The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is stalled. No state or nation has actually implemented its provisions and virtually all proposals to carry out principles such as “free, prior and informed consent” have been tossed to the United Nations instead of put to each state and Fourth World nation to carry out. Since the Declaration speaks to UN Member States primarily, one must expect those states to take necessary actions to activate the minimal standards for protecting and advancing the rights of “indigenous peoples.” That has not happened.
States governments and nations’ governments applaud the Declaration, but they take no concrete steps to actualize and demonstrate their commitments. The work of the last forty years seems locked up in perpetual United Nations’ bureaucratic rituals while some states ceremoniously legislate certain principles but provide no administrative, legal, or budgetary means to bring the domestic legislation into practice. Nations inside Canada, Mexico, Israel, Burma, India, China, Syria, Nigeria, Iraq and Pakistan (to point to but a few states) face mounting political, corporate and state sponsored violence. Nations continue to see development projects destroying communities, deliberate bombing and bulldozing of homes and communities, low level and medium level military attacks, highways, gas and oil pipelines and nuclear testing–yet no state steps forward to invoke UNDRIP minimal standards for “indigenous peoples’ rights.”
Direct State-Nation Negotiations
But there may be a way out of this stalemate. A study just completed by the Center for World Indigenous Studies found that of four proposed approaches to implementing the UNDRIP, one has the greatest probability of achieving agreement by both UN Member States and Fourth World nations (see Realizing UNDRIP Implementation). The study calls for a state-nation-specific protocol defining a framework mechanism for negotiated state-nation agreements. These agreements then can implement relevant provisions of the Declaration on a case-by-case basis, formalized under international law. A coalition of Fourth World nations’ governments and UN Member States’ governments working to define the terms of an international protocol that emphasizes UNDRIP implementation can effectively formulate a pathway forward. Such specific agreements can recognize the interests of both states and nations. This avoids the “top-down” directives to states and nations. In this way each state and each nation would be able to secure implementation of provisions that they actually have the capacity (technically, financially and institutionally) to carry out. A crucial aspect of the state-nation specific protocol proposal is that the affected parties (each state and each nation) may act through a mutually determined mechanism to negotiate as political equals–not just sovereign equals, but political equals.
One of the virtues of the CWIS Study finding is that mechanisms for state-nation UNDRIP negotiated principles provide Fourth World nations the opportunity to demonstrate their political maturity and sovereignty through action instead of repeated claims. We must recognize from the outset that not all or even most nations have the capacity, political maturity or will to engage in international negotiations or negotiations with a state. We must also recognize that not all or even most UN Member States have the capacity, political maturity or resources to engage in international negotiations or negotiations with nations. Of the over five thousand Fourth World nations in the world and 194 states we might predict that five percent (about 250) of those nations have the capacity, political maturity and political will to enter into direct negotiations with their neighboring state to work out details of implementing relevant provisions of the UNDRIP. With appropriate inducements from other states and nations perhaps as many as 48 UN Member States with the capacity, political maturity and political will may enter into negotiations. These are educated guesses, but they reflect a realistic range of probability.
Building Trust and Confidence
States have a fundamental fear of directly engaging nations as political equals since the apprehension derives from a desire to maintain sovereignty within state boundaries and nations challenge state sovereignty. The UNDRIP has a significant political tension built into it between states and nations since both the state and the nation claim inherent sovereignty over territories, resources and peoples—often the same territory, resources and peoples. To directly engage nations as political equals requires the state and the nations to compromise their claimed authority and the exercise of universal law within the state. It is the UNDRIP political tension that interlocutors for states and nations must directly face in an effort to address UNDRIP implementation. The competing claims of sovereign authority inside existing states have yet to be reckoned with; and without resolving the tension there cannot be peace between nations and states.
The proposals offered to implement UNDRIP that focus on the United Nation’s responsibilities clearly seek to avoid this essential political reality of competing sovereignties. An early and deliberate step to build trust and confidence must be taken to open the dialogue and ultimately to negotiations.
