Legal significance of the UNDRIP

The Special Rapporteur on the Rights of Indigenous Peoples yesterday submitted his annual report to the United Nations General Assembly.  This will be the final such report to the General Assembly to be presented by the current Special Rapporteur, James Anaya, as his term as Special Rapporteur will end in April 2014.  This report provides an interesting reflection on the Special Rapporteur’s work over the six years that Anaya has been in the role.

He concludes his report with some key recommendations aimed at encouraging more effective and more comprehensive implementation of the UN Declaration on the Rights of Indigenous Peoples. Some of these recommendations are particularly relevant to the New Zealand context.

The Special Rapporteur points out that States’ descriptions of the Declaration as non-binding or ‘aspirational’ are not only unhelpful but also misleading. Prime Minister John Key has consistently characterized the Declaration in this way.

However, the Special Rapporteur notes that the Declaration does have significant legal implications.  First, it informs the binding human rights obligations that States have under the UN Charter:

Although technically a resolution, the Declaration has legal significance, first, because it reflects an important level of consensus at the global level about the content of indigenous peoples’ rights, and that consensus informs the general obligation that States have under the Charter — an undoubtedly binding multilateral treaty of the highest order — to respect and promote human rights, including under Articles 1 (2), 1 (3), 55 and 56 of the Charter. The Declaration was adopted by an overwhelming majority of Member States and with the support of indigenous peoples worldwide and, as noted earlier, the few States that voted against the Declaration each subsequently reversed their positions. Especially when representing such a widespread consensus, General Assembly resolutions on matters of human rights, having been adopted under the authority of the Charter itself, can and do inform Member States’ obligations under the human rights clauses of the Charter. [see Ian Brownlie, Principles of Public International Law (Oxford, 7th ed., 2009), p. 15.]

Second, many of the basic rights affirmed in the Declaration constitute customary international law because they are well-established principles that most States recognize and expect must be complied with:

…some aspects of the Declaration — including core principles of non-discrimination, cultural integrity, property, self-determination and related precepts that are articulated in the Declaration — constitute, or are becoming, part of customary international law or are general principles of international law, as found by the International Law Association after a committee of experts conducted an extensive survey of international and State practice in relation to the Declaration.2 A norm of customary international law arises when a preponderance of States (and other actors with international personality) converge on a common understanding of the norm’s content and generally expect compliance with, and share a sense of obligation to, the norm. It cannot be much disputed that at least some of the core provisions of the Declaration, with their grounding in well-established human rights principles, possess these characteristics and thus reflect customary international law.

Third, the Special Rapporteur identifies that the rights contained within the Declaration reflect rights that are recognized in a number of legally binding human rights treaties and the Declaration consequently informs the interpretation and application of those treaties:

…the Declaration is an extension of standards found in various human rights treaties that have been widely ratified and that are legally binding on States. Human rights treaties with provisions relating to the rights of indigenous peoples include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination. The human rights treaty bodies that interpret and apply these treaties now frequently apply their provisions in ways that reflect the standards in the Declaration and sometimes explicitly refer to the Declaration in doing so. This happens, in particular, with regard to treaty provisions affirming principles of non-discrimination, cultural integrity and self-determination: principles that are also incorporated into the Declaration and upon which the Declaration elaborates with specific reference to indigenous peoples. Although the Declaration is not necessarily dispositive when interpreting a treaty the provisions of which intersect with those of the Declaration, it provides important guidance of significant weight.

In any case, the Special Rapporteur also points out that the status of the Declaration and the weight given to it ought not to be measured by its technical legal significance:

Whatever its legal significance, moreover, the Declaration has a significant normative weight grounded in its high degree of legitimacy. This legitimacy is a function not only of the fact that it has been formally endorsed by an overwhelming majority of United Nations Member States, but also the fact that it is the product of years of advocacy and struggle by indigenous peoples themselves. The norms of the Declaration substantially reflect indigenous peoples’ own aspirations, which after years of deliberation have come to be accepted by the international community. The Declaration’s wording, which has been endorsed by Member States, explicitly manifests a commitment to the rights and principles embodied in the Declaration. It is simply a matter of good faith that States adhere to that expression of commitment to the norms that indigenous peoples themselves have advanced.

