PERMANENT COUNCIL OF THE OEA/Ser.K/XVI
ORGANIZATION OF AMERICAN STATES GT/DADIN/doc.5/99
1 December 1999
COMMITTEE ON JURIDICAL Original: Spanish
AND POLITICAL AFFAIRS
Working Group to Prepare the Proposed American
Declaration on the Rights of Indigenous Populations
REPORT OF THE CHAIR
REPORT OF THE CHAIR
REPORT OF THE CHAIR OF THE Working Group
TO PREPARE THE Proposed American Declaration
on the Rights of Indigenous Populations
MEETING OF THE WORKING GROUP
TO PREPARE THE PROPOSED AMERICAN DECLARATION
ON THE RIGHTS OF INDIGENOUS POPULATIONS
Held in Washington, D.C., November 8-12, 1999
REPORT OF THE CHAIR
At its twenty-eighth regular session, the General Assembly, in resolution AG/RES. 1549 (XXVIII-O/98), instructed the Permanent Council to convene a meeting of government experts and to take the measures it considers appropriate with a view to the adoption of an American Declaration on the Rights of Indigenous Populations at the twenty-ninth regular session of the General Assembly.
The Meeting of Government Experts to Analyze the Proposed American Declaration on the Rights of Indigenous Populations was held on February 10-12, 1999. The conclusions of the meeting were published in the final report, document RECIDIN/doc.10/99, and were subsequently considered by the OAS General Assembly, which, at its twenty-ninth regular session, in resolution AG/RES. 1610 (XXIX-O/99), and bearing in mind the progress made at the Meeting of Government Experts, established a working group to continue consideration of the proposed declaration. The working group was installed on July 28, 1999, and it was agreed that it should remain under the chairmanship of the Chair of the Committee on Juridical and Political Affairs.
The Working Group met at headquarters from November 8-12, 1999. The Working Group had before it background documents on the discussion of the topic by the various bodies, including the comments of the member states, organs, and entities of the inter-American system on the proposed declaration. The list of documents is attached as an appendix to this report.
1. Presentation by the Chair
2. Consideration of the operative section of the Proposed American Declaration on the Rights of Indigenous Populations
a. Scope of application and definitions
b. Human rights
c. Cultural development
d. Freedom of association and political rights
e. Social, economic, and property rights
f. General provisions
3. Other business
A. Organization of the Work
The Chair of the Working Group of the Committee on Juridical and Political Affairs, Ambassador Claude Heller, Permanent Representative of Mexico to the OAS, and the Secretary General of the OAS, Dr. César Gaviria addressed the Working Group (both statements are attached to this report).
The Vice President of the Inter-American Institute of Human Rights, Rodolfo Stavenhagen, then took the floor. He recommended that mechanisms should be created to include indigenous populations in the drafting of international legal instruments. The Chair of the Inter-American Commission on Human Rights, Robert Goldman, also spoke. He expressed his hope that the proposed declaration would be adopted at the next regular session of the General Assembly, to be held in Windsor, Canada, in 2000.
The Chair explained the working procedures to be used during the meeting. Those procedures had been approved by the Committee on Juridical and Political Affairs, which served as the preparatory body for the meeting of the working group. In that connection, the Chair announced that the proceedings would begin by dealing with the operative section of the proposed declaration on a chapter by chapter basis grouped under specific topics, as indicated on the agenda, given that the preambular section had been widely discussed at the meeting of this past February. He said this did not, however, preclude further consideration of the preambular section once review of the operative section is completed. He also commented on the modality for the participation of the representatives of the indigenous populations, in accordance with General Assembly resolution AG/RES. 1610 (XXIX-O/99), and on the basis of the agreements reached in the Committee on Juridical and Political Affairs. In that connection, when discussion of each of the three above-mentioned topics begins, the representatives would be allowed to present their views. In the light of the progress being made with respect to the work, the representatives would be allowed to speak again at the conclusion of the consideration of each chapter. The Chair underscored that the statements would be duly recorded in the report of the Working Group. He therefore invited both the delegations of the member states and the representatives of the indigenous populations to make their statements brief and, as far as possible, relevant to the topic under discussion.
The representatives of the indigenous populations read a statement on their position with respect to the procedure for their participation in the Working Group. In that regard, they felt that the procedure was inadequate and did not reflect the spirit of General Assembly resolution AG/RES. 1610 (XXIX-O/99). They requested a review of the respective decision in order to permit full participation by the representatives of the indigenous populations in decision-making. Nonetheless, they announced their decision to participate in the meeting while expressing their position as follows:
a. Participation in the discussion; they requested a full and unrestricted right to speak, as well as the opportunity to comment on the statements of the government delegations.
b. Adoption of the agreement: they requested that the government delegations consider the actual situation of the indigenous populations before taking a decision.
c. Recording the statements: they requested that the statements of the representatives of the indigenous populations be recorded and that these statements, as well as the conclusions of the meeting, be transmitted to the governments.
Furthermore, they emphasized the need for obtaining resources to allow the representatives of indigenous populations to continue to participate in the consideration of the proposed declaration.
The Chair of the Working Group indicated that participation by representatives of indigenous populations was guaranteed under agreements reached earlier by the Committee on Juridical and Political Affairs. He promised that the spirit behind the meeting was constructive and that the proposals made by those representatives would be duly reflected in the report. He also indicated that the examination of the draft declaration would not be completed at this meeting, and that the decision-making phase would therefore follow a subsequent reading of the text. Lastly, the Chair stated that the Organization had expended the effort to hold a five-day meeting, despite its serious financial constraints, because of the importance it attributed to the matter.
A number of government delegations emphasized the importance of abiding by decisions reached within the Committee on Juridical and Political Affairs concerning participation by representatives of indigenous populations, which were recapitulated by the Chair at the beginning of the meeting. It was indicated that those decisions ensured suitable participation by those representatives and was consistent with the aforementioned General Assembly resolution.
The representatives of indigenous populations took the floor on various occasions throughout the working group proceedings. Their statements are recorded in this report along with the comments made by member state delegations and by representatives of various bodies and institutions of the inter-American system, such as the Inter-American Juridical Committee (CJI), the Inter-American Commission on Human Rights (IACHR), the Inter-American Indian Institute (III), and the Inter-American Institute of Human Rights.
B. Consideration of the Proposed Declaration
a. Section One: Definitions
The Chair proposed that deliberations begin with the identification and discussion of concepts whose definition would shape the rest of the text, so as to provide a shared focus for the discussions. He suggested, therefore, that the scope and meaning of terms such as “people,” “population,” “self-determination," "autonomy," "self-government," and "territory" be defined and set forth in a chapter entitled "Definitions." He circulated a written proposal containing three articles for Section One: “Definitions” (Article 1: Peoples and Populations; Article 2: Self-Determination; Article 3: Territory). The Chair clarified that these articles were drawn from a number of available sources, including comments by the member states, the Inter-American Juridical Committee, and the Inter-American Indian Institute.
Regarding the terms "people" and "population," some delegations expressed a preference for the latter term, citing international law and a number of General Assembly resolutions. They stated that the expression "people" was tied to the concept of self-determination, and that international law did not accord that right to indigenous communities. Some delegations said that a safeguard like the one included in Convention 169 of the International Labour Organization might be advisable, since it would allow the term "people" to be used without the implications it normally has under international law.
Several representatives of indigenous populations indicated that it would not be appropriate for states to define the concept of “indigenous populations," this being the sole province of the communities involved. Self-identification, as an essential criterion for the recognition of an indigenous people, is not subject to any obligation. No term could encompass the multiplicity and variety of such communities existing in the Hemisphere. They indicated that they were neither ethnic minorities nor racial minorities nor populations (the latter term referring to communities not necessarily invested with historical continuity). They defined themselves as peoples, or collective, autonomous entities, with age-old languages, whose organization, shaped by lands, waters, forests, and other natural resources, afforded them a special world view and a unique social structure ensuring their continuity.
Other representatives of indigenous populations pointed out, however, that a clearer definition of such concepts would be an important step forward, as it would help to assure progress in a definition of the rights derived from them.
The representatives of indigenous populations indicated that the progress made, both at the level of national law and in the efforts of multilateral organizations, show that discussions have focused on the content of the rights of indigenous communities rather than on attempts to arrive at some sort of definition. They said it was important here to preserve references to their collective rights, since their individual rights were already enshrined in numerous instruments of international law. They concluded that the term “people” should remain in the draft Declaration, and that, should it not, examining the subsequent articles would be meaningless.
In this context, the National Congress of American Indians proposed that Article 1 of the draft Declaration read as follows:/
“Indigenous people have the collective and individual right to maintain and develop their identities and specific characteristics, including the right to identify themselves as indigenous and to be recognized as such.”
Some government delegations, after hearing the position taken by the representatives of indigenous populations, said that it would be wise to discuss the criteria by which the latter define themselves as peoples.
With respect to the concept of "self-determination," a number of government delegations indicated that, in the United Nations context, the concept was still evolving, and that this term should be defined on the basis of agreements reached by the states and the indigenous populations at the national level. In any case, the concept must not have the effect of diminishing the political integrity of the state.
