OEA/Ser.L/V/II.76
Doc. 10
18 September 1989
Original:  Spanish

ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS 1988-1989

CHAPTER VI

AREAS IN WHICH MEASURES NEED TO BE TAKEN TO IMPROVE THE SITUATION

OF HUMAN RIGHTS, IN ACCORDANCE WITH THE AMERICAN DECLARATION

OF THE RIGHTS AND DUTIES OF MAN AND THE AMERICAN

CONVENTION ON HUMAN RIGHTS

          This year, the thirtieth anniversary of the creation of the Inter-American Commission on Human Rights and the twentieth anniversary of the adoption of the American Convention on Human Rights, the Commission has decided, in this section of the Annual Report, where it recommends measures to be adopted to improve the situation of human rights, to briefly recount the process of codification and progressive development of international human rights law in the inter-American system.

          At the same time, recognizing that within three years the Organization of American States will formally celebrate what has been named the Fifth Centennial of the Discovery and Meeting of Two Worlds, and as a contribution to this celebration, the Commission will propose the adoption of an instrument for the defense of the human rights of indigenous peoples.

I.        THE CODIFICATION AND PROGRESSIVE DEVELOPMENT

OF INTERNATIONAL HUMAN RIGHTS LAW

IN THE INTER-AMERICAN SYSTEM

          The Commission is convinced that the norms related to the international protection of human rights drive the renovation of American international law.

          The American Convention on Human Rights or the Pact of San José, Costa Rica of 1969, is without doubt the most important instrument in this sense. Twenty-one of the Organization's thirty-one member States are parties in the Convention, and Brazil has already begun the internal procedures to become a party to said Convention.

          For this reason, the Commission hopes that the American Convention on Human Rights will soon be obligatory on the large majority, if not all, of the member States of our Organization. Consequently, it takes this opportunity to urge once again that the General Assembly recommend ratification or accession to the Convention by those States which have not yet done so.

          The above does not mean that the Pact of San José, Costa Rica, could not be subject to the modification of some of its norms in view to perfecting this instrument, especially those relating to the means of protection established twenty years ago.

          Effectively, in 1969, when the Pact of San José, Costa Rica was adopted, the world in general and our continent in particular, had little experience relative to creating international procedures for the protection of human rights. For this reason the drafters of the Pact referred to the only existing model, the European Convention on Human Rights and Fundamental Liberties, and in some cases the adaptations necessary to the reality of the Americas were not made while creating the Pact's institutions. In practice, this has given rise to many problems, as the Inter-American Court of Human Rights pointed out in its 1987 rulings on the preliminary exceptions raised by the Government of Honduras in the cases involving the forced disappearances of Velásquez Rodríguez, Fairén Garbi, Solís Corrales and Godínez Cruz.1

          Taking into account the ample experience of the Inter-American Commission and Court of Human Rights, as well as the respect accorded to these fundamental rights and liberties in our continent, it would be useful to examine the efficacy which the mechanisms and procedures established in the 1969 Convention have had in practice, and to analyze the advisability of their modification in order to assure an even more effective protection of these rights.

          On the other hand, it would also be advisable to review the substantive rights incorporated in the Convention, many of which were derived from the International Covenant of Civil and Political Rights of 1966. One important way of adding to the protection afforded in the 1969 Convention is by the adoption of additional protocols, as provided for by articles 31 and 77 of the Convention. In addition, if the Commission deems it appropriate, it may decide to completely revise the Convention, using the opportunity to incorporate new rights, both individual as well as collective, into the Convention, thereby perfecting the inter-American system for the protection of human rights.

          At this point, and without prejudice to the need to recommend the ratification of, or accession to, the Convention by those States which have yet done so, the Commission would like to draw the attention of the supreme body of the Organization to the need to initiate a dialogue in this approaching decade about the respect accorded to the rights set forth in the American Convention on Human Rights; the barriers impeding their observance; the advisability of incorporating new rights, individual as well as collective into the Convention; and the possibility of modifying the existing mechanisms and procedures in order to make them more effective in assuring an improved protection of human rights.

          In addition to the American Convention on Human Rights, other instruments now complement the inter-American system for the protection of human rights. In 1985, during the General Assembly held in Cartagena, Colombia, the Inter-American Convention to Prevent and Punish Torture was adopted by the member States of the OAS. This instrument was proposed by the Commission in 1978 and is presently in force, having been signed by 19 States of which 9 have ratified it.

