...continued

V.  SITUATION OF HUMAN RIGHTS OF WOMEN IN THE HEMISPHERE

          I.  Introduction

          With this Annual Report the Commission begins its consideration of the Situation of Human Rights of Women in the Hemisphere, acting upon a recommenda­tion of the Organization's General Assembly contained in Resolution AG/RES. 1112 (XXI-0/91) on the "Strengthening of the OAS in the Area of Human Rights."

          In preparing this section, the IACHR drew on the information supplied by OAS Member States in response to the request made to them on August 20, 1992, and on reference material and reports presented by the Governments to different fora on human rights protection, notably the Inter-American Commission of Women, whose cooperation and facilities we gratefully acknowledge.

          The Commission believes it is important to give greater considera­tion to this issue even though, broadly speaking, the human rights situations that the Commission has been analyzing since its formation embraces all humanity without distinction as to sex.

          The struggle women have waged, worldwide and in the region, to win full respect and guarantees for their basic human rights is well known.  Despite the progress which has been made, particularly in equal enjoyment of the rights embodied in national laws and international charters, a variety of problems persist that prevent women from enjoying human rights to the fullest, such as poverty, abandonment, violence, and economic situations that hit some segments of the population —including women and children— more directly.  The mere fact that rules exist does not guarantee the elimination of discrimination against women.  In many countries de facto discrimination still exists on many fronts,  even though there are laws making it illegal.

          The American Declaration of the Rights and Duties of Man and the American Convention on Human Rights both contain specific articles relating to women, in addition to their general articles on the rights established therein.

          The United Nations Convention to Eliminate All Forms of Discrimination Against Women is the most far-reaching international instrument on the subject of women and has been ratified by all the countries of the hemisphere with the exception of The Bahamas, and the United States.

          A draft Convention on the "Protection of Women Against Violence," presented to the General Assembly by the Inter-American Commission of Women, is currently under review by the States.  This instrument sets out to address the phenom­enon of violence, both public and private, in all realms of daily life, including the job and the family; it also seeks to define possible forms of abuse (physical, mental, emotional harm, among others).

          With respect to means of protection--a crucial issue in instruments of this kind--the draft adopts the formulation of the American Convention on Human Rights.

          UNICEF's figures show that while the percentage of girls under the age of 15 years dropped to about one-third of the female population of Latin America and the Caribbean between 1970 and 1990, the figure is still significant given the high pregnancy rate among adolescents.  In 1990, girls under the age of 15 accounted for between 29% and 45% of the female population in Argentina, Bolivia, Colombia, Guatemala, Jamaica and Peru, while there were 27.4 million girls under age 15 in Brazil, 5.7 million in Colombia, and 16 million in Mexico.  It was also stated that in 1990 there were 92,000 single mothers in Argentina between the ages of 12 and 18.  Similarly, in the Dominican Republic girls under age 15 accounted for 25% of the pregnancies registered in public hospitals in 1990, and in the Caribbean as a whole 60% of all firstborn children had adolescent mothers.[20]

          According to UNICEF and the mass media, discrimination starts the day a woman is born.  In many societies there is a preference for baby boys, who are seen as more useful to society and able to carry on the family name.[21]

          At the present time, with the severe economic crisis facing most countries in the hemisphere, the number of working women is increasing steadily.  Most come from very humble economic backgrounds and are often single heads-of-house­hold because they have been abandoned by their husbands or are unwed mothers.

          The responsibility women feel for their children forces them to accept poorly paid jobs, and in some cases to resort to prostitution to earn enough money for them­selves and their children to survive.

          However, many studies and statistics suggest that even today —and even in developed countries— wages are higher for men than women in some jobs that carry equal responsibility.  Similarly, preference in some occupations is often given to men over women.  According to rough estimates made in the private sector of the United States, women in some occupations are paid only 60 cents for every dollar earned by men doing the same work.