The representatives of indigenous populations indicated that the terms “people” and “self-determination” could not be separated, and that the latter accorded political status, as well as economic, social, and cultural rights, which the indigenous communities could not relinquish, since these constituted a historical right that had been wrested from them. They also stated that "self-determination" could not be defined by those outside the community in question, this being the exclusive province of that community. Self-determination was a right of indigenous peoples, while sovereignty pertained to the state. In no way was self-determination meant to infringe upon the territorial integrity of the state. The intent was, rather, to enhance national unity, to secure recognition of the existence of such communities, invested with a distinct and special world vision, within the context of existing states. The right to secede was not the aim. Genuine autonomy must be built upon a pluralist foundation, with due recognition of the indigenous communities' own institutions. Such autonomy was one way to exercise self-determination within a state.
Some government delegations said it would be wise to discuss the concept "self-determination"–its scope and meaning in the context of a modern international community. Other delegations expressed their willingness to offer indigenous populations a wide margin of autonomy in the economic, social, cultural, and similar arenas.
On the concept of "territory," the representatives of indigenous populations said this was deeply connected with their spirituality, their culture, their language, their way of life, and their relationship with the environment, and thus it was important that the term remain in the draft Declaration. Land, in Western culture, was something to be worked, a source of wealth subjugated to commerce. For the indigenous peoples, it was an element of their very lives, a factor in their existence as a group or community within an integrated world view that included their traditional approaches to political representation. The concept of territory was vital to defining all the rights of indigenous peoples. Moreover, the term "lands" could not sufficiently express that reality. However, since the populations had developed such a diverse range of approaches to territorial relations, any attempt to define the word "territory" would impose limitations on the traditional rights of indigenous communities.
Finally, the representatives of indigenous populations stated that what was being discussed was a proposed declaration, not a draft convention. They therefore stressed that a declaration was an “aspiration” in terms of the rights of such populations, and that therefore it could not be subject to the constitution or the domestic legal norms of states, as this would clearly be retrograde insofar as such an aspiration was concerned. The objective of such a declaration was to open a path to dialogue based on a shared focus.
In that connection, the representative of the Inter-American Indian Institute stated that the fact that a declaration was being discussed did not release states from an obligation to seek precision and clarity in the concepts to be utilized; the representative of the Inter-American Juridical Committee pointed out that a declaration, although not binding, might recognize a status or right, and to that extent might have legal effect in that it was of some interpretive value. He went on to state that a declaration might give rise to a custom, a source recognized in international law.
The representative of the Inter-American Indian Institute indicated that any attempt to draft a declaration on the topic should take account of the process of recognition as well as that of rebuilding indigenous populations. He also indicated that states had the responsibility of harmonizing the concepts discussed herein with already-enshrined domestic concepts, and that only frank dialogue with indigenous representatives would be able to harmonize such concepts with the demands of those groups.
The representatives of indigenous populations also called upon governments to include in their domestic legislation the three concepts discussed in this section, that is, “peoples,” “territory,” and “self-determination,” recognizing thereby the diversity of these communities.
Given the various opinions expressed, it was decided to maintain the formula “people/population” in the proposed declaration until the scope of each concept was defined. Some delegations also insisted on the importance of defining certain basic concepts to be used in developing the rest of the declaration. Satisfaction was also expressed that an opportunity had been provided to hear the indigenous representatives on topics as significant as those discussed in this section.
b. Section Two: Human rights
Several delegations proposed amendments to the second section of the proposed declaration. In particular, with respect to collective rights, there was feeling that it was advisable to include references to the right to the social, political, and economic organization and to recognition of the legal systems of those communities. However, in that connection some delegations expressed reservations in that this could be interpreted as recognition of a parallel legal system within a single state.
In reference to the right to recognition in law, it was felt that it would be necessary to specify what type of recognition was being discussed, whether international or recognition defined under the domestic law of each state.
The topic of rejection of assimilation also led to discussion among the delegations. In particular, it was suggested that specific reference be made to the protection of indigenous populations against the possibility of genocide.
In reference to special guarantees against discrimination, some delegations indicated that they had difficulty with language that imposed an obligation on the state to implement more guarantees that those already provided at constitutional level. Several delegations indicated that there was no reason for exclusive reference to gender- or age-based violence; rather reference should be made to all types of violence, which hindered or prevented the exercise of the rights of indigenous populations.
The general feeling was that this section dealt more with the rights of indigenous populations than with the obligations of the states, and that the declaration’s structure as such should be preserved and the necessary accommodations made in the rest of the articles. The chair suggested that this be borne in mind, and that the obligations of the states should be the subject of a specific chapter.
Representatives of indigenous populations, on the other hand, stated that the articles in this section should bear more directly on the obligations of the states. They also suggested that throughout the section, the phrase “and their members” should be added after the phrase “indigenous peoples.” The National Congress of American Indians suggested a new wording of Article 2, on self-determination, taken from the draft declaration now being negotiated at the United Nations:/
“Indigenous peoples have the right to self-determination. They may freely determine their political status and pursue their economic, social, and cultural development by virtue of this right.”
The National Congress of American Indians proposed the following wording for Article 2, paragraph 2:
“States shall therefore recognize the basic social, economic, political, and cultural rights of indigenous peoples, and in particular, the collective right to lands, territories, and resources, and the right of indigenous peoples to self-determination.”
In that connection, some representatives of indigenous populations indicated that self-determination was a basic collective human right, perhaps the most important of such rights, that ensured, inter alia, the right to land and to the development of indigenous communities in accordance with their particular needs, within the general framework of the state. They indicated that many of the states present here had recognized the right to self-determination in other international fora, and they were now asking that the same be done within the framework of the OAS. However, they stated that there were many other collective rights, and drew attention to those already enshrined in several international instruments.
Mr. Juan León, indigenous representative of the Mayan people of Guatemala, suggested that the title of Article 4 be “Legal recognition of indigenous peoples” (which includes existence, identity, and law), which distinguishes between the right of an entity in law and its legal capacity. Mr. Margarito Ruiz of Mexico requested that reference to “traditions” be included in the article.
One of the representatives of indigenous populations, Mr. Héctor Huerta of Panama, proposed the following wording:
“States shall recognize the right of indigenous peoples in law in keeping with their traditional forms of representation or such legal norms as these peoples may develop. States shall adopt the necessary legislative measures for the recognition of this right.”
The National Congress of American Indians also proposed replacing the present wording of Article 5 of the proposed declaration with the following:/
“Indigenous peoples have the collective and individual right not to be subjected to ethnocide or cultural genocide, including the right to prevention of and reparation for:
a. Any act whose purpose or effect is to deprive indigenous peoples of their integrity as unique peoples, or their cultural values, or their ethnic identity;
b. Any act whose purpose or effect is to deprive them of their territories or natural resources;
c. Any type of displacement whose purpose or effect is the violation or prejudice of any of their rights;
d. Any type of assimilation by or integration into other cultures or lifestyles imposed through legislative, administrative, or other measures;
e. Any type of propaganda directed against them.”
Finally, regarding Article 6 of the proposed declaration, the National Congress of American Indians proposed replacing the phrase “special guarantees” with “special measures.”
c. Section Three: Cultural Development
With regard to the “right to cultural integrity," some government delegations expressed doubts regarding the standard to be used with respect to the compensation referred to in the article on that subject and its assessment under international law, since this matter is not addressed in the international legal system. Some delegations also requested that the word “restitution” be deleted from the proposed declaration. As for restitution of property or heritage, the representative of the Inter-American Juridical Committee pointed out that it would be necessary to define the scope and parameters of such restitution. The representative of the Inter-American Commission on Human Rights pointed out that the concept of “heritage” (patrimonio) that had inspired Article VI of the proposed declaration did not include lands.
On the topic of education, several government delegations stressed its importance and some asked for consideration of the minimum standards established by the educational authorities to be included in the discussion of this matter. With respect to the assistance that would need to be provided by the states in this field, some delegations pointed out that such a requirement might be a heavy burden to place on them, given that they already provide financial assistance without distinguishing between the indigenous population and the rest of the population. The representative of the Inter-American Commission on Human Rights indicated that one of the intentions of the article was that, in the interest of fairness and nondiscrimination, the indigenous populations should also guarantee access to their schools for the population in general, above all in schools receiving state funding.
On the subject of “spiritual and religious freedom,” some delegations suggested that the provisions governing this matter should be consistent with the United Nations International Covenant on Civil and Political Rights and other international legal instruments in force. However, several delegations had problems with the obligation to return sacred graves and relics in cases in which these had become property of the state.
Regarding "family relations and family ties," some government delegations were unhappy with establishing a parallel set of rules governing such matters as the family, marriage, filiation, etc. It was also pointed out that it was not advisable to issue a general declaration on the family as such. It would be better to restrict it to aspects to do with indigenous populations. A reference to the role of women in indigenous families would also be appropriate.
On “health and well-being,” some government delegations said it would be best to look for a less specific wording consistent with constitutional provisions that regulate the health care professions in the different states. Other delegations said that, while it was advisable to preserve the autonomy of indigenous populations in this area, there should be guarantees that minimum sanitation and health safety standards set by the State are adhered to. One suggestion, in that respect, was to provide appropriate training for persons practicing traditional medicine. Freedom to opt was another term put forward for consideration in the proposed declaration. On this matter, the representative of the Inter-American Juridical Committee pointed out that the best thing would be to find a formula reconciling the effect of traditional customs and the overall legal framework.
