The Special Rapporteur Should Know Better
In May, I warned you that one mention is all it takes. Now, the report proves that point.
Sorry to drop this on you this Sunday, but I wanted to get this out there before HRC60 started.
Do you remember my note somewhere in May, when I wrote that one mention is all it takes. Then in June, I mapped out the playbook for how local communities could be codified into international law without raising alarms.
Now, in September, we see both of those points converging.
The Special Rapporteur is presenting his report this month, now, the report doesn’t just mention local communities. It gives them their own section. It doesn’t just warn about conflation. It positions itself as the starting gun for a Human Rights Council process.
This is how structural shifts begin. One mention, one playbook, one misplaced sentence at a time. And once the shot is fired, you can’t act like the race hasn’t started.
Recognition in one section, local communities in another.
On paper, the Special Rapporteur’s report is about recognition of Indigenous Peoples. The opening sections affirm UNDRIP as the benchmark, emphasize that Indigenous rights are binding under international law, and call recognition remedial, not optional. That part is strong.
But then comes another section, just a few pages later, on local communities.
Side by side. Parallel headings. Recognition in one part, local communities in the other. They are not connected. But can be implied as they belong in the same frame.
This is the structural problem. Even before you read a word, the report sets them up as 1+1 issues. And once they sit side by side, the lines are already blurred.
The Footnote Problem
The report acknowledges the risks clearly:
“The term ‘local communities’ has not yet been established as a human rights concept with a clear meaning or associated rights. … The conflation poses serious risks to the rights of Indigenous Peoples.”
That’s exactly right.
But then comes the proposed solution:
“…a clarifying note (footnote or disclaimer) always be inserted stating that the use of the term ‘Indigenous Peoples’ next to the term ‘local communities’ does not imply that the two groups enjoy the same rights under international law.”
This is where it collapses.
A footnote isn’t a safeguard. It’s like patching a leaking faucet while ignoring that the entire well is contaminated. It’s like finding cracks in the foundation of a house and suggesting homeowners put up a sticky note that says, “Warning: Don’t step here.” The foundation is still broken.
Once Indigenous Peoples as well as local communities are locked into the same provision as “Indigenous Peoples and local communities”, the structure is compromised. The starting point/safeguard is separate provisions. Indigenous Peoples in one. Local communities, if included, in another. Parallel, not merged. Anything else is cosmetic.
“Not yet” is a Starting Gun
In another paragraph, the report warns:
“A blanket extension of the regime of Indigenous Peoples’ rights to local communities raises serious concerns… [it] would risk the cultural integrity of Indigenous Peoples, render invisible the historical injustices that they have suffered and open the door to usurpation.”
Again, that’s right.
But then comes the sentence that flips the frame:
“The term ‘local communities’ … has not undergone a human rights standards-setting process – for example, through the Human Rights Council – to establish its own meaning and attach rights to it.”
That line positions the Rapporteur as something he should never be: A human starting gun.
He’s not directly extending Indigenous frameworks to local communities. But by pointing at the track and saying, “this race could begin here,” he fires the first shot. From that moment, States treat the course as open.
It’s like hiring an inspector to check the cracks in your foundation, and instead of focusing on your house, he waves across the street and signals the crew to start digging a new foundation there. He may not pour the concrete himself, but he authorizes the work. And then the digging starts.
Agenda-Setting is Power
Some might say: “The HRC may never act on this.”
I’ve been around the UN long enough to know that agenda-setting itself is power. The moment an idea appears in a UN report, it enters the conversation.
Think of the Overton window. Imagine a window frame. Ideas inside the frame are seen as reasonable. Ideas outside are seen as impossible. The moment an authority figure puts something on the table, the window shifts. What was once outside moves inside.
That’s exactly what’s happening here. The HRC may never create a standard-setting process for local communities. But the very fact that the idea was floated in this report moves it into the realm of the “thinkable.”
How It Should Have Been Written
Here is how the section could have been written but without lowering the bar:
Local communities
The concept of “local communities” has not been established as a human rights category under international law. It remains primarily a domestic construct, defined and applied by States according to their national contexts. While every individual within local communities fully enjoys the protection of international human rights law, the collective recognition of “local communities” is neither grounded in historical marginalization nor linked to collective right to self-determination.
