Indigenous World 2020: UN Special Rapporteur on the Rights of Indigenous Peoples

Written on 11 May 2020. Posted in UN Special Rapporteur on the Rights of Indigenous Peoples

The Special Rapporteur on the rights of Indigenous Peoples is one of the 56 “special procedures” of the United Nations Human Rights Council. The special procedures are independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective. The Special Rapporteur has a mandate to promote the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and relevant international human rights instruments; examine ways and means of overcoming existing obstacles to the full and effective protection of the rights of Indigenous Peoples; to promote best practices; to gather and exchange information from all relevant sources on violations of the human rights of Indigenous Peoples; and to formulate recommendations and proposals on measures and activities to prevent and remedy violations of those rights.

She is also mandated to work in coordination with other special procedures and subsidiary organs of the Human Rights Council (HRC), the human rights treaty bodies, relevant UN bodies and regional human rights organisations. In accordance with this mandate, the Special Rapporteur can receive and investigate complaints from Indigenous individuals, groups or communities, conduct thematic studies, undertake country visits and make recommendations to governments and other actors. The first Special Rapporteur on the rights of Indigenous Peoples, Prof. Rodolfo Stavenhagen, was appointed by the then Commission on Human Rights in 2001, serving two three-year periods which ended in 2008. The second Special Rapporteur, Prof. James Anaya, was appointed by the HRC in 2008 and held the mandate until 2014. Ms. Victoria Tauli-Corpuzfrom the Philippines was appointed as the third Special Rapporteur by the HRC and assumed her position in June 2014. She is the first woman and the first person from the Asian region to assume the position.

 In September 2019, the HRC resolution renewed the mandate of the Special Rapporteur, including a request for the mandate-holder to participate in relevant international dialogues and policy forums on the consequences that climate change has on Indigenous Peoples, to undertake thematic research and to develop cooperation dialogue with States, intergovernmental organizations, civil society and other stakeholders on effective and sustainable practices.[1] The resolution also urges Governments to address all allegations and to condemn reprisals against UN mandate holders working on the rights of Indigenous Peoples. Ms. Victoria Tauli-Corpuz has herself been the victim of acts of reprisals in the Philippines.[2]

Throughout 2019, the Special Rapporteur continued to carry out work within her four principal work areas: the promotion of good practices; responding to specific cases of alleged human rights violations; conducting country visits; and undertaking thematic studies.

This article is part of the 34^th 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 from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here

2019 thematic studies

Each year, the Special Rapporteur presents two thematic reports, one to the Human Rights Council (HRC) and one to the General Assembly (UNGA).

The Special Rapporteur submitted her annual thematic HRC report on the issue of the rights of Indigenous Peoples and justice in September 2019.[3] The report examines Indigenous Peoples' access to justice, both through the ordinary justice system and through their own Indigenous justice mechanisms, and analyses existing interaction and harmonization between the two systems and the opportunities offered by legal pluralism.

The report observes that effective access to justice for Indigenous Peoples implies access to both the State legal system and their own systems of justice. Without accessible State courts or other legal mechanisms through which they can protect their rights, Indigenous Peoples are vulnerable to actions that threaten their lands, natural resources, cultures, sacred sites and livelihoods. At the same time, the recognition of Indigenous Peoples' own justice systems is essential to ensure their rights to maintain their autonomy, customs and traditions.

The Special Rapporteur recommends, inter alia, the support to Indigenous Peoples in their efforts to seek recognition of their justice systems, with a view to advancing UN Sustainable Development Goal (SDG) 16 of providing access to justice for all.[4] As a starting point, States should explicitly recognize, in constitutional or other legal provisions, the right of Indigenous Peoples to maintain and operate their own legal system and institutions. Consultations with Indigenous leaders and communities should be undertaken in order to better understand their systems, and to subsequently design, jointly with Indigenous representatives, engagement strategies. Measures for the adequate harmonization and interaction of both justice systems have to be adopted.