With respect to the “right to environmental protection,” the various delegations acknowledged the importance of the interaction between indigenous populations and their environment. They referred specifically to the use and exploitation of renewable natural resources by those populations, in circumstances in which the State’s exploitation of certain areas frequently did them harm. Delegates stated that indigenous populations had the right not only to be informed but also consulted regarding measures that could affect their environment. They also had the right to make full use of their environment and of the productive capacity generated by their lands, territories, and resources.
Some government delegations suggested including a reference to the illegal production of and trafficking in drugs. However, others pointed to the difficulty of distinguishing between, on the one hand, plants used for traditional purposes, which often can be used to produce illicit narcotics, and, on the other hand, the narcotics themselves. In short, it was a question of preventing the lands of indigenous populations from being used for the consumption, possession, and transport of illicit substances.
Finally, there was a request to place “lands/territories” in square brackets, pending a decision on how these terms should be used and defined in the proposed declaration.
With respect to this section, the National Congress of American Indians asked that all articles contain the phrase “Indigenous peoples and individuals have the right….”/
Other representatives of indigenous populations indicated that culture was the original foundation of indigenous peoples and that the state should protect the development of that culture by implementing projects and ad hoc programs. The importance of that culture lies in the fact that it reflects a view of the world that has guided and directed those communities in conducting their own politics and establishing separate economies and legal systems based on the search for true and effective conciliation. Other representatives pointed out that efforts by the state to merely prevent discrimination based on culture is not sufficient, and that mechanisms to promote these cultures and their practices should be put in place.
In this regard, the representative of Altepetl Nahuas, A.C./Seminario Indígena (Native Mexican) proposed that the following language be included in the proposed declaration:
“The states shall adopt the measures necessary to prevent discrimination, ethnocide, and cultural genocide in indigenous populations.”
The Indian Law Resource Center proposed that paragraph 2 of Article 7 read as follows:
“Indigenous peoples and individuals have the right to preserve and practice their indigenous language, philosophy, and outlook as a necessary expression of their distinct culture. The states shall take appropriate measures to protect the exercise of this right.”
In regard to restitution of lands (Article 7, paragraph 2), a representative of indigenous populations stated that when such restitution is not possible, the assignment of lands of equal value would be preferable to monetary) compensation. The representative cited the General Recommendation of the Committee on the Elimination of Racial Discrimination established under the related United Nations convention.
Other representatives of indigenous populations stated that mention should be made of both the tangible and intangible intellectual rights of indigenous populations.
In this regard, the Indian Law Resource Center proposed that the following language be used:
“Where there is a strong indigenous presence, the states shall take measures to ensure that broadcast radio and television programs are broadcast in the appropriate indigenous languages. The state shall also support the creation of indigenous radio stations and other media.”
In regard to paragraph 3, the National Law Resource Center proposed that the words “shall endeavor” be replaced by “shall take measures,” as had been done in the other paragraphs.
In addition, it was stated that language was the vehicle for the transmission of indigenous culture, which has allowed the development of particular systems that have survived over time. In this regard, the State must take steps to adopt and protect indigenous languages and to promote their development, thus guaranteeing that children will be able to write and speak their own languages. The States were also asked to open up new spaces in the mass media to promote those languages.
In connection with this, the National Congress of American Indians proposed the following alternative wording for Article 8:/
“Indigenous peoples have the right to revitalize, use, develop, and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems, and literature, and to designate and retain their own names for communities, places, and persons.”
The Indian Law Resource Center proposed the following text for the first and second paragraphs:
"Indigenous peoples and individuals have the right to preserve and practice their indigenous language, philosophy, and outlook as a necessary expression of their distinct culture. The states shall take appropriate measures to protect the exercise of this right."
"Where there is a strong indigenous presence, the states shall take measures to ensure that broadcast radio and television programs are broadcast in the appropriate indigenous languages. The state shall also support the creation of indigenous radio stations and other media."
The indigenous populations’ representatives also underscored the need to promote educational reform processes, which would involve major transformations within a framework of pluralism, equality, and solidarity. Emphasis was also placed on the need to guarantee the right of indigenous populations to intercultural education. Some representatives requested that the draft declaration assure members of indigenous populations equal access to education and that schools be made available in indigenous areas so that family ties need not harmed in the pursuit of higher education. It was also stated that education has been an instrument of alienation among indigenous peoples, but that it also can be a useful tool for communities in their pursuit of a better life and development.
Other representatives of indigenous populations pointed out that institutions of higher education should reject any research that views indigenous peoples as objects, cease any discriminatory practices and policies in enrollment procedures, and put an end to the exclusion of indigenous cultures from the classroom.
Religious and spiritual freedom was described as being a fundamental human right. Recognition was sought for the importance of the individuality and specificity of these freedoms and for the right to practice them in both public and private. The historical value of the temples and ceremonial centers that form part of the cultural, historical, and spiritual heritage of indigenous populations was stressed; consideration was sought for the right to participate in their management and conservation; and emphasis was placed on the need to regulate access to those centers and to guarantee the free manifestation of spiritual expressions by indigenous populations. A request was also made for the proposed declaration to include a reference to the restitution of those religious centers that have been taken away from indigenous populations.
In connection with this, the National Congress for American Indians proposed the following alternative wording for Article 10:/
“Indigenous peoples and individuals have the right to maintain and protect their cultural and religious properties including sacred sites, relics, graves and the human remains and articles found within graves. This includes the right to restitution of religious and cultural property taken without their free and informed consent or in violation of their laws, traditions and customs. In collaboration with the indigenous peoples concerned, the states shall adopt effective measures to ensure that such properties are preserved, respected and protected. Where appropriated by state and private institutions or individuals without the consent of the peoples concerned, they shall be returned.”
The Indian law Resource Center made the following proposal for paragraph 1:
“Indigenous peoples and individuals have the right to freedom of thought, conscience and religion; this right includes freedom to change one’s religion or belief, and freedom in public or private, to manifest their religion or belief in teaching, practice, worship and observance.”
It also proposed that in paragraph 2 the words “forcibly convert” be replaced by the words “to convert indigenous peoples without their free and informed consent”.
And for paragraph 3 it proposed the following text:
"Indigenous peoples and individuals have the right to maintain and protect their cultural and religious properties including sacred sites, relics, graves and the human remains and articles found within graves. This includes the right to restitution of religious and cultural property taken without their free and informed consent or in violation of their laws, traditions and customs. In collaboration with the indigenous peoples concerned, the states shall adopt effective measures to ensure that such properties are preserved, respected and protected. Where appropriated by state institutions, they shall be returned."
In regard to family relationships and ties, a proposal was made to include a declaration recognizing the rights of indigenous women. It would mention, among others, reproductive rights and the right to a bilingual, bicultural education, and in general it would introduce a gender perspective into the draft declaration.
The Indian Law Resource Center proposed the following language for paragraph 2:
“In all actions concerning children, the state has a duty to respect the responsibilities, rights, and duties of parents, or where applicable, the members of the extended family or community as provided for by local customs”.
Regarding health matters, the indigenous populations’ representatives requested that a mechanism be implemented to protect intellectual property rights to indigenous medicine. The representatives of indigenous populations stressed the importance of traditional medicine and requested that mechanisms to safeguard it and provide access to it be strengthened in the best possible way. In particular, they proposed relocating the part of the proposed declaration dealing with intellectual property to the section on cultural development.
With regard to the environment, the indigenous populations’ representatives underscored their right to participate in the use and administration of their resources and lands and their need to be consulted prior to the initiation of any resource use project that could affect their communities. Some representatives pointed out that consultation in itself is not enough if not undertaken before anything is actually done. Providing advance information is a way to ensure that the right of indigenous peoples to participate in decision making is not limited. Mention was also made of the importance of recognizing the technology used by indigenous populations in their productive processes and it was requested that indigenous lands not be unilaterally declared protected areas, but that consultations be carried out and the agreement of the peoples concerned be obtained before such a change is made.
The National Congress of American Indians proposed amending Article 13, paragraph 6 of the proposed declaration by replacing the phrase “in contravention of legal provisions” with “unless the free and informed consent of the affected peoples has been obtained.”
It also proposed changing paragraph 7 of the same article to read as follows:/
“When the state is giving consideration to establishing a protected area on or near to an indigenous territory, legally recognized or under claim, the state shall obtain the free and informed consent of the affected indigenous peoples prior to authorizing or implementing such a proposal. Protected areas shall not be subject to natural resource development without the free and informed consent of the affected indigenous peoples.
Indigenous peoples have the right to declare, wholly or in part, their territories as indigenous-owned and managed protected areas and the state shall recognize and respect such decision.”
In general terms vis-à-vis this section, the indigenous populations’ representatives requested that consideration be given to reinstating the original language of the proposed declaration as submitted by the Inter-American Commission on Human Rights.
