SITUATION OF THE HUMAN RIGHTS OF
To date, the rights of
indigenous persons and peoples have not been specifically regulated in the
basic instruments that govern the inter-American human rights system.
In effect, neither the American Declaration on the Rights and
Duties of Man nor the American Convention on Human Rights and its
additional protocols or other inter-American human rights treaties contain
provisions that develop indigenous rights.
Indeed it is unusual--indeed
inexplicable--to note that the only international instruments (treaties)
on indigenous rights that exist have been codified not by the
international human rights organs, but specifically by the International
Labor Organization (ILO). There
are two relevant conventions: Convention 107 and Convention 169.
Convention 107 concerning the Protection and Integration of
Indigenous and Tribal Populations and other Tribal and Semi-tribal
Populations in Independent Countries (1957); and Convention 169 on
Indigenous and Tribal Peoples in Independent Countries (1989). Convention
169 is a revision of Convention 107, with a much more progressive approach
to the indigenous peoples, in which the value of that which is properly
indigenous is accorded priority, setting forth provisions on the
elimination of discrimination; respect for the culture and institutions of
the indigenous peoples, including their forms of government and customary
law, with special attention to the provisions of criminal law; indigenous
territories and lands; and form of social investment in indigenous
populations, work, health, education, and culture.
Notwithstanding the importance of Convention 169, it is in force in
only a few countries of the inter-American system (Canada, Bolivia,
Brazil, Colombia, Costa Rica, Guatemala, Honduras, Mexico, Paraguay, and
Peru). Argentina ratified it
in 1984, but the instrument of ratification has yet to be deposited with
The other international
approach to the rights of indigenous peoples, which is not yet specially
tailored to them, is embodied in the various instruments regarding the
struggle against discrimination and the rights of minorities.
The International Covenant on Civil and Political Rights, for
example, provides that in those States with ethnic, religious, or
linguistic minorities, persons who belong to them shall not be denied
their rights, which they hold in common with other members of their
groups, to their own cultural life, to practice and profess their own
religion, and to use their own language (Article 27).
In the inter-American sphere,
the rights of indigenous peoples are even more tenuous, for they are only
to be found in the American Declaration and American Convention under the
right to equality, within the provisions barring discrimination on grounds
of race, color, language, religion, social status, etc.
(Article II of the Declaration and Article 1 of the Convention).
Nonetheless, as we will
reiterate below, this approach to the rights of indigenous peoples via the
concepts of “minorities” or “prohibition on discrimination,” while
the only mechanism in some cases, is incomplete and reductionist, and
It is important to note that
in 1948 the Ninth International Conference of American States, which
created the OAS and adopted the American Declaration on the Rights and
Duties of Man, adopted the Inter-American Charter of Social Guarantees,
which, in one of its last articles, includes a provision on indigenous
rights. In effect, that
provision, contained in the section on rural labor, provided:
39. In those countries in which the
problem of the native population exists, the necessary measures shall be
taken to provide the Indian protection and assistance, protecting his
life, liberty, and property, and defending him from extermination, and
safeguarding him from oppression and exploitation, protecting him from
poverty, and providing adequate education.
State shall exercise its tutelage to preserve, maintain, and develop the
assets of the Indians or their tribes, and shall promote the exploitation
of the natural, industrial, and extractive wealth or other sources of
income from such assets or related to it, so as to ensure, when
appropriate, the economic emancipation of the indigenous groups.
or services should be created to protect the Indians, and in particular to
ensure respect for their lands, to legalize their possession by them, and
to prevent the invasion of such lands by outsiders.
In contrast with this
situation in the inter-American system, the African Charter on Human and
Peoples’ Rights of 1981 was the first human rights instrument not
limited to individual rights, as it also sets forth the collective rights
This more recent trend in
relation to the rights of indigenous peoples was recognized in the 1993
Vienna Declaration, adopted by the World Conference on Human Rights.
There, the indigenous movement was able to separate its declaration of
rights (Article 20) from the declaration on the rights of minorities
(Article 19), winning its own distinct specificity.
