Indigenous Peoples’ Rights at the United Nations Human Rights Council: Colliding (Mis)Understandings?

Abstract

1. Introduction

In 1923, Chief Deskaheh, representing the Six Nations of the Iroquois Confederacy, attempted to address the League of Nations (succeeded in 1945 by the United Nations) in order to have the sovereignty of the Iroquois peoples recognized, but he was not allowed in.¹ Since this first frustrated attempt of an Indigenous leader to be heard in a global human rights arena, Indigenous peoples have gained space to participate in decisions regarding their own rights at the UN. However, they still struggle to have those rights implemented by States.

According to Rodolfo Stavenhagen (1992), the first UN Special Rapporteur on the Rights of Indigenous Peoples, recognition of the specific rights of Indigenous peoples, who were historically marginalized, discriminated against and oppressed, was the result of the expansion and consolidation of the basic core of human rights. The main paradigm shift was to recognize Indigenous peoples’ rights as collective rights, since human rights—despite being primarily individual in nature—could not be fully exercised when a people was collectively subjugated (Stavenhagen 1992). Hence, along with the development of the very concept of indigeneity,² the recognition of Indigenous Peoples’ capacity for the collective exercise of fundamental rights also permitted the acknowledgement of their right to self-determination³ on an equal basis with all peoples in the world.

Against this backdrop, two international legal milestones were the adoption of the International Labour Organization’s (ILO) Convention 169 on Indigenous and Tribal Peoples (1989) and of the UN Declaration on the Rights of Indigenous Peoples in 2007 (UNDRIP—hereafter the Declaration). Also, in 2006, the promotion and protection of human rights changed its place within the UN structure with the creation of the Human Rights Council (HRC),⁴ the main UN charter-based body reporting directly to the General Assembly. As part of the HRC, two mechanisms were created for the implementation of the international standards regarding Indigenous peoples’ rights: the Special Rapporteur on the Rights of Indigenous Peoples (SRIP), whose first mandate was created in 2001; and the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), established in 2007. Both mechanisms are composed of independent experts, predominantly Indigenous diplomats (Beier 2009; Carpenter and Tsykarev 2021).

Despite these advances, the implementation gap (Stavenhagen 2007) between the adoption of and compliance with international standards on Indigenous peoples’ rights by States persists. According to former Special Rapporteur Victoria Tauli-Corpuz, reporting in 2014, this happens mostly because States ‘lack awareness about the rights and standards’, present ‘difficulties in identifying practical steps for implementation’ and show ‘conflicting interpretations of the content of rights’ (UN HRC 2014, para. 17). Especially with regard to the last challenge, Tauli-Corpuz concluded the following:

much work remains to be done to ensure that States and indigenous peoples come together to find common ground and agreement on the most controversial issues. In that regard, States and indigenous peoples often settle into entrenched positions and take adversarial approaches (UN HRC 2014, para. 24).

In the global arenas in which States and rights-holders participate, such as the HRC, struggles around human rights involve discursive strategies that reveal a status quo-oriented interpretation of norms and include the manipulation of language (Kruckenberg 2012). In such a field of power imbalance between Indigenous peoples and States, lack of agreement or understanding often serves the interests of those who would portray the status quo as equitable (Bailey 2009) and may be manipulated to favour the hegemonic narrative and perpetuate relations of dominance (Ohnuki-Tierney 2013; Ramos 2014).

An emblematic struggle around Indigenous peoples’ rights was observed during the drafting of the Declaration and held up its adoption for over two decades (Anaya 2005; Davis 2008). While Indigenous peoples were asserting their right to exist in the present and determine their future according to their own social organization and institutions, many States initially considered that, by recognizing Indigenous peoples’ right to self-determination, their territorial sovereignty would be under threat, given that the ‘self-determination’ of colonized peoples has commonly been associated with political independence (Anaya 2005). This misunderstanding reveals conflicting perspectives on who are the subjects holding the right to self-determination: peoples or States.

Further, it actually reflects an ontological conflict (Almeida 2013; Blaser 2013; Viaene 2018, 2021) between Indigenous peoples and States over what self-determination ‘really’ means. Indeed, Indigenous scholars have pointed out that, in Indigenous peoples’ practices, concepts, and values, human and nature relationships are interconnected, which contrasts radically with the dominant Euro-western nature-culture divide (Todd 2016; Jewett and Garavan 2019; McGregor 2021; May, Viaene and Montalván 2023). Hence, the non-recognition of Indigenous peoples’ right to self-determination prevents them from living in accordance with their ontologies while impeding non-hegemonic existences (Lea 2018; Viaene 2021).

Tauli-Corpuz (UN HRC 2019) highlighted the norms and structures that most governments impose in disrespect of Indigenous peoples’ right to self-determination. Indigenous concepts of territory, control, power, and relationships—and their own institutions connected to those notions—are not taken into account, reinforcing their marginalization in decision-making processes.

In Brazil, for example, the interpretation of the constitutional right of Indigenous peoples to their traditionally occupied territory⁵ has been a target of judicial disputes in the Supreme Court for more than a decade. Landowners have contested certain Indigenous peoples’ right to their lands, claiming that they should prove they were occupying their lands before the promulgation of the current National Constitution in 1988 (Cunha and Barbosa 2018). For years, Indigenous peoples and supporting Non-Governmental Organizations (NGOs) have been denouncing this situation at the HRC as a major violation of their rights to land and self-determination, as this article will demonstrate below.

Although struggles around the implementation of Indigenous peoples’ rights have been well documented at the domestic level through legal ethnographic research (Powęska 2017; Vanhees 2018; Viaene and Fernández-Maldonado 2018; Sikor et al. 2019), there is a knowledge gap on how these struggles are expressed in the global arenas where international norms are set. While there is a growing ‘empirical turn in international legal studies’ (Shaffer and Ginsburg 2012), as well as a legal ethnographic focus on the functioning of the UN human rights system (Merry 2009; Kruckenberg 2012; Billaud 2014; Niezen and Sapignoli 2017; Halme-Tuomisaari 2020), little attention has been paid to the specific arenas in which Indigenous peoples take part (Viaene 2018; May, Viaene and Montalván 2023). This article seeks to contribute to bridging this double knowledge gap by providing empirical examples of the interpretative struggles around Indigenous peoples’ rights at the Human Rights Council, more specifically within the so-called Interactive Dialogues (IDs) with the SRIP and EMRIP. We have chosen to focus on the HRC’s independent experts on Indigenous peoples’ rights in light of their recognized norm-setting authority.