          Another instrument which complements the American Convention on Human Rights is the Additional Protocol on Economic, Social, and Cultural Rights, which was adopted by the States parties to the American Convention during the 1988 General Assembly in San Salvador. The protocol derived from an initiative of the Costa Rican Government, and a draft protocol was prepared by the Commission, which after extensive negotiations in a Working Group of the Organization's Permanent Council was finally presented to the General Assembly. So far, only 14 States have signed the protocol, none have ratified it. The Commission would like to take this opportunity to call upon the States parties to the American Convention to accede to, or to ratify, as the case may be, this protocol to complement the protection afforded the civil and political rights.

          The last General Assembly, in this regard, adopted the suggestions of the Commission regarding the drafting of new instruments for the protection of human rights, such as an additional protocol to the American Convention on Human Rights concerning the abolition of the death penalty, and a Convention to prevent and punish the horrible crime of the forced disappearance of persons. The Commission is convinced that by means of the adoption of these instruments a more effective protection of human rights will be achieved and for this reason trusts that the next session of the General Assembly will take the corresponding steps toward the adoption of these two proposed instruments, if not now, then in the near future.

II.          INSTRUMENT CONCERNING RIGHTS OF INDIGENOUS PEOPLES

          As to the codification and progressive development of international human rights law, one of the areas in which the inter-American system could make an important contribution is through the drafting of a legal instrument in which the rights of the indigenous peoples of the Americas would be defined.

          The fact that 1992 makes 500 years since the arrival of the Iberian conquerors on this continent offers a singular perspective for analyzing the historical elements that have shaped the problems suffered by indigenous populations.

          Generally, these populations have been vulnerable as regards the physical, psychological, spiritual, economic, legal, and institutional aspects of life. Their present situation is one of need, and in many cases they are marginalized from even the most basic guarantees available to the general population.

          Even more important is the preservation and development of the indigenous cultures and their populations' rights. This is recognized not only as an ethical obligation of States out of respect for, and in reparation for, the abuses and deprivations that were forced upon them for centuries, but also as a socio-economic necessity for States to draw upon these peoples as a source of wisdom, customs, and values for the building of modern societies.

          Along the same lines, at the present stage of development, the exploitation of all available resources is crucial. Nevertheless, development projects are often a threat to these populations, even when these projects could be much more effective if they were adequately synchronized with the knowledge and customs of the indigenous peoples and respectful of their rights.

          On the other hand, intentionally or not, many of the philosophical premises upon which a good part of most countries' legislation is based have contributed to the erosion of the cultures of indigenous peoples and their survival. This has been principally manifested in different kinds of legislation, regarding for example, land tenure, water rights, civil status, education, and even in constitutional law. Such legislation, however, could have taken advantage of the collective experience of the indigenous populations in order to offer greater and more efficient normative options for harmonious growth and social development.

          As to international law, the valuable and sustained efforts realized—especially within the United Nations—toward establishing effective norms are far from completed. Along these lines, the United Nations General Assembly approved various resolutions which reaffirm the importance of raising the standard of living of indigenous populations;2 and the respect for the passing on of indigenous cultural traditions.3 The Economic and Social Council, under the Subcommission on the Prevention of Discrimination and the Protection of Minorities, began to engage in studies of discrimination against indigenous populations in 1971.4 This same subcommission created a working group on indigenous populations that has been meeting since 1982 and is currently preparing a draft of a Universal Declaration of Indigenous Peoples' Rights.

          The International Labor Organization (ILO) has drafted conventions on the working conditions, education, training, and safety of indigenous workers since 1921. These efforts culminated in the 1957 ILO Convention Nº 107, which is presently ratified by 14 countries in the Americas. The Convention, however, has recently been revised in order to respond to criticism coming mainly from organizations of indigenous peoples about its “ethnocentric” of “paternalistic” character.

          Certain legal and institutional steps have been taken within the inter-American system as well. Aside from precepts of the OAS Charter, the Inter-American Charter of Social Guarantees of 1948, the American Declaration of the Rights and Duties of Man, and the American Convention on Human Rights, both the mandates and projects of the Inter-American Cultural Council as well as its successor, the Inter-American Council for Education, Science and Culture (CIECC), have overseen specific actions and measures related to the aboriginal populations.

          The Inter-American Indian Institute, created by a Convention adopted in 1940 and later ratified by 17 American countries, deserves special mention. This Institute in spite of its modest resources, has been active in the area of scientific investigation regarding indigenous affairs and promoting the training and exchange of experts on these issues.

          The Inter-American Commission on Human Rights has also adopted important resolutions and reports dealing with the rights of indigenous peoples in the OAS member States during its thirty years of activity.5

          Despite these achievements, the Commission is convinced that it should progress further in order to reflect the organization of American States' concern for the special and unique problems faced by the aboriginal populations of the Americas in the area of human rights.

          In an attempt to respond to these concerns, the Commission, while recognizing the diversity of situations, advocates the need to establish common international norms valid for the indigenous peoples of America.

