|
CHAPTER
II PREPARATORY
DOCUMENTS FOR THE DOCUMENT 5.
REPORT ON THE FIRST ROUND OF CONSULTATIONS CONCERNING
Background
In 1992, the IACHR sent a questionnaire to the governments of all
the member States and to a long list of indigenous and intergovernmental
institutions, to ask their opinion as to the issues and approaches that
the future instrument should include, preparation of which was entrusted
to the Commission by the General Assembly (AG/RES.1022 (XIX-0/89).
In keeping with the method approved by the Commission and reported
in its 1991 Annual Report, the following is a summary of the responses
received. These responses
have come from the governments of Canada, Chile, Colombia,
Costa Rica, Guatemala, Mexico,
Panama, Peru, Saint Lucia, the United States and Venezuela and from the following intergovernmental organizations:
A.E.K. Consultorio Jurídico Pueblos Indígenas de Panamá,
Colonizadores del Trópico Boliviano, the Andean Commission of Jurists (Peru),
the Consejo Regional Indígena del Cauca (Colombia),
the Comisión Interamericana de Juristas Indígenas (Steering Office in
Argentina), the Centro de Estudios Aymaras Quechuas (Bolivia), Fundación
Comunidades Colombianas, the
Assembly of First Nations (Canada),
the Council of Crees (Canada),
the Indigenous Bar Association of Canada,
the World Council of Indigenous Peoples (international), the Center for
Indigenous Culture (Brazil), the MARKA Center (Peru), the Comisión Jurídica de los Pueblos de Integración
Tawantinsuyana (Peru), the
Fundación del Aborigen Argentino (Argentina), the CINAMI A.C. Central
Nacional de Ayuda a las Misiones Indígenas (Mexico),
SER A.C. Servicios del Pueblo Mixe (Mexico),
the Vicaría de Solidaridad de la Prelatura de Ayaviri (Peru), Inuit Tapirisat of Canada
and the Indian Law Resource Center (U.S.).
The Commission would like to thank the Inter-American Institute of
Human Rights for its cooperation and all those governments and
organizations that answered the questionnaire.
This summary is organized along the general lines of the
questionnaire, which was based on the rights contained in the American
Convention. It begins with
some general observations (points 1 to 3) and then moves on to the
individual rights and their guarantees (points 4 to 24).
It ends with the replies received concerning collective rights
(points 25 to 44). For
comparative purposes, the replies received from the governments to the
survey are summarized under each right; the countries' replies are
followed by a summary of the replies received from the indigenous
organizations, and then those received from the intergovernmental
organizations, summary that does not necessarily record the position of
each individual group or organization. This method will be useful to the government officials that
concern themselves with this issue and the indigenous organizations
working in this field. Thus,
the areas of agreement and disagreement can be easily discerned.
The hope is that this report will show the progress that has been
achieved in many countries, and also the challenges that remain to be
conquered. The Commission
believes this method will be helpful in preparing a preliminary draft
instrument on the human rights of indigenous people and subsequent
consultations thereon.
1.
Thoughts on the instrument itself
In their replies, a number of countries elaborated upon their
answers by expressing their views on what the strategy for the content of
the instrument should be and how it should be organized.
Costa Rica indicated a preference for a general reference to the
human rights already recognized in conventions in force in the region,
followed by those unique to the indigenous communities, rather than a
complex, tiresome enumeration that would simply duplicate existing
instruments.
Mexico was of the view that the proposed instrument should
be geared to promoting the rights to development, social and cultural
rights, the right to observe traditions, customs and forms of social
organization, postulated within the framework of collective rights so as
to avoid any conflict with the rights of other sectors of individuals that
might create some form of privileged or subordinate status.
Several countries reaffirmed how important it was to take into
account ILO Convention 169 and the proposed Declaration and Principles
that the United Nations Commission on Human Rights is preparing.
Colombia recalled developments in the evolution of the OAS'
philosophy, in particular the IACHR's pronouncements as to the States'
commitment to protect the survival of indigenous populations, the need to
train public officials who interact with them, the importance of land
ownership and recognition of their cultural rights.
For its part, Venezuela reaffirms its adherence to and
observance of human rights and its constitutional duty to preserve social
equality and equality before the law, without discrimination based on
race. It notes that preparation of a special instrument on the rights of
indigenous populations might risk violating the spirit, purpose and logic
of the existing inter-American instruments on human rights.
It is aware, however, that just as its own Constitution does on the
domestic front, a special international system of protection could be
created that is responsive to the special characteristics and lifestyles
of indigenous populations. It
will advocate such a system as long as no privilege, distinction or
anything detrimental to the harmony of the State and legal and social
equality is created.
Guatemala states that a number of the rights listed in the
questionnaire are already recognized and guaranteed under existing
international instruments and should not, therefore, be repeated.
Chile is of the view that an international declaration on
the rights of indigenous populations ought not to be a duplication of
existing international declarations and covenants on human rights;
instead, it should concern those rights that, by their nature,
specifically pertain to indigenous populations, tribes and persons.