The representatives of different bodies and agencies of the Inter-American system also expressed their opinions on these issues. The representative of the Inter-American Indian Institute stressed that it must be made clear that the specific rights guaranteed in this proposed declaration do not restrict the rights that the members of indigenous populations have as citizens of a given State. He also emphasized that there was much variance among the conditions faced by different indigenous populations across the hemisphere and that this diversity should be taken into particular consideration as regards cultural development. A declaration of such a general nature as the one under study, he stated, must be able to adapt to the specific characteristics of each community. In turn, the representative of the Inter-American Commission on Human Rights emphasized a series of articles that, in his opinion, had to be taken into careful consideration by the member states, particularly with regard to restitution. The representative of the Inter-American Juridical Committee noted that it would be necessary to clarify whether or not the rules of international law would apply to the confiscations described in the proposed declaration.
d. Section Four: Organizational and Political Rights
With regard to this section and, in particular, to the “right to self government,” several delegations expressed doubts regarding the use of terms such as “political status,” “self government,” and “autonomy,” on account of the implications they would have at both the domestic and international levels. Some delegations stated that they recognized indigenous populations’ right to self determination, provided that the substance of that right was negotiated with the State in question. In any event, with regard to this section, emphasis was placed on the need to avoid losing sight of the concept of autonomy, which underscored the need for further work on the articles containing definitions.
In connection with “indigenous law,” it was once again stated that it represents a juridical regime parallel to that of the state; this was not acceptable to some delegations. It was also remarked that observing indigenous law and custom could lead to imbalances from the viewpoint of a state’s domestic laws. Other government delegations accepted the idea of indigenous law provided that it did not conflict with the legal order of the State and was framed by respect for human rights.
Regarding the “national incorporation of indigenous legal and organizational systems,” some government delegations noted that the thrust of this article should be to guarantee full access to the jurisdiction of the state by indigenous populations and that it should be enshrined in such terms in the corresponding text.
In connection with this, some representatives of indigenous populations pointed out that the States must take into consideration, on a priority basis, the collective rights of indigenous populations, promoting their active participation in society as a whole and thus guaranteeing the individual rights of those communities’ members. The proposed declaration should set forth respect for indigenous institutions and guarantee their different forms of autonomy and self government, it was said, but steps had to be taken to ensure that the process of the national incorporation of indigenous legal and organizational systems did not imply any arbitrary or forced assimilation whatsoever.
Some indigenous populations’ representatives also referred to the rights of self-determination and self-government in terms similar to those used in earlier comments set forth in the second section of this report.
Regarding specific proposals for modifying articles of the proposed declaration, the National Congress of American Indians, the Amerindian Peoples Association of Guyana and the Toledo Maya Cultural Council, and the Upper Sioux Community by Poi Co proposed changing the first phrase of paragraph 1 of Article 14 to read, “Indigenous peoples and individuals.”
They proposed the following language for paragraph 2:
“Indigenous peoples and individuals have the right to the use of their sacred and ceremonial areas as well as the right to establish and maintain without any discrimination, free and peaceful contacts with other indigenous peoples and individuals that live in the territories of neighboring states or across state borders.”
For Article 15, paragraph 1, they proposed the following text:
“Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, spiritual and cultural development. As a specific form of exercising their right to self-determination, have the right to autonomy and self-government with regard to inter alia culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, the environment and entry by non-members; and to determine ways and means for financing these autonomous functions.”
In Article 16, they proposed adding the following paragraph:
“The official decisions, rulings and actions of indigenous institutions shall be fully recognized, honored and enforced by the institutions of the state.”
Finally, regarding Article 17, they noted that paragraph 2 should also ensure that “no decisions directly relating to their rights and interests are taken without their free and informed consent.”
One delegation read out a declaration in which it lamented the fact that in the course of the Meeting it had been stated that the laws of its country did not treat indigenous populations in the same way as the rest of the citizens of that State. The delegation cited a series of both constitutional and regulatory provisions illustrating that all citizens were treated equally.
e. Section Five: Social, Economic, and Property Rights
Some government delegations focused their attention on analyzing Article 18 of the proposed declaration. In general, they expressed concerns regarding the scope of the article as a whole, particularly as regards domestic law and regarding the historical moment to be taken into account for the purposes of restitution, and they asked the representative of the Inter-American Commission on Human Rights to explain its scope. The representative explained that the antecedents of this article were to be found in different provisions of OAS member states’ domestic laws and that it covered those lands that traditionally belonged to indigenous populations and were currently in dispute.
On this topic, several representatives of indigenous populations pointed out that the rights of indigenous people to their lands are reflected in various international legal instruments and that full recognition of those rights should be built into the proposed declaration now being studied, bearing in mind that many indigenous populations have lived on the lands they currently possess from times immemorial, and even since before the formation of nation states.
This being so, it was necessary, they said, to include a reference to the right to self-development, which is a corollary of the right to self-determination.
With respect to that, Mr. Abelardo Torres of Mexico, a representative of indigenous populations, proposed that every time the word “territory” is mentioned in section five of the proposed declaration it should be accompanied by the phrase “collective ownership”. He also suggested including the right to dual nationality in Article 19, and the right to integral self-development of the indigenous populations in Article 21.
Mr. Marcial Arias, a representative of indigenous populations from Panama, suggested that paragraph 6 of Article 18 be deleted to avoid indigenous populations from being transferred under the pretext of the public interest, but in reality due to other motives on the part of the State. As for the intellectual property of traditional know-how, he stated that the proposed declaration lacked a specific reference designed to protect it and he cited, as an example, the Agreement on Biological Diversity.
For his part, The representative of the Assembly of First Nations referred specifically to Article 18 of the proposed declaration on traditional forms of property ownership and cultural survival: the rights to land and territories. He said the right to land should include the whole territory, including the soil, resources, and water. He said that those rights to land constituted the fundamental feature that defined indigenous peoples. He also suggested including some paragraph on settlement of disputes through the creation of independent mechanisms, since indigenous peoples were normally at a disadvantage when it came to defending their rights and legal titles.
The National Congress of American Indians, the Upper Sioux Community, the American Peoples Association of Guyana, and the Toledo Maya Cultural Council also proposed amendments to a series of articles, as follows:
Article 18, paragraph 4: (insert after the phrase “protection of their rights with respect to”)
“Their lands, territories and natural resources [delete ‘on their lands’] including the ability to use, develop, manage and conserve such lands, territories and resources; and with respect to traditional uses of their lands, territories and resources such as subsistence.”
Article 18, paragraph 5:
“Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands. Territories and other resources, including the right to require that states obtain their free and informed consent prior to the approval of any project affecting their lands, territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources, compensation shall be provided for any such activities and measures taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.”
Article 18, paragraph 6:
“Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free and informed consent of the indigenous people concerned and after agreement on just and fair compensation and, where possible, with the option of return.”
Article 18, paragraph 7:
“They shall be provided with lands of equal value and quality, and if this is not possible, the affected people (s) has the right to compensation on a basis not less favorable tan the standard of International Law.”
Finally, the representative of the Indian Law Resource Center again stressed the advisability of referring in all articles to "indigenous peoples and individuals." She also indicated that there ought to be a reference to those lands to which indigenous populations hold a current title, not only to those they historically possess. She reemphasized that reference should be made not only to mineral resources in general but to all resources below and above ground.
Speaking of the forced relocation of indigenous populations, she pointed to the need for a clearer standard than mere public interest before these communities are relocated without their prior consent. Also, in connection with Article 19, she suggested referring to equal opportunity in the area of labor, gender equality, and equal treatment in terms of remuneration, medical and social assistance, all social security benefits, and all other labor benefits stipulated by international law.
f. Section Six: General Provisions
At the Chair’s request, the director of the General Secretariat’s Department of International Law enumerated a series of concerns regarding the terms used in this section, in order to preserve consistency both with the terminology used in other inter-American instruments and with the nature of the proposed instrument.
He noted that in Article 22, the reference to the word “treaties” meant, against the context of the OAS Charter, agreements entered into between States, among States and international organizations, or between international organizations.
He said that Article 27 was more appropriate to a convention than to a declaration.
In turn, the representative of the Inter-American Juridical Committee proposed replacing the word “treaty” with another that would reflect any internal agreement, irrespective of its appellation.
Some government delegations stated that this section evoked an obligatory instrument and did not reflect the nature of a declaration, and they suggested eliminating it in its entirety. Other delegations stated that in their opinions, Articles 22, 26, and 27 did not belong in an instrument of this kind, since the issues covered by the declaration are to be internally regulated by each member state. Nevertheless, one delegation expressed its wish to preserve Article 22.
In general, the representatives of indigenous populations said that the treaties referred to in article 22 of the draft declaration are of an international nature, and for this reason they suggested that this article be maintained and strengthened.
Specifically, Mr. Darwin Hall, a representative of indigenous populations, proposed the following formula regarding the provision on treaties, drawn from the draft declaration on indigenous populations being negotiated at the United Nations.
“Indigenous peoples have the right to the recognition, observance, and enforcement of treaties, agreements, and other constructive arrangements that may have been concluded with states or their successors, according to their spirit and original intent; and to have states honor and respect such treaties, agreements, and arrangements. [Conflicts and disputes which cannot otherwise be settled shall be submitted to the international competent bodies by all the parties involved.”
With respect to this section, the representative of the Assembly of First Nations emphasized that agreements with indigenous populations should be observed, particularly given their disadvantages vis-a-vis the nation-state. He also suggested including some reference to historical agreements concluded by indigenous populations and based on their oral traditions.
Some specific proposals were put forward on behalf of the National Congress of American Indians, the Upper Sioux Community, the American Peoples Association of Guyana, and the Toledo Maya Cultural Council, especially that Article 27 include a reference to the undertaking by OAS member states to promote respect and application of the rights established in this proposed declaration.
