 was marked by negotiations on EU commitments and initiatives aimed at developing measures to address the adverse human rights and environmental impacts of trade-related activities. Aware that many actors who encroach on Indigenous lands, as well as those who finance or purchase raw materials or products from them, have direct and indirect relationships and connections with European markets, companies, and financial institutions, and in order to influence the practices of these companies, the EU is beginning to introduce legislation to protect human rights. In this context, the protection of Indigenous lands, the right to free, prior and informed consent (FPIC) and the role of the UNDRIP have been the subject of numerous negotiations.
Proposal for the Corporate Sustainability Due Diligence Directive
The aim of the Corporate Sustainability Due Diligence Directive (CSDDD) proposed by the European Commission (EC)[2] is to establish a system that legally requires companies to identify, prevent, halt or mitigate the negative impacts of their activities on human rights and the environment.
The Annex[3] to the proposed directive lists the human rights conventions protected by the directive, including the UNDRIP, and identifies as a violation of the law punishable by the directive, violations of the rights:
of [I]ndigenous [P]eoples to the lands, territories and resources which they have traditionally owned and occupied or otherwise used or acquired, in accordance with article 25, article 26, paragraphs 1 and 2, article 27 and article 29, paragraph 2, of the United Nations Declaration on the Rights of Indigenous Peoples.
I would like to make a brief aside here to draw the readers' attention to the fact that the EC includes the UNDRIP in its list of conventions and proposes giving it binding force through the application of the directive. This is a credible and effective proposal on the part of the European executive power in that it does not exclude the part of the world's population most affected and most vulnerable to violations committed by companies. Nevertheless, the status of the UNDRIP will be the subject of debate, particularly on the part of the European Council, which will attempt to reduce the scope of the Directive.
The European Parliament, for its part, supports the EC's position and has reinforced it by formulating its own due diligence recommendations in a resolution dated March 2021.[4] On this occasion, the Parliament underlined its deep concern at the impact of certain commercial activities on Indigenous Peoples' rights, and recommended that the directive include ILO Convention 169, and that particular attention be paid to respect for the right to FPIC.
The Council, in response to the Parliament, came out in favour of a drastic reduction in the number of human rights conventions protected by the directive, proposing to exclude the rights of Indigenous Peoples from the scope of the directive.[5]
The Parliament adopted its final position on 1 June 2023,[6] proposing several amendments to the text drawn up by the EC. Among the amendments proposed, amendments 352 and 353 link Indigenous Peoples' rights to self-determination, FPIC, and lands, territories and resources to the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Linking the rights to self-determination and FPIC to these texts is a skilful response on the part of the Parliament, which counters the argument of the lack of binding force of the UNDRIP by contrasting it with legally binding texts.
The final version of the directive has not yet been produced as it will emerge from the current negotiations (known as Trilogue) between the Parliament, the EC and the Council.
EU Zero Deforestation Regulation
The EU Deforestation Regulation (EUDR)[7] – which entered into force on 29 June 2023 – aims to reduce the EU's impact on deforestation, greenhouse gas emissions and biodiversity loss. To this end, the regulation establishes that livestock, cocoa, coffee, palm oil, rubber, soy, timber and their derivatives placed on or exported from the EU market must (1) be produced on land that has not been subject to deforestation or forest degradation after 31 December 2020, and (2) comply with the relevant legislation of the country of production (in particular, legislation concerning human rights, land-use rights, environmental protection, as well as tax, anti-corruption, trade and customs regulations).
The regulation requires operators and traders to establish and maintain a due diligence system guaranteeing product traceability and covering risk assessment and mitigation processes. According to art. 10 of the regulation, risk assessment must take into account
the presence of Indigenous Peoples in the country of production or in certain parts thereof, consultation and cooperation in good faith with [I]ndigenous [P]eoples, the existence of duly substantiated claims on the part of [I]ndigenous [P]eoples, based on objective and verifiable information concerning the use or ownership of the area used for the production of the commodity concerned.
In addition, art. 12 states that:
operators shall report publicly on their due diligence systems on an annual basis. This report shall include, where appropriate, a description of the consultation process with [I]ndigenous [P]eoples and other customary land rights holders or civil society organizations present in the production area of the commodities and products concerned.
Finally, according to art. 14, Member States must designate the competent authority responsible for fulfilling the obligations arising from this regulation by 30 December 2023.