Canada stated that an instrument of this nature ought to
provide tangible benefits and protection to the indigenous people; it must
be unambiguous and its purpose must be very clear.
It should reflect a balanced consideration of the rights of third
parties and governments. Canada
believes that the instrument should be the product of a wide consensus and
that its purpose should be to expound upon the economic, social and
cultural rights of indigenous populations.
The United States says that for now, it will reserve its
judgment about whether an instrument of this nature is really necessary.
Instead, it prefers to wait to see the other members States'
replies and to examine what impact the existing instruments have on this
area.
Overall, the indigenous organizations believe that an
instrument of this kind should, first and foremost, clarify the
relationship between each Nation-State and those universal rights that
apply to all inhabitants of their territories, especially those rights
that protect the survival of indigenous groups.
In drafting the instrument, the problems, needs and aspirations of
the indigenous populations must be the major consideration and indigenous
populations must participate directly and extensively.
By the same token, the new instrument ought not to contain values,
principles, rights and guarantees already governed under international
human rights treaties; instead, it should focus only on those aspects that
are part of the life, history, philosophy and aspirations of indigenous
populations and their legal, political, economic and social processes.
These indigenous organizations emphasize the need for very precise
legal provisions that lend themselves to only one interpretation.
Both international organizations are of the view that the
method adopted to prepare this instrument allows for thorough
consultations with all interested parties. They specifically note the decision to consult indigenous
organizations.
2.
Ideas for the preamble
Panama stated that even though provisions of its
Constitution and international conventions guarantee human rights without
discrimination, in practice these rights are of no direct benefit to the
indigenous populations and are not responsive to their idiosyncrasies,
their disadvantages and, above all, their collective way of life.
Costa Rica states that for a variety of reasons, differences
tend to arise between the public officials charged with safeguarding the
interests of the indigenous communities and the communities themselves,
and one of the objectives of the instrument must be to eliminate that
friction. It also points out
that indigenous cultures are slowly disappearing because of the agrarian
problem, after of a history of being gradually stripped of their lands and
constant violations of their claims even to territories that they have
occupied since time immemorial. This
has merely exacerbated the indigenous populations' dependency and economic
impoverishment; hence, all sectors of society must be made aware of these
issues and of the value of those cultures.
Costa Rica maintains that indigenous populations ought not
to be forced to adopt lifestyles alien to them and involving radical and
inappropriate changes or assimilation; instead, it should be the
indigenous communities themselves that suggest the changes that will give
them their stake in the development process that the rest of society is
experiencing and that will raise their standard of living.
The answers to the problems of indigenous populations must be in
their hands.
At times, there is a cultural clash between a nation's laws and
indigenous values; sometimes those laws do not carry compelling force in
their minds. Costa Rica
contends that scientific research into their lifestyles must be conducted
and their cultural traditions objectively assessed.
Colombia underscores the importance of the economic,
cultural-mythical relationship between the indigenous communities and
their lands, a vital symbiotic relationship with the environment.
It also points out that the rights upheld in the eventual
instrument should not be construed as a breach of the principle of
equality and nondiscrimination; instead, they should be premised upon the
fact that these are minorities and have special structural features in the
political, economic and social realms.
Peru states that history has not protected the territorial
rights of indigenous populations; their cultural and political rights are
constantly denied, de facto more than de jure, by denying
the autonomy of their forms of organization and their right to participate
in the decisions of mainstream society without forsaking their own ethnic
identity.
Peru stresses the need for a pluralistic democratic society
that recognizes the multi-ethnic nature of our societies, extending that
pluralism to political parties as well.
Ethnic differences must be appreciated as a source of a nation's
strength. Democracy must not
be based on some false premise of uniformity or homogeneity that has
nothing to do with reality. Such a democracy would be pure fiction and would threaten the
hemisphere's political stability.
Peru also notes how ironic it is that the Andean and Meso-American
Indians that domesticated and introduced to the world more than one
hundred species of foods, such as potatoes and corn, should be among the
most undernourished on earth. Centuries
of subjugation and extreme poverty have left them with a meager,
unbalanced diet that is high in carbohydrates but low in proteins,
vitamins and minerals. Much
of their rich food tradition is being lost and their invaluable
traditional know-how is losing ground to urban lifestyles and practices.
One of the governments' priorities must be to instill a new
appreciation of this knowledge and help retrieve it and give it new life.
A major part of this task is to change eating habits, one of the
most intricate elements in the cultural dynamic.
Canada believes, that the instrument must have a
well-defined statement of the obligations of the States and that any
administrative and financial obligations that cannot be reasonably
achieved should be avoided.
The indigenous organizations all feel that effective
mechanisms must be established to ensure that the States respect the
various rights recognized in the new instrument.
They also believe it should make provision for swift procedures to
be instituted should there be any violation or threat of a violation, and
for effective sanctions. They
also contend that there should be no privileges that give indigenous
groups some advantage over the rest of society.
