parts. The first part outlines the background and legal context of the rights of indigenous peoples, including an analysis of the content of the Declaration

1. International developments concerning indigenous peoples

Indigenous peoples each have unique and distinctive cultures, languages, legal systems and histories. Most indigenous peoples have a strong connection to the environment and their traditional lands and territories. They also often share legacies of removal from traditional lands and territories, subjugation, destruction of their cultures, discrimination and widespread violations of their human rights. Through centuries, they have suffered from the non-recognition of their own political and cultural institutions and the integrity of their cultures has been undermined. Indigenous peoples are also harmfully impacted by development processes, which pose a grave threat to their continued existence.

In response to human rights violations, indigenous peoples and their organizations have lobbied domestically and internationally to have these violations addressed. After decades of obtaining little or no attention from the international community, indigenous peoples have increasingly gained visibility and made their voices heard at international forums.

The International Labour Organization (ILO) was the first international organization to address indigenous and tribal issues and signal the need for cooperation and international attention. It has been working to protect and promote the rights of indigenous and tribal peoples since the early 1920s. ILO developed two international instruments relating exclusively to indigenous and tribal peoples: the Indigenous and Tribal Populations Convention, 1957 (No. 107) – now closed for ratification – and the Indigenous and Tribal Peoples Convention, 1989 (No. 169).¹¹

The modern indigenous rights movement gained momentum in the 1960s and the 1970s, when a large number of non-governmental organizations (NGOs), many of which were specifically indigenous peoples’ organizations, were established nationally and internationally. These organizations have shed light on systemic discrimination and human rights violations faced by indigenous peoples all over the world. In 1971, the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities appointed one of its members, Martinez Cobo, as Special Rapporteur, to conduct a comprehensive study on discrimination against indigenous populations and recommend national and international measures for eliminating such discrimination. The study is commonly known as the Martinez Cobo Study.¹²

This seminal piece of work laid the foundations for the modern indigenous international human rights system and led to the establishment, in 1982, of the first United Nations mechanism with a mandate to exclusively address issues related to indigenous peoples: the Working Group on Indigenous Populations. Its primary functions was to give special attention to the development of standards concerning the rights of indigenous populations. It completed the elaboration of a draft declaration on the rights of indigenous peoples in 1993,¹³ in collaboration with governmental, indigenous and other non-governmental participants. The draft declaration was adopted in 1994 by the Sub-Commission and submitted to the Commission on Human Rights, which set up its own working group¹⁴ in 1995 to review the draft. It was adopted by the Human Rights Council at its first session held in June 2006 by a vote of 30 in favour, 2 against and 12 abstentions.¹⁵

Simultaneously, throughout the United Nations system, a range of initiatives brought increasing attention to the rights of indigenous peoples, including the establishment of a United Nations Voluntary Fund for Indigenous Populations in 1985,¹⁶ the proclamation of the International Year of the World’s Indigenous People in 1993 and the adoption of two consecutive International Decades of the World’s Indigenous People, beginning in 1995.¹⁷

In the same vein, the United Nations system has established a number of mechanisms with specific mandates to address the rights of indigenous peoples:

The United Nations Permanent Forum on Indigenous Issues¹⁸ held its first session in 2002. It is an advisory body to the Economic and Social Council and is mandated to discuss indigenous issues related to economic and social development, culture, the environment, education, health and human rights. The Permanent Forum is also mandated to, inter alia, promote coordination of activities related to indigenous issues across the United Nations system.

The Expert Mechanism on the Rights of Indigenous Peoples¹⁹ was established in 2007 to provide the Human Rights Council with thematic advice on the rights of indigenous peoples. The Expert Mechanism provides its expertise mainly in the form of studies and advice on specific issues pertaining to indigenous peoples’ rights. To date, it has worked on studies relating to the rights of indigenous peoples to education; the right to participate in decision-making; the role of languages and culture in the promotion and protection of the rights and identity of indigenous peoples; and indigenous peoples’ access to justice.²⁰

The Special Rapporteur on the right of indigenous peoples²¹ was established by the Commission on Human Rights (now the Human Rights Council) in 2001. The Special Rapporteur has the mandate to, inter alia, examine ways and means of overcoming existing obstacles to the full and effective protection of the human rights of indigenous peoples; to identify, exchange and promote best practice; and to gather, request, receive and exchange information and communications from all relevant sources on alleged violations of their human rights and fundamental freedoms and to formulate recommendations and proposals on appropriate measures and activities to prevent and remedy violations.

The three mandates can be seen as complementary. They meet annually to coordinate their activities and share information.

In addition to mechanisms specific to indigenous peoples’ rights, a number of treaty-monitoring bodies play an important role in advancing the rights of indigenous peoples. For example, the Human Rights Committee (which monitors implementation of the International Covenant on Civil and Political Rights), the Committee on the Elimination of Racial Discrimination (which monitors implementation of the International Convention on the Elimination of All Forms of Racial Discrimination), the Committee on the Rights of the Child (which monitors implementation of the Convention on the Rights of the Child) and the Committee on Economic, Social and Cultural Rights (which monitors implementation of the International Covenant on Economic, Social and Cultural Rights) developed a body of jurisprudence on the rights of indigenous peoples before the adoption of the Declaration.

Finally, the universal periodic review (UPR), in which all United Nations Member States are reviewed by the Human Rights Council for the performance of their human rights obligations and commitments, is becoming increasingly concerned with indigenous issues.

Actions that NHRIs can undertake to advance the Declaration through interacting and leveraging off these mechanisms and procedures are considered in Part III of this Manual.

The adoption of the Declaration by the General Assembly on 13 September 2007 marks the culmination of more than two decades of negotiations involving States and indigenous peoples. It is the most comprehensive international instrument on the rights of indigenous peoples. It gives prominence to collective rights to a degree unprecedented in international human rights law; it establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world; and it elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of indigenous peoples.

The importance of the recognition of the rights of indigenous peoples by the General Assembly cannot be underestimated. Chief Willton Littlechild, current member and Chairperson-Rapporteur of the Expert Mechanism, captures this sentiment:

The UN Declaration on the Rights of Indigenous Peoples clarifies how the Universal Declaration on Human Rights applies for our survival, dignity and well-being. As an Elder wanted me to tell you, “Now I am not an object, I am not a subject, I am a human being!”²²

The United Nations Secretary-General Ban Ki-moon has stressed that, with the adoption of the Declaration, it is now time to take action to address the rights of indigenous peoples:

This Manual will articulate how NHRIs can play a constructive role in this ongoing process.