The new millennium

In the years since the turn of the millennium, Indigenous issues have been mainstreamed in the UN system. A number of institutions have been created to deal exclusively with Indigenous issues; Indigenous membership has become a regular fact in these institutions; and many UN specialized agencies have initiated or intensified their involvement with Indigenous peoples.²⁷

Since 2001, the Commission on Human Rights (since 2006 the Human Rights Council, HRC) has regularly named, for periods of three years, Special Rapporteurs on the situation of human rights and fundamental freedoms of Indigenous people (SRIP).²⁸ The Special Rapporteur is mandated to gather, request, receive and exchange information and communications on the violations of human rights and fundamental freedoms of Indigenous peoples. Importantly, and unlike the WGIP, he may investigate specific complaints received by Indigenous peoples (Morgan 2011: 29). The Special Rapporteur is also authorized to formulate recommendations and proposals to prevent and remedy rights violations, and, since 2007, to develop a regular dialogue with all relevant actors, as well as to promote the UN Declaration on the Rights of Indigenous Peoples (UN Commission on Human Rights 2001; UN HRC 2007a). Currently, the mandate is held by Victoria Tauli-Corpuz, an Indigenous activist from the Philippines.

Following recommendations by the Working Group on the Permanent Forum and the CHR, a Permanent Forum on Indigenous Issues (PFII) was created and convened for the first time at UN headquarters in New York in 2002.²⁹ Located at a higher position in the UN system than previous bodies dedicated to Indigenous issues, the PFII is a subsidiary

26 The CANZUS group (Canada, Australia, New Zealand, and Australia) voted against the Declaration.

However, these governments all adopted the Declaration in the subsequent years.

27 An abbreviated version of this section has fed into Hasenclever & Narr (2019).

28 Since 2010, the SRIP is named Special Rapporteur on the Rights of Indigenous Peoples.

29 The creation of the PFII was preceded by a process to consider proposals for the possible establishment of a permanent forum for Indigenous peoples within the UN system, in which IPs equally had been involved (Henriksen 1999; García-Alix 2003: 60–61).

organ of ECOSOC and serves as an advisory body to ECOSOC and other UN institutions.

Its broad mandate stipulates that it shall discuss Indigenous issues relating to economic and social development, culture, the environment, education, health and human rights. It is entitled to raise awareness and promote the integration and coordination of UN activities relating to Indigenous peoples, as well as to prepare and disseminate related information (UN ECOSOC 2000). The PFII is composed of 16 members serving in their personal capacity as independent experts. Whilst eight members are nominated by governments and elected by ECOSOC, the other eight are appointed by ECOSOC’s president following broad consultations with IPOs. The nomination of the Indigenous members follows seven socio-cultural regions defined by Indigenous peoples themselves. The establishment of the forum is considered as an important step towards the recognition of Indigenous peoples in the UN system, as their representatives for the first time gain official status (Ströbele-Gregor 2004: 23; Davis 2005; Morgan 2007: 278).

Its first chairperson, Ole Henrik Magga, has described it as “symbolizing a new kind of partnership between indigenous peoples and governments” (cited in Morgan 2011: 30).

Like in the WGIP, participation with observer status at sessions of the Permanent Forum is open to states, IPOs and advocacy NGOs, international organizations as well as academics, and these actors make use of this opportunity in broad numbers: For the 2015 annual session, over 2.200 participants had registered (Sapignoli 2017: 89).

Moreover, in 2008 an Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) was created as a sub-organ of the Human Rights Council to continue the work of the WGIP.³⁰ The Mechanism is mandated to provide the HRC with thematic expertise on the rights of Indigenous peoples. To accomplish its mandate, it focuses on studies and researched-based advice and may suggest proposals to the Council; it may not, however, adopt resolutions or decisions. The Expert Mechanism consists of independent members who act in their personal capacity (UN HRC 2007b). As an important difference to the WGIP, “in the selection and appointment process, due regard be given to experts of

30 The Expert Mechanism substituted the Working Group on Indigenous Populations, which had been disestablished in 2006 together with the Human Rights Commission as one of its subordinated bodies. The WGIP’s further existence had already been called into question after concluding its version of the draft declaration. Some actors argued that with completing the draft, the WGIP had concluded its mandate.

Indigenous peoples challenged this point of view and successfully lobbied for the continuation of its work.

The issue resurfaced again with the establishment of the Permanent Forum. These recurrent attempts to abolish the Working Group might be an indicator for the strong opposition it continued to face by some states.

indigenous origin” (ibid.). Moreover, a broad range of actors can participate at sessions as observers, ranging from states to IPOs, from UN mechanisms, bodies, funds and programs to IOs, from regional and national human rights mechanisms to academics and experts as well as NGOs. Created in 2007, it has recently undergone a review process. As an important new element of its reviewed mandate, EMRIP now can, upon request, assist member states with the implementation of Indigenous rights. Moreover, the number of its members has been increased from five to seven (UN HRC 2016).

A growing number of UN bodies and other IOs show interest in Indigenous issues and have adopted policies on IPs or carry out specific programs targeted at them. Rising numbers of IOs are actively involved in sessions of the Permanent Forum. An ‘Inter-Agency Support Group’ (IASG) has been created that meets twice a year to coordinate UN policies on Indigenous issues. As of 2015, 42 UN programs, departments and agencies and IOs participated in this group.³¹ Martens (2007: 51) attributes the growing engagement of the UN system with Indigenous issues to the establishment of the PFII.

