IF YOU ARE NOT AT THE TABLE, THEN YOU ARE PROBABLY ON THE MENU: INDIGENOUS PEOPLES' PARTICIPATORY STATUS AT THE UNITED NATIONS.

• Author: Gonnella, Matthew

1. INTRODUCTION

   "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." (1) Even though self-determination is considered a fundamental right under international law, as more indigenous peoples assert their right to self-determination, divisive views on what self-determination means for indigenous peoples have resulted. (2) Currently, indigenous peoples, either through their own government or on an individual basis, representing indigenous peoples at the United Nations, must be registered and be accredited as either a Non-Governmental Organization (NGO) with Consultative Status with the United Nations Economic and Social Council (ECOSOC) or as a temporary guest. (3) Over the past three years, indigenous peoples' have asked for status that separates themselves from civil society and more properly adheres to their right to self-determination. (4) The United Nations recognizes the need for a status change; however, in order for the international community to respect the rights of indigenous nations, a heightened United Nations status is needed. (5)

   This Note explores the implications of a changed status in regards to fundamental human rights and self-determination. (6) Part II examines the history of indigenous peoples at the United Nations; discussing international law that has arisen that directly affects indigenous peoples and the events that led to a call for an increased status. (7) Part III will discuss each of the differing views on what the new status for indigenous peoples should be and the human rights implications for this new status. (8) Part IV of this Note will analyze the need for Member-States to respect indigenous people's rights and roles in international organization and the other implications of a changed status. (9) Lastly, part V will conclude by highlighting the importance of the right of self-determination for all people and the potential platform for prosperity that could occur when these rights are respected via permanent observer status. (10)

2. HISTORY

   1. Indigenous Nation's participation at International Organizations

      In 1923, Chief Deskaheh of the Iroquois Confederacy traveled to Geneva, Switzerland to address the League of Nations about the right of indigenous peoples to "live freely on their own lands, practice their own religion and follow their own laws." (11) This was the first attempt by indigenous peoples to assert their right to self-determination and the attempt was largely unsuccessful because all governments refused to meet with him. (12) The journey made by Chief Deskaheh was the earliest involvement of indigenous nations advocating for their rights at International Organizations. (13) After his journey, indigenous peoples began becoming more of a priority in the international system, which eventually led to the creation of conventions and other formal mechanisms within the United Nations. (14)

      In 1957, the Convention covering the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries was passed. (15) This was "the first international legal instrument related to indigenous peoples' protection" and the earliest formalized concept of the rights of indigenous peoples. (16) The Convention has since been revised in International Labour Convention Number 169 (ILO No. 169) and came into force in 1991. (17) In 1971, the Economic and Social council authorized the Subcommission on Prevention of Discrimination and Protection of Minorities to perform a study on the "Problem of Discrimination against Indigenous Populations." (18) In 1977, indigenous peoples were formally invited to attend the United Nations in Geneva for the first time. (19) As a result of this and the report of the Sub-commission on Prevention of Discrimination against Indigenous Populations, led to the establishment when the Sub-commission recommended its creation of a working group of Indigenous Population in 1982. (20)

      The negotiation and eventual adoption of the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) lasted from 1985 until 2007. (21) A major development during this negotiation period was the announcement by the United Nations that 1993 would be the International Year of the World's Indigenous Peoples. (22) At the 1993 General Assembly, indigenous leaders throughout the world were given the opportunity to address the general assembly about pertinent issues including the environment, treaty obligations, and self-determination. (23) Leaders were given a public platform in front of all the Member-States of the United Nations to speak about their concerns regarding the negotiation process of the draft declaration including the inclusion and interpretation of self-determination. (24) These advancements made by indigenous peoples led to the creation of formal and permanent mechanisms for indigenous peoples and nations in international organizations such as the United Nations Permanent Forum of Indigenous Issues (UNPFII). (25)

   2. Establishment of Formal Mechanisms for Indigenous Peoples at the United Nations

      1. The United Nations Permanent Forum of Indigenous Issues

         In 1993, the first calls to establish a permanent forum to address indigenous peoples' concerns were made at the United Nations. (26) In 2000, the Permanent Forum was established by the United Nations Economic and Social council to discuss indigenous issues regarding economic development, culture, human rights, and other areas. (27) The UNPFII was created to provide expert recommendations to the United Nations system for activities directly related to indigenous peoples. (28) Indigenous peoples, civil society organizations, Member-States and other intergovernmental organizations participate in the Permanent Forum. (29) The Permanent Forum bases their recommendations to ensure compliance with international legal standards, including the UNDRIP. (30) The creation of the Permanent Forum also helped speed the process concerning the UNDRIP's eventual adoption. (31)

      2. United Nations Declaration on the Rights of Indigenous Peoples

         After several changes were made to the text in the last weeks of the negotiations, the UNDRIP was passed by the General Assembly on September 13, 2007. (32) These changes included changes to wording that gave states more power over indigenous peoples in regards to their participation in decision-making processes. (33) After these changes, the vote by the General Assembly was 144 Member-States in favor, 12 abstentions, and 4 Member-States against who were Canada, Australia, New Zealand, and the United States. (34) The four Member States who rejected the UNDRIP, all expressed concerns that because indigenous peoples refused a definition of indigenous peoples for purposes of this document, the UNDRIP lacked a definition of indigenous peoples making it over-broad in scope, especially regarding the right of self-determination as it applies to indigenous peoples. (35) The four countries have all since expressed support for the UNDRIP, however, they still view it as purely an aspirational document with no legal enforceability. (36)

         The UNDRIP reaffirms the rights and principles laid out in the United Nations Charter, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. (37) Among the most pertinent rights contained in the UNDRIP is the right of self-determination and the right to free, prior, and informed consent. (38) These rights are fundamentally tied to Article Five of the UNDRIP which allows indigenous peoples to maintain their own political and legal institutions. (39)

         Article Five of the UNDRIP enumerates that indigenous peoples have the right to maintain their own institutions, such as their own government while maintaining their right to participate in the political decision making of the state. (40) Article Five gives indigenous peoples a means to carry out their right to self-determination while still being able to participate in the decision-making processes for programs that directly affect them. (41) The right of free, prior and informed consent guarantees that indigenous people can provide input and feedback to any programs enacted by the state. (42) Article Five of the UNDRIP strikes a balance for ensuring the right of the self-determination through free, prior and informed consent by giving them the ability to have say in programs that affect them (43)

      3. High Level Plenary Meeting to be known as The World Conference on Indigenous Peoples

         The World Conference on Indigenous Peoples was held in September of 2014, as a high level meeting designed to ensure best practices and the pursue the objectives of the UNDRIP. (44) The World Conference advocated four measures to help bring the UNDRIP into effect: enhanced increased effectiveness of human rights bodies; enhanced participation for indigenous peoples (emphasis added); studies on indigenous women; and respect for indigenous scared sites. (45) Among the most debated measure included in the final report was the objective to give indigenous peoples a new legal status at the United Nations that will allow their permanent and full participation in the United Nations process. (46) This objective is viewed as an integral component to ensuring the rights of indigenous peoples; however, its implementation has been the center of debate. (47)

3. FACTS

   1. The Current Legal Status of Indigenous Peoples at the United Nations

      The current system for accreditation for indigenous peoples at the United Nations treats indigenous peoples as a civil society. (48) Indigenous peoples and nations must register either as a Non-Governmental Organization (NGO) if they have consultative status, or as an indigenous people's organization only for a specific...