The Indigenous World 2023: 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.
This article is part of the 37th 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 person in Tanzania. This photo was taken by Geneviève Rose, and is the cover of the Indigenous World 2023 where this article is featured. Find the Indigenous World 2023 in full here.
In 2022, EMRIP continued to conduct its activities through a hybrid-format annual session, expert seminar, inter-sessional meeting, and coordination meetings with other Indigenous mechanisms accordingly. In its 15th session from 4-8 July 2022, EMRIP conducted three panel discussions: i) Impact of Development Projects on Indigenous Women, ii) Enhancing the Participation of Indigenous Peoples in the United Nations, and iii) International Decade of Indigenous Languages. A total of 24 side events were held virtually during the session on a broad array of themes relating to the rights of Indigenous Peoples.
EMRIP held its intersessional meeting from 7-9 December 2022. The meeting included a two-day expert seminar from 5-6 December 2022 on the “Impact of militarization on the rights of Indigenous Peoples”. The seminar’s main objective was to hold an in-depth discussion for input to EMRIP’s 2023 study; discuss the latest related developments in the policy, legal and institutional fields, at national, regional and international levels; identify good practices and challenges from different regions related to the developments; and contribute to approaches that facilitate constructive dialogue between States and Indigenous Peoples in the UNDRIP framework.
EMRIP participated in the Global Task Force for Making a Decade of Action for Indigenous Languages[1] in June and September 2022 and, in December, among other activities, the EMRIP chair attended the high-level segment of the International Decade of Indigenous Languages launch coordinated by the United Nations Educational, Scientific and Cultural Organization (UNESCO). EMRIP participated in an interactive dialogue with the Expert Mechanism on the Right to Development (EMRTD) in its sixth session from 31 October to 2 November, highlighting the relationship between the right to development and Indigenous Peoples, good practices, and the EMRIP’s country engagement mandate. The EMRIP chair took part in the four-day Office of the High Commissioner for Human Rights (OHCHR) workshop on enhancing the participation of Indigenous Peoples in the Human Rights Council (HRC). EMRIP also took part in the 21st session of the Permanent Forum on Indigenous Issues (UNPFII), presented its report to the HRC at its 51st session, and participated in the annual panel discussion of the HRC on Indigenous Peoples’ rights.
Thematic study adopted
At its 15th session, EMRIP adopted its study entitled: “Treaties, agreements and other constructive arrangements, between indigenous peoples and States, including peace accords and reconciliation initiatives, and their constitutional recognition” (A/HRC/51/50).[2], [3]
EMRIP sees the study as an opportunity to identify the principles and conditions, as well as the broader gaps and challenges, in the realization and exercise of Indigenous Peoples’ rights to conclude treaties, agreements and other constructive arrangements with States and to have them respected and enforced. The study focused on UNDRIP Article 37.[4] It analysed the enabling conditions for the establishment of treaties, agreements and other constructive arrangements for the recognition of Indigenous Peoples as such and the recognition of their rights, which are a precondition for the enjoyment of all the rights enshrined in the UNDRIP. This recognition may not be effective if it is not accompanied by structural reforms, the recognition of legal personality and power-sharing. Particularly important is constitutional recognition, which guarantees the highest level of domestic protection and provides continuity and immunity against instability, political change and/or regression of rights, including in domestic legislation and policies.
Another enabling condition identified in the study is the balance of power in negotiation processes, which is linked with the possibility of Indigenous Peoples participating according to their own decision-making processes, traditional legal systems, customs and practices, and institutions, and to have the means to do that, without interference or attempts to influence their composition or positions or suffering from any form of pressure and coercion. In this sense, the principle of Free, Prior and Informed Consent (FPIC) is relevant in guiding the way a process that leads to the establishment of an agreement should be undertaken. This principle represents the minimum standard and, when fully applied, may give greater legitimacy and strength to the instrument achieved.
The study further identified the conditions and obstacles for the effective implementation of such instruments. Some essential conditions are a common understanding and good faith in the interpretation of such instruments, while some challenges encountered are the lack of technical and financial means, political will and harmony with other regulations.
The study addressed the need to have appropriate mechanisms that support the process of negotiating and establishing agreements, are dedicated to monitoring and enforcing their implementation, and can handle and resolve conflicts, redressing and remedying grievances when these agreements are not fully implemented or are breached. When disputes related to alleged violations of treaties, agreements and other constructive arrangements are not settled in the domestic jurisdiction, the study reiterated the recommendation of the former Special Rapporteur (1999) and those made at the three UN Expert Seminars, which include the recommendations for establishing an international mechanism to handle disputes related to treaties, agreements and constructive arrangements and for establishing an international section or body to register and publish all treaties concluded between Indigenous Peoples and States, giving due attention to securing access to Indigenous oral versions of those instruments.
