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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
because of distance or because of friction between the national
authorities and the indigenous people.
Colombia believes that
the proposed instrument should specifically state that the law applied
should be informed by the uses and customs of the community, which means
that special tribunals are needed.
Mexico believes that
means must be provided to enable indigenous populations to understand the
law linguistically and when legal proceedings are involved interpreting
services should be available to whomever requires them.
Mexico also argues that
the legal system must recognize the pluralistic nature of society,
guaranteeing the rights of indigenous populations and ensuring that
indigenous persons will have effective access to the courts, with no
discrimination of any kind.
For Chile, this principle must be reinforced in the specific case of
indigenous populations since where they are concerned, formal equality
before the law does not necessarily translate into real equality.
Canada maintains that
"equality" does not necessarily mean that no differences are
permitted. It argues that it
is not discrimination if the differences in treatment have a legitimate
purpose or when the classification is based on substantial factual
differences. It notes that
Article 8.2 of the American Convention on Human Rights concerns criminal
proceedings; ILO Convention 169, on the other hand, also provides for
measures that must be taken to ensure that an indigenous person is able to
understand and to be understood in legal proceedings where interpreting
services are needed.
The indigenous organizations in general replied that the new
instrument should state that indigenous people have a right to protection
under the law, but must also recognize their differences in respect to
uses, customs and customary law. Therefore,
special courts should be created to hear cases to which indigenous persons
are party. Several indigenous organizations add that States must
guarantee the right to equality and to equal protection under the law,
allowing indigenous populations to exercise their rights just as the
general citizenry is allowed to exercise its rights. 21.
The right to a simple, effective and swift recourse when rights are
violated
Colombia is of the
opinion that while the American Convention covers this right in general,
because indigenous people often live far away from centers of government
the new instrument should guarantee that recourse shall be immediate and
always available.
Peru suggests that the
new instrument might make provision for establishing procedures to settle
any disputes that may arise in applying the principle of respect for and
preservation of the communities' own customs and institutions that are
legally compatible with the national or international principles.
Chile, on the other
hand, contends that no new procedural remedy need be created to protect
the rights of indigenous people.
Canada believes that
this may have particular importance to indigenous people and would
therefore be in favor of including it in the proposed instrument.
In general, the indigenous organizations maintain that the
instrument must recognize this right in order to avoid acts that violate
the fundamental rights of the indigenous people; they are in favor of a
special law in each country to guarantee a swift and simple recourse,
first applying the constitutional principles
in respect of all individual rights and freedoms and then the
special substantive laws. The culture of the indigenous people must be respected at all
times.
One of these indigenous organizations, the Inter-American
Commission of Indigenous Jurists, maintains that in their procedural laws
States must guarantee the administration of justice based on indigenous
law whenever pertinent, and use local persons designated by the indigenous
tribes and peoples to administer justice; the decisions of local
`magistrates' can be appealed with the municipal, state or federal
ordinary courts. When the rights of the indigenous populations have
clearly been violated and
once appeals all the way to the Supreme Court have been exhausted, a case
can be filed with the Inter-American Court of Human Rights by means of a
simple petition stating the facts about the previous proceedings so that
the appropriate inquiries can be made.
22.
Economic, social and cultural rights in general
Several countries said that while there are international
instruments -especially ILO Convention 169- that address these issues,
some aspects should be included in the proposed instrument, such as those
summarized below.
Work and satisfactory working conditions
Peru believes that, with
their own organizations cooperating, indigenous workers should, by law, be
accorded certain guarantees to ensure that national laws on hiring
practices and employment contracts are enforced and that affirmative
action will be taken to avoid de facto discrimination.
The indigenous workers' right of association must also be
respected, so that they may engage freely in any lawful union activities;
their right to enter into collective contracts must also be respected.
Guatemala points up the need for similar legislation.
Colombia reiterates the
pertinent provisions of ILO Convention 169.
Canada contends that
some specific reference may be made to the right of indigenous people to
practice their traditional occupations in pursuit them of their
traditional lifestyles. Some
reference should be made to just, equitable and satisfactory working
conditions and to respecting the right to organize for business purposes.
These rights apply with equal force to the rest of the population.
The indigenous organizations agree that communal labor must
be respected, as must the practice of traditional occupations.
The proposed instrument must recognize the right of workers to
organize themselves -according to their customs- to defend their rights.
It must also ensure indigenous women the same right to work and a
fair wage. The instrument
must guarantee that employers will fulfill all their obligations; the
indigenous people's own vision of the cosmos must be respected here.
Social security
Costa Rica, Peru,
Guatemala and Canada
believe that the proposed instrument should provide that social security
must be gradually extended to indigenous populations, with no
discrimination of any kind. Costa Rica underscores the importance of guaranteeing the social and
legal security of the indigenous populations.
Health
Canada, Costa
Rica, Colombia and Peru
highlight community health services and the importance of combining
traditional and modern medicine to reinforce each other.
Peru notes that it is
the duty of governments to safeguard the health of the people.
Governments must make certain that adequate health services are
made available to the interested peoples or provide them with the means to
organize and deliver those services on their own, the goal being to enable
those peoples to enjoy the maximum possible level of physical and mental
well-being. It argues that insofar as possible, health services should be
organized at the community level. These services should be planned and administered in
cooperation with the interested peoples and take account of their
economic, geographic, social and cultural circumstances and traditional
preventive treatments, cures and medications.
Where training and employment are concerned, the health care system
should give preference to community health care personnel and focus on
primary health care, while maintaining a close association with other
levels of health care.
Costa Rica proposes some
guidelines for improving indigenous health programs by building health
posts, inter-institutional arrangements involving medical rounds or rural
health outreach workers to avoid duplication of functions, focusing the
common effort on a specific target; expanding coverage of rural health
care programs and visits to conduct environmental sanitation activities:
health, hygiene, nutrition, food and drinking water for indigenous
persons living in remote areas, and in-depth studies of malnutrition,
mortality and morbidity.
Colombia believes that
the instrument should make express reference to appreciation of and
respect for traditional remedial practices and to how these should be
articulated and combined with western treatment methods to provide the
most complete health care possible, especially since the communities are
being exposed to new diseases that they do not have the knowledge to
handle.
In general, the indigenous organizations believe that
respect for the practice of preventive and remedial medicine, using the
traditional medications and methods of the community and culture must be
guaranteed. The proposed
instrument should stipulate that government health programs are to be
responsive to the indigenous populations' own priorities where health is
concerned.
