• International Processes and Initiatives

The Indigenous World 2021: The Expert Mechanism on the Rights of Indigenous Peoples (EMRIP)

The Expert Mechanism on the Rights of Indigenous (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 to assist Member States, upon request, in achieving the ends of the UNDRIP through the promotion, protection and fulfilment of the rights of Indigenous Peoples, including through country engagement as mentioned above.

From March 2020, the COVID-19 pandemic had a major impact on the work of the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) as well as on the lives of Indigenous Peoples themselves. International travel was largely suspended for much of the year due to rising infection rates the world over. This resulted in most activities going online and adjustments being made to EMRIP’s annual session, seminar, inter-sessional meeting and coordination meetings with other Indigenous mechanisms.

The highlights of the year included EMRIP’s four virtual regional meetings, which took place in November/December, replacing the annual session and covering the topic of “The impact of COVID-19 on the rights of Indigenous Peoples under the UN Declaration on the Rights of Indigenous Peoples”. EMRIP had recognized as early as April 2020 that, “The spread of COVID -19 has and will continue to exacerbate an already critical situation for many Indigenous Peoples: a situation where inequalities and discrimination already abound.”[1] It was for this reason that EMRIP chose this topic for its regional meetings, in order to develop a better understanding of the global impact of COVID-19 on Indigenous Peoples with the aim of supporting all stakeholders to build back better.

As to other highlights, EMRIP finalized a country engagement with Sweden following a repatriation request from the IITC for the Yaqui Maaso Kova from the National Museum of World Culture in Sweden. This culminated in the parties welcoming the initiation of a process of repatriation of the Maaso Kova and parts of the Museum’s Yaqui Collection to the Yaqui Peoples in Mexico.

Thematic annual report on “The impact of COVID-19 on the rights of Indigenous Peoples under the UN Declaration on the Rights of Indigenous Peoples”

EMRIP decided to convert the second half of its 13th session into four regional virtual meetings, which took place from 30 November to 3 December, as well as a closed meeting for members to analyse the outcome of the regional meetings on 4 December. An analysis of the meetings is set out in EMRIP’s annual report (A/HRC/46/72), which will be submitted to the Human Rights Council at its 46th session in March 2021.

The regional discussions and written submissions highlighted not only the heightened impact of COVID-19 on Indigenous Peoples but also the often disproportionate impact of lockdown measures, and the need to monitor the effect of both on Indigenous Peoples and their rights.[2] While discussions demonstrated that some elements of the impact differed among Indigenous Peoples, it was clear that the pandemic globally has had a differentiated, and mostly disproportionate, impact on Indigenous Peoples and their rights. Indigenous representatives described universal challenges including how the pandemic has exacerbated underlying structural inequalities for Indigenous communities, particularly lack of access to adequate healthcare and potable water.

Participants referred to intersectional discrimination of Indigenous women and persons with disabilities, systemic exclusion and the disproportionate impact of the pandemic on them. They referred to the lack of participation in decision-making and a lack of information in Indigenous languages, increased violence against women and children, the loss of elders and, with them, traditional knowledge, and they drew links with climate change. They reported facing discrimination from the broader community and being targeted as carriers of the virus. They also expressed concern over increased intimidation and repression of Indigenous human rights defenders, including women, during the pandemic.

Participants from all regions cited good practices of Indigenous communities self-isolating and other self-reliance measures, including a resurgence in traditional practices as an exercise of their right to self-determination, as well as the critical importance of self-determination in general. Several participants referred to the experiences of their ancestors with earlier pandemics, and the impact of viruses brought by outsiders to their communities historically. They spoke of the pandemic as a time of reflection, of return to their communities, reinvigoration of traditional practices, including medicinal, cultural and ecological, and of taking comfort in the realization that they already have the skills and knowledge needed to confront COVID-19. They also expressed hope that the wider society would see the value in their approaches and that the world would turn to Indigenous knowledge.


Implementation of EMRIP’s country engagement mandate

Resolution 33/25 provides EMRIP with a mandate to: engage with states at the national level by offering technical assistance on legislation, policies and capacity building; provide advice on implementing the recommendations of human rights mechanisms; and act as a dialogue facilitator between states and/or the private sector and Indigenous Peoples, all with the purpose of implementing the rights in the UNDRIP. This mandate is thus a complement to monitoring mechanisms such as the treaty bodies, the special procedures of the Human Rights Council and the Universal Periodic Review procedure (UPR).