The combination of a coalition of states and nations working to define a state-nation-specific negotiating mechanism protocol, adoption of a protocol by both states and nations, and inducements for 250 nations and 48 states to engage in mutually determined dialogue and negotiations would dramatically change the dynamics of human rights by respecting the political interests of indigenous nations and the interests of states. The CWIS Good Governance Research Group wrote in September 2014 about a detailed description of a state-nation specific mechanism protocol in “Nations and States will be Tested” that is instructive.
Under this protocol one state government (say Bolivia) and one nation government (say Haudenosaunee, the Dene Nation, or San Blas Kuna) would be encouraged to invite 11 UN Member States and 14 Fourth World nations to send interlocutors to a neutral state such as Iceland, Switzerland or Lithuania to commence framework talks to facilitate negotiation of a state-nation UNDRIP implementation protocol. The state government and the nation government would host the negotiations along with the location state. Likely UN Member States (that have supported and objected to the UNDRIP) that may be invited would include Bolivia, Tunisia, Germany, Costa Rica, Sweden, Russia, India, Papua New Guinea, Israel, Ghana, and Botswana. Nations’ delegations (that have demonstrated capacity and will to engage internationally) may be invited to include Haudenosaunee, Mapuche, Naga, West Papua, Crimean Tartar, Igbo, Pashtunistan, Tibet, New Zealand Māori Council, Kurdistan, Kwa-Zulu-Natal, Sami, Euskadi (Basque Country), Karen, and Ainu. The host country would serve as the facilitating country.
It is realistic to suggest that direct multilateral state and nation discussions and negotiation of the terms of a state-nation-specific protocol to implement the UNDRIP may take anywhere from eight to 18 months. The significant benefit of these talks and negotiations will be in the level of trust and confidence established between state and nation interlocutors; and the demonstration to other states and nations that constructive agreements can come from such direct talks and negotiations. Adoption of the new protocol may take two years unless it contains a provision of coming into force with a strict minimal number of state and nation ratifiers–say 12 states and 15 nations. The coalition of states and nations responsible for the state-nation-specific protocol would naturally be a source for the first ratifications.
Nations’ and States’ Interests Require Concrete Action
Intercontinental Cry, Cultural Survival, the International Indigenous Working Group on Indigenous Affairs, Survival International, and numerous other regional and local publications and non-governmental organizations regularly report violations and abuses of “indigenous peoples” human rights. Translated into ordinary terms these violations and abuses mean various peoples’ territories, natural resources, cultures and well-being are physically harmed (ethnocide), removed from their life giving lands and resources (ecocide), bombed and intentionally wiped out (genocide), and systematically denied health, education, food and peaceful enjoyment of their homes and property. Oil pipelines are run through territories, highways smash through communities, forests inundated, toxic wastes dumped, bulldozers destroy homes, massive walls are built to deny people free movement, lands are occupied and peoples are held in conditions of apartheid. Freedoms of expression, assembly, political will, and association are systematically denied. What are the sources of all this mayhem? The main sources are states’ governments, corporations, non-governmental (non-state militaries) organizations, organized crime, and organized religions. What jurists and international diplomats call “human rights” supposedly enjoyed by “indigenous peoples” do not exist, except on paper. The depredations against nations are significant and enormously violent, yet the ritualized processes of discussing human rights or indigenous rights violations fail to prevent or reverse them.
But do not let it be forgot that many UN Member States labor over and even risk dissolution under pressures resulting from unresolved disputes, conflicts and animosities with Fourth World nations (some of which exist as a result of the decolonization process of the 1960s-1980s). Indeed, many states are challenged by the humanitarian demands of millions of Fourth World nations’ peoples that are refugees from climate change, war, environmental degradation and development. Conflicts between nations inside states are few in number but nevertheless challenge the stability of the state. Many states are challenged by political or low level military conflicts with nations seeking to either separate as independents from the state or shift their relationship to another state. A large number of UN Member States are in financial trouble and cannot afford to provide the technical or financial resources necessary to ensure the health, education, welfare and economic rights of nations inside their boundaries. Nations in some states occupy and prevent development of environmentally delicate territories that contain raw material wealth that states’ governments believe they need to secure economic prosperity.
Establishing international guarantees of state-nation specific mechanisms to negotiate implementation of UNDRIP would facilitate mediated solutions to state and nation conflicts, disputes and problems of dislocation and development.