          In a report presented by the office of the Regional Adviser for Working Women, 1992-93 Policies and Programs, the International Labour Organization (ILO) stated that the wholesale integration of women into the Latin American labor market over the last thirty years had not been achieved on the basis of full equality with men.  There are at present still discriminatory practices as regards women's access to employment and production, as well as the conditions governing their work.  For example, in the informal sector of the economy, women still face difficulties in gaining access to such productive resources as credit, technology, technical assistance, legalization of their businesses, training, and business management.  At the same time, family responsibili­ties conflict with their work, because of the lack of day care facilities for their children, by imposing this task on women as an obligation arising out of cultural patterns; other obstacles include lack of training and voca­tional skills, the continued belief in employ­ment in activities traditionally regarded as female roles, and, finally, childbearing, all of which combine to make female labor unstable.

          In addition to the efforts that the OAS and its specialized organizations are making, it is important to highlight the efforts that other organizations, such as UNIFEM, UNESCO, the UNDP, have been making to promote the issue of women's rights in the hemisphere.  For example, the offices dealing with women's problems in 20 Latin American and Caribbean countries received support in 1992 to strengthen their capacity for cooperating with other governmental and non-governmental agencies in promoting policies in favor of women.

          In Colombia, UNICEF supported studies on socialization and sex roles, distinctions between sexes, profiles of women and girls, and a seminar on women and human rights, as part of its contribution, together with the office of the Presidential Adviser on Youth, Women and Family, to formulating an overall policy for Colombian women.

          In the Dominican Republic, UNICEF provided assistance to the Directorate General of Women and the non-governmental organizations' coordinating association in a social awareness campaign promoting legal reforms in favor of women.  Dominican television regularly broadcasts a program called "Legislation for Women," and prepara­tions are in hand for a series of country-wide clinics on the protection of women to provide them with education, assistance, and legal advice.

          Also with UNICEF support, courses were organized in Brazil, Chile, Ecuador and the Dominican Republic to provide training and guidance to key personnel in dif­ferent government agencies on understanding the specific needs of women and girls in the development process.  Among the other countries in the hemisphere that are encouraging progress along the same lines are Argentina and Peru.

          In this connection, activities and studies are being pursued for groups known as "girls in especially difficult circumstances" or "invisible girls."  However, there is little awareness of the subject as yet, and data are hard to come by.  Noteworthy in this group are girls working as domestics, street children, victims of sexual abuse, and prostitutes.

          The report presented here was prepared within the framework of the rights pro­tected by the Convention.

          II.  Reports by some of the Signatory States in the hemisphere

          Antigua and Barbuda

          In its report sent to the IACHR, this member State indicated that the 1990s would be named "Toward a Decade of Greater Concern for Women."

          -  As far as its domestic legislation is concerned, under existing common law the crime of sexual violence carries penalties for the party or parties guilty of the offense.  These are codified as part of the Offenses Against Persons Act.  Under com­mon law, the offense involves a man who has sexual contact with a woman without her consent.  In 1986, the Act referred to raised the prison sentence for this offense from a maximum of 10 to 35 y ears.

          -  With respect to labor questions, Antigua's Labor Code, written in 1975, prohibits discrimination in employment on the basis of race, religion, or sex.

          -  In education, the Government of Antigua and Barbuda provides free education at both primary and secondary levels.

          According to information received, freedom of worship and freedom of speech are fully guaranteed for all members of society.

          Barbados

          Information was received from the National Consultative Council of Barbadian Women, containing recommendations to the Government on different topics of interest.

          -  With respect to citizenship, it was acknowledged as part of the Citizenship Act that it would need amending to remove an obvious form of discrimination.  Bar­badian women may not confer their nationality on their foreign husband, nor determine the nationality of their children, whereas in the case of men the opposite is true as it is the men who confer their nationality on their foreign wives.

          The Barbadian Government recognizes the real and potential contribution of women in economic, social, political and cultural development as the end of the cen­tury approaches.  All government policies must reflect full recognition of the fact that men and women are equal and complementary.

