James Anaya, the UN Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People has been in New Zealand this past week and I thought it might be helpful to provide a little information about the role of the Special Rapporteur and the work of James Anaya.
The role and mandate of the Special Rapporteur is set by resolution of the United Nations Human Rights Council. The Human Rights Council can set mandates for Special Rapporteurs, Working Groups, and Independent Experts across a range of different subject areas. At present there are 31 of these subject-specific mandates including Special Rapporteurs on freedom of religion or belief, the right to food, and the promotion and protection of the right to freedom of opinion and expression. The Human Rights Council may also set mandates to address situations in specific countries. The mandate of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People was established in 2001 and extended by resolution of the Human Rights Council in 2007. That resolution authorizes and requests the Special Rapporteur:
to examine ways and means of overcoming existing obstacles to the full and effective protection of the human rights and fundamental freedoms of indigenous people, in conformity with his/her mandate, and to identify, exchange and promote best practices;
to gather, request, receive and exchange information and communications from all relevant sources, including Governments, indigenous people and their communities and organizations, 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 extended resolution also requires the Special Rapporteur
to promote the United Nations Declaration on the Rights of Indigenous Peoples and international instruments relevant to the advancement of the rights of indigenous peoples, where appropriate.
James Anaya was appointed as Special Rapporteur in 2008. As one might expect of someone in his position, he is an internationally renowned expert in human rights law and issues relating to Indigenous peoples. He has worked as a law professor for over twenty years and is currently the James J. Lenoir Professor of Human Rights Law and Policy at the University of Arizona. He has written extensively on Indigenous peoples’ rights in international law, including authoring the definitive text on the subject.
His work on the concept of self-determination – especially surrounding its development in the international law context and its relevance for Indigenous peoples today – has been hugely influential. Anaya has argued Indigenous peoples’ engagement in international human rights fora, as entities that are ‘simultaneously distinct from, yet part of the social fabrics of the states in which they live’ has challenged the idea that the state is ‘the highest and most liberating form of human association’. That leads to a model of self-determination that is not necessarily based around independent statehood, but is instead focused on developing modes of interaction that reflect Indigenous forms of authority as well as rights of participation in state processes. A full list of Anaya’s academic publications is available here.
Anaya also has made a significant contribution to the recognition of Indigenous rights outside of his academic scholarship. He was involved in the drafting of the United Nations Declaration on the Rights of Indigenous Peoples and has advised and represented numerous Indigenous groups. He was the lead counsel for the Indigenous parties in the case of Awas Tingni v. Nicaragua, in which the Inter-American Court of Human Rights in 2001, for the first time, upheld indigenous land rights as a matter of international law.
The Awas Tingni case has been extremely significant in terms of the recognition of Indigenous rights. It has been cited in various domestic and international cases including the October 2007 decision of the Supreme Court of Belize, which is well-known for also relying on the land rights provisions contained in the United Nations Declaration on the Rights of Indigenous Peoples which had been adopted by the UN General Assembly a matter of weeks before.
The Special Rapporteur plays an important role in the United Nations human rights system and Mr Anaya’s expertise and experience in this area means that he can make a valuable contribution to the discussion of Indigenous rights in the New Zealand context.
