IF YOU ARE NOT AT THE TABLE, THEN YOU ARE PROBABLY ON THE MENU: INDIGENOUS PEOPLES' PARTICIPATORY STATUS AT THE UNITED NATIONS.
"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)
A. 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)
B. 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)
A. 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 conference or meeting. (49) A NGO is an organization that is a part of civil society and by definition is separate from representing any group of peoples, nations, or governments. (50)
B. Calls for a Change of Legal Status for Indigenous Peoples
The World Conference on Indigenous Peoples affirmed the international consensus of a need for a status at the United Nations that more appropriately represented the status of indigenous peoples. (51) The Alta Outcome Document iterated the consensus desired status change that indigenous peoples them selves desired. (52) Specific indigenous organizations and nations still disagree on what the new status should be. (53) Member-States are hesitant to recognize indigenous peoples' right to self-determination or to use the word nation when discussing the change in status issue. (54)
The Iroquois Confederacy has asked for permanent observer status with the same rights as Palestine and the Holy See for indigenous peoples and nations. (55) Permanent observers have most, if not all, rights of Member-State at the United Nations besides the right to vote. (56) Member-States have advocated for a heightened status that recognizes indigenous people's unique status, but have not elucidated anything further. (57) Member-states have been criticized that this would be a simple change in name of status and not result in any substantive changes in status for indigenous peoples. (58) Indigenous organizations believe there are substantial benefits for both the United Nations and indigenous peoples, if a heightened status is used, including enabling indigenous peoples to engage directly in the decision making processes of international organization. (59)
IV. WHAT IS THE MOST EFFECTIVE LEGAL STATUS FOR INDIGENOUS PEOPLES AT THE UNITED NATIONS FOR THE IMPLEMENTATION OF INDIGENOUS HUMAN RIGHTS?
A. A Heightened Status and the Advancement of Indigenous Human Rights
A heightened United Nations status, in name and in practice, is essential for implementing and respecting the human rights of indigenous peoples. (60) This new status will give indigenous peoples the status, in name, it deserves in the international system. (61) In theory, indigenous peoples would be able to voice their concerns more often with this heightened status. (62) A heightened status in name only will continue the trend of acknowledging indigenous human rights, such as the right of self-determination, rather than respecting and enforcing those rights. (63)
Nonetheless, a status in this manner would continue the treatment of indigenous peoples as NGO's rather than a status that respects indigenous peoples' unique relationship it has with international organization and states. (64) For this reason, this status would not be substantial for furthering indigenous capabilities to carry out their right to free, prior and informed consent, and the rights enumerated in Article Five of the UNDRIP. (65) Nevertheless, a heightened status in name only would be a small step in the right direction in the decades-long progress of indigenous participation in international organization. (66)
B. Permanent Observer Status for Indigenous Peoples
Granting permanent observer status would guarantee full rights of indigenous peoples when participating at international organization. (67) Permanent observer status would recognize indigenous people's unique status in international organization. (68) A status of this nature would enable indigenous peoples to engage directly in the decision making process at the United Nations without severe limitations. (69) Permanent observer status can provide a platform for indigenous peoples to practice their right to Article Five of the UNDRIP. (70) This would further the progress towards achieving the right of self-determination and the right of free, prior and informed consent. (71) Nevertheless, under the current United Nations system there are only two permanent observers, Palestine and the Holy See. (72) There are hundreds of indigenous nations throughout the world that could seek this status. (73) There are efficiency concerns as giving permanent observer status to a majority of indigenous nations could affect the competence of the United Nations system. (74) A system that balances these concerns with the full respect of indigenous human rights is paramount in furthering the work of the United Nations (75)
Member-States likely would have concerns that permanent observer status would threaten their territorial integrity. (76) Under established international law pertaining to indigenous peoples, there is a balance between indigenous self-determination and the right of the state that would not threaten territorial integrity in this manner. (77) In asserting the right of self-determination, permanent observer status is the minimum standard needed to carry out this right for indigenous peoples. (78) Full capabilities to carry out indigenous human rights by indigenous peoples themselves will serve to empower indigenous peoples further. (79)
It is paramount for the international community to treat indigenous peoples in accordance with international human rights standards. (80) Indigenous human rights established by the United Nations can no longer be solely acknowledged, but also implemented and enforced. (81) In order for this to be accomplished, indigenous peoples must have a seat at the table for every decision that affects them. (82) Permanent observer status would recognize indigenous peoples and nations fundamental right to self-determination, which is a prerequisite right for the enjoyment for all other indigenous human rights. (83) Permanent observer status would serve only to empower indigenous nations in their economic, social, and political development and therefore is the only legal status appropriate and justifiable for indigenous nations at the United Nations. (84)
(1.) See International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), at art. 1, U.N. Doc. A/RES/2200A(XXI) (Dec. 16,1966) (enumerating generally accepted human rights under international law). See also U.N. Charter ch. 1, art. 1 (declaring goals for United Nations system). Self-determination is seen as a fundamental means to achieving universal peace. Id. See also Paul H. Brietzke, Self-Determination, or Jurisprudential Confusion: Exacerbating Political Conflict, 14 Wis. Int'l L.J. 69 (1995) (discussing potential conflicts arising out of asserting right of self-determination). Self-Determination is asserted when a group of people are markedly different from general population of the rest of the state. Id. at 71. When a group is not being represented effectively, an assertion of greater autonomy is often made. Id. at 71-72. See also Glen Anderson, A Post Millennial Inquiry into the United Nations Law of Self-Determination: A Right to Unilateral Non-Colonial Secession?, 49 Vand. J. Transnat'l L, 1183, 1205 (2016) (analyzing self-determination in context of United Nations' system). Self-determination is used as a means to foster "political, economic, social, and educational advancement." Id. This will progress towards a people's ability to self-govern with a level of independence of their own choosing. Id. The United Nations charter does not sanction secession of peoples in a colonial context. Id. at 1206. Secession would only be available in the context of indigenous peoples in the event of "gross and systemic abuses of human rights." Id. at 1234 (quoting The Australian Delegation to the U.N. Inter-Sessional Working Group on a Draft Declaration, Self-Determination - The Australian Position, at 3-4, U.N. Doc. E/CN.4/ 1995/WG.15/2/Add.2 (Oct. 10, 1995)). The current trend of international law seeks to strike a balance between state sovereignty, territorial integrity, and self-determination in the favor of 'peoples.' Id. at 1254. This serves as a means to resolve disputes between nations, peoples, and states peacefully without loss of life. Id.
(2.) See G.A. Res. 61/295, U.N. Doc. A/RES/61/295, at art. Ill and IV, United Nations Declaration of the Rights of Indigenous Peoples (Sept. 13, 2007) [hereinafter UNDRIP] (overviewing rights of indigenous peoples under international law). The UNDRIP guarantees all human rights under customary international law for indigenous peoples. Id. Among these rights is the integral right of self-determination, which has its own article in the UNDRIP. Id. "Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." Id. at art. III. "Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs...." Id. at art. IV. See also Terri Robl, United States, Permanent Forum on Indigenous Issues Talking Points: Decolonization of the Pacific Region, Remarks at U.N. Permanent Forum on Indigenous Issues (May 30, 2013), available at http:// cendoc.docip.org/collect/cendocdo/index/assoc/HASH0128/cb460abe.dir/PF13Terri3 68.pdf (asserting relationship between Hawaiian islanders and United States as domestic). The United Nations Declaration of the Rights of Indigenous Peoples meaning of self-determination is different from that in regular international law. Id. See also Patricia Carley, United States Institute of Peace, U.S. Responses to Self-determination Movements, U.S. Inst, of Peace (July 1997), available at https://www.usip.org/ sites/default/files/pwksl6.pdf (exploring United States responses and interpretations of self-determination in international law). The United States expressed great concern for the lack of a clear definition of self-determination applied to indigenous peoples. Id. "The lack of a clear and universally accepted definition is one of the primary reasons the United States and the international community are unable to respond coherently to the increasing number of claims to self-determination...." Id. at v. The United States tends to respond to human rights issues in the framework of self-determination. Id. at vi. The United States emphasizes territorial integrity rather than human rights issues. Id. See also Australian Human Rights Comm'n, Right to self- determination, available at https://www.humanrights.gov.au/right-self-determination (summarizing Australian government's interpretation of self-determination). "The right of self-determination is a right for 'peoples' rather than of individuals." Id. Self-determination is exercised by of all of Australia as a whole. Id. "Self-determination is an 'ongoing process of choice' to ensure that indigenous communities are able to meet their social, cultural and economic needs. It is not about creating a separate Indigenous 'state.'" Id. This right ensures indigenous people have the ability to participate in decision making that effects their own affairs. Id. The inability to live according to a common culture and to have culture respected by others, is the base of current disadvantage of indigenous Australians. Id. Compare Tonya Frichner, American Indian Law All., Agenda Item 9: Future Work of the Permanent Forum, Including Emerging Issues, Address Before the U.N. Permanent Forum on Indigenous Issues (May 22, 2014), available at http://cendoc.docip.org/collect/cendocdo/index/assoc/HASH014c/77edb 8d6.dir/PF14Tonya421.pdf (arguing self-determination relates to sovereignty of lands, territories, and resources). Indigenous peoples continue to assert their right to self-determination over their lands. Id. Indigenous peoples should have at least, Tonya Frichner noting the United Nations Human Rights Council '"the same participatory rights as non-governmental organization in consultative status with the Economic and Social Council.'" Id. at 5 (quoting U.N. G.A. Rep. of the Human Rights Council, (July 11-July 15, 2011) U.N. Doc. A/HRC/18/43, 18th Sess., Supp. No. 43 (2011)).
