Dialogue Between Nations: Section 3

Section Three: Cultural Identity

Article XII. Right to Cultural Identity

1. Indigenous peoples have the right to their cultural integrity and to their historical and ancestral heritage, which are important for their collective continuity, and for their identity and that of their members and their States.

Alberto Saldamando
International Indian Treaty Council
January 26, 2004 – First Session

Thank you Mr. Chairman. I’d like to make a brief commentary on the United States proposal. We are very gratified that the United States recognizes that human rights exist, particularly in other obligations including the International Covenant on Civil and Political Rights.

We are a bit confused however, and, actually are gratified that they believe that tracking language on international standards is an appropriate thing to do because we are totally in agreement with that, with that concept. What we’d like perhaps clarify, that the United States has said that they are tracking the language of Article 27 of the International Covenant on Civil and Political Rights. Yet their language states that “Indigenous Peoples, or the States will not deny Indigenous Peoples the right to enjoy their own culture.’ Whereas Article 27 says that, “the right to culture shall not be denied”, quote “shall not be denied” the right. We believe that that is much more mandatory language, that it is mandatory language whereas “will not deny”, in terms of my thinking is not mandatory.

The other concept which I think is more damaging, at least with regard to the obligations of States, particularly not just under the International Covenant on Civil and Political Rights, but the Charters of the United Nations and I believe, the Charter of the OAS, is that States have the legal and moral obligation, with regard to the promotion and protection of human rights. And yet, the United States has proposed that Indigenous Peoples are free to promote recognition and respect, when in fact, it is the moral and legal obligation of the States to promote the recognition and protection of human rights.

So if we are going to track international standards, and I believe that it is appropriate to do so, then indeed, this Declaration should be a compilation of the rights of Indigenous Peoples, as decided not only by other generalized documents, but by the jurisprudence of the Organization of American States and other appropriate international bodies.

If we are going to do that, then perhaps we could be true to those obligations and perhaps we could reflect the obligations of States as well as the rights of Indigenous Peoples a bit more accurately.

Thank you, Mr. Chairman.

Darwin Hill
Representative of the Haudenosaunee
January 26, 2004 – First Session

(Greeting in his own language)

Good morning. My name is Darwin Hill, representative of the Haudenosaunee. Haudenosaunee again, is a Confederacy of Indian nations located in north east United States and as well, in the south eastern section of Canada.

I just have several comments that will echo somewhat my colleague here, just before me, about several of the comments from the United States proposal. Number one, is that they did say that their language tracked, I think they said it came directly from the ICCPR, but that actually uses the language of the “right to enjoy culture shall not be denied.” Whereas the US uses the language “will not be denied.” So we really question that. Why is the language using “will” instead of “shall?

The second point, the US acknowledged that the Indigenous Peoples have the right to enjoy culture. Under international law, when a right inheres in a peoples, States have an obligation to do more than not deny it. Instead they must take affirmative measures to ensure its actual enjoyment. So I ask, “does the United States intend to escape this affirmative obligation under international law with this proposed language?

One final point, and this again gets back to the use of the word “shall” or “will”. We have discussed this on numerous occasions with the United States as well as in the forum. The Universal Declaration on Human Rights and the Declaration on the Elimination of Racial Discrimination both use the “shall” language, and not “will”. So we encourage the Forum here as well as the United States to continue using this more affirmative language in this Declaration.

Those are my points here this morning, and again, thank you for the opportunity to present this.

(Closing thanks in his own language).

2. Indigenous peoples have the right to restitution of the property that is part of that heritage of which they have been dispossessed, or, when restitution is not possible, to fair and equitable compensation.

3. The States shall guarantee respect for and non-discrimination against the indigenous ways of life, world views, usages and customs, traditions, forms of social organization, institutions, practices, beliefs, values, dress, and languages.

Article XIII. Logical Conceptions and Language

1. Indigenous peoples have the right to use, develop, revitalize, and transmit to future generations their own histories, languages, oral traditions, philosophies, systems of writing, and literature; and to designate and retain their own names for their communities, members, and places. The States shall adopt adequate measures to protect the exercise of this right, in consultation with the peoples concerned.

2. The States shall take measures to promote the broadcast of radio and television programming by the mass media in indigenous languages in regions with a large indigenous presence. The States shall also support the creation of indigenous radio stations and other means of communication.

3. The States shall take effective measures so that the members of the indigenous peoples can understand administrative, judicial, and political rules and procedures, and be understood in such proceedings. The States shall make the necessary efforts for the indigenous languages to be established as official languages in the areas where indigenous languages predominate.

