EMRIP’s seventh session
The Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) held its seventh annual session from 7 to 11 July 2014 at the United Nations (UN) Office in Geneva (1). In May 2014, during its 25th session, the UN Human Rights Council (HRC) had reappointed International Chief Wilton Littlechild to the Mechanism and appointed Edtami Mansayagain as a new EMRIP expert from the Asia–Pacific group to replace Jannie Lasimbang. This maintained the ratio of indigenous to non-indigenous members of EMRIP at 4 to 1. However, for the first time since its creation, EMRIP currently has no women members (2).
The agenda and programme of work for the seventh session included the upcoming High-level Plenary Meeting of the UN General Assembly to be known as the World Conference on Indigenous Peoples (HLPM/WCIP), follow-up to EMRIP’s previous studies and advice, EMRIP’s continuation of the study on access to justice in the promotion and protection of the rights of Indigenous Peoples, its new study on the promotion and protection of the rights of Indigenous Peoples in natural disaster risk reduction and prevention and preparedness initiatives, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), including the summary of responses to the questionnaire on best practices regarding UNDRIP’s implementation, proposals to be submitted to the HRC, and panel discussions on the post-2015 development agenda and on the role of parliaments in the implementation of UNDRIP.
Victoria Tauli Corpuz, freshly appointed as the UN Special Rapporteur on the Rights of Indigenous Peoples (SR), and Dalee Sambo Dorough, the current Chair of the UN Permanent Forum for Indigenous Issues (PFII), were present for the seventh session, which was also well attended by UN Member States and by Indigenous Peoples’ (IP) representatives, with some notable exceptions. For instance, no representatives of Aboriginal and Torres Strait Islander (ATSI) Peoples from Australia were present. This was in part due to the significant cuts in the Australian Government’s funding to ATSI rights-focused bodies and the current prioritisation by those bodies of national advocacy work. A number of IP representatives from around the world who are engaged at the international level were also absent from the seventh session as a result of the continuing lobbying efforts and preparations taking place in New York in relation to the September 2014 HLPM/WCIP.
2014 preparations for the High-level Plenary Meeting/World Conference on Indigenous Peoples
As discussed in a previous article published on SOGIP’s blog, the participation of Indigenous Peoples in the HLPM/WCIP process was looking increasingly uncertain in late February and early March 2014. Indeed, in light of the initial approach adopted by John W. Ashe, the 68th President of the UN General Assembly (PGA), regarding the final preparative phase for the HLPM/WCIP and the limited nature of Indigenous Peoples’ involvement therein, the North American Indigenous Peoples’ Caucus decided to withdraw from the process and called for the HLPM/WCIP’s cancellation.
However, the PGA subsequently modified his position and was thereby able to maintain the involvement of the remaining Indigenous People’s regional caucuses and regain the support of the so-called (IP-) ‘friendly’ UN Member States. The new framework was elaborated particularly in relation to the informal consultations regarding the HLPM/WCIP and the process of drafting the ‘concise, action-oriented outcome document’ stipulated in General Assembly Resolution A/RES/66/296 (the Modalities Resolution) as its primary outcome (see operative paragraphs 7, 8, 9 and 10).
According to the framework, which is now being implemented, overall authority for the informal consultations and the drafting of the text is to remain with the PGA, who may appoint a designate in the event of his absence. The PGA’s designate was later confirmed as Crispin Gregoire, Special Advisor and focal point for the HLPM/WCIP in the Office of the PGA, formerly the Permanent Ambassador of Dominica to the UN. In conducting the informal consultations with Member States and IPs and in drafting the outcome document, the PGA is to be assisted by four advisors, two representing Member States (the Permanent Representative of Costa Rica and the Permanent Representative of Slovenia) and two nominated by and representing IPs (Mirna Cunningham and Les Malezer). These four advisors are to be treated equally and to have equal participation in the consultation and drafting process. Moreover, the informal consultation process is to be ‘open and inclusive’, allowing for the active participation of IPs. However, once there is agreement on the draft text following the informal consultations and the text goes to a so-called ‘silence procedure’, IPs are effectively formally excluded from the final process of negotiation and agreement that will take place between Member States before the text can be adopted by the UN General Assembly during the HLPM/WCIP.
