BACKGROUND OF THE RIGHTS OF INDIGENOUS PEOPLES
February 27, 1997, the Inter-American Commission on Human Rights
(hereinafter “the Commission” or the “IACHR”) in adopting the
Proposed American Declaration on the Rights of Indigenous Peoples, passed
a milestone in its efforts to promote observance and defense of the human
rights of the indigenous peoples of the Americas. Those efforts began in
1971, when the Commission found that indigenous peoples had a right to
special legal protection because they had endured severe discrimination,
and 1972, when it held in its resolution on the problem of “Special
Protection for Indigenous Populations.
Action to combat racism and racial discrimination,” that, “for
historical reasons and because of moral and humanitarian principles,
special protection for indigenous populations constitutes a sacred
commitment of the states.”
then, the Commission has received and processed hundreds of petitions
concerning situations that afflict indigenous people and their
communities, and, in doing so, has basically applied the precepts
contained in the American Declaration of the Rights and Duties of Man of
1948, and the American Convention on Human Rights of 1969.
In response to those petitions the Commission has issued resolutions,
reports, and recommendations to the states, as well as requesting them to
adopt urgent measures to ensure respect for the rights that are recognized
by the inter-American instruments on human rights and that the states have
undertaken to respect and ensure for all their inhabitants. As is analyzed in greater depth in the main body of this
report, those petitions dealing with cases in which the victims are
indigenous people and communities have to do, in particular with
violations of the rights to life, personal liberty, humane treatment,
property, dignity, judicial protection, and a fair trial; however, they
also have implications for their functioning and collective rights, within
each state, as communities, societies, and cultures with their own way of
life and values within each state.
Commission has also exercised its mandate to supervise and promote
observance of human rights through its Special Reports on the situation of
human rights in member countries, by having studied and reported on, in
particular, the situation of indigenous peoples in Colombia (1993 and
1999), Guatemala (1993), Ecuador (1997), Brazil (1997), Mexico (1998), and
Peru (2000), as well as the situation of the Miskitos in Nicaragua and the
situation of Communities of Peoples in Resistance in Guatemala.
1990 the Commission decided to appoint Commission Member, Dr. Patrick
Robinson as Special Rapporteur on the rights of indigenous peoples, a task
that he performed until his mandate came to an end in 1996.
During that period he was instrumental in the preparation of the
proposed Declaration, an undertaking he carried out jointly with
Commission Member, Professor Michael Reisman, and with Principal
Specialist, Dr. Osvaldo Kreimer, who, since 1989, has been pursuing the
task assigned to him by the Executive Secretariat of supporting the Office
of the Rapporteur, and of directing the activities of drafting and
consultations on the Declaration. In
1996, Commission Member, Dr. Carlos Ayala Corao was appointed Rapporteur
on this issue, and played a central role in the drafting and final
adoption of the Proposed Declaration that was submitted in 1997 to the
General Assembly, and in guidance and development of this issue within the
various mechanisms of the Commission. In March 2000 Commission Members Claudio Grossman and Julio
Prado Vallejo were appointed as Rapporteurs.
the suggestion of the Rapporteur, the Commission decided to prepare this
report in order to encourage access to its doctrine and documents on
special situations involving indigenous persons, communities and peoples.
This first section on historical background is followed by Section II,
which addresses the legal doctrine developed by the Commission on this
issue; Section III, which contains a compilation of studies published on
the situation of indigenous peoples in certain countries; and Section IV,
which summarizes the preparation process of the Proposed American
Declaration on the Rights of Indigenous Peoples adopted by the Commission
in 1997, and currently under consideration by the political bodies of the
The Inter-American Commission on Human Rights has enhanced and
given fresh impetus to an inter-American initiative in this area that was
launched in 1922 when the Fifth International Conference of American
States -a forerunner agency of the OAS- requested the governments to
encourage study of the respective aboriginal languages and to adopt
measures to ensure respect for archeological monuments.