However, the degree to which IOs offer participation opportunities to Indigenous peoples differs widely. Arrangements range from no exchange with Indigenous organizations (for example at the World Trade Organization) to sporadic consultation (such as the World Health Organization’s (WHO) 1998 Forum on Indigenous Peoples and Health) to a systematic and proactive involvement in policy-making. In this regard, the most far-reaching arrangements are found within the CBD’s Working Group on Article 8j (WG8j), WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), as well as IFAD’s Indigenous Peoples Forum. Within the UN Framework Convention on Climate Change (UNFCCC), the establishment of a Local Communities and Indigenous Peoples platform is currently being operationalized.³²

In 2010, the General Assembly decided to hold, in 2014, a high-level plenary meeting to be called World Conference on Indigenous Peoples (WCIP) “in order to share perspectives and best practices on the realization of the rights of Indigenous peoples, including to pursue the objectives of the United Nations Declaration on the Rights of

31 https://www.un.org/development/desa/indigenouspeoples/about-us/inter-agency-support-group.html, accessed 24.01.2019.

32 https://unfccc.int/news/countries-give-voice-to-indigenous-peoples-through-new-platform, accessed 24.01.2019.

indigenous Peoples” (UN General Assembly 2010). A member state representative and an Indigenous-nominated representative were appointed by the President of the General Assembly to facilitate discussions on the modalities of the World Conference. As to the support NGO International Work Group on Indigenous Affairs (IWGIA), “[t]his decision represented a historical step forward in the UN recognition of indigenous peoples’ right to fully participate in UN decision-making processes”.³³

Date Institution Participation rights for IPs

1982-2006 Working Group on Indigenous

Issues 8 Indigenous members, 8 government nominated

members; additionally, Indigenous participation as observers

2002 CBD Working Group on Article

8(j) Participation as observers

2007 Expert Mechanism on the Rights

of Indigenous Peoples Selection process of members specifically considers persons of Indigenous origin;

additionally, participation as observers 2013

(first session) IFAD Indigenous Peoples’ Forum Steering committee includes a majority of

Indigenous members; additionally, participation as

Table 1: Major mechanisms and institutions dealing with Indigenous issues within the broader UN system, and access opportunities for Indigenous peoples. Source: author’s elaborations.

During the WCIP itself, select Indigenous peoples’ representatives spoke at the opening ceremony, and co-chaired discussions together with state representatives. Moreover, two Indigenous advisors (alongside two from states) supported the President in preparing the outcome document of the World Conference. This outcome document contains three important provisions with regard to Indigenous participation in the UN

33 https://www.iwgia.org/en/focus/global-governance/1950-risk-of-serious-setback-for-indigenous-participati, accessed 24.01.2019. IWGIA also reports that the nomination of an Indigenous facilitator encountered strong resistance by some states. At the same time, some Indigenous organizations rejected the World Conference process as a whole, stating that Indigenous positions had not been taken into account sufficiently, and called for a cancellation of the World Conference, see for example

http://www.oweakuinternational.org/blog-updates--press-release/position-on-the-so-called.html, accessed 24.01.2019.

system: first, a review of existing mechanisms on Indigenous peoples, especially the EMRIP, in order to improve them; second, the development of a system-wide action plan to ensure coherence of UN bodies in addressing Indigenous rights; and third, consideration of ways to enable the participation of Indigenous peoples in meetings of UN bodies on issues affecting them (UN General Assembly 2014b). Consequentially, the President of the General Assembly is currently undertaking consultations regarding the participatory status of Indigenous peoples at the United Nations. He has appointed two Indigenous experts, alongside with two government representatives, to assist him in this regard. As peoples seeking self-determination, Indigenous peoples claim to be entitled to a presence in their own right in the international arena, rather than as a segment of civil society (Tramontana 2012). While several open questions remain,³⁴ the General Assembly plans to take up the topic again during its 75^th session in 2020 (UN General Assembly 2017).

In sum, Indigenous actors are now an established presence at the UN and their participation seems to have reached a point at which it is not questioned anymore.

Institutions in the UN system which deal directly with Indigenous issues regularly provide for Indigenous membership. In other institutions, IPs have been involved as observers with consultative status. It can be said that there is

“an ethos of indigenous peoples’ participation in UN parlance and practice, not only in the context of indigenous specific organs such as the PFII and the EMRIP but also in the mechanisms with a wider relevance to multiple ‘stakeholder’ interests […]. [T]he right of indigenous peoples to participate in decision-making concerning them […] is now a relatively well-established norm in international law” (Morgan 2011: 113).

In fact, multiple factors are outstanding with regard to Indigenous participation in the UN system. First, Indigenous participation in the WGIP started before the participation of affected actors gained momentum more generally. Second, it is far-reaching both with regard to participation rights, including Indigenous membership in the PFII, and with regard to substance, as it comprised the negotiation of standards, namely with regard to UNDRIP. Third, Indigenous participation is fairly encompassing: New institutions have been created that deal specifically with Indigenous issues. At the same time, IPs nowadays are active participants in many UN bodies and programs. Moreover, it is intended to enhance Indigenous participation more generally by creating a separate IPO

34 For a compilation of views in the discussions, see the respective report to the General Assembly (UN General Assembly 2016).

status at the UN. And fourth, participation modalities reflect an Indigenous world view insofar as Indigenous participation at the PFII and EMRIP is enabled independent of NGO structure or status, and membership follows seven socio-cultural regions defined by IPs. Moreover, to enable Indigenous participation in the WGIP, rules for non-state actor participation were bended to create institutional mechanisms that significantly deviated from all previous arrangements; these were transformations unique in the UN history (Muehlebach 2003: 249). Thus, Indigenous participation at the UN in fact is particularly strong compared to other categories of NSAs and APOs. The introduction of further participation opportunities as well as the creation of institutions which offer membership rights to Indigenous peoples however coincide chronologically with the more general developments. In short, the growing inclusion of Indigenous actors into UN institutions constitutes a salient example of the more general trend of NSA participation generally, and APO participation more specifically, in global governance.