STATUS OF A FUTURE INTER-AMERICAN DECLARATION
ON THE RIGHTS OF INDIGENOUS
During its 90th session, on September 18, 1995 the Commission approved
the text of a Draft Consultation regarding the Inter-American Declaration on
the Rights of Indigenous Peoples. That
approval marked the completion of an important stage in the process of
complying with a recommendation of the General Assembly (AG/RES. 1022 (XIX-O/89)
requesting the Commission, in coordination with the Inter-American Indian
Institute, to draft an inter-American legal instrument regarding the rights of
That process began at a meeting held at the Inter-American Indian
Institute in Mexico City in March 1991, which was attended by indigenous
leaders and jurists from all parts of the Americas, as well as by
international and government experts, who put forward suggestions and
guidelines for such an instrument. Apart
from pointing out the main topics and approaches to be incorporated, they also
said that, legally speaking, it would be best for such an instrument to adopt
the form of an international declaration and that the sectors and institutions
affected by it should be given ample opportunity to take part in its
That meeting was financed by a grant from the Ford Foundation, which
also served to fund two background papers by Dr. Rodolfo Stavenhagen and Dr.
Augusto Willemsen Díaz.
Taking into account the recommendations put forward by the indigenous
and government experts attending the Mexico meeting, the IACHR adopted a
methodology for the preparation of a proposed text consisting basically of two
rounds of consultation. The first
was carried out in 1992, using a questionnaire on the various different human
and collective rights, which was sent to all member country governments and to
several hundred indigenous organizations and specialists.
Replies of substance were received from 11 governments, 20 national and
international indigenous organizations, and from 2 inter-governmental
organizations. An analytical
synthesis of those replies was published in the IACHR's 1993 Annual Report (OEA/Ser.L/v/II.83
The IACHR then set about drafting the future declaration based mainly
on those replies, the latest constitutional and legislative changes at the
national level, and new developments in international law, particularly those
brought about by various OAS organs and the United Nations, especially the
relevant Working Group of the Subcommittee on Human Rights and the
International Labour Organization. After
several internal review processes, in September 1995 the Commission approved
the draft consultation transcribed in this chapter.
The IACHR has initiated its second round of consultation by sending
this draft to governments and institutions.
In order to ensure that the replies are as representative as possible,
the Commission has urged the governments and institutions to effect their own
consultations with grassroots indigenous communities and organizations, legal
experts, and government authorities, and to submit their replies and comments
by the end of June this year at the very latest.
During this consultation phase, IACHR delegates and staff members have
taken part in and are planning to hold technical meetings on indigenous rights
in various member countries.
The Commission hopes to be able to analyze all the replies during its
September 1996 and February 1997 sessions, and, on the basis of that analysis,
to revise the draft text and prepare its proposed Inter-American Declaration
on the Rights of Indigenous Peoples for submission to the General Assembly of
the OAS in 1997.
DRAFT OF THE INTER-AMERICAN
DECLARATION ON THE RIGHTS OF
(AG/RES 1022 (XIX-0/89)
Indigenous institutions and the strengthening of nations
The member states of the Organization of American States (hereafter the
Recalling that the indigenous peoples of the Americas constitute an
organized, distinctive and integral segment of their population and are
entitled to be part of the countries' national identity, and have a special
role to play in strengthening the institutions of the state and in
establishing national unity based on democratic principles; and,
Further recalling that some of the democratic institutions and concepts
embodied in the constitutions of American states originate from institutions
of the indigenous peoples, and that in many instances their present
participatory systems for decision‑making and the internal authority of
the indigenous peoples contribute to improving democracies in the Americas.
Eradication of poverty
Recognizing the severe and widespread poverty afflicting indigenous
peoples in many regions of the Americas, and that their living conditions and
social services are generally deplorable; and concerned that indigenous
peoples have been deprived of their human rights and fundamental freedoms,
resulting inter alia in their colonization and the dispossession of
their lands, territories and resources, thus preventing them from exercising,
in particular, their right to development in accordance with their own needs
Recalling that in the Declaration of Principles issued by the Summit of
the Americas, in December 1994, the heads of state and governments declared
that in observance of the International Decade of the World's Indigenous
People, they will focus their energies on improving the exercise of democratic
rights and the access to social services by indigenous peoples and their
Indigenous culture and ecology
Appreciating the respect for the environment accorded by the cultures
of indigenous peoples of the Americas, and considering the special
relationship between the indigenous peoples and the land on which they live.