That initiative was continued subsequently by the Conferences of
the Pan American Union, where the States, in 1933, called for an
international meeting of indigenists to be organized in order to examine
“the problem of the native races and the civilizations of tribes in the
great jungles;” and, in 1938, declared that “the indians, as
descendants of the first settlers of the Americas have a special right to
the protection of the public authorities, in order to compensate for the
inadequacy of their physical and intellectual development and, in
consequence, all that may be done to improve the lot of indians shall be
just reparation for the lack of understanding with which they were treated
in times past…”.
early efforts led to the holding of the First Inter-American Indian
Congress in Pátzcuaro, Michoacán, Mexico, in April 1940, where the
states issued seventy-two agreements and declarations on, inter
alia, distribution of indigenous lands, indigenous education policy,
matters relating to their political and social well-being, social
services, indigenous women, and respect for their languages. That Congress
created the Inter-American Indian Institute.
Inter-American Charter on Social Guarantees adopted in 1948 at the same
time as the American Declaration of the Rights and Duties of Man, contains detailed articles on the
obligations of states and rights of indigenous persons specifically
designed to protect “life, personal liberty, and property, by defending
him [the indian] from extermination, safeguarding him from opression and
exploitation, protecting him from poverty, and providing him with a decent
education.” As well as
recommending measures “to preserve, maintain and develop the heritage of
indians or of their tribes,” the Charter of Social Guarantees mentioned
that “institutions or services should be created for the protection of
indians and, in particular, to ensure respect for their lands, to legalize
their ownership thereof, and to prevent invasion of such lands by
state that respects human rights and is concerned with democratic and
effective development is built on equality and non-discrimination of its
inhabitants, and their full involvement in public, social and economic
affairs, by capitalizing on and developing their human, cultural and
organizational values. The
foregoing is recognized by the inter-American instruments on human rights
and the Charter of the Organization of American States, which states, inter
Member States agree that equality of opportunity, the elimination of
extreme poverty, equitable distribution of wealth and income and the full
participation of their peoples in decisions relating to their own
development are, among others, basic objectives of integral development.
inter-American system of human rights establishes and defines a set of
basic rights for all inhabitants, as well as obligatory standards of
conduct for the states and their agents to promote, protect and ensure
those rights; and possesses organs that promote and defend observance of
those rights and standards. The
American Convention on Human Rights (Pact of San José) and the American
Declaration of the Rights and Duties of Man, the principal normative
instruments of the system, provide a series of individual rights that are
particularly relevant to the plight of indigenous people of the member
countries. The Preamble of
the Declaration states that:
men are born free and equal, in dignity and in rights, and, being endowed
by nature with reason and conscience, they should conduct themselves as
brothers one to another.
Since culture is the highest
social and historical expression of […] spiritual development, it is the
duty of man to preserve, practice and foster culture by every means within
articles of the Declaration and the Convention establish the obligation of
the states to respect and ensure respect for life, personal liberty, and
humane treatment. In no circumstances, including states of emergency (armed
conflicts, state of siege, etc.), may a state party to the Convention
suspend these or any other rights that are regarded as essential.
The IACHR has taken up and pronounced a decision in many cases of
violations of the aforesaid rights to life, personal liberty, and humane
treatment where the victims have been indigenous individuals and groups,
and which occurred in a context of repression of internal armed conflict
in several countries.
Those instruments also recognize other rights that are of
particular relevance to indigenous people, such as the right freely to
profess their religious ideas and beliefs and to manifest and practice
them both in public and in private (Article III of the Declaration
and 12 of the Convention); right to
the preservation of health and to well-being (Article XI); to
the benefits of culture, (Article XIII); to recognition of juridical personality and civil rights
(Articles XVII and 3); to vote and to
be elected to public office (Articles XX and 25); to freedom of
association to promote, exercise and
protect their rights regardless of their nature (Articles XXII and
16); to own, use and enjoy their property (Articles XXIII and 21); to
privacy (Articles V and 11); and to a fair trial and due process (Articles
XVIII, XXV, XXVI, 8 and 25).
ratifying the American Convention, the states acquire binding obligations.
The American Declaration is also a source of legal obligations as
the instrument which sets forth the human rights obligations of member
states to the OAS Charter, and because many of the provisions contained
therein have become international customary law.
The Inter-American Commission and the Inter-American Court, (the
Inter-American Commission on Human Rights has its headquarters in
Washington D.C., USA; and the seat of the Inter-American Court of Human
Rights is in San José, Costa Rica) are the organs of the inter-American
system for the protection of human rights.
The Commission and the Court may also apply special international
instruments as complementary provisions: for instance, ILO Convention No.