The intergovernmental organizations consulted note that the
proposed instrument should make it very clear that all the rights and
benefits established therein are in addition to--not in lieu of--those
established by other applicable international instruments.
3.
A definition of the term indigenous
In Costa Rica, for legal purposes indigenous populations are
the descendants of the tribes or sub-tribes that inhabited the country at
the time of the Spanish conquest and colonization and who today occupy
certain isolated areas, live more in keeping with the social, economic and
cultural institutions of that period than with the institutions elsewhere
in the nation, are behind the rest of national public in terms of economic
and social development and are governed, either in whole or in part, by
their own customary law or by a special code.
Mexico, for its part, defines an ethnic society by the
elements that go into giving it an identity of its own and that form its
culture, including
Canada is of the view that the term "indigenous"
has to be defined in order to be clear about who it is that this
instrument concerns. It adds
that there is a definition in ILO Convention 169.
In Venezuela's opinion, the proper expression should be
"indigenous communities," since the Venezuelan
Constitution uses the term "people" [pueblo in Spanish]
to refer to all inhabitants of the Venezuelan
State.
Several indigenous organizations contend that the new
instrument should speak of "Indigenous and Tribal Peoples" or
simply "Indigenous populations", as that is the terminology of
ILO Convention 169 and the terminology they accept; these indigenous
organizations point out that in some international fora--including the
U.N. Working Group, the terminology used is "indigenous
populations", which is incorrect.
They conclude by pointing out that the United Nations resolved that
1993 would be the international year of "indigenous
populations", rather than "indigenous populations" and that
the "Universal Declaration of the Rights of Indigenous
populations" would be preferable to the "universal declaration
of the rights of indigenous populations".
One intergovernmental organization believes that the term
"Indian" is overly specific and may not be acceptable to all
indigenous groups as it would exclude other native Americans.
In its view, the proper term is "indigenous". 4.
Rights and guarantees in general
Colombia, Guatemala and Mexico all maintain
that it is important to include some reference to international human
rights law that upholds the fundamental rights and guarantees that serve
as the basis for the notion of the human person. Guatemala,
however, adds that specific reference must be made to the State's
obligation to guarantee free and full exercise of those fundamental rights
and freedoms, without any form of discrimination, and to adopt the
internal measures needed to guarantee and give effect to those rights and
freedoms.
Those three countries and Costa
Rica contend that the State must guarantee, effectively and without
discrimination, the minimum necessities that the rest of society enjoys: education, health, housing and land.
Chile includes the right to bilingual, intercultural
education, the right to honor, with specific reference to self-identity
and protecting the honor of indigenous individuals so as to avoid any
cultural affront; the right to a fair trial, emphasizing the economic and
cultural factors that affect indigenous persons and groups, and making
allowance for the special circumstances that may arise in legal
proceedings when one of the parties is indigenous (language, customary
law, etc.); the right to have a hand in public policies that affect them
and the right to have their ancestral lands recognized.
Canada believes that the new instrument should consider
those rights that are particularly important or unique to indigenous
populations, adding that some issues should be given more consideration
than they are now given in existing instruments.
Included here would be the rights to culture, education, health and
justice. It adds that an
article on the obligation to respect rights, similar to Article 1 of the
American Convention on Human Rights, would be appropriate, provided that
the article stipulates that men and women shall enjoy the same rights.
The indigenous organizations in general replied that
collective rights should be given priority consideration, with the
obligation that States respect those rights already established (civil,
social, political, economic, etc.) and guarantee their free exercise,
without any form of discrimination. They
favor the indigenous populations' effective participation in society as a
whole, with no form of exclusion and a ban against any ethnocidal and
ecocidal practices. They also
believe that other rights should be added, such as the right to land and
its resources, respect for cultural pluralism, for indigenous customary
law and for linguistic differences. For
these indigenous organizations, States must guarantee these rights by
means of substantive laws and programs, which should be realized with full
and active indigenous participation and no discrimination of any kind.
5.
The right to recognition as a person before the law in the case of
indigenous populations and their members
The countries were unanimous in the response on recognizing the
right to recognition as a person before the law in the case of indigenous
individuals.
As for the right to such recognition in the case of tribes or
peoples, Mexico indicates that their right to manage their own
affairs and the authority of their officials and institutions to represent
them must be recognized.
Guatemala accepts it if it is defined as a set of attributes
unique to an ethnic group: language,
customs, beliefs, traditions, dress, etc., but not under the concept of
"juristic personality" which would create an entity other than
the group of individuals who comprise it.
It adds that they should be recognized as persons before the law
once they have proven the necessary legal requirements to obtain such
status.
Colombia, on the other hand, states that indigenous groups
and their members should be recognized as persons before the law
as this guarantees them the right to act directly to defend their
interests vis-a-vis the State and other sectors of society.
Chile believes it would be inadvisable to institutionalize
indigenous populations to that degree.