          -  Economic and social development policies and programs should seek to reform measures which limit women in the following fields: (a) equal rights of citizenship under the Constitution; (b) equal access to resources, with special emphasis on employment generation for women; (c) equal participation by women in government decision-making; (d) the right to work in an environment free of sexual harassment; (e) in the design of government policies, special account will be taken of the dual responsibili­ties of women in terms of both economic support of the family and care of the home, paying particular attention to those women who are unmarried mothers and thus sole breadwinners and heads of household and whose incomes are predominantly at the bottom end of the pay scale; (f) the Government of Barbados recognized the obvious handicap experienced by young girls who become mothers during their adolescence.  The break in their schooling and the assumption of the responsibilities of motherhood at such a young age lead to a higher incidence of irresponsible parenthood and illiteracy in society.  The Government is accordingly committed to reducing adolescent preg­nancies through birth-control and sex and family education programs, and will assist further by establishing programs that will help them to continue their education; and (g) expansion of the agencies that deal with women's issues will be encouraged and facilitated.

          The Government of Barbados nevertheless acknowledged that the implementa­tion and development of these strategies and measures will require constant review and evaluation.

          Bolivia

          Under the heading of right to life, the report which Bolivia presented to the Inter-American Commission of Women in 1992 stated that the mortality rate among women at childbirth stood at 480 per 100,000, which means that 1,500 women were expected to die in La Paz in 1992.

          As regards the right to education, the country has a serious problem of female illiteracy.  School attendance rates show a 10% bias in favor of male literacy.  It often happens that below-age girls drop out of school at age 15 to fulfill their "filial substi­tution" or "responsibility" in the home by looking after their younger brothers and sisters or doing other household chores.  Although there is evidence that female illit­eracy rates are declining, the country has a female illiteracy rate of 25% — 13.9% in urban and 37% in rural areas.

          The same report indicates that, after a lengthy process of structural adjustment, there has been an increase in the participation rates of Bolivian women in the country's economic activities.

          Participation by Bolivian women in the professional and vocational sectors in the cities is only 12%, whereas in domestic services (employed in homes) it stands at 16% of the total female population.  The statistics also reflect the fact that 16% of the country's women are sole heads of family, which implies an excessive burden in terms of their own development and that of their children.

          Also apparent from the report is that in rural areas the socio-economic situation of women is even more serious.  Despite this, they are not integrated into official agricultural policy making.   In other words, agricultural policies tend to overlook the important and traditional role of women in agricultural development.  One result of this is the lack of access to working capital and other benefits of development.  Another factor which also affects them is that many men migrate from the countryside to the cities, leaving them alone as sole heads of family.

          In Bolivia--the report goes on--women have a minimal influence on the country's political life.  There are only eight women in the Legislature out of a total of 151 elected representatives.  There are no women leaders in the Bolivian Workers' Central (COB), nor in the Sole Confederation of Unions of Rural Workers of Bolivia.  The most important political representation Bolivia's campesinos have is in the trade unions, but there women are not accepted as members unless they are widows.

          Brazil

          It was stated that Article 5, Section I, of Brazil's Constitution provides that men and women have equal rights and obligations.  Article 226, paragraph 8, of the same body of rules, in referring to domestic violence, further provides that all family members are equally protected.

          The Constitution prohibits: (a) discrimination based on sex; (b) differentiation in the payment of wages, exercise of functions, or any other aspect based on gender; and (c) dismissal, without justified cause, of pregnant employees at the time they confirm they are pregnant or up to five months following childbirth.  Other guarantees include: (a) up to 120 days of maternity leave without fear of loss of employment or wages; (b) that the respective rights and duties of spouses shall be exercised equally by both men and women; and (c) labor market protection for women through special incentives under the law.