Between 2018 and 2020, EMRIP undertook a country engagement following a repatriation request by the International Indian Treaty Council (IITC) for the Yaqui Maaso Kova (a Yaqui ceremonial deer head) from the National Museum of World Culture in Sweden. As part of this process, EMRIP facilitated a day-long dialogue between the museum and representatives of the Yaqui peoples on 6 March 2020 in Vancouver, following a seminar held on 4 and 5 March 2020 on the repatriation of ceremonial objects and human remains under the UNDRIP. The objective of the seminar was to obtain substantive input to EMRIP’s study on the same theme. Following the dialogue between the museum and representatives of the Yaqui peoples, EMRIP conveyed to the Government of Mexico that the parties welcomed the initiation of a process of repatriation of the Maaso Kova and parts of the Museum’s Yaqui Collection to the Yaqui People in Mexico. An Advisory Note, which is a public record of the engagement, can be found on EMRIP’s webpage along with advice and information from EMRIP’s previous engagements in Mexico City, Finland and New Zealand.[3]

EMRIP regularly encourages Indigenous Peoples and states to make requests under its country engagement mandate: to date, the majority of requests have come from Indigenous Peoples.[4] New country missions relating to these requests are under preparation. Requests for country engagement include: implementation of regional court decisions; implementation of UPR recommendations; eviction of Indigenous Peoples from their land; the protection of Indigenous children; the implementation of legislation recognizing Indigenous Peoples; and traditional fishing rights. EMRIP also began working (remotely) this year on a request for advice from Indigenous Peoples on how to ensure the promotion and protection of Indigenous Peoples’ rights, in accordance with the UNDRIP and other relevant international instruments, during and in the aftermath of the COVID-19 pandemic. Unfortunately, a planned country engagement mission to the Democratic Republic of the Congo, which was supposed to take place in February 2020, had to be postponed for security reasons.

Building relationships with other mechanisms

EMRIP is of the view that coordination between the three UN Mechanisms on the rights of Indigenous Peoples is crucial to the success of all these mandates. EMRIP met virtually with the new Special Rapporteur on the rights of indigenous peoples, Francisco Cali Tzay, the Chair of the UN Voluntary Fund for Indigenous Peoples, Diel Mochire, and the members of the UN Permanent Forum on Indigenous Issues to share updates on the work of the three mechanisms. The virtual nature of these meetings allowed EMRIP, for the first time, to meet with all members of the Permanent Forum, as opposed to only the Chair. Such meetings allow the different mechanisms to deepen their dialogue, enrich their own experiences and avoid duplication of work.


Study on the
Right to Land

During part of its 13th session,[5] EMRIP adopted a study on the “Right to Land under the United Nations Declaration on the Rights of Indigenous Peoples: a Human Rights Focus” (A/HRC/45/38).[6]

The Study on the Right to Land highlighted that land is not only, or even primarily, an economic asset and that the protection of lands, territories and natural resources is necessary to guarantee the other rights of Indigenous Peoples, including the right to self-determination, to culture, dignity, health, water and food, and their right to life. The UNDRIP is the only legal international human rights instrument with a specific focus on the all-encompassing significance of lands, territories and resources for Indigenous Peoples.

This study reveals the disparity in the level of protection of Indigenous land across the regions. Some states have established sophisticated means of granting land tenure to Indigenous Peoples. They do so through demarcation, land treaties, agreements on reserved lands, land tribunals and recognition of land rights in constitutions and legislation. Other states have failed to recognize Indigenous Peoples at all, let alone their right to land. The implementation gap remains wide and failure to recognize land rights contributes to ongoing violence in many regions: militarization of Indigenous lands plays its part.

This study exposes the stark reality across all regions that ownership of Indigenous land remains mostly in the hands of the state. This continues to be the case despite provisions in the UNDRIP enshrining: a general right to traditional lands for Indigenous Peoples, a right to pursue practices and traditions on land with which they have a spiritual relationship and a right to redress and restitution of land.

The COVID-19 outbreak has only served to highlight the stark inequalities between Indigenous Peoples and others in the context of land. EMRIP observes in its study that the lack of secure land rights, including a lack of respect for Indigenous governance, has made it very difficult for Indigenous Peoples to protect their communities from disease. In addition, there have been reports of illegal incursions onto Indigenous lands by loggers and miners and fears for the safety of Indigenous Peoples in voluntary isolation.

Report on the repatriation of ceremonial objects, human remains and intangible cultural heritage

During part of its 13th session,[7] EMRIP also adopted a report on the “Repatriation of ceremonial objects, human remains, and intangible cultural heritage under the United Nations Declaration on the Rights of Indigenous Peoples” (A/HRC/45/35).[8]

The report on the repatriation of ceremonial objects, human remains and intangible resources examines good practices and lessons learned regarding efforts to implement the UNDRIP in the repatriation of ceremonial objects, human remains and intangible cultural heritage. It recommends a human rights-based approach to repatriation, requiring the recognition of Indigenous Peoples’ rights to self-determination, culture, property, spirituality, religion, language and traditional knowledge. This also calls for recognition of the applicability of Indigenous Peoples’ own laws, traditions and customs. The report concludes with recommendations that include encouraging Member States to support the development of mechanisms to facilitate the international repatriation of Indigenous Peoples’ sacred items and human remains.