Harmonious relations, respect and the absence of discrimination
Mindful of the responsibility of all the states and peoples of the
Americas to participate in the struggle against racism and racial
Enjoyment of community rights
Recalling the international recognition of rights that can only be
enjoyed when exercised in community with other members of a group.
Indigenous survival and control of their territories
Considering that in many indigenous cultures, traditional collective
systems for control and use of land and territory, including bodies of water and
coastal areas, are a necessary condition for their survival, social
organization, development and their individual and collective well‑being;
and that the form of such control and ownership is varied and distinctive and
does not necessarily coincide with the systems protected by the domestic laws of
the states in which they live.
Demilitarization of indigenous areas
Noting the presence of armed forces in many areas of the lands and
territories of the indigenous peoples, and emphasizing the importance of
withdrawing them from where they are not strictly needed for their specific
Human rights instruments and other advances in international law
Recognizing the preeminence and applicability of the American Declaration
of the Rights and Duties of Man, the American Convention on Human Rights and
international human rights law, to the states and peoples of the Americas; and
Mindful of the progress achieved by the states and indigenous
organizations in codifying indigenous rights, especially in the sphere of the
United Nations and the International Labor Organization, and in this regard
recalling the ILO Agreement 169 and the Draft UN Declaration on the subject.
Affirming the principle of the universality and indivisibility of human
rights, and the application of international human rights to all individuals.
Advances in the provisions of national instruments
Noting the constitutional and legislative progresses achieved in some
countries of the Americas in guaranteeing the rights and institutions of
SECTION ONE. INDIGENOUS
In this Declaration indigenous peoples are those who embody historical
continuity with societies which existed prior to the conquest and settlement of
their territories by Europeans. (Alternative
I) [, as well as peoples brought involuntarily to the New World who freed
themselves and re‑established the cultures from which they have been
torn]. (Alternative 2) [, as well
as tribal peoples whose social, cultural and economic conditions distinguish
them from other sections of the national community, and whose status is
regulated wholly or partially by their own customs or traditions or by special
laws or regulations].
Self identification as indigenous or tribal shall be regarded as a
fundamental criterion for determining the groups to which the provisions of this
The use of the term "peoples" in this Instrument shall not be
construed as having any implication with respect to any other rights that might
be attached to that term in international law.
SECTION TWO. HUMAN RIGHTS
Full observance of human rights
Indigenous peoples have the right to the full and effective enjoyment of
the human rights and fundamental freedoms recognized in the Charter of the OAS,
the American Declaration of the Rights and Duties of Man, the American
Convention on Human Rights, and international human rights law; and nothing in
this Declaration shall be construed as in any way limiting or denying those
rights or authorizing any action not in accordance with the instruments of
international law including human rights law.
The states shall ensure for all indigenous peoples the full exercise of
The states also recognize that the indigenous peoples are entitled to
collective rights insofar as they are indispensable to the enjoyment of the
individual human rights of their members. Accordingly
they recognize the right of the indigenous peoples to collective action, to
their cultures, to profess and practice their spiritual beliefs and to use their
Right to belong to an indigenous community or nation
Indigenous peoples and individuals have the right to belong to an
indigenous community or nation, in accordance with the traditions and customs of
the community or nation concerned. No
disadvantage of any kind may arise from the exercise of such a right.
Article IV. Legal
status of communities
The states shall ensure that within their legal system personality is
attributed to communities of indigenous peoples.
No forced assimilation
The states shall not take any action which forces indigenous peoples to
assimilate and shall not endorse any theory, or engage in any practice, that
imports discrimination, destruction of a culture or the possibility of the
extermination of any ethnic group.
Article VI. Special
guarantees against discrimination
The states recognize that, where circumstances so warrant, special
guarantees against discrimination may have to be instituted to enable indigenous
peoples to fully enjoy internationally and nationally‑recognized human
rights; and that indigenous peoples must participate fully in the prescription
of such guarantees.