The IDs with the SRIP and EMRIP are held once a year. There, the experts present their recommendation to the member States of the Council for implementing the Declaration. It is the perfect scenario for grasping what consideration is given to Indigenous peoples’ claims and how States react to them. Building upon the examination of proceedings in these arenas over eleven years (2011–21), we highlight one emblematic case of conflicting narratives between Indigenous peoples and States: the strategic use of ‘misunderstandings’ by the Brazilian State to delegitimize Indigenous peoples’ claims in the 2020 session, which recorded the highest Indigenous participation in the period.

We selected the Brazilian case because we noticed that it was the country that accounted for the highest participation of both Indigenous peoples and State representatives in these arenas over the eleven-year period, allowing a comparison between their dissonant discourses. Moreover, although Brazil has been known globally as a progressive State in terms of Indigenous and environmental policies since its re-democratization process in the late 1980s, conflicting interpretations around the rights of Indigenous peoples in Brazil have always existed (Ferreira et al. 2014). The period we analysed encompasses the administration of President Bolsonaro (2019–22), when particularly regressive policies were adopted and conflicts were made even more evident (Machado 2020; Bonilla and Capiberibe 2021). This fact, rather than representing an interpretative bias, is useful for underlining the anti-Indigenous trend of the hegemonic discourse, which is increasingly turning to the far-right wing in several countries around the world (Pirro 2023).

In this article, we first analyse the main stakeholders who take part in the HRC Interactive Dialogues with the independent experts on the rights of Indigenous peoples. Second, we discuss the emblematic Brazilian example of the narrative struggles around Indigenous peoples’ rights that have taken place at the HRC sessions. We then discuss how these struggles still reflect a landscape of hardship in the implementation of Indigenous peoples’ right to self-determination. Finally, we present some practice-oriented conclusions to counteract conducts that privilege discourse antagonistic to Indigenous peoples.

2. Methodology

The research on which this article is drawn was conducted from September 2020 to November 2021, mainly ‘virtually’ because of the COVID-19 pandemic. We therefore relied on the digital ethnographic approach, which refers broadly to a combination of qualitative methods, adapted from ‘traditional’ ethnography, to study social and cultural practices in digitally mediated spaces (Postill 2017; Howlett 2021). The research has a specific focus on legal ethnography (Starr and Goodale 2002), which, in this case, implies conducting ethnographic research in an international norm-setting context.

Focusing on the Interactive Dialogue with EMRIP and the SRIP, we participated in the 2020 and 2021 sessions of the HRC, held online, and also watched all the recorded IDs available at the UN Web TV (https://webtv.un.org/en), covering the period from 2011 to 2019. In total, we observed 11 Interactive Dialogues with EMRIP and the SRIP at HRC sessions. We listed all the speakers in each session and inductively identified one emblematic example of discursive disputes reflecting conflictive ontologies between Indigenous peoples and the Brazilian State.

With a focus on the Brazilian case, we collected all the statements that mentioned the country during the decade, and codified them into categories according to topic and speaker. Finally, we undertook a critical discourse analysis (Van Dijk 2008) of those speeches in order to identify tensions between Indigenous and State discourses around the same subject. We also critically analysed discourses on the concept of ‘self-determination’, a topic which was mainly discussed at the ID with EMRIP in 2021.

To complement the discussion, we incorporate information from five semi-structured or conversational interviews (four online and one in person) that we conducted with key interlocutors from relevant NGOs participating in those arenas, and with UN staff related to Indigenous peoples’ rights. They all confirmed their free and informed consent to participating in the research.⁶ The interviews include the most relevant non-governmental organization in the Brazilian case, the Conselho Indigenista Missionário (CIMI); the most prominent NGO at the UN headquarters in Geneva supporting Indigenous peoples’ participation, the Indigenous Peoples’ Centre for Documentation, Research and Information (Docip); the person responsible for the secretariat of the SRIP within the Office of the High Commissioner for Human Rights (OHCHR) Special Procedures Branch; the former Brazilian Expert from EMRIP; and a former independent assistant to the SRIP’s mandate. Additionally, within the framework of the European Research Council (ERC) RIVERS project, an informal online meeting was held in October 2021 between project researchers, the then Chief of the Indigenous Peoples and Minority Branch of the OHCHR, and 13 legal civil servants of the OHCHR working on Indigenous peoples’ issues, including the person responsible for the EMRIP Secretariat, where RIVERS presented its research design and posed questions for discussion.⁷

3. Introducing the stakeholders: dissonant voices in the interactive dialogue

Although the focus of our analysis is on discourse and not on participation, we note that the constrained conditions of Indigenous peoples’ participation may also lead to their misrepresentation in the global arenas. This impacts directly on the discussions held around the implementation of their rights, reinforcing the power imbalance in favour of the State members’ hegemonic discourse. Hence, to understand better the narrative strategies employed at the Human Rights Council, in this section we briefly comment on stakeholders’ participation. We first present the UN experts on Indigenous peoples’ rights, then describe the dynamics of the IDs with EMRIP and the SRIP, and lastly outline how Indigenous peoples and States participate in this arena.

3.1 UN independent experts on Indigenous peoples’ rights

The first UN body created to advise the Commission on Human Rights—which in 2006 turned into the Human Rights Council—on matters specifically related to Indigenous peoples’ rights was the Working Group on Indigenous Populations (WGIP) in 1982. Following its dissolution in 2007, it was replaced by EMRIP, composed of seven independent experts,⁸ Indigenous or non-Indigenous, representing each of the seven geographic regions grouped by the UN. EMRIP relies on a secretariat from the Indigenous Peoples and Minorities Section of OHCHR. Its composition changed during the analysed period, but currently all members of EMRIP are Indigenous.

