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UNDRIP Protocol?

Published: February 10, 2015, Author: Rÿser Rudolph C.

Last year the UN Permanent Forum on Indigenous Issues (UNPFII) authorized a study into the possibility of the UN drafting an ‘Optional Protocol” that could be adopted by states’ government members as a method for monitoring implementation of the UNDRIP; and to provide for a mechanism to receive claims by indigenous peoples against states governments not comply implementing the Declaration. To advance the discussion UNPFII hosted an Experts Group of five individuals who met  27-29 January 2015 at the UN to enter into a discussion about their views regarding the proposed idea of a protocol.
The five experts drawn from indigenous legal and human rights scholarship engaged in a discussion specifically concerned with the development of an optional protocol intent on providing a mechanism for indigenous peoples’ complaints against the practices of states’ governments. It is key to understand that the invited experts all focused primarily on Human Rights and placed their discussions within the framework of existing human rights laws and declarations adopted by states’ governments. They did not consider other alternatives such as the political rights and sovereign powers of Fourth World nations to act on their own or in concert with states’ governments.

The UN Permanent Forum invited the following lawyers and scholars to engage in the dialogue:
1.     Professor Mattias Ahrén (Mattias Åhrén, a law professor from Tromsø University and member of the Sami council, (Norway)
2.     Professor James Anaya a professor of Human Rights Law and Policy at the University of Arizona James E. Rogers College of Law (USA)]
3.     Lecturer Elifuraha I. Laltaika [ [Human Rights Lecturer – Tumaini University Makumira (Arusha-Tanzania), Doctoral candidate – Indigenous Peoples Law and Policy Program – University of Arizona (USA) and Co-founder of Association for Law and Advocacy for Pastoralists (ALAPA) (Tanzania)]
4.     Professor Fleur Adcock (Australian National University holds a Master of Law from the University of Wellington – Maori/English (Australia).] National Center for Indigenous Studies ANU.
5.     Director Suhas Chakma [Director of Asian Centre for Human Rights, New Delhi, (India).

The five discussants offered these main points:
•    Enhance the authority of the Expert Mechanism on the Rights of Indigenous peoples
•    taking advantage of existing mechanism will lead to avoidance of indigenous rights ritualism’
•    Robust expansion of awareness-raising about indigenous peoples and indigenous rights focused on appropriate state level personnel
•    [There are] limitations of the current international human rights law system in regard to the monitoring of rights
•    “If the purpose of establishing complaints body is to adjudicate breaches of the UNDRIP akin to consideration of individual complaints by the UN Treaty Bodies, there is no escape from the rigors of enacting a new treaty by the UN.”  Draft a new treaty: Convention on the Rights of Indigenous Peoples.

The essential emphasis of the Group of Experts essentially called for more of the current monitoring efforts in the UN (the five member Expert Mechanism and the Human Rights Council), encourage states and indigenous nations to receive more information about the UNDRIP, develop a new Treaty (Convention) or simply note that human rights law is rather limited and generally has few teeth to enforce actions by states.

The proposed Optional Protocol appears to be a half-way measure that might attract a few states, but ultimately much bolder action is necessary by Fourth World nations to initiate their own contributions to international law and to directly engage states’ governments to establish new government-to-government mechanisms overseen by third party guarantors.


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