The Indigenous World 2022: The Expert Mechanism on the Rights of Indigenous Peoples (EMRIP)

Written on 01 April 2022. Posted in 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 to assist Member States, upon request, in achieving the aims of the UNDRIP through the promotion, protection and fulfilment of the rights of Indigenous Peoples, including through country engagement.

As in 2020, the COVID-19 pandemic not only continued to disrupt the work of the EMRIP in 2021 but also the lives of Indigenous Peoples globally. EMRIP continued conducting its activities virtually and adjusted its annual session, inter-sessional meeting, and coordination meetings with other Indigenous mechanisms accordingly. EMRIP engaged with the University of Manitoba and launched a virtual seminar on the right to self-determination in February 2021, which informed the EMRIP’s report on the subject adopted during its 14^th session. It conducted its 14^th session virtually in July 2021 through four regional meetings with the purpose of receiving comments on two reports: 1) Study on the Rights of the Indigenous Child, and 2) Report on the Implementation of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), focussing on the right to self-determination. The regional discussions and written submissions highlighted good practices and challenges with regard to the thematic study and report. A total of 10 side events were held virtually during the session on a broad array of themes relating to the rights of Indigenous Peoples.

EMRIP attended the Global Task Force for Making a Decade of Action for Indigenous Languages^[1] in March and June 2021, coordinated by the United Nations Educational, Scientific and Cultural Organization (UNESCO). On 24 June 2021, the Chair of EMRIP took part virtually in the day of discussion organized by the Committee on the Elimination of Discrimination against Women (CEDAW) on its general recommendation on the rights of Indigenous women and girls. EMRIP transmitted a written submission on the subject for the Committee’s consideration. EMRIP also contributed to the Committee on Economic, Social and Cultural Rights’ Draft General Comment on Land and Economic, Social and Cultural Rights. EMRIP took part in the 20^th session of the Permanent Forum on Indigenous Issues, held virtually in April 2021. Despite the constraints of the COVID-19 pandemic, EMRIP finalized an Advisory Note as requested by Indigenous Peoples in Brazil, which was provided pursuant to its country engagement mandate under Human Rights Council resolution 33/25 (para. 2).

This article is part of the 36th 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 Indigenous Women standing up and taking the lead in the land rights struggle of their community in Jharkhand, India. This photo was taken by Signe Leth, and is the cover of the Indigenous World 2022 where the article is featured. Find The Indigenous World 2022 in full here

The Thematic Study on the Rights of the Indigenous Child under the UNDRIP and the Report on “Efforts to implement the United Nations Declaration on the Rights of Indigenous Peoples: Indigenous Peoples and the right to self-determination”

EMRIP’s annual session took place virtually from 12 to 16 July 2021 where it held four regional meetings focussing on the draft study on the Rights of the Indigenous Child under the United Nations Declaration on the Rights of Indigenous Peoples and comments in this regard, as well as a closed meeting for members to analyse the outcome of the regional meetings on 15 July.

EMRIP also presented the draft report entitled “Efforts to implement the United Nations Declaration on the Rights of Indigenous Peoples: Indigenous Peoples and the Right to Self-Determination”. Both the draft study and the draft report were revised following the session based on comments and suggestions received by EMRIP from all participants. An analysis of the meetings can be found in EMRIP’s annual report which it submitted to the Human Rights Council at its 48^th session in September 2021.^[2]

The Study on the Rights of the Indigenous Child under the UNDRIP^[3] provided EMRIP with the opportunity to integrate a human and children’s rights-based approach into the interpretation of Indigenous children’s rights under the UNDRIP. It examines both the individual and collective rights of Indigenous children, as well as the interplay between them, and incorporates the principle of the best interests of the child in the context of Indigenous children. The study is linked to the Report on Self-Determination, highlighting that Indigenous Peoples’ capacity to meet their children’s needs depends on their ability to exercise their right to self-determination. This is essential when considering existing gaps in areas such as education and child welfare. The study concluded with Advice No. 14, in which EMRIP put forward some measures that States, Indigenous Peoples and other stakeholders could take to implement the relevant rights as contained in the UNDRIP. For the first time, EMRIP’s session included the participation of Indigenous children. The powerful statements made by these children and youth enriched the debate, notably the Study on the Rights of the Indigenous Child. This has encouraged participants to engage more regularly with children and youth in the future.

The Report on the Right to Self-Determination^[4] builds upon other United Nations studies and reports on self-determination and should be read in conjunction with other EMRIP reports, in particular its reports on the right to participate in decision-making, recognition, reparation and reconciliation, land rights and free, prior and informed consent, in which it expounded on the right to self-determination as the fundamental norm upon which Indigenous rights are grounded.

The Report concludes with recommendations to both States and Indigenous Peoples highlighting the direct correlation between the extent of the formal recognition of Indigenous Peoples by States and the extent to which States respect, protect and fulfil their right to self-determination. The greater the level of recognition, the deeper the implementation of the right.