Healthy environment
Colombia notes that the
instrument should mention respect for a healthy environment, guaranteed by
mechanisms readily available to the indigenous populations and which the
competent authorities can use to correct problems quickly. It maintains
that this issue ties in closely with that of land tenure and the right to
work and pass along ancestral lands.
Chile adds that this
right should be included in the instrument because when polluting
facilities are put into operation, the lives and health of indigenous
communities are imperiled. These
communities do not have the same means that other private citizens enjoy
to assert their rights. Given
the relationship between indigenous man and nature, this type of abusive
exploitation of natural resources is detrimental to these communities'
normal development.
Canada believes the
proposed instrument should recognize the right of the indigenous person
and his/her community to a healthy environment.
The indigenous organizations agree that the new instrument
should recognize indigenous populations as one of the sectors most
interested in and concerned with the rational use of natural resources and
preservation of the natural habitat in general; therefore, indiscriminate
deforestation, pollution of rivers and other spaces and the extinction of
wildlife must be regarded as violations
of the human rights of indigenous populations.
The instrument should list specific obligations in respect of
nature as man's habitat and penalize their violation.
Education
Some countries have responded to this point in their answers about
children's rights and the right to preserve and develop one's culture,
including language. Costa
Rica regards this as one of the most important points that the future
instrument should target. It believes that education should be interpreted in the
broadest possible sense (civic, political, social, etc.). Canada believes
that the indigenous population should have the same right to education as
the rest of the population and access to education in indigenous tongues.
It also believes that education should be reflective of indigenous
culture and traditions.
A number of indigenous organizations contend that the
history of the indigenous populations and their present circumstance
should be taught, without the distortions and misrepresentation that bring
about prejudice; the content and methods should be tailored to the regions
inhabited by the indigenous populations and their customs.
Any punishment for using one's own language should be avoided at
all costs, and special care must be taken to make allowance for the
demands posed by the indigenous economy and culture.
Protection of the elderly
Given the prominent place that the elderly have in indigenous
cultures, Peru believes their
rights and benefits must be guaranteed as much as those of the rest of the
population, and be realized through special programs for the elderly.
The benefits of culture
Chile believes this
right must be included, since respect for a people's culture and its right
to participate in it are principles that inform many other provisions.
Canada also believes this right must be mentioned specifically,
given the suppression of indigenous cultures in the past.
Diet and food
Canada believes this
right must be afforded in a way that does not interfere with the
indigenous people's right to practice their traditional lifestyle.
The indigenous organizations in general contend that the
right to food should not be applied in a way that would infringe upon the
rights of indigenous people to practice their own way of life.
Means of protecting the economic, social and cultural rights
Chile maintains that
what was said concerning special procedural rules would apply here as
well.
Canada, on the other
hand, believes that specific references must be made to ensure that the
rights of the indigenous people are respected.
The indigenous organizations agree that under the new
instrument, States must agree to protect indigenous populations because
they have for so long been socially excluded; their methods of production
and lifestyles must be respected, as must their beliefs and faith;
national and international financial institutions should provide direct
assistance to indigenous communities, ever mindful of the indigenous
populations' idiosyncrasies. 23.
Correlation between duties and rights and the limitations of a
democratic society
Peru, Colombia
and Mexico mention the reciprocity of rights and duties as a relevant
consideration for the instrument; in other words, having one's individual
rights observed carries with it the obligation to respect the rights of
others.
Peru notes that the
institutions of indigenous populations and their decisions, like those of
States, must honor internationally accepted collective and individual
human rights. Accordingly,
any cruel or degrading punishment or treatment that traditional systems of
justice still practice must be outlawed.
Colombia is of the view
that to accord specific rights to indigenous populations based on the fact
that they are a unique minority that has had to contend with various kinds
of limitations, means that they, too, must accord that same rights to
other groups or individuals. This
reciprocity of rights and duties becomes particularly significant in
countries with a wide ethnic diversity.
Colombia also mentions
the fact that certain legal exemptions to duties incumbent upon the rest
of society, such as taxes or military service, cannot be regarded as
detrimental to the general interest.
Chile, for its part,
believes that some consideration must be given to the cultural differences
that make it more difficult for indigenous populations to discharge the
duties that reciprocity entails.
Canada notes that some
reference to this could be made when the special needs of indigenous
populations are considered.
The indigenous organizations agree that the reciprocity of
rights and duties must obtain not only between the State and the
indigenous community, but also from one indigenous community to the other,
given each people's cultural values. Any paternalistic and ethnocidal concept that would argue the
contrary in respect of the indigenous populations' freedom to grow must be
rejected.
24.
Right to a fair trial
Chile believes that this
right must be included and that indigenous populations must be assured
access to justice through mechanisms and procedures that are tailored to
their specific needs and culture. The
new instrument should stipulate that the national laws must establish a
procedure that indigenous persons can avail themselves of.
Canada believes that a
new instrument might refer to measures to provide for understanding of the
procedures, and a consideration of customary practices might be included
in a new instrument on indigenous rights.
Peru is of the view that
the legal proceedings must be acceptable to both parties.
Any legal proceeding that does not have the consent of the
indigenous nations or groups should be stopped and a new proceeding -one
consistent with the new instrument- instituted.
Guatemala mentions that
because these guarantees are already recognized in other international
instruments, they need not be duplicated in the proposed instrument.
Colombia notes that
judges and courts must be acquainted with the customs of the indigenous
populations so that they have the information needed to ensure that
justice is done when the accused is an indigenous person.
The indigenous organizations believe that the proposed
instrument should make express reference to this right.
They maintain that indigenous populations must have special courts
of their own to ensure that justice is administered in accordance with the
laws of the State and the ancestral customs and practices of the
indigenous populations; when one of the parties in a case is an indigenous
person, the courts should use his/her language.
Where that party is concerned, the customary law of his/her
respective community should be applied.
Accordingly, there must be a well documented report on the culture
and an expert in anthropology should participate.
The indigenous organizations also believe that the individual and
family rights of indigenous prisoners must be protected.
They point out that the confinement of an individual who is a
member of an ethnic group must be under circumstances that do not
constitute an abrupt departure from his/her natural lifestyle, though the
punitive nature of the confinement should be preserved. RESPONSES CONCERNING COLLECTIVE RIGHTS[2]
25.