The regulation defines its objectives and measures as being in line with existing agreements, commitments and frameworks aimed at reducing deforestation and forest degradation. Among the tools mentioned in the regulation are the UN Framework Convention on Climate Change (UNFCCC), the Convention on Biological Diversity (CBD) and the UN Convention to Combat Desertification (UNCCD), as well as the UNDRIP. Finally, like all EU regulations, and unlike EU directives, the text on deforestation-free products requires no national transposition to be effective in Member States. Now that the regulation has entered into force, retailers and operators have 18 months to implement the new rules, while the deadline for micro and small businesses is 30 June 2025.
Proposal for a regulation on prohibiting products made with forced labour on the EU market
On 14 September 2022, the EC issued a proposal for a regulation to ban products made using forced labour from the EU market.[8] The proposal concerns products manufactured in the EU but also imported goods. The proposal is based on internationally-agreed definitions and standards and aims to empower national authorities to remove products derived from forced labour from the EU market. EU customs authorities will also be empowered to seize the products of forced labour at EU borders. This proposal is currently being examined by the European Parliament and the Council.[9]
The EU has shown great ambition when it comes to business and human rights, and the introduction of this legislation, although not without its problems, represents a significant step forward in the protection of the rights of Indigenous Peoples and their territories. These developments in the European internal system also appear to be modifying the EU's position on the creation of a UN binding instrument on business and human rights. If the EU had not been in favour of – or had at least shown great restraint in – creating a treaty, the evolution of its own legislation may well have contributed to a reversal of its position.
Indeed, during the negotiations surrounding the CSDDD and EUDR, the political groups opposing these initiatives argued that these obligations would penalize European companies in relation to other companies that would not be subject to these human rights obligations. It is not very bold to consider that these same groups would welcome the creation of an international treaty putting all companies on the same footing.
Parliament also began 2024 by voting, by a very large majority, for a resolution on shaping the EU’s position on the UN binding instrument on business and human rights, in particular on access to remedy and the protection of victims.[10]
Mathias Wuidar is a human rights lawyer. He works as representative to the EU for the Indigenous Peoples´ Centre for Documentation, Research and Information (Docip).
This article is part of the 38th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of an Indigenous man harvesting quinoa in Sunimarka, Peru. This photo was taken by Pablo Lasansky, and is the cover of The Indigenous World 2024 where this article is featured. Find The Indigenous World 2024 in full here
Notes and references
[1] Denmark (1996), The Netherlands (1998), Spain (2007), Luxembourg (2018) and Germany (2021).
[2] European Commission. “Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937.” 23 February 2022. https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52022PC0071&from=EN
[3] Idem
[4] European Parliament. “Corporate due diligence and corporate accountability European Parliament resolution of 10 March 2021 with recommendations to the Commission on corporate due diligence and corporate accountability (2020/2129(INL)).” 10 March 2021. https://www.europarl.europa.eu/doceo/document/TA-9-2021-0073_EN.html
[5] Council of the European Union. Permanent Representatives Committee. “Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937.” 30 November 2022. https://data.consilium.europa.eu/doc/document/ST-15024-2022-REV-1/en/pdf
[6] European Parliament. “Corporate Sustainability Due Diligence. Amendments (1) adopted by the European Parliament on 1 June 2023 on the proposal for a directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937 (COM(2022)0071 – C9-0050/2022 -022/0051(COD))(2).” https://www.europarl.europa.eu/doceo/document/TA-9-2023-06-01_EN.html#sdocta4
[7] Official Journal of the European Union. “Regulation (EU) 2023/1115 of the European Parliament and of the Council of 31 May 2023 on the making available on the Union market and the export from the Union of certain commodities and products associated with deforestation and forest degradation and repealing Regulation (EU) No 995/2010.” 31 May 2023. https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32023R1115
[8] COM(2022) 453 - Proposal for a regulation on prohibiting products made with forced labour on the Union market.
[9] This proposal is in line with the guidelines published by the Commission and the European External Action Service on due diligence in relation to the risk of forced labour of 13 July 2021.
[10] European Parliament. “Shaping the EU’s position on the UN binding instrument on business and human rights, in particular on access to remedy and the protection of victims. European Parliament resolution of 18 January 2024 on shaping the EU’s position on the UN binding instrument on business and human rights, in particular on access to remedy and the protection of victims (2023/2108(INI)).” 18 January 2024. https://www.europarl.europa.eu/doceo/document/TA-9-2024-0042_EN.pdf
Tags: Global governance, Human rights, Biodiversity, International Processes