The states shall also take the measures necessary to enable both
indigenous women and men to exercise, without any discrimination, civil,
political, economic, social and cultural rights.
The states recognize that violence exerted against persons because of
their gender prevents and nullifies the exercise of those rights.
SECTION THREE. CULTURAL
Article VII. Right
to cultural integrity
States shall respect the cultural integrity of indigenous peoples, their
development in their respective habitats and their historical and archeological
heritage, which are important to the identity of the members of their groups and
their ethnic survival.
Indigenous peoples are entitled to restitution in respect of property of
which they have been dispossessed, or compensation in accordance with
States shall recognize, and respect, indigenous life‑styles,
customs, traditions, forms of social organization, use of dress, languages and
Philosophy, outlook and language
States recognize that indigenous languages, philosophy and outlook are a
component of national and universal culture, and as such shall respect them and
facilitate their dissemination.
The states shall take measures to see to it that broadcast radio and
television programs are broadcast in the indigenous languages in the regions
where there is a strong indigenous presence, and to support the creation of
indigenous radio stations and other media.
The states shall take effective measures to enable indigenous peoples to
understand administrative, legal and political rules and procedures and to be
understood in relation to these matters. In areas where indigenous languages are
predominant, states shall endeavor to establish the pertinent languages as
official languages and to give them the same status that is given to
non‑indigenous official languages.
When indigenous peoples wish, educational systems shall be conducted in
the indigenous languages and incorporate indigenous content,
and that shall also provide the necessary training and means for complete
mastery of the official language or languages.
Article IX. Education
Indigenous peoples shall be entitled to:
a) establish and set in motion their
own educational programs, institutions and facilities;
b) to prepare and implement their
own educational plans, programs, curricula and materials;
c) to train, educate and accredit
their teachers and administrators.
The States shall endeavor to ensure that such systems guarantee equal
educational and teaching opportunities for the entire population and
complementarily with national educational systems.
States shall ensure that those educational systems are equal in all ways
to that provided to the rest of the population.
States shall provide financial and any other type of assistance needed
for the implementation of the provisions of this Article.
Spiritual and religious freedom
Indigenous peoples have the right to liberty of conscience, freedom of
religion and spiritual practice for indigenous communities and their members, a
right that implies freedom to conserve them, change them, profess and propagate
them, both publicly and privately.
States shall take necessary measures to ensure that attempts are not made
to forcibly convert indigenous peoples or to impose on them beliefs against the
will of their communities.
In collaboration with the indigenous peoples concerned, the states shall
adopt effective measures to ensure that their sacred sites, including burial
sites, are preserved, respected and protected.
When sacred graves and relics have been appropriated by state
institutions, they shall be returned.
Article XI. Family
relations and family ties
Families are a natural and basic component of societies and must be
respected and protected by the state. Consequently
the state shall protect and respect the various established forms of indigenous
organizations relating to family and filiation.
In determining the child's best interest in matters relating to the
protection and adoption of children of members of indigenous peoples, and in
matters of breaking of ties and other similar circumstances, consideration shall
be given by courts and other relevant institutions to the views of the those
peoples, including individual, family and community views.
Health and wellbeing
The states shall respect indigenous medicine, pharmacology, health
practices and promotion, including preventive and rehabilitative practices.
They shall facilitate the dissemination of those medicines and practices
of benefit to the entire population.
Indigenous peoples have the right to the protection of vital medicinal
plants, animal and minerals.
Indigenous peoples shall be entitled to use, maintain, develop and manage
their own health services, and they shall also have access, without any
discrimination, to all health institutions and services and medical care.
The states shall provide the necessary means to enable the indigenous
peoples to eliminate such health conditions in their communities which fall
below international accepted standards.
Article XIII. Right
to environmental protection
Indigenous peoples are entitled to a healthy environment, which is an
essential condition for the enjoyment of the right to life and well-being.
Indigenous peoples are entitled to information on the environment,
including information that might ensure their effective participation in actions
and policies that might affect their environment.
Indigenous peoples shall have the right to conserve, restore and protect
their environment, and the productive capacity of their lands, territories and
Indigenous peoples shall participate fully in formulating and applying
governmental programs of conservation of their lands and resources.