(3.) See ESCOR Res. 1996/96, U.N. Doc. E/l 996/96 (Nov. 24, 1996), available at http://esango.un.org/civilsociety/documents/E_1996_31.pdf (describing role of non-governmental organizations at United Nations). Non-governmental organizations (NGOs) can be accredited when the organization supports the principle and purposes of the Charter of the United Nations. Id. at Part I. See also Human Rights Council Res. A/HRC/EMRIP/2013/CRP.2 (July 4, 2013) (describing indigenous peoples' goals for World Conference of Indigenous Peoples). Indigenous peoples recommend that the United Nations recognize indigenous peoples based "on our original free existence, inherent sovereignty and the right of self-determination in international law." Id. [paragraph] 29. See generally UN.org, About ECOSOC, http://www.un.org/en/ecosoc/ about/ (last visited Sept. 25, 2016) (highlighting role of ECOSOC within United Nations structure).
(4.) See Frichner, supra note 2 (explaining need for heightened status to respect indigenous rights). Indigenous nations should have permanent observer status like that of Palestine or the Holy See. Id. Indigenous peoples are equal to all peoples and nations. Id. See also Human Rights Council Res., supra note 3, [paragraph] 29 (calling for need of permanent observer status at minimum for indigenous peoples). See also About Permanent Observers, United Nations, http://www.un.org/en/sections/memberstates/about-permanent-observers/index.html (last accessed Oct. 23, 2016) (describing role of permanent observer at United Nations). The first permanent observer was Switzerland in 1946. Id. There are no provisions outlining the requirements to become a permanent observer. Id. Permanent observers have access to most United Nations meetings. Id. Regional and international organizations can also be permanent observers. Id. See also Non-member States, United Nations, http://www.un .org/en/sections/member-states/non-member-states/index.html (last accessed Oct. 23, 2016) (listing non-Member-States with permanent observer status). Currently, the Holy See and Palestine are the only two non-Member-States with permanent observer status. Id. Both states have received standing invitations to be observers of the work of the United Nations. Id. Permanent observers have the same rights as Member-States except they do not have the right to vote in the general assembly. Id. Palestine was granted observer status by a vote of the General Assembly. Id. The Holy See was granted permanent observer status after successfully requesting the Secretary-General of the United Nations for the status. Id. See also Haudenosaunee Confederacy, Haudenosaunee Statement on the Doctrine of Discovery (May 15, 2012, 10:23 PM), avadable at http://unpfip. blogspot.com/2012/05/haudenosaunee-statement-on-doctrine-of.html (echoing concerns about participation at United Nations). Indigenous peoples' right to control and manage their lands, territories, and resources is threatened when they are not able to participate in manners that affect them. Id. The Haudenosaunee made a common anecdote regarding the participation issue for which the title of this Note has been inspired, "If you're not at the table, you're probably on the menu." Id. Participation is crucial to exercising and respecting the rights of indigenous peoples contained in the UNDRIP. Id.
(5.) See G.A. Draft Res. A 71/321, Preamble, U.N. Doc. A/71/L.82 (Sept. 21, 2017) [hereinafter 2017 Participation Resolution] (indicating consensus amongst United Nations Member-States for enhanced participation of indigenous peoples). The seventy-first session of the United Nations General Assembly recognizes the continued need to find methods to promote "the participation of indigenous peoples' representatives and institutions within the United Nations system on issues affecting them, given that they are not always organized as non-governmental institutions." Id. This resolution requests that the Secretary-General of the United Nations issue a report on ways to enhance participation for indigenous peoples. Id. at 2-3. This report is requested by the end of the seventy-fourth session, which would be at the latest in year 2020. Id. The Secretary-General must seek input from both Member-States and "indigenous peoples from all regions of the world in preparing" for this report. Id. at 3. It is worth noting this resolution was passed without a vote from the General Assembly and was adopted via consensus. Id. See also Press Release, General Assembly, General Assembly Adopts Texts Including on Homan Organ Trafficking Prevention, Indigenous Peoples Enhances Participation in United Nations, U.N. Press Release GA/11938 (Sept. 8, 2017) [hereinafter Sept. 2017 Participation Press Release] (announcing passing of resolution and Member-State views). A number of Member States including India, Bangladesh, and China all expressed concern on the lack of a definition of indigenous peoples in determining an enhanced participation status. Id. Ecuador stated that indigenous peoples should not be treated as non-governmental organizations. Id. Bolivia stated that this resolution would help towards the realization of the rights of indigenous peoples including that of self-determination. Id. The United States appeared to be silent on the matter. Id. See also Betty Lyons, President of American Indian Law All., Remarks to the United Nations Headquarters, Body to Oversee Accreditation: Violation of Self-Determination, (June 30, 2016) (arguing new proposed accreditation process violates right of self-determination). In this new system, Member-States would choose who has heightened status. Id. This risks greater discrimination, as many states do not recognize the existence of indigenous peoples within their borders. Id. See Anderson, supra note 1, at 1254 (arguing importance of self-determination in order to promote rights of indigenous peoples).
(6.) See infra Parts II-V (supporting evidence why heightened status is needed for indigenous people at United Nations).
(7.) See infra Part II (providing background for relationship between indigenous human rights and United Nations).
(8.) See infra Part III (examining human rights concerns for proposed status change by Member-States).
(9.) See infra Part IV (maintaining importance of reform of status in respect to indigenous human rights).
(10.) See infra Part V (concluding without respected right of self-determination advancement for indigenous peoples will not occur).
(11.) See G. Courey Toensing, Declaration adoption marks the end of the first step, Indian Country Today, Sept. 21, 2007 (recalling early presence of indigenous peoples at international organizations). Chief Deskaheh was the first indigenous person to fight for indigenous human rights at an international organization. Id. His efforts were met with "cruel indifference" by western Europeans and he was blocked entry to the plenary session by the Canadian Government. Id. See also Doug George-Kanentiio, Levi General-Deskaheh: A true Iroquois Hero, Manataka American In dian Council (detailing work and life of Chief Deskaheh). Chief Deskaheh travelled to Geneva using an Iroquois Confederacy passport. Id. He spent over a year meeting with foreign diplomats about the injustices Canada committed against the Iroquois. Id. Upon his return home, the Canadian government refused to allow him back into the country. Id. He was forced to live the rest of his life on the Tuscarora reservation in New York State. Id. Chief Deskaheh was never able to return home to his family in Canada. Id.
(12.) See Toensing, supra note 11 (describing refusal of governments to meet with Deskaheh). See also Chief Deskaheh, Chief Deskaheh Tells Why He is Over Here Again 3, 3 (Kealeys Limited, ed., 1923) (detailing objectives of going to League of Nations). Laws were imposed on Six Nations by the Canadian Government that the tribal council did not agree to. Id. at 5. The Indian office refused to let the tribal government use their allotted funds that were given to them when they ceded land to Canada. Id. The primary objective of Deskaheh was to bring to light Canada's refusal to let the Six Nations have control of their lands and funds pursuant to the agreement they already made with Canada. Id. at 7. See also supra notes 1-2 and accompanying text (characterizing importance of right of self-determination for indigenous peoples).