Article XIV. Education

1. The States shall include in their national educational systems content that reflects the intercultural, multiethnic, and multilingual nature of their societies. The indigenous peoples have the right to bilingual intercultural education that incorporates their own world view, history, knowledge, values, spiritual practices, and ways of life.

2. Indigenous peoples have the right to:

a) define and implement their own educational programs, institutions, and facilities; b) prepare and apply their own plans, programs, curricula, and teaching materials; and, c) educate, train, and accredit their teachers and administrators.

The States shall take the necessary measures to ensure that the indigenous education systems guarantee equal educational opportunity and teachers for the general population and complementarity with the national educational systems.

3. The States shall guarantee that the indigenous educational systems have the same level of quality, efficiency, accessibility, and in every other respect as those provided for the general population. In addition, the States shall facilitate access for indigenous children who live outside of their communities to learning in their own languages and cultures.

4. The States shall take measures to guarantee for the members of the indigenous peoples education of equal quality as for the general population at all levels. The States shall adopt effective measures to provide adequate resources for these purposes.

Article XV. Indigenous Spirituality and Freedom of Conscience

1. Indigenous peoples and their members have the right to freedom of expression, conscience, spirituality, and religion or belief, and to express them both in public and in private, individually or collectively.

2. The States shall take the necessary measures to prohibit efforts to convert or impose beliefs on the indigenous peoples or their members without their free and informed consent.

3. The States shall adopt the necessary measures, in consultation with the indigenous peoples, to preserve, respect, and protect their sacred sites and objects, including their burial grounds, human remains, and relics.

4. The States and their institutions shall guarantee that society as a whole respect the integrity of indigenous symbols, practices, sacred ceremonies, expressions, and spiritual protocols.

Article XVI. Family Relations and Ties

1. The indigenous family shall be respected and protected by society and the State. The State shall recognize the various indigenous forms of family, particularly the extended family, matrimonial union, filiation, family name, and all other rights of the indigenous family. These indigenous forms of family organization shall be respected by public and private persons, including cooperation and development agencies. In all cases, the criteria of gender and generational equity shall be recognized and respected.

2. In determining the best interest of the child in matters related to the adoption of indigenous children, severance of the ties, and other similar circumstances, the courts and other relevant institutions shall take into account the customary law and shall consider the points of view, rights, and interests of the respective people, including the positions of individuals, the family, and the community. The indigenous institutions shall have primary jurisdiction for determining the custody of indigenous children.

Article XVII. Health

1. Indigenous peoples have the right to the exercise and legal recognition of their traditional indigenous medicine, pharmacopoeia, health practices and promotion, including those aimed at prevention and rehabilitation, as well as the right to use, maintain, develop, and administer their own health services; all in accordance with internationally recognized standards.

2. Indigenous peoples have the right to the use and protection of the plants, animals, and minerals for medicinal use in their ancestral lands and territories, as necessary for the practice of indigenous medicine.

3. The States shall take measures to prevent indigenous peoples from being subject to programs of biological or medical experimentation without their free and informed consent.

4. Indigenous peoples have the right to use, without any discrimination whatsoever, all the health and medical care institutions and services accessible to the general population. The States shall promote an intercultural approach in the medical and health services provided to indigenous persons, including the formation of indigenous technical and professional health care personnel.

5. The States shall provide the necessary means for the indigenous peoples to improve the health conditions in their communities insofar as they fall short of the standards accepted for the general population.

Article XVIII. Right to Environmental Protection

1. Indigenous peoples have the right to live in harmony with nature and to a healthy and safe environment, which are essential conditions for enjoyment of the right to life, to their spirituality, and to collective well-being.

2. Indigenous peoples have the right to conserve, restore, make use of, and protect their environment, and to the sustainable management of their lands, territories, and resources.

3. Indigenous peoples have the right to be informed and consulted with respect to measures that may affect their environment, as well as to participate in actions and decisions that may affect it.

4. Indigenous peoples have the right to participate fully in the formulation, planning, organization, and implementation of government programs and policies to conserve and exploit their lands, territories, and resources.

5. Indigenous peoples have the right to assistance from their States for the purpose of protecting the environment, and from international organizations, in keeping with the procedures established in the national legislations, and without discrimination.

6. The States shall prohibit, punish, and prevent, in conjunction with the indigenous authorities, the introduction, abandonment, or deposit of radioactive materials or waste, or toxic substances or waste, in violation of legal provisions in force; as well as the production, introduction, transit, possession, or use of chemical, biological, or nuclear weapons on indigenous lands and territories.

7. When the State declares an indigenous territory to be a protected area or subject to wildlife reserve conditions and in the case of lands and territories claimed by indigenous peoples, the conservation areas shall not be subject to any natural resources development without the informed participation of the peoples concerned.