General observations
Colombia, Guatemala,
Mexico, Panama and Saint Lucia have some general observations on
collective rights. Colombia points out that the political, economic, social and
cultural rights upheld in its Constitution emanate from an appreciation of
the value of what ethnic peoples bring to the national identity.
Guatemala states that
though the economic and political rights are the same as those enjoyed by
all inhabitants of the country, the social and cultural rights warrant
special treatment. Saint Lucia says that its indigenous people have no special traits
that would distinguish them from the rest of society so that their rights
as a group need not be defined.
Panama contends that the indigenous populations' most
important demands fall under the heading of collective rights, which must
be expressly guaranteed. They
must be classified as collective rights and mechanisms must be established
to enable the indigenous populations to invoke the new legal instrument.
Consequently, it is vital that the OAS establish the guidelines for
guaranteeing collective rights in the Americas.
Mexico maintains that
the instrument on the rights of indigenous populations should recognize
only those rights whose full meaning is realized only in collective life.
The individual rights of the members of those communities must not
be subordinate to the collective rights.
It contends that the rights recognized in the American Declaration
and the Pact of San Jose protect all individuals, without distinction, and
together constitute an established framework whose legal effect must be
reaffirmed.
Mexico states that the
20 points raised in this section represent the indigenous populations'
historical demands that have to some extent materialized in the form of
norms in positive law and national legal systems.
The 20 points represent the indigenous populations most pressing
needs. Once this first survey
is conducted, the 20 points are to be combined in a regional instrument,
representing the economic, political and social rights of indigenous
populations.
Mexico states that
Convention 169 of the International Labour Organisation would also have to
be considered. The view is
that as part of the International Year of the Indigenous Peoples of the
World (1993), the member states of the OAS could issue a declaration
affirming the region's commitment to upholding the rights of indigenous
populations in the hemisphere. Proposals
can also be examined, such as the one introduced at the "Amer-India
92" meeting, for creating regional mechanisms to safeguard and defend
the rights of indigenous populations.
The indigenous organizations in general indicate that the
collective human rights of the indigenous population are essential if they
are to enjoy their individual human rights to the fullest.
However, if the rights are not spelled out in sufficient detail,
there will be no way to ascertain the natural rights of the indigenous
populations. Correspondingly,
they are of the opinion that the collective rights of the indigenous
populations must take precedence over the individual rights of their
members. They also believe
that some thought should be given to the States' undertaking international
obligations more rigorous than those contemplated in other international
instruments vis-a-vis the peoples in their territories.
They point out that the instrument must emphasize that collective
rights are not incompatible with individual rights; instead, they are
mutually reinforcing. They
also believe that effective respect for human rights and the rights of
indigenous populations calls for a proper instrument accepted by all the
States and intended to safeguard those rights and penalize their
violation.
Both intergovernmental organizations noted that the rights
in this section should be recognized.
26.
The right to peaceful coexistence in national society
The countries answered the question on this issue by pointing to
the existence of multi-cultural societies and the right that the cultures
in such societies have to survive and flourish.
Mexico points out that
its Constitution establishes that it is a multi-cultural nation and
affirms the indigenous populations' right to their own cultural life and
to protection and promotion of their languages, customs and own forms of
social organization from whence come many of the distinctive features of
their identity.
Peru points out that the
instrument should uphold the collective right to exist and to be protected
against genocide, and express reference should be made to the rights to
life, to humane treatment, to personal liberty and the security of one's
person; that indigenous populations consist of nations and peoples that
are collective entities with the right of self- determination, and that
every indigenous people has the right to decide the shape, structure and
authority of its institutions, based on equality and nondiscrimination.
Peru asserts that
ethnodevelopment is the inalienable right of indigenous groups.
It means that the diverse cultural milieux can expand and survive
by strengthening a culturally diverse society's ability to make decisions
that steer its development and exercise its right to self-determination,
regardless of the level. It implies an equitable power structure, which in
turn means that an ethnic group is a political-administrative unit with
authority over its own territory and able to make decisions on issues
relevant to its development, as part of a process of growing autonomy and
self-management.
Colombia states that a
worthwhile precedent at the international level are articles 26, 27, 28
and 29 of ILO Convention 169. It
cites the clause of its Constitution where this right is established:
Article 7. The State recognizes and protects the ethnic and cultural
diversity of the Nation.
Article 68. Paragraph
5. Members of ethnic groups shall be entitled to an education
that respects and develops their cultural identity.
Colombia believes that a
specific provision on this right is very much needed, especially given the
forced assimilation efforts that indigenous communities have sometimes
been compelled to undergo.
One precedent would be Article 3, paragraph 2 of ILO Convention 169
(1989) and the reference made in Article 31 to the role of education in
making every community tolerant.
In a reference to land rights as they pertain to peaceful
coexistence, Costa Rica asserts
that the reservation should not isolate indigenous populations.
Instead, with the peace that is gained by definitively
acknowledging their tenure of the land, they are being given a real
opportunity for self-development.
Chile believes that this
type of right must be mentioned. It argues that racism is still present among large sectors of
the community; because of it indigenous persons are regarded as
second-class citizens. Their
rights are violated and their way of life attacked.
Canada believes that
this right must be strongly supported in the proposed instrument.
Given the historical experience of indigenous people, particular
reference might be made to the prohibition of genocide,
as defined by the United Nations.
The indigenous organizations agree that States must
recognize the existence of the indigenous populations and tribes, with all
attendant rights and obligations. This
in itself would do much to contribute to peaceful coexistence between
indigenous populations and the other inhabitants of the State.
The States have an obligation, and private citizens a duty, to
respect this coexistence. The
guarantees that a State ensures should also include one ethnic group's
mutual acceptance, tolerance and respect of the other.
27.
Right to have differences accepted
Costa Rica, Guatemala,
Mexico and Peru believe that this issue should be included.
Venezuela, on the other
hand, does not consider it acceptable inasmuch as it does not have a
corollary in the national legal system.
Mexico states that the
instrument should also provide for the right to cultural diversity and to
one's own language; it also believes the proposed instrument should uphold
the indigenous populations' right to participate actively in community
life, according to their specific forms of social organization, without
creating a special law code for indigenous populations.