IV. FINAL CONSIDERATIONS
Before closing the Working Group meeting, the Chair circulated the report that is to be presented to the Permanent Council for consideration. It contains a summary of the discussions and the proposals put forth over the course of the week. He also thanked the government delegations and the representatives of indigenous populations for their participation, and indicated that the Permanent Council would decide upon the future course of action of the Working Group. One delegation proposed that meetings be held in the interim for study of the proposed Declaration.
Mr. Osvaldo Kreimer of the Inter-American Commission on Human Rights expressed the Commission's appreciation for the efforts being made to analyze the proposed Declaration.
A number of government delegations said they were gratified that representatives of indigenous populations had participated and hoped this practice would be continued.
The representatives of indigenous populations thanked the Working Group for the opportunity to present their views and proposals and expressed their willingness to contribute to future OAS efforts in this area.
PERMANENT COUNCIL OF THE OEA/Ser.K/XVI
ORGANIZATION OF AMERICAN STATES GT/DADIN/doc.1/99 rev. 1 corr.1
12 November 1999
COMMITTEE ON JURIDICAL Original: Spanish
AND POLITICAL AFFAIRS
Working Group to Prepare the Proposed American
Declaration on the Rights of Indigenous Populations
Proposed American Declaration on the Rights
of Indigenous Populations
(Considered at the meetings of November 8 to 12, 1999)
The General Assembly, at its twenty-eighth regular session, by way of resolution AG/RES. 1549 (XXVIII-O/98), instructed the Permanent Council to convene a meeting of government experts and to take the measures it considered appropriate with a view to the adoption of an American Declaration on the Rights of Indigenous Populations by the General Assembly at its twenty-ninth regular session.
The Meeting of Government Experts to Examine the Proposed American Declaration on the Rights of Indigenous Populations was held from February 10 to 12, 1999. The outcome of deliberations at that meeting was published in document RECIDIN/doc.4/99 rev. 1 corr. 1, “Proposed American Declaration on the Rights of Indigenous Populations."
The General Assembly, at its twenty-ninth regular session, by way of resolution AG/RES. 1610 (XXIX-O/99), established a working group to continue consideration of the Proposed American Declaration on the Rights of Indigenous Populations. That group was formally installed on July 28, 1999.
This document reflects the proposals regarding the preambular section made by the delegations during the deliberations of the Meeting of Government Experts to Examine the Proposed American Declaration on the Rights of Indigenous Populations, previously published as RECIDIN/doc.4/99 rev. 1 corr. 1. It also contains the amendments and proposals put forward by the delegations of member states taking part in the meetings of the Working Group on November 8-12, 1999. That Group focused on operative sections one, two, three, four, five, and six.
PROPOSED AMERICAN DECLARATION ON THE RIGHTS
OF INDIGENOUS POPULATIONS
The member states of the Organization of American States (hereafter the states),
[RECOGNIZING that the rights of indigenous [peoples/populations] constitute a fundamental and profoundly significant issue in the present and future history of the Americas];
1. Indigenous institutions and the strengthening of nations
[Recognizing that indigenous [peoples/populations] form an integral part of the population of the Americas and that their values and cultures are inextricably linked to the identity both of the countries they live in and of the region as a whole] [Recalling that throughout the Americas the indigenous [peoples/populations] constitute a distinctive element within society, and have a special role to play in defining the national identity, strengthening the institutions of the state and achieving national unity based on democratic principles] [Recalling that the indigenous [peoples/populations] of the Americas are preexisting, distinctive, and integral societies and that they have a right to constitute part of the national identity of the countries they inhabit];
[Recognizing the immense contribution of indigenous [peoples/populations] to the development and multicultural composition of our societies and reiterating our commitment to their economic and social well-being, as well as to the obligation to respect their rights and cultural identity];
[Recalling that the indigenous [peoples/populations] of the Americas are equal in dignity and rights to all other citizens;]
[Asserting that indigenous [peoples/populations] are equal in dignity and rights to all other [peoples/populations], while recognizing their right to be different, to be considered different, and to be respected as such];
Further recalling that the presence of indigenous societies enriches the cultural heritage and national identities of the American states and contributes to the intellectual, artistic, social, and economic vitality of the Americas;]
Further recalling that some of the democratic institutions and concepts embodied in the constitutions of the American states stem from institutions of the indigenous [peoples/populations], and many of their present participatory systems for decision-making and for authority contribute to improving democracies in the Americas;
[Recalling the important contributions indigenous [societies] [peoples/populations] have made to the development of many of the political concepts and democratic principles embraced by American states;]
[Recognizing that indigenous [societies] [peoples/populations] have a vital and continuing role to play in strengthening the institutions of American states and achieving national unity in accordance with democratic principles;]
[Mindful of the need to [develop] [strengthen] national juridical systems [and policies] in order to consolidate the multiplicity of cultures [, ethnic groups, and languages] in our societies;
2. The eradication of poverty and the right to development
(It has been proposed that this section be moved to the operative part.)
Concerned over the frequency with which indigenous [peoples/populations] are deprived of their human rights and fundamental freedoms, both within and outside their communities, as well as despoiled of their lands, territories, and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own traditions, needs, and interests;
Recognizing the severe poverty afflicting indigenous [peoples/populations] in several regions of the Hemisphere and the deplorable decline in their living conditions;
Recalling that in the Declaration of Principles issued at the Summit of the Americas in December 1994, the Heads of State and Government proclaimed that in observance of the International Decade of the World’s Indigenous People, they will focus their efforts on improving the exercise of democratic rights and providing indigenous [peoples/populations] and their communities with access to social services;
3. Indigenous culture and ecology
* It has been proposed that this section be moved to the operative part.
Recognizing the respect for the environment accorded by the cultures of indigenous [peoples/populations] of the Americas, and considering the special relationship between those [peoples/populations] and the environment, the lands, the resources, and the territories in which they live;
4. Harmonious relations, respect, and the absence of discrimination
Reiterating the responsibility incumbent upon all states to combat racism and all forms of racial discrimination with a view to eliminating them [AGREED ad referendum];
5. [Territory] [cultural territory] [habitat] and indigenous survival
(* It has been proposed that this section be moved to the operative part.
** It has been proposed that the subtitle be deleted or that the word "territory" be deleted or replaced.)
Recognizing that for many indigenous [peoples/populations], their various traditional systems for the use and control of their lands and other resources are necessary conditions for their development and individual and collective well-being. [AGREED ad referendum];
Recognizing that for many indigenous cultures their traditional collective systems for the use and control of land, territories, resources, waters, and coastal areas are necessary conditions for their survival, social organization, development, and individual and collective well-being [differ from those followed by other members of the population] [and that those systems of control [and dominion] [may be] [are] varied, specific to them, and not necessarily consistent with systems protected by ordinary law in the states in which they reside];
Further recognizing the importance for all humankind of preserving indigenous American cultures, which may include traditional collective forms of land ownership, social organization, and religious practices different from those followed by other members of the population;
6. Human rights instruments and other advances in international law
Recognizing the paramountcy of the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights and other human rights instruments of inter-American and international law; and
[Recognizing the [applicability/relevance] throughout the Americas of the American Declaration of the Rights and Duties of Man, and, where [duly ratified/appropriate], other international human rights instruments, including the American Convention on Human Rights;
Reiterating the universal, indivisible, and interdependent nature of the human rights and fundamental freedoms recognized by the international community. [AGREED ad referendum];
7. Advances in the provisions of national instruments and different national situations
[Bearing in mind the diversity of circumstances in different countries and the varying degrees of impact of indigenous communities in the different states, as well as the constitutional, legislative, and jurisprudential progress made in the Americas in securing the rights and institutions of indigenous [peoples/populations], in order to consolidate the multiplicity of cultures, ethnic groups, and languages in our societies [APPROVED ad referendum];
8. The situation of indigenous [peoples/populations] and specific circumstances in each country
Bearing in mind the foregoing paragraph, this Declaration should be interpreted and applied in harmony and in keeping with current legal systems in the member states and their international commitments;
Bearing in mind that this Declaration must be consistent with legal systems in force in member states and with their international commitments;
* Note: The following proposals do not belong under subheading No. 8
Recognizing that indigenous [peoples/populations] and their societies have a vital role in [sustainable development and that their know-how and traditional practices must be respected];
Encouraging states to recognize the identity, culture, and interests of indigenous [peoples/populations] and their communities and make possible their effective participation in the achievement of sustainable development [AGREED ad referendum];
Recalling the commitment undertaken by the Heads of State and Government in the Declaration of Principles of the First Summit of the Americas, held in December 1994 in Miami, and at the Summit of the Americas on Sustainable Development, held in Santa Cruz de la Sierra in December 1996, and reaffirmed in the Plan of Action of the Second Summit of the Americas, held in April 1998 in Santiago, Chile;
Desiring to promote and strengthen international cooperation with respect to the economic, cultural, and social development of indigenous [peoples/populations]; [AGREED ad referendum]
Recognizing the severe poverty in which many indigenous people live in many parts of the Americas and the commitment made by the Heads of State and Government at the 1994 Summit of the Americas to focus their energies on improving the exercise of democratic rights and the access to social services by indigenous people and their societies;
SECTION ONE. DEFINITIONS
For the purposes of the present Declaration, it shall be understood that, (Guatemala)
Article I. Indigenous [peoples/populations] are understood to be a group of individuals who, within the National State, retain basic distinctive traits from a culture that existed prior to European colonization, such as language; practices and customs; social, economic, cultural, and political institutions; and whose members consider themselves to be part of that indigenous culture. (Chair)
Indigenous [peoples/populations] are understood to be those social and cultural groups which, within National States, retain basic distinctive traits from a culture that existed prior to the establishment and constitution of the Nation-State, such as language; normative systems; social, economic, cultural, and political institutions or a part thereof; and who self-identify and are recognized as members of that indigenous culture. (Mexico)
The use of the term “[peoples/populations]” in this Declaration shall not be construed as having any implication concerning other rights that might be associated with the term under international law. (Brazil)
a. “Self-determination” is understood to mean the ability of indigenous [peoples/populations] to exercise their forms of political, economic, social, and cultural organization within a framework of autonomy and self-government compatible with the national unity of the State.
