A/HRC/57/62
Annex
Expert Mechanism Advice No. 17 (2024):
Constitutions, laws, legislation, policies, judicial decisions and
other mechanisms through which States have taken measures
to achieve the ends of the United Nations Declaration on the
Rights of Indigenous Peoples, in accordance with article 38 of
the Declaration
1.
The Expert Mechanism provides the following advice on the measures taken by
States to achieve the ends of the United Nations Declaration within the context of their
human rights obligations and responsibilities.
2.
There is a general understanding that the Declaration synthesizes the spectrum
of fundamental human rights already enshrined in various treaties and international
jurisprudence in the context of Indigenous Peoples. The United Nations treaty bodies
have frequently referred to the Declaration to interpret relevant provisions of these
treaties in matters involving Indigenous Peoples. Similarly, the Declaration helps States
interpret and understand their existing human rights obligations as a matter of
international and domestic law.
3.
The Declaration has contributed to the development of – and reflects – general
principles of international law or customary international law. The Declaration
includes several key provisions that correspond to existing State obligations under
customary international law.
4.
States should operationalize the rights affirmed in the Declaration in ways that
entail clear programmes of legal and policy reform, institutional action and reparations
for past wrongs.
5.
States should, in cooperation and collaboration with Indigenous Peoples,
incorporate frameworks to implement the Declaration into domestic law. Implementing
the Declaration will normally require States to adopt new laws or to amend existing
legislation at the domestic level, as well as developing a regulatory framework, as
provided in article 38 of the Declaration, which calls for appropriate legislative
measures.
6.
States should institute constitutional and other legal reforms and judicial actions
to recognize and operationalize the rights of Indigenous Peoples under the Declaration
at the local level. The legislative process should apply a comprehensive approach to
synchronize different elements and levels of legislation and regulations in order to make
them consistent.
7.
Legal and institutional transformations required by the Declaration are usually
not sufficiently addressed solely by enacting specific Indigenous laws and legislation.
States should aim to transform laws, policies and structures in all areas affecting the
fulfilment of Indigenous Peoples’ rights.
8.
While the legislative implementation of the Declaration is not always coupled
with constitutional reforms, it does provide the judiciary with tools that they can use to
maintain the relationship between justice and jurisprudence. The Declaration is
progressively interpreted in national, regional and international jurisprudence and
judicial decisions on Indigenous Peoples’ rights. In the light of this, measures are needed
to direct and support the judiciary in ensuring that domestic laws are interpreted and
applied in a manner consistent with States’ international human rights obligations. This
includes judicial training on the Declaration and international law more widely, carried
out in consultation and cooperation with Indigenous Peoples, and the appointment of
more Indigenous judges.
9.
In implementing article 38 of the Declaration, States should establish monitoring
bodies that can build political momentum towards the advancement of the rights of
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