Why Should States and Nations Seek Settlement?
A large question is why don’t states’ governments implement human rights norms set in instruments like the Human Rights Declaration? Given there is the UNDRIP and it can be said that human rights applies to “indigenous peoples” can it also be said that indigenous nations’ governments are prepared to implement the UNDRIP? Do they respect the “norms and standards” written into this new human rights instrument?
We should note that norms and standards written into the UNDRIP point to the rights of individuals as well as to nations as collective polities. Will individual nations protect the rights of individuals? Will states protect the rights and interests of individuals and nations? It seems essential that both states’ governments and nations’ governments both must respect and implement the standards and norms in the UNDRIP and perhaps in other international agreements. Unless both are willing to embrace and actively implement these standards there cannot be any movement to apply the norms in relations between nations and states. Direct state and nation interaction within an internationally sanctioned framework, aided by third party guarantors and mediators, can create the political climate of comity necessary to give concrete meaning to “indigenous peoples’ rights.”
Eric Posner of the University of Chicago School of Law, in his new book “The Twilight of Human Rights Law,” (Oxford Press 2014) traces the history of human rights law development and then argues that treaties and institutions domestically and internationally have had little or no effect worldwide to benefit peoples’ well-being. Indeed, he suggests that treaties and other instruments “Were not so much an act of idealism but an act of hubris.” His detractors argue that the Helsinki Final Act (1975) gave opponents to Russian domination sufficient political space that they were able to free themselves. Posner rejoins by asserting that “The hypertrophy of human rights law” is based on the trusting view that “The good in every country can be reduced to a set of rules that can then be impartially enforced.” Posner further explains that a “look at the data suggests that respect for human rights today may be related to the geographic location of affected populations centuries ago, the nature of the institutions that emerged at that time, and cultural traits that have been passed down from generation to generation”. Neil A. Englehart and Melissa K. Miller published a paper in the Journal of Human Rights claiming a “Statistically significant and positive effect on women’s rights” as a result of an international treaty banning discrimination against women adopted in 1979. These researchers assert that the correlation between adoption of the treaty and positive benefits to women’s right was apparent even with weaknesses in treaty enforcement.
Tod Lindberg, research fellow at Stanford’s Hoover Institution, argues that Posner’s historical analysis is essentially wrong and dismisses Posner’s suggestion that human rights law is problematic since it suggests that such law can be “Reduced to a set of rules”. Lindberg says: “International human-rights law is good and useful not because it compels, which it mostly can’t, but because it inspires.” Though he calls into question Posner’s scholarship, his own final argument appears to confirm much of what Posner suggests.
Hilary Charlesworth, an international law scholar and director of the Centre for International Governance and Justice at the Australian National University, presents an enticing analysis of human rights and the annual Universal Period Review that requires states to report on their human rights progress. Charlesworth raises the question, “Why is there such a large gap between human rights law and human rights implementation?” Giving some weight to Posner’s analysis she suggests that “human rights ritualism” may be partly responsible for what could be considered the ineffectiveness of human rights law. “Rights Ritualism” Charlesworth explains is due to the tendency of both the violator of rights and the abused to ritualistically subscribe to institutionalized methods of achieving certain goals, while having little commitment to the goals themselves.” In other words, expressing a willingness to improve human rights and presenting reports to monitoring bodies are the rituals that repeatedly occur without actually accomplishing any changes.
Fleur Adcock, at the National Center for Indigenous Studies, Australian National University, offers a similar analysis to that of Charlesworth. Adcock quotes Robert Merton in her discussion of the UNPFII optional protocol for implementing the UNDRIP “Where an individual abandons culturally prescribed aspirations but ‘almost compulsively’ abides by the socially structured avenues for realizing those aspirations.” She applies this concept as a possible problem for implementing human rights laws to protect “indigenous peoples.” She explains that states routinely accept internationally established norms and ultimately their failure to apply these norms within their domestic law and practice. States’ governments may enact domestic legislation to appear in accord with international norms and Adcock suggests that this may be a form of “rights ritualism” where there may be a law, but there is no government policy, practice, budget or movement to actually carry out the law.