a. “Self-determination” is understood to mean the ability of indigenous [peoples/populations] to exercise their forms of political, economic, social, and cultural organization within a framework of autonomy and self-government compatible with the organizational structure of each State. (Brazil)
a. “Self-determination” is understood to mean the ability of indigenous [peoples/populations] to freely develop and exercise their forms of political, economic, social, and cultural organization; and to guarantee their access to the State jurisdiction, within a framework of autonomy and self-government compatible with the national unity and juridical organization of the States. (Mexico)
b. This framework of autonomy of self-government finds legal expression in areas and at levels where indigenous [peoples/populations], in accordance with national legislation, exercise their forms of political, economic, social, and cultural organization.
“Territory” is understood to mean the entire habitat, including the lands on which indigenous [peoples/populations] are settled or which they enjoy in some fashion, with the modalities established under national legislation.
“Lands” are understood to mean the entire habitat, including the lands on which indigenous [peoples/populations] are settled or which they enjoy in some fashion, with the modalities established under national legislation. (Peru, Argentina)
“Lands” are understood to mean those areas of land which indigenous peoples may own or have exclusive use of. (Canada)
“Territories” are understood to be those areas which indigenous peoples do not own and do not have exclusive use of, but where they may conduct their traditional lifestyles, in accordance with domestic law or agreement. (Canada)
None of these definitions shall be interpreted to have the meaning that might be attributed to them in general international law.
SECTION TWO. HUMAN RIGHTS
Article II. Full observance of human rights
1. Indigenous [peoples/populations] are entitled to the full and effective enjoyment of the human rights and fundamental freedoms recognized in the OAS Charter, the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, and other international human rights instruments; and nothing in this Declaration shall be construed as in any way limiting, restricting, or denying those rights or authorizing any action not in accordance with the principles of international law, including that of human rights.
1. Indigenous individuals have the right to the full and effective enjoyment of the human rights and fundamental freedoms recognized in the Charter of the OAS, the American Declaration of the Rights and Duties of Man, and, where duly ratified, other international human rights instruments, including the American Convention on Human Rights; nothing in this Declaration shall be construed as in any way limiting, [restricting,] or denying those rights or authorizing any action not in accordance with the relevant instruments of international law, including human rights law. (United States)
2. Indigenous [peoples/populations] have the collective rights that are indispensable for full enjoyment of the individual human rights of their members. Accordingly, the states recognize the right of indigenous [peoples/populations] inter alia to collective action; (to their social, political, and economic organization;) (to recognition of their sets of rules;) to their own cultures; to profess and practice their spiritual beliefs, and to use their languages.
2. Indigenous individuals may exercise their rights, including those as set forth in this Declaration, individually as well as in community with others, without discrimination. Indigenous individuals have a right to be free from discrimination based upon their asserted [Tr. Spanish text says “established”] indigenous status or membership in an indigenous society. (United States)
3. The states shall guarantee all indigenous [peoples/populations] the full exercise of their rights, and shall adopt–in accordance with their constitutional provisions–such legislative or other measures as may be necessary to give effect to the rights recognized in this Declaration (, in accordance with their practices and customs).
3. States should, in accordance with international law, take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous individuals, on the basis of equality and non-discrimination, and recognize the value and diversity of their distinct identities and culture. (United States)
4. States are encouraged to remove any impediments to the free exercise and full enjoyment of these rights. (United States)
Article III. Right to belong to indigenous [peoples/populations]
Indigenous persons and communities have the right to belong to indigenous [peoples/ populations], in accordance with the traditions and customs of the [peoples/populations] or nation concerned.
States should recognize the authority of indigenous [peoples/populations] to exercise autonomy in determining membership, consistent with international human rights. (United States)
Article IV. Legal status
Indigenous [peoples/populations] have the right to have their legal status fully recognized by the states within their legal systems.
States should provide appropriate mechanisms to extend legal status to [recognize the legal status of] indigenous entities [peoples/populations], enabling such [peoples/populations] to operate corporately, or in other comparable effective form, under State law. (United States)
Subject to the specific provisions of each country’s legislation, states shall ensure that legal status is granted to indigenous [peoples/populations], communities, and organizations. (Brazil, Chile, Argentina)
The traditional authorities of indigenous peoples, elected according to their practices and customs, shall have the power to represent these [peoples/populations] and to act in a legal capacity on their behalf. (Bolivia)
Article V. Rejection of forced assimilation
1. Indigenous [peoples/populations] have the right to freely maintain, express and develop all aspects of their cultural identity, untrammeled by any attempt at assimilation.
1. Indigenous people [people/populations] have the right to maintain their distinct cultures, beliefs, religions, and languages, subject to reasonable regulation consistent with international standards. (United States)
2. The states shall not (undertake, support, or favor) (should not adopt, support, or favor) any policy of artificial or forced assimilation of indigenous [peoples/populations], destruction of (their) (a) culture or possibly of the extermination of an indigenous [people/population](and its heritage).
2. States shall refrain from adopting any measure that would result in the forced assimilation of indigenous [people/populations], and from supporting theories or taking actions that entail discrimination, destruction of a culture, or the possibility of genocide. (Brazil)
2. States repudiate any attempt at artificial or forced assimilation, and the destruction, of an autochthonous culture, and shall guarantee effective exercise of the previously mentioned right. (Paraguay)
Article VI. Special guarantees against discrimination
1. Indigenous [peoples/populations] have the right to such (special guarantees) (have recourse to the guarantees contemplated under domestic legislation) against discrimination as may be required for full enjoyment of internationally and nationally recognized human rights, and to any measures necessary to enable indigenous women, men and children to exercise their civil, political, economic, social, cultural and (religious) (spiritual) rights (and their cosmovisions) (without any discrimination). The states recognize that violence used against persons because of their (race, creed) gender or age (or political or religious affiliation) obstructs and nullifies the exercise of those rights.
1. Where circumstances warrant, States should take measures to enable indigenous individuals to exercise fully and effectively all their human rights and fundamental freedoms without any discrimination. States are encouraged to take “special measures” aimed at the immediate, effective, and continuing improvement of indigenous economic and social conditions. (United States)
2. Indigenous [peoples/populations] have the right to full participation in the prescription (and exercise) of such guarantees.
2. All rights and freedoms herein are equally guaranteed to indigenous women and men. States recognize that gender-based violence impedes and undermines the exercise of those rights. (United States)
SECTION THREE. CULTURAL DEVELOPMENT
Article VII. Right to cultural integrity
1. Indigenous [peoples/populations] have the right to their cultural integrity, [and their historical and archeological heritage,] which are important both for their (continuity as a society) (survival) and for the identity of their members.
1. States should respect the cultural integrity of indigenous [peoples/populations], their relationship with their own lands and environment, as well as their historical and archaeological heritage, which are important to the identity of the members of their groups and their ethnic survival. (United States)
[2. Indigenous [peoples/populations] are entitled to the restitution of property of which they have been dispossessed, [or, when that is not possible, to compensation on a basis no less favorable than the standard recognized by international law.]]
Brazil suggests eliminating paragraph 2.
2. Indigenous [peoples/populations] have the right to own their heritage and to restitution if they have been dispossessed of it.(Mexico)
2. States should provide an effective legal framework for the protection of indigenous culture, including, where appropriate, mechanisms for the repatriation of cultural property. (United States)
3. The states recognize and (respect) (promote respect for) indigenous lifestyles, customs, traditions, forms of social organization, institutions, practices, (beliefs, values), (cosmovisions) clothing, and languages.
3. States should take appropriate measures to prevent discrimination based on indigenous lifestyles, customs, traditions, forms of social organization, use of dress, languages, and dialects, and other cultural practices. (United States)
Article VIII. (Logical conceptions and language) (Linguistic rights)
1. Indigenous [peoples/populations] have the right to their own languages, philosophy, and (cosmovision) [logical conceptions] as a component of national and universal culture, and as such, the states shall recognize, respect, and promote them, (in consultation with the [peoples/populations] involved.)
1. States recognize that indigenous languages, philosophy, and outlook are a component of national and universal culture, and, as such, states should respect them and, where appropriate, facilitate their dissemination. (United States)
2. The states shall take measures to promote [and ensure] that radio and television programs are broadcast in the indigenous languages in areas having a strong indigenous presence, and to support the creation of indigenous radio stations and other means of indigenous communications.