Peru notes that this
right is protected under the broad language of Article 11 of the American
Convention. Nevertheless, it
still believes that the new instrument should specifically mention that
customs are to be respected and that judges shall take them into account
when ruling on violations of those legal rights.
Chile is of the view
that the instrument must recognize that the populations of the countries
of this region are multi-ethnic and pluri-cultural.
Canada believes that the
wording of the question is unclear and that mutual acceptance, peace and
tolerance could be subsumed under the notion of peaceful coexistence.
The indigenous organizations in general maintain that States
must recognize that their people are pluri-national and pluri-cultural in
nature by recognizing that each indigenous people in their respective
territories has a national and cultural identity of its own.
They should regard them as subjects in law within the society as a
whole, and guarantee that indigenous populations will never again be the
victim of genocide or ethnocide.
Both intergovernmental organizations are of the view that every
indigenous people has the right to be recognized as a culturally and
socially distinct people. 28.
The right to participate, as a people, in the governance of their
affairs
The countries that replied to the Commission's survey all agree
that this right should be upheld. However,
their ideas as to its scope and the form it should take vary.
Venezuela asserts that
all citizens can take part in national politics.
Costa Rica believes that
the answer to indigenous problems should be in their hands; hence, the
instrument should establish this right.
While Guatemala believes the instrument should recognize this right, it
should do so with a proviso to the effect that this participation must be
within the political-administrative framework established under each
country's constitution. Because
of the type of political-administrative organization Guatemala
has (departments, municipalities, cities, towns, villages, hamlets), this
particular right is not relevant.
Mexico believes that the
instrument should establish the indigenous populations' right to govern
their own affairs and to have their own authorities and institutions to
represent them. It argues
that the instrument must recognize the right of indigenous populations to
govern their social affairs by their own rules, insofar as possible.
Peru notes that the
ethnic group is a political administrative unit with authority over its
own territory; these peoples' systems of internal organization are part of
their culture and legal system, have held them together and helped
preserve their sociocultural tradition. It believes that when Article 15
is applied, the following should be the objective: a.
Enlist the cooperation of these peoples and their representatives; b. Give these peoples every
opportunity to realize their initiatives to the fullest; c. Foster, by every means possible
among those populations, civic freedoms and the establishment of elective
institutions or participation in such institutions.
Peru also contends that
indigenous nations and peoples that want to confine themselves to the
exercise of internal self-determination should be free to do so.
The rights to free self-determination should include (though not be
limited to) the following: a.
the right to control their own economy; b. the right to pursue freely an
economic, social and cultural development that is commensurate with their
traditional customs and social practices; c.
the right to maintain relations and trade abroad if they so desire;
d. the right to restore and practice
their cultures, languages, traditions and lifestyles and to educate their
children in them; e. the right to ownership of the
land as the indigenous populations' territorial base.
It argues that these are peoples with the right to
self-determination; in other words, on their own lands they are free to
enjoy however much autonomous government they choose to have; they have
the right to move about freely and reside there, without prejudice to the
rights that the law accords to the other inhabitants.
Peru also states that
every indigenous people has the right to decide the type, structure and
authority of its institutions. These
decisions, customs and practices of the indigenous populations will be
recognized by national and international law, on the basis of equality and
nondiscrimination. When an indigenous people exercises its right of
self-determination within one or more States and that State or States has
some jurisdiction over the indigenous people or over the individuals who
belong to that indigenous people: a.
The persons who belong to the indigenous people have the right to
participate in the political life of the State or States, in the same way
as citizens of that State or States; b.
The indigenous people has the right to be represented in the
legislative, executive and judicial branches of government and in the
civil service. The State has
the obligation to promote that participation actively; c.
The indigenous people should have a national organization or
organizations, chosen and structured by them, independently of the organs
of the State. In cases where
the indigenous people are poor or scattered over a wide geographic area
and hence unable to create that organization or organizations, the State
should provide them with funds to establish and maintain such an
organization or organizations.
Quoting from the relevant articles of its Constitution, Colombia
states that the instrument should contain a specific clause recognizing
indigenous populations and their members as persons before the law since
by so doing it is guaranteeing that they will be able to take direct
action to defend their interests vis-a-vis the State and other
social sectors.
Colombia explains that
this ties in closely with the possibility of concluding treaties and other
types of agreement between the State and the indigenous populations, a
matter raised in points 18 and 20 of the second part of the questionnaire.
If legal status is not recognized, it is because these peoples are
not regarded as valid interlocutors or cannot lawfully undertake
commitments. Their chance to
participate in decisions on matters that either directly or indirectly
affect them is at stake.
Colombia also contends
that recognition is based on the freedom of these groups to decide their
own development style, according to their needs and traditions.
Recognition as persons before the law should mean that these groups
are able to make known their priorities to State and non-State sectors
when decisions that will affect them are to be made.
Colombia believes that
the language of Article 23 of the Convention is all-inclusive.
However, because indigenous populations are more vulnerable, there
should be some provision to adopt mechanisms to protect and guarantee the
exercise of this set of rights, a concrete manifestation of these peoples'
autonomy.
Canada asserts that
indigenous populations should be consulted on decisions which affect them
directly; they should be allowed to govern themselves in the sense of
deciding what their priorities are and controlling their own development
as much as possible.
The indigenous organizations believe that the right to self
determination is essential to the future of indigenous populations, and
should be reinforced at the regional and communal levels.
They also contend that indigenous populations have the right to
organize themselves politically; this means creating their own national
organizations that will guarantee, by means of legal instruments and the
people's representation, their presence on the national and international
scenes along with similar organizations with the same economic, political
and social conditions; they also have the right to participate in national
elections and not just in the decisions that affect them.
They should express their own thoughts and needs.
The indigenous organizations also point out that a State must
legally recognize the indigenous organization and its political, social,
cultural and economic institutions.
The intergovernmental organizations note that indigenous
populations should have a right to share decision-making power and
participate in approving, rejecting or amending any decision that may
affect them. 29.
Right to have their characteristics reflected in public
institutions
Guatemala maintains that
while this right should be included, it should apply only to those public
institutions that have direct contact with indigenous communities, operate
therein or are integrated with them.
An across-the-board provision on this issue would necessitate a
radical restructuring of State institutions in the countries of the
hemisphere, making it difficult for the States to sign the legal
instrument.
Venezuela reports that in keeping with its Constitution,
legislation has already been enacted that creates the institutions and
provides the laws considered necessary in this regard.
