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

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

Aotearoa (New Zealand)

Mãori, the indigenous people of Aotearoa, represent 17%1 of the 4.3 million population. Mãori cultural identity is strong despite the fact that most Mãori live in urban centres. The gap between Mãori and non-Mãori is pervasive: Mãori life expectancy is almost 10 years less than non-Mãori; household income is 72% of the national average; half of Mãori males leave secondary school with no qualifications and 50% of the prison population is Mãori. There are two versions of the Treaty of Waitangi, an English-language version and a Maori-language version. The Treaty was signed between the British and Mãori in 1840. It granted right of governance to the British, promised that Mãori would retain sovereignty over their lands, resources and other treasures and conferred the rights of British citizens on Mãori. The Treaty has, however, limited legal status in the courts and Parliament; accordingly, protection of Mãori rights is largely dependent upon political will and the ad hoc recognition of the Treaty. The current National government endorsed the UN Declaration on the Rights of Indigenous Peoples in 2010

Aotearoa New Zealand

Mãori, the indigenous people of Aotearoa, represent 17%1 of the 4.3 million population. Mãori cultural identity is strong despite the fact that most Mãori live in urban centres. The gap between Mãori and non-Mãori is pervasive: Mãori life expectancy is almost 10 years less than non-Mãori; household income is 72% of the national average; half of Mãori males leave secondary school with no qualifications and 50% of the prison population is Mãori. There are two versions of the Treaty of Waitangi, an English-language version and a Maori-language version. The Treaty was signed between the British and Mãori in 1840. It granted right of governance to the British, promised that Mãori would retain sovereignty over their lands, resources and other treasures and conferred the rights of British citizens on Mãori. The Treaty has, however, limited legal status in the courts and Parliament; accordingly, protection of Mãori rights is largely dependent upon political will and the ad hoc recognition of the Treaty. The current National government endorsed the UN Declaration on the Rights of Indigenous Peoples in 2010

Maori and the Bill of Rights Act: A Case of Missed Opportunities?

There is a striking lacuna in the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). The Bill of Rights Act purports to be a human rights instrument for all New Zealanders. But it does not refer to Mdori - the Indigenous peoples of New Zealand - or to the Treaty of Waitangi. Few scholars have considered the impact of this exclusion or of the Bill of Rights Act more generally on Mdori, especially in recent years. The twenty-first anniversary of New Zealand's enactment of the Bill of Rights Act is a good opportunity to reflect on the extent to which the Bill of Rights Act protects the human rights and fundamentalfreedoms of Mlori despite these omissions. In this paper I offer my reflections on this issue I make a distinction between the Bill of Rights Act's protection of human rights generally, the benefits of which Mdori enjoy alongside all other New Zealanders, and the Bill of Rights Act's protection of the rights of Maori as Indigenous peoples. I identify selfdetermination as the cornerstone of Milori rights as Indigenous peoples. I argue that the Bill of Rights Act offers the potential for a degree of protection of aspects of the categories of norms that elaborate the right to self-determination. I then assess the extent to which the Bill of Rights Act 's potential for protecting Mdori rights as Indigenous peoples has been realised in practice. I argue that, thus far, the Bill of Rights Act has not demonstrated itself as an effective tool for protecting the rights of Mdori as Indigenous peoples. In the final part of the paper I consider why this is so. I argue that a combination of factors is at play focusing, in particular, on the Bill of Rights Act's silence regarding Miori

Aotearoa (New Zealand)

Mãori, the indigenous people of Aotearoa, represent 17%1 of the 4.3 million population. Mãori cultural identity is strong despite the fact that most Mãori live in urban centres. The gap between Mãori and non-Mãori is pervasive: Mãori life expectancy is almost 10 years less than non-Mãori; household income is 72% of the national average; half of Mãori males leave secondary school with no qualifications and 50% of the prison population is Mãori. There are two versions of the Treaty of Waitangi, an English-language version and a Maori-language version. The Treaty was signed between the British and Mãori in 1840. It granted right of governance to the British, promised that Mãori would retain sovereignty over their lands, resources and other treasures and conferred the rights of British citizens on Mãori. The Treaty has, however, limited legal status in the courts and Parliament; accordingly, protection of Mãori rights is largely dependent upon political will and the ad hoc recognition of the Treaty. The current National government endorsed the UN Declaration on the Rights of Indigenous Peoples in 2010