During the session, participants addressed the recommendations and concerns set out in the study, such as the need for including a best practice for effective funding mechanisms such as independent funding bodies; while others focused on the importance of implementing existing constructive agreements signed with Indigenous Peoples. EMRIP was asked to pay particular attention to the importance of the greater presence of Indigenous women and girls in such a study. In addition, participants noted that the study was an important tool for justice and, as such, truth and reconciliation initiatives could be mentioned in the study as examples of constructive arrangements paving the way for rebuilding trust, partnerships and nation-to-nation relations.
Participants pointed out that the study contains references to peace accords in some of the focus countries, which was not addressed in depth. It was therefore requested that EMRIP conduct a separate study and report on peace agreements and accords in conflict and post-conflict situations involving or affecting Indigenous Peoples.
Indigenous participants also focused on the need to include a call for the OHCHR to launch an international Indigenous Peoples’ treaty repository to ensure access to relevant texts by all parties, including those involving original spirit and intent as understood by the Indigenous Peoples concerned. Participants asked to work with the OHCHR to host a fourth treaty seminar in 2023 to review the implementation of and recommendations from the original UN treaty study, the three follow‑up seminars and the current study.
The study concluded with Expert Mechanism Advice No. 15, which put forward measures that States, Indigenous Peoples and other stakeholders can take to fulfil UNDRIP Article 37.
EMRIP’s country engagement mandate implementation
Since its 2021 session, EMRIP has been unable to undertake any missions under its country engagement mandate due to the persistence of the COVID-19 pandemic. However, EMRIP has maintained a sustained dialogue with requesters and member States to advance the definition and organization of the country engagement missions to be carried out in 2023.
EMRIP followed up on previous and ongoing country engagements, including the repatriation of the Maaso Kova spiritual object from Sweden’s Museum of World Culture to the Yaqui people. In May 2022, the museum communicated the Swedish government’s approval to repatriate the object. Subsequently, the first repatriation step took place on 3 June when the object was handed over to the Mexican Embassy in Stockholm with all stakeholders present. The International Indian Treaty Council, as the requesters of the country engagement, underscored the importance of EMRIP’s follow-up on this engagement and its letters to the governments involved, stressing the need for the direct return of the object to its people.
Sweden’s representative highlighted that the qualified and skilled guidance of EMRIP throughout the process was crucial and highly appreciated by all Swedish parties involved. Mexico’s representative noted that their engagement on the return of the spiritual object is now at the presidential level, which will lead to the legitimate return of the object to the Yaqui people.
EMRIP also followed up on its country engagement with Finland, where the government and requesters participated in a lessons-learned event concerning EMRIP’s 2018 mission. The President of the Sami Parliament of Finland explained that EMRIP had provided important comments on proposed amendments to the Sámi Parliament Act 1995, ensuring that the proposal was in line with the UNDRIP, and noted that the proposal was moving forward. The representative of the Government of Finland explained how the government would continue to work towards renewal of the Act.
Building relationships with other mechanisms
EMRIP is of the view that coordination between the three UN mechanisms dealing with Indigenous Peoples’ rights is crucial to the success of all their mandates. During its 15th session, EMRIP had an interactive dialogue, focused on the implementation of the UNDRIP, with the UNPFII Chair, Special Rapporteur on the rights of Indigenous Peoples, a UN Voluntary Fund for Indigenous Peoples Board of Trustees representative, and representatives of two treaty bodies, who provided updates on their work on Indigenous Peoples’ rights. EMRIP also held a thematic discussion on violence against Indigenous women with the participation of the Special Rapporteur on violence against women, its causes and consequences, who has prepared a thematic report on Indigenous women gender-based violence.[5]
Impact of development projects on Indigenous women
EMRIP’s panel discussion on the impact of development projects on Indigenous women focused on the impact, challenges and measures taken by Indigenous women in contexts where development projects are being implemented by both State and non-state actors without FPIC.[6]
At its 15th session, EMRIP proposed that the HRC urge States to respect and guarantee fulfilment of FPIC with regard to the specific impact faced by Indigenous women in the context of development projects on their territories. This consultation should be done with a view to obtaining FPIC and ensuring respect for and full implementation of agreements resulting from fair and equitable negotiations, if any. States should take all appropriate measures, including through legislation, to ensure that business enterprises in or from their jurisdiction act with due diligence and comply with the full body of human rights, including the Guiding Principles on Business and Human Rights.
Further, EMRIP called for the HRC to recommend that States adopt preventive measures, such as the promotion of the political, social and economic empowerment of Indigenous women and girls, reaffirming their right to land ownership and control over natural resources, in particular water, on their territories and protecting them from dispossession, land encroachment and contamination. States should also be called upon to pay particular attention and take appropriate gender-sensitive responses and actions to address such impacts.