          Approximately 400 aboriginal ethnic groups exist in America, differentiated by culture, language, and lifestyle, which comprise population surpassing 30 million people, according to conservative estimates. This figure represents approximately 10% of the total population of Latin America, with an increasing demographic importance. These include small jungle tribes to important indigenous peasant societies that are strong and well-organized in certain Andean countries.

          There are many important reasons for stating the need for creating common international legal norms for the protection of these groups' human rights, despite their diversity and the different levels of integration into national society that they represent.

          In the first place, the groups share a common basic problem. The inferiority and disdain with which these cultures have been treated since the time of the conquest has generated a commonality in the basic problems which affect these peoples. Certain problems such as: the direct attempts at physical or cultural genocide; the legal or de facto disregard for their institutions or rights; the usurpation of their lands or their right to collective and permanent use of their habitat; their legal or de facto condition as second-class citizens; the rejection or ignorance of their cultural and pedagogical practices; and consequently, the generalized destruction and erosion of their standards of living; have in some way, usually intensively, threatened or affected all of the indigenous tribes and their members.

          The transcendental value of an international norm is a second reason for calling for international standards. While in the short term the international norm might be less effective than the national, its capacity for mobilizing national legislation from a broader perspective invariably facilitates national efforts along these lines. And, since many of the indigenous cultures transcend the political borders of a particular country, the universality of the norm can guarantee greater fairness in the protection of, and accommodation to the needs of said peoples, offering a common framework for national or local legislation.

          The adoption of the proposed instrument also has a pedagogical value. Many of the de facto or legal situations that affect indigenous populations arise from ignorance or lack of understanding of their values, rights and the processes necessary for the adequate development of cultural pluralism. In this respect one should recall the Supreme Court of an American country in which the impunity of landowners who had assassinated indigenous people were granted impunity on the argument that these assassins shared a general belief that the natives were inferior beings, unprotected by the law. The definition, by international bodies, of common basic norms for the treatment of issues like this would be of use as guidelines for the whole population, obligating it to reevaluate concepts to modify prejudices and to discover valuable and positive elements that were previously unknown to them.

          The problem of the indigenous populations is specific to the American region. As was expressed earlier, 1992 offers a privileged perspective for the analysis of the historical conditions that have shaped the problems that affect the indigenous populations and society, in general, through their reciprocal relations.

          J. Marti wrote in !Our America” that “… this pretension of the impossible denial and forgetting was what originated a divided society, porous and without consistency.” While the efforts at understanding and recognition began at least as early as the activities of the Fathers Las Casas and Montesinos, it is only recently that national legislations have begun to recognize and respect the institutions and specific characteristics of the indigenous peoples. Upon analysis of these laws, the specificity of the problems that affect the American natives is revealed to be generally associated to land tenure, the respect given to their institutions, and the recognition of their equality within a context of cultural autonomy. Some background material worth mentioning which demonstrates the specificity of the indigenous American problems includes: the Brazilian Law on the Indian (Estatuto do Indio, Lei 6001 (Dec. 1973) and the Brazilian Constitution (1988), the Law for Indigenous Policy of Argentina (1984); the legal concept of indigenous community established in Paraguay in 1981 and its self-definition as a multi-lingual country; the same in Ecuador; the concept of ethno-education proposed by the Betancur Law in Colombia; the recognition of the ethnic pluralism constituting the Nation of Guatemala (Article 66 of the 1985 Constitution); the 1986 Constitution of Nicaragua and the Statute for the Autonomy of the Atlantic Coast (1987); the numerous treaties between Native American Nations in the United States and the Federal Government between 1867 and 1971; the recognition of the Caribs' reserve in Dominica (West Indies) after its independence; and the Panamanian recognition of the Kina Nation in a special Organic Charter.

          Another indicator of the specificity of the regional situation is provided by the inadequacy of international law in the area. The U.N. International Covenant on Civil and Political Rights, for example, does not include collective rights, and the rights, in general, are protected negatively, in that there is no obligation on the States to take affirmative action to improve the current situation. Also, although Article 27 of the Covenant protects the cultural rights of ethnic minorities, it does not distinguish between minorities and indigenous peoples, an important distinction in our region.

          Just as the General Assembly of the OAS has recognized in the Resolution establishing the celebration of the Fifth Centennial of the Discovery and Meeting of Two Worlds, 1992 offers the opportunity for adopting instruments that will permit the future surmounting of problems and obstacles, and will favor the full development of the possibilities that allow cultural pluralism in America.