Moreover, States should include compulsory training on Indigenous justice in the formal training programs for judges, lawyers, prosecutors and law enforcement officials, which recognize the use of Indigenous judicial systems as a right. States and Indigenous justice systems should develop and institutionalize mechanisms and processes for exchanging information and mutual capacity-building with a view to operationalize legal pluralism and provide effective redress. Stronger links between State and Indigenous laws and institutions, based on mutual respect and understanding, such as integrated review bodies with representation of Indigenous and non-Indigenous system judges, could contribute to ensuring respect for human rights in both Indigenous and State legal systems.

The second thematic study developed in 2019 and submitted to the UN General Assembly, dealt with the issue of the right of Indigenous Peoples to autonomy or self-government as a component of their right to self-determination.[5] The report comments on existing legal and other arrangements and processes reflective of or conducive to the recognition and implementation of the right of Indigenous Peoples to autonomy or self-government, with a view to identify positive elements as well as limitations and challenges, and to provide some recommendations to move forward in the realization of these fundamental collective rights.

According to the Special Rapporteur, the recognition of the right of Indigenous Peoples to self-determination has had a positive and transformative influence in international law. Moreover, it also has a transformative impact when implemented at the national level. The adequate implementation of this right implies changes in the general governance of States, which in turn leads to constructive results in terms of human rights compliance, remedy of racism, discrimination and inequality, more democratic and inclusive societies, and enhanced legitimacy of the State itself. The full implementation of the right of Indigenous Peoples to self-determination is also at the core of redress for past and ongoing human rights violations and the foundation for reconciliation.

The report examines a variety of scenarios in which Indigenous autonomy or self-government is happening, including, inter alia, countries with no recognition of Indigenous Peoples, States with historic and contemporary treaty relations with Indigenous Peoples, Indigenous Peoples living in isolation, nation-building processes based on plurinationality, or instances of recognition of certain aspects of the right to autonomy or self-government. It concludes that all the steps ahead adopted by States in terms of realizing these rights have merit and should be pursued, although, in most cases the existing arrangements have not resulted in full compliance with these rights. Thus, Indigenous Peoples can generally only exercise what could be termed as ‘fragmented self-determination’.

The report states that the fulfilment of right of Indigenous Peoples to self-determination calls for the establishment of a true intercultural dialogue, that takes into account Indigenous Peoples' own concepts of autonomy or self-government. UNDRIP, as a consensus framework, provides the best basis to start or continue an intercultural dialogue on how to implement Indigenous Peoples' rights in an environment of reciprocal cooperation.

The Special Rapporteur is developing a report on the situation of Indigenous Peoples in Asia. In November 2019, the Special Rapporteur, in cooperation with the OHCHR, and with the support of the Asia Indigenous Peoples Pact (AIPP) and the Indigenous Peoples International Centre for Policy Research and Education (Tebtebba Foundation) convened a regional consultation  with representatives of Indigenous Peoples from twelve Asian countries. Among the objectives of the consultation were the exchange of experiences and a discussion regarding the current challenges faced by Indigenous Peoples in the region. In parallel, the Special Rapporteur  published a public call for inputs to develop a report on the situation in Asia, following up on the reports developed by her predecessors in 2013 and 2007.[6] The Asia report will focus on the issues of lands, territories and resources, human rights defenders, business and human rights, conservation and environmental rights. Particular emphasis will also be placed on the impact of climate change on the enjoyment of economic, social and cultural rights and the critical role played by Indigenous Peoples in protecting the environment, including through traditional knowledge.

Country visits

In 2019, the Special Rapporteur was able to undertake official missions to an Asian and African country. From 8-16 April 2019, she visited Timor-Leste, where she assessed a number of issues affecting Indigenous Peoples, including customary and formal justice systems, community lands and territories, measures related to conservation and climate change adaptation and mitigation, and enjoyment of economic, social and cultural rights.[7]

The Special Rapporteur welcomed Timor-Leste’s commitment to a pluralistic legal system which recognizes customary justice. During the visit, she learnt about the importance of customary justice for resolving disputes between individuals and communities and how such practices play a key role in conservation and natural resources management. Participatory community-determined rules and practices, such as the decision to enforce temporary no-fishing zones and mangrove reforestation measures, have translated into important biodiversity gains which can serve as inspiring examples for other countries.