169 concerning “Indigenous and Tribal Peoples in Independent
Inter-American Commission, the organ of the OAS in charge of promotion of
observance and protection of human rights in the Americas, has a special
role to play in furthering compliance with international provisions on
human rights. In addition to
processing petitions on individual cases of alleged violations of rights
of persons or groups (see Section I. c. 2) and, as appropriate, of
submitting them to the Court, the Commission also permanently monitors the
general situation of human rights in each member state and, when it
believes it to be warranted, conducts observation missions. It also
prepares special reports, which may encompass the general situation of a
member country (see Section III), or be issue-specific, for instance, on
the status of women
or prison conditions in the region.
well as processing petitions on individual cases and monitoring the
general situation of human rights in the member states, a third area of
work of the Commission is preparation of future inter-American instruments
on issues within its sphere of competence, such as, for instance, the
Proposed American Declaration on the Rights of Indigenous Peoples, which
it adopted and referred to the General Assembly for consideration in 1997
(see Section IV). The IACHR
had previously drawn up other draft instruments, including the American
Convention on Human Rights itself, the Inter-American Convention to
Prevent and Punish Torture, the Inter-American Convention on Forced
Disappearance of Persons, and the Additional Protocol to the American
Convention on Human Rights in the Area of Economic, Social and Cultural
Rights "Protocol of San Salvador."
Court exercises compulsory jurisdiction to interpret and apply the
provisions contained in the Convention in individual cases submitted to it
by the Commission or the states, when the latter have accepted the
jurisdiction of the Court.
The Commission has referred to the Court several cases dealing with
violations of rights of indigenous individuals and communities. The
Inter-American Court of Human Rights, established by the American
Convention, further exercises advisory jurisdiction to interpret human
rights norms in force in the Americas. The advisory opinions of the Court
constitute authoritative interpretations of said norms.
agencies of the OAS also addressed the issue of indigenous rights.
Foremost is the Inter-American Indian Institute, which was created in
1940, has its headquarters in Mexico City, and is composed of 17 countries
of the Americas. Its
Governing Board is made up of the governmental indigenist agencies of
those countries. The III
conducts technical meetings and studies, as well as publishing the
magazine América Indígena, of
which more than 250 issues have been published in its 60-year history.
In turn, the various technical cooperation agencies of the OAS, in
the areas of education, social and economic development, and, in
particular, the Office of Culture (now part of CIDI - Inter-American
Council for Integral Development) have, over the past five decades,
carried out a large number of projects targeted at different aspects of
development of indigenous peoples and their cultures.
The Unit for Promotion of Democracy of the General Secretariat has
also undertaken projects concerned with indigenous issues, in particular
in the area of training on settlement of disputes over indigenous lands
at the history of the hemisphere to the present, it is clear that the
challenge of consolidating the truly participatory democracy, to which the
member states of the OAS have committed themselves, requires strengthening the participation
of all social sectors in the political, social and economic life of each
nation. The more than 40 million indigenous men, women, and children
in the Americas belonging to some 400 peoples, in some cases comprising a
majority and in others a minority of the population of each country, are
in all cases necessary players in bringing about the full development of
national identities and cultures. Moreover, the economic, political and
social input of indigenous people is essential if the democracies and
institutions of those countries are to function to their full potential.
Protection of the human dignity and of the individual and
collective rights of indigenous people is a part of that objective.
foregoing has been underscored by the Heads of State and of Government at
the Summits of the Americas, both in Miami (1994) and in Santiago (1998).
At the latter they pledged to:
is important to emphasize that this inter-governmental policy implemented
through the OAS, is sustained by progress made at the national level by
the states, which, especially in the last two decades, have adopted public
policies, concrete measures – particularly as regards demarcation and
recognition of indigenous territories, and increasingly far-reaching and
positive legislation for the development of those peoples within the
framework of the multicultural reality of the American nations.
