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Participation of indigenous peoples

Another significant advantage of using the avenue of a soft law document instead of an international treaty is that ‘it normally allows for the more active participation of non-state actors’.55 It should be noted that this was the case with indigenous peoples, since they participated very actively in all stages of the process leading to the adoption of the UNDRIP.56 Since the creation of the UN Working Group on Indigenous Populations (WGIP) in 1982 by what was then the SubCommission on Prevention of Discrimination and Protection of Minorities (the Sub-Commission),57 and the decision in 1985 to adopt a draft Declaration on the rights of indigenous peoples, followed by the creation of the Working Group on the Draft Declaration (WGDD) in 1995, the meaningful participation of the global indigenous movement has become one of the key features of the lengthy process of negotiation and adoption of the UNDRIP.58

At the time of the creation of the WGIP, a body composed of five independent experts, only NGOs with consultative status before the UN Economic and Social Council (ECOSOC) could participate as observers in the meetings of the working groups created by the Sub-Commission. This was an obstacle for indigenous organizations wanting to participate in the WGIP, since almost no indigenous organization had consultative status before the ECOSOC at that time. The first chairperson of the WGIP, Asbjorn Eide, took a decision that was to have significant consequences for the process of institutionalizing indigenous participation at the UN bodies dealing with indigenous issues. He opened up the working group to indigenous representatives, thus effecting a dramatic change in the tradition of participation of NGOs in working groups. Although this decision met with some objections, he received strong support from Theo Van Boven, Director of the UN Human Rights Center. As Eide has lucidly explained,

to fulfil the mandate of reviewing developments concerning indigenous populations and to work towards developing the corresponding standards, there was a need to have the best possible experts present, and the best experts were the indigenous representatives themselves.59

The same dilemma was faced by the WGDD when it was created in 1995 by the then UN Commission on Human Rights (CHR)[1] [2] [3] [4] [5] [6] aimed at adopting a draft Declaration on the rights of indigenous peoples. Indigenous peoples’ representatives were concerned about the strict rules on NGO participation established by the CHR, and lobbied extensively to gain similar spaces for participation to those existing within the WGIP. While not meeting the degree of openness that characterized the WGIP, indigenous organizations also had the chance to participate significantly throughout the negotiation process. In Rhiannon Morgan’s view, ‘during the drafting of the UNDRIP, indigenous representatives succeeded in pressing for unprecedented levels of inclusiveness and participation, allowing not only for the extensive input of indigenous perspectives as to the content of their rights but also some degree of control over decision-making processes’.[7] [8] [9] [10] [11] [12] The truth is that indigenous peoples’ representatives and organizations benefited immensely from this democratic culture of openness, and since then have occupied an increasing number of spaces within UN bodies dealing with indigenous issues. The increasing participation of civil society movements and other transnational actors in the ‘statecentric system of international law has itself been part of the democratisation trend’ of contemporary international law-making.62

  • [1] Barelli (2009): 965.
  • [2] 56 A. Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture andLand (Cambridge: Cambridge University Press, 2007): 102.
  • [3] ECOSOC Resolution 1982/34, 7 May 1982.
  • [4] I. Bellier, ‘Les Peuples autochtones aux Nations Unies: un nouvel acteur dans la fabrique desnormes internationales’, Critique Internationale vol. 54/1 (2012).
  • [5] A. Eide, ‘The Indigenous Peoples, the Working Group on Indigenous Populations and theAdoption of the UN Declaration on the Rights of Indigenous Peoples’, in Charters and Stavenhagen(2009): 34.
  • [6] UN Commission on Human Rights, Resolution 1995/32, 3 Mar. 1995.
  • [7] Morgan (2011): 41. This process did not count with the support of the USA. In its view, ‘thisprocess was unfortunate and extraordinary in any multilateral negotiating exercise and sets a poorprecedent with respect to UN practice’, United States, ‘Observations of the United States with respectto the Declaration on the Rights of Indigenous Peoples: Explanation of Vote by Robert Hagen, U.S.Advisor, on the Declaration on the Rights of Indigenous Peoples, to the UN General Assembly’, 13Sept. 2007.
  • [8] Boyle and Chinkin (2007): 43.
  • [9] I. Bellier, ‘Retour sur la negotiation de la Declaration des Droits des Peuples Autochtones: recon-naitre le principe d’egalite pour avancer des interpretations pragmatiques’, in Le Statut des peoplesautochtones: a la croisee des saviors, ed. S. P. Dassonville (Paris: Karthala, 2012): 73—96.
  • [10] 64 H. P. Glenn, ‘The Three Ironies of the UN Declaration on the Rights of Indigenous Peoples’, inAllen and Xanthaki (2011): 174.
  • [11] F. Gomez Isa, ‘Repairing Historical Injustices: Indigenous Peoples in Post-Conflict Scenarios’, inRethinking Transitions: Equality and Social Justice in Societies Emerging from Conflict, ed. G. O. Aguilarand F. Gomez Isa (Cambridge-Antwerp: Intersentia, 2011): 265—300.
  • [12] Para. 5 of the Preamble (emphasis added). In James Anaya’s view, this preambular paragraph ofthe Declaration ‘stresses the essentially remedial purpose of the instrument. Far from affirming specialrights per se, the Declaration aims at repairing the ongoing consequences of the historical denial ofthe right to self-determination and other basic human rights affirmed in international instrumentsof general applicability’, Report of the Special Rapporteur on the Situation of Human Rights and
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