The Special Rapporteur suggests that arguments that characterize the Declaration as strictly non-binding and without legal obligation are fundamentally flawed and simply stand in the way of effective implementation of recognized human rights standards:

…the significance of the Declaration is not to be diminished by assertions of its technical status as a resolution that in itself has a non-legally binding character. The Special Rapporteur reiterates that implementation of the Declaration should be regarded as political, moral and, yes, legal imperative without qualification.

Special Rapporteur Report: Treaty settlements

In July last year, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, visited New Zealand to investigate the situation of Māori.  That visit was to follow up the 2005 visit of the previous Special Rapporteur, Rodolfo Stavenhagen, and primarily focused on issues relating to the Treaty of Waitangi and the associated claims and settlement processes.  The Special Rapporteur last week reported on his 2010 visit.  In his report, he identified the concerning disparity between Māori and other New Zealanders across a range of health and social indicators.  That aspect of the report has been the subject of some comment in the media.  The Special Rapporteur also makes a number of interesting comments on the Treaty settlement process.

The Special Rapporteur commends the New Zealand government for its efforts to settle historical claims based on the Treaty of Waitangi, but also notes some significant “ongoing concerns”. In general, the Special Rapporteur recorded the overarching concern expressed by many Māori that the Treaty settlement process is fundamentally flawed “because the party responsible for the breaches of the Treaty of Waitangi – the Government – is wholly responsible for determining the framework policies and procedures for redress for those breaches, resulting in a situation that is inherently imbalanced and unfair to Māori”. 

Of particular concern to the Special Rapporteur was that the government determines the group with which it will negotiate, which, while creating some efficiencies in the settlement process can lead to the specific claims of smaller groups being overlooked and can cut across existing hapū and iwi leadership structures.  The Special Rapporteur was very troubled by the Waitangi Tribunal’s comment in its Tamaki Makaurau Settlement Process Report that although the Treaty settlement process is supposed to improve Māori-State relationships, “what we are seeing […] is that the process of settling is damaging more relationships than it is improving”.

Other concerns relate to the settlement redress that is available.  The Special Rapporteur notes that “the Government wholly defines what and how much redress is available to settle historical claims” and that “Māori have expressed concern that the value of the settlements is grossly out of proportion to the value of what has been taken from them, amounting only to an estimated three per cent of the value of their total loss”.

The Government’s focus on achieving “finality” of settlements also creates problems.  Because the Crown’s concept of “finality” is based on the extinguishment of Māori rights (which, I would argue, is problematic in itself), the legislation that implements aspects of Treaty settlements prevents the Waitangi Tribunal or the courts from addressing the historical claims that are the subject of that legislation.  The Special Rapporteur notes “This lack of independent review contributes to a feeling on the part of Māori of an imbalance of power in the settlement process, as well as a feeling that the settlement process is at times unfair”.

The Special Rapporteur’s overall view of the Treaty settlements process is expressed in the following passage:

The Special Rapporteur understands that there are many difficulties and complexities involved in the Government’s laudable effort to provide redress for historical grievances through negotiated Treaty settlement.  Nevertheless, the aforementioned concerns have fomented an uneasiness and mistrust by Māori of the Treaty settlement process, which may have negative implications for achieving the important goals of redress and reconciliation that the process is designed to advance.  The Special Rapporteur observes that increasing Māori participation in and influence over settlement policies, procedures, and outcomes could go a long way in alleviating the apparent discontent in the Treaty settlement process felt by Māori groups.

If settlements are to be durable agreements that contribute to a process of reconciliation, then it will be necessary for the government to address the concerns outlined by the Special Rapporteur and focus more attention on reaching Treaty settlements that deliver justice, rather than settlements that merely deliver short-term efficiencies. 

UN Special Rapporteur in NZ

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.