(13.) See Ingrid Washinawatok, Working Toward an Indigenous Model, Indian Country Today, May 14, 2003 (evaluating progress of indigenous peoples at United Nations). Since Deskaheh sought an audience with the League of Nations, indigenous peoples have asserted their voice be heard at the world forum. Id. This was the precursor to when indigenous peoples were invited to the address the United Nations for the first time in 1977. Id. See also infra Part II.A.2 (examining indigenous peoples' presence in Geneva in 1977).
(14.) See id. (reviewing early influence of Deskaheh on international organization). Deskaheh marked the beginning of indigenous peoples' seeking involvement in international organization. Id. Deskaheh and other indigenous peoples' years of diligence at international organizations initiated years of progress for indigenous peoples in this realm. Id.
(15.) See Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, June 2, 1959, ILO C107 (describing protection of general social, economic and political rights for indigenous peoples). See also James S. Anaya, Indigenous Peoples in International Law, Cultural Survival, Summer 1997 (describing goals of convention as assimilationist). The 1957 convention represented the old international philosophy of assimilating and integrated indigenous peoples into the society of the country in which they reside. Id. Convention No. 107 is now viewed as anachronistic. Id.
(16.) See United Nations Permanent Forum on Indigenous Issues, Handbook for Participants, 2007 [hereinafter Handbook] available at http://www.un.org/esa/socdev/ unpfii/documentsZguide_participants_en.pdf. (discussing mandate of UNPFII). The international community first formerly recognized rights for indigenous peoples with Convention No. 107. Id. at 5.
(17.) See Anaya, supra note 15 (describing theme of Convention No. 169). Convention No. 169 aspires to empower '"[indigenous] peoples to exercise control over their own institutions, ways of life, and economic development ... within the framework of the States in which they live.'" Id. (quoting Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries). The convention attempts to advance cultural integrity and control over land and resources for indigenous peoples. Id. The convention "generally enjoins states to respect indigenous peoples' aspirations in all decisions affecting them." Id. See generally Convention concerning Indigenous and Tribal People in Independent Countries, June 27, 1989, ILO C169 (establishing standards for advancement of indigenous peoples in international law).
(18.) See Anaya, supra note 15 (introducing first formal United Nations study on indigenous peoples). Special Rapporteur Jose Martinez Cobo was issued with conducting the study. Id. The study resulted in a multivolume study with "extensive data on indigenous peoples worldwide and made a series of findings and recommendations generally supportive of indigenous peoples' demands." Id. The "study became the standard of reference for the discussion of ... indigenous peoples at the United Nations." Id. The study had a direct positive impact on increased involvement on indigenous issues and peoples within the United Nations' system. Id. The study also increased institutional knowledge of indigenous issues and their relationship with other human rights and development concerns. Id.
(19.) See Washinawatok, supra note 13 (describing first time indigenous peoples formally attended meeting of United Nations). In 1977, the United Nations invited indigenous peoples to speak at the International Non-Governmental Organization Conference on the Discrimination Against the Indians of the Americas. Id. The delegation traveled to this conference with Iroquois passports. Id. See also Anaya, supra note 15 (evaluating various developments resulting from initial meeting). The conference initiated coordination among indigenous peoples to aggregate their interests to better articulate their demands. Id.
(20.) See id. (recognizing indigenous people's progress). Indigenous peoples began to have better access to international organizations. Id. Indigenous organizations began receiving official consultative status with the United Nations. Id. Indigenous peoples' demands were being grounded in "generally applicable human rights principles." Id. The group welcomed commentary by indigenous peoples. Id. This allowed indigenous people to have a say in what their rights should be under international law. Id. Every country in the western hemisphere also participated in these discussions. Id. See also Handbook, supra note 16, at 5 (describing goal of working group of indigenous populations). The working group main objective was to establish international standards on indigenous human rights. Id. This began the initial drafting of what would later become the United Nations Declaration of the Rights of Indigenous Peoples. Id.
(21.) See Erin Hanson, UN Declaration on the Rights of Indigenous Peoples, The University of British Columbia (Oct. 21, 2016), http://indigenousfoundations.arts ,ubc.ca/un_declaration_on_the_rights_ofjndigenous_peoples/ (describing process of negotiation of UNDRIP). "The Working Group on Indigenous Populations began drafting a declaration of indigenous rights in 1985." Id. An initial draft was submitted to the Subcommission on the Prevention of Discrimination and Protection of Minorities in 1993 and approved the draft in 1994. Id. The human rights council established another working group that consisted of indigenous peoples and Member-States. Id. 'The draft declaration was subject to a series of reviews to assure UN Member-States that it remained consistent with established human rights, and did not contradict nor override them." Id. The United Nations Human Rights Council did not approve the draft until 2006. Id. The UNDRIP was adopted by a majority in 2007 in the general assembly with four votes against. Id. The four countries that voted against the UNDRIP were Australia, Canada, New Zealand and the United States. Id.
(22.) See G.A. Res. 45/164, [paragraph] 1, U.N. GAOR, 45th Sess. No. 69 (Dec. 18, 1990) (proclaiming 1993 year of indigenous peoples). This was done to bring to light the challenges faced by indigenous peoples. Id. The General Assembly noted its progress in achieving indigenous development. Id. at 4. The General Assembly calls upon states to work for indigenous peoples. Id. at 6. See also Boutros Boutros-Ghali, Foreword to Voice of Indigenous Peoples: Native People Address the United Nations, 9 (Alexander Ewan and The Native American Council of New York City Eds. 1994) [hereinafter Voice of Indigenous Peoples] (announcing international year of worlds' indigenous peoples).
(23.) See id. at 25 (describing indigenous leaders speaking at general assembly). For the first time, indigenous leaders brought issues directly to an international body. Id. Many Member-States from Western Europe, Africa, Asia, and South America did not attend the conference. Id. at 26. Indigenous peoples spoke about their quest for self-determination and sovereignty, treaty obligations and environmental concerns. Id. at 32-35. See also Department of Public Information, The Internationa1 Year for the World's Indigenous Peoples, United Nations (1992), available at http://www .ciesin.org/docs/010-000a/Year_Worlds_Indig.html (stating purpose of International Year of World's Indigenous Peoples). The International Year for the World's Indigenous Peoples was proclaimed by the United Nations in order to '"strengthen international cooperation for the solution of problems faced by Indigenous communities in areas such as human rights, the environments, development, education and health.'" Id. The aim was to create a new relationship between Member-States, the United Nations, and indigenous peoples under the principle of mutual understanding and respect. Id.
(24.) See Oren Lyons, Epilogue to Voices of Indigenous Peoples, supra note 22, at 122 (addressing contentious points regarding negotiations). The United States viewed the inclusion of the right of self-determination as a threat to current U.S. law. Id. at 122-23. This stems from a "misunderstanding [of] and ignorance concerning lifestyles and governance systems of indigenous nations and peoples." Id. at 123.
(25.) See infra Part II.B (examining existing formal mechanisms for indigenous peoples under international organizations).
(26.) See Handbook, supra note 16, at 6 (reviewing lead up to establishment of UNPFII). During the 1993 International Year of the World's Indigenous Peoples, the first interest in establishing a body to address indigenous peoples was discussed. Id. See also World Conference on Human Rights, Vienna Declaration and Programme of Action, [paragraph] 32, U.N. Doc. A/CONF.157.23 (July 25,1993) (recognizing programs affecting indigenous peoples made in partnership with indigenous peoples). The conference urges states to allow indigenous people to have full and free participation in all aspects of society. Id. [paragraph] 31. Indigenous peoples must have a say in programs and other initiatives that affect them. Id. [paragraph] 32.
(27.) See Handbook, supra note 16, at 6 (describing mandate of permanent forum). This marked "a new era in which indigenous-nominated experts sit at a level of parity with government-nominated experts to speak for themselves as full-fledged members of a United Nations body." Id. The forum also has the goal of raising awareness of relevant activities at the United Nations, and disseminate information on indigenous issues. Id. See generally E.S.C. Res. 2000/22. U.N. Doc. E/RES/2000/22 (July 28, 2000) (establishing United Nations Permanent Forum on indigenous issues).
(28.) See Handbook, supra note 16, at 18 (highlighting function of recommendations for forum). The expert members submit recommendations to United Nations, Member-States, indigenous organizations, civil society and the private sector. Id. Recommendations "serve as the primary platform for advocacy and programmed implementation" to ensure that indigenous peoples are not ignored in program implementation. Id. Recommendations "outline specific action that is needed to promote and protect the human rights of indigenous peoples and to improve their lives overall." Id.
