Indigenous World 2020: The Expert Mechanism on the Rights of Indigenous Peoples (EMRIP)

The Expert Mechanism on the Rights of Indigenous People’s (EMRIP)[1] 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 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and assist Member States, upon request, in achieving the ends of the UNDRIP  through the promotion, protection and fulfilment of the rights of Indigenous Peoples. This includes, offering technical assistance and dialogue facilitation upon request. To that end, and with a view to focusing on the UNDRIP’s implementation, EMRIP undertakes regular thematic studies on specific rights enshrined in the UNDRIP, carries out country engagement missions, and brings expertise to relevant national initiatives on Indigenous Peoples’ rights.

In 2019, the Expert Mechanism on the Rights of Indigenous People’s (EMRIP) worked to fulfill its mandate to assist states and Indigenous Peoples in fulfilling the aims of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), as well as to advise the Human Rights Council on the situation of Indigenous Peoples around the world. In many respects, this was a year of “firsts” – landmark events in which EMRIP advanced Indigenous rights in notable ways. In 2019, EMRIP made the mechanism’s first visit to Africa, holding an intersession in South Africa; met for the first time with ILO supervisory bodies; and held the UN’s first-ever panel on Indigenous Women in Power. Other major highlights included a country engagement mission to New Zealand regarding a national action plan to implement the UNDRIP and the publication of a foundational study on The Rights of Indigenous Peoples in the Context of Borders, Migration, and Displacement.

Indigenous Women in Power

One of the highlights of EMRIP’s annual session this year (15-19 July 2019)[2] was a panel on “Indigenous Women in Power”, showcasing seven extraordinary Indigenous women from around the world. These Indigenous women had overcome great odds to become elected to parliaments, ministries, and other national offices. They shared their stories of their personal rise to power, highlighting the hardship, prejudice, and discrimination they had to face: fighting against their own disadvantage and poverty before being in a position to help their people.

Many inspiring and powerful points came out of this meeting. Joenia Wapichana a member of the Wapichana people of Brazil, was the first Indigenous woman to become a lawyer and the first elected, as a representative in the Brazilian government. She was also the recipient of the United Nations Human Rights Prize in 2018. She says her “duality” – being female and Indigenous – has given her both a unique perspective and strength.  “I am here because I know who I am. I am here because I know my people. I know where I want to go and we are all part of this planet. We have to protect Indigenous lands and Indigenous rights.”[3]

Implementation of its 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 and policies and capacity building; provide advice on the implementation of recommendations of human rights mechanisms; and act as a dialogue facilitator between the State 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 like the treaty bodies, the special procedures of the Human Rights Council and the Universal Periodic Review procedure (UPR).

EMRIP undertook a country engagement mission to New Zealand from 8 to 13 April 2019. The request for this country engagement came from the Aotearoa Independent Monitoring Mechanism on behalf of the National Iwi Chairs Forum and the New Zealand Human Rights Commission. The purpose of the mission was to provide advice on the development of a National Plan of Action or other measure to achieve the ends of the UNDRIP. During its mission, EMRIP traveled to Wellington and Auckland, where it met with the requesters, Maori from different communities, NGOs, state and legal officials, academia and others. Following the Mission, EMRIP sent an Advisory Note[4] to the government and Maori. Although specific to New Zealand, this Note should be of assistance to others in developing plans of action on Indigenous Peoples’ rights.

During its session in July 2019, EMRIP heard positive reports from New Zealand and Maori on this Mission. New Zealand reinforced its support of the process by referring to a powerful quote from the Minister of Justice made during the Mission, “Perhaps it is no longer about changing Maori to suit the government's needs, it's time that we change the government to suit Maori”.

EMRIP has devised and made public a short online form for country engagement requests and encourages States as well as others to do so: to date the majority of requests have come from Indigenous Peoples.[5] New country missions relating to these requests are under preparation. Requests for country engagement include: repatriation of ceremonial objects; implementation of regional court decisions; implementation of Universal Periodic Review recommendations; eviction of Indigenous Peoples from their land; the protection of Indigenous children; the implementation of legislation recognising Indigenous Peoples; and traditional fishing rights.