2. To encourage diversity of voices and viewpoints, states should take appropriate measures under their national systems wherever possible to facilitate radio and television broadcasts in indigenous languages in regions having large indigenous populations, and to encourage the development of indigenous radio stations and other media. (United States)
2. The states shall take measures to promote and ensure that indigenous languages are used by radio and television stations in areas having a strong indigenous presence, and to support the creation of indigenous means of communication. (Mexico)
3. The states shall take effective measures to enable indigenous [peoples/populations] to understand administrative, legal and political rules and procedures, and to be understood in relation to these matters. In areas where indigenous languages predominate, states shall expend the necessary efforts to have them established as official languages [and to grant them the same status that is accorded to non-indigenous official languages].
3. States should take measures to enable indigenous [peoples/populations] to understand and to be understood when dealing with laws and administrative, legal, and political procedures. (United States)
3. The states shall take effective measures to enable indigenous [peoples/populations] to have full access to state jurisdiction in their own languages. (Mexico)
4. Indigenous [peoples/populations] have the right to use their indigenous names, and to have the states recognize them as such.
Article IX. Education
1. (Taking into consideration the minimum standards set by the competent state authority, (in countries in which national curricula are in force,) for the national education system,) Indigenous [peoples/populations] shall be entitled: (a) to establish and set in motion their own educational programs, institutions and facilities; (b) to prepare and implement their own educational plans, programs, curricula, and teaching materials; and (c) to train, educate, and accredit their teachers and administrators, (in consultation with the competent state authorities and in accordance with applicable education laws and standards). [The states shall take steps to ensure that such systems guarantee equal educational and teaching opportunities for the general population as well as complementarity with the national educational systems.]
1. States should recognize the authority of indigenous [peoples/populations] to (a) establish and operate their own educational programs, institutions, and facilities; (b) to prepare and apply their own educational plans, programs, curricula, and materials; and (c) to train and accredit their own teachers and administrators, provided that indigenous educational programs meet generally applicable minimum state requirements in the field of education. (United States)
2. When indigenous [peoples/populations] so desire, educational systems shall be conducted (where practicable) in the indigenous languages and shall incorporate indigenous content, and they shall also be given the necessary training and means for complete mastery of the official language or languages.
2. Non-discriminatory access to public education is a right that should be enjoyed by indigenous individuals in common with other citizens of the State. State-funded education should respect indigenous cultures. (United States)
3. The states shall ensure that those educational systems are equal in quality, efficiency, accessibility and in all other respects to that provided to the general population.
3. States should take appropriate measures so that, wherever possible, indigenous individuals have adequate opportunities to learn their native indigenous language or to receive instruction in that language. (United States)
Proposal by Canada for a new paragraph:
Indigenous children living outside their communities should, where practicable, have access to education in their own culture and language.
4. The states shall include in national general educational systems content reflecting the pluricultural nature of their societies.
[5. The states shall provide financial and any other type of assistance needed to implement the provisions of this article, (without prejudice to support for the rest of the population).]
5. States should take appropriate measures to provide resources for these purposes (United States)
Argentina suggests deleting paragraph 5.
Commentary: Canada suggests merging paragraphs 3 and 5 into a single paragraph, which would then read as follows:
“States [shall/should] take effective measures to provide appropriate resources for these purposes.”
Article X. Spiritual and religious freedom
1. Indigenous [peoples/populations] have (shall have) the right to freedom of conscience, freedom of religion and spiritual practice, [and to exercise them both publicly and privately].
1. Indigenous individuals have the right to freedom of thought, conscience, and religion. (United States)
2. The states shall take the necessary measures to prohibit attempts to forcibly convert indigenous [peoples/populations] or to impose on them beliefs against their will.
2. This right shall include freedom to have or adopt a religion or belief of her or his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice, and teaching. (United States)
2. Indigenous [peoples/populations] have the right to preserve and practice their religious or philosophical beliefs, the only condition being respect for public order and the full and effective enjoyment by the persons making up those [peoples/populations] of their internationally recognized human rights. States must take the necessary measures to prohibit any attempt to forcibly convert an indigenous [people/population] or to impose on it beliefs or religious practices against its will. (Inter-American Juridical Committee, with amendment by Mexico. English re-translated.)
3. In collaboration with the indigenous [peoples/populations] concerned, the states shall (make best efforts to) adopt effective measures to ensure that their sacred places, including burial sites, are preserved, respected and protected. [When sacred graves and relics have been appropriated by state institutions (or private entities), they shall be returned.]
3. States shall take appropriate measures, in consultation with the indigenous [peoples/populations] concerned, to preserve and protect sites that are sacred to them, including burial sites. States should provide an effective legal framework for the return of sacred objects, relics, and human remains taken from graves or sacred sites.(United States)
[4. The states shall ensure respect from society as a whole (and from institutions) for the integrity of indigenous spiritual symbols, practices, sacred ceremonies, expressions and protocols.]
Mexico suggests deleting this paragraph.
4. States are encouraged to respect the use of sacred and ceremonial areas and to provide for indigenous access to and use of such sites as may be under the management or control of a State. (United States)
Article XI. Family relations and family ties
1. The family is the natural and basic unit of societies and must be respected and protected by the state. [Consequently, the state shall recognize and respect the various forms of the indigenous (family), (parental systems), marriage, (assignment of name) family name and filiation.]
1. The family in all its forms is the natural and fundamental group unit of society and is entitled to protection by society and the State. (United States)
2. In determining the child’s best interests in matters relating to the protection and adoption of children of members of indigenous [peoples/populations], and in the severance of ties and other similar circumstances, consideration shall be given by courts and other relevant institutions to the views of the [peoples/populations], including individual, family and community views.
2. Consistent with international human rights instruments, States should accord appropriate recognition to indigenous institutions, laws, and traditions concerning the family and the integrity of family relations. (United States)
3. Proposal by Mexico regarding indigenous women pending.
Article XII. Health and well-being
1. Indigenous [peoples/populations] have the right to [legal] [recognition and practice of their traditional medicine, treatment, pharmacology, health practices and promotion], including preventive measures and rehabilitation], (subject to national laws).
Argentina suggests that no reference should be made to legal recognition of the practice of their traditional medicine, treatment, pharmacology, health practices and promotion, including preventive measures and rehabilitation.
1. Indigenous [peoples/populations] have the right to practice their traditional medicine, treatment, pharmacology, practical notions, and health promotion, within the framework of existing legislation and the general public health policies of the State. (Mexico and Peru)
1. Indigenous [peoples/populations] are entitled to State recognition of their traditional medical practices, treatment, pharmacology, practical notions and health promotion. (Venezuela)
1. States should take appropriate measures to protect the freedom of indigenous individuals to use, maintain, develop, and manage their own health services, provided such services meet the standards of generally applicable laws adopted in the interest of public health and welfare. In addition, indigenous individuals have the right to non-discriminatory access to health services available to the general public. (Unites States)
1. Indigenous peoples preserving traditional forms of social organization, communal governance system, or traditional practices and customs with respect to family, health, education, property, commercial or productive activities, or the prevention and punishment of criminal activities, have the right to preserve and freely exercise such rights, the only condition being respect for public order and the full and effective enjoyment by the persons making up those [peoples/populations] of their internationally recognized human rights. The State must make every reasonable effort, in consultation with the parties concerned, to harmonize and reconcile the effect of these customs with the overall legal system.(Inter-American Juridical Committee)
Proposal by Chile for a new paragraph:
States undertake to seek, in accordance their domestic legislation, ways to make traditional medicine compatible with scientific medicine.
2. Indigenous [peoples/populations] have the right to protection of (live organisms and) (medicinal plants, animals, and) minerals (used for medicinal purposes) that are vital for survival in their traditional territories.
2. States should take reasonable measures to protect from endangerment or extinction medicinal plants and animals that are vital to indigenous medicine. (United States)
2. States shall endeavor to protect medicinal plants, animals, and minerals of indigenous [peoples/populations] in their traditional territories. (Canada)
3. Indigenous [peoples/populations] shall be entitled to use, maintain, develop and manage their own health services, (in accordance with national standards and, on the same footing as other members of society, indigenous individuals shall also have access)and they shall also have access to all health institutions and services and medical care (accessible to the general population).
3. Where circumstances so warrant, states, in consultation with indigenous [peoples/populations], should take measures to improve health conditions in indigenous societies and assist them to maintain health conditions in accordance with nationally and internationally accepted standards. (United States)
4. The states shall (make best efforts to) provide the necessary means for indigenous [peoples/populations] to (eliminate) (improve) any health conditions in their communities that fall below the standards accepted for the general population.
Proposal by Brazil for a new paragraph:
Indigenous peoples shall be entitled to fair and equitable distribution of the profits generated by commercial exploitation of their traditional know-how. (Brazil)
New paragraph proposed by Bolivia:
Indigenous [peoples/populations] have the right to participate in the use and exploitation of the renewable natural resources in their traditional territories. (Bolivia)
Article XIII. The right to environmental protection
1. (States shall make best efforts to provide) Indigenous [peoples/populations] (have the right to) (with) a safe and healthy environment, which is an essential condition for enjoyment of the right to life and collective well-being, (and indigenous [peoples/populations] shall also enjoy possession and use of resources that are not of strategic importance to the State).