Indigenous peoples shall be entitled to assistance from their states for
purposes of environmental protection, and may request assistance from
SECTION FOUR. ORGANIZATIONAL
AND POLITICAL RIGHTS
Article XIV. Rights of
association, assembly, freedom of expression and freedom of thought
The states shall promote the necessary measures to guarantee to
indigenous communities and their members their right of association, assembly
and expression in accordance with their usages, customs, ancestral traditions,
beliefs and religions.
The states shall respect and enforce the right of assembly of indigenous
peoples and to the use of their sacred and ceremonial areas, as well as the
right to full contact and common activities with sectors and members of their
ethnic groups living in the territory of neighboring states.
Article XV. Right to self
government, management and control of internal affairs
States acknowledge that indigenous peoples have the right to freely
determine their political status and freely pursue their economic, social and
cultural development, and that accordingly they have the right to autonomy or
self-government with regard to their internal and local affairs, including
culture, religion, education, information, media, health, housing, employment,
social welfare, economic activities, land and resource management, the
environment and entry by nonmembers; and to the ways and means for financing
these autonomous functions.
Indigenous populations have the right to participate without
discrimination, if they so decide, in all decision-making, at all levels, with
regard to matters that might affect their rights, lives and destiny.
They may do so through representatives elected by them in accordance with
their own procedures. They shall
also have the right to maintain and develop their own indigenous decision-making
institutions, as well as equal opportunities to access to all national fora.
Article XVI. Indigenous
Indigenous law is an integral part of the states' legal system and of the
framework in which their social and economic development takes place.
Indigenous peoples are entitled to maintain and reinforce their
indigenous legal systems and also to apply them to matters within their
communities, including systems pertaining to ownership of real property and
natural resources, resolution of conflicts within and between indigenous
communities, crime prevention and law enforcement, and maintenance of internal
peace and harmony.
In the jurisdiction of any state, procedures concerning indigenous
peoples or their interests shall be conducted in such a way as to ensure the
right of indigenous peoples to full representation with dignity and equality
before the law. This shall include
observance of indigenous law and custom and, where necessary, use of the native
Article XVII. National
incorporation of indigenous legal and organizational systems
The states shall promote the inclusion, in their national organizational
structures, of institutions and traditional practices of indigenous peoples.
The institutions of each state in areas that are predominantly indigenous
or that are serving in those communities, shall be designed and adapted as to
reflect and reinforce the identity, culture and organization of those
populations, in order to facilitate their participation.
SECTION V. SOCIAL, ECONOMIC
AND PROPERTY RIGHTS
Article XVIII. Traditional forms
of ownership and ethnic survival. Rights to land and territories
Indigenous peoples have the right to the legal recognition of the various
and specific forms of control, ownership and enjoyment of territories and
property by indigenous peoples.
Indigenous peoples have the right to the recognition of their property
and ownership rights with respect to lands and territories they have
historically occupied, as well as to the use of those to which they have
historically had access for their traditional activities and livelihood.
Where property and user rights of indigenous peoples arise from rights
existing prior to the creation of those states, the states shall recognize the
titles of indigenous peoples relative thereto as permanent, exclusive,
inalienable, imprescriptible and indefeasible.
This shall not limit the right of indigenous peoples to attribute
ownership within the community in accordance with their customs, traditions,
uses and traditional practices, nor shall it affect any collective community
rights over them. Such titles may
only be changed by mutual consent between the state and the respective
indigenous people when they have full knowledge and appreciation of the nature
or attributes of such property.
The rights of indigenous peoples to existing natural resources on their
lands must be especially protected. These rights include the right to the use,
management and conservation of such resources.
In the event that ownership of the minerals or resources of the subsoil
pertains to the state o that the state has rights over other resources on the
lands, the governments must establish or maintain procedures for the
participation of the peoples concerned in determining whether the interests of
these people would be adversely affected and to what extent, before undertaking
or authorizing any program for tapping or exploiting existing resources on their
lands. The peoples concerned shall participate in the benefits of
such activities, and shall receive compensation in accordance with international
law, for any damages which they may sustain as a result of such activities.
The states shall not transfer or relocate indigenous peoples except in
exceptional cases, and in those cases with the free, genuine and informed
consent of those populations, with full and prior indemnity and prompt
replacement of lands taken, which must be of similar or better quality and which
must have the same legal status; and with guarantee of the right to return if
the causes that gave rise to the displacement cease to exist.
