• International Processes and Initiatives

Indigenous World 2019: The Expert Mechanism on the Rights of Indigenous Peoples (EMRIP)

The Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) is a subsidiary body of the Human Rights Council composed of seven independent members, one from each of the seven indigenous sociocultural regions: Africa; Asia; the Arctic; Central and Eastern Europe, the Russian Federation, Central Asia and Transcaucasia; Central and South America and the Caribbean; North America; and the Pacific.

Resolution 33/25, adopted by the Human Rights Council in 2016, amended EMRIP’s mandate to provide the Human Rights Council with expertise and advice on the rights of indigenous peoples as set out in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), and assist Member States, upon request, in achieving the ends of the Declaration through the promotion, protection and fulfilment of the rights of indigenous peoples. This includes offering technical assistance and dialogue facilitation upon request. To that end, and with a view to focusing on the UNDRIP’s implementation, EMRIP undertakes regular thematic studies on specific rights enshrined in the UNDRIP, carries out country engagement missions, and brings expertise to relevant national initiatives on indigenous peoples’ rights.[1]

Implementation of a new mandate

The EMRIP remained focused on the implementation of its new country engagement mandate in 2018. Resolution 33/25 provides EMRIP with a mandate to: engage with States at the national level by offering technical assistance on legislation and policies and capacity building; provide advice on the implementation of the recommendations of the human rights mechanisms; and act as a dialogue facilitator between the State and/or the private sector, and indigenous peoples, all with the purpose of implementing the rights in the UNDRIP.

One of the strengths of the EMRIP under this new mandate is its role in offering technical assistance and in facilitating dialogue with a view to easing tensions, building trust and thus contributing to a conducive environment for the UNDRIP’s implementation. Its role is not to monitor the implementation of indigenous peoples’ rights but to focus on a particular issue and help the parties find innovative solutions together. Its new mandate is thus a complement to the monitoring mechanisms, like the treaty bodies, the special procedures of the Human Rights Council and the Universal Periodic Review procedure (UPR).

The EMRIP undertook a mission to Finland from the 10th to 16th of February 2018, under the request of the Sámi Parliament and with the agreement of the government of Finland, to consider amendments to the Sámi Parliament Act. The objective of the engagement was to provide assistance and advice, and to facilitate dialogue leading to the implementation of relevant recommendations made by human rights mechanisms to Finland.

During its mission, the EMRIP met with members of the Sámi parliament, Sámi representatives, NGOs, State and legal officials, academics and other stakeholders. Following the mission, the EMRIP transmitted a written advisory note to the parties on the two issues upon which it had focused: the definition of Sámi for the purpose of the electoral roll and the obligation of the State to negotiate with the Sámi.[2] During EMRIP’s 11th session, all parties indicated the successful nature of the mission.

The EMRIP undertook a mission to Mexico City, from 26th of February to the 2nd of March 2018, in response to a request from the city’s Secretariat for Rural Development and Equity for Communities. The mission focused on provisions regarding indigenous peoples set forth in the Constitution of Mexico City, adopted on 31 January 2017 (arts. 57−59), with the purpose of supporting city authorities in the development of laws and policies for the implementation of the rights of indigenous peoples under the Constitution.

During its mission, the EMRIP held meetings with: the federal Ministry of Foreign Affairs; Mexico City authorities, including the head of government and members of the Cabinet; representatives of indigenous organisations; agencies of the United Nations system; the Commission on Human Rights of Mexico City; and civil society representatives. The EMRIP also had the opportunity to visit several indigenous communities within Mexico City and to participate in capacity-building events for indigenous representatives and Mexico City civil servants. A technical note was sent to the Mexico City government on 17 October 2018, with the purpose of feeding into the process to consider secondary laws and policies to implement the Constitution of Mexico City[3] with due regard to the right to consultation.

Importantly, under its new mandate, States, indigenous peoples and other stakeholders, including the private sector, can make requests demonstrating their willingness to effectively implement the UNDRIP on specific issues. The EMRIP has devised and made public a short online form for country engagement requests and encourages States as well as others to do so – to date the majority of requests have come from indigenous peoples.[4]

New country missions relating to these requests are under preparation. Engagement requests include the following: on repatriation of cultural and/or spiritual objects; the development of a national plans of action, the implementation of regional court decisions; the implementation of UPR recommendations; on the eviction of indigenous peoples from their land; the protection of indigenous children; and the preservation of traditional fishing rights.

Building relationships with UN mechanisms and National Human Rights Institutions (NHRIs)

The EMRIP has continued to cooperate and engage with the Permanent Forum, the Special Rapporteur on the Rights of Indigenous Peoples and the Board of Trustees of the United Nations Voluntary Fund for Indigenous Peoples, including through coordination meetings hosted by the EMRIP.

In the context of its new mandate, the EMRIP regards building closer links and collaboration with the treaty bodies as a crucial action, not least because EMRIP’s new mandate specifically refers to the provision of advice on the implementation of treaty body recommendations. During its 11th session, the EMRIP included an agenda item on exchange with the Human Rights Committee and the Committee on the Elimination of Discrimination against Women. This allowed indigenous peoples’ representatives and Member States to exchange views with these bodies and develop an understanding of how they are supporting indigenous peoples’ rights. The EMRIP also held closed meetings with these two bodies facilitated by the Geneva Academy. The mechanisms improved their understanding of each body’s specific expertise and challenges in protecting the rights of indigenous peoples and encouraged mutual support. The EMRIP is also developing a closer collaboration relationship with the Committee on the Elimination of Racial Discrimination, which is taking initiative to support EMRIP’s new mandate.

