scholarly journals Development of an UNDRIP Compliance Assessment Tool: How a Performance Framework Could Improve State Compliance

2020 ◽  
Vol 11 (2) ◽  
Author(s):  
Jackson A. Smith ◽  
Terry L. Mitchell
Keyword(s):  
Human Rights ◽  
Indigenous Peoples ◽  
Assessment Tool ◽  
Indigenous Rights ◽  
Compliance Assessment ◽  
Performance Framework ◽  
Novel Approach ◽  
State Compliance ◽  
United Nations Declaration ◽  
A Performance

Improving state compliance with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) can be supported by monitoring and measurement. Current approaches to monitoring state compliance with the UNDRIP are qualitative and non-standardized, which limits comparability across time and across geopolitical lines. In this article, we introduce a novel approach to monitoring compliance with the UNDRIP and human rights more generally. This work highlights the potential advantages of using a performance improvement framework to clearly identify gaps in compliance, monitor state compliance with the Declaration over time, and effectively assess and compare state compliance. We describe the development of a standardized UNDRIP compliance assessment tool and report the process and findings of a pilot test of the tool. The pilot assessment utilized the UN Special Rapporteur on the Rights of Indigenous Peoples' (SRRIP; Anaya, 2014) findings on the situation of Indigenous Peoples in Canada in three thematic areas: (a) self-government and self-governance; (b) consultation and free, prior, and informed consent (FPIC); and (c) land and natural resources. While insufficient for a fulsome assessment of Canada’s compliance with the UNDRIP, we restricted ourselves to the report for two reasons: first, to test the applicability of the tool for quantifying qualitative data; and, second, to evaluate the degree to which the UN monitoring mechanism for Indigenous rights adheres to the Declaration’s Articles for monitoring and reporting. We discuss implications and opportunities for improving human rights monitoring and state implementation efforts.

Part I The UNDRIP’s Relationship to Existing International Law, Ch.3 Relationship to Human Rights, and Related International Instruments

2018 ◽  
Author(s):  
Scheinin Martin ◽  
Åhrén Mattias
Keyword(s):  
Human Rights ◽  
Indigenous Peoples ◽  
Minority Groups ◽  
Indigenous Rights ◽  
Specific Reference ◽  
Political Rights ◽  
Rights Discourse ◽  
United Nations Declaration ◽  
Human Rights Norms ◽  
International Instruments

This chapter analyses how the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) fits within the broader picture of international legal instruments, with specific reference to related human rights norms. In many respects, the general approach the UNDRIP takes towards indigenous rights is natural. Largely from the very day indigenous peoples' representatives started to address the UN in order to claim recognition of and respect for their rights, the focus of such claims has been on allowing indigenous peoples the possibility to preserve, maintain, and develop their own distinct societies, existing side by side with the majority society. In other words, political rights — or sovereign rights — have always been at the forefront of the indigenous rights regime. In that way, indigenous peoples' rights distinguish themselves from those that apply to minority groups that are primarily individual rights. Thus, when placing emphasis on peoples' rights, the UNDRIP follows in the tradition of the indigenous rights discourse in general, as reflected in Article 3 of the Declaration.

scholarly journals Respecting and recognising Indigenous rights when challenged by commercial activities

2017 ◽  
Vol 10 (1) ◽  
pp. 1-17
Author(s):  
Valmaine Toki
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Indigenous Peoples ◽  
Indigenous Rights ◽  
Extractive Industries ◽  
Reference Guide ◽  
Commercial Activities ◽  
Basic Rights ◽  
The United Nations ◽  
United Nations Declaration

The United Nations Declaration on the Rights of Indigenous Peoples was hailed as a triumph among Indigenous peoples, signalling a long-awaited recognition of their fundamental human rights. Despite this, many violations of these basic rights continue, particularly in relation to extractive industries and business activities. In response, a business reference guide seeks to inform industries of their responsibilities. This article examines the tenuous relationship between Indigenous rights, state responsibilities and business expectations.

scholarly journals Realizing Indigenous Rights in the Context of Extractive Imperialism:

2019 ◽  
Vol 12 (1) ◽  
pp. 46-59
Author(s):  
Terry Mitchell
Keyword(s):  
Sustainable Development ◽  
Human Rights ◽  
Latin America ◽  
Indigenous Peoples ◽  
Indigenous Rights ◽  
Legal Framework ◽  
Economic Disparities ◽  
Resource Governance ◽  
United Nations Declaration ◽  
Domestic Law