Instead, it should be their communities that have the right to be
recognized as persons before the law.
Canada believes that the instrument should be worded in
terms of individual rather than collective rights and adds that many of
the rights it address will be occasioned by membership in an indigenous
group. There should also be a
clause recognizing that the members of an indigenous group have the rights
by virtue of their membership in the group, as for example the right to
live as a group. Canada
also mentions that under the present self-governance agreement, indigenous
governments are persons in their own right, distinct from the group
members or citizens. This has
advantages since as a person before the law the indigenous government can,
for example, enter into contracts.
Peru points out that indigenous populations should be
recognized as nations or subjects of international law provided they want
to be so recognized and meet the basic requirements of a nation (a
permanent population, an established territory, a government and the
capacity to enter into relations with other States). It adds that no indigenous nation or group should be deemed
to have fewer rights because it has not concluded treaties or agreements
with any State; they should be accorded the degree of independence they
desire, in accordance with international law.
Peru also believes that
no State should assert, reclaim or exercise jurisdiction over any
indigenous nation or group or their territories unless there is a valid
treaty or an agreement entered into freely with the legal representatives
of the indigenous nation or group concerned.
It concludes that any action by a State that violates the right of
self-determination of an indigenous nation or group will fall under the
jurisdiction of the existing international organizations.
Costa Rica points out that in the proposed instrument the
States will agree upon the provisions to govern the legal personality of
indigenous populations.
The indigenous organizations agree that indigenous
populations must be explicitly recognized as persons before the law, as
subjects with rights and able to assume obligations.
These organizations believe that States must pass legislation to
create a register wherein the various indigenous populations are formally
inscribed; said register shall indicate that the indigenous or tribal
people may exercise their personality, and that States must recognize
their juristic personality in furtherance of pre-existing agreements with
the tribal or indigenous people and their rights, all within the framework
of participatory democracy. They
point to the many nationalities of which multinational and multiethnic
States are comprised. They
also contend that the indigenous populations have the ability to govern
themselves internally, by the rules of their culture. More importantly, recognizing indigenous tribes and peoples
as persons before the law would strengthen the democratic system of
government.
As for the right of association, the States couch this in terms of
the complex Nation State/indigenous populations relationship.
Mexico maintains that the right of association and to
membership in one's ethnic group, based on custom, should be recognized.
Colombia suggests that some reference be made to those types
of organization that are native to each community.
Recognition of this right, it says, implies the State-indigenous
community relationship, one that is in various stages of development in
the region. The trend is
toward greater autonomy, equity and negotiated agreement, which makes it
all that more important to include the right of association in this
instrument.
Chile believes that the instrument should recognize the
right of association in a manner consistent with the traditional forms of
association, and accordingly would use a formula that recognizes
indigenous communities as persons before the law by virtue of their being
social organizations composed of individuals belonging to the same
indigenous culture, united because their lands are part of a common deed
or because they belong to the same family line or acknowledge the same
traditional chieftain. The
international instrument should also make it possible for indigenous
communities to be recognized as persons before the law based on their own
forms of association and hierarchy.
Canada is of the view that freedom of association might make
special reference to indigenous self-governance, and concludes that any
possible relationship between this right and indigenous families is
unclear.
In general the indigenous
organizations maintain that the legal-political guarantees for an
indigenous population's economic, social and political development must
also be granted. The State
must accept forms of association that are for specifically indigenous
purposes and organization styles and methods of operating other than those
provided for in the national laws, based instead on indigenous law,
tradition and cultural values. The
instrument must expressly stipulated that the indigenous population is not
to be subject to any form of compulsory association.
One intergovernmental organization expresses the view that freedom
of association ought not to be linked to the indigenous family. 6.
Humane physical, mental and moral treatment and prohibition of
cruel or degrading treatment or punishment
Guatemala, Chile and Colombia were
of the view that since this individual right is recognized in other
instruments, it need not be duplicated here.
Mexico believes that some reference should be made to this
issue, since indigenous people sometimes are unaware of national positive
law; there must be rules to prohibit unfair trials where the individual
has neither a defense attorney nor an interpreter.
Peru believes that the instrument should stipulate that
indigenous populations' institutions and decisions, like those of States,
must observe internationally accepted individual and collective human
rights; hence, any form of cruel or degrading punishment that their
traditional systems of justice may still allow must be banned.
Colombia believes it is important that these rights be
included, provided great care is taken to interpret what constitutes cruel
or degrading treatment and to define what constitutes human dignity, while
taking into consideration those cultural traditions that may be different
from those of society as a whole.
Canada believes that this is every individual's inalienable
right and it is, therefore, inconceivable that indigenous people will have
the right in a special form. However,
there is a particular history of abuse of a right, it might be mentioned
in a general statement of rights, or even in a separate article.
The indigenous organizations believe that this right must be
expressly included in the new instrument.
