The United Nations Declaration on the Rights of Indigenous Peoples A Manual for National Human Rights Institutions 2. PARTICIPATION AND CONSULTATION International human rights law refers to the right to participate in both general and specific forms.109 The Declaration contains more than 20 provisions affirming the right of indigenous peoples to participate in decision-making, articulated as, inter alia, (a) the right to self-determination; (b) the right to autonomy or self-government; (c) the “right to participate”; (d) the “right to be actively involved”; (e) the duty of States to “obtain their free, prior and informed consent”; (f) the duty to seek “free agreement” with indigenous peoples; (g) the duty to “consult and cooperate” with indigenous peoples; (h) the duty to undertake measures “in conjunction” with indigenous peoples; and (i) the duty to pay due “respect to the customs” of indigenous peoples.110 Article 18 of the Declaration establishes that “indigenous peoples have the right to participate in decisionmaking in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions”. The Declaration requires States to consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them (article 19). The right to participation is also present in those articles of the Declaration which affirm the rights of indigenous peoples to be consulted regarding, or to consent to, decisions which will affect their interests. The Expert Mechanism has discussed the relationship between the right to self-determination and the participation of indigenous peoples in decision-making. It has noted that self-determination is an ongoing process which ensures that indigenous peoples continue to participate in decision-making and have control over their own destinies. It means that the institutions of decision-making should be devised to enable indigenous peoples to make decisions related to their internal and local affairs, as well as to participate collectively in external decision-making processes in accordance with relevant human rights standards.111 Other United Nations bodies have addressed elements of the right of indigenous peoples to selfdetermination in the context of consultation and participation. The Committee on the Elimination of Racial Discrimination has emphasized the importance of participation by indigenous peoples’ freely chosen representatives in processes of constitutional negotiation and has recommended respect for the principle of free, prior and informed consent in those negotiations.112 The Committee on Economic, Social and Cultural Rights has also issued a general comment on the right to culture, emphasizing the communal nature of indigenous people’s culture and the importance of indigenous peoples’ lands to those cultures. In its general comment No. 21, the Committee addresses the obligation to: … allow and encourage the participation of persons belonging to … indigenous peoples … in the design and implementation of laws and policies that affect them.113 The Special Rapporteur on the rights of indigenous peoples has recommended to a State that it build greater opportunities for indigenous peoples to participate in decision-making processes and to recognize, strengthen and accommodate indigenous peoples’ own decision-making institutions and authority.114 109 For a summary of the international human rights framework relating to the right to participate in decision-making, see the progress report on the study on indigenous peoples and the right to participate in decision-making (A/HRC/15/35, 2010) prepared by the Expert Mechanism on the Rights of Indigenous Peoples. 110 Ibid., para. 8. 111 Ibid., para. 31. 112 For example, the Committee sent an “early warning” letter on this issue to the Government of Nepal, dated 13 March 2009 and available at www2.ohchr.org/english/bodies/cerd/docs/early_warning/Nepal130309.pdf. 113 Committee on Economic, Social and Cultural Rights, general comment No. 21 (2009) on the right of everyone to take part in cultural life, para. 55 e). 114 A/HRC/18/35/Add.5, para. 83. 24 | Chapter 3: The content of the Declaration: Self-determination; autonomy; and participation, consultation and consent