The first outline of this framework and an initial roadmap for the process were provided by Crispin Gregoire at the 13th session of the PFII on 19 May 2014 (3). Significant delays in the organisational process of the HLPM/WCIP and the drafting of the outcome document had been caused by the lack of consensus between the PGA, UN Member States and IPs on the organisational framework and the level and nature of IP participation therein, particularly in terms of the equal treatment and involvement of IPs and Member States. As a result, neither the informal interactive hearing nor any of the informal consultations called for by the Modalities Resolution were organised to coincide with the 13th session of the PFII, as had been previously hoped by IP representatives so as to ensure their full participation in those meetings in New York.
The first round of ‘open and inclusive’ informal consultations on the outcome document took place on 3 June 2014 in New York (4). The short notice for this meeting was criticised by many IP representatives and some Member States, particularly given the resulting disadvantage for IPs in light of their need to conduct local, national and regional consultations on the designation of representatives to attend such meetings and the logistical difficulties of rapidly securing funding, visas and flights to New York.
The interventions made by IP representatives during this round of consultations overwhelmingly emphasised the need for the Alta Outcome Document (AOD) from the 2013 Global Indigenous Preparatory Conference to be taken as the point of departure for the drafting of the HLPM/WCIP outcome document, alongside UNDRIP. A number of Member States also expressed this view.
Despite the broad apparent consensus on the need for the full participation of IPs in the HLPM/WCIP process to ensure its success, Member State representatives speaking on behalf of the Africa Group, the Russian Federation and China expressed concerns regarding the PGA’s framework for the final organisational phase and the drafting of the outcome document, which, in their view, is potentially at odds with the intergovernmental nature of the General Assembly and the normal UN processes for intergovernmental negotiations and could consequently set an ‘unhealthy precedent’ (5). The PGA responded to these concerns by affirming that nothing in these consultations or the organisational framework for the HLPM/WCIP violates UN procedure or threatens the intergovernmental nature of the General Assembly. The PGA also stressed that the final phase of the process of determining and adopting the HLPM/WCIP outcome document will be exclusively intergovernmental in character. This element of the process was in turn identified as a point of concern by IP representatives.
The informal interactive hearing was held in New York from 17 to 18 June 2014 (6). According to IP reports, Member State attendance was low – a worrying development for IP representatives who identified this as potentially signalling a problem for the adoption by consensus by Member States of the outcome document negotiated with IPs. The two-day hearing was structured around several ‘interactive discussions’ on the following topics: implementation of the rights of IPs; IP lands, territories, resources, oceans and waters; IP priorities for sustainable development; and the HLPM/WCIP outcome document. The first three themes largely reflect the four themes treated in the AOD, given that Alta themes 2 and 3 were conflated under the banner of implementation of IP rights (domestically and internationally) during the interactive hearing. However, free, prior and informed consent (FPIC) was significantly omitted from the heading of the sustainable development theme.
During the interactive hearing many more concrete proposals were made in comparison to the first round of consultations on the outcome document. Once again, IP representatives and ‘friendly’ Member States stressed the need for the AOD to be used, alongside UNDRIP, as the basis for the zero draft. The majority of IP representatives also called for the AOD to be annexed to the outcome document. A number of calls were made for the creation of national and international oversight mechanisms relating to the implementation of UNDRIP. In particular, several IP representatives and ‘friendly’ member states evoked the possibility of expanding the mandate of EMRIP to enable it to perform this function at the international level. The need for recognition of IPs as a distinct category within the UN system accorded with permanent observer status and the possibility of appointing a UN Under-Secretary-General or a similarly high-level UN official devoted to IP affairs were tabled. The summary of the interactive hearing produced by the Office of the PGA also identified violence against women and girls as a recurrent theme raised by both IP representatives and Member States.