As the principal organ of
the OAS mandated to promote and protect human rights in the hemisphere,
the Inter-American Commission on Human Rights has a unique role to play in
assisting the member states in their efforts to respect and ensure the
rights of the individuals subject to their jurisdiction. Among its many
functions, the Commission is charged with:
One of the exceptional characteristics of the inter-American human
rights system is the amplitude of its mandate and the diversity of
mechanisms through which it can take action.
person or group can file a petition alleging the violation of the American
Convention, or of the American Declaration. While it is usually necessary
to identify the victim so that the respective state can investigate and
respond to the allegations, the identity of the petitioner may be kept in
confidence. The petition must be in writing, it must be signed, and it
must set forth facts which tend to show the violation of a protected
a petition is reviewed and the basic requirements to initiate processing
are deemed to have been met, the American Convention and the Commission's
Statute and Regulations provide for a process to gather information. This
includes transmitting the relevant portions of the petition to the
Government with a request for information in response. The petitioner will
have the opportunity to submit observations on any response, as well as
additional information, and the Government will thereafter be requested to
submit its own observations. This process may be repeated when necessary.
The Commission may, at the request of a party or its own initiative,
convene both parties for a hearing to receive new information, testimony
or legal arguments. The Commission also has the competence to carry out an
on site investigation of an individual case, although this is exceptional.
order for the Commission to admit a case under the American Convention,
American Declaration, for consideration on the merits, it must be
satisfied that certain requirements have been met. First, and most
importantly, because international and regional human rights systems are
designed to be subsidiary to national systems, the party alleging the
violation must have exhausted all available remedies under domestic law.
Exceptions may be made when the legislation of the state concerned did not
provide due process, the party was denied access to those remedies, or
when there was unwarranted delay in reaching a final judgment--in other
words, if remedies were unavailable as a matter of law or fact.
a petition must be submitted in a timely manner. In the case where a final
judgment has been issued by a domestic court, the petition must be filed
with the Commission within six months of notification. Otherwise, it must
be filed within a reasonable time from the occurrence of the situation
denounced. Third, the Commission will not examine a complaint which
essentially duplicates a petition pending or previously settled by itself
or by another international governmental organization of a similar nature.
Where a case is opened, but the basic requisites such as the foregoing are
not shown to have been met, the Commission will declare the case
any stage during the processing, the Commission is authorized pursuant to
Article 48.1.f of the Convention to facilitate the "friendly
settlement" of the situation denounced if the parties wish to avail
themselves of that procedure. Generally, once the initial written
proceedings have been completed, the Commission will notify both parties
that it is placing itself at their disposal for this purpose for a fixed
period of time. If the parties are so disposed, the Commission will
assist, for example, by arranging meetings, transmitting communications,
and otherwise mediating negotiations. Pursuant to the terms of Article
48.1.f, any agreement reached by the parties will be reviewed by the
Commission to evaluate whether it is in accord with "respect for the
human rights recognized" in the American Convention before the matter
can be deemed to have been amicably resolved.
a case has not been resolved through friendly settlement, and is ready for
decision, the Commission draws up an initial report of its findings
referred to in Article 50 of the Convention to send to the State in
question. In cases where a violation has been established, the Commission
sets forth recommendations to be implemented by the State, generally aimed
at securing a full investigation of the facts, the prosecution and
punishment of those determined responsible, and action to repair the
consequences suffered by the victim. The State has a first confidential
opportunity to take action on the recommendations, and is asked to report
within a fixed time on the measures taken. The Commission will evaluate
any response received and decide between two alternatives. It may adopt a
final report, referred to in Article 51 of the Convention, to be sent to
both parties, in which it will report on the extent of compliance with its
recommendations, and, where necessary,
issue recommendations with
an additional period for action.
After that period has expired, the Commission will
decide whether to publish the final report. As an alternative to adopting a final
report, if the State in question has accepted the compulsory jurisdiction
of the Inter-American Court, the Commission may decide to submit the case
The Commission and Court also have the capacity to request that a State take protective action on an urgent basis. Pursuant to Article 29 of its Regulations, in "urgent cases, where it becomes necessary to avoid irreparable damage to persons, the Commission may request that precautionary measures be taken to avoid irreparable damage in cases where the denounced facts are true." The Commission may request that the Court order the adoption of provisional measures under similarly grave circumstances in a matter that has not yet been submitted to the Court for consideration. This emergency action is taken without prejudice to any future decision on the merits of the situation denounced, and is generally taken to protect the life and/or physical and mental integrity of individuals.
In that resolution the Commission called on the member states “to
implement the recommendations made by the Inter-American and Indianist
Conferences (see box on “Background on Inter-American …”) and,
in particular, the provisions contained in Article 39 of the
Inter-American Charter of Social Guarantees.”