Regional dialogues

The first three days of EMRIP’s 14^th session were dedicated to holding regional dialogues on the thematic study and report mentioned in the section above.^[5]

Rights of Indigenous children

Participants reported that Indigenous children face discrimination and marginalization. Limited access to education in their native languages remains a challenge, and they referred to various forms of historical and current physical and psychological abuse against them, raising serious concerns regarding the racism and hate crimes experienced by Indigenous children. They also addressed the structural causes of this problem, and its potential remedies. Despite progress in reforming child welfare systems, participants stressed that much work still needed to be done, for example on the need for accountability.

In the context of COVID-19, Indigenous children’s education had reportedly been interrupted because they lacked access to electricity, smartphones and/or the Internet, and some had dropped out of school to support their families financially. Both Indigenous children and those with disabilities faced challenges in accessing quality education and participants called for a review of education policy to address the needs of all Indigenous children without discrimination.

Participants stressed the need to increase Indigenous children’s access to bilingual education, higher education opportunities and health services, including sexual and reproductive health and education services. Indigenous girls and young women were particularly vulnerable to poverty, barriers to education, harmful cultural practices, early pregnancy, and barriers to accessing health care and reproductive health services and products, among other things. These risks were intensified in contexts of conflict where there is a need to protect the rights of Indigenous girls and young women in accordance with national and international standards. The risks associated with sexual violence, trafficking and child labour, particularly among Indigenous girls and young women, were also raised, and States were called upon to establish culturally appropriate responses and prevention measures.

Participants expressed concern at child removal policies and practices and at the over-representation of Indigenous children in the youth justice system, youth suicide, child protection services and out-of-home care services. Concern was also expressed at the risks faced by Indigenous children who work as human rights defenders, and a recommendation was made for EMRIP’s study to address the civil and political rights of Indigenous children.

Right to self-determination: human rights focus

In relation to this report, participants expressed their concern at the limited implementation of the UNDRIP on matters concerning Indigenous women in many countries and at the stigmatization and criminalization of Indigenous Peoples when demanding their right to self-determination. Participants urged States to recognize Indigenous Peoples’ right to self-determination over Indigenous territories and to recognize Indigenous law on an equal footing with domestic law.

Several participants reported that Indigenous Peoples did not have effective political participation and were not consulted on matters affecting them, such as the exploitation of natural resources. Development projects were authorized without their free, prior and informed consent, causing the destruction of sacred sites, displacement and toxic contamination, among other things. Participants emphasized that limited recognition of self-determination increases the risks associated with State responses to climate change, including droughts and floods.

A significant number of participants stressed the challenges facing Indigenous Peoples with regard to implementing free, prior and informed consent. Even in favourable legal environments, its implementation is ineffective. There is still a strong reluctance on the part of the State in some countries to recognize Indigenous Peoples, including their legal claims to autonomy and self-determination. EMRIP was urged to include observations applicable to the rights of Indigenous Peoples in situations of generalized violence or armed conflict.

Implementation of EMRIP’s country engagement mandate

Despite the constraints of the COVID-19 pandemic, EMRIP continued its country engagement work in 2021.^[6] It continued its communications with Indigenous Peoples with regard to undertaking a mission to Canada and was engaged in follow-up conversations on its mission to Finland in 2018. EMRIP also managed to finalize a country engagement request received from Indigenous Peoples in Brazil, which was undertaken virtually, and produced an Advisory Note on how to protect Indigenous Peoples during the current COVID-19 crisis.

EMRIP finalized a country engagement with Sweden regarding a repatriation request from the Yaqui peoples in Mexico of a spiritual object “the Maaso Koya”. EMRIP’s engagement resulted in the parties welcoming the initiation of a process of repatriation of the item to Mexico. An Advisory Note, which is a public record of the engagement, has been posted on EMRIP’s webpage along with advice and information from EMRIP’s previous engagements in Mexico City, Finland and New Zealand.^[7] Several other country engagement requests remain open, including the one to the Democratic Republic of the Congo, which had to be cancelled for security reasons in 2020, as well as to Kenya, the Russian Federation and Australia. On another note, Japan was in continuous communication with the Hokkaido Ainu Association and other relevant stakeholders regarding EMRIP’s request to carry out a country engagement mission.

EMRIP regularly encourages Indigenous Peoples and States to make requests under its country engagement mandate. To date, most requests have come from Indigenous Peoples.^[8] New country missions relating to the requests received are under preparation.

Building relationships with other mechanisms

EMRIP is of the view that coordination between the three UN mechanisms dealing with the rights of Indigenous Peoples is crucial to the success of all their mandates. In 2021, the members of EMRIP held a private meeting with the Chair and other members of the Permanent Forum on Indigenous Issues, the Special Rapporteur on the rights of indigenous peoples and a representative of the Board of Trustees of the United Nations Voluntary Fund for Indigenous Peoples.

In addition, during its annual session, EMRIP held an interactive dialogue with four Treaty Bodies: the CEDAW, the CERD, the CRC and the Human Rights Committee. This dialogue focused on the work the treaty bodies are undertaking with regard to Indigenous Peoples’ rights, which is increasing exponentially, i.e. through references to the UNDRIP in their work.