          In 1985, the National Council on Women's Rights (CNDM) was established in Brazil under the supervision of the Ministry of Justice.  This Council actively lobbied for the inclusion in the Constitution of specific labor guarantees to improve conditions for women in all areas.

          More than 70 police stations to serve women have been set up in several states throughout the country in an effort to lessen violence against women, with particular emphasis on domestic violence.  These offices are staffed entirely by women and provide legal assistance to victims of police, social and psychological violence and are staffed exclusively by women.[22]

          At the international level, the Government of Brazil supports proposals aimed at reducing and eliminating all forms of discrimination against women.

          Despite the great strides made in the field of women's rights in Brazil, where women are well represented in political and economic life, there are still obsolete and contradictory legal practices, though not laws, in such criminal matters as uxoricide,[23] where the husband receives a reduced sentence for killing an adulterous wife found in flagrante delicto, on the grounds that it was a legitimate defense of one's honor.[24]

          Canada

          The information on Canada is drawn from the report presented to the Inter-American Commission of Women.

          The report states that Canada has ratified the three OAS conventions on the Rights of Women, the Inter-American Convention on the Granting of Civil Rights to Women, the Inter-American Convention on the Granting of Political Rights to Women, and the Convention on the Nationality of Women.  Canada has also been an active participant in the development and promotion of an Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women.

          Since 1985, when Canada's Charter of Rights and Freedoms (1982) came into effect, Article 15 of the Charter has guaranteed legal equality for Canadian women.  However, Canadian women still do not enjoy full economic and social equality.

          Canada has a great many associations for the protection of women.  In all they are estimated to number some 60 groups working on behalf of disabled women, women in conflict with the law, aboriginal women, immi­grant women or those belonging to visible minorities, women in agriculture, rural women, francophone women, and women in politics.  Within this framework there are hundreds of local organizations furthering women's interests in individual communities.

          There has been a major change in the labor market due to the large number of women who participate actively in Canada's labor force.  Working Canadian women are estimated to make up 45% of the work force, compared with only about one-third in 1970.  Women with young children are highly represented.  In 1988, the participation rate of women with children under 3 years of age was 58.3%, and was 65.1% for women with children aged 3 to 5 years.  The entrance of so many women into Canada's labor market has contributed to the growth of its work force, and there is every indication that by the year 2,000 the participation rate of women will reach 50%.

          At the federal level, there has been employment equity legislation since 1986 to improve the representation in the marketplace of women, aboriginal persons, disabled persons, and visible minorities.  In addition, the Canadian Human Rights Act (1977) prohibits discrimination in the work place on the basis of sex, marital status, race, or religion, and provides an important avenue for redress for cases of harassment.

          Regarding the issue of violence against women, Canada has succeeded in making this a priority issue of public interest, not only for women.  In 1982, changes to the Criminal Code made sexual assault a criminal act.

          In 1986, the Federal Government allocated 25 million dollars to fight the sexual abuse of children.  In 1988, an amount of 40 million dollars was set aside for a family violence initiative that was expanded to 136 million dollars in 1991.  The Government's  aim to attain zero tolerance of violence against women and children.

          With respect to aboriginal women, Canada has adopted a number of initiatives to promote their economic advancement.  There are three Canadian organizations for the protection of aboriginal women, and the Federal Government is working with them to prepare a plan of action to study obstacles to their economic development.  An aboriginal and Economic Development Steering Committee and Coordinators Office was established in March 1991 with the cooperation of the Association of Native Women of Canada, the Association of Inuit Women and the Native and Inuit Nurses of Canada.  The task of this Committee is ensure that aboriginal women have equal access to resources such as training, education, and business development programs.

