ASIL Insights

On July 28, 2000, the United Nations Economic and Social Council decided to establish, by consensus resolution, a "Permanent Forum on Indigenous Issues" as a subsidiary organ of the Council. ECOSOC Res. 2000/22 (available at: http://www.un.org/documents/ecosoc/dec/2000/edec2000-inf2-add2.pdf, pp. 50-52).

2)  Significance

The Permanent Forum on Indigenous Issues formally integrates indigenous peoples and their representatives into the structure of the United Nations. It marks the first time that representatives of states and non-state actors have been accorded parity in a permanent representative body within the United Nations Organization proper.

3)  Background

The establishment of the Permanent Forum on Indigenous Issues is a significant milestone in the decades-long struggle of indigenous peoples to regain standing within the global community. At the intergovernmental level, a permanent forum dealing with issues facing indigenous peoples was first proposed by the 1993 World Conference on Human Rights in Vienna. When the General Assembly adopted the program of activities for the International Decade of the World's Indigenous People (1995-2004), it identified the establishment of the Forum as one of the main objectives of the Decade. United Nations High Commissioner for Human Rights Mary Robinson, Coordinator of the Decade, welcomed the decision as a "historic step forward." "The Permanent Forum," she said, "promises to give indigenous peoples a unique voice within the United Nations system, commensurate with the unique problems which many indigenous people still face, but also with the unique contribution they make to the human rights dialogue, at the local, national and international levels."

For centuries, indigenous peoples had been conquered, dispossessed and marginalized. In the 1970s, however, a marked resurgence occurred: indigenous peoples started to organize themselves across national boundaries and made their voices heard internationally. Following a 1974 landmark study of their issues of discrimination, undertaken on behalf of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities by Special Rapporteur José Martinez Cobo (Ecuador), the United Nations founded a Working Group on Indigenous Populations in 1982. The pre-eminent leader and Chairperson of this Working Group since its beginning has been Dr. Erica-Irene Daes of Greece. Under her aegis, indigenous peoples' representatives gained an unprecedented voice and presence at the United Nations level. Prior milestones of her work were the 1993 Draft Declaration of the Rights of Indigenous Peoples, now being reviewed by an ad hoc open-ended inter-sessional working group of the Human Rights Commission, and the 1996 Draft Principles and Guidelines on the Protection of the Heritage of Indigenous People, as revised by a United Nations seminar in February/March 2000. The latter draft has now been transmitted by the Sub-Commission on the Promotion and Protection of Human Rights to the Commission on Human Rights for its further action.

4)  Structure

The Permanent Forum on Indigenous Issues will be a subsidiary organ of the Economic and Social Council. It will consist of eight members nominated by governments and elected by the Council, and eight members to be appointed by the President of the Council following broad consultations with indigenous organizations and groups. The selection process is to take into account the diversity and geographical distribution of the world's indigenous peoples as well as principles of transparency, representativeness and equal opportunity. All members of the Forum are to serve in their personal capacity as independent experts on indigenous issues for a period of three years with the possibility of re-election or reappointment for one further period. Governments, intergovernmental organizations, NGOs in consultative status with the Council, as well as organizations of indigenous people complying with procedures previously applied by the Working Group on Indigenous Populations, may participate in the Forum as observers.

5)  Functions and Procedure

According to ECOSOC Resolution 2000/22, the Permanent Forum on Indigenous Issues "shall serve as an advisory body to the Council with a mandate to discuss indigenous issues within the mandate of the Council relating to economic and social development, culture, the environment, education, health and human rights."

In so doing, the Permanent Forum shall

"(a) Provide expert advice and recommendations on indigenous issues to the Council, as well as to programmes, funds and agencies of the United Nations, through the Council;
(b) Raise awareness and promote the integration and coordination of activities relating to indigenous issues within the United Nations system;
(c) Prepare and disseminate information on indigenous issues." (para. 2)

Furthermore, except as modified by the Council, the rules of procedure for subsidiary organs of the Council shall apply, and "the principle of consensus shall govern the work of the Permanent Forum" (para. 3). The Forum "shall hold an annual session of ten working days at the United Nations Office at Geneva or at United Nations Headquarters or at such other place as the Permanent Forum may decide in accordance with existing financial rules and regulations of the United Nations." (para. 4).