Canada’s reputation as a global champion of human rights has been tarnished by the revelation of the enduring colonial impact and social and economic disparities endured by Indigenous peoples within Canada. While Canada has a strong legal framework for Indigenous rights, its significant and enduring policy and implementation failures are increasingly recognised by both domestic and international bodies. This article addresses Canada’s shifting yet fledgling progress towards the harmonisation of Canadian domestic law and the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. The pathway to reconciliation and sustainable development for Canada is discussed as rights-based resource governance in contrast to Canada’s current imposition of extractive imperialism in both Canada and Latin America.

scholarly journals Looking Forward Looking Back: Customary International Law, Human Rights and Indigenous Peoples

2020 ◽  
pp. 1-26
Author(s):  
Shea Esterling
Keyword(s):  
Human Rights ◽  
International Law ◽  
Indigenous Peoples ◽  
Legal Status ◽  
Indigenous Rights ◽  
Soft Law ◽  
Customary International Law ◽  
United Nations Declaration ◽  
Shed Light

Abstract Two of the most laudable achievements of human rights are the 1948 Universal Declaration of Human Rights (udhr) and the 2007 United Nations Declaration on the Rights of Indigenous Peoples (undrip). Aside from advancing human rights, both are examples of soft law. For the undrip, this soft law status has generated significant controversy which is evocative of the earlier debate surrounding the legal status of the udhr. Yet unexamined, this article analyses this contemporary controversy surrounding the undrip in light of the historical debate surrounding the legal status of the udhr. Fleshing out points of convergence and divergence, these debates unearth narratives which shed light on the claims and advocacy strategies of Indigenous Peoples and the role of customary international law within human rights. Ultimately, it reveals that these narratives do little to secure the enforcement of indigenous rights.

scholarly journals Indigenous Peoples and the Jurisgenerative Moment in Human Rights

2017 ◽  
Author(s):  
Angela R. RIley ◽  
Kristen Carpenter
Keyword(s):  
Human Rights ◽  
Indigenous Peoples ◽  
Postcolonial Theory ◽  
Indigenous Rights ◽  
International Human Rights Law ◽  
Paradigm Shifts ◽  
International Human Rights ◽  
Human Rights Movement ◽  
International Human ◽  
United Nations Declaration

As indigenous peoples have become actively engaged in the human rights movement around the world, the sphere of international law, once deployed as a tool of imperial power and conquest, has begun to change shape. Increasingly, international human rights law serves as a basis for indigenous peoples’ claims against states and even influences indigenous groups’ internal processes of decolonization and revitalization. Empowered by a growing body of human rights instruments, some as embryonic as the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), indigenous peoples are embracing a global “human rights culture” to articulate rights ranging from individual freedom and equality to collective self-determination, property, and culture. Accordingly, this Essay identifies and provides an account of what we see as an unprecedented, but decidedly observable, phenomenon: the current state of indigenous peoples’ rights—manifesting in tribal, national, and international legal systems—reflects the convergence of a set of dynamic, mutually reinforcing conditions. The intersection of the rise of international human rights with paradigm shifts in postcolonial theory has, we argue, triggered a “jurisgenerative moment” in indigenous rights. Bringing indigenous norms and values to their advocacy, indigenous peoples have worked to assert their voices in, and indeed to influence, the human rights movement. Indigenous peoples are now using the laws and language of human rights, shaped by indigenous experiences, not only to engage states but also as a tool of internal reform in tribal governance. This is, in our view, a jurisgenerative moment in indigenous rights—a moment when both the concept and practice of human rights have the potential to become more capacious and reflect the ways that individuals and peoples around the globe live, and want to live, today.Published: Angela R. Riley and Kristen A. Carpenter, "Indigenous Peoples and the Jurisgenerative Moment in Human Rights," 102 California Law Review 173 (2014).

scholarly journals Indigenous Nations’ Rights in the Balance

2014 ◽  
Vol 7 (1) ◽  
pp. 1-3
Author(s):  
Marcelle Burns
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
Indigenous Peoples ◽  
Indigenous Rights ◽  
Indigenous Nations ◽  
White Face ◽  
Indigenous Human Rights ◽  
The United Nations ◽  
United Nations Declaration

The United Nations’ Declaration on the Rights of Indigenous Peoples (2007) received a mixed reception. Some commentators viewed it as setting important normative standards for the recognition of Indigenous human rights within the international law framework, whilst others have been critical of the declaration for unduly limiting the nature and scope of Indigenous rights (Anaya 2004; Churchill 2011; Davis 2008; Moreton-Robinson 2011; Pitty 2001; Watson and Venne 2012). Indigenous Nations’ Rights in the Balance: An Analysis of the Declaration on the Rights of Indigenous Peoples by Charmaine White Face (2013) makes an important contribution to this debate by methodically charting the key changes made during the passage of the declaration through the United Nations process and highlighting the significance of these changes for the recognition and realisation of Indigenous rights.