They regard its violation as a form of ethnocide, whether by the
State, religion or society itself. They
add that there should be an explicit reference to the right to have one's
spiritual integrity respected. Several
indigenous organizations suggested that capital punishment be
abolished and that attempts at assimilation cease.
The foregoing notwithstanding, one specialized organization (the
Andean Commission of Jurists) believes that any reference to this in the
instrument would be needless duplication, since it is a right that applies
to the community as a whole, and no distinction need be made. The Commission does, however, note that some reference should
be made to any exploitation of natural resources that exploits indigenous
populations as well and forces them to live in degrading and inhuman
conditions.
With reference to the second part of the question (prohibition of
cruel or degrading treatment or punishment), the indigenous
organizations note that in the States' legal proceedings the execution
of a sentence or punishment ought not to be confused with the
indiscriminate practice of torture; hence, it would be best to enforce
indigenous customary law, as the indigenous person lives in another milieu
and has only a rudimentary understanding of the laws of a country. The idea must be to recognize and respect cultural diversity
at all times.
7.
Right to personal liberty and security
Mexico states that even though this right is covered under
its domestic laws, the indigenous populations' customary law should be
considered.
Chile believes that all persons must be guaranteed these
rights, without distinction.
Peru and Canada are of the view that a specific
reference to the right to personal liberty and security will be
appropriate in this instrument.
Colombia and Guatemala, on the other hand, contend
that this right is already recognized in other international instruments
and there should be no duplication.
As for the indigenous organizations, they all believe it is
important for the new instrument to note that for many indigenous
populations the meaning of the word "liberty" is not the
generally accepted one. When
it comes to the issue of what constitutes "liberty" for these
sectors of society, therefore, the instrument must make allowance for some
acceptances that are broader and others that are narrower.
On a more practical note, one organization (the Aymara Quechua
Students Association) considers that indigenous persons should be
penalized according to their own customary laws; thus, when an indigenous
person is arrested and his/her domicile is in his/her community, then the
individual in question should be remanded to his/her place of origin
within 24 hours.
Along these same lines, several indigenous organizations
suggested that some provision be made for "internal exile" and
the "administrative neglect" that victimize indigenous
populations, such as abduction and enforced disappearance by government
security forces and paramilitary groups, and attempts at religious,
ideological, political and cultural coercion by systems that have
contributed to genocidal and ethnocidal practices against tribunal and
indigenous populations. They
believe effective mechanisms must be put into place to guarantee full
respect for everyone's personal liberty and safety, including that of
indigenous populations.
8.
Prohibition of slavery, servitude or forced labor
Peru argues for a provision to expressly prohibit the
practice of forcing indigenous persons to work without their consent, to
ban any form of force or coercion, and to guarantee equal pay for equal
work, access to jobs at all levels and the right to social security.
Colombia also mentions the need to include such a
prohibition, considering the social vulnerability to which indigenous
persons are exposed because they are different and/or not dominant.
Mexico, Chile, Canada and Guatemala indicate that
these prohibitions are covered in existing international instruments.
Chile and Canada add that a provision of this nature
could only be included if it took into account the idiosyncrasies of each
people or the special needs of indigenous persons.
On the whole, indigenous organizations believe that these
practices and others like them should be expressly prohibited by the new
instrument, particularly in reference to indigenous women who are the
victims of sexual abuse, the theft of the indigenous populations' lands
and rights and the forced removal of those peoples on the pretext of
building hydroelectric, tourist and other public works, which are
disguised forms of slavery which the State must prevent.
They add that before an indigenous person takes a job, he/she
should be advised of his/her labor rights and receive a fair wage.
The new instrument should also stipulate that collective labor,
called tequia or faena, is not to be regarded as forced
labor since it is performed on the basis of an agreement entered into as a
group, by group consensus and in keeping with indigenous custom and
practice. 9.
Right to safeguarding honor and dignity
Colombia points out that as in the case of cruel and
degrading treatment, many ancestral indigenous practices are viewed by
society at large as violating honor and dignity; the cultural milieu has
to be considered when interpreting this right.
Colombia also notes that outside these communities many
things may be done to disregard, discredit, disparage or misrepresent
their lifestyles, using images and perspectives that are demeaning to
them. The instrument should
limit or ban such practices.
Peru notes that in keeping with Article 11 of the American
Convention, the new instrument should specifically state that customs must
be respected and that judges shall take them into account when deciding
cases involving violations of the right to privacy.
For its part, Chile points out that the right to privacy and
to self identity should be a part of all constitutions and of the proposed
instrument under examination here.
Canada maintains that the right to privacy could be
included, in a new instrument insofar as it relates to the special needs
of indigenous populations.
In general, the indigenous organizations' reply was that
this right should be expressly included in the new instrument.
They emphasized that the word "Indian" or
"indigenous" should not be charged with hatred or used to insult
or mock. Their private life,
their families, and their domicile should be respected and any unlawful
attacks on their honor and reputation should be prohibited.