Discussion of the HLPM/WCIP during EMRIP’s seventh session
While EMRIP’s seventh session was the last major formal meeting between Member States and IP representatives at the UN level before the HLPM/WCIP in September, providing a significant forum for dialogue on this issue, the PGA did not include this meeting on his roadmap. Nevertheless, the HLPM/WCIP was one of the first agenda items to be treated on day one of EMRIP’s seventh session. It had initially been announced that the PGA would release the zero draft of the outcome document before the opening of EMRIP’s 2014 session. However, more delays meant that the zero draft had not been released by Monday 7 July and the discussion of this agenda item, which included a live video conference with Crispin Gregoire and Lez Malezer in New York, was not particularly fruitful. Many of the same proposals and concerns were raised by IP representatives and Member States. Speaking particularly to IP representatives, Malezer confirmed that the AOD had remained a key reference document in drafting the outcome document, and that Mirna Cunningham and himself were happy with and had been involved in all stages of the drafting process to date.
However, once the zero draft was finally released and discussion on this agenda item was resumed by EMRIP on 9 July, and then on 10 July with Crispin Gregoire via video conference from New York, the majority of interventions made by IP representatives were critical of the draft, which they generally qualified as ‘weak’. It was universally stressed that more time was needed to analyse the document and to consult with IPs on its contents. Nevertheless, some of the major issues identified in the preliminary comments articulated by IP representatives included:
- The need to strengthen the language of the document, replacing terms such as ‘recognise’, ‘consider’, ‘invite’, ‘encourage’ and ‘request’ with terms invoking a strong commitment to action by Member States and the UN system. As highlighted by Wilton Littlechild, only one quarter of the operative paragraphs of the draft contained commitments to action. Dalee Sambo Dorough emaphasised the particular need for the document to embody a stronger commitment by Member States to take on the burden of implementing UNDRIP.
- The absence of time-frames and effective follow-up mechanisms for the realisation of the commitments made in the document.
- The absence of any provision firmly committing to and detailing the creation of an international mechanism to monitor implementation and provide redress for violations of the rights of IPs (including those enshrined in UNDRIP and in treaties, agreements and other constructive arrangements with States).
- The omission of many of the concrete recommendations made in the AOD identified as priorities for IPs, including, for example, the omission of any mention of treaties, agreements and other constructive arrangements, and the omission of any commitment by States to formally recognise all IPs on their territory and their rights as such. The fact that the AOD was included as an annex to the zero draft was welcomed, but did not mitigate these omissions.
- The fact that numerous paragraphs needlessly rephrase rights already enshrined in UNDRIP, and consequently leave the door open to ‘backsliding’ through the introduction of weaker language and commitments.
Once again, strong concerns were expressed by IP representatives regarding the final, intergovernmental phase of the drafting procedure and the potential for Member States to change the negotiated draft outcome document without the FPIC of IPs. As affirmed by Kenneth Deer:
this is a conference that is different from all others; […] it is a world conference, or at least a high-level meeting of the General Assembly, about peoples, and peoples who are indigenous, and all peoples have a right to self-determination. […] Indigenous Peoples have a right to self-determination like all other peoples. And therefore, our participation as equals to all other peoples must be maintained in such a conference. The resistance […] to our full participation has been quite strong by some Member States who are unwilling to allow us to have full and equal participation along with Member States of the United Nations. However, […] our full and equal participation does not mean that we are asking for a vote in the General Assembly. All we are asking for is respect for us as peoples, as equals. And in this process, when we start negotiating the outcome document, that we should be treated as equals, face to face with Member States […]. So that we can come up with a consensus document that respects the rights of all peoples, in particular, Indigenous Peoples.
These concerns and the question of the HLPM/WCIP zero draft were not directly addressed in the proposal relating to the HLPM/WCIP that was included in the report of EMRIP’s seventh session adopted at the conclusion of the 2014 meeting. EMRIP’s report proposes that the HRC organise a panel on the outcome of the HLPM/WCIP and its implications for the implementation of UNDRIP, and that it urge the inclusion of EMRIP, the PFII and the SR in the follow-up related to the HLMP/WCIP (7).