Further, EMRIP engaged with the Global Alliance of NHRIs (GANHRI) and, following a dialogue with NHRIs at its 11th session, developed a paper on interaction between NHRIs and the EMRIP in all areas of its work.[5]

Thematic study on free, prior and informed consent (FPIC)

During its eleventh session, the EMRIP adopted its study and advice on FPIC: a human rights-based approach (A/HRC/39/62)[6], under paragraph 2 (a) of Human Rights Council resolution 33/25. The study was subsequently submitted to the Human Rights Council at its 39th session in September 2018.

The study focuses on FPIC as it is contained in the UNDRIP. As the only study by a body of independent UN human rights experts on this topic, this is an important contribution to the thinking and discourse on this issue, which is currently widely debated. It also highlights the human rights basis of FPIC, grounded in the right to self-determination and protection against racial discrimination. It sets out the rationale for FPIC and its nature as a human rights norm through an exploration of the work of the treaty bodies, and national and regional courts. It indicates that FPIC has a wider scope than ‘participation’ or ‘consultation’ as described by ILO 169, as it denotes a right of indigenous peoples to influence the outcome of the decision-making process. The adopted study further reviews FPIC practices, giving a critical evaluation of the implementation across the private and financial sectors, States, indigenous peoples’ own protocols, and the UN and its agencies. In its ‘Advice’ chapter at the end, the study provides concrete recommendations that States should apply to ensure that consultation and FPIC are properly operationalized.

Inter-sessional meeting, expert seminar and future reports

The EMRIP held an expert-seminar hosted by Chiang Mai University, Thailand, from the 5th to 6th of November, followed by an inter-sessional meeting, from the 7th to 9th November. The purpose of the seminar was to gather information for the EMRIP’s study on Indigenous Peoples’ Rights in the Context of Borders, Migration and Displacement (resolution 33/25, para. 2a, of the Human Rights Council). The seminar provided an opportunity for exchange among academics, practitioners and other experts on this issue.

Under its new mandate, the EMRIP advises the Human Rights Council, through a thematic study, on specific rights set out in the UNDRIP, including developments in international law and practices. Another report advises on good practices and lessons learned by all stakeholders in the implementation of the Declaration. The study chosen by the EMRIP this year was on the topic of migration and the report will focus on recognition, reparations and reconciliation.[7] A draft report on this theme as well as a draft study on migration will be discussed and finalized by the EMRIP during its 12th session in July 2019.

During its annual inter-sessional meeting the EMRIP planned forthcoming activities. It decided inter alia that its annual study for 2020[8] will focus on the right to land, and that its biannual report for 2021[9] will focus on self-determination, as expressed in Art. 3 of the UNDRIP.

Prospects for EMRIP’s future and continuing work

One of the areas of great concern to the EMRIP is the worsening situation of violence, killings and criminalization of indigenous peoples, as human rights defenders. This issue has been highlighted by many UN bodies, including the treaty bodies, the UPR procedure and the Special Rapporteur on the Rights of Indigenous Peoples, in particular in her 2018 report (A/HRC/39/17).[10] A recent report by Frontline Defenders reported that 2018 has the highest number of deaths of human rights defenders: 77% of whom died defending environmental and/or indigenous rights.[11] Much of this violence arises in the context of large-scale projects involving extractive industries, agribusiness, infrastructure, hydroelectric dams and logging and often stems from a lack of land tenure for indigenous peoples leaving them ill-equipped to defend their lands. Climate change mitigation and conservation may also lead to violence due to failure to obtain the FPIC of the indigenous peoples concerned.

The EMRIP looks forward to hearing from States and others on this issue during the Human Rights Council panel on the protection of indigenous human rights defenders in 2020.[12] It hopes that its new mandate combined with the advice it provides in its studies, such as the one on FPIC, can assist indigenous peoples and States to try to resolve the underlying causes and tensions behind such violence.

Notes and references

[1] All EMRIP reports and documents can be found at: http://bit.ly/2IE9r86

[2] See UNHRC, “11th session of the Expert Mechanism on the rights of Indigenous Peoples” at http://bit.ly/2IwKF9C

[3] The First Constitution of Mexico City

[4] See OHCHR, “Requests under new mandate.” at http://bit.ly/2IEakgW

[5] A/HRC/39/68 at http://bit.ly/2ItxlTm

[6] See http://bit.ly/2IsM9BO

[7] resolution 33/25, para.2b, of the Human Rights Council.

[8] resolution 33/25, para. 2a

[9] resolution 33/25, para. 2b

[10] See A.HRC.39.17 at http://bit.ly/2Iw8wWW

[11] See Front Line Defenders Global Analysis at http://bit.ly/2IEaXqO

[12]A/HRC/Res/39/13 - http://bit.ly/2Ivxi9F

Erika M Yamada is a Brazilian Lawyer with a doctor degree (SJD) in Indigenous Peoples and International Human Rights Law from the University of Arizona (USA). She also holds a Master’s degree (L.LM) in International Human Rights and Humanitarian Law from the University of Lund (Sweden). Dr. Yamada has worked on issues of indigenous peoples’ rights and human rights for over 15 years including in the government of Brazil, as well as with national and international NGOs and locally with indigenous communities, particularly with regard to land rights and consultation. She has served as National Rapporteur for Human Rights and Indigenous peoples in Brazil. She is the current Chair of the Expert Mechanism on the Rights of Indigenous Peoples.

 

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