This declaration reflected the principles of equality and
non-discrimination, including the obligation of States to adopt positive
measures, and the right of indigenous peoples to participate in the
matters that concern them. Nonetheless,
the failure of that Declaration to refer to the rights to indigenous
territories and lands is glaring.
The United Nations has been
discussing a Declaration on the Rights of Indigenous Peoples since 1982;
it is now before a Working Group of the Commission on Human Rights.
While serious disagreements among the States need to be worked out
before the Declaration can be approved, the process has helped achieve
significant advances in the countries’ positions and in the doctrine
regarding the rights of indigenous peoples.
This very brief overview
reflects the embryonic state of the treatment of the rights of indigenous
peoples in international instruments.
More than 40 million persons
who identify themselves as belonging to indigenous peoples live in the
Americas, and it is estimated that there are no fewer than 400 indigenous
ethnic groups and peoples. In
general, and especially in Latin America, the indigenous are the poorest
of the poor, and the most excluded of the excluded; in other words, they
are among the poorest and most excluded persons in our societies.
The traditional approach to
their rights, considering them as minorities, or barring discrimination,
is not sufficient, as it fails to recognize the nature and complexity of
indigenous peoples. The
indigenous peoples are, in effect, more complex and complete than is
suggested by the concept of minority, or even of ethnic group.
In effect, the indigenous peoples constitute a history and
cultures, languages, ethnic diversities, different forms of worship or
religion, their own ancestral techniques, artistic traditions,
institutions, legal regimes and forms of administration of justice,
territories and habitat: the
reality of the indigenous peoples, so rich and complex, is much more than
a minority or a race. In
addition, the rights of indigenous peoples have a simultaneous dual
dynamic, consisting of the interconnection between individual rights and
The foregoing analysis
reflects the lack of specialized instruments in both the international and
inter-American human rights system setting forth and developing the rights
of indigenous peoples.
In the inter-American context,
since 1941 the Mexico City-based Inter-American Indian Institute has had
the function of supporting the indigenous policy of the member States,
undertaking studies and analyses, and promoting policies for integral
development and the eradication of poverty.
Since it was established in
1959, the Inter-American Commission on Human Rights (the “Commission”
or the “IACHR”) has been promoting protection for the rights of
indigenous peoples. In
effect, the Commission has contributed to this task through its on-site
visits and general reports on countries, dedicating special chapters to
the situation of indigenous peoples (Colombia, Guatemala, Ecuador, Chile,
Bolivia, Suriname, Brazil, and Mexico); or producing special reports (on
the situation of the human rights of persons of Miskito origin in
Nicaragua, 1987; and on the Communities of Peoples in Resistance in
Guatemala, in 1994). In
addition, the Commission, through its individual case system, has had the
opportunity to resolve petitions from indigenous individuals or
communities whose human rights have been violated.
The Commission has resolved several cases since 1970 that are
outlined herein, regarding both individual rights (e.g., to life and to
liberty) and collective rights (e.g., to land, family).
Furthermore, in 1972 the Commission adopted a major resolution on
“Special Protection for Indigenous Populations, action to combat racism
and racial discrimination,” affirming, among other principles, that
“for historical reasons and moral and humanitarian principles,
protecting especially the indigenous populations is a sacred commitment of
Finally, pursuant to an
application by the Commission, in 1993 the Inter-American Court of Human
Rights resolved the case of Aloeboetoe v. Suriname, in which it recognized
the lawfulness of reparations based on indigenous customary family law,
including polygamy as practiced by that community, in the context of a
massacre of members of the indigenous community. Recently, in 1998, the Commission submitted a new case to the
Inter-American Court (“Awas Tingi v. Nicaragua”) regarding judicial
guarantees and the guarantee of the consultative participation of the
indigenous peoples in their territories.
In summary, the inter-American
system of human rights needs to be strengthened in this area by several
initiatives that include objective provisions, adopted by the member
States of the OAS, who establish their own minimal standards in each case
with respect to the rights of indigenous peoples.
This has also been recognized by the Heads of State and Government
at the Summit of the Americas, held in 1998 in Santiago, Chile.
Its objective will be, first, to compel the states to adopt and
develop necessary measures in their own domestic law to guarantee the
effective observance of the rights declared.