(29.) See Handbook, supra note 16, at 12 (noting different types of participants at permanent forum). Along with the expert members, indigenous peoples, members of civil society, Member-States and intergovernmental entities engage in a ten-day long interactive dialogue to aggregate the interests of indigenous peoples. Id. at 11-18. All participants are able to submit their own recommendations to the UNPFII. Id. Member-States often comment on their progress made in working with indigenous peoples. Id. See also Issues, Cultural Survival, https://www.culturalsurvival.org/issues (last visited Apr. 20, 2017) (quantifying number of indigenous peoples in the world). There is vast diversity of indigenous people participating in the UNPFII. Id. There are roughly 370 million indigenous peoples. Id. These 370 million indigenous peoples belong to about five thousand different groups, communities and nations. Id. The five thousand groups are found in about ninety countries worldwide. Id.
(30.) See generally UNPFII Recommendations Database, https://esa.un.org/ unpfiidata/UNPFII_Recommendations_Database_Iist.asp (last visited Oct. 11, 2017) (listing recommendations of Permanent Forum and frequent mention of violation of international law). Recommendations range from compliance to the UNDRIP to the creation of programs to promote indigenous development. Id. Recommendations can also include topics to discuss at subsequent conferences and status of indigenous peoples within the United Nations System. Id. Recommendations are finalized by the expert members of the UNPFII at the end of each conference. Id.
(31.) See Toensing, supra note 11 (affirming impact of permanent forum on negotiation of UNDRIP). Without the UNPFII, the UNDRIP would have taken much longer to be adopted by the United Nations General Assembly. Id. The UNPFII acted as a formal mechanism that brought attention to indigenous issues within the United Nations system. Id.
(32.) See United Nations Adopts Declaration on Rights of Indigenous Peoples, UN News Centre (Sept. 13, 2007), http://www.un.org/apps/news/story.asp?NewsID=237 94&Cr=indigenous&Crl=#.WAuVv2W-TaY (acknowledging passing of United Nations Declaration of Human Rights General Assembly vote). Negotiations lasted more than two decades. Id. Canadian ambassador expressed concern that the negotiations in the past year had not been "open, inclusive, or transparent." Id. See also Charmaine White Face & Zumila Wobaga, Indigenous Nations' Rights in the Balance: An Analysis of the Declaration on the Rights of Indigenous Peoples (2013), 1-2 (recalling changes made to draft declaration during final stages of negotiations). The commission that submitted the draft declaration was dissolved. Id. The United States was rumored to have been upset of the mention of self-determination and spearheaded a movement to abolish the commission. Id. at 2. This gave some Member-States more of a say in the ongoing draft declaration. Id. This broke down the consensus building process between indigenous peoples and Member-States. Id. at 4. A compromise was never reached regarding the procedures of the draft process after this. Id. Article 3's right to self-determination was never changed throughout the process. Id. at 39-40. Self-determination was degraded in other articles by refusing to use the word nation and using the words communities and institution. Id. at 40-43. Many indigenous peoples felt that the UNDRIP was a collection of loose mandates that no member-state would attempt to enforce. Id. at 107.
(33.) See White Face, supra note 32, at 40 (analyzing final amendments to UNDRIP before official adoption). The worlds institution was often placed in lieu of other words like nation. Id. Article Five changes indigenous characteristics and legal systems to indigenous institutions. Id. at 42. The author argues that institutions is a broad term and is open to interpretation by the state in a way that can deny indigenous peoples their rights. Id. at 42-43. Article 14 originally gave indigenous peoples the right to control their educational systems. Id. at 59. This was changed to give states the power "in conjunction" with indigenous peoples. Id. at 59-60. Article 19 originally gave indigenous peoples the full right to participate in the state's legislative process that may affect them. Id. at 66-67. The General Assembly changed the article to "States shall consult and cooperate in good faith ... through their own representative institutions in order to obtain their free, prior and informed consent ..." Id. at 67. The author argues that that this went from a right to indigenous peoples to a mandate that states can choose to follow. Id. It also poses the risk that states will impose more laws on indigenous peoples through state-established legislative institutions. Id.
(34.) See General Assembly, General Assembly Adopts Declaration on Rights of Indigenous Peoples; 'Major Step Forward' Towards Human Rights for All, Says President, U.N. Press Release GA/10612 (Sept. 13, 2007), available at http://www.un.org/ press/en/2007/gal0612.doc.htm [hereinafter UNDRIP Press Release] (stipulating end of contentious negotiations of UNDRIP). African countries raised serious objections about the definition of "indigenous peoples" and the meaning of self-determination. Id. African countries voted in favor of the UNDRIP after a wording about respecting the territorial integrity of states was added. Id. The text is emphasized as non-binding to its signatories and is only aspirational in nature. Id. All four states who rejected the UNDRIP spoke at the General Assembly regarding their reservations to the text of the document. Id. See also supra note 33 and accompanying text (articulating reservations of Member-States about UNDRIP). See also How Decisions are Made at the UN, UN 4 MUN (Oct. 22, 2016), https://outreach.un.org/mun/content/ how-decisions-are-made-un (distinguishing difference between agreement by consensus and vote by general assembly). Passing resolutions by consensus is the most effective way for Member-States to implement agreements. Id. For a vote, only a majority is needed and the perspectives of the minority are ignored. Id. Adopting a general assembly resolution by a vote is divisive and limits implementation. Id. Only one Member-State needs to request a vote for a vote to occur. Id. An adoption by consensus is viewed as having more legal weight then an adoption by a vote. Id.
(35.) See UNDRIP Press Release, supra note 34 (listing reservations of Member-States who voted against UNDRIP). Member-States voting against the UNDRIP expressed "concerns over provisions on self-determination, land and resources rights and, among others, language giving indigenous peoples a right of veto over national legislation and State management of resources." Id. Canada stated the UNDRIP was too broad and open to a wide range of interpretation and questioning previously settled matters. Id. Canada viewed the concept of free, prior and informed consent as restrictive on Member-States because it gave indigenous peoples a veto to national legislation that affected them. Id. The Canadian government stressed that the UNDRIP was not legally binding and would have no legal effect in Canada. Id. The Australian government also stressed the UNDRIP was purely aspirational in nature and had no legal effect for Member-States, only "political and moral force." Id. Australia stated, "the Declaration's provisions could be read to require recognition of indigenous rights to lands without regard to other legal rights existing in land, both indigenous and non-indigenous." Id. Australia was also concerned that the UNDRIP would require their government to consult with every possible national law that would affect indigenous peoples. Id. Australia's view is that this is overly broad, inefficient, and unfair to other population groups. Id. New Zealand rejected the notion that they would have to recognize land traditionally owned by indigenous peoples. Id. The entire land of New Zealand would fall under this and, therefore, is overly broad in scope. Id. New Zealand expressed concern that the standard of free, prior and informed consent is impossible to implement. Id. The United States argued that the UNDRIP "risked endless conflicting interpretations and debate about its application." Id. The United States viewed the provisions regarding self-determination as a fundamental flaw in the text and rendered the whole document as unacceptable. Id. The United States "recognized Indian tribes as political entities with inherent powers of self-government as first peoples." Id.