All of these scholars and jurists seem to think the idea of “human rights” is a good thing. Still there is considerable ambiguity about whether what Charlesworth calls the gap between human rights law and human rights implementation can be or is being closed. Indeed, the general consensus seems to be that it is worth working to achieve the application of “universal human rights,” but the evidence is pretty slim that any real progress is or has been made since 1948 because of or despite the international institutions, many non-governmental organizations and governments enacting legislation. The evidence is spotty at best.
This raises the question whether Fourth World nations, and UN Member States for that matter, should enter into a long-term and potentially fruitless effort to implement the UNDRIP standards and norms when it is clear that “human rights” and certainly “indigenous peoples’ rights” can be ritually discussed but not truly realized. As we have noted, some scholars and jurists readily suggest that different cultures, histories, geographies, as well as developmental status may adversely bear on the willingness of states to implement the UNDRIP. Indeed, it is entirely possible that many nations will for the same reasons as states (cultural, history, geography, economics, environmental conditions, etc) reject or fail to implement “The rights of indigenous peoples” as a proposition of individual rights applied to their members. A blanket application of the Declaration’s principles and mandates to states and nations has already come up against opposition by at least 35 UN Member States and reservations to the UNDRIP that constitute obstacles for at least another thirty UN Member States. While we don’t know how many nations’ governments object to or have reservations concerning the UNDRIP (Catalonia, Tibet and Kurdistan have excepted themselves from the Declaration), the probability is that a great many–when put to the task of implementing the Declaration themselves–will oppose or restrict its implementation.
With the UNDRIP confirmed as a “human rights document” and the recently approved Outcome Document of the World Conference on Indigenous Peoples in September 2014 the UN agencies most concerned with “indigenous peoples” turn now to the question of how best to implement the principles and “mandates” approved by the General Assembly. Various proposals have surfaced from UN organs, non-governmental organizations and from academics, and the ones persistently placed on the table for discussion are:
- Do nothing (status quo) and things will work out over time as political leaders in the UN and in the Member States come to better understand the UNDRIP and the World Conference on Indigenous Peoples Outcome Document;
- Review and modify the mandates of existing United Nations mechanisms—the Expert Mechanism on the Rights of Indigenous Peoples in particular so that it can promote respect for the Declaration;
- Craft and offer for adoption by UN Member States an Optional Protocol through the UN Permanent Forum on Indigenous Issues, the Council on Human Rights, and the UN Third Committee establishing additional explicit measures to establish a mechanism to monitor both the content and the weight of the Declaration since as the Special Rapporteur on the rights of indigenous peoples indicates that the Declaration is weakened by ambiguities and positions about its status and content—in particular suggesting that it is “non-binding and merely aspirational;” and
- Craft and offer for adoption a Protocol on Intergovernmental Mechanisms to implement the UN Declaration on the Rights of Indigenous Peoples that establishes guidelines for state-and-nation-specific mechanisms—mutually developed, mediated by a third-party guarantor, and with mutually negotiated terms and conditions for application of the UNDRIP principles taking into consideration the specific and unique conditions and circumstances of each nation and each state.
The first three of these proposals assume the United Nations will carry the burden of implementing the Declaration. The fourth proposal assumes the UN or a host country will provide the venue for negotiating the framework for a protocol, but implementation is left in the hands of each Fourth World nation and each UN Member State that has formally adopted that protocol.
Choosing Honest, Good Faith Engagement
The choice seems to be whether to engage in perpetual UN bureaucratic ritual or open a chapter in state and nation relations that is realistic, mutually beneficial and provides advantages to both parties without recrimination for the failures of parties. Human Rights laws certainly stimulate a great deal of debate and occasionally recriminations between states—often as a political foil. Human rights as a moral good have been codified into conventions and laws, but to this date no enforcement mechanism save “political shaming” has yet been devised to ensure that both states and nations improve the social, economic, political and cultural life of the world’s peoples. Since nations seek respect and political recognition in their own right and states could benefit from reducing conflicts and complications in dealing with nations, it is apparent that the greatest potential success for implementing some or much of the UNDRIP rests with state-nation specific negotiations under a protocol agreed to by states and nations. States and nations will then have an investment in enforcing agreed principles and rules of conduct.
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