Venezuela believes that the characteristics and needs of indigenous
populations should be reflected in the machinery of the State by
establishing institutions charged with defending the indigenous
populations in each country.
Colombia believes that
the instrument should make reference to the fact that indigenous community
has its own idea of family, which is created, organized and dissolved
according to each group's customs. For
example, the age at which one can marry may not be a factor at all or may
vary from one group to the next.
Another issue related to point 4 under Section Two of this
questionnaire (how or whether the traits of the indigenous populations are
reflected in public institutions) is the fact that agencies in charge of
programs for the family and the child must conduct programs that ensure an
indigenous people's next generation and thus its survival as an autonomous
social group, and that create the conditions that put them in a balanced
relationship with the environment.
Chile, for its part,
maintains that the agencies that in some way concern themselves with
indigenous affairs should be careful to preserve certain features of
democracy and organized indigenous participation.
Canada points out that
particular rights, which are required for the distinctive characteristics
of indigenous people to be reflected in public institutions, are not
readily identifiable at the present time, particularly when there are many
indigenous groups. As an
example one might cite the ability to organize and express their views.
In general, the indigenous organizations believe that the
new instrument must provide for an arrangement whereby both the State and
the organizations representing the indigenous populations participate in
these institutions; the State should permit and encourage indigenous
persons to participate, and thus bring all their special qualities to the
nature of these public institutions. 30.
Right to preserve and develop their traditional economic
structures, institutions and lifestyles
Colombia believes that
an objective assessment must be made of the unremunerated collective labor
practices that many groups have and that serve to pull the group together.
The new instrument must prevent violation of this right: outside
these communities, certain activities may disregard, demean, misrepresent
or adversely affect their way of life by projecting negative images or
voicing opinions that are disrespectful of their unique character.
Chile believes that
these rights should be included, which have been overtaken somewhat by the
concepts of "development" and "modern living".
Canada maintains that if
traditional institutions, lifestyles and economies can be an option, then
development must also be an option that enables indigenous communities to
participate in the broader society to the extent they deem appropriate,
and to receive the benefits
of that participation.
Peru believes that no
indigenous people should be the target of actions that could lead to their
physical, cultural or political destruction. Like the rest of humanity, they have the right to life and to
live free of any form of oppression, discrimination and aggression.
Peru adds that
indigenous populations should be allowed free and equal participation in
the country's economic, social and political development.
Guatemala agrees that
this right should be included in the instrument.
As to preserving the lifestyle, Costa
Rica points out that when designing housing for indigenous
communities, for example, the new houses should be built with modern
materials but preserve each community's traditional architecture.
It again notes that indigenous populations must be the ones to
decide how to resolve their problems; new lifestyles that involve a
radical and inappropriate departure from their traditional way of life or
attempted assimilation cannot be forced upon them.
The values, culture, beliefs, etc. of the indigenous communities
must be respected when promoting their development.
In general, the indigenous organizations maintain that the
State must help preserve and develop their traditional economic
structures, their institutions and their lifestyles because they are
inherent parts of their culture. To do anything else would be a violation of their human
rights.
31.
Right to their own economic development
Chile maintains that
some reference should be made to developing the indigenous populations'
prospects, understood as the corollary to sustainable development and the
opposite of degradation of natural resources.
On another note, Canada believes that indigenous people have a right to autonomous
economic development on their own lands, and decisions on autonomous
development should aim for community's self-sufficiency and not involve
continuous financial support from other governments. It adds that indigenous people must be given the opportunity
to pursue their traditional economy.
Guatemala believes this
right must be included.
For their part, the indigenous organizations agree that
indigenous populations have a right to autonomous economic development; to
that end, the State and the appropriate agencies must provide economic
support in the form of financing for social, economic and productive
projects and must help open up national and international markets for the
products produced by indigenous populations. 32.
Right to control and manage any development plans and projects
being conducted on their own territory.
Chile believes this
should be one form of social participation.
The State's administrative organs would hear the views of the
indigenous people before making decisions on any plans, programs and
projects that will have some effect or bearing on issues that concern
them.
Canada believes that
this should be phrased as an objective, and not as a right to control
those public services.
Guatemala maintains that
even though it does not have territories set aside for its indigenous
population, it can still discuss community-targeted development plans.
The indigenous populations should participate in designing and
managing those plans.
In general the indigenous organizations contend that
indigenous populations have sufficient wherewithal to manage and control
development plans and the delivery of public services on their
territories. Some also
contend that the only thing needed is to teach the members of the group
the techniques that the development plan approved for each zone or region
calls for.
The intergovernmental organizations are of the view that the
indigenous populations should have the right to autonomy vis-a-vis
their internal affairs and to control and manage their territories,
observing national federal statutes.
They add that this means having their own authorities and
traditional systems of local and even ethnic government, ethnic being
understood as a group of discrete communities with the same roots.
Those authorities and systems are not to outrank State authorities
and institutions at the same level.
33.
Rights relative to their own cultural development
Guatemala believes that
these rights should be mentioned in the instrument.
Colombia maintains that
the instrument must mention the preservation, development and
dissemination of the indigenous populations' science, culture and art.
It adds that indigenous populations must be given an opportunity to
express their feelings and solve their problems according to their own
belief systems. This is an
essential part of the identity and development of the group as a whole and
each member individually.
Chile maintains that the
instrument should include provisions to preserve the archeological,
historic and cultural heritage of indigenous populations.
It adds that indigenous languages should be given the same official
status that Spanish enjoys and that the national system of education
should have a unit that enables students to learn and appreciate
indigenous cultures. Chile
also believes that the inviolability of cemeteries and other sacred sites
must be guaranteed and crafts, jewelry, books, manuscripts and other
objects that have historical significance for the indigenous populations
must not be allowed to leave the national territory.
Canada notes that the
United Nations Working Group on Indigenous Populations has identified
several aspects here, such as restitution of property taken without their
consent, the right to relive and practice their own cultural identity and
traditions, the right to maintain, develop and protect manifestations of
their cultures, such as archeological and historical sites, artifacts,
designs, ceremonies, technology and works of art.
Peru mentions that the
indigenous populations' experiences, knowledge and achievements in the
cultural, social, political, judicial, scientific and technological realms
are a vital part of their heritage. They
should therefore have the right to enjoy, disseminate and transmit that
heritage, without this impairing their right to partake in mankind's
cultural heritage.