(36.) See Tim Fontaine, Canada officially adopts UN declaration on rights of Indigenous Peoples, CBC News (May 10, 2016), http://www.cbe.ca/news/indigenous/canada-adopting-implementing-un-rights-declaration- 1.3575272 (examining Canada's announcement to adopt UNDRIP). Canada announced they are now a full supporter without any qualification to the UNDRIP. Id. The Canadian government expressed their intention "to adopt and implement the declaration in accordance with the Canadian Constitution." Id. Indigenous peoples of Canada have expressed the need for the Canadian government to consult with them in order to effectively implement the UNDRIP into Canadian law. Id. See also Jenny Macklin, Australian Minister for Families, Housing, Community Services and Indigenous Affairs, Statement on the United Nations Declaration on the Rights of Indigenous Peoples, Address before the Parliament House Canberra (Apr. 3, 2009) available at http://www.un.org/esa/socdev/ unpfii/documents/Australia_official_statement_endorsement_UNDRIP.pdf (affirming support of UNDRIP by government of Australia). Australia set out the objective to renew its relationship with Indigenous Australians. Id. The UNDRIP recognized the human rights of indigenous peoples. Id. Indigenous peoples have the right to self-determination and therefore the right to control their own destiny. Id. Australia emphasized the UNDRIP cannot be used to impinge on their territorial integrity. Id. Australia wants to help its indigenous people participate in its democratic processes. Id. See also Pita Sharpies, New Zealand Maori Affairs Minister, Supporting UN Declaration resorts NZ's mana, Address before the United Nations Permanent Forum on Indigenous Issues (Apr. 20, 2010) available at https://www.beehive.govt.nz/release/ supporting-un-declaration-restores-nz039s-mana (indicating New Zealand's support for UNDRIP). The UNDRIP is consistent with a treaty made with the Maori people in 1840. Id. The aspirational nature of the document will help foster a dialogue with the Indigenous People and the government of New Zealand. Id. The UNDRIP will be used "in accordance with New Zealand's domestic circumstances." Id. The UNDRIP will be within the bounds of New Zealand's existing framework regarding Indigenous Peoples. Id. See also United States State Department, Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples: Initiatives to Promote Government-to-Government Relationship & Improve the Lives of indigenous Peoples (2010) available at http://www.achp.gov/docs/US%20Sup port%20for%20Declaration%2012-10.pdf (discussing United States support for UNDRIP). The UNDRIP is a moral and political force towards improving the lives of Native Americans. Id. at 1. The UNDRIP's aspirations can be used to help improve the United States government-to-government relationship with Native Americans. Id. at 2-3. The United States welcomes the UNDRIP's concept of self-determination that applies specifically to Indigenous Peoples. Id. at 3. Indian tribes have the right of self-government, but not to violate the territorial integrity of the United States. Id. The United States will "continue to consult in good faith" with Native American tribes. Id. at 5. See also supra notes 32 - 33 and accompanying text (reaffirming non-binding and aspirational nature of UNDRIP).
(37.) See UNDRIP, supra note 2 (laying foundation for rights of indigenous peoples under existing international law). The United Nations' Charter, the International Covenant on Economic, Social, and Cultural Rights, and the International Covenant on Civil and Political Rights "affirm the fundamental importance of the right to self-determination of all peoples...." Id. at annex. Article 1 of the UNDRIP states, "Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law." Id. at art. I. Indigenous individuals are also entitled to all human rights recognized in international law. Id. at annex. Indigenous peoples "possess collective rights which are indispensable for their existence." Id.
(38.) See id. (outlining rights related to free, prior and informed consent). "States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them." Id. at art. 19. See also supra note 2 and accompanying text (recognizing importance of right of self-determination to indigenous peoples). See also Brant McGee, Article, The Community Referendum: Participatory Democracy and the Right to Free, Prior and Informed Consent to Development, 27 Berkeley J. Int'l L. 570, 571-76 (2009) (discussing relationship between free, prior and informed consent and self-determination). Free, prior and informed consent is grounded in the "rights of participation and consultation, self-determination, and indigenous property rights." Id. at 571. The right is a major issue in regard to resource extraction programs and projects. Id. These projects can have catastrophic impacts on indigenous peoples according to the United Nations. Id. at 571-72. Consent is fundamental to the cultural survival of indigenous peoples. Id. Effectively respecting the right can be difficult in practice. Id. Free, prior and informed consent is derived in part from the right of self-determination under international law and are therefore interconnected. Id. at 576. The United States introduced the concept of internal selfdetermination, which helps protect their territorial integrity. Id. at 577-78. This can reduce free, prior and informed consent to free prior and informed consultation, which would mean states would not approve for every program implemented that affects indigenous peoples. Id. at 578. Reduction from consent to consultation could be a threat to indigenous peoples' survival and a denial of their rights. Id. This right is weighed against country's claim to its sovereignty and natural resources. Id. at 583. See also U.N. Secretariat of the Permanent Forum on Indigenous Issues, Workshop on Free, Prior and I nformed Consent, Jan. 17-19, 2005, U.N. Doc. PGII/2004/WS.2/8 (detailing principle of free, prior and informed consent under international law). Indigenous peoples cannot be coerced or pressured in their choice of development. Id. [paragraph] 48. Consent is freely given before the beginning of activities. Id. Indigenous peoples have full knowledge and information regarding the potential impact of a development impact. Id. Their end choice should be respected and upheld. Id.
(39.) See UNDRIP, supra note 2, at art. V (guaranteeing rights of indigenous peoples). "Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State." Id. at art. V. See supra note 36 and accompanying text (describing relationship between self-determination and free, prior and informed consent to basic indigenous human rights).
(40.) See UNDRIP, supra note 1, at art. V (summarizing Article 5 right to indigenous peoples control over their institutions). See Cindy Blackstock, Know Your Rights United Nations Declaration on the Rights of Indigenous Peoples for Indigenous Adolescents, UNICEF 2013, available at http://files.unicef.org/policyanalysis/rights/ files/HRBAP_UN_ Rights_Indig_Peoples.pdf (teaching rights enumerated in UNDRIP). This ensures they are citizens of the country they reside in. Id. at 12. With this, they can take active roles in the country they are living in while still maintaining their role in their own indigenous society. Id. This is an integral part of the themes of the UNDRIP. Id. All articles are linked together to form a framework for the protection of indigenous peoples. Id. at 10.
(41.) See Understanding and Implementing the UN Declaration on the Rights of Indigenous Peoples, Indigenous Bar Association 2011, available at http://www.indigenousbar.ca/pdf/undrip_handbook.pdf (articulating intricacies of various rights of UNDRIP). Right of self-determination enables indigenous peoples to decide their relationship with the state and to be involved in the government of the states. Id. at 11. This component of self-determination is directly linked to Article Five. Id. Without self-determination, indigenous rights cannot be realized. Id. at 10. Self-determination means that indigenous peoples can "control ... their own destinies" and "live within governing institutional orders that are devised accordingly." Id. at 11. The theme of self-determination elucidates that treaties between indigenous peoples and states are international and have "international character in some circumstances." Id. Self-determination includes the right to participate in international organization as a means to carry out and assert the right. Id. at 10. See also Haudenosaunee Confederacy, A Basic Call to Consciousness: The Haudenosaunee Address to the Western World, in Basic Call to Consciousness 112, 112 (Akwesasne Notes ed., 2005) (discussing views and history of Haudenosaunee Iroquois Confederacy on international law). Through the force of non-native governments onto native nations can be harmful towards indigenous people's sovereignty and right to self-determination. Id. By carrying out self-determination through their own means of governance, it strengthens indigenous people's sovereignty and ability to make decisions for themselves. Id.
(42.) See Blackstock, supra note 40, at 12 (explaining theme of free, prior and informed consent found throughout UNDRIP). Indigenous people must be consulted on any matter affecting their rights. Id. These consultations cannot be made under pressure from the state. Id. Indigenous peoples are entitled to all the information regarding the matter at hand and must be consulted before anything is implemented by the state. Id. See also Indigenous Bar Association, supra note 41, at 18 (over-viewing major points of theme of free, prior and informed consent). This right directly relates to twenty-three of the articles of the UNDRIP. Id. This includes Article Five of the UNDRIP in regards to participation in political processes. Id. Consultations end only when Indigenous communities and the state government come to an agreement. Id. See also supra note 38 and accompanying text (evaluating importance of right of free, prior and informed consent).
(43.) See Indigenous Bar Association, supra note 41, at 10 (clarifying relationship between free, prior and informed consent, self-determination, and Article Five). "Free, prior and informed consent  also flows from the right of self-determination." Id. Indigenous peoples have a right to manage their own institutions as in article 5 which includes having a say in programs enacted by the state that affect them. Id. at 11. See also supra note 38 and accompanying text (affirming connection between self-determination and free, prior and informed consent).
(44.) See World Conference on Indigenous Peoples, Indian Law Resource Center, http://indianlaw.org/worldconference (last visited Oct. 23, 2016) (illustrating objectives and need for World Conference). The World Conference was held to share perspectives of both indigenous peoples and states. Id. These perspectives were used to formulate the best practices to realize the rights of indigenous peoples. Id. This conference was integral because little progress has been made on the implementation of the UNDRIP since its adoption in 2007. Id. See also U.N. Secretary-General, Progress made in the implementation of the outcome document of the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples [hereinafter "Progress Report], U.N. Doc. A/70.84-E/2015/76 (May 18, 2015) (recalling goals and objectives of world conference). The conference was actually a high-level plenary meeting of the general assembly rather than a general conference of the United Nations. Id. at 1. The goal was to "ensure a coherent approach to achieving the ends" of the UNDRIP. Id. The second primary goal was to obtain "specific proposals to enable the participation of indigenous peoples' representatives and institutions at the United Nations." Id.