Subsequent consultations on the HLPM/WCIP
The second round of informal, ‘open and inclusive’ consultations focusing on the zero draft of the outcome document were held in New York the week following EMRIP’s seventh session on 16 July 2014 (8). According to IP reports, IP representatives were significantly outnumbered by Member State representatives at these consultations. Moreover, there was insufficient time for all participants to express their views. Many of the same concerns as those raised during EMRIP’s seventh session were articulated by IP representatives in relation to the zero draft. Member State representatives also raised many concerns and expressed very mixed views regarding numerous paragraphs of the document, leaving the PGA and his advisory team with a difficult redrafting task in the attempt to make the first draft acceptable to both IPs and Member States in their diversity.
The first draft of the HLPM/WCIP outcome document taking into account the feedback from the second round of consultations is expected to be released shortly, in time for the third and final round of informal consultations to be held in New York on 18 to 19 August (initially programmed to take place on 18 August, the meeting was extended to cover two days so to ensure enough time for full and inclusive consultations). The first draft and information on this final round of consultations will be made available on the new UN website for the HLPM/WCIP.
The themes for the three interactive round-table discussions and the one interactive panel discussion of the HLPM/WCIP in September (see operative paragraph 3(a) of the Modalities Resolution) are still to be determined by the PGA.
Pre-registration for the HLPM/WCIP closed at the end of June 2014. Les Malezer reported on twitter that over 1500 applications have been received, but highlighted the limited number of available seats for the Conference. This underlines the significance of the longstanding questions surrounding the nature and transparency of the IP, State and/or UN processes that are being used to designate and select IP representatives to participate in the HLPM/WCIP.
EMRIP’s mandate and the international oversight of IP rights
During EMRIP’s seventh session, the Global IP Caucus discussed the possibility of addressing the need to create an effective international oversight and redress mechanism in relation to IP rights through the expansion of EMRIP’s mandate (for an outline of EMRIP’s current mandate, see the report on EMRIP’s sixth session published on SOGIP’s website). As noted above, this possibility had been raised favourably by IPs and some ‘friendly’ Member States in the context of the preparations and consultations relating to the HLPM/WCIP and its outcomes. Notwithstanding the internal divisions within the Global IP Caucus in relation to the HLPM/WCIP itself, there was broad consensus in relation to the expansion of EMRIP’s mandate. As a result, IP representatives decided to attempt to pursue this goal alongside (as well as within) the HLPM/WCIP process. The Caucus discussions on this topic drew particularly from proposals relating to EMRIP’s mandate that had been adopted by consensus in previous years. Consequently, various IP interventions made during EMRIP’s seventh session called for the expansion of EMRIP’s mandate in line with those proposals (see particularly the intervention made by Dali Ángel Pérez on agenda item 8 available via the doCip website). However, this was not reflected in any of the proposals adopted by EMRIP at the conclusion of its 2014 meeting.
During EMRIP’s 2014 meeting, Dalee Sambo Dorough also highlighted another possible oversight and redress avenue currently being pursued through the work of the PFII in relation to an optional protocol to UNDRIP. A study on an optional protocol to UNDRIP, focusing on a potential voluntary mechanism to serve as a complaints body at the international level, in particular for claims and breaches of IP rights to lands, territories and resources at the domestic level, was submitted to the PFII at its 13th session in May 2014. The report of the 13th session also includes a recommendation that the UN Economic and Social Council decide to authorise an international expert group meeting on the theme of a dialogue relating to such an optional protocol.
Post-2015 sustainable development goals
Another recurring focus of EMRIP’s seventh session was the recognition of IPs and their rights and priorities in the post-2015 development agenda currently being negotiated within the UN system. During the panel discussion held on this topic, Victoria Tauli Corpuz and Andrea Carmen raised numerous grave concerns regarding the most recent version of the zero draft of the sustainable development goals being discussed by the Open Working Group on Sustainable Development Goals. They highlighted the fact that, despite IP lobbying and engagement in relation to the drafting process, all references to ‘Indigenous Peoples’ have now been deleted from the draft, which only refers to ‘indigenous and local communities’. Moreover, the word ‘indigenous’ only appears once in the current draft, down from four times in the previous version. Also of concern is the fact that the term ‘free’ does not appear alongside ‘prior and informed consent’ in the current draft, thereby potentially undermining this very important principle for IPs in relation to sustainable development.