The work of WGIP, along with the continuing Indigenous peoples’ incidence at the UN, fostered the creation of the Mandate of the Special Rapporteur on the Rights of Indigenous Peoples (SRIP), an independent expert, who relies on the secretariat provided by the Special Procedures Branch of the OHCHR. The Rapporteur acts as interlocutor to the member States and his/her mandate is meant to address specific cases of alleged violations of Indigenous peoples’ rights, providing the HRC with thematic and country reports. The first SRIP was Rodolfo Stavenhagen (2001–8), the only non-Indigenous expert to ever represent the mandate. After him, there were three more SRIPs: James Anaya (2008–14), Victoria Tauli-Corpuz (2014–20), and Francisco Calí Tzay (2020–present). While James Anaya and Francisco Calí Tzay are both human rights lawyers, Victoria Tauli-Corpuz identifies as an activist leader, with a wide-ranging experience in different UN spaces, such as the Permanent Forum on Indigenous Issues.⁹

Special Rapporteurs have existed within the UN human rights structure since the 1960s, monitoring human rights violations in many fields. Currently, they total 45 thematic and 14 country mandates. One of their most relevant practices is country visits, which allow them to get in touch with the contexts of the violations they report on and establish direct communication with States (Stavenhagen 2016). On the other hand, EMRIP is a newer mechanism within the HRC structure, which also allows it to experiment with new forms of monitoring and of enhancing Indigenous peoples’ participation in its activities, such as the country engagements, starting in 2016 (UN HRC 2016b).

Both the SRIP and members of EMRIP are independent experts, which means that their work within the HRC is independent of governments and voluntary, without any financial payment, although they are appointed through a very competitive process.¹⁰ Still, their mandate relies on financial support for developing a limited number of country visits (or country engagements, in the case of EMRIP) and participating in relevant meetings. They also count on assistance from the two OHCHR sections that we mentioned above. Normally, they seek further support from universities, as well as independent financing and assistants.

In a conference organized by the University of Arizona¹¹ in October 2021, both James Anaya and Francisco Calí Tzay stated that the role of the SRIP was to be a vehicle to give voice to Indigenous peoples’ concerns in decision-making processes within governments and beyond, as ‘negotiators’ and ‘diplomats’. As Indigenous diplomats, the SRIP and EMRIP members do not aim to represent Indigenous peoples, but they do build communication between different ontologies, to the extent that they know how to navigate both the global arenas and local communities (Carpenter and Tsykarev 2021; May, Viaene and Montalván 2023).¹² This know-how requires the domain of specific languages and practices from diverse contexts ( Morgan 2007; Beier 2009; Kradolfer 2011). The independent experts do this by organizing the multiple Indigenous claims they receive and translating them into the bureaucratic UN structure in the form of their reports and studies, while also advocating in favour of Indigenous peoples’ rights through communications with States and public comments (Stavenhagen 2016). According to Carpenter and Tsykarev (2021: 120), ‘over time, this diplomacy expands [Indigenous peoples’] participation in the interpretation of international obligations of States to realize Indigenous peoples’ human rights’. Thus, they play an important role in decoding the ‘misunderstandings’ between States and Indigenous peoples, helping to reduce the implementation gap.

3.2 The interactive dialogues

The Interactive Dialogues with the SRIP and EMRIP are an annual event in which the experts present their reports and receive comments from States and from Indigenous peoples’ representatives and supporters. Since its creation, the IDs have been held once a year, during the last of the three ordinary annual sessions of the Human Rights Council, usually taking place between September and October, in the Palais des Nations in Geneva. Each Interactive Dialogue normally lasts two hours. The two Dialogues are often scheduled sequentially, or clustered in the same meeting. In the same session, there is also the Annual Panel Discussion on the Rights of Indigenous Peoples, a half-day panel in which a thematic discussion is held with the SRIP and EMRIP members.

The IDs on Indigenous peoples’ rights always follow the same ritual. The Special Rapporteur or the chair of EMRIP first presents their annual achievements, thematic reports, and country visits (or country engagements, for EMRIP). Then the floor is opened to a list of speakers: States may request in that moment to take the floor, while National Human Rights Institutions (NHRIs) and NGOs must submit their statements in advance, through an online request form.¹³ The State representatives and those of UN agencies are the first ones to speak, then NHRIs and NGOs that hold a consultative status with the UN Economic and Social Council (ECOSOC), making up a list ranging from 35 to 55 speakers in total (an average of 45 over the analysed period). NGOs normally represent a third of that total. All participants have the right to the same amount of time to make their statements, normally up to three minutes.

After the list of speakers is closed, States have a right of reply to any statement. Nevertheless, it is not common for them to make use of this prerogative (we observed 11 Rights of Reply from 340 overall State statements), as doing so is normally seen as bad practice in the diplomatic field, according to two of our interlocutors.

Finally, the panellist in charge gives his or her concluding remarks, commenting on the questions and on specific statements. Thus, the dialogue is mainly held between States and the independent experts, or between NHRIs/NGOs and the independent experts, and not directly between States and Indigenous peoples—as we will discuss.

We collected around 500 statements between 2011 and 2021. Two thirds of them were issued by 74 different States. On average, 30 States participated per year (with a maximum of 34, in 2016, and a minimum of 25, in 2017), without significant variation over time. In this period, only five State representatives participated every year: Australia, the European Union, Peru, Russia, and Venezuela. And another two participated in ten sessions: Brazil and Paraguay.

UN agencies hold the same status as States in the list of speakers; however, they only accounted for 15 of the overall statements in the period, with an average of three participations per year. The International Labour Organization (ILO) participated in five sessions, Unicef in four, UN Women in three, the Food and Agriculture Organization (FAO) in two, and the UN Population Fund in only one.

Finally, 93 civil organizations, among NHRIs and NGOs, issued, in total, 150 statements. NGOs accounted for the large majority of them (which is the reason that from now on we will refer to all of these organizations as ‘NGOs’). On average, 13 NGOs participated per year. In the first two years we observed the lowest participation (n = 8), but from 2015 on there was consistent growth, reaching 19 organizations in 2020. The majority of NGOs participated only once. The higher scores were for CIMI, Franciscans International, the Indian Council of South America, and the Minority Rights Group, each participating five or six times during the period. Indigenous peoples participate as NGOs or through them, as we detail in the next section.