          The Commission, therefore, proposes the adoption of an international instrument the objective of which would be to define the rights of indigenous peoples. However, the Commission declines to take a position on the possible legal nature of such an instrument, leaving that decision to be taken by the member States' own governments. In this regard, the most feasible alternatives are a Declaration adopted by means of a General Assembly Resolution, or, an Additional Protocol to the American Convention on Human Rights, or a separate inter-American convention having no connection to the Pact of San José, Costa Rica. The possibility of adopting at least two of these instruments successively might also be considered. For example, in 1992, the General Assembly could adopt an American Declaration on the Rights of Indigenous Peoples and later proceed to elaborate a conventional instrument.

          Whichever option is chosen, it is important that two essential elements be taken into account. In the first place, it should be drafted as a juridical instrument and, at the same time, it should receive the consent of the States that intent to be bound by its provisions. It should be kept in mind that as regards the issue of the rights of indigenous peoples, there has been a dichotomy between the resolutions that express the aspirations of the indigenous peoples themselves, usually adopted in congresses of indigenous peoples, and the incorporation of these rights into national or international law.

          The Commission, by proposing such an instrument, wishes to avoid this incongruence and, therefore, favors the adoption of an instrument which faithfully expresses the legitimate aspirations of indigenous peoples, can also be accepted by the States who will be bound by the instrument.

          The Inter-American Commission on Human Rights, the body endowed by the OAS Charter with the task of promoting the observance of human rights in the continent, and which has had an important role in the codification and progressive development of international human rights law, lends itself to being the most appropriate body for carrying out the task of preparing this instrument. In addition, the Commission has been involved in the subject through the preparation of reports and studies involving indigenous populations and maintains fruitful contacts with the institutions which should be invited to collaborate in this project, such as the Inter-American Indian Institute, the Inter-American Institute of Human Rights, the specialized agencies of the United Nations, such as UNESCO, and non-governmental organizations on human rights, especially those formed by the indigenous peoples themselves.

          The General Assembly of the OAS, in resolution AG/RES. 927 (XVIII-0/88) resolved

         To recommend that all competent bodies and entities continue to support the projects and activities of the Fifth Centennial through the means possible in their range of action.

          Taking into account the above, and depending on the General Assembly's resolve concerning the formulation of an instrument concerning the rights of indigenous peoples, the Commission manifests its willingness to carry out the task of preparing such an instrument, planning to rely upon the assistance of anthropologists, jurists, and diplomats, both indigenous as well as non-indigenous.

          With the financial assistance of other organizations, especially the Inter-American Institute of Human Rights, meetings of experts designated by the IACHR will be organized during the course of the year 1990 and part of 1991, in order for the first draft of this instrument to be drawn up. This would then be reviewed by the Commission and, once approved, would be sent to the competent bodies of the Organization in order to be adopted during the course of the year 1992.

III.          RECOMMENDATIONS

          On the basis of the background and considerations set forth above, the Commission proposes that the General Assembly of the Organization of American States, at its nineteenth regular period of session, adopt the following decisions:

          1.          To reiterate to the member States that are not parties to the American Convention on Human Rights (the Pact of San José, Costa Rica of 1969), to ratify or accede to said instrument, as well as, in the case of those States who have not yet done so, to recognize the competence of the Inter-American Commission on Human Rights to receive and examine inter-state communications as set forth in Article 45, paragraph 3 of the Convention, and also to recognize the obligatory jurisdiction of the Inter-American Court of Human Rights, pursuant to Article 62, paragraph 2 of the abovementioned Convention.

          2.          That without prejudice to the recommendation to ratify or accede to the American Convention on Human Rights to those States that have not yet done so, the General Assembly recommends the commencement of a study concerning the practical effectiveness of the rights included in the Convention by the corresponding bodies of the Organization; the existing barriers for their effective exercise; the feasibility of including new rights, both individual as well as collective; and the possibility of modifying the existing mechanisms and procedures contained in the Convention in order to make them more effective in assuring better protection of human rights.

          3.          That the General Assembly recommend to the States that have not yet ratified or acceded to the Inter-American Convention to Prevent and Punish Torture and the Additional Protocol to the American Convention on Human Rights on the subject of Economic, Social and Cultural Rights to do so.

          4.          That the General Assembly adopt, on behalf of the States parties to the American Convention on Human Rights, an Additional Protocol to said Convention concerning the abolition of the death penalty, as has been proposed by the Government of Uruguay and the Commission.6

          5.          That the General Assembly make significant progress during the next meeting to permit it to advance in the development of an inter-American convention to prevent and punish those responsible for the forced disappearance of persons, as proposed by the Inter-American Commission on Human Rights.

          6.          That this General Assembly resolve to develop a juridical instrument, to be adopted in 1992, on the rights of indigenous peoples and to entrust its preparation to the Inter-American Commission on Human Rights.