Building relationships with UN mechanisms and the ILO Supervisory Bodies

EMRIP has continued to cooperate and engage with the UN Permanent Forum on Indigenous Issues, the UN Special Rapporteur on the Rights of Indigenous Peoples and the Board of Trustees of the United Nations Voluntary Fund for Indigenous Peoples, including through coordination meetings hosted by EMRIP.

In the context of its new mandate, EMRIP regards it as crucial to build closer links and collaboration with the treaty bodies, not least because EMRIP’s new mandate specifically refers to the provision of advice on the implementation of treaty body recommendations.

During its 12th session in July 2019, EMRIP maintained an agenda item on exchange with the un Human Rights Committee and the UN Committee on the Elimination of Discrimination against Women. EMRIP is also developing closer collaboration with the UN Committee on the Elimination of Racial Discrimination, which has begun encouraging States to seek technical advice from EMRIP, like the most recent example of Canada.[6]

EMRIP also met in a closed session with the ILO supervisory bodies, the Special Rapporteur and the Human Rights Committee, on the ILO’s understanding of free, prior and informed consent. This meeting resulted in improved understanding between the bodies on the meaning of free, prior and informed consent, an agreement on the complementarity of the two instruments (C169 and the UNDRIP), and a commitment to work more closely together and to meet regularly. 

Study on Borders, Migration and Displacement and Report on Recognition, Reparation and Reconciliation

During its 12th session, EMRIP adopted its study and advice on Borders, Migration and Displacement (A/HRC/EMRIP/2019/2/Rev.1), under paragraph 2 (a) of Human Rights Council resolution 33/25 and a report on Recognition, Reparation and Reconciliation (A/HRC/EMRIP/2019/3/Rev.1). The study and report were subsequently submitted to the Human Rights Council at its 42nd session in September 2019.

The study on migration is the only study by a body of independent UN human rights experts on this topic and contains advice to States on how to ensure Indigenous rights in the context of migration. In this regard, it is an important complement to the Global Compact on Migration of 2018 and should be read with the Compact when States and UN agencies make migration policy with respect to Indigenous Peoples. The study makes clear that Indigenous Peoples carry their identity and their rights with them when they move, whether voluntarily or not, from their homes. Accordingly, the UNDRIP, in conjunction with the international UN human rights treaties, the regional human rights treaties and ILO C169 all apply to the situation of Indigenous Peoples as migrants.

The study speaks to migration in the context of traditional migratory patterns – where migration is a way of life of Indigenous Peoples, like the Amazigh in North Africa or Sami in the Nordic countries. It also sets out the socio-economic factors that lead to migration such as disproportionate rates of poverty, lack of land and unemployment, as well as structural factors such as inequality in access to health, education and housing. It considers the different forms of forced movement caused by non-recognition of Indigenous Peoples as Indigenous Peoples; encroachment on Indigenous land for commercial activities, militarisation and conflict and climate change. It also highlights some of the challenges for Indigenous Peoples due to this movement, the greatest of which is the uprooting of Indigenous Peoples from their land and the consequent loss of their culture, spiritual connection to their land and language. The study concludes with Expert Mechanism Advice No. 12, which puts forward some measures that States, Indigenous Peoples and other stakeholders can take to ensure the protection of Indigenous Peoples on the move.  

EMRIP also issued a report – Efforts to implement the United Nations Declaration on the Rights of Indigenous Peoples: recognition, reparation and reconciliation – focusing on recognition, reparation and reconciliation initiatives undertaken since the adoption of the UNDRIP, providing an overview of these concepts and anchoring them in the UNDRIP and other international human rights instruments. It provides a series of examples from throughout the Indigenous sociocultural regions to illustrate the central nature of recognition, reparation and reconciliation for the implementation of the UNDRIP. The report offers conclusions and recommendations, with a view to assisting Indigenous Peoples and States to better address the long-term effects of colonisation, discrimination and dispossession of lands, territories and resources.

Inter-sessional meeting, expert seminar and future reports

EMRIP held an expert-seminar hosted by the Centre for Human Rights, Faculty of Law, Pretoria University, South Africa, from 30 September to 1 October 2019, and an inter-sessional meeting, from 2 to 4 October 2019, Pretoria, South Africa.