The person speaking at the Palais des Nations reads a statement built previously by a multitude of voices. According to our interviewee from CIMI, country missions in Geneva do not have autonomy to decide on their own statements, which are normally revised and approved by their national diplomatic body, which, in turn, is composed of political nominees. Thus, State delegates actually represent the respective national governments in power at that time. Meanwhile, the Indigenous persons participating in the HRC session respectively represent the collective voices of their peoples or organizations. To make their message fit the format of the statement (language, length, jargon), Indigenous peoples commonly rely on NGO support in its preparation, which implies that, although their statement does represent their collectives, it might also undergo transformation through the agency of intermediaries.

3.3 ‘Authentic Indigenous voices’

Chief Deskaheh showed that the first step that is needed for Indigenous peoples to be heard by decision makers in the global human rights arena is allowing them in. Despite some achievements in this regard, such as the creation of the advisory bodies we described above and the recent moves towards increasing Indigenous peoples’ participation in the Human Rights Council (UN GA 2020), the opportunities for Indigenous self-representation at the UN headquarters in Geneva are still limited. Indigenous peoples do not have a distinct status in the sessions of the Human Rights Council. They are only allowed to make oral statements in the HRC meetings if their own NGO is accredited with an ECOSOC consultative status, as is the case of the Saami Council, for example, or if a supporting NGO provides them its badge and gives them the floor to speak.

In that regard, Karla General, the great-granddaughter of the early twentieth century leader Chief Deskaheh, stated during the 2017 Annual Panel on the Rights of Indigenous Peoples that

almost a century after Deskaheh first attempted to address the world community …authentic and representative Indigenous voices are still denied access to the United Nations. This Council [HRC] and other UN bodies recognize that their existing rules of participation generally do not permit the participation of Indigenous peoples’ governments at the UN as such unless they are able to acquire a consultation status as non-governmental organizations. But Indigenous peoples’ governments are not NGOs, are not civil society. … without authentic Indigenous voices, decisions made in international forums will not be responsive to Indigenous peoples’ realities at home. If Indigenous voices continue to be left out of the decision-making, the most horrific violations of our time will continue.¹⁴

The exclusion of Indigenous peoples from participating through their own social organizations contradicts Indigenous peoples’ right to self-determination enshrined in the Declaration and in ILO Convention 169 (Charters 2010) and reinforces the power imbalance in the HRC arena.

At least since 2012 (UN HRC 2012), the HRC has been discussing how to enhance Indigenous peoples’ participation in discussions relevant to them. At the first World Conference on Indigenous Peoples, held in 2014, member States committed to proposing ways of enabling such participation (UN GA 2014, para. 33). In 2020, the Secretary-General launched a new report (UN GA 2020) encouraging the establishment of a coordinating body of Indigenous representatives from all seven regions for consultation and discussion on how to enhance their participation in the HRC, but not much advance has been seen.

As Indigenous peoples are only allowed to speak with an NGO badge, it is not always possible to identify their representatives at the HRC sessions; hence, we cannot affirm precisely how many participated during the period we analysed. In order to put the Brazilian case into context, we were able to identify¹⁵ 14 statements made by Indigenous representatives, in a set of 27 NGO statements referring to Indigenous peoples in Brazil over the decade.

Although we noticed an increase in Indigenous participation in recent years, especially from 2016 onward, Indigenous peoples still face great constraints on making their statements. The statement by Leila Rocha Guarani Kaiowá in 2018 was the only non-read, spontaneous speech we registered. Living in Brazil and a native speaker of Guarani, she started reading with great difficulty a text written in Spanish and containing technical concepts and expressions such as ‘Agenda 2030’. In the middle of her speech, she shifted to an improvised statement in an easier, still non-fluent Portuguese, but expressing a much clearer message: ‘I need the UN’s help, because in Brazil my people are suffering’, she said. ‘I want the UN President to talk to the Brazilian President so he pays more attention to Indigenous peoples’.¹⁶

Leila’s statement illustrates several levels of constraints faced by Indigenous peoples on expressing their claims, starting from the bar on speaking in their original languages, as statements are translated only from and into the six UN official languages (Arabic, Chinese, English, French, Spanish, and Russian). Furthermore, the need to conform to UN rituals is a cause of concern, as is the extent to which a direct message (‘convince my president to respect us’) has to be transformed and even distorted to be heard (‘Brazil has plans for the 2030 Agenda, but has not presented them to Indigenous peoples’, as her pre-written speech stated). Leila’s improvisation also reveals the underlying tension between the structure imposed by the UN and Indigenous oral traditions. Although Indigenous peoples have been shaping international standards on their rights for decades through diplomacy (Beier 2009; Carpenter and Tsykarev 2021), the obstacles and subtleties involved in adapting their discursive practices to the rigid UN format should be neither ignored nor underestimated.

NGOs play an important role in facilitating Indigenous peoples’ participation at the UN. While some national and international NGOs present their own findings and reports to the HRC, mainly denouncing violations of Indigenous peoples’ rights, others support the preparation of Indigenous statements and cede their chairs in the Council for Indigenous peoples themselves to speak. According to human rights lawyer Paulo Lugon, from CIMI, their main role is ‘to create a structure for Indigenous peoples themselves to speak in this elite space of the UN’. Docip’s director Rémi Orsier considers that these forums have been underestimating the promotion of appropriate conditions for allowing true communication. For him, ‘language is seen as a technicality, while it represents the main barrier’ for Indigenous participation.

Both interviewees agree that the language constraints prevent wider Indigenous participation in the UN arenas and end up creating a kind of Indigenous elite: those who know how to navigate the international norm-making forums and master both the language of international law and that of diplomatic performance. As a result, they do not necessarily remain connected with community-based leaders and organizations in their countries. This may lead to problems of accountable representation and the translation of grassroots claims. This concern was mentioned by Christine Evans, the person responsible for SRIP’s Secretariat within the Special Procedures Branch of the OHCHR for many years, and by former EMRIP Expert Erika Yamada, who believes that efforts should be made to better reach out to grassroots Indigenous organizations and representatives.

