Restoration Magazine

In 2007, the UN Human Rights Council established the Expert Mechanism on the Rights of Indigenous Peoples as a subsidiary body to provide expert advice to the Council on the rights of indigenous peoples. In the Outcome Document of the 2014 World Conference on Indigenous Peoples, the UN General Assembly recognized the urgent need to establish a body to monitor implementation of the UN Declaration on the Rights of Indigenous Peoples and called on the Human Rights Council to review existing mandates, particularly that of the Expert Mechanism, to more effectively promote respect for the Declaration, including by “assisting member states to monitor, evaluate, and improve achievement of the ends of the Declaration.” After several consultations with indigenous peoples, in September 2016 the Council responded by adopting a revised and improved mandate for the Expert Mechanism.

New mandate increases independence and capacity

This new mandate significantly increases the Expert Mechanism’s independence and capacity to serve as an effective implementing and monitoring body for the Declaration. Previously, the Expert Mechanism’s primary job was to prepare research reports on topics assigned to it by the Council. While useful, the body was not able to act independently to determine the topics for its studies nor to respond to issues related to indigenous peoples’ rights.

Its new mandate guarantees independence, authority, and expertise to make a real difference in the implementation of indigenous peoples’ rights around the world. This article highlights seven key aspects of the new  mandate to inform advocates about the scope of the Expert Mechanism’s authority and to suggest ways to use the Expert Mechanism to secure indigenous peoples’ rights, including indigenous women’s right to live free of all forms of violence and discrimination.

The expanded mandate provides the Expert Mechanism with the tools necessary to monitor implementation of the rights in the Declaration and to function as an investigative, fact- finding body. However, indigenous peoples also need to demand that the Expert Mechanism make the most of the powers it now has.

Annual study on the status of the rights of indigenous peoples globally

First, the Expert Mechanism is authorized to complete an annual study on the status of the rights of indigenous peoples globally. The study must focus on issues related to rights in the Declaration, and must consider challenges, good practices, and recommendations from member states and indigenous peoples. In addition, the Expert Mechanism must issue a report to the Council on good practices and lessons learned regarding efforts to achieve the goals identified in the Declaration. The topics for these reports are now determined by the Expert Mechanism, and indigenous peoples and others are able to submit suggestions or recommendations for these topics to the Expert Mechanism, either during its annual session or inter- sessional meetings, or in writing at any time. With freedom to decide which topics to address in these reports and in its studies, the Expert Mechanism now has the flexibility and capacity to respond to urgent situations and issues in a timely fashion. By providing the Council and indigenous peoples with detailed expert reports, the Expert Mechanism can give the UN system the factual basis needed to respond seriously and effectively to rights violations and implementation failures. And while the mandate requires the completion of one annual study, the reporting requirement is open- ended and leaves ample room for the Expert Mechanism to report to the Council as often as desired in order to keep the Council fully informed of developments on the rights of indigenous peoples.

Identify, disseminate, and promote “good practices and lessons learned regarding the efforts to achieve the ends of the Declaration.”

Second, the Expert Mechanism is required to identify, disseminate, and promote “good practices and lessons learned regarding the efforts to achieve the ends of the Declaration.” Lessons learned can include practically any relevant information about implementation and violations of indigenous rights. While reports may be helpful in fulfilling this requirement, the Expert Mechanism can use this part of its mandate to increase awareness among indigenous peoples, governments, and the private sector actors about indigenous peoples’ rights, and successes and failures in their implementation. Individual members of the Expert Mechanism could join national or regional meetings of indigenous peoples or indigenous organizations, such as NCAI, to exchange information directly with indigenous leaders. The Expert Mechanism has the power to establish new spaces and seek out new audiences for indigenous voices, and indigenous peoples will want to consider how best to engage directly with the Expert Mechanism outside of its annual sessions in Geneva.

Authority to provide technical advice to member states or indigenous peoples

Third, the Expert Mechanism now has the authority to provide technical advice to member states or indigenous peoples, upon request, to develop domestic legislation and policies relating to the rights of indigenous peoples, including by working through other UN entities. Accordingly, indigenous peoples can now request the Expert Mechanism to provide its expert advice about how states can eliminate harmful elements in domestic law—elements like those that leave indigenous women and girls without meaningful access to justice when they suffer sexual assault or violence—or about how states can develop new laws that will ensure that indigenous women enjoy the full protection and guarantees against all forms of violence and discrimination. To encourage such developments, the Expert Mechanism can connect indigenous peoples working on the issue with UN Women to develop action plans for preventing and responding to violence against women. Establishing these sorts of connections between indigenous peoples and existing UN resources can amplify the effect of the Expert Mechanism’s work. 

Facilitate dialogue between indigenous peoples, governments, and the private sector

Fourth, the Expert Mechanism can facilitate dialogue between indigenous peoples, governments, and the private sector. While all parties must agree, the Expert Mechanism can, upon the request of indigenous peoples, actively seek to establish acceptable frameworks for dialogue with states or other actors. This sort of constructive, national-level engagement can result in positive solutions for all parties.

Authority to assist states to follow up and implement recommendations

Fifth, the mandate grants the Expert Mechanism the authority to assist states, upon request, to follow up and implement recommendations by international human rights bodies, such as those made during the Universal Periodic Review or by treaty bodies, special procedures, or other relevant mechanisms. This provides an important new way to monitor implementation of states’ compliance with international law.

Coordinate with other UN bodies and procedures

Sixth, the mandate requires the Expert Mechanism to coordinate with other UN bodies and procedures, especially with the Special Rapporteur on the Rights of Indigenous Peoples and the UN Permanent Forum on Indigenous Issues. Thoughtful coordination and information sharing between the Expert Mechanism and the Special Rapporteur in particular, with their complementary mandates  and competencies, will go very far towards achieving effective implementation and monitoring of the Declaration. For example, with seven members, the Expert Mechanism has more capacity to gather and analyze information and share it with the Special Rapporteur, who can then make and disseminate recommendations and proposals on appropriate measures and activities to prevent and remedy violations of the rights of indigenous peoples. As such, indigenous peoples may find it useful to consider joint requests for actions or studies that acknowledge the relative strengths and differing capacities of these two bodies.

New working methods to accomplish the mandate

Finally, the budget allocated for the Expert Mechanism authorizes new working methods to accomplish its mandate, with two country visits and an inter-sessional meeting. The country visits will allow the members of the Expert Mechanism to assess issues at the local level and gather firsthand information to report to the Council and the public. The inter-sessional meeting, like all the public meetings of this body, will also provide important opportunities for indigenous peoples to report on violations of their rights and on the implementation or failure to implement and respect those rights. Indigenous peoples have firsthand knowledge of what issues are most in need of international scrutiny, and it is indigenous peoples who have the detailed, factual information that the Expert Mechanism needs to provide the Council with the best possible reports and advice about how to respond to the pressing international human rights issues of today.