In 2021, EMRIP also contributed to the CEDAW’s upcoming General Recommendation on the Rights of Indigenous Women and Girls and to the CESCR’s draft General Comment on Land and Economic, Social and Cultural Rights.

EMRIP also participated in the annual meeting of the UN Inter-Agency Support Group (IASG) on Indigenous Issues and contributed to the discussion on the current trends, challenges and opportunities in implementing EMRIP’s mandate. The issue of how IASG members could usefully engage and support EMRIP’s mandate was also discussed.

Inter-sessional meeting, expert seminar and future reports

In 2021, EMRIP decided to prepare a 2022 study on “Treaties, agreements and other constructive arrangements, between Indigenous Peoples and States, including peace accords and reconciliation initiatives, and their constitutional recognition” and organized a virtual expert seminar from 29 November to 1 December 2021.

In 2022, EMRIP will also prepare a report on the militarization of Indigenous land from a human rights focus. The draft report on militarization and the draft study on “treaties and constructive arrangements” will be discussed and finalized by EMRIP during its 15th session from 4 to 8 July 2022.

EMRIP has also decided that its study for 2023 will be on the impact of development policies on Indigenous heritage, with a focus on Indigenous women, and that its report for 2023 will be on establishing effective monitoring mechanisms at the national and regional levels for the implementation of UNDRIP.

Prospects for EMRIP’s future and continuing work

The issue of reprisals and attacks against Indigenous human rights defenders remains an issue. EMRIP has urged the Human Rights Council to call upon States to ensure that Indigenous human rights defenders, including child human rights defenders, are guaranteed due protection during the COVID-19 pandemic and thereafter, including a safe working environment and security. EMRIP has also looked at reviewing laws that criminalize the work of Indigenous human rights defenders, in compliance with the UNDRIP and other international standards. It has also urged States to address all allegations of reprisals and to condemn all reprisals against Indigenous human rights defenders, United Nations mandate holders working on the rights of Indigenous Peoples and representatives of Indigenous organisations, including children, attending sessions of EMRIP.

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 requests from Indigenous Peoples regarding EMRIP’s country engagement missions. EMRIP intends to invite States to its session in July 2022 to share their views on how to facilitate a stronger dialogue with States with regard to requests for country engagement.

Binota Moy Dhamai is the Vice-chair of EMRIP and its member from Asia. He is a Jumma-Tripura Indigenous activist from the Chittagong Hill Tracts (CHT) region of Bangladesh. His activism focusses on peace and the human rights of Indigenous Peoples, including the issue of implementing the intra-State peace agreement between the State and Indigenous Peoples. He is currently a doctoral candidate at the School of Regulation and Global Governance (RegNet), Australian National University, Australia.

This article is part of the 36th 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 Indigenous Women standing up and taking the lead in the land rights struggle of their community in Jharkhand, India. This photo was taken by Signe Leth, and is the cover of the Indigenous World 2022 where the article is featured. Find The Indigenous World 2022 in full here

Notes and references 

^[1] UNESCO. “The Global Task Force for Making a Decade of Action for Indigenous Languages.”  https://en.unesco.org/idil2022-2032/globaltaskforce

^[2] United Nations. General Assembly. A/HRC/48/73. Human Rights Council. Forty-eighth session. 13 September–1 October 2021. Agenda item 5. Human rights bodies and mechanisms. “Annual report of the Expert Mechanism on the Rights of Indigenous Peoples.”  9 August 2021. https://undocs.org/A/HRC/48/73

^[3] United Nations. General Assembly. A/HRC/48/74. Human Rights Council. Forty-eighth session. 13 September–1 October 2021. Agenda items 3 and 5. Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development Human rights bodies and mechanisms. “Rights of the indigenous child under the United Nations Declaration on the Rights of Indigenous Peoples. Study of the Expert Mechanism on the Rights of Indigenous Peoples.” 9 August 2021. https://undocs.org/A/HRC/48/74

^[4] United Nations. General Assembly. A/HRC/48/75.   Human Rights Council. Forty-eighth session. 13 September–1 October 2021. Agenda items 3 and 5. Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development. Human rights bodies and mechanisms. “Efforts to implement the United Nations Declaration on the Rights of Indigenous Peoples.” 4 August 2021. https://undocs.org/A/HRC/48/75

^[5] The four regional dialogues held were i) Africa and North America Regions, ii) Pacific and Asia Regions, iii) The Arctic, Central and Eastern Europe, Russian Federation, Central Asia and Transcaucasia; and iv) Central and South America and the Caribbean.

^[6] Resolution 33/25 provides the 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 recommendations from the 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 set out 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).

^[7] OHCHR. “Technical Advisory Note – Repatriation request for the Yaqui Maaso Kova. Expert Mechanism on the Rights of Indigenous Peoples.” 16 June 2020. https://www.ohchr.org/Documents/Issues/IPeoples/EMRIP/Session12/MaasoKova.pdf

^[8] OHCHR. EMRIP. Requests for country engagement. https://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/RequestsUnderNewMandate.aspx

Tags: Global governance