Realising Ainu indigenous rights: a commentary on Hiroshi Maruyama's ‘Japan's post-war Ainu policy. Why the Japanese Government has not recognised Ainu indigenous rights?’

Polar Record ◽  
2013 ◽  
Vol 50 (2) ◽  
pp. 209-211 ◽  
Author(s):  
Naohiro Nakamura
Keyword(s):  
United Nations ◽  
Indigenous Peoples ◽  
Indigenous Rights ◽  
Japanese Government ◽  
The United Nations ◽  
The Government ◽  
Post War ◽  
Legal Frameworks ◽  
United Nations Declaration

ABSTRACTThis commentary reviews Maruyama's article ‘Japan's post-war Ainu policy: why the Japanese Government has not recognised Ainu indigenous rights?’ (Maruyama 2013a), published in this journal. Maruyama criticises the government for its reluctance to enact a new Ainu law to guarantee indigenous rights, even after Japan's ratification of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). However, in actuality, the government is searching for the foundation of new Ainu policies in the existing legal frameworks and trying to guarantee some elements of indigenous rights. Japan's case suggests the possibility of realising indigenous rights without the enactment of a specific law.

scholarly journals Evolving Legal Protections for Indigenous Peoples in Africa: Some Post-UNDRIP Reflections

2018 ◽  
Vol 26 (3) ◽  
pp. 339-365
Author(s):  
Derek Inman ◽  
Dorothée Cambou ◽  
Stefaan Smis
Keyword(s):  
Human Rights ◽  
Informed Consent ◽  
Indigenous Peoples ◽  
Regional Level ◽  
Self Determination ◽  
African Continent ◽  
African Context ◽  
United Nations Declaration ◽  
Human Rights Norms ◽  
The Right

Prior to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) many African states held a unified and seemingly hostile position towards the UNDRIP exemplified by the concerns outlined in the African Group's Draft Aide Memoire. In order to gain a better understanding of the protections offered to indigenous peoples on the African continent, it is necessary to examine the concerns raised in the aforementioned Draft Aide Memoire and highlight how these concerns have been addressed at the regional level, effectively changing how the human rights norms contained within the UNDRIP are seen, understood and interpreted in the African context. The purpose of this article is to do just that: to examine in particular how the issue of defining indigenous peoples has been tackled on the African continent, how the right to self-determination has unfolded for indigenous peoples in Africa and how indigenous peoples' right to free, prior and informed consent has been interpreted at the regional level.

Part II Subsidiary Human Rights Organs, 8 The Permanent Forum on Indigenous Issues

2020 ◽  
Author(s):  
Heyward Madeleine
Keyword(s):  
Human Rights ◽  
Indigenous Peoples ◽  
Indigenous Rights ◽  
Economic Disadvantage ◽  
Focused Attention ◽  
Equal Status ◽  
The World ◽  
Institutional Landscape

This chapter explores the Permanent Forum on Indigenous Issues (PFII), which is the first permanent UN body in which state and non-state nominees hold equal status. The PFII is primarily a product of increasing recognition within the UN system of the need for more focused attention to protect and promote indigenous peoples’ rights—full accommodation of indigenous rights within existing human rights mechanisms and instruments ‘remains elusive’, and indigenous individuals and communities across the world continue to experience significant discrimination and social and economic disadvantage. Since the adoption in 2007 of the UN Declaration on the Rights of Indigenous Peoples, the first comprehensive and generally applicable international instrument on indigenous rights, the PFII has taken an increasingly rights-based approach across its mandate. The chapter then considers the PFII’s institutional landscape and its strengths and weaknesses as a protector and promoter of human rights, with a focus on implementation of the Declaration.

Part VI International Assistance, Reparations, and Redress, Ch.19 Reparations, Restitution, and Redress: Articles 8(2), 11(2), 20(2), and 28

2018 ◽  
Author(s):  
Lenzerini Federico
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Indigenous Peoples ◽  
Real World ◽  
International Assistance ◽  
Actual Application ◽  
Cultural Specificity ◽  
United Nations Declaration ◽  
Proper Account ◽  
Individual Human

This chapter examines rights to reparations, restitution, and redress in Articles 8(2), 11(2), 20(2), and 28. The need of taking into proper account the cultural specificity of indigenous peoples, in establishing the forms of reparation to be used with the purpose of redressing violations of their reorganized collective and/or individual human rights, seems to be adequately considered by the relevant provisions included in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In fact, those provisions are inspired by a clear culturally driven rationale, providing a good basis for the setting up of reparatory measures which are adequate to actually restore the wrongs suffered by indigenous peoples in light of their specific expectations and needs. However, the said provisions are only written on paper, and their actual translation into concrete effective measures of reparation ultimately depends on the sensibility of the legal operators who are entrusted with their actual application and implementation in the real world.

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