Creativity Calls: Designing a Monitoring Body for the UN Declaration on the Rights of Indigenous Peoples by Dr Fleur Adcock, Research Associate with the National Centre for Indigenous Studies at the Australian National University (ANU). Reprinted by special permission of Regarding Rights
Calls for an international mechanism to monitor implementation of the 2007 United Nations (UN) Declaration on the Rights of Indigenous Peoples (the Declaration) are growing louder. The Declaration is the most comprehensive articulation of the contours of Indigenous peoples’ rights. The product of more than two decades of intensive negotiations and lobbying by Indigenous peoples and their supporters, it affirms Indigenous peoples’ rights to internal self-determination, their lands and resources, culture, equality and development, amongst others. As a non-budgetary resolution of the UN General Assembly the Declaration is not strictly binding in the way that a UN treaty is. Yet, aspects of the Declaration form part of customary international law. Since the Declaration’s adoption, the idea of a monitoring mechanism has been raised both informally and formally. But in the past year the idea has gained momentum.
In early October 2015, the UN Human Rights Council (the UN’s primary human rights body) is expected to pass a resolution to kick-off informal consultations on a review of the mandate of one its subsidiary bodies – the UN Expert Mechanism on the Rights of Indigenous Peoples – with a view to it potentially taking on the monitoring role. The idea emanated from the UN World Conference on Indigenous Peoples, held at the UN headquarters in New York in September last year. The purpose of that conference was ‘to share perspectives and best practices on the realization of the rights of indigenous peoples, including to pursue the objectives of the … Declaration’.[i] In paragraph 28 of the conference’s outcome document, the Human Rights Council was invited:
to review the mandates of its existing mechanisms, in particular the Expert Mechanism on the Rights of Indigenous Peoples … with a view to modifying and improving the Expert Mechanism so that it can more effectively promote respect for the Declaration, including by better assisting Member States to monitor, evaluate and improve the achievement of the ends of the Declaration.
The text echoed, in weaker language, the appeal for a monitoring mechanism for the Declaration articulated by Indigenous peoples in the 2013 global outcome document from Alta in Norway, a product of Indigenous peoples’ own parallel preparatory process for the World Conference on Indigenous Peoples.[ii]
In addition to its watered down wording, the UN document differs from the Alta document in singling out the UN Expert Mechanism on the Rights of Indigenous Peoples as a candidate for the task. The Expert Mechanism is one of the three UN bodies focused exclusively on Indigenous peoples, along with the Permanent Forum on Indigenous Issues and the Special Rapporteur on the rights of indigenous peoples. The newest of the three, the Expert Mechanism was established in 2007 with a comparatively narrow focus: the provision of thematic reports on topical Indigenous rights issues to the Human Rights Council. It is made up of five expert members appointed by the Human Rights Council and meets annually in Geneva. In the 7 years since it first met, the Expert Mechanism has produced thematic reports on Indigenous peoples’ education, participation in decision-making, languages and culture, access to justice, disaster risk reduction and cultural heritage. Although the Declaration is a recurring agenda item at the Expert Mechanism’s meetings, the expansion of its mandate as envisaged by the World Conference on Indigenous Peoples’ outcome document would be a dramatic shift.
Pockets of resistance to the recasting exist. Some states do not want a UN body monitoring domestic implementation of the Declaration, presumably for fear that it will show up their failings. Others question the legality of monitoring a formally non-binding instrument, an argument neatly put to bed by the Permanent Forum on Indigenous Issues in their 2014 Study on an optional protocol to the United Nations Declaration on the Rights of Indigenous Peoples focusing on a voluntary mechanism, an ‘optional protocol’ being one specific type of monitoring body.
On the flip side, there are also concerns that a monitoring body may replicate dimensions of the now well-known flaws with existing UN monitoring mechanisms, such as the UN human rights treaty bodies. The potential for a monitoring mechanism focused primarily on ‘naming and shaming’ reporting to bring about substantive improvements in the realization of Indigenous peoples’ rights was called into question during discussions at the Permanent Forum on Indigenous Issues’ January 2015 expert group meeting, which specifically explored the establishment of a monitoring mechanism for the Declaration. This is not to undermine calls for a monitoring mechanism of some design. Rather, it is to argue that in the construction (or extension) of a body to monitor implementation of the Declaration it is vital to think creatively and expansively about how best to give life to the rights that instrument affirms. In addition to critiquing states’ rights failings, this could include building the capacities of states to foster continuous improvement in the actualization of those rights and actively working with states to support their current rights strengths, as I argue in my report to that meeting.
Indications are that UN-savvy Indigenous peoples’ organisations will be working to broker state support for a resolution on a monitoring body at the Human Rights Council’s September 2016 session. What kind of monitoring body, if at all, will emerge as a product of the anticipated state-driven informal discussions and these lobbying efforts? What kind of body should emerge? The next year will be pivotal in answering these questions. Now is the time for Indigenous peoples, rights advocates, states and others to join the conversation.
[i] UN General Assembly Resolution 65/198 Indigenous issues (21 December 2010) para 8.
[ii] Global Indigenous Preparatory Conference for the United Nations high-level plenary meeting of the General Assembly to be known as the World Conference on Indigenous Peoples Alta Outcome Document (10-12 June 2013) page 6.
Dr Fleur Adcock is a Research Associate with the National Centre for Indigenous Studies at the Australian National University (ANU) and teaches at the post-graduate level in the ANU College of Law. Fleur’s specialization is Indigenous peoples’ rights under international law and she has published widely in the field. She is from the Māori nation Ngāti Mutunga.