She expressed concerns, however, over the ongoing land registration process in Timor-Leste, of the potential impacts of large-scale state-sponsored extractive activities, illiteracy and the lack of mother-tongue education as well as the high rate of chronic malnutrition among children. Among her recommendations, she called for increased dialogue between the formal and customary justice systems in order to harmonize their coexistence and strengthen the SGD objective of providing access to justice for all. She also called for review of the land registration and the expansion of mother-tongue multilingual education.

From 14-24 October, the Special Rapporteur undertook a mission to the Republic of the Congo. During her visit, she held meetings in Brazzaville, visited Indigenous communities in several parts of the Sangha department, and met Indigenous representatives from the Lekoumou, Pool and Plateaux departments. In her end of mission statement, [8] she underlined the importance of the adoption of a national law on the rights of Indigenous Peoples in 2011,[9]  but she remarked there is a long way to go for its actual implementation.

Among the main challenges she could observe during her visit, was the significant discrimination, exclusion and marginalization that Indigenous Peoples suffer in the country, which impacts their access to health services, education, employment and political participation. She also stressed the negative impacts on the rights of Indigenous Peoples of measures to conserve nature and wildlife, which are taken without their participation. Such measures result in deprivation of their own means of subsistence and traditional way of life, while making them victims of violence and prosecution on charges of poaching. In this sense, the Special Rapporteur recommended that the government design and implement national actions that recognize and strengthen Indigenous Peoples’ culture and traditional livelihoods.

The two reports from the country visits to Timor-Leste and the Republic of the Congo will be presented to the HRC in September 2020.

Communications

In 2019, the Special Rapporteur issued more than 100 communications to more than 30 countries and to other entities, such as private corporations and intergovernmental organizations, in response to information received on alleged violations of the human rights of Indigenous Peoples.[10] Cases addressed are included in the special procedures’ joint communications report, which is submitted to each session of the HRC and in the special procedures communications database.[11] She also issued press releases on cases of urgency or special concern.[12]

Collaboration with other UN specialized entities and regional human rights bodies

The Special Rapporteur continued her collaboration with the Permanent Forum on Indigenous Issues (UNPFII) and the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP). She participated in the annual sessions and coordination meetings of both bodies. During the sessions, she held bilateral meetings with delegations of Indigenous Peoples and interested governments to receive information and discuss issues within the scope of her mandate.

The Special Rapporteur participated in an International Expert Group Meeting on conservation and the rights of Indigenous Peoples held in Nairobi from 23-25 January 2019, arranged by the UNPFII.

In February 2019, she co-hosted a meeting in Mexico City, together with UNPFII, EMRIP, the Rapporteurship on Indigenous Peoples of the Inter-American Commission on Human Rights and IWGIA on the issue of Indigenous autonomies.

In July 2019, she participated, together with UNPFII and EMRIP, in discussions with ILO as part of the commemoration of the 30^th anniversary of the entry into force of ILO Convention 169 in Geneva. In September 2019, the Special Rapporteur participated in Geneva in the UN Inter Agency Support Group on Indigenous Issues (IASG) to further the integration of Indigenous issues into the UN system’ agenda and the implementation of the UN Declaration on the Rights of Indigenous Peoples. 

In November 2019 she contributed to the Expert Group Meeting organized by the UNPFII on Sustainable Development Goal 16 on access to justice which took place at Chiang Mai University in Thailand.

In January 2019, she was invited by the United Nations Educational, Scientific and Cultural Organization (UNESCO) to participate as a keynote speaker in the launch of 2019 as the International Year of Indigenous Languages, and also participated in the 4^th Andean Meeting on Peace (Quito, 3-4 July) on the same issue. On 7 August 2019, she issued a media statement, jointly with EMRIP and UNPFII, supporting the call for the international decade of Indigenous languages.

The Special Rapporteur has continued cooperating with other special procedures, including through joint communications, as well as with human rights treaty bodies. She submitted a written contribution to the forthcoming General Comment on land rights by the Committee on Economic, Social and Cultural Rights. She also maintained her engagement with UN agencies, with a view to promote good practices in their work with regards to the rights of Indigenous Peoples.

Other activities

The Special Rapporteur carried out numerous academic visits along the year, including to Australia, Germany, Kenya, Mexico and the United States of America, and provided technical advice at the request of Member States. She continued to engage as a priority on international conferences and meetings of relevance to the rights of Indigenous Peoples and the environment, such as the session of the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) held in Madrid in December 2019. She also participated in a conference in Berlin on the threat conservation poses to Indigenous Peoples in Africa.