Second, a declaration on the rights of indigenous peoples will
facilitate more in-depth and specialized action on the part of the organs
of the system (Commission and Court) in the promotion and defense of the
rights of the indigenous peoples of this hemisphere.
At the initiative of the
Commission, since 1989, and at the recommendation of the OAS General
Assembly, the Commission began its work to prepare a Declaration on the
rights of indigenous peoples. After
two rounds of consultation and other activities to discuss the Declaration
in the member states, and with several indigenous groups of the
hemisphere, on February 27, 1997, the Commission, at its 95th session,
approved the document entitled “Proposed American Declaration on the
Rights of Indigenous Peoples.” That instrument, which we present here
among the materials contained in this publication, has a preamble and 37
articles. The preamble
contains preliminary declarations in relation to the indigenous
institutions and the need to strengthen them nationally; the eradication
of poverty and the right to development; indigenous culture and ecology;
living in harmony with others, respect, and non-discrimination; territory
and indigenous survival; security and indigenous areas; international
human rights instruments and other advances in international law; the
enjoyment of collective rights, and advances in domestic law. The Declaration has six sections, on: indigenous peoples; human rights; cultural development;
organizational and political rights; social, economic, and property
rights; and general provisions. Each
section of the Declaration is made up of various articles, as follows:
scope of application and definitions
full observance of human rights
right to belong to indigenous peoples
right to cultural integrity logical
conceptions and language
rights to association, assembly, freedom of expression and thought
traditional forms of ownership and cultural survival
treaties, acts, agreements, and constructive arrangements
The proposed American
Declaration establishes that its scope of application is to the indigenous
peoples and others whose traditions or customs allow them to be
encompassed as well. In order
to determine who belongs to an indigenous people, the Declaration defers
to “self-identification” and the traditions and norms of each people.
In addition, like ILO Convention 169, the Declaration clarifies
that the term “people” used in it should not be interpreted as per its
meaning in international law (self-determination as a state), and thus it
cannot lead to any failure to recognize the boundaries of states, nor to
ignore the principles of the OAS, including the sovereign equality,
territorial integrity, and political independence of states.
Finally, as regards the rules
of interpretation, the proposed Declaration establishes that it may not be
interpreted so as to exclude or limit present or future rights that
indigenous peoples may have or acquire. In addition, the rights recognized in the Declaration
constitute the standard minimum for the survival, dignity, and well-being
of indigenous peoples in the Americas.
The Declaration proposed by
the Commission was submitted to a Meeting of Government Experts held at
the OAS in February 1999, pursuant to the guidelines established by the
General Assembly in 1998, in Caracas.
That meeting was the first governmental meeting of the OAS with the
participation of representatives of indigenous peoples of the hemisphere.
As detailed in the publication we present, certain decisions were
made at that meeting regarding the document.
By decision of the General
Assembly held in Guatemala in 1999, during 1999 and leading up to the
General Assembly to be held in Canada (2000), preparatory meetings are to
be held, also organized by the Committee on Juridical and Political
Affairs of the OAS Permanent Council. To this end, the Working Group on
the Declaration met at the OAS in November 1999.
We should take the opportunity
of the publication of this volume to recognize the work of the members of
the Commission who served before as rapporteur on the rights of the
indigenous peoples, and who contributed to carrying out the tasks of the
Commission in this area. They
are Patrick Robinson, Michael Reisman, and John Donaldson, with the
effective support of the Executive Secretary of the Commission, Ambassador
Jorge Taiana. In particular,
I would like to highlight the work put into this report by Commission
principal specialist, attorney Osvaldo Kreimer, for his vocation and
professional dedication to the rights of indigenous peoples, to which he
has contributed in singular fashion since 1989.
The publication introduced
here is directed to the peoples and states of the Americas, to contribute
to the process of adopting the American Declaration on the Rights of
Indigenous Peoples. In
addition, this publication is intended to disseminate not only the process
and the instrument being proposed, but also the case-law and doctrine that
has been developed in recent years by the inter-American human rights
system with respect to the indigenous persons of the Americas and their
peoples. We hope that this
effort will help increase awareness throughout the hemisphere on these
issues, which are of such importance to the future of our Americas and
M. Ayala Corao