3.4 Some States’ discursive strategies

As long as Indigenous participation in the Human Rights Council is restricted, the States command the conversation. As a charter-based body, the Council is an intergovernmental structure. Although one of the main purposes of its creation was to overcome the politicization of the former Commission, its ritual demands that diplomatic discourse is maintained even as international conflicts come to the surface (Freedman 2013). Moreover, the fact that the UN is ultimately funded by States—and depends on their willingness to maintain its working structure—poses an underlying limitation on civil society’s and Indigenous peoples’ participation, since they contest government practices (Kruckenberg 2012).

As a result, we observe a series of discursive strategies that were put into practice by States to deflect attention from critiques in the HRC. In 2020, for example, we recorded 92 statements, of which 62 were from 37 State representatives. More than one third of them (36 per cent) exhibited some discursive strategies of evading engagement with the specific content of the discussion, or with the domestic issues being raised.

This has been a pattern among representatives from countries of the Global South throughout the period. Those States normally present their advances and achievements in law and policies regarding Indigenous peoples’ rights domestically. At the same time, they seek to delegitimize denunciations made by NGOs and Indigenous speakers, or the critiques provided by the UN’s reports, without acknowledging the remaining challenges and government’s responsibilities for ongoing violations.

We will cite a few examples. In 2021, Colombia countered a criticism made by EMRIP in their thematic report Indigenous Child, stating: ‘We do not share the generalized, ambiguous and dataless mention contained in the Study of the Group of Experts [EMRIP], according to which Indigenous girls are often victims of sexual violence’ (Colombia, ID with EMRIP in the 48th HRC session). Brazil also questioned the reliability of the SRIP’s country report (UN HRC 2016a) in 2018 by stating:

We consider that the study mentioned by the Special Rapporteur has serious shortcomings ... Considering the information gaps that exist in large parts of the world, we are surprised by the categorical tone used by the Special Rapporteur in her conclusions. We beg to differ (Brazil, ID with the SRIP and EMRIP in the 39th HRC session).

In the 2020 session, Brazil used a rhetorical strategy for delegitimizing Indigenous claims by calling them ‘misunderstandings of the government’s intentions’, which we discuss further below.

We also notice more neutral strategies, adopted mainly by countries from the Global North,¹⁷ such as ‘welcoming’ or ‘taking note’ of the recommendations and posing generic questions to the panellists. As an example, the delegate representing the European Union at the ID with the SRIP in the 45th HRC session stated that the EU shared Mr. Calí Tzay’s concern about the lack of implementation of the rights of Indigenous peoples, and asked what he saw as the major challenges to ensuring the protection of Indigenous peoples’ rights, namely due to the COVID-19 pandemic, right after he presented his report in which he comprehensively elaborated on this matter. These countries pose as being external to the violations of Indigenous peoples’ rights and adopt a supportive discourse towards UN recommendations for resolving the challenges faced by other countries, disregarding the challenges faced within their own jurisdictions or as a consequence of the colonial processes they were involved in. The same behaviour was described by Kruckenberg (2012) for the Committee on the Elimination of Racial Discrimination (CERD), in which she observed that racial discrimination was still dealt with by some countries as an external matter, related only to extreme violations such as South African apartheid.

Another discursive strategy for evading criticism was to blame a third party for the conflictive situation or even for violating Indigenous peoples’ rights in a territory abroad. To cite only a few examples: in 2020, Ukraine and Pakistan blamed the Russian Federation and India for the violations committed in the Crimea and the Kashmir regions, respectively. Pakistan and India used their rights of reply to attack each other. China and Iran pointed to violations committed by other governments in their own territory, mainly the USA. In 2021, the USA itself resorted to the tactic of pointing to another country’s violation when its representative demanded a response from the Canadian Government in regard to the recently discovered cemeteries of Indigenous children in British Columbia.

Although there is some consistency in the behaviour of States, their representatives may shift strategies depending on what domestic government and what international political environment are in place. It is remarkable, but not surprising, that no State actually discussed measures taken to address any violation pointed out by the SRIP’s and EMRIP’s reports, or by Indigenous leaders’ and NGOs’ statements, which puts into question the very dialogical intention of the meetings.

4. Misunderstanding Indigenous peoples’ rights in Brazil

Misunderstandings in intercultural relations have received a lot of attention in linguistic and anthropological studies (Bührig and Thije 2006; Bailey 2009; Lévi-Strauss 2018) as an inherent byproduct of communication between different cultures that do not share the same symbolic representations. Misunderstanding can be defined as ‘the absence of communication when the same meaning is not shared … It can occur when those involved do not realize the lack of communication with each other’ (Ohnuki-Tierney 2002: 3). When it comes to interaction between Indigenous peoples and Western societies, the misunderstandings could reach the ontological level, and communication is only partially connected through a series of meaning approximations in the translation process (Strathern 2004; Viveiros de Castro 2004; De la Cadena 2015; Viaene 2021; Viaene and González-Serrano, 2023). However, where such interactions involve power asymmetries, the result can be the ‘use of language to express disaffiliation and highlight pre-existing boundaries and power differentials’ (Bailey 2009: 404) and the misunderstandings seem to depend crucially on non-linguistic factors.

The Brazilian participation in the Interactive Dialogues with EMRIP and the SRIP in 2020 offers an emblematic example of States’ rhetorical strategies to delegitimize Indigenous claims. In this section, we show how the Brazilian State has used the narrative strategy of labelling the counter-hegemonic discourse as ‘misunderstandings’, reinforcing the power imbalance between stakeholders in the HRC.

At the 45th HRC session (2020), Brazil had the largest participation in the events concerning Indigenous peoples’ rights, accounting for 13 statements, while other countries manifested only once, or at most three times. On the one hand, eight NGOs and Indigenous persons denounced the attacks from Bolsonaro’s government¹⁸ against Indigenous peoples. On the other, State delegates from Brazil stated that the denunciations coming from the NGOs and Indigenous representatives, as well as those from the official UN reports, were actually a matter of ‘misunderstanding’, ‘misinterpretation’, and ‘confusion’ of the government’s intentions towards Indigenous peoples in Brazil.