          Costa Rica

          In its report to the IACHR, Costa Rica stated that in Central America women com­prise about one half of the region's population, which is made up 50.1% of men and 49.9% of women.  In this connection it added that Costa Rican women account for half of the rural population and one tenth of the economically active population (EAP), and that for every four men there is only one working woman.[25]

          When the process of modernizing Costa Rica's productive structure was begun (1950), the participation rate of women stood at 14.4%.  By 1973 it had risen to 19.3%, and by 1987 to 27.6%.  In recent years, the most common occupations for the economically active female population in rural areas were: domestic service — roughly 1 in 3 women in the countryside do work of this kind — agricultural produc­tion, and the service sector in general, but specifically in the fields of teaching, nursing, and business.

          Costa Rican women continue to experience discrimination in the workplace, and the inequalities are increasingly pronounced in the case of rural women.  More than half of all economically active rural women earn below the minimum wage, much less than the male population in the same activities, and less than women working in the cities.  Even though working-age women have higher educational levels than men, 47% of the working women are hired at lower wages and in jobs requiring lower skills.  In Costa Rica, women receive less pay than men for the same or similar work.  Female service staff earn 50% less than men, and professionals receive only 70% of what men are paid in the same line of work.

          Unemployment and underemployment are more acute among younger women.  In 1987, most women affected (90%) were between 12 and 29 years of age, the commonest age group for those with young children and for unmarried mothers.

          With the Political Constitution of 1949 women in Costa Rica acquired the right— and the obligation —to vote and to be elected to different positions in the country's political leadership.  Since then Costa Rica has been passing legislation and ratifying specific international conventions on the rights of women, such as the Inter-American Convention on the Grant of Political Rights to Women (1951), the Convention on the Political Rights of Women (1953); and in 1968 the International Civil and Political Rights Pact and its Optional Protocol (all United Nations instruments); the Convention on the Nationality of Women (1953); and the 1979 United Nations Convention on the Elimination of all Forms of Discrimination Against Women (1984).

          At the national level, the Family Code was enacted in 1974, followed the next year by the Law to Protect Women against degrading commercial advertising in the mass media, and in 1990 by the Law to Promote the Social Equality of Women.

          In 1986, the Legislative Assembly passed the Law Establishing the National Center for the Development of Women and Family as an agency attached to the Ministry of Culture, Youth and Sports.  On August 1, 1989, the Women's Defense Bureau attached to the Ministry of Justice was established by Executive Decree Nº 19157-J.  In 1990 the Law to Promote Social Equality of Women was passed.  Currently under study in the Legislative Assembly are: a Law Creating a Women's Institute, a Law on Abortion in Rape Cases, and a thorough reform of the Labor Code.

          Participation by Costa Rican women in politics is beset by several difficulties, not least among which are those arising from socioeconomic differences.  Still more incentives and external training are needed if women are to achieve true participation in Costa Rican society.

Mexico

          In its report to the IACHR, Mexico said that the participation and integration of women into the country's development is a priority for its economic, political and social planning.

          It added that the struggle of Mexican women to exercise their rights as citizens and become an integral part of the country's development has been going on throughout its history.

          The Political Constitution of the United States of Mexico, the General Law on National Population and Naturalization, as well as the secondary laws, already embodied legal equality for women as against men.  Mexico recognized this equality in detailed fashion at the international level when it signed the United Nations Convention on the Elimination of all Forms of Discrimination Against Women (1981).  In pursuance of Article 133 of the Mexican Constitution, this international instrument has been adopted as the supreme law of the Union.

          Mexico did stress, however, that although common and shared rights and obliga­tions--as well as equality of opportunity, pay and penalties--have been established de jure, the changes that have occurred in Mexican society as a result of its economic, political, social, cultural, and scientific and technological development have substan­tially altered the social structure and the status of women in Mexico.  Changes in cultural patterns, social roles, and work practices in political life, in the factory and in the countryside have had a decisive influence on the role that women play in national development.

          The report states that, of the country's total population in 1991, 50.8% were women.  The rate of population growth declined from 2.9% in 1980 to 2.3% in 1991.  It is relevant to note in this connection that reproductive rates are declining among younger women, as well as those who have achieved higher educational standards.