They add that everywhere they live, indigenous populations'
cultural values and customary law, the memory of their ancestors, their
museums, monuments, sacred cemeteries and other living testimony to the
individual, family and social life of the people or peoples must be
respected and the discriminatory practices and behavior hidden in many
aspects of a society's daily life must be eradicated.
10.
Freedom of conscience and of worship
All the countries note that their domestic laws provide for freedom
of conscience and of worship. Colombia
adds that in view of the attempts at systematic religious conversion, it
might be best to include some reference to protection of this individual
and collective right. It
points out that in the course of the internal inquiries made to complete
the questionnaire, cases were examined in which members of religious
groups were trying to take advantage of circumstances, instilling in the
indigenous communities, through deceit and fear, religious beliefs and
practices alien to their traditions, thereby undermining their own
religious authorities and beliefs Colombia suggests that indigenous populations should be free to
decide which outside agents they will admit in, basing that decision on
truthful information sufficient to make a free and informed choice about
any change in their beliefs system.
Chile is of the view that in the new instrument, the States
should agree upon a way to combine the notion of religious freedom with
that of preservation of native cultures.
Canada says that historical experience shows that some
mention should be made of this freedom to enable indigenous people to
practice their religion.
Indigenous organizations in general agree that freedom of
conscience and worship must be respected; that States must preserve the
indigenous populations' freedom of conscience and religion, and repeal any
legislation that imposes religions or philosophical beliefs that are
hostile to the indigenous populations' existence on their territories;
accordingly, no religious institution or sect can impose its religion
against the will of the people. The
individual or collective beliefs of indigenous persons and their
spirituality and ancestral rites must be recognized, as must their right
to preach and practice those traditional beliefs.
11.
Freedom of thought and of expression
Mexico, Peru and Colombia concur on the need for
express reference to freedom of thought and expression.
Colombia attaches particular importance to this freedom
since the potential to develop and reproduce their ancestral expressions,
so important to their survival as unique groups within society, depends
upon the exercise of this right.
Peru elaborated by stating that this right should include
the opportunity to exchange information and ideas by whatever means,
regardless of national borders, and the right to introduce in the
international community concepts and ideas that follow from indigenous
principles.
Mexico points out that when compared to the rest of the
population indigenous populations have historically had little access to
national information. Law
codes, especially the constitutions, should be available in the indigenous
languages and there should be programs to foster communications between
indigenous and non-indigenous persons, engendering a mutual respect for
cultural differences and a rich exchange of information.
Chile adds that the States must make provision for the
suppression of racial hatred.
Canada believes that this right must figure in the new
instrument, but as it pertains to the special needs of indigenous persons,
adding educational measures intended to eliminate prejudice of the general
population.
The indigenous organizations in general replied that this
right should also include the guarantee that sufficient means of
expression will exist to ensure the indigenous population is not outside
the mainstream; they add that the freedom of thought and of expression of
the indigenous populations must be according to their view of the cosmos.
This right should also embrace cultural practices; these
expressions may be in native orthographies and languages.
They note that freedom of expression is essential to the exercise
of political rights and should be respected even when a state of emergency
has been declared.
12.
Right of assembly
Mexico, Chile and Colombia believe this right should
be included in the proposed instrument, especially where indigenous
ceremony is concerned. Mexico
and Chile, however, believe
that this right should also mean respect for the sacred areas where the
communities perform these ceremonies.
Colombia underscores the importance of this right to enable
people to voice their concerns and grievances directly.
It therefore believes that this right should be guaranteed with as
few exceptions and qualifiers as possible.
It indicates that the phrase "without arms" in Article 15
of the American Convention ought not to be interpreted as referring to
instruments that, though they could be mistaken for arms, are in fact
everyday tools or items that serve a purely ritualistic purpose in
traditional ceremonies.
Canada is of the view that the new instrument must mention
the right of assembly, since indigenous persons have special needs in
relation to its application. It adds that this right is important in the exercise of
indigenous self-government.
The indigenous organizations agree that this right must mean
that indigenous populations are free to assemble according to their uses,
customs, ancestral traditions, beliefs, religions, etc, and in their
customary places. They add
that implicit in this right should be the right to defend the communal
territory which the State has guaranteed to them through indigenous
customary law or positive law.
The foregoing notwithstanding, the Andean Commission of Jurists
points out that the rights and limitations should be the same as those
recognized in the American Convention in respect to all persons and
members of a national group.
13.
Rights of the family
Mexico maintains that the right to traditional matrimonial
and kinship relationships should be recognized.
Chile, likewise,
believes that the instrument must recognize the various systems that
indigenous customary law uses to establish lawful paternity/maternity.
Canada, for its part,
believes that the instrument should contain some provision related to
custom adoption; it adds that in cases of adoption, family breakdown and
other similar matters of that nature, the "best interests" of
the child must be gauged by the interests of the individual, family and
community and that some provision to that effect should be included.
Several indigenous organizations replied that the culture
and customs for establishing families must be considered; indigenous
marriage should be considered to have the same legal effects as civil or
ecclesiastical marriage. This
right should also include respect for the modus vivendi
of indigenous populations. They add that the State must provide families
with counseling on family planning, hygiene, etc.