For this reason, the rights of Indigenous Peoples must not be conflated or merged with those of local communities. Conflation risks weakening the sui generis status of Indigenous Peoples, invisibilizing the specific injustices they have suffered, and undermining their hard-won recognition as “Peoples” under international law. States should therefore ensure that references to Indigenous Peoples as well as local communities are addressed in separate provisions of international instruments, to avoid confusion and protect the integrity of Indigenous Peoples’ rights.
Local communities may very well develop their own recognition frameworks through domestic and regional processes. And in my view, that is for them to decide. But it is not the role of the Indigenous Peoples’ mandate to define or discuss those rights internationally.
Each group must speak for itself. The protection and promotion of Indigenous Peoples’ rights cannot and must not become the vehicle for the international recognition of other categories.
I am not against local communities. Every individual has human rights. But when a mandate-holder on Indigenous rights positions himself as the starting gun for local community recognition, he is not raising the bar. Nope, he is lowering it. And he should know better.
Before You Go
This is the follow-up to what I wrote weeks ago: One mention is all it takes.
And now, we have more than a mention. We have a section. A footnote strategy. A starting gun.
If any other special procedure had floated this, it would be political noise. When the Indigenous Peoples’ Special Rapporteur floats it, it is political ammo. That is the difference.
Recognition of Indigenous Peoples was hard-won. It cannot be recycled. Precision is everything in international law, and on this issue, we cannot afford blurred lines.
See you next time!
I share your concern regarding the attention given to the term 'local communities' when dealing with the human rights of Indigenous Peoples, and note the view you have expressed.
However the use of 'local communities' in official terminology in international human rights dialogues is a situation which has arisen due to the lack of knowledge and skills from representatives of Indigenous Peoples who now attend the variety of international events controlled by States and now open to wider participation from civil society.
It was under the Convention on Biological Diversity that 'local communities', and then at the World International Property Organization, that LCs became a popular terminology to be intermixed with Indigenous Peoples.
It was for two reasons.
One is because particular States - most of whom refuse to accept the identity and status of Indigenous Peoples in international human rights law - also decided to mix the valid human rights concerns of the Indigenous Peoples with perceived ‘cultural diversity’ within their populations, and the second is because those international structures (CBD and WIPO) refused to acknowledge that Indigenous Peoples are 'peoples' able to exercise their right to self-determination.
The intention was to spoil the rights of Indigenous Peoples to hold autonomous status in international fora.
Local communities, like minorities, ethnic groups and peasants, are considered under international human rights law to be part of the composition of the 'peoples' of a State.
That is, local communities are a domestic component of the State without holding an inherent right to self-determination and development and therefore, are subject to State laws and jurisdictions.
When LCs appear at international fora they are already represented through their State.
States are obligated, under the UN treaty, to promote and protect the human rights of local communities.
Failure to do so is a breach of the local populations human rights
Indigenous Peoples, on the other hand, are not represented, without consent, by UN Member States and are appearing at these international fora as ‘peoples’ specifically holding the right to self-determination.
UN Member States, when acting through international organizations on biodiversity, intellectual property, food security, climate change, women's rights, SDGs etc, need to be constantly reminded that local communities appearing to speak at UN fora are a voice from civil society of their State, either in harmony with or in conflict with, the State concerned.
It is a domestic issue, considered to be a responsibility existing under the concept of territorial integrity of the country and obligation of the State under the UN treaty to promote and protect their human rights.
LCs are not on the same stage at Indigenous Peoples who have a legitimate right under the UN treaty and international human rights law to represent their own right to self-government and development.
If this clarification is to be understood at international fora it is important that Indigenous Peoples representatives clarify and assert the distinction at all opportunity to do so.
It is with our own delegations where the assertion must be made and understood.
Unfortunately the vast majority of Indigenous Peoples delegates at the international fora do not sufficiently understand international human rights law, specifically the provisions dealing with the right to self-determination, development and self-government and the legal platforms upon which we are participating to challenge State’s ignorance and diffusion of human rights standards.
UN Member States who are allowing their LCs to blur the lines at these selective fora.
I suggest that the report of the Special Rapporteur to the Human Rights Council may perhaps be the correct way to open up this issue as a human rights concern, given the high authority of the UN Human Rights Council.
Local communities do not have the right of peoples to self-determination unless such is acknowledged internally by the State in which they live and accepted accordingly within the international 'UN community'.
I have not yet read the Special Rapporteur's report to the current Human Rights Council session but I recommend that IP delegations to the session make strong intervention on this distinction between Indigenous Peoples and local communities.
It is an opportunity to challenge those States that seek to blur the lines between IPs and LCs.
I welcome responses to my statement.