PROPOSED AMERICAN DECLARATION ON
THE RIGHTS OF INDIGENOUS PEOPLES
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.
3. 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.
4. Indigenous peoples
have the right to use their indigenous names, and to have the states
recognize them as such.
Article IX. Education
1. Indigenous peoples
shall be entitled: a) to 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 complementarity with national
educational systems.
2. When indigenous
peoples so decide, educational systems shall be conducted in the indigenous
languages and incorporate indigenous content, and they shall also be
provided with the necessary training and means for complete mastery of the
official language or languages.
3. The states shall
ensure that those educational systems are equal in quality, efficiency,
accessibility and in all other ways to that provided to the general
population.
4. The states shall
take measures to guarantee to the members of indigenous peoples the
possibility to obtain education at all levels, at least of equal quality
with the general population.
5. The states shall
include in their general educational systems, content reflecting the
pluricultural nature of their societies.
6. The states shall
provide financial and any other type of assistance needed for the
implementation of the provisions of this article.
Article X. Spiritual and religious
freedom
1. Indigenous peoples
have the right to freedom of conscience, freedom of religion and spiritual
practice, and to exercise them both publicly and privately.
2. The states shall
take necessary measures to prohibit attempts to forcibly convert indigenous
peoples or to impose on them beliefs against their will.
3. 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.
4. The states shall
encourage respect by all people for the integrity of indigenous spiritual
symbols, practices, sacred ceremonies, expressions and protocols.
Article XI. Family relations and
family ties
1. The family is the
natural and basic unit of societies and must be respected and protected by
the state. Consequently the state shall recognize and respect the various
forms of indigenous family, marriage, family name and filiation.
2. 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 peoples, including
individual, family and community views.
Article XII. Health and well-being
1. Indigenous peoples
have the right to legal recognition and practice of their traditional
medicine, treatment, pharmacology, health practices and promotion, including
preventive and rehabilitative practices.
2. Indigenous peoples
have the right to the protection of vital medicinal plants, animal and
mineral in their traditional territories.
3. Indigenous peoples
shall be entitled to use, maintain, develop and manage their own health
services, and they shall also have access, on an equal basis, to all health
institutions and services and medical care accessible to the general
population.
4. 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 for the general population.
Article XIII. Right to
environmental protection
1. Indigenous peoples
have the right to a safe and healthy environment, which is an essential
condition for the enjoyment of the right to life and collective well-being.
2. Indigenous peoples
have the right to be informed of measures which will affect their
environment, including information that ensures their effective
participation in actions and policies that might affect it.
3. Indigenous peoples
shall have the right to conserve, restore and protect their environment, and
the productive capacity of their lands, territories and resources.
4. Indigenous peoples
have the right to participate fully in formulating, planning, managing and
applying governmental programmes of conservation of their lands, territories
and resources.
5. Indigenous peoples
have the right to assistance from their states for purposes of environmental
protection, and may receive assistance from international organizations.
6. The states shall
prohibit and punish, and shall impede jointly with the indigenous peoples,
the introduction, abandonment, or deposit of radioactive materials or
residues, toxic substances and garbage in contravention of legal provisions;
as well as the production, introduction, transportation, possession or use
of chemical, biological and nuclear weapons in indigenous areas.
7. When a State
declares an indigenous territory as protected area, any lands, territories
and resources under potential or actual claim by indigenous peoples,
conservation areas shall not be subject to any natural resource development
without the informed consent and participation of the peoples concerned.
SECTION FOUR. ORGANIZATIONAL AND
POLITICAL RIGHTS
Article XIV. Rights of association,
assembly, freedom of expression and freedom of thought
1. Indigenous peoples
have the right of association, assembly and expression in accordance with
their values, usages, customs, ancestral traditions, beliefs and religions.
2. Indigenous peoples
have the right of assembly and to the use of their sacred and ceremonial
areas, as well as the right to full contact and common activities with their
members living in the territory of neighboring states.
Article XV. Right to self
government
1. Indigenous peoples
have the right to freely determine their political status and freely pursue
their economic, social, spiritual and cultural development , and
accordingly, they have the right to autonomy or self-government with regard
to inter alia culture,
religion, education, information, media, health, housing, employment, social
welfare, economic activities, land and resource management, the environment
and entry by nonmembers; and to determine ways and means for financing these
autonomous functions.
2. Indigenous peoples
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 directly or through
representatives chosen 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 and
participate in all state institutions and fora.
Article XVI. Indigenous Law
1. Indigenous law
shall be recognized as a part of the states' legal system and of the
framework in which the social and economic development of the states takes
place.
2. Indigenous peoples
have the right to maintain and reinforce their indigenous legal systems and
also to apply them to matters within their communities, including systems
related to such matters as conflict resolution, crime prevention and
maintenance of peace and harmony.
3. 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 their language.
Article XVII. National
incorporation of indigenous legal and organizational systems
1. The states shall
facilitate the inclusion in their organizational structures, the
institutions and traditional practices of indigenous peoples, and in
consultation and with consent of the peoples concerned.
2. State institutions
relevant to and serving indigenous peoples shall be designed in consultation
and with the participation of the peoples concerned so as to reinforce and
promote the identity, cultures, traditions, organization and values of those
peoples.
SECTION FIVE. SOCIAL, ECONOMIC AND
PROPERTY RIGHTS
Article XVIII. Traditional forms of
ownership and cultural survival. Rights to land, territoriesand resources
1. Indigenous peoples
have the right to the legal recognition of their varied and specific forms
and modalities of their control, ownership, use and enjoyment of territories
and property.