          On the labor front, the economically active population (EAP) in 1991 was 24,063,283, of whom 5,644,588 were women and 18,418,695 men.  Female parti­cipation is mostly in the services sector, business, the processing industry, and agriculture.  Thus, for example, out of 5,521,271 working women, 1,171,675 (53.6%) worked in offices, 736,885 in shops and other businesses, 624,271 were domestic workers, 390,119 workwomen and craftswomen, 357,400 machinery operators, and only 163,578 professionals.

          As regards education, it was noted that women have succeeded better than men in going beyond the basic levels of instruction.  The population with primary schooling totals 68,446,254, of whom 33,419,287 are men and 35,026,967 women.

          With respect to Mexico's policies in government and legislation, foremost among the legal reforms carried out is that of the Penal Code, in which sexual harassment is classed as a crime.  This change was passed in July 1990.  In addition, specialized agencies were created to protect and promote women's rights, such as the Specialized Agencies for Dealing with Sexual Offenses, which come under the Solicitor General's Office in the Federal District; and the National Human Rights Commission (CNDH), established by Presidential Decree in June 1990.  In 1992, the Congress of the Union and the State Legislatures added Article 102 to the Political Constitution, giving themselves powers, within their respective jurisdictions, to set up agencies to protect human rights.  CNDH has assisted in resolving violations of the individual rights of women.

          Women were given the right to vote in national elections on October 17, 1953, and women have exercised political rights since the 1950s.

          III.  Conclusions and Recommendations

          The Inter-American Commission on Human Rights reports that, although there is evidence that most governments in the hemisphere want to improve the status of women, there is still inequality when it comes to the enjoyment of their rights.  Cases can be observed where there is an imbalance with respect to certain rights and specific situations.

          All international human rights instruments respect human beings without distinc­tion as to sex, race, creed, and thought.  It is therefore worrying to observe any of these forms of discrimina­tion practiced in the hemisphere.

          After reviewing the information gathered, the IACHR recommends to any States of the hemisphere that do not have legislation consistent with the social progress achieved that they update it so that they can provide true enjoyment of full and equal rights to all individuals in their societies.

          It is evident that accession to and ratification of all instruments to protect human beings, at both the global and the regional level--such as the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, the International Covenant of Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women--of the United Nations, and the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights and its Additional Protocols on Economic, Social and Cultural Rights (Protocol of San Salvador) and on Abolition of the Death Penalty, among other instruments of the global and inter-American systems, are of paramount importance for today's society as it stands at the threshold of the 21st century.

          Equally important are mobilizing and channeling greater resources and efforts, both domestic and through international cooperation, to achieve development targets by modernizing and updating the legislation of Member States, establishing programs aimed at training and preparing women in all fields of human life, providing them with sufficient information regarding their inalienable rights, and giving priority to poor women and heads of families; promoting the passage of special laws to guarantee women equal rights, in the field of labor, commercial and civil rights--inheritance, marriage, divorce, nationality, ruling home country of their children-—and thereby safeguard respect for all the rights of the citizens within their jurisdiction, guaranteeing the full effectiveness of all internationally recognized human rights.

  VI.  REPORT ON THE FIRST ROUND OF CONSULTATIONS CONCERNING THE
          FUTURE INTER-AMERICAN LEGAL INSTRUMENT ON INDIGENOUS RIGHTS

          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

          - A territory of its own historically speaking and exploitation thereof

          - Its own language

          - Its own methods of production, marketing objectives and  patterns of consumption

          - Traditional ceremonial, political and social organization

          - Traditional dress, objects and adornments

          - Specific cottage and agricultural industries

          - Traditional medicine (today associated with the pharmaceutical industry)

          - A vision of the cosmos or philosophy and value system

          - Ceremonies -religious, civil and secular- and their instruments

          - Traditional foods

          - Myths and legends; its own narrative

          - Education and transmission of culture

          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.         

continued...

[ Table of Contents | Previous | Next ]