INDIGENOUS WOMEN'S RIGHTS IN INTERNATIONAL LAW: A COMPARATIVE ANALYSIS OF THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES AND THE AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES.

• Author: Sinclair-Blakemore, Adaena

I INTRODUCTION

The adoption of the United Nations Declaration on the Rights of Indigenous Peoples (' UNDRIP) (1) by the United Nations General Assembly in 2007 and the adoption of the American Declaration on the Rights of Indigenous Peoples (ADRIP) (1) by the Organization of American States ('OAS') in 2016 have been lauded as 'landmark' developments in the quest for the recognition of indigenous rights in international and regional legal frameworks. (3) Although UNDRIP and ADRIP are not legally binding per se and may be regarded as 'soft law', they represent a comprehensive statement on the rights of indigenous peoples under international law and have wide-reaching social, political and symbolic impacts. Consequently, both instruments, particularly UNDRIP, have attracted deep critical engagement in the scholarship. (4) However, there remains little attention given to the rights of indigenous women in UNDRIP, ADRIP and international law more broadly. (5)

This article seeks to fill this gap in the literature by analysing indigenous women's rights in UNDRIP and ADRIP. I posit that ADRIP represents a more comprehensive and progressive approach to indigenous women's rights than UNDRIP for two principal reasons. First, whilst UNDRIP does not expressly recognise the positive rights of indigenous women nor their compatibility with collective rights, ADRIP recognises the compatibility and indivisibility of these two generations of rights for indigenous women. Secondly, ADRIP positions violence against indigenous women as a threat to the realisation of their collective and individual rights and constructs indigenous women as rights-holders. UNDRIP, conversely, frames violence against indigenous women in isolation from collective and individual rights and positions indigenous women as victims rather than as empowered actors.

This article is organised as follows. Parts II and III outline the background to indigenous women's rights in the UN and OAS systems and the provisions in UNDRIP and ADRIP concerning indigenous women as well as their drafting histories. Part IV builds on the contextual information in Parts II and III by analysing how the provisions on indigenous women in UNDRIP and ADRIP approach the contentious issue of the compatibility of indigenous women's rights with collective rights. Part V focuses on the issue of violence against indigenous women, analysing how UNDRIP and ADRIP frame the issue and construct indigenous women as either empowered actors or as victims of rights abuses.

Several qualifications should be made on the scope of this article. First, just as the term 'indigenous peoples' does not have an authoritative definition in international law, (6) there is no agreed upon definition of the term 'indigenous women'. (7) Throughout this article, when the term 'indigenous women' is used, it does not assume the homogeneity of indigenous women. I acknowledge the diverse histories, contemporary realities, cultures, languages, values and practices of indigenous women globally. (8) Secondly, throughout this article, the 'rights' afforded to indigenous peoples and indigenous women in UNDRIP and ADRIP are discussed. Whilst it is recognised that the concept of 'rights' is Westphalian, (9) human rights discourse has been 'most hospitable' to indigenous claims and indigenous peoples have succeeded 'in using the language and methods of human rights' to address indigenous issues. (10) The term 'rights' is therefore used in the article in the sense that UNDRIP and ADRIP are grounded within a human rights framework." Finally, when I assert that indigenous women's rights in international law have not received a great amount of scholarly attention, I intend to convey that they are underexplored within the context of academic scholarship. (12) I acknowledge that indigenous women's concerns are explored outside the confines of academia. (13)

II INDIGENOUS WOMEN INTHE UN SYSTEM AND UNDRIP

Despite the growing prominence of indigenous issues within the UN system over the last few decades, (u) prior to the adoption of UNDRIP, indigenous women were not recognised in international law as independent rights-holders. (1S) Rather, there was a general assumption that indigenous women were encompassed within the category 'indigenous peoples'. (16)

1. Indigenous Women in the UN System

   The Convention on the Elimination of All Forms of Discrimination against Women ('CEDAW) (1) neither addresses the collective and individual rights of indigenous women (18) nor acknowledges the intersecting forms of discrimination faced by indigenous women. (19) The individual complaint procedure under the Optional Protocol to the CEDAW (20) does not take into account the collective dimension of indigenous women's rights, (21) and, despite its entry into force in 2000, it has not been used to address complaints from indigenous women. (22) Further, the CEDAW Committee's General Recommendations contain few references to indigenous women. (23) Despite repeated calls by indigenous women's groups for the CEDAW Committee to issue a General Recommendation on the rights of indigenous women, (24) particularly one that acknowledges the compatibility of their individual and collective rights, (25) this has yet to occur. Whilst some of the more recent General Recommendations--such as those concerning the gender-related dimensions of climate change (26) and the rights of rural women (27) - have included more references to indigenous women's rights, (28) indigenous women as a distinct category of rights-holders remain underrepresented in the CEDAW Committee's jurisprudence. (29)

   Indigenous women's rights are also unacknowledged in the General Recommendations of the Committee on the Elimination of Racial Discrimination. General Recommendation 23 on Indigenous People (30) called upon States parties to the International Convention on the Elimination of All Forms of Racial Discrimination (31) to '[e]nsure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination'. (32) However, it reinforces a homogenous conception of indigenous peoples because it does not acknowledge intersecting identity characteristics such as gender that also shape indigenous women's experiences. Moreover, General Recommendation 25 on Gender- Related Dimensions of Racial Discrimination, which notes that 'racial discrimination does not always affect women and men equally', (33) makes no reference to the specific challenges faced by indigenous women. (34)

2. Indigenous Women in UNDRIP

   Variously described as 'radical', (35) a 'landmark achievement' (36) and '[t]he most significant initiative ever undertaken in the history of human rights', (37) UNDRIP constitutes the most important international instrument on indigenous peoples' rights. (38) Moreover, it is the@

   first international instrument to specifically address indigenous women's rights within the international indigenous rights framework.

   1. The Provisions

   There are three key provisions in UNDRIP concerning indigenous women's rights: arts 21, 22 and 44. Article 21 provides that:

   (1) Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security.

   (2) States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities.

   Article 22 provides that:

   (1) Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities in the implementation of this Declaration.

   (2) States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.

   Article 44 affirms that '[a] 11 the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals'.

   2. Drafting History

   Article 44 (originally art 43 during the drafting phase) was considered 'uncontroversial' and no objections were raised to its adoption in 1997. (39) However, the provision's drafting history also reveals that the very little debate over how the provision would work in practice means its subsequent implementation remains elusive. (40) Alexandra Xanthaki has noted that there was a 'general reluctance' to discuss indigenous women's issues during the adoption of art 44, (41) and that 'indigenous female representatives repeatedly said, when asked informally, that this was not the forum to discuss the issue'. (42)

   Commentary to UNDRIP reveals that there was 'little disagreement that attention should be included to the special vulnerabilities of particular groups', including indigenous women. (43) The UN Subcommission on Prevention of Discrimination and Protection of Minorities adopted draft arts 21 and 22 in 1994. (44) Between 1994 and the final approval of these articles by the UN Human Rights Council in June 2006, (45) the text of these provisions underwent several changes. (46) Although these provisions obliging States and indigenous groups to pay 'particular attention to the 'special needs' of women were understood as reflecting existing standards of international law, (47) the commentary to UNDRIP reveals that 'it was their framing within provisions on Indigenous development and self-determination that made these provisions difficult to agree' upon. (48) Debate concerning the rights of women, particularly 'the apparent dichotomy between collective rights and individual rights','" pervaded the meetings of the Working Group up until its last session in June 2006. Several...