2. Indigenous peoples
have the right to the recognition of their property and ownership rights
with respect to lands, territories and resources 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.
3. i) Subject to 3.ii)
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.
ii) Such titles may
only be changed by mutual consent between the state and respective
indigenous peoples when they have full knowledge and appreciation of the
nature or attributes of such property.
iii) Nothing in 3.i.)
shall be construed as limiting 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.
4. Indigenous peoples
have the right to an effective legal framework for the protection of their
rights with respect to the natural resources on their lands, including the
ability to use, manage, and conserve such resources; and with respect to
traditional uses of their lands, interests in lands, and resources, such as
subsistence.
5. In the event that
ownership of the minerals or resources of the subsoil pertains to the state
or 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 planning, prospecting or exploiting existing
resources on their lands. The peoples concerned shall participate in the
benefits of such activities, and shall receive compensation, on a basis not
less favorable than the standard of international law for any loss which
they may sustain as a result of such activities.
6. Unless exceptional
and justified circumstances so warrant in the public interest, the states
shall not transfer or relocate indigenous peoples without the free, genuine,
public and informed consent of those peoples, but in all cases with prior
compensation 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.
7. 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 when restitution is not
possible, the right to compensation on a basis not less favorable than the
standard of international law.
8. The states shall
take all measures, including the use of law enforcement mechanisms, to
avert, prevent and punish, if applicable, any intrusion or use of those
lands by unauthorized persons to take possession or make use of them. The
states shall give maximum priority to the demarcation and recognition of
properties and areas of indigenous use.
Article XIX. Workers rights
1. Indigenous peoples
shall have the right to full enjoyment of the rights and guarantees
recognized under international labor law and domestic labor law; they shall
also have the right to special measures to correct, redress and prevent the
discrimination to which they have historically been subject.
2. To the extent that
they are not effectively protected by laws applicable to workers in general,
the states shall take such special measures as may be necessary to:
a. effectively protect
the workers and employees who are members of indigenous communities in
respect of fair and equal hiring and terms of employment;
b. to improve the
labor inspection and enforcement service in regions, companies or paid
activities involving indigenous workers or employees;
c. ensure that indigenous workers:
i) enjoy equal
opportunity and treatment as regards all conditions of employment, job
promotion and advancement; and other conditions as stipulated under
international law;
ii) enjoy the right to
association and freedom for all lawful trade union activities, and the right
to conclude collective agreements with employers or employers'
organizations;
iii) are not subjected
to racial, sexual or other forms of harassment;
iv) 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;
v) are not subjected
to working conditions that endanger their health and safety;
vi) receive special
protection when they serve as seasonal, casual or migrant workers 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
established international human rights standards in respect of this type of
workers, and,
vii) as well as their
employers are made fully aware of the rights of indigenous workers, under
such national legislation and international standards, and of the recourses
available to them in order to protect those rights.
Article XX. Intellectual property
rights
1. Indigenous peoples
have the right to the recognition and the full ownership, control and
protection of their cultural, artistic, spiritual, technological and
scientific heritage, and legal protection for their intellectual property
through trademarks, patents, copyright and other such procedures as
established under domestic law; as well as to special measures to ensure
them legal status and institutional capacity to develop, use, share, market
and bequeath that heritage to future generations.
2. Indigenous peoples
have the right to control, develop and protect their sciencies and
technologies, including their human and genetic resources in general, seed,
medicine, knowledge of plant and animal life, original designs and
procedure.
3. The states shall
take appropriate measures to ensure participation of the indigenous peoples
in the determination of the conditions for the utilization, both public and
private, of the rights listed in the previous paragraphs 1. and 2.
Article XXI. Right to development
1. 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 where 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 distinct societies, to national
development and international cooperation.
2. Unless exceptional
circumstances so warrant in the public interest, the states shall take
necessary measures to ensure that decisions regarding any plan, program or
proposal affecting the rights or living conditions of indigenous peoples 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 those peoples is
adopted.
3. Indigenous peoples
have the right to restitution or compensation no less favorable than the
standards of international law, for any loss which, despite the foregoing
precautions, the execution of those plans or proposals may have caused them;
and measures taken to mitigate adverse environmental, economic, social,
cultural or spiritual impact.
SECTION SIX. GENERAL PROVISIONS
Article XXII. Treaties, Acts,
agreements and constructive arrangements
Indigenous peoples have the right
to the recognition, observance and enforcement of treaties, agreements and
constructive arrangements, that may have been concluded with states or their
successors, as well as historical Acts in that respect, according to their
spirit and intent, and to have states honor and respect such treaties,
agreements and constructive arrangements as well as the rights emanating
from those historical instruments. Conflicts and disputes which cannot
otherwise be settled should be submitted to competent bodies.
Article XXIII.
Nothing in this instrument shall be
construed as diminishing or extinguishing existing or future rights
indigenous peoples may have or acquire.
Article XXIV.
The rights recognized herein
constitute the minimum standards for the survival, dignity and well-being of
the indigenous peoples of the Americas.
Article XXV.
Nothing in this instrument shall be
construed as granting any rights to ignore boundaries between states.
Article XXVI.
Nothing in this Declaration may be
construed as permitting any activity contrary to the purposes and principles
of the OAS, including sovereign equality, territorial integrity and
political independence of states.
Article XXVII. Implementation
The Organization of American States
and its organs, organisms and entities, in particular the Inter-American
Indian Institute, the Inter-American Commission of Human Rights shall
promote respect for and full application of the provisions in this
Declaration.
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