(45.) See Indian Law Resource Center, supra note 44 (outlining four outcome measures of world conference). The four measures were adopted by consensus by the Member-States. Id. The four measures are:
1. Transform the Expert Mechanism on the Rights on of Indigenous Peoples into an affective implementing and monitoring body for the UN Declaration.
2. Secure new rules that will give indigenous governments a more appropriate status in the UN and allow them to participate fully and permanently in UN processes and activities.
3. Bring greater UN study, attention, and action to address the issue of violence against indigenous women.
4. Increase respect and protections for indigenous peoples' sacred sites.
Id. These four objectives were made after two years of input from Member-States, indigenous peoples, and other intergovernmental organizations. Id. The implementation process began immediately after the four measures were introduced. Id. See also Will Micklin, World Conference Takes Concrete Action to Benefit Indigenous Peoples, Indian Country Today (Nov. 13, 2014), http://indiancountrytodaymedianetwork .com/2014/11/03/ world-conference-takes-concrete-action-benefit-indigenous-peoples (recognizing success of World Conference on Indigenous Peoples). The outcome document represents the "highest achievable action by countries acting through the UN." Id. Indigenous peoples consulted with Member-States successfully throughout the process in order to achieve consensus on the document. Id. This created concrete actions by Member-States to ensure the rights of indigenous peoples. Id. But see Gale Courey Toensing, World Conference Outcome Document: States Win, Indian Country Today (Sept. 27, 2014), http://indiancountry todaymedianetwork.com/ 2014/09/27/world-conference-outcome-document-states-win-15708 (questioning success of world conference for ensuring rights of indigenous peoples). Indigenous peoples did not participate in the drafting of the final document. Id. Indigenous peoples were only able to have input during the preparation process. Id. The outcome document still had reservations by Canada. Id. Canada rejected the notion of free, prior and informed consent. Id.
(46.) See Indian Law Resource Center, supra note 44 (introducing integral measures of world conference outcome document). See also Lyons, supra note 5 (arguing proposed accreditation system would violate rights). The right of self-determination must be fully respected when implementing a new accreditation system for indigenous nations. Id.
(47.) See Lyons, supra note 5 (discussing human rights potential human rights implications of new status). See also Government of Denmark, Joint Statement on behalf of the Nordic Countries on agenda item 3: "Follow-up on the World Conference on Indigenous Peoples," (May 9, 2016) (elucidating need for new status for indigenous peoples). It is not appropriate for indigenous peoples to participate as NGOs at the United Nations. Id. Indigenous peoples need to participate as peoples. Id. The Nordic countries express desire for a new category for indigenous peoples. Id.
(48.) See Government of Denmark, supra note 47 (admonishing fact indigenous peoples treated as NGOs at United Nations). See also U.N. Secretary-General, Ways and means of promoting participation at the United Nations of indigenous peoples' representatives on issues affecting them, 1 7, U.N. Doc. A/HRC/21/24 (July 2, 2012) (examining modes of improving indigenous participation and representation at United Nations). Indigenous Peoples' organizations are "qualitatively and functionally different from non-governmental organization in purpose, design and constituency." Id. Indigenous peoples' organizations and governments have been "constitutionally, legally and/or politically acknowledged" by a member-state. Id. H 8. These recognitions have been used as a means to respect indigenous right to self-determination and self-governance. Id. See also Sept. 2017 Participation Press Release, supra note 5 (explaining current treatment of indigenous peoples within United Nations). Ecuador stating that indigenous peoples should not be treated as NGOs Id.
(49.) See Handbook, supra note 16, at 25 (overviewing process for registration for Permanent Forum). Each person attending the Permanent Forum must register as a NGO with consultative status with ECOSOC, as an indigenous peoples' organization, or as an academic institution. Id. See also Indigenous Peoples' Organizations (IPOs) -Add New Organizational Profile, United Nations Department of Economic and Social Affairs, http://esango.un.org/event/ngo.html?page=profileForm&form=ipo&langu age=english (last visited: Oct. 23, 2016) (describing requirements for IPOs to register with UN). IPOs must have a specific area of expertise regarding indigenous issues. Id. These areas are economic and social development, environment, education, culture or human rights. Id. IPOs must also provide mission statement and organizational structure. Id.
(50.) See U.N. Economic and Social Council, Working with ECOSOC: an NGOs guide to Consultative Status, 8 (Sept. 2011), available at http://csonet.org/ content/documents/Brochure.pdf (explaining application process at United Nations for NGO). NGOs must have a special area of expertise that the NGO can give feedback to relevant U.N. bodies. Id. at 6-7. NGOs also raise awareness of relevant issues and must help advance the goals of the United Nations. Id. at 7. See also Definition of NGOs, http://www.ngo.org/ngoinfo/define.html (last visited Oct. 23, 2016) (defining generally NGO). A NGO is a non-profit voluntary citizens group. Id. A NGO must have a common interest to provide analysis and expertise to governments and international organizations like the United Nations. Id. NGOs are not the same as governments as they represent a common theme rather than a peoples or nation. Id.
(51.) See Progress Report, supra note 44, [paragraph][paragraph] 34-37 (recognizing need for shift from NGO to new status). Indigenous peoples can sometimes not participate in United Nations meetings that have a direct effect on their rights. Id. [paragraph] 34. Indigenous peoples and some Member-States have pointed out the difference between a NGO and indigenous peoples' representative bodies. Id. at 35. Indigenous peoples typically have their own government or governance institutions. Id. This is different from a NGO, which represents civil society. Id.
The Secretary-General also set out a series of considerations for the participation of indigenous peoples' representatives in the United Nations, namely:
(a) Criteria for determining the eligibility of indigenous peoples' representatives for accreditation as such;
(b) Nature and membership of the body to determine the eligibility of indigenous peoples' representatives for accreditation;
(c) Details of the process, including the information required to be submitted to obtain accreditation as an indigenous peoples' representative;
(d) Procedures that will make the participation of indigenous peoples' representatives meaningful and effective.
Id. [paragraph] 38.
(52.) See Global Indigenous Preparatory Conference for the United Nations High Level Plenary Meeting of the General Assembly to be known as the World Conference on Indigenous Peoples, June 10-12, 2013, Alta Outcome Document (highlighting desires of indigenous peoples for World Conference). Indigenous peoples gave their desires for what should be accomplished at the World Conference. Id. at introduction. Indigenous peoples recommend states give legal recognition of indigenous peoples "consistent with the provisions of the Declaration that affirm the inherent rights of Indigenous Peoples." Id. [paragraph] 3.
Pursuant to the universal application of the right of self-determination for all Peoples, recommends that the UN recognize Indigenous Peoples and Nations based on our original free existence, inherent sovereignty and the right of self-determination in international law. We call for, at a minimum, permanent observer status within the UN system enabling our direct participation through our own governments and parliaments. Our governments include inter alia our traditional councils and authorities.
Id. [paragraph] 10, at 5. The document affirms that their right to self-determination is a perquisite for the enjoyment of all other human rights. Id. at pmbl. The indigenous right to participate fully in the decision-making that affects indigenous peoples is fundamental to the framework of the end goal of indigenous peoples. Id.
(53.) See Indian Law Resource Center, Enabling the Participation of Indigenous Governing Institutions at the United Nations, 4 (Apr. 8, 2016) (discussing potential new role for indigenous peoples). Indigenous peoples should at minimum have the same rights as a NGO with consultative status with ECOSOC. Id. Indigenous peoples should have priority in speaking and seating over NGOs. Id. The General Assembly should be the body to oversee accreditation. Id. at 5. See also Frichner, supra note 2 and accompanying text (arguing indigenous peoples should have full permanent observer status). Permanent observer status fulfills indigenous right to self-determination at the international level. Id. [paragraph] 1.