The first barrier to the participation of Indigenous peoples is language, as previously suggested. In most cases, representatives from the Brazilian State, Indigenous peoples, and NGOs that support their claims literally do not speak the same language. While all of the Brazilian government’s statements were made in English, three quarters of the NGOs’ and Indigenous representatives’ presentations were in Spanish, and only a quarter in English. All Indigenous speakers from Brazil made a special effort to speak in Spanish, as Portuguese is not one of the official languages ordained by the United Nations, nor is Guarani, Chiquito, Ye’kwana, or any other Indigenous language.

However, we argue that what really hinders communication between those dissonant voices is the interpretation of key concepts—and the conflicting ontologies underlying them. In 2020, the Brazilian delegate contested the Indigenous peoples’ right to free, prior and informed consent (FPIC) three times, questioning the value of ILO Convention 169, as the following excerpt exemplifies:

the misinterpretation on the ILO 169 subverts the high hierarchy of the international law system … We believe there is a question that has to be asked in this case: is the General Assembly resolution a legally binding instrument able to create international obligations to member states? We do not think so.¹⁹

Brazil had ratified the ILO Convention in 2004 (Decree no. 5.051, promulgated on 19 April), but never translated it into domestic legal instruments. Despite its ratification, Indigenous peoples’ right to FPIC was never secured in Brazil, as if compliance with their right to consent would hinder national development, as EMRIP observed in their 2018 report on FPIC (UN HRC 2018, para. 49). As a result, Brazilian governments have been interpretating FPIC as Indigenous peoples’ right to be consulted, without any guarantee that Indigenous people’s choice as to consent will be respected in the State’s final decision.

To illustrate, the same government that ratified the Convention in Brazil eased environmental licensing rules and was responsible for the construction of one of the most controversial megaprojects in the country—part of the governmental Growth Acceleration Programme—in disregard of Indigenous peoples’ claims: the hydroelectric dam Belo Monte (Hanna, Langdon and Vanclay 2016; Bonilla and Capiberibe 2021). In 2019, President Bolsonaro went even further by threatening to nullify its ratification.

On their part, Indigenous peoples have been elaborating their own consultation protocols on how the State should consult them in matters that affect their individual and collective rights. Their understanding is that the right to be consulted is an expression of their right to self-determination, enshrined not only in the ILO Convention but also in UNDRIP. Florencio Vaz, of the Maytapu people, provided an example of this struggle, during the meeting with the SRIP at the 45th HRC session: ‘Since 2019, the Brazilian State has approved new rules for the demarcation of Indigenous lands without listening to the affected Indigenous peoples or guaranteeing their effective participation’.

Another controversial ‘misunderstanding’, as it was framed by the Brazilian government in the 45th HRC session, regarded the contestation of the bill 191/2020,²⁰ reinforcing the disputes around the right to FPIC and to self-determination. This bill, which seeks to establish regulations for mineral and water exploitation within Indigenous lands, determines that the decision on such projects can move forward without regard to Indigenous peoples’ consent. NGOs and Indigenous representatives denounced its grave consequences on several occasions, demonstrating the Brazilian government’s non-compliance with the consultation of Indigenous peoples concerning the approval of bills that affect them directly. Using its right of reply, the Brazilian delegation contested both the organizations’ claims and the warning in EMRIP’s report on Land Rights (UN HRC 2020), while failing to provide any clarification of what the misunderstanding consisted of, as this excerpt shows: ‘Regarding mentions of bill 191/2020, the comments demonstrate a misunderstanding of the intent of the government on the bill’.

Mauricio Ye’kwana, representing the Yanomami and Ye’kwana Leaders’ Forum, exposed what could be the effects of the bill:

Our territory is being invaded by more than 20,000 illegal miners in search of gold, who bring diseases … and violence to the communities. They also pollute our rivers with mercury. In 2020, two Yanomami were killed by gold miners [… We leaders have asked the government to fulfil its obligations to remove the illegal miners, but there is no adequate answer to this problem. On the contrary, the government makes speeches that encourage the illegal exploitation of gold inside Indigenous lands in the Amazon and that intensify the threats against us. We continue to see the forest being destroyed.²¹

Ye’kwana’s statement makes the conflicting ontologies explicit around this ‘misunderstanding’. For him, the bill represents the destruction of the forest and, consequently, a direct threat to the existence of the Ye’kwana and Yanomami peoples. In Yanomami cosmology, extracting minerals from the soil provokes the dissemination of a deadly ‘metal smoke’, causing only suffering at the surface (Kopenawa and Albert 2016). While for the Brazilian government, mining should also be facilitated inside Indigenous lands to improve profit, corresponding to a market ontology (Lea 2018).

However, the ‘misunderstandings’ referred to by the Brazilian delegates do not represent a lack of linguistic comprehension. Instead, they make political struggles explicit around the implementation of Indigenous peoples’ rights. Thus, framing the lack of communication as a misunderstanding, in an arena where language is precisely one of the major barriers for Indigenous peoples’ participation, reinforces the State’s hegemonic discourse against Indigenous peoples, thereby ruling out Indigenous ontologies.

In her presentation of EMRIP’s report on FPIC (UN HRC 2018) in 2018, the former Expert Erika Yamada made this strategy evident. On that occasion, she was asked by a few member States what factors contributed to the rise of ‘misunderstandings’ around FPIC. To that, she replied:

These misunderstandings are not because there are doubts about what is in Convention 169 and in the Declaration, but because of the practice of governments in the implementation of the right to consultation and the right to free, prior and informed consent … Perhaps it is also for the same reason of non-recognition of self-determination and the right to non-discrimination that there is such an intrinsic relationship between the lack of consultation and free, prior and informed consent and the many [acts of] violence and violations of rights … that threaten the lives of Indigenous peoples.²²

In her statement, Yamada refused to frame the misuse of the term FPIC as a problem of miscommunication, connecting it rather to matters arising from an implementation gap. At the same time, she revealed the discursive strategy used by States to put into question Indigenous peoples’ rights and the persistence of conflicting interpretations of self-determination.