Costa Rica believes that
safeguards must be taken to ensure that any existing or future legal
provision to protect the indigenous cultural heritage is observed, in
cooperation with the institutions so charged.
The indigenous organizations in general maintain that
through the corresponding institutions, States must guarantee and protect
the cultural assets of the indigenous populations.
States must also ensure that the commercial exploitation of
indigenous crafts and arts is fair and equitable.
They specifically mention that indiscriminate exploitation of that
heritage by non-indigenous middlemen and the States' failure to protect
against such exploitation via proper legal means must be regarded as
violations of the indigenous populations' human rights. 34.
Rights relative to their religious beliefs and practices
Chile is of the view
that this point should be included in the new instrument.
Canada maintains that an
indigenous people must be allowed to practice its religion.
Peru, for its part,
maintains that all indigenous populations have the right to exercise their
religious or spiritual beliefs freely, including the right to express
those beliefs through instruction, practice, worship and observance.
If to exercise their religious beliefs freely they must have access
to lands and natural formations, then no State may adopt measures that
threaten, either directly or indirectly, the existence of or access to
those lands. Peru
concludes by stating that no State may undertake or permit activities
whose purpose is to introduce, through missions, nonindigenous religions
among indigenous populations.
Guatemala believes that
the religious beliefs and practices of indigenous populations must be
respected; however, as to State protection against attempts at systematic
conversion, it notes that there is freedom of religion and if a religion's
rites or ceremonies are not unlawful, then the Constitution provides that
one is free to choose one's religion or worship.
Colombia notes that even
though this right has already been mentioned briefly under the section on
freedom of conscience and religion, there should be specific reference to
the fact that the State must establish mechanisms to protect indigenous
communities from outside groups that use deceit or coercion to change the
religious and spiritual convictions of those peoples.
The indigenous organizations agree that the new instrument
must emphasize the State's obligation to protect the religious and
spiritual convictions and practices of indigenous populations; there are
countless religious sects invading indigenous territories, bringing with
them divisiveness and hatred of other peoples.
The State must punish any efforts to force indigenous populations
to change their religious convictions or beliefs and attempts at
systematic conversion.
The intergovernmental organizations contend that the
indigenous populations' cultures and traditions must be respected; this is
especially true of their religious beliefs. 35.
Rights relative to establishing and controlling their educational
processes
Chile believes that this
point should be included and that some reference should be made to the
obligation of State officials to register the names and surnames as they
are given by the parents. Universities
should add the study of the history of indigenous populations to their
curricula.
Canada notes that the
Canadian Government is committed to increasing community control of
education; under the current finding, the indigenous communities have
increasingly taken on responsibility for arrangements their own education
programs, which has increased student attendance, retention rates and
performance at all levels of the education system.
Peru is of the opinion
that every indigenous nation and people has the right to raise and educate
their children in the skills, ideas, values and beliefs of the respective
communities and cultures, to establish their own institutions of learning
and have access to education in their own language.
Costa Rica believes that
education must be strengthened among indigenous populations to make them
aware of their own reality, with a view to their self-preservation.
Costa Rica also believes that those who practice professions or hold
positions in areas inhabited by indigenous people should be better
prepared. It concludes that
the education program should include instruction in one's native language
and one's customs and beliefs.
Colombia points out that
it is the right of the children of indigenous communities to have the
education they receive, either from the State or from private
institutions, respect their traditions, language and rules that protect
their culture; Colombia also
maintains that the instrument should stipulate that the instruction given
should be informed by the cultural traditions of the indigenous
populations, and should teach the students how to relate to their general
surroundings.
In general, the indigenous organizations state that every
inhabitant of a State, indigenous or not, has the right to receive a
proper education. The problem
is the language difference. They
therefore believe that education must be bilingual and ever respectful of
the cultural values of the indigenous populations. 36.
Rights relative to the indigenous family's protection and community
care and protection of children.
Chile believes that this
point requires careful examination, given the illegal traffic in infants
who are being sent abroad.
Peru maintains that the
indigenous nations and peoples must have priority jurisdiction over all
questions relating to the guardianship of children, to the caducity of
parental rights, to placement before adoption and to the adoption of
children who are members of their communities.
Venezuela argues that the State protects the family, which
is the basic unit of society.
Colombia believes that
the instrument should make some reference to the notion of family as it is
understood in indigenous communities.
Families are formed, organized and dissolved according to the each
group's cultural rules. Agencies
in charge of programs that concern families and children must develop
programs to make it easier for them to produce and reproduce as an
autonomous social group and that put them in a balanced relationship with
their milieu.
The indigenous organizations in general agree every
indigenous community must bring that society's control to bear in raising
and protecting its children and thereby ensure that the cultural values of
those indigenous populations will be preserved. 37.
Right to special measures to protect their intellectual and
artistic property
Chile believes it is
inadvisable to include this in an specific instrument, since it comes
under general law.
Guatemala points out
that the State undertakes to protect and promote artistic and cultural
expression, but questions involving the intellectual property of the
indigenous populations must be dealt with like those of the country's
other inhabitants.
Canada maintains that
though this issue could come under the national laws on the subject,
however certain elements may not be supportable, such as "voice
appropriation", which means that non-indigenous persons cannot relate
stories from the indigenous' perspective.
In cases such as this, the instrument might well include provisions
on cultural property relating to the restoration of cultural property
where feasible; the instrument should also make provision for indigenous
knowledge of the use and properties of medicinal plants.
The indigenous person's traditional knowledge of the environment
should also be protected.
Colombia believes it is
very important to include this right, because outsiders so frequently
intrude upon indigenous communities to appropriate the knowledge used to
correct those communities' development and health problems and then market
them for profit.
The indigenous organizations agree that every indigenous
people has the right to have the intellectual property, art, crafts and
other property of every member of the community protected.
Hence, music, dance and other expressions of indigenous culture
must be protected by the State. 38.
Rights relative to the use and development of their own medical
services
For Canada, the new instrument should make reference to the recognition
of the role of the community in dealing with some health issues.
In line with ILO Convention 169, reference should be made to
health services that have been planned and administered in
cooperation with the indigenous population.
Chile cautions that this
point must be studied very carefully.
Venezuela notes that the right to health protection and the
obligation to consent to the health measures established by law appear in
the Venezuelan
Constitution.