6)  Open Issues

One issue left to be resolved is exact interpretation of the Forum's mandate. Influential statements about the proper role of the Forum have been somewhat broader than the literal wording of its mandate would suggest. In her report on "Indigenous Peoples and Their Relationship To Land," U.N. Doc. E/CN.4/Sub.2/2000/25, Special Rapporteur Erica-Irene Daes recommends at pages 39-40, para. 152:

"The recently established Permanent Forum for Indigenous People should consider playing a constructive role regarding problems pertaining to land and resource rights and environmental protection. In particular, consideration should be given to the following:

(a)  The creation of a fact-finding body, with a mandate to make site visits and to prepare reports concerning particular indigenous land and resource issues,
(b)  The creation of an indigenous land and resource ombudsman or office which could provide response, mediation and reconciliation services;
(c)  The creation of a complaint mechanism or procedure for human rights violations that pertain to indigenous land and resource situations;
(d)  The creation of a body with 'peace-seeking' powers to investigate, recommend solutions, conciliate, mediate and otherwise assist in preventing or ending violence in situations regarding indigenous land rights;
(e)  The creation of a procedure whereby countries would be called upon to make periodic reports with regard to their progress in protecting the land and resource rights of indigenous people."

It is unclear at this point whether the Permanent Forum will be able to hold sessions at United Nations Headquarters in New York.

Finally, the continuing role, even the existence, of the UN Working Group on Indigenous Populations after the establishment of the Forum is being questioned. Resolution 2000/22 states on this point: "[O]nce the Permanent Forum has been established and has held its first annual session," the Council will "review ... all existing mechanisms, procedures and programmes within the United Nations concerning indigenous issues, including the Working Group on Indigenous Populations, with a view to rationalizing activities, avoiding duplication and overlap and promoting effectiveness." (para. 8). The resolution thus ensures the continued existence of the United Nations Working Group throughout 2001 and 2002.

7)  Evaluation

The Permanent Forum on Indigenous Issues as established does not meet the entirety of aspirations of indigenous peoples, either with respect to its name (it sidesteps continuing debate over the use of the terms "indigenous people" or "peoples"), its structure (the equal match-up between states and indigenous representatives has been criticized as ignoring the power differential between the two groups), or with respect to its mandate (the advisory, educational and recommendatory functions outlined in Resolution 2000/22 will have to be interpreted broadly to respond to indigenous peoples' concerns). Still, it constitutes a bridgehead of international agency for indigenous peoples within the formal framework of the organized global community. It will have to be funded appropriately by the United Nations regular budget to play a significant role, in particular to enable representatives of indigenous peoples to be physically present at its meetings. As in every organization, the personalities chosen as its members will be critical to its success.

For Further Reading:
S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW (1996)
MAIVAN CLECH LAM, AT THE EDGE OF THE STATE: INDIGENOUS PEOPLES AND SELF-DETERMINATION (2000) 
Siegfried Wiessner, Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis, 12 HARVARD HUMAN RIGHTS JOURNAL 57 (1999)

About the Authors:
John Carey, Editor of the United Nations Law Reports (unofficial reports on legal matters in the UN), is a former Vice President of the ASIL and former member of the editorial board of the AJIL. Besides serving as Alternate US Member of the UN Sub-Commission of Prevention and Protection of Human Rights during all its sessions up to 1990 at which indigenous rights were considered, he is a former Adjunct Assistant Professor at NYU. At NYU, he also earned the LL.M. in International Law while a partner at the Coudert Brothers law firm. He serves as the Chair of the ASIL Interest Group on Indigenous Peoples' Rights.

Siegfried Wiessner, Professor of Law at St. Thomas University School of Law and Director of its LL.M./M.A. program in Intercultural Human Rights. He has published widely in the field of international indigenous law and has chaired the steering committees of five tribal sovereignty symposia held at St. Thomas University since December 1994. In February/March 2000, he was appointed facilitator of the drafting commission on principles of the UN seminar on the revision of the draft principles and guidelines on the protection of the heritage of indigenous people. He is the Chair-Elect of the ASIL Interest Group on Indigenous Peoples' Rights.