Inter-sessional meeting, expert seminar and future reports

EMRIP held its expert seminar virtually on 16 and 17 November 2020, hosted by the Centre for Children, Youth and Family Research, University of Greenland, Nuuk, Greenland. The purpose of the seminar was to gather information for EMRIP’s study in 2021 on “The Rights of the Indigenous Child under the UN Declaration on the Rights of Indigenous Peoples”.

EMRIP will also prepare a report in 2021 on self-determination. This report will be informed by the inputs to a seminar to be held virtually, co-hosted by Treaty Six and the Centre for Human Rights Research, University of Manitoba, Canada, in cooperation with EMRIP, on 4 and 5 February 2021. The draft report on self-determination and the draft study on the rights of the Indigenous child will be discussed and finalized by EMRIP during its 14th session from 12 to 16 July 2021. EMRIP welcomes inputs from Indigenous Peoples and all stakeholders for these reports. For information on the submission process see:

https://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/EMRIPIndex.aspx

EMRIP held its inter-sessional meeting virtually on 18 November 2020 to plan its forthcoming activities. EMRIP decided that its annual study for 2022 would be a follow-up study on its right to land study adopted in 2020[9] in order to include responses to and the aftermath of the pandemic as these relate to the protection of Indigenous Peoples’ rights. It decided that its report for 2022 would focus on the militarization of Indigenous lands, territories and resources.

Prospects for EMRIP’s future and continuing work

The issue of reprisals and attacks against Indigenous human rights defenders remains an issue for EMRIP, an issue it is incorporating into all its work. In its study published this year on the right to land, EMRIP highlighted that land is at the heart of many of these disputes, that Indigenous lands are carved up and sold off, often with little or no consultation, and that those who resist are often brutally treated. This view was shared by the participants at the Human Rights Panel discussion in September 2020 on the Protection of Indigenous Human Rights Defenders, emphasizing that perpetrators enjoy almost total impunity.[10]

A further issue of concern for EMRIP is the absence of requests from states to engage with EMRIP under its country engagement mandate as well as states’ failure to respond to EMRIP in relation to requests from Indigenous Peoples regarding country engagement requests and/or missions. EMRIP intends to invite states to its session in July 2021 so that they can share their views on how to facilitate a stronger dialogue with states regarding requests for country engagements.

 

Laila Susanne Vars is the Chair of EMRIP and its member from the Arctic. She is an Indigenous Sámi lawyer with a PhD in international law and is a former member and Vice President of the Sámi Parliament in Norway. She is currently the President of the Sámi University of Applied Sciences – Sámi allaskuvla.

 

This article is part of the 35th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced.  Find The Indigenous World 2021 in full here

 

Notes and reference 

[1] OHCHR. “Expert Mechanism on the Rights of Indigenous Peoples.” 2021. https://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/EMRIPIndex.aspx

[2] OHCHR. “13th session/ Regional meetings of the Expert Mechanism on the Rights of Indigenous Peoples:

The impact of COVID-19 on the rights of indigenous peoples under the UN Declaration on the Rights of Indigenous Peoples.” 30 November-4 December 2020. https://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/Session13.aspx

[3] Expert Mechanism on the Rights of Indigenous Peoples. “Technical Advisory Note – Repatriation request for the Yaqui Maaso Kova.” 16 June 2020. https://www.ohchr.org/Documents/Issues/IPeoples/EMRIP/Session12/MaasoKova.pdf

[4] OHCHR. “Expert Mechanism Advice under the country engagement mandate.” 2021. https://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/RequestsUnderNewMandate.aspx

[5] Due to the COVID-19 crisis, the EMRIP conducted its 13th session virtually on two occasions in 2020. It held part of its 13th session virtually in Geneva on 22, 23 and 24 June, and part in the form of four regional meetings from 30 November to 3 December 2020.

[6] United Nations General Assembly, Human Rights Council. “Right to Land under the United Nations Declaration on the Rights of Indigenous Peoples: a Human Rights Focus.” A/HRC/45/38, 15 July 2020. https://undocs.org/A/HRC/45/38

[7] Due to the COVID-19 crisis, the EMRIP conducted its 13th session virtually on two occasions in 2020. It held part of its 13th session virtually in Geneva on 22, 23 and 24 June, and part in the form of four regional meetings from 30 November to 3 December 2020.

[8] United Nations General Assembly, Human Rights Council. “Repatriation of ceremonial objects, human remains and intangible cultural heritage under the United Nations Declaration on the Rights of Indigenous Peoples.” A/HRC/45/35, 21 July 2020. https://undocs.org/A/HRC/45/35

[9] United Nations General Assembly, Human Rights Council. “Right to Land under the United Nations Declaration on the Rights of Indigenous Peoples: a Human Rights Focus.” A/HRC/45/38, 15 July 2020. https://undocs.org/A/HRC/45/38

[10] OHCHR. “Experts: Indigenous human rights activists should be protected not criminalised.” 12 October 2020. https://www.ohchr.org/EN/NewsEvents/Pages/Indigenous-HR-Defenders.aspx

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