States must pass legislation to ensure that indigenous families are
not torn apart and establish penalties against those who would traffic in
indigenous children or remove
them to other milieu on the pretext of providing them with different
living conditions. These laws
must also protect the physical, moral and cultural health of the families
that make up the larger tribal family.
14.
Right to a name
Colombia, Costa
Rica, Mexico and Peru are all
of the opinion that this right should be included to clarify specific
situations that should be protected.
Colombia emphasizes the
"cultural-mythical" importance that many communities attach to
having their "native" or "ancestral" name revealed
outside the community or even within it.
This means that some indigenous people may have two names so as not
to have to reveal or renounce the traditional name; they use the second
name to identify themselves outside their community when exercising their
political or civil rights: for property deeds, voting in national
elections, etc. In Colombia's
case, these considerations and developments have acquired added importance
at the present time, with creation of the Indigenous Territorial Entities
and the fact that the functions of indigenous authorities have been
expanded to include such areas as independent resource management and
court functions. It contends
that other communities whose value system is different and that are more
actively engaged with society as a whole, have claimed the right to use
their ancestral name in all activities, both within and outside the
community, and have filed the necessary petitions with the appropriate
authorities.
Costa Rica argues that
the indigenous person must have the right to retain his/her native or
natural name, and not be forced to change it for linguistic reasons.
Mexico recalls that the
traditional legal systems have a very different notion of the right of
family whereby entire indigenous populations use the names of their
ancestors as surnames. Peru
contends that including the right to call oneself by one's own name ties
in with the right to state one's identity freely and openly, an ethnic and
cultural characteristic.
Chile believes the
instrument should include a norm that ensures respect for and preservation
of indigenous surnames, to protect against enforced "hispanization".
Canada maintains that
the recognition of indigenous names for groups and place names might also
be considered.
The indigenous organizations all agree that the authorities
must respect this right, inasmuch as every indigenous people has the right
to demand that its original name be respected and to change or eliminate
those names that are not to its liking, either because they were forced
upon it, are not in its native language or are a convenience for
statistical or official identification.
They contend that the necessary precautions must be taken for
adoptions, lack of documents and other problems of that nature.
15.
Rights of the child
All the countries report on their child protection laws in general,
which apply with equal force to indigenous children as well.
Colombia points out the special protection provided by specialized
agencies for the adoption of indigenous minors, primarily intended to keep
them within or reinstate them to their native community, in keeping with
the latter's customs and practices so long as those practices are not
inimical to the child's best interests.
It also points out the special protection against child labor
whereby one must secure authorization from the local government or
indigenous authorities in order to hire indigenous minors.
It points out that it is the right of indigenous minors to have
State or private education respect their traditions, language and culture. Colombia also
notes that judges and civil servants that deal with the affairs of
indigenous minors must take into account their uses, customs and
traditions, and consult with the traditional authorities.
Mexico believes it is
important to include the child's inalienable right to education in his/her
native language, history and culture, as part of the academic curriculum,
without having to forsake his/her right to subsequent education in the
national and universal language and culture.
Chile believes that this
issue ties in with the right of parents to educate their children in the
values and languages of their people; accordingly, the educational system
must encourage the child to be proud of being an indigenous person and to
study his/her own history.
Canada points out that
the instrument must recognize the child's right to enjoy his/her own
culture, profess his/her religion and use his/her own language with other
members of the group.
A number of indigenous organizations reply that the new
instrument should explicitly prohibit the traffic in indigenous
children and their unlawful adoption.
The child must enjoy the rights recognized in the proposed
instrument, receive a bilingual education from properly trained teachers
in the child's native language community, and be given the protection that
communal life dictates. 16.
Right to nationality
The countries state that this right is guaranteed under their laws
and there need be no specific reference to it in the future instrument.
Canada, however,
believes that the instrument could include provisions on specific
situations can be identified regarding the application of this right for
individuals, then reference might be made to indigenous people.
The indigenous organizations in general maintain that the
pluri-nationality of our countries must be recognized as must the right of
nationality of an indigenous people or ethnic group, and that the State
must guarantee the national and cultural identity of that people or ethnic
group. In the case of border
territories, the possibility of dual nationality should be considered.
Several indigenous organizations add that the States must
grant citizenship to indigenous individuals from different tribes or
peoples if they meet the commonly accepted citizenship requirements; the
expulsion of indigenous persons from neighboring States on the pretext
that they carry disease must be banned.
They conclude by observing that nationality comes by way of the
indigenous nations or peoples, while citizenship is something the State
grants to its inhabitants. The
notions of "citizenship" and "nationality" must not be
confused. 17.
Right to private property and to its use and enjoyment
Although this right is in general guaranteed under all the legal
systems, Mexico and Costa
Rica stress the importance of including it in the proposed instrument.