Following the presentation of her thematic HRC report on access to justice in the ordinary and Indigenous justice systems, she was invited to present the findings to several events arranged by the International Development Law Organization (IDLO) and the International Commission of Jurists (ICJ).

She has developed several comments on laws and policies regarding Indigenous Peoples’ rights such as the draft consultation law in Honduras, principles on consultation and consent and the law to establish the National Institute of Indigenous Peoples (INPI) in Mexico, the Presidential Provisional measure 870 in Brazil and  the Law amending the vacant, fallow and virgin lands management of Myanmar.[13] She has provided amicus curiae and expert testimony for court procedures, as in the case of Santa Clara Uchunya under consideration by the Constitutional Court of Peru.[14]

She also continued engaging in different activities related to the issues of Indigenous human rights defenders, Indigenous Peoples and conservation, and the rights of Indigenous Peoples in isolation and recent contact. On this issue, she participated in the preparatory meeting for the Amazon Synod organized by REPAM at Georgetown University, Washington, and was invited to address the Synod at the Vatican in October 2019.

As requested by her mandate, the Special Rapporteur has paid particular attention to the rights of Indigenous women and girls. She has been involved in the activities related to the celebration of the 25^th anniversary of the Fourth World Conference on Women: Action for Equality, Development and Peace, which will culminate in a high-level meeting in 2020 on the theme of realization of gender equality and empowerment of all women and girls.

The Special Rapporteur has established a website where, in addition to the mandate page of the OHCHR,[15] her reports, statements and other activities can be accessed at www.unsrvtaulicorpuz.org. 

Christine Evans and Claire Morclette support the mandate of the Special Rapporteur on the rights of Indigenous Peoples at the United Nations Office of the High Commissioner for Human Rights.

Patricia Borraz is an external researcher supporting the mandate. Contact:This email address is being protected from spambots. You need JavaScript enabled to view it.

This article is part of the 34^th 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 from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here

Notes and references

[1] A/HRC/RES/42/20

[2] See The Indigenous World 2018

[3] A/HRC/42/37

[4] Office of the United Nations High Commissioner for Human Rights (OHCHR).  “Statement of Ms. Victoria Tauli-Corpuz, Special Rapporteur on the rights of indigenous peoples at the Human Rights Council 42nd Session”. 18 September 2019: https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=25063&LangID=E

[5] A/74/149

[6] 2013 (A/HRC/24/41/Add.3) and in 2007 (A/HRC/6/15/Add.3).

[7] End of mission statement available at www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx? NewsID=24492&LangID=E. 

[8] Press release: http://unsr.vtaulicorpuz.org/site/index.php/en/news/notes/310-rep-congo End of mission: http://unsr.vtaulicorpuz.org/site/index.php/en/statements/308-end-mission-rcongo

[9] Act No. 5-2011 on the promotion and protection of the rights of Indigenous populations of the Congo

[10] For details of all communications sent and information received under the mandate, see https://spcommreports.ohchr.org

[11] See Office of the United Nations High Commissioner for Human Rights (OHCHR), “Special communications report” at

https://spcommreports.ohchr.org/Tmsearch/TMDocuments

[12] For more information on the latest news from the Office of the United Nations High Commissioner for Human Rights (OHCHR), see: www.ohchr.org/en/NewsEvents/Pages/NewsSearch.aspx?MID=SR_Indigenous_People

[13] Office of the United Nations High Commissioner for Human Rights (OHCHR). “Comments on legislation and policy”. Accessed 13 February 2020: https://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/LegislationAndPolicy.aspx

[14] Office of the United Nations High Commissioner for Human Rights (OHCHR).“Amicus curiae and expert testimony”. Accessed 13 February 2020: https://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/ExpertTestimony.aspx

[15] Office of the United Nations High Commissioner for Human Rights (OHCHR).“Special Rapporteur on the rights of indigenous peoples”. Accessed 13 February 2020: https://www.ohchr.org/en/issues/ipeoples/srIndigenouspeoples/pages/sripeoplesindex.aspx

Tags: Global governance, International Processes