Sheldon “Land Rights and
Indigenous Peoples. The Role of the Inter-American Commission on
Cultural Survival Report 29. Cambridge, Mass, 1988.
That resolution is transcribed in Report 12/85 (Yanomami Case), which
is reproduced herein.
It is interesting to recall that in that same year the U.N.
Economic and Social Council invited the OAS and it specialized
agencies, in particular the IACHR and the Inter-American Indian
Institute “to collaborate in eradicating all forms of discrimination
against indigenous populations.”
Cited by Davis, S. Op.cit. p.8
The Commission also uses as a complementary provision for purposes of
interpretation (lex specialis)
ILO Convention No. 169 concerning Indigenous and Tribal Peoples in
Independent Countries, based on the principle of full guarantee
established by Articles 29 (b) and 64 of the American Convention (in
this connection see, Inter-Am. Ct. H.R., Advisory Opinions OC 1-83,
para. 42, and O.C. 10).
See “International Conferences of American States, 1889-1936,” and
“International Conferences of American States, 1938-1942,”
Carnegie Endowment Washington D.C. 1938 and 1943, respectively.
Adopted by the Ninth International Conference of American States, (Bogota,
1948) convened by the Pan American Union, the immediate predecessor of
Charter of the OAS, Article 34.
The rights that cannot be suspended under Article 27(2) are those set
forth in the following articles: 3
(Right to Juridical Personality), 4 (Right to Life), 5 (Right to
Humane Treatment), 6 (Freedom from Slavery), 9 (Freedom from Ex Post
Facto Laws), 12 (Freedom of Conscience and Religion), 17 (Rights of
the Family), 18 (Right to a Name), 19 (Rights of the Child), 20 (Right
to Nationality), and 23 (Right to Participate in Government). This
prohibition also applies to the judicial guarantees essential for the
protection of the aforesaid rights.
The following member states are parties to the American Convention on
Human Rights: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia,
Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador,
Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua,
Panama, Paraguay, Peru, Suriname, Trinidad and Tobago, United States,
Uruguay, and Venezuela.
See, in general, Interpretation of the American Declaration of the
Rights and Duties of Man Within the Framework of Article 64 of the
American Convention on Human Rights, Advisory Opinion OC-10/89 of July
14, 1989, Inter-Am. Ct.H.R.
No. 10 (1989).
In that respect, in its Advisory Opinion 1/82, the Inter-American
Court has held that the Commission “has properly invoked other
treaties concerning the protection of human rights…” and that that
to exclude them would weaken the principle of full guarantee
enunciated in Articles 29 (b) and 64 of the American Convention.
Similarly, in its Advisory Opinion 10/89, the Court has
mentioned that American law of human rights “must be interpreted and
applied within the overall framework of the juridical system in force
at the time of the interpretation.”
“Report of the IACHR on the Status of Women in the Americas,” OAS/Ser.L/V/V/II.100
Doc 17, October 13, 1998.
IACHR, Annual Reports 1996 and 1997.
All these reports are published in “Basic Documents Pertaining to
Human Rights in the Inter-American System” OAS/Ser.L/V/I.4 Rev.7,
February 2, 2000, and are available for consultation on the IACHR web
page at www.cidh.org
As of the date of this publication the following states have accepted
the compulsory jurisdiction of the Court: Argentina, Bolivia, Chile,
Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras,
Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad and Tobago,
Uruguay and Venezuela.
Inter alia, the
Colotenango (Guatemala), María Mejía (Guatemala), and Awas Tingi
See “The Hemispheric Summits Process. The OAS and its Contribution
on behalf of Indigenous Peoples.”
General Secretariat of the OAS. Washington, D.C., 1998.
With respect to the member states not party to the American
Convention, once the processing has been completed, the Commission
will issue a final decision including the facts and its conclusions,
and recommendations where pertinent, with a deadline set for
compliance. Where the measures recommended are not implemented within
that deadline, the Commission may decide to publish its decision.
There is a procedure, which may only be utilized once, whereby a party
to the case may request that the Commission reconsider its conclusions
The Commission has requested various states to adopt special measures
to provide immediate protection to threatened indigenous populations.
Among many others, the Commission has requested precautionary
measures for indigenous communities and persons in Brazil, Guatemala,
Mexico, Paraguay, and Peru.