International Decade of Indigenous Languages
At its 15th session, EMRIP proposed that the HRC encourage States to engage in fruitful and sustained dialogue with Indigenous Peoples, scholars, civil society and other public and private actors in order to adopt and implement UNESCO’s Global Action Plan for the International Decade of Indigenous Languages, taking into account the broad spectrum of human rights entailed in the promotion and fulfilment of Indigenous language rights. This includes ensuring the legal recognition of Indigenous languages; formulation of laws, legislation and programmes for social cohesion; participation and inclusion of Indigenous language speakers; and promotion of the functional use of Indigenous languages in all public domains and services.
EMRIP also urged States to take concrete measures for the implementation of the plan at local and national levels in a culturally-appropriate manner and in close consultation and cooperation with Indigenous Peoples. Funding should be allocated to ensure the full and meaningful participation of Indigenous Peoples.
Work for 2023
EMRIP decided to prepare a 2023 study on the status of Indigenous Peoples’ rights worldwide in the achievement of the aims of the UNDRIP, mandated by the HRC.[7] The study will focus on the theme of the impact of militarization on Indigenous Peoples’ rights in line with the UNDRIP. To that end, EMRIP organized an expert seminar on 5-6 December 2022. In 2023, EMRIP will also prepare a report on establishing effective monitoring mechanisms at the national and regional levels for the implementation of UNDRIP. In this regard an expert seminar was organized in February 2023. Both reports will be discussed and finalized during EMRIP’s 16th session from 17-21 July 2023.
Reprisals against human rights defenders, mandate holders and Indigenous leaders
EMRIP emphasized and recalled that the UN system has committed to ensuring that its events are ones where everyone can participate in an inclusive, respectful, and safe environment, without fear of intimidation, harassment or reprisals of any sort, as clearly established in the Code of Conduct to Prevent Harassment, Including Sexual Harassment at UN System Events.
EMRIP urged the HRC to call upon States to behave with integrity and respect towards all participants attending or involved with any EMRIP meeting and to ensure the highest ethical and professional standards. EMRIP also urged the HRC to strongly reaffirm that any act of harassment and reprisals is inadmissible and that it will be dealt with promptly.
EMRIP further called upon the HRC to reiterate the concerns and proposed action set out in Council resolutions A/HRC/42/19 (paras. 27–28) and A/HRC/48/11 (paras. 31–32), including the concern about the increase in cases of reprisals against Indigenous human rights defenders, among others. It also called upon the HRC to urge States to adopt emergency responses to ensure due protection of Indigenous leaders and their communities and to address all allegations and condemn all reprisals against Indigenous human rights defenders, including UN mandate holders working on Indigenous Peoples’ rights and Indigenous Peoples’ representatives attending EMRIP sessions.
EMRIP has been facing some incidents lately that could be understood as acts of intimidation and reprisals against individuals and groups who cooperate or have cooperated with the UN, its representatives and mechanisms in the field of human rights or in the discharge of their mandate as experts appointed by the HRC. For example, EMRIP raised concerns related to the impossibility of EMRIP expert member Ms Anexa Alfred Cunningham returning to her home country after the July 2022 session. EMRIP regularly liaises with the Office of the President of the HRC on allegations of acts of reprisal and intimidation committed against persons in connection with their contribution to EMRIP’s work. EMRIP is in no way intimidated by these regrettable acts and will continue discharging its mandate robustly.
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 continue the dialogue and invite States to its session in July 2023 to share their views on how to facilitate a stronger dialogue with States regarding requests for country engagement.
Binota Moy Dhamai is the Chair of EMRIP (2022-2023) and its member from Asia. He is a Jumma-Tripura Indigenous activist from the Chittagong Hill Tracts (CHT) region of Bangladesh. His activism focuses 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 37th 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 person in Tanzania. This photo was taken by Geneviève Rose, and is the cover of the Indigenous World 2023 where this article is featured. Find the Indigenous World 2023 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. “Treaties, agreements and other constructive arrangements, including peace accords, and reconciliation initiatives, and their constitutional recognition. Study of the Expert Mechanism on the Rights on Indigenous Peoples.” 2022, https://www.undocs.org/Home/Mobile?FinalSymbol=A%2FHRC%2F51%2F50&Language=E&DeviceType=Desktop&LangRequested=False
[3] Ibid. Prepared pursuant to paragraph 2 (a) of HRC resolution 33/25.
[4] Article 37: 1) Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements. 2) Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.
[5] United Nations. General Assembly. “Violence against indigenous women and girls. Report of the Special Rapporteur on violence against women, its causes and consequences, Reem Alsalem.” 2022, G2232390.pdf (un.org)
[6] United Nations. General Assembly. “Annual report of the Expert Mechanism on the Rights of Indigenous Peoples.” 2022, https://undocs.org/Home/Mobile?FinalSymbol=A%2FHRC%2F51%2F49&Language=E&DeviceType=Desktop&LangRequested=False
[7] In resolution 33/25, paragraph 2 (a).
Tags: Global governance, Human rights, IWGIA