In light of these retrograde developments, numerous IP interventions commended the inclusion of operative paragraphs 28 and 29 in the HLPM/WCIP zero draft outcome document on IP rights and sustainable development in relation to the post-2015 development agenda. In particular, paragraph 28 affirms a commitment:
to give due consideration to the rights of indigenous peoples in the elaboration of the post-2015 development agenda and to mainstream the promotion and protection of these rights into the development agenda at the national, regional and international levels.
At the conclusion of EMRIP’s seventh session, the Mechanism adopted a proposal to the HRC that it:
urge States to address the concerns of indigenous peoples in the Post-2015 Development Agenda and to take measurements to ensure the participation of indigenous peoples, and in particular indigenous youth, in national processes for the implementation of the new Development Goals.
In a joint communiqué released on 18 July 2014, the Chair of EMRIP, the Chair of PFII and the SR affirmed that ‘Indigenous peoples cannot be “deleted” from the new global development goals’ and called on States to redress the shortcomings of the current zero draft of the sustainable development goals in relation to IPs and their rights.
Business and IP rights
The topic of business and IP rights was another recurring theme during EMRIP’s 2014 meeting. This subject was also the focus of a side event organised by the European Network on Indigenous Peoples (ENIP) entitled ‘Access to Justice for Indigenous Peoples and the UN Guiding Principles on Business and Human Rights’. ENIP and the International Work Group for Indigenous Affairs (IWGIA) launched their new study entitled Business and Human Rights: Interpreting the UN Guiding Principles for Indigenous Peoples during the side event, which also provided background information and discussion of current developments in this area (see ENIP’s summary of the discussions here). The major potential significance for the future protection of IP rights of two resolutions (A/HRC/26/L.22/Rev.1 and A/HRC/26/L.1) adopted during the 26th session of the HRC in June 2014 was stressed (a brief overview of these resolutions is available here). In particular, operative paragraph 1 of A/HRC/26/L.22/Rev.1 affirms the HRC’s decision to establish an open-ended intergovernmental working group on a legally binding instrument on transnational corporations and other business enterprises with respect to human rights.
In light of these developments, at the end of EMRIP’s seventh session, the Mechanism proposed the HRC include EMRIP in its ongoing initiatives relating to business and human rights, and request EMRIP to convene a technical expert seminar in collaboration with the Working Group on the issue of human rights and transnational corporations and other business enterprises, and with the participation of the PFII and the SR, to provide guidance on the issue of IP access to justice and remedy in the context of business operations affecting their human rights.
(1) The official documents for this meeting can be accessed on the website of the UN Office of the High Commissioner for Human Rights here. The texts of many of the interventions made during EMRIP’s seventh session are available on the doCip website, under ‘Documentation’, ‘Online Documentation’, ‘Conferences’, ‘Human Rights Council’, ‘Expert Mechanism on the Rights of Indigenous Peoples’, ‘2014 – 7th session’.
(2) The full list of past and present EMRIP experts is available here.
(3) Gregoire’s statement can be viewed via the UN WEB TV website here.
(4) This meeting can be viewed via the UN WEB TV website here (part 1) and here (part 2). A short summary of the consultations prepared by the Office of the PGA is available here. Some IP caucus statements made during this meeting are available here. Other statements are available on the doCip website.
(5) This phrase was used by the representative speaking on behalf of the Africa Group of Member States.
(6) This meeting can be viewed via the UN WEB TV website: 17 June (part 1); 17 June (part 2); 18 June (part 3). Official documents relating to this meeting, including the programme, concept note and press release, are available here. A short summary of the informal interactive hearing prepared by the Office of the PGA is available here. Some IP caucus statements made during the hearing are available here. Other statements are available here and on the doCip website.
(7) The final report will be made available on EMRIP’s website here.