The United Nations special procedures and Indigenous peoples : a regulatory analysis

Abstract

The adoption of the United Nations Declaration on the Rights of Indigenous Peoples in 2007 has shifted the attention of Indigenous rights scholars from norm elaboration to norm implementation. Yet, the influence of the United Nations Human Rights Council's special procedures in actualising Indigenous rights norm implementation remains under-researched. I investigate how the non-coercive and resource-poor special procedures regulate - or influence - state behaviour towards Indigenous peoples. I depart from the existing international law corpus by drawing on regulatory literature. Contrary to rationalist theories, I find that the apparently weak international mechanism of the special procedures regulates state behaviour towards Indigenous peoples imperfectly but appreciably. However, I argue that ritualism is states' dominant response: states outwardly agree with the special procedures' recommendations while inwardly developing techniques to avoid them. I conclude that the special procedures mechanism is capable of exerting enhanced influence over state behaviour towards Indigenous peoples and propose strategies to that end. The findings are based on case studies regarding the special procedures' influence in Aotearoa New Zealand and the Republic of Guatemala. The special procedures mechanism enjoys a broad mandate to advance the realisation of international Indigenous rights norms. In fulfilling this mandate the special procedures experts leverage a mixed dialogic tool-set; principally engaging techniques of shaming, in addition to dialogue-building and capacity-building. The experts' influence on state behaviour towards Indigenous peoples is perceptible in Aotearoa New Zealand and the Republic of Guatemala. But each state engages in ritualism both to disguise its inward resistance to recommendations regarding 'hard' rights to self-determination and land and its failure to fully commit to recommendations concerning the 'soft' cultural right to education. A complex collection of factors explain the experts' imperfect influence: key actors are not engaged, the core principles underlying states' responses to the experts' recommendations are not contested and important regulatory mechanisms are under-exploited. The analysis indicates that, by harnessing dialogic 'webs of influence', comparatively weak actors like the special procedures can influence powerful actors, such as states. It also reveals that, to counter states' rights ritualism, the special procedures should simultaneously shame and praise states, fostering continuous improvement in observing Indigenous rights.