1. States should take reasonable measures to ensure that regions inhabited by indigenous [peoples/populations] enjoy the same measure of protection under environmental legislation and through enforcement action as others within the national territory. (United States)
2. Indigenous [peoples/populations] have the right to be informed (and consulted) of (regarding) measures which could affect their environment, including information ensuring their effective participation in acts and policies which might affect it.
2. Indigenous individuals are entitled to nondiscriminatory access to information on environmental hazards and participation in the development of public policy with respect to the environment. (United States)
3. Indigenous [peoples/populations] shall have the right to conserve, restore, (exploit) and protect their environment and the productive capacity of their [lands], [territories] and resources.
3. As part of the management of their own lands, indigenous [peoples/populations] may regulate environmental conditions consistent with applicable State standards and may participate in the formulation and implementation of governmental conservation programs undertaken with respect to those lands. (United States)
4. Indigenous [peoples/populations] have the right to full participation in formulating, planning, managing, and applying governmental programs (and policies) for the conservation (and exploitation) of their [lands], [territories], and resources.
4. States are encouraged to take measures to help indigenous [peoples/populations] preserve the environment and should provide them with nondiscriminatory access to generally available programs for purposes of environmental protection. (United States)
4. States shall make best efforts to eliminate such health conditions in indigenous communities which fall below internationally accepted minimum standards. (Canada)
5. Indigenous [peoples/populations] shall have the right to assistance from their states for purposes of environmental protection, and shall be allowed to receive assistance from international organizations, (in accordance with procedures established in national legislation).
6. The states shall prohibit and punish, and in conjunction with the indigenous [peoples/populations], shall impede the introduction, abandonment, or deposit of radioactive materials or residues, toxic substances and waste material in contravention of legal provisions; as well as the production, introduction, transportation, possession or use of chemical, biological and nuclear weapons in indigenous areas. (The Chair proposes including a reference to drug trafficking, and the passing on, holding of, or trafficking in chemical precursors.)
7. When a state declares an indigenous territory to be a protected area, and in the case of any [lands], [territories] [under potential or actual claim] by indigenous [peoples/populations], as well as [lands] used as natural biopreserves, conservation areas shall not be subject to any natural resource development without the[ informed consent and] (informed) participation of the [peoples/populations] concerned.
SECTION FOUR. ORGANIZATIONAL AND POLITICAL RIGHTS
Article XIV. The rights of association, assembly, freedom of expression, and freedom of thought
1. Indigenous [peoples/populations] have the right of association, assembly, and expression pursuant to their values, usages, customs, ancestral traditions, beliefs, and religions (, in keeping with national law) (and bearing in mind the international instruments on the matter).
1. Indigenous individuals have the right to freedom of association, assembly, opinion, and expression. (United States)
2. Indigenous [peoples/populations] have the right of assembly and to the use of their sacred and ceremonial areas, as well as the right to full contact and common activities with their members living in the territory of neighboring states (, in keeping with state border control regulations).
2. In those cases where a single indigenous population is established in the territory of two or more states, the latter shall spare no reasonable effort–without prejudice to their public policy, to their security and defense, or to measures necessary to prevent criminal or illicit activities–to preserve communication, cooperation, and traditional exchanges among individuals belonging to that indigenous population. (CJI)
2. Indigenous peoples have the right of assembly and to the use of their sacred and ceremonial areas, subject to the existing rights of third parties. They also have the right to maintain and develop contacts, relations and undertake activities with their members, and with other indigenous peoples, across borders, which may be subject to reasonable and non-discriminatory customs and immigration regulation. (Canada)
2. Indigenous individuals have the right to full contact and common activities with sectors and members of their ethnic groups living in the territory of neighboring states, subject to the nondiscriminatory enforcement of customs and immigration laws. (United States)
Article XV. [The right to self government]
1. [Indigenous [peoples/populations] have the right to freely determine (their traditional forms of communal association) (their political status) and freely pursue their economic, social, spiritual, and cultural development, and are therefore entitled to (participate in managing their specific institutions) [autonomy or self-government] with regard, inter alia, to culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resource management, the environment and entry by nonmembers; and to determine ways and means for financing these autonomous functions.]
1. States should recognize, where appropriate and on the basis of a fair and open process, a broad range of autonomy for indigenous [peoples/populations] to manage their local and internal affairs, including social, economic, and cultural matters. States are encouraged to utilize indigenous [peoples/populations] to deliver social and economic services to indigenous societies. (United States)
* Note from the Chair: This question (paragraph 1) depends upon what is decided regarding the section on definitions.
2. Indigenous [peoples/populations] have the right to participate without discrimination, if they so decide, in decision-making, at all levels, concerning matters which might affect their rights, lives, and destiny. They may do so directly or through representatives chosen by them pursuant to their own procedures. They shall also have the right to maintain and develop their own indigenous decision-making institutions, as well as equal opportunities to gain access to, and participate in, all national institutions and fora.
2. Indigenous individuals have the right to participate on an equal basis with other citizens in all national fora, including local, provincial, and national elections. Where a state's policy, decision, or action will have a direct effect on indigenous property, rights, or other interests, states are encouraged to provide indigenous people [peoples/populations] or their representatives the opportunity to be heard on the subject. (United States)
Article XVI. Indigenous law
1. Indigenous law shall be recognized as a part of [the states' legal systems and] the framework in which the states’ social and economic development takes place.
1. The law of indigenous [peoples/populations] shall be recognized as part of the legal systems, framework for social and economic development, and pluralism of states. (Mexico)
1. Indigenous law shall be recognized as an integral part of state legal systems and the framework for social and economic development of indigenous [peoples/populations]. (United States)
1. Indigenous law shall be taken into account when decisions involving indigenous [peoples/populations] are adopted. (Argentina)
1. The law of indigenous [peoples/populations] shall be recognized as part of the legal system and framework for economic and social development of each state, as long as that system and that framework are not incompatible with the fundamental rights defined by the national legal system or with internationally recognized human rights. (Guatemala)
2. Indigenous [peoples/populations] have the right to maintain and reinforce their (legal) (regulatory) systems and to apply them to affairs within their communities, including systems addressing such matters as conflict resolution, crime prevention, and the maintenance of peace and harmony.
2. States, where appropriate, should take measures to enhance the capacity of indigenous [peoples/populations] to maintain and strengthen their own legal systems with respect to internal matters, including control of real property and natural resources, resolution of disputes within and between indigenous [peoples/populations], law enforcement, and maintenance of internal peace and harmony. (United States)
* Note: The United States proposal is intended to consolidate paragraphs 2 and 3.
3. In the jurisdiction of each state, procedures involving indigenous persons or their interests shall be conducted in such a way as to ensure the right of indigenous [peoples/populations] to full representation with dignity and equality before the law. [This (may) (shall) include observance of indigenous law and customs and, where necessary, (in criminal proceedings,) (the use of) their language (through interpretation). Venezuela proposes that the second part of the paragraph be deleted.
Article XVII. (National incorporation of indigenous legal and organizational systems) (Right of access of indigenous peoples to state jurisdiction) (Incorporation of traditional practices of indigenous populations in national institutions)
1. The states shall facilitate the (incorporation) (inclusion), where practicable, of the institutions and traditional practices of indigenous [peoples/populations] in their (national) (organizational) structures, in consultation with, and subject to the consent of, the [peoples/populations] concerned.
1. The states should facilitate inclusion within their national organizational structures, wherever appropriate, of institutions and traditional practices of indigenous [peoples/populations]. (United States)
2. The relevant institutions in each state which serve indigenous [peoples/populations] should be designed in consultation with, and with the participation of, the [peoples/populations] concerned, so as to reinforce and promote the identity, cultures, traditions, organization, and values of those [peoples/populations].
2. The institutions of each state shall be designed or updated in consultation with indigenous [people/populations], thereby guaranteeing their access to state jurisdiction. (Mexico)
2. States are encouraged in predominantly indigenous areas to facilitate the design and establishment of institutions that reflect and reinforce the identity, culture, and organization of those populations, to promote indigenous participation. (United States)
SECTION FIVE. SOCIAL, ECONOMIC, AND PROPERTY RIGHTS
Article XVIII. Traditional forms of property ownership [and cultural survival]. The rights to land and territories
1. Indigenous [peoples/populations] have the right to legal recognition of their varied and specific forms and modes of possession, control, and enjoyment of [territories and] property (, on the basis of each state's legal system).
1. States should respect the culture and values of indigenous [peoples/populations] and the special relationship between indigenous societies and their lands and interests in their lands, including traditional uses such as subsistence farming. (USA)
1. Indigenous [peoples/populations] have the right to legal recognition of their collective and individual possession, their control, and their enjoyment of their lands, as provided under the law of each state, as well as the use of those to which they also have had access for their traditional activities and livelihood. (Mexico; this text would combine paragraphs 1 and 2.)
2. (In accordance with applicable national law,) Indigenous [peoples/populations] are entitled to recognition of their property and ownership rights with respect to lands, territories, and resources they have (traditionally) (historically) occupied, and to the use of those to which they also have had access for their traditional activities and livelihood.
2. States should recognize forms of corporate ownership of land that reflect indigenous land tenure systems. (USA)
2. In accordance with specific national law, indigenous [peoples/populations] have the permanent, exclusive, inalienable, imprescriptible, indefeasible