Indigenous peoples have the right to the restitution of the lands,
territories and resources which they have traditionally owned or otherwise
occupied or used, and which have been confiscated, occupied, used or damaged, or
the right to compensation in accordance with international law when restitution
is not possible.
The states shall take all measures, including the use of law enforcement
personnel, to avert, prevent and punish, if applicable, any intrusion or use of
those lands by unauthorized persons or by persons who take advantage of
indigenous peoples or their lack of understanding of the laws, to take
possession or make use of them. The
states shall give maximum priority to the demarcation of properties and areas of
Indigenous peoples shall have the right to full enjoyment of the rights
and guarantees recognized under international labor law or domestic labor law;
they shall also be entitled, where circumstances so warrant, to special
measures to correct, redress and prevent the discrimination to which they have
historically been subject.
Where circumstances so warrant, the states shall take such special
measures as may be necessary to:
effectively the workers and employees who are members of indigenous communities
in respect of fair and equal hiring and terms of employment, insofar as general
legislation governing workers overall does not provide;
improve the work inspection service in regions, companies or paid activities
involving indigenous workers or employees;
that indigenous workers:
i. enjoy equal opportunity and
treatment as regards all conditions of employment, job promotion and
ii. are not subjected
to racial, sexual or other forms of harassment;
iii. are not subjected to coercive
hiring practices, including servitude for debts or any other form of servitude,
even if they have their origin in law, custom or a personal or collective
arrangement which shall be deemed absolutely null and void in each instance;
iv. are not subjected to working
conditions that endanger their health, particularly as a result of their
exposure to pesticides or other toxic or radioactive substances;
v. receive special protection when
they serve as seasonal, casual or migrant workers in agriculture or in other
activities and also when they are hired by labor contractors in order that they
benefit from national legislation and practice which must itself be in
accordance with firmly established international human rights standards in
respect of seasonal workers, and
vi. ensure that indigenous workers
or employees are provided with full information on their rights, consistent with
such national legislation and international standards, and on recourses
available to them in order to protect those rights.
Intellectual property rights
Indigenous peoples shall be entitled to recognition of the full
ownership, control and protection of such intellectual property rights as they
have in their cultural and artistic heritage, as well as special measures to
ensure for them legal status and institutional capacity to develop, use, share,
market and bequeath that heritage on to future generations.
Where circumstances so warrant, indigenous peoples have the right to
special measures to control, develop and protect, and full compensation for the
use of their sciences and technologies, including their human and genetic
resources in general, seeds, medicine, knowledge of plant and animal life,
original designs and procedures.
Article XXI. Right
The states recognize the right of indigenous peoples to decide
democratically what values, objectives, priorities and strategies
will govern and steer their development course, even if they are
different from those adopted by the national government or by other segments of
society. Indigenous peoples shall be entitled to obtain on a
non-discriminatory basis appropriate means for their own development according
to their preferences and values, and to contribute by their own means, as
distinguishable societies, to national development and international
The states shall take necessary measures to ensure that decisions
regarding any plan, program or proposal affecting the rights or living
conditions of indigenous people are not made without the free and informed
consent and participation of those peoples, that their preferences are
recognized and that no such plan, program or proposal that could have harmful
effects on the normal livelihood of those populations is adopted. Indigenous
communities have the right to restitution or compensation in accordance with
international law, for any damage which, despite the foregoing precautions, the
execution of those plans or proposal may have caused them; and measures taken to
mitigate adverse environmental, economic, social, cultural or spiritual impact.
SECTION SIXTH. GENERAL
Article XXII. Treaties,
agreements and other implied arrangements
Indigenous peoples have the right to the recognition, observance and
enforcement of treaties, agreements and other arrangements concluded with states
or their successors, according to their spirit and intent, and to have states
honor and respect such treaties, agreements and other constructive arrangements.
Conflicts and disputes which cannot otherwise be settled should be
submitted to competent international bodies (agreed to by all parties
Nothing in this instrument shall be construed as diminishing or
extinguishing existing or future rights indigenous peoples may have or acquire.
Nothing in this instrument shall be construed as granting any rights to
ignore boundaries between states.