(54.) See Government of Denmark, supra note 47 (omitting mention of self-determination or nation when discussing change in status issue). See also U.S. Ambassador Keith Harper, Statement on WCIP Roundtable: "UN System Action for the Implementation of the Rights of Indigenous Peoples," [paragraph] 2 (Sept. 22, 2014) (distinguishing between tribal governments and NGOs). "The United Nations must establish procedures that recognize tribal leaders and tribal governments for who they are--persons and governments who are distinct from NGO representatives and who represent their own constituencies." Id. [paragraph] 5. The United States does not refer to tribes as nations or to the right to self-determination in regards to status. Id. But see Frichner, supra note 2, [paragraph] 1 (arguing anything less than permanent observer status violates right of self-determination). Indigenous peoples in asserting their right to self-determination gives them rights minimum to that of a permanent observer. Id. [paragraph] 4. Indigenous peoples and nations are inherently equal to all other peoples and nations. Id. [paragraph] 5.
(55.) See Frichner, supra note 2 and accompanying text (advocating for role of permanent observer for indigenous peoples similar to Palestine and Holy See). Indigenous peoples are equal to all other people and nations in their right to self-determination. Id. These rights would recognize the unique status of indigenous peoples under international law. Id. See also Frincher, supra note 2 and accompanying text (arguing Iroquois Confederacy and other indigenous nations should have permanent observer status). Indigenous peoples' assertion over their lands based on self-determination signifies the similarity with current permanent observers at the United Nations. Id. A denial of this right is a denial of the rights the United Nations advocates for. Id.
(56.) See Non-Member States, supra note 4 (describing functions and roles of permanent observers). The Holy See and Palestine are the only current entities with permanent observer status at the United Nations. Id. Generally, they can participate in all meetings of the United Nations and treated similarly as Member-States besides the right to vote in matters of the General Assembly. Id. See also President of the G.A., Compilations of views on possible measures necessary to enable the participation of indigenous peoples' representatives and institutions in relevant United Nations meetings on issues affecting them, and of good practices within the United Nations regarding indigenous peoples' participation, U.N. Doc. A/70/990 (July 25, 2016) (examining possible practices for indigenous peoples' participation). General Assembly has some leeway on how to grant observer status. Id. [paragraph] 48. "The specific rights of each observer ... are determined either by the specific resolution conferring observer status to the observer or by the current practice of the General Assembly." Id. [paragraph] 49. There are also intergovernmental organizations that have observer status via "agreement between the United Nations and the organization." Id.
(57.) See supra note 48 and accompanying text (drawing distinction between indigenous governments and NGOs in United Nations system). Indigenous peoples have a right to self-government that NGOs do not. Id. There are fundamental differences between indigenous peoples and NGOs. Id. Indigenous governments represent the interest of their people at large and derive their legitimacy from the people. Id. NGOs advocate for specific interests in the broader spectrum of rights. Id. See also Progress Report, supra note 44 (outlining progress made towards goals of World Conference). Member-States had a consensus that a change in status for indigenous peoples is needed. Id. This directly relates to the realization of indigenous human rights. Id. The end goal of this new status is to achieve the aspirations of the UNDRIP? Id.
(58.) See Lyons, supra note 5 (elucidating new status must respect self-determination of indigenous peoples). Member-States would have say in what new status would be and how the process would work. Id. Member-States would have the ability to infringe on the right to self-determination even further for this reason. Id. See also Alta Outcome Document, supra note 52, [paragraph] 4 (demanding inclusion of indigenous peoples in United Nations system). Including indigenous peoples in the United Nations system effectively is an integral right to indigenous peoples. Id. Full and effective participation also improves the realization of all rights and the development of indigenous peoples. Id. A new status must be consistent with rights and standards set out by UNDRIP and other relevant international law pertaining to indigenous peoples. Id.
(59.) See Indian Law Resource Center, supra note 44, at 7 (describing potential benefits for United Nations in having new status for indigenous peoples). Indigenous governments are the most appropriate actors to speak on matters that directly affect them. Id. This will ensure indigenous perspectives will always be heard in international organization. Id. This will directly contribute to the decision-making process, program implementation, and advancement of achieving the ends of the UNDRIP. Id. See also Center for World Indigenous Studies, Enabling Participation of Indigenous Constitutional and Customary Government in the UNO, 8-9 (Mar. 29, 2016) (outlining possible roles of indigenous peoples with new United Nations status). A heightened status will give indigenous peoples the best tool to carry out their right to free, prior, and informed consent under international law. Id. This will only help promote their own rights and development. Id. Indigenous governments having a say in the programs, decisions, and social, economic and political interests that affect them will only benefit all. Id. at 2.
(60.) See supra note 45 and accompanying text (recognizing need for new status for indigenous peoples at United Nations). There is a need for indigenous peoples to participate fully and effectively in the United Nations system. Id. This is important for realizing the rights contained in the UNDRIP and other international law pertaining to indigenous peoples. Id. A new status is a coherent means to achieving these goals. Id. See also Lyons, supra note 5 (arguing that heightened status is right of indigenous peoples). Member-states have ability to not give new status to indigenous peoples that they currently refuse to recognize. Id. See also supra note 58 and accompanying text (describing importance of new status for indigenous peoples).
(61.) See Indian Law Resource Center, supra note 44 (recognizing importance for new status to fulfill goals of UNDRIP). Indigenous peoples will have little effect unless they take steps to implement UNDRIP alongside Member-States. Id. This carries out the right to self-government and autonomy for indigenous peoples. Id. Current discussions about best practices to help indigenous peoples led to a movement for a new status. Id. See also supra note 41 and accompanying text (discussing relationship between indigenous peoples and states is often international in nature rather than domestic). Self-determination guarantees the ability for indigenous peoples to participate appropriately and effectively in international organization. Id. Without effective participation, indigenous rights cannot be fully realized. Id.
(62.) See Alta Outcome Document, supra note 52 (discussing advancement of full and effective participation with new status). Indigenous peoples recommended that Member-States give legal recognition that are consistent with the themes and goals of the UNDRIP. Id. This foster better participation for indigenous peoples. Id. See generally supra note 51 and accompanying text (commenting on indigenous people's inability to participate fully under current system). Indigenous peoples' treatment as NGOs has a detrimental effect on indigenous peoples' ability to voice effectively their concerns. Id. This does not respect the legitimacy of indigenous governments and institutions that clearly different to the structure of a NGO. Id.
(63.) See supra part II.B.2 and accompanying text (detailing umbrella of largely unenforced rights acknowledged by United Nations System). Self-determination is the source of all indigenous human rights. Id. Rights contained under the umbrella of self-determination include free, prior and informed consent and Article Five of the UNDRIP. Id. Article Five affirms the right to maintain indigenous people's own legal and political institutions. Id. Article Five gives indigenous peoples the means to carry out self-determination at a macro level. See also supra note 36 and accompanying text (stressing lack of legal enforceability of UNDRIP). Member-States who initially rejected UNDRIP now expressed support for the document. Id. Member-States reiterated that the document was not legally enforceable and only aspirational in nature. Id. Member-States acknowledged indigenous human rights, but did not make any commitments in regards to respecting or enforcing indigenous human rights contained in the UNDRIP. Id.
(64.) See supra note 49 and accompanying text (overviewing registration process and current status of indigenous peoples at United Nations). Under the current system, indigenous peoples often must register as NGOs. Id. They can also register as academics and IPO's. Id. See also supra note 50 and accompanying text (defining NGO in United Nation System). NGOs are nonprofit citizen groups separate from any of government entity. Id. NGOs provide expertise and analysis for governments in areas they may not have the capacity to monitor. Id. They also can serve as a check against governments if there is an abuse of power or human rights violation. Id. NGOs do not represent any groups of people like governments do. Id. See also Government of Denmark, supra note 47 (questioning treatment of indigenous peoples as NGOs). Nordic countries argue that indigenous peoples are not a part of civil society. Id. Indigenous peoples must participate as peoples in the United Nations system. Id. Nordic countries recommend a more appropriate status for this reason. Id. See also supra note 48 and accompanying text (analyzing functional differences between NGOs and indigenous peoples).
(65.) See supra notes 40-43 and accompanying text (articulating relationship and importance of these rights for indigenous peoples). Full and effective participation is integral for carrying out self-determination. Id. Article Five of the UNDRIP is a tool to enable full and effective participation. Id. Article Five guarantees the right for indigenous peoples to participate in political processes of their choosing. Id. This guarantees indigenous peoples can be a part of their society while also, if they choose, to participate in the society of the state in which they reside. Id. Therefore, a status change is an action that helps implement the UNDRIP into international law. Id. By having developed indigenous institutions, indigenous peoples can effectively exercise their right to free, prior and informed consent. Id.