The purpose of the seminar was to gather information for EMRIP’s study on the, “Right to Land under the UN Declaration on the Rights of Indigenous Peoples: A Human Rights focus” (resolution 33/25, para. 2a, of the Human Rights Council). The seminar provided an opportunity for exchange among academics, practitioners and other experts on this issue. This seminar launched the work on EMRIP’s study on the topic for 2020.

EMRIP will also prepare a report in 2020 on the repatriation of ceremonial objects and human remains (resolution 33/25, para.2b, of the Human Rights Council). This report will be informed by the input to a seminar to be held in the University of British Colombia, in cooperation with EMRIP, in March 2020. A draft report on this theme as well as a draft study on land rights will be discussed and finalised by EMRIP during its 13th session from 8 to 12 June 2020.

The purpose of the inter-sessional meeting was to plan for EMRIP’s forthcoming activities. During this meeting, EMRIP decided inter alia that its annual study for 2021 (resolution 33/25, para. 2a) will focus on the rights of Indigenous children and confirmed that its biannual report for 2021 (resolution 33/25, para. 2b) will focus on self-determination, as expressed in the UNDRIP.

Prospects for EMRIP’s future and continuing work

EMRIP’s concern, expressed in this publication last year, relating to the worsening situation of violence, killings and criminalisation of Indigenous Peoples as human rights defenders, remains a particular worry. EMRIP’s concern also relates to individuals whose livelihoods, work and movement is impeded by States. As in the past, EMRIP’s own members have not been exempt from such reprisals, which remains a concern given that these matters affect individuals who are both UN mandate holders and Indigenous people themselves.

In an unfortunate “first”, EMRIP was informed of an unprecedented number of claims of reprisals arising from attendance at its session in 2019. Many of these cases were against Indigenous fellows, former fellows of the UN Office of the High Commissioner for Human Rights and Indigenous grantees of the UN Voluntary Fund on Indigenous Peoples. EMRIP had to express its alarm at allegations of reprisals that arose at the closing of its session. After the session, EMRIP communicated its concern regarding these matters to the appropriate bodies.

EMRIP will take into account the issue of reprisals in its work, including under its country engagement mandate. It is hopeful that the Human Rights Council panel on the protection of Indigenous human rights defenders to be held in 2020[7] will shed some more light on the causes, consequences and possible solutions to the issue of violence and reprisals against Indigenous Peoples. EMRIP is convinced that it can contribute to alleviating the negative reaction against the defense of Indigenous land through its new mandate combined with its advice in its studies such as the one on free, prior and informed consent, and the study to be produced this year on land rights. 

The article was produced by Kristen Carpenter, who is currently the Chair of EMRIP and its member from North America. She is the Council Tree Professor of Law and Director of the American Indian Law Program at the University of Colorado Law School. She is a graduate of Dartmouth College and Harvard Law School. At Colorado Law, Professor Carpenter teaches and writes in the areas of Property, Cultural Property, American Indian Law, Human Rights, and Indigenous Peoples in International Law. She has published several books and legal treatises on these topics, and her articles appear in leading law reviews.

Notes and references

[1] See more information about the EMRIP at https://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/EMRIPIndex.aspx

[2] It is important to note that EMRIP sessions are webcast and are fully accessible to all persons with disabilities including sign language in the room and captioning in three languages. See http://webtv.un.org/search?term=EMRIP&sort=date

[3] A story on this panel can be found at this link: https://www.ohchr.org/EN/NewsEvents/Pages/IndigenousWomen.aspx

[4] See this link for the Advisory Note - https://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/Session12.aspx

[5] OHCHR. Requests under new mandate - Country engagement. Accessed 4 March 2020: https://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/RequestsUnderNewMandate.aspx

[6] OHCHR. Committee on the Elimination of Racial Discrimination. “Prevention of Racial Discrimination, Including Early Warning and Urgent Action Procedure”. 2019: https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/CAN/INT_CERD_EWU_CAN_9026_E.pdf

[7]A/HRC/Res/39/13 - http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/39/13

 

This article is part of the 34th edition of the 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 2020 in full here

Tags: Global governance

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