Guatemala points out
that this issue must be studied carefully, given the implications of
combining differing medical systems.
It adds that some radical adjustments will be required and care
must be taken to be sure that certain medical practices are not illegal.
Costa Rica maintains
that health centers must be established and staffed with well trained
personnel. Efforts must be
made to train people from the various areas inhabited by indigenous
persons so that they may perform these functions in the future. Health clinics and nutrition centers must be set up at
strategic locations calculated to reach as much of the local population as
possible.
In Colombia's opinion, the therapeutic and cultural value of
traditional medicine should be recognized, as should the importance of
combining it with other preventive and remedial methods.
Several indigenous organizations were of the view that the State
should encourage knowledge and development of traditional medicine among
the indigenous populations themselves, working in combination with modern
medicine to protect the health of the indigenous population. 39.
Rights relative to the internal execution and development of the
customary legal system, insofar as it is not contrary to the national
constitution
Chile believes that this
rule should be included.
Canada, on the other
hand, mentions that this point is unclear; if it is a call for the right
to develop their own internal affairs, it would need clarification.
If it calls for the right to establish a separate justice system,
there are very practical problems for a country where not all the
indigenous population lives in separate communities.
Canada is currently
involved in examining ways of accommodating indigenous customary practices
in to justice system to a greater extent.
Peru believes that these
peoples' own methods of social control and the nature of the collective
and individual problems must be considered, with a view to enabling them
to settle the less important problems and requiring States to adapt their
laws to allow certain problems to be settled by means other than the
courts. It adds that
indigenous populations must have the right to preserve their own customs
and traditions, provided they are not inconsistent with the domestic laws
or human rights; procedures must be established for settling any disputes
to which the application of this principle gives rise.
The methods customarily used by
the indigenous populations to punish crimes committed by their members
should be respected and the courts should take into consideration the
customs of those peoples to the extent that they are compatible with the
national legal system and internationally recognized human rights.
Guatemala observes that
while a recommendation to this effect is advisable, it would be difficult
to sign any document that required the State to undertake this commitment
immediately, since the task of integrating culturally different legal
systems will call for an enormous conceptual and practical effort.
Therefore, combining the indigenous communities' legal systems with
the national system will take time, as all the implications have to be
studied and a method devised.
Colombia notes that
specific provisions must be established for the members of indigenous
communities; this issue ties in closely with the issue of special courts
to hear cases wherein the defendant is an indigenous person.
It adds that the authorities of the indigenous populations should
be permitted to exercise jurisdictional authority in keeping with their
customs.
The indigenous organizations agree that the State must
recognize and guarantee the existence and practice of indigenous law, and
whenever possible the indigenous populations' customary law should be
applied to their members. The
latter should be guaranteed under the constitution.
Both intergovernmental organizations replied that indigenous
communities should be allowed to develop and practice their legal rules
and institutions, which should be made compatible with the legal system
governing the society as a whole. 40.
Rights relative to the States' respect for and observance of
treaties and other international agreements concluded with the indigenous
populations
Chile is of the view
that before including a statement concerning execution of treaties, it
must be established that an indigenous people is a subject of
international law.
Venezuela asserts
categorically that it only concludes treaties with subjects of
international law, and tacitly confirms that indigenous groups are not
regarded as such.
Canada notes that the
Canadian Constitution recognizes and affirms existing aboriginal and
treaty rights based on treaties with the indigenous populations.
Guatemala reasserts that
the State must honor the treaties it signs, irrespective of the subject.
Colombia points out that
given the recognition of the autonomy of the indigenous populations, the
State can enter into agreements
and other commitments to conduct coordinated efforts to satisfy their
needs, while respecting their culture and providing the means necessary
for it to develop properly.
In general, the indigenous organizations agree that, through
the national laws and backed by international conventions, States must
recognize the treaties and other agreements they conclude with indigenous
populations and honor them. 41.
Rights that ensure that multinational indigenous populations will
be able to preserve their ethnic ties across national borders
Chile contends that
there is no need to duplicate the provisions of ILO Convention 169.
Canada points out that
ILO Convention 169 states that governments shall take appropriate
measures, including by means of international agreements, to facilitate
contacts and cooperation between indigenous and tribal peoples across
borders, including activities in the economic, social, cultural, spiritual
and environmental fields.
Peru, for its part,
contends that here no State
may undertake activities whose purpose is to inhibit, either directly or
indirectly, the free flow of ideas among indigenous populations and
between the latter and non-indigenous populations.
Venezuela notes that it
does not recognize the existence of "multinational indigenous
populations", but rather the national indigenous citizens of each
State.
Guatemala is of the view
that rights of this type should be discussed by binational commissions
established by the States to concern themselves with border traffic of
this kind.
Colombia notes that even
though Article 20 of the Convention is broad in this regard, express
reference should be made to the fact that indigenous populations may share
the territories of several states and that their rights should be
respected inasmuch as their existence predates that of the States.
Several indigenous organizations are of the opinion that the
borders between States should be opened and indigenous people should be
allowed to cross so as to strengthen the relations between indigenous
populations.
The international organizations note that special rights
should be recognized in the case of indigenous populations because their
existence as nations predates the formation of the nation-states in which
they are located.
42.
Territorial rights
Chile reiterates the
observations it made in connection with recognition of ancestral lands.
Canada, on the other
hands, is of the view that there are two different terms that must be
distinguished: "land" refers to property that the group occupies
to the exclusion of others, in which case the indigenous groups should
have the right to make the same kinds of decisions making rights at least
an extensive as those of private landowner would; then there is the term
"territory", which refers to the properties that they
traditionally use but do not occupied to the exclusion of others, in which
case the government cannot protect indigenous territories or their
traditional forms of use; it can, however, consult with indigenous
populations in relation to their use.
Peru believes that the
lands and sacred places used for traditional ceremonies are particularly
important and must be protected, preserved and respected. They must also
be accessible to the indigenous persons, even if they are in areas settled
and used by others. It adds
that indigenous populations' access to their land and natural resources
must be guaranteed, considering the importance of the rights of the
indigenous people to those lands and their traditions and aspirations. Collective and individual property rights must be recognized.
National laws must respect the customary methods used to hand down
property rights and the right to make use of the land, insofar as those
customary methods fulfill the peoples' needs and do no thwart their
economic and social development. Measures
must also be taken to prevent outsiders from taking advantage of the
indigenous populations' customs or ignorance of the law to obtain title to
or to use the property that belongs to these indigenous communities.
