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CHAPTER IV
AMERICAN
DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES.
THE PROCESS
OF PREPARATION, REGIONAL
CONSULTATION AND PROPOSAL OF
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
At its 95th Regular Session, the Inter-American Commission on
Human Rights approved the proposed American Declaration on the Rights
of Indigenous Peoples, pursuant to a recommendation of the General
Assembly to that end (AG/RES. 1022 (XIX-0/89)[1].
This proposal includes suggestions and comments from the
governments, indigenous and intergovernmental organizations, experts,
and special meetings of consultation that were held between October of
1995 and February of 1997, based on a draft consultation approved by
the IACHR at its 90th Regular Session.
It takes also in account the work being done by the United
Nations (AG/RES. 1404 (XXVI-O/96).
As specified in Recommendation 8 of Chapter VII in this Annual
Report, this proposal is being submitted to the General Assembly and
to its Permanent Council,
and it is being made public by the Commission so that it can be
considered at the next General Assembly and, in detail, by the
governments, peoples and interested organizations, so that it can be
approved by the member countries at the 1998 General Assembly, in
commemoration of the Organization's 50th anniversary.
BACKGROUND
In October of 1995, the Commission embarked on a broad round of
consultations[2] concerning the
questionnaire which it had drawn up and approved at that time, based
on previous consultations, national constitutions and legislation,
international instruments and statements on this subject.
The questionnaire was widely circulated to governments and to
hundreds of indigenous organizations, experts and other entities which
were asked to present their comments.
The text was also disseminated by news media. A number of different mechanisms were used for the purpose of this consultation: a) direct consultation by correspondence, as noted above; b) presentation and discussion of the questionnaire at specialized technical meetings; c) consultation of indigenous population at a national and multinational level; and d) regional meetings.
TECHNICAL MEETINGS
The draft was presented and examined at various technical
meetings: in Arequipa, Peru, at the "First World Meeting of
Indigenous Peoples" which was organized by the World Council of
Indigenous Peoples in October of 1955; in Ottawa at the "Widening
the Circle" on February 27, 1996, meeting organized by FOCAL, the
University of Ottawa and the World Council of Indigenous Peoples,
attended by more than 100 delegates from the entire Hemisphere; in
Guatemala City, organized by the Inter-American Institute of Human
Rights in March of 1996; at the General Kuna Congress in Ogubscun,
Panama, in 1996; and at the 1996 Sovereignty Symposium, held in Tulsa,
Oklahoma.
NATIONAL AND REGIONAL CONSULTATIONS
For the national and regional consultations, the IACHR acted as
coordinator, with assistance from the Inter-American Indian Institute;
the Unit for the Promotion of Democracy; the Inter-American Institute
of Human Rights; and the Inter-American Fund for the Development of
Indigenous Peoples (whose headquarters are in Bolivia) and with
cooperation from the Inter-American Development Bank.
The following national consultations were held:
ARGENTINA
Organization Responsible:
ORIANA (The Andean Indigenous Regional Organization of Northern
Argentina). Coverage:
Nationwide. The
participants consisted of fourteen delegates, who represented the
country's eighteen indigenous peoples.
Held in Buenos Aires, from October 20 through October 23, 1996.
BOLIVIA
Two parallel consultations took place.
I. Organizations Responsible: CIDOB (Organizations of the
Lowlands) and SUTCB (Organizations of the Highlands).
They were sponsored by the National Secretariat on Ethnic
Matters, which published the IACHR Draft Survey in newspapers to
ensure the widest possible dissemination.
The results of the consultation were endorsed by the National
Government. Coverage:
Nationwide. Two workshops
were held, one in the city of Santa Cruz for the Oriente, Chaco and
Amazonia region and the other in Oruro for the Andean region.
II. Organization Responsible: the Indigenous Parliament of
Bolivia (the Honorable
Chamber of Deputies). Coverage:
The consultation was attended by ten indigenous deputies to the
National Parliament of Bolivia.
BRAZIL
Organization Responsible: CAPOIB (Joint Council of Indigenous
Peoples and Organizations in Brazil).
Coverage: Nationwide. The
participants included directors of the organizations most directly
involved in COIAB, COR, UNI, AC and CAPOIB, in addition to the legal
counsel of the two last-named. Held in Brasilia in October of 1996.
COLOMBIA
Organization Responsible: ONIC (National Indigenous
Organization of Colombia). Coverage:
Nationwide. Held in
Bogota in October of 1996.