5. Persisting struggles around the right to self-determination

All the Brazilian examples of government statements, analysed on their discursive strategies to delegitimize Indigenous peoples’ claims, shed light on the underlying struggle around Indigenous peoples’ right to self-determination, which has been a target of dispute between Indigenous groups and States at least since the drafting of the Declaration (Davis 2008). There is a large bibliography on the meanings of Indigenous peoples’ right to self-determination (Anaya 2009; Charters 2010; Ahren 2016; Cambou 2019), though a conceptual legal discussion is beyond our scope. In this section, we focus on the possible misinterpretations of this right and present examples of how it still represents a major cause of struggle at the HRC.

Misinterpretation on the part of States normally occurs at two levels: 1) the external aspect of the right to self-determination, which allow a people to determine its political status at the same baseline as other peoples; and 2) the internal aspect of self-determination, which recognizes the right of all citizens within a State to participate in its political life on an equal basis and to determine their own development (Ahren 2016).

The external aspect was historically used to promote decolonization processes, especially in Africa, but when it is applied to Indigenous peoples’ right to self-determination, some States still consider it a threat to their sovereignty and territorial integrity (Davis 2008). According to Ahren (2016: 133), Indigenous peoples’ right to self-determination does not collide with the principle of territorial integrity of States, as those peoples ‘are entitled to first and foremost exercise the right to self-determination through autonomy and self-government arrangements within the State’. During the years of elaboration of the Declaration, this concern was addressed in what came to be known as the saving clause:

Nothing in this Declaration may be interpreted … or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States (Article 46, 1).

Indigenous participation in international and transnational decision-making may be interpreted as a groundbreaking expression of the external aspect of their right to self-determination (Charters 2010; Cambou 2019). EMRIP’s report on Indigenous peoples’ right to self-determination (UN HRC 2021) is clear on this subject: ‘Indigenous peoples’ status as “peoples” enables them to speak of their issues beyond the borders of the State, at international forums’ (para. 61). However, the implementation gap still constrains the participation of ‘authentic Indigenous voices’ at the Human Rights Council as they are only allowed in as NGOs and not through their own representative organizations, as Karla General underlined in 2017.

Furthermore, States have used this gap to divert attention from the implementation gap domestically, as the Expert Megan Davis highlighted in 2021:

It’s important for States in recognizing that Indigenous peoples should have a better, formal voice in UN processes to reflect also on what Indigenous peoples’ voices look like domestically and whether there are appropriate mechanisms adopted domestically to ensure the rights of Indigenous peoples to participate within the framework of the State.²³

The narrow interpretation of the internal aspect of Indigenous peoples’ right to self-determination is expressed as the obligation to consult and to include Indigenous peoples in decision-making regarding matters that affect them, regardless of respecting their consent (UN HRC 2018, paras 46–60). In other words, Indigenous peoples would have the right to be consulted and participate in political life, but without being able to influence the final decision. In this case, the implementation gap leads to the constant ‘misunderstandings’ around the extent of Indigenous peoples’ right to FPIC. Again, the Belo Monte case is enlightening: Indigenous peoples’ right to FPIC was largely ignored throughout the process while the Brazilian government also overlooked the Inter-American and National Supreme Court determinations that this right should be respected as a realization of their right to self-determination by stating that the dam would not affect Indigenous peoples’ lives and territories (Jaichand and Sampaio 2013).

In their Expert Advice No. 2 (2011), EMRIP²⁴ elaborated on the connections between the rights to self-determination and to consultation:

The right to participate in public affairs has conventionally been understood as a civil and political right of the individual. In the context of Indigenous peoples, however, the right also takes on a collective aspect, implying a right of the group as a people to exercise decision-making authority (Comment no. 5);

and

States should also recognize that the right to self-determination of Indigenous peoples constitutes a duty for States to obtain Indigenous peoples’ free, prior and informed consent, not merely to be involved in decision-making processes, but a right to determine their outcomes (Measure no. 34).

If States were to take seriously the ‘decision-making authority’ and ‘right to determine their outcomes’ of Indigenous peoples, the misconceptions on FPIC could be overcome.

Another misinterpretation of the internal aspect is the tendency to limit the right to self-determination to the context of Indigenous internal matters that do not invoke the interest of the State or society in general. Opposing that misinterpretation, Anaya (2009: 188) explained that ‘Indigenous peoples with their own organic and political fabrics, are to be full and equal participants at all levels in the construction and functioning of the governing institutions under which they live’.

Throughout the years of Interactive Dialogue with States at the HRC, however, the same misinterpretations have been repeatedly observed. In the presentation of EMRIP’s report on Indigenous peoples’ right to self-determination in the 48th session of the HRC held in 2021, the list of speakers included 19 States, one UN agency (FAO), and six NGOs denouncing violations of Indigenous peoples’ rights in China (twice), Brazil, Chile, Argentina and Iran. Concepts such as ‘participation in decision-making’ (European Union), ‘ensuring consultation in regards to their [Indigenous peoples’] rights’ (Norway), ‘voices included in policy and decision-making processes’ (FAO), ‘right to self-government in matters related to their [Indigenous peoples’] internal affairs’ (Ukraine), and ‘hearing Indigenous peoples’ voice for co-design’ (Australia) evidence the narrow interpretation by some States—and also a UN agency—of Indigenous peoples’ right to self-determination, mostly in regard to its internal aspect and, moreover, without specifying that FPIC recognizes Indigenous peoples’ right to deliberate on matters that affect them. Only Indonesia and Algeria referred to the external aspect of the right to self-determination, when commenting on the independence of West Papua (implying the Kanaq People) and on the formation of the Algerian State, respectively.

Davis’s concluding remarks in that 2021 meeting provided a clarification of the misuse made in State discourses:

one of the reasons that EMRIP has decided to focus on the right to self-determination is because the conceptual meaning of self-determination is so poorly understood by some States … Self-determination is not simply about consultation and participation; it is the right of Indigenous communities to make decisions through their own processes and carry them through to implementation.