Venezuela notes that the
word "territory" is not the correct word to denote areas
occupied by a State's indigenous groups; the proper word is
"land", which would refer to the property or natural resources
to which the indigenous nationals of each country have a claim.
Guatemala believes that
an indigenous community's farmlands and property and housing handed down
through generations of families should receive special State protection
and preferential credit and technical assistance to guarantee their
development, ownership and ensure a better standard of living to all
members of the community, thereby allowing the indigenous communities and
others with lands that have traditionally belonged to them and which they
have traditionally administered to preserve that system.
Costa Rica maintains
that reservations are tracts of land set aside by law for settlement by
indigenous groups. For Costa
Rica, territories defined as indigenous communities may be in any of
three situations: a.
Those with the most authentic cultural identity, which preserve
parts of their previous lifestyle and that have done less to alter their
habitat. b. Those that still preserve their
language and certain other cultural features, but have altered their
habitat somewhat and are more influenced by nonindigenous culture. c.
Those where the pressure from colonization has been greater; they
tend to be close to urban centers.
Costa Rica notes that
its Indigenous Law stipulates certain special legal characteristics which
an inter-American instrument might adopt, as follows: indigenous
reservations are the essential, inalienable, nontransferable and exclusive
right of the indigenous communities that inhabit them.
Costa Rica also states
that indigenous communities should be encouraged to preserve their
ancestral land use practices; observance of the rights of indigenous
persons in respect of individual and collective land ownership should be
monitored to stabilize land tenure.
Colombia maintains that
the issue of holding, using and crossing territory is an important one
that would have to be expressly included in the new instrument.
Specific reference would have to be made to the custom of
collective ownership/exploitation of many assets and to the fact that
indigenous populations cannot be uprooted without the proper legal cause.
The indigenous organizations in general believe that the
States must recognize and guarantee the existence of indigenous
territories in their respective countries, as juridical-political units.
They note that the State has an obligation to assign territories to
the indigenous populations and to institute laws requiring that the
members of those communities be allowed to develop their cultures in
accordance with their traditional legal practices; in other words,
according to customary law and governed by their institutions.
Some indigenous organizations add that the territories that the
indigenous populations occupy and claim must not be subject to bargain and
sale, as they constitute the very origin of these peoples' lives.
The State must adopt effective and explicit measures in their
agricultural programs to guarantee that the territory of the indigenous
people is respected.
The intergovernmental organizations point out that the
indigenous populations must have the right to own their own territory that
ensures their survival and development as a people, with all other rights
and guarantees consistent with the corresponding national laws.
43.
Right to environmental protection
Canada contends that the
role of the indigenous population in managing the resources and ecosystems
in their environment must be recognized.
Chile again makes the
point that when highly polluting industries are launched, the very lives
and health of the indigenous communities are imperiled.
The latter do not have the same guarantees as private parties to
assert their rights.
Guatemala points out
that the instrument should speak of environmental integrity and the
ecological balance of the environment in which these communities live,
which logically includes their lands and not their territories since in Guatemala's
case the indigenous communities do not have assigned territories.
Costa Rica
notes that integral development plans, programs and projects must
be implemented to improve and preserve natural resources.
It adds that sustained development and the new jobs created by the
effort to control and safeguard wild areas would raise the indigenous
people's standard of living.
Colombia maintains that
the traditional indigenous practices must be recognized, respected,
encouraged and implemented within their territories, as one means of
maintaining an ecological equilibrium, since their farming practices and
the other resources these peoples use have always been conservationist.
They are the product of generations of knowledge, built upon these
peoples' special relationship with their environment.
The indigenous organizations agree that the integrity of the
environment should be assured by educating people in how to manage and use
renewable and nonrenewable natural resources so that the ecological
balance is preserved. This is
vital, given the symbiotic relationship between indigenous populations and
the environment. 44.
Rights relative to the use of language in legal proceedings
Guatemala points out
that while this right should be included, in its own case, with so many
indigenous languages, it would be difficult to find a trained and
multilingual staff. However,
it notes, the problem could be handled by using interpreters and
translators in the various dialects and languages.
Colombia links this
point to the principle of nondiscrimination and equality before the law.
Its own laws, it points out, state that if an individual does not
speak Spanish, a translation shall be made or an interpreter provided.
Several indigenous organizations believe this is a very
serious problem that the new instrument must address.
Many judges and other court personnel do not speak the language of
the indigenous populations. Mechanisms
have to be created to obviate this problem.
Both intergovernmental organizations contend that indigenous
populations must have the right to have, use and develop their own
languages. In any
inter-ethnic encounter that concerns them, they have the right to deal in
their own language, especially in the administrative and legal areas. FUTURE
STEPS IN PREPARING THE LEGAL INSTRUMENT ON THE RIGHTS
With publication of this document in its 1992 Annual Report, the
Commission will have completed the third step in the method approved for
preparing this instrument (OEA/Ser.L/V.II.80/doc.15, rev.1).
The Commission believes that this working paper (which is truly the
first of its kind) will be invaluable in helping to draft an eventual
inter-American instrument on the human rights of the indigenous
populations.
Bearing in mind the observations of the Permanent Council, the
General Assembly, the governments and institutions
concerning this summary, the Commission's next step will be to
prepare the "Preliminary conclusions and a preliminary draft" of
the legal instrument, to be discussed and reviewed by the Commission at
its 84th session in October 1993.
Once a preliminary draft has been approved, it will be sent to the
governments and institutions for comment.
Based on the replies received, the Commission will prepare a final
draft, which it will examine at its September 1994 session and then
transmit to the General Assembly. The reader will appreciate that publication of the findings from the inquiry conducted by the Commission is an essential part of the search for "common ground" and common denominators among the members states of the OAS and the indigenous populations. This preliminary study is being published for the purpose of sharing ideas and practices established in the various countries. The Commission is not analyzing or evaluating the replies at this stage in the process. Instead, at this point its desire is to enrich the exchange of views and share information among the protagonists themselves, who in the end will determine the content of an inter-American legal instrument to clarify the human rights of these indigenous tribes and peoples. [ Table of Contents | Previous | Next ] [1]
Approved by the Inter-American Commission on Human Rights in March,
1993 at its 83rd session and published in its 1992-1993
Annual Report.
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