Mexico argues that the
territorial rights and the right to individual and collective property
must be respected. Given the
fact that the indigenous populations' principal problems are related to
agrarian disputes, Mexico
believes that their legal practices and customs should be factors when
finding a legal settlement to these disputes.
Costa Rica believes that
there must be guarantees in the instrument to ensure development on
indigenous reservations that protect the indigenous populations' right to
their ancestral lands.
Chile
believes that the instrument should allow for organizational arrangements
that are consistent with indigenous customs.
Canada notes that this
right must be considered in respect of indigenous persons as well.
It believes that the intellectual property rights of indigenous
persons and their cultural property must be considered in other fora.
In general, the indigenous organizations are of the view
that private property, as conceived in the civil codes, is not compatible
with the theory and practice of collective property among indigenous
populations as their means to guarantee the use and enjoyment of the
family property. A State must
guarantee collective property when it recognizes an indigenous people's
ownership of the land it has occupied since time immemorial and its
ownership of the natural resources that land holds. The State must also establish the means to return those
resources to the indigenous populations. The indigenous population must
have full rights to use, enjoy and profit by their movable property and
real estate. This, too, must
be guaranteed and recognized by the State.
18.
Freedom of movement and residence
Mexico, Peru
and Colombia are of the view the instrument should include special
provisions to uphold this right, though Mexico
also believes that it must tie in with indigenous customs by guaranteeing
freedom of movement for such customary practices as pilgrimages to sacred
places across national borders.
Peru believes that the
indigenous populations' right to self determination includes the freedom
of move about and reside in their territories, the legal rights of society
in general notwithstanding.
Colombia points out that
there are well-known cases where entire indigenous populations have been
uprooted from their ancestral lands on grounds not allowed under the
American Convention; given that fact, Colombia
believes that there should be language in the instrument to prohibit such
situations. The paramount
objective is to protect indigenous populations from being uprooted from
their ancestral lands for reasons that have nothing to do with the
community's own interests and accomplished by means of deception or
intimidation.
Chile is of the view
that the proposed instrument should make explicit reference to indigenous
persons' freedom of movement.
Canada observes that
special considerations should be included for some indigenous populations;
while indigenous and non-indigenous persons should be able to move
lawfully about the territory of the State, reservations -in Canada
and other countries place certain restrictions on the ability of people to
take up residence.
Several indigenous organizations note that the new
instrument should recognize this right and should explicitly provide that
no indigenous people shall be uprooted and/or eradicated from its
territory without its consent; if its relocation is necessary, it should
be compensated and sent to places that are ecologically similar.
The instrument should also recognize the indigenous person's right
to move about his/her national territory freely, that States must respect
the habitat or territory where indigenous populations reside and even
grant them the right to cross the borders between States for cultural,
religious or economic reasons.
The foregoing notwithstanding, the Andean Commission of Jurists
believes that as a statutory frame of reference, the protection afforded
by existing international treaties is sufficient.
19.
Political rights: the
right to vote and to be elected to public office and to participate in
public affairs.
The responses indicate that indigenous populations have the same
right to participate in political life as other citizens of the State.
Costa Rica believes that
the electorate chooses those who will govern, and the governing may under
no circumstances be divided into ethnic groups. Peru
maintains that the State has the obligation to actively promote the
indigenous people's participation by virtue of their right to be
represented in the legislative, executive and judicial branches of
government and in the general government. It emphasizes how important it is that the State lend its
support and encouragement to help indigenous populations organize
nationwide, independently of the organs of the State.
Colombia believes that
the instrument should mention the need to adopt mechanisms that protect
and guarantee the exercise of this set of rights, as a tangible
demonstration of these peoples' autonomy.
Chile, for its part,
believes that in view of the evidence that the indigenous population is
underepresented, some thought might be given to the eventual
implementation of affirmative action.
Canada observes that the
instrument could include a specific mention of this point, since
indigenous persons have been among the last to be extended political
rights by national government. It
adds that in keeping with the Canadian Charter of rights and freedoms,
there have been proposals to include special indigenous electoral
districts in federal elections and senatorial representation.
It also notes that the indigenous populations should be consulted
before making any changes to the articles of the constitution that affect
them.
The indigenous
organizations believe that indigenous populations must have effective
political participation and be permitted to exercise their rights to the
fullest and without interference from political parties.
They should participate through their representatives, selected
according to their own traditional procedures; the State must guarantee
the right of the indigenous populations' political parties and civil and
social institutions to function. Correspondingly,
the proposed instrument must recognize the indigenous populations' right
to self-governance and to self-determination as essential to achieving
political autonomy, equality, human dignity, freedom, environmental
protection and ecological balance. All
the foregoing are essential to the survival of the indigenous populations
and must not be regarded as a threat to the State's territorial integrity.
20.
Equality before the law and equal protection under the law Costa Rica, Mexico and Colombia believe there are certain points that need to be addressed here. Costa Rica states that often the arm of the law does not reach the indigenous communities, either |