COSTA RICA
Took place in San Jose, on 11-14 December, 1996, organized by
the "National Indigenous Round Table" -affiliated with CICA. In the process two regional meetings, two national meetings
and some local meetings were completed.
CHILE
Organization Responsible: The representative of the indigenous
peoples of Chile to the Fund. Coverage:
Two consultations were held, one among the Aymaras peoples and the
other among the Atacameño (in the northern part of Chile).
ECUADOR
Organization Responsible: the Secretariat of Ethnic Affairs and
a commission, consisting of an equal number of representatives from
the indigenous and the Afro-Ecuadorian peoples.
Coverage: Nationwide. A
three-day national seminar was held in Quito from October 7 through
October 9, 1996.
EL SALVADOR
A Workshop Seminar was organized by the "Indigenous Round
Table" of El Salvador, with Indian representatives from all the
country, in December 1996.
HONDURAS
Held in "Ruinas de Copán" on November 9 and 10, 1996
by the Confederation of Auctochtonous Peoples of Honduras CONPAH, with
approximately 100 delegates from the Miskito, Garifuna, Pech,
Talupanes O-Xroquaz, Incas, Black anglophones, and Chortis.
MEXICO
Direct consultations and a Workshop Seminar in Tuxtepec, Oaxaca,
on December 7 and 8, 1996, with 19 delegates of 15 national and
regional organizations.
PANAMA
Organization Responsible: COONAPIP (National Coordination
Office for the Indigenous Peoples of Panama).
Coverage: Nationwide, representing the Ngobe-Bugle, the Kuna of
Mandugandi, the Embera Wounan and the Kuna Takarkunyala.
PARAGUAY
Organizations responsible: Fifteen indigenous organizations of
Paraguay. Coverage: Nationwide. The
participants were the heads of the 15 organizations.
The meeting took place in the city of Benjamin Aceval, on
November 15, 1996.
PERU
Organizations Responsible: UNCA (Union of Aymara Communities)
and CAH (the Aguaruna Huambisa Council).
Coverage: Nationwide. Six
national agencies were convened (AIDESEP, CONAP, CNA, CCP, COICAP, and
the Andean Council of Coca Leaf Producers) along with regional
organizations from the whole country. The participants were 26
national-level leaders. The
seminar was held in Lima, in November of 1996.
CANADA AND THE UNITED STATES
In addition to the presentation at the various technical
meetings cited above, answers were received from centers that
represent indigenous rights, and a meeting was sponsored by the Center
for Energy Resources Tribes (U.S.A.) and the International
Organization of Indigenous Resources Development (IORD) and the Grand
Council of the Crees (Canada) was held in Denver, Colorado, at which a
revised text was prepared with the help of representatives of 140
indigenous peoples of North America.
This version was then approved by acclamation by the Grand
Council of the Crees and the Hobemas, and thereafter presented at the
Conference on Amerindian peoples organized by UNESCO in Paris, in June
of 1996.
MULTINATIONAL MEETINGS Consejo Nacional de Centro América (CICA). Meeting in Guatemala City, on October 18, 1996.
Coordinadora de Pueblos Indígenas de la Cuenca Amazónica (COICA). Held a special meeting on October 1-4, 1996 in Quito, with 11
representatives of CONFENIAE (Ecuador), OPIAC (Colombia), COIAB
(Brazil), APA (Guyana), OIS (Suriname) and COICA (Peru).
REGIONAL MEETINGS
The regional meetings for South America in Quito,
Ecuador; and those for Central America and the Caribbean, in Guatemala
City were held in November of 1996.
The delegates of the national consultations and other experts and
representatives of governments presented the results of their surveys
and discussed the preparation procedures.
I.
Regional
Meeting for Central America and the Caribbean
Site: the Central American Parliament in Guatemala City,
November 14-16, 1996. Government
sponsor: the Ministry of
Culture and Sports. Participants:
67 persons, 28 of whom were representatives of indigenous
organizations in Guatemala; 17 were representatives of indigenous
organizations in El Salvador, Honduras, Nicaragua, Panama, Belize and
Suriname; 6 represented the Governments of Belize, Canada, Guatemala
and Mexico; and 16 were representatives and/or experts from Minugua,
Flacso, the UNDP, the I.I.I., the IIDH and the Central American
Parliament. Delegates
from the IACHR, the I.I.I., the UPD, the Indigenous Fund, and
Guatemala's Ministry of Culture and Sports also took part.
II.
Regional Meeting of Consultation for South America
Site: Hotel Quito, in Quito, Ecuador.
November 21-23, 1996. Government
Sponsor: the Secretariat
of Ethnic Affairs at the Ministry of Indigenous Affairs. Participants:
165 in number, 77 of whom were indigenous and Afro-Ecuadorean
representatives and 20 were indigenous representatives from Argentina,
Bolivia, Chile, Colombia, Paraguay and Peru; 19 were diplomatic and
technical representatives accredited to the meeting by the Governments
of Argentina, Bolivia (the Undersecretary of Technical Affairs),
Brazil, Chile, Colombia, Ecuador, Peru and Uruguay; and four were
executive staff of regional organizations (COICA, the World Council on
Indigenous Peoples and the IIDH).
Officials from the IACHR, the UPD and the I.I.I. also took
part.
In Mexico City in December, the Inter-American Indigenous
Institute held the First Indigenous Forum of the Americas, in
the presence of eighteen indigenous leaders from the region.
The Forum's main objective was to discuss the inter-American
instrument on indigenous rights.
The Forum supported the initiative and recommended that the
range of consultation be broadened.
COMMENTS FROM GOVERNMENTS
Comments were received from the Governments of Argentina,
Brazil, Canada, the United States, Honduras, El Salvador, Mexico, and
Venezuela. The Government of Bolivia endorsed the observations of the
national consultation.
COMMENTS FROM INSTITUTIONS AND EXPERTS
Responses and comments were also received from the
International Labor Organization (ILO) and from the United Nations
Mission in Guatemala (Minugua). Also
from the Indian Law Resource Center (USA); the Inter-American
Dialogue, the Child Rights International Research Institute, the
International Indian Treaty Council (US), of Hutchins, Soroka, Dionne
(Ottawa, Canada). From
experts: Augusto Willemsen Díaz (of Guatemala), Aureliano Turpo
Choquehuanca (World Council on Indigenous Peoples), Professor Fernand
de Varennes (Murdoch University, Australia); Prof. Joe Palacio (UWI,
Belice), and Hugo Mondragón (Colombia).
IACHR TECHNICAL REVIEW MEETING
Taking into account all of the responses and conclusions of the
meetings, in January of 1997, the IACHR held a Technical Meeting
to review the draft text of the questionnaire and to propose a revised
version, for consideration by the IACHR at its 95th Regular Session.
The participants at the meeting included rapporteur members Dr.
Carlos Ayala Corao and Ambassador John Donaldson, and the contract
experts Dr. Magdalena Gómez Rivera (Director of Legal Prosecution at
the National Indigenous Institute of Mexico); Dr. Patrick Robinson (a
former member of the Commission and rapporteur on the topic); and
Wilton Littlechild, Q.C. (indigenous lawyer and member of the Canadian
Parliament), with the collaboration of IACHR principal specialist
lawyer, Dr. Osvaldo Kreimer.
THE COMMISSION'S PROPOSAL
The Commission approved the text which is transcribed as the
proposed American Declaration on the Rights of Indigenous Peoples, to
be presented to the General Assembly in response to the recommendation
contained in resolution AG/RES. 1022 (XIX-O/89).
The IACHR also proposes that the General Assembly, when it
considers the Declaration at its June 1997 meeting, conduct the
consultations and adopt the measures necessary to approve the
declaration at its annual session in 1998, to commemorate the 50th
Anniversary of the Organization.
PROPOSED AMERICAN DECLARATION ON THE
RIGHTS OF INDIGENOUS PEOPLES (Approved by
the Inter-American Commission on Human Rights on February 26,
1997, at its 1333rd session, 95th Regular Session)
PREAMBLE
1.
Indigenous institutions and the strengthening of nations
The member states of the OAS (hereafter the states),
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 national identities of
the countries of the Americas, 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
for authority contribute to improving democracies in the Americas.
Recalling the need to develop their national juridical systems
to consolidate the pluricultural nature of our societies.
2.
Eradication of poverty and the right to development
Concerned about the frequent deprivation afflicting indigenous
peoples of their human rights and fundamental freedoms; within and
outside their communities, as well as the dispossession of their
lands, territories and resources, thus preventing them from
exercising, in particular, their right to development in accordance
with their own traditions, needs and interests.
Recognizing the severe impoverishment afflicting indigenous
peoples in several regions of the Hemisphere and that their living
conditions are generally deplorable.
And 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 communities.
3.
Indigenous culture and ecology
Recognizing 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
environment, lands, resources and territories on which they live and
their natural resources.
4.
Harmonious relations, respect and the absence of
discrimination
Reaffirming the responsibility of all states and peoples of the
Americas to end racism and racial discrimination, with a view to
establishing harmonious relations and respect among all peoples.
5.
Territories
and indigenous survival
Recognizing that in many indigenous cultures, traditional
collective systems for control and use of land, territory and
resources, 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.
6.
Security and indigenous areas
Reaffirming that the armed forces in indigenous areas shall
restrict themselves to the performance of their functions and shall
not be the cause of abuses or violations of the rights of indigenous
peoples.
7.
Human rights instruments and other advances in international
law
Recognizing the paramouncy and applicability to the states and
peoples of the Americas of the American Declaration of the Rights and
Duties of Man, the American Convention on Human Rights and other human
rights instruments of inter-American and international law; and
Recognizing that indigenous peoples are a subject of
international law, and mindful of the progress achieved by the states
and indigenous organizations, especially in the sphere of the United
Nations and the International Labor Organization, in several
international instruments, particularly in the ILO Convention 169.
Affirming the principle of the universality and indivisibility
of human rights, and the application of international human rights to
all individuals.
8.
Enjoyment of Collective Rights
Recalling the international recognition of rights that can only
be enjoyed when exercised collectively.
9.
Advances in the provisions of national instruments
Noting the constitutional, legislative and jurisprudential
advances achieved in the
Americas in guaranteeing the rights and institutions of indigenous
peoples,
DECLARE:
SECTION ONE. INDIGENOUS PEOPLES
Article I.
Scope
and definitions
1.
This Declaration applies to indigenous peoples as well as
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.
2.
Self identification as indigenous shall be regarded as a
fundamental criterion for determining the peoples to which the
provisions of this Declaration apply.
3.
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
Article II.
Full observance of human rights
1.
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 other
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.
2.
Indigenous peoples have the collective rights that are
indispensable to the enjoyment of the individual human rights
of their members. Accordingly
the states recognize inter alia the right of the indigenous
peoples to collective action, to their cultures, to profess and
practice their spiritual beliefs, and to use their languages.
3.
The states shall ensure for indigenous peoples the full
exercise of all rights, and shall adopt in accordance with their
constitutional processes such legislative or other measures as may
be necessary to give effect to the rights recognized in this
Declaration.
Article III.
Right to belong to indigenous peoples
Indigenous peoples and communities have the right to belong to
indigenous peoples, in accordance with the traditions and customs of
the peoples or nation concerned.
Article IV.
Legal status of communities
Indigenous peoples have the right to have their legal
personality fully recognized by the states within their systems.
Article V.
No forced assimilation
1.
Indigenous peoples have the right to freely preserve, express
and develop their cultural identity in all its aspects, free of any
attempt at assimilation.
2.
The states shall not undertake, support or favour any policy of
artificial or enforced assimilation of indigenous peoples, destruction
of a culture or the possibility of the extermination of any indigenous
peoples.
Article VI.
Special guarantees against discrimination
1.
Indigenous peoples have the right to special guarantees against
discrimination that may have to be instituted to fully enjoy
internationally and nationally‑recognized human rights; as well
as measures necessary to enable indigenous women, men and children to
exercise, without any discrimination, civil, political, economic,
social, cultural and spiritual rights.
The states recognize that violence exerted against persons
because of their gender and age prevents and nullifies the exercise of
those rights.
2.
Indigenous peoples have the right to fully participate in the
prescription of such guarantees.
SECTION THREE. CULTURAL
DEVELOPMENT
Article VII.
Right to Cultural integrity
1.
Indigenous peoples have the right to their cultural integrity,
and their historical and archeological heritage, which are important
both for their survival as well as for the identity of their members.
2.
Indigenous peoples are entitled to restitution in respect of
the property of which they have been dispossessed, and where that is
not possible, compensation on a basis not less favorable than the
standard of international law.
3.
The states shall recognize and respect indigenous ways of life,
customs, traditions, forms of social, economic and political
organization, institutions, practices, beliefs and values, use of
dress, and languages.
Article VIII. Philosophy,
outlook and language
1.
Indigenous peoples have the right to indigenous languages,
philosophy and outlook as a component of national and universal
culture, and as such, shall respect them and facilitate their
dissemination.
2.
The states shall take measures and ensure 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. |