Indeed, 14 years after the adoption of the Declaration and its developing interpretation under international law and jurisprudence, it is not conceivable that States’ behaviour against Indigenous peoples’ right to self-determination is a matter of confusion or poor legal interpretation. Instead, it reflects the power struggle in which States still consider Indigenous peoples’ self-determined existence to be a threat to their sovereignty over territory and resources. The misuse of this concept precludes a proper implementation of the right itself, and the reason is often the lack of willingness on the part of governments to recognize Indigenous ontologies.

6. Conclusion

In this article we analysed the Interactive Dialogues of the Human Rights Council between States and Indigenous peoples, arguing that the existence of misunderstandings was a means to manipulate the struggle in favour of hegemonic perspectives, which threaten the full realization of Indigenous peoples’ rights. We argue that this ‘lack of communication’ is not an inherent byproduct of the intercultural interaction; instead, it is used tactically to reinforce Indigenous disadvantage in an arena where language is already a major barrier.

Drawing on our empirical research, we argue that constraining the participation of the key stakeholders—or the ‘authentic Indigenous voices’—at the HRC ends up favouring even more the manipulation of ‘misunderstandings’ by the most powerful, once their own discourses (and narrative strategies) are privileged. Additionally, as long as Indigenous participation remains limited in these arenas, the HRC itself is contributing to the implementation gap regarding the right to self-determination, at least in its external aspect.

Among EMRIP’s recommendations in their report on Indigenous peoples’ right to self-determination (UN HRC 2021), we highlight the following:

There is a direct correlation between the extent of recognition of Indigenous peoples as Indigenous peoples by States and the extent to which States respect, protect and fulfil Indigenous peoples’ right to self-determination. The greater the level of recognition, the more profound the implementation of the right (para. 63).

It is not by coincidence that Indigenous peoples’ right to self-determination remains a major matter of struggle: the several State discursive strategies contesting this right at the HRC actually reveal their resistance to recognizing Indigenous peoples as holding specific rights and therefore, as peoples with the right to live according to their own ontologies.

Through the analysis of the emblematic case study of Brazil, we were able to identify governments’ tactics for undermining Indigenous peoples’ claims to their rights in the realm of diplomacy. In our view, this case study illustrates a discursive struggle that comes from the context of a political hegemony, based on natural resource extractivism in Indigenous territories, which is the reality for many of the countries in the Global South (Jaichand and Sampaio 2013; Powęska 2017; Vanhees 2018; Sikor et al. 2019). In many of these countries, Indigenous peoples are still seen as barriers to their development by the dominant economic and political elite, because their ontology, based on an imbricate relationship with nature, conflicts directly with the neoextractive politics of some governments (Lea 2018; Svampa 2019).

In the discursive struggle at the HRC, Indigenous peoples are in fact fighting for a radically different meaning of ‘development’ in which their existence is not a barrier but a promoter. However, as long as the power imbalance continues to distort their participation, their internationally—and sometimes domestically—recognized rights remain largely rhetorical. There are at least two urgent ways forward: 1) implementing their right to self-determination in its external aspect by enhancing Indigenous peoples’ participation in the international human rights norm-setting arenas, such as the HRC; and 2) making explicit States’ discursive strategies of delegitimizing Indigenous claims, so that these claims can be heard in their actual meanings.

A report in 2020 from the Secretary-General (UN GA 2020) already provides a comprehensive path for enhancing Indigenous peoples’ participation in the HRC. However, it is worth noting that NGOs have played a central role in promoting their participation throughout the period we analysed. While this is not the ideal form of engagement, since ‘Indigenous peoples are not NGOs’, perhaps broadening this articulation, following the Brazilian example, at least in 2020, can be an intermediate step towards enhancing Indigenous peoples’ participation in the HRC.

The independent experts on the rights of Indigenous peoples within the official UN human rights system mediate an arena of pronounced power imbalance and conflicting interests. Being aware of that, we believe that their role as Indigenous diplomats involves precisely identifying these discourse strategies and consistently exposing them in order to promote actual dialogue in favour of Indigenous rights. Gestures reframing the misunderstandings as ‘poor understandings’, as Megan Davis did in 2021, and differentiating them from ‘having doubts’, as Erika Yamada did in 2018, already show a way forward in exposing States’ strategies to undermine Indigenous narratives about the interpretation of their rights. Additionally, meanings of the concepts in dispute—such as development—should not be taken for granted. In this sense, we believe that independent experts could systematically include in their thematic reports Indigenous peoples’ core concepts, unveiling their particular meanings, as EMRIP did in their study on land rights (UN HRC 2020, paras 1–10).

As former SRIP Victoria Tauli-Corpuz explained in 2014 (UN HRC 2014), finding common ground between States and Indigenous peoples for advancing on controversial issues is still a challenge. The challenge increases when misunderstanding is not a matter of communication but a product of the lack of willingness to communicate, or even the non-acceptance of the other’s voice or existence. The underlying challenge in the implementation of Indigenous peoples’ rights rests in the ontological conflicts between States and Indigenous peoples that have been shaping interpretations of their rights, which still frustrate the attempts of Indigenous peoples to be present and heard in the global arenas on human rights.

Acknowledgments

We are grateful to Ainhoa Montoya, Julie Billaud, Miia Halme-Tuomisaari, and Patrícia Borraz for their comments on previous versions of this article. We would also like to thank the anonymous reviewers of our paper for their constructive and insightful comments on our work.

Funding

This work was supported by the Starting Grant from the European Research Council (2019–25) ‘RIVERS—Water/Human Rights Beyond the Human? Indigenous Water Ontologies, Plurilegal Encounters and Interlegal Translation’ [Grant Agreement 804003], under the European Union’s Horizon 2020 research and innovation programme.

Ethics statement

The Research Project received ethical review and approval from the Ethics Committee of the European Research Council (ERC) in 2018. Informed consent was obtained from all subjects involved in the study.

Conflict of Interest

None declared.

References

Footnotes

Author notes