(66.) See supra part II.A.1 (evaluating progress made by indigenous peoples at international organization over past eighty years). Indigenous peoples were not even allowed to participate in international organization in the early part of the twentieth century. Id. Indigenous peoples were not welcome to participate in any meeting of international organization until the 1970's. Id. Formal permanent mechanisms at the United Nations for indigenous development and rights did not occur until the twenty-first century. Id. The negotiation and passing of the UNDRIP took approximately twenty years and was met with heavy resistance by Member-States throughout the negotiations. Id. Member-States questioned major parts of the UNDRIP immediately after it was passed. Id. Their major concerns included free, prior and informed consent, self-determination, and territorial integrity. Id.
(67.) See Alta Outcome Document, supra note 52, [paragraph] 11 and accompanying text (affirming importance for permanent observer status to achieve goals of indigenous peoples). Indigenous rights need to be respected in development aid cooperation. Id. [paragraph] 11. Permanent observer status is appropriate because indigenous people's governments include their traditional councils and authorities. Id. [paragraph] 10. Permanent observer status would enable direct participation of indigenous peoples in the UN system through indigenous peoples own governments. Id. This status would be consistent with the United Nations goal of universal application of self-determination. Id. See also Frichner, supra note 2 (contending permanent observer status as fair assertion of right of self-determination). Indigenous peoples are equal to all other peoples and nations and therefore permanent observer is an appropriate standard under international law. Id.
(68.) See supra note 4 and accompanying text (arguing indigenous peoples are equal to all other peoples and nations). The unique status of indigenous peoples is more analogous to current United Nations permanent observers than NGOs. Id. The Holy See and Palestine have more in common with indigenous nations rather than NGOs. Id. Permanent observers have defined political institutions that represent a group of people. Id. Permanent observers, like indigenous peoples, have a unique culture and way of life. Id. See also Indigenous Bar Association, supra note 43 (stating indigenous people's relationship with states as international in nature). The right of self-determination as well as treaties made between indigenous nations and Member-States clearly create a relationship that is transnational rather than domestic. Id.
(69.) See supra note 58 and accompanying text (explaining permanent observer status effect on indigenous participation in decision-making processes). See also supra note 4 and accompanying text (describing rights of entity with permanent observer status). Permanent observers can participate in all meetings at the United Nations. Id. They have full rights as a Member-State except the right to vote in matters of the General Assembly and Security Council. Id. Permanent observers can participate and engage directly in the decision-making processes from start to finish. Id. See also supra note 66 and accompanying text (overviewing rights of observers).
(70.) See supra note 65 and accompanying text (reviewing relationship between permanent observer status and Article Five of UNDRIP). Article Five of the UNDRIP guarantees right to control political institutions. Id. A heightened status would be an expression of Article Five. Id. However, permanent observer status would achieve the aspirational goal of Article Five. Id. See also supra notes 40-43 and accompanying text (commenting on importance of Article Five of UNDRIP for indigenous peoples). This provides a platform for indigenous peoples to carry out their rights at the international level through their own political institutions. Id.
(71.) See supra notes 1-2 and accompanying text (detailing right of self-determination pertaining to indigenous peoples). Self-determination is the right to control one's own destiny. Id. Collectively, indigenous peoples should be able to determine their social, political, economic, and cultural development without interferences from the states. Id. See also supra note 37 and accompanying text (explaining importance of free, prior and informed consent for indigenous peoples). Free, prior and informed consent is crucial to counteract the devastating effects that extractive industries have on indigenous peoples. Id. These projects threaten the survival of indigenous communities and nations. Id. Permanent observer status would give indigenous peoples a stronger footing to utilize free, prior and informed consent to counter act detrimental projects, like those of the extractive industry. Id.
(72.) See supra note 4 and accompanying text (listing current permanent observers under United Nations system). Palestine and the Holy See are currently the only entities with permanent observer status at the United Nations. Id. Palestine received observer status by general assembly vote. Id. The Holy See, or the Vatican, received permanent observer status after requesting the United Nations secretary-general for the status. Id.
(73.) See Handbook, supra note 16, at 12 (observing number of participants and organizations at UNPFII). Approximately 1,200 people participate in the UNPFII annually. Id. These include indigenous individuals and organizations from all over the world. Id.
(74.) See supra notes 72-73 and accompanying text (recalling number of permanent observers and number of indigenous participants in United Nations). There are only two permanent observers yet hundreds of indigenous organizations that could have this status as well. Id. Given the powers of permanent observers, it could be difficult to allocate the same powers to hundreds more entities. Id. See also note 4 and accompanying text (defining powers of permanent observers). Permanent observers have all the powers a Member-State has except the right to vote in matters of the General Assembly. Id. See also Cultural Survival, supra note 29 (outlining number of indigenous groups in the world). There are currently 370 million indigenous peoples representing roughly 5,000 different indigenous groups, communities, and nations. Id.
(75.) See supra note 65 and accompanying text (advocating benefits of permanent observer status). Permanent observer status would give indigenous peoples a platform to carry out their right to self-determination. Id. By virtue of the right of self-determination, they further their right to control their own institutions as enumerated in Article Five of the UNDRIP and their right to free, prior and informed consent. Id. Compare to supra note 74 and accompanying text (admitting efficiency concerns of permanent observer status). There is a potential for a large amount of indigenous permanent observers. Id.
(76.) See supra notes 36-38 and accompanying text (reviewing concerns of Member-States regarding territorial integrity and UNDRIP). Member-States were concerned the concept of self-determination and free, prior and informed consent enumerated in the UNDRIP could threaten their territorial integrity. Id. Some interpretations of self-determination give groups of peoples the right to secede from the state they are a part of and form their own state. Id. Free, prior and informed consent could also give indigenous peoples the right to veto any state program that they disagree with. Id. See also supra note 59 and accompanying text (stressing need for heightened status to further indigenous rights). A heightened legal status would give indigenous peoples better means to carry out their rights to self-determination and free, prior and informed consent. Id. See also Sept. 2017 Participation Press Release, supra note 5 (communicating Member-States concerns on enhanced participation). China expressed that they are concerned that enhanced participatory status for indigenous peoples could affect territorial integrity. Id. China urges all talks to be framed in a manner that respects their sovereignty and territorial integrity. Id. This is done in a blatant disregard for the sovereignty of indigenous peoples. Id.
(77.) See supra note 39 and accompanying text (stipulating relationship between indigenous institutions and state institutions). Article five states that indigenous peoples have the right to maintain their own legal institutions, while also retaining their right to participate in the processes of the state in which they reside. Id. See also UNDRIP, supra note 2, at art. 46 (guaranteeing indigenous peoples cannot violate territorial integrity of states). Indigenous peoples cannot interpret the UNDRIP to give them a right to violate the territorial integrity of any Member-State. Id. There still is a balance between the achievement of indigenous rights and the protection of territorial integrity that the UNDRIP enumerates as an end goal. Id. This deliberately narrows the scope of interpretation slightly of the UNDRIP in favor of Member-States. Id.
(78.) See supra note 52 and accompanying text (reiterating need for status in respecting rights). Alta outcome document was a consensus document of indigenous peoples. Id. The document argued that in order for their rights to be respected permanent observer status is required. Id. Pursuant to their "inherent sovereignty and the right of self-determination in international law." Id. See also supra note 1 and accompanying text (highlighting importance of self-determination for achieving all other rights).
(79.) See supra notes 67-71 and accompanying text (highlighting permanent observer status benefits for indigenous peoples and nations). Permanent observer status will further the rights of self-determination, control of legal institutions, and free, prior and informed consent. Id. These rights will serve as the driving force to achieve all other rights contained in the UNDRIP. Id. Compare supra notes 63-66 (criticizing limitations for general heightened status for indigenous peoples).
(80.) See supra note 67 and accompanying text (asserting permanent observer status as minimum standard for realizing rights of indigenous peoples).
(81.) See supra part IV. A (outlining limitations of current system). See also supra note 36 and accompanying text (overviewing Member-States hesitation to do anything further than acknowledge UNDRIP).
(82.) See supra part III.B (realizing need for full participation of indigenous peoples at United Nations).
(83.) See supra part IV.B (setting forth benefits of permanent observer status). See also supra notes 40-43 (recognizing importance of self-determination for enjoyment of all other rights of UNDRIP).
(84.) See id. (summarizing optimal option for indigenous peoples). See also supra note 1-2 (reiterating self-determination as best way to further indigenous peoples).
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|Publication:||Suffolk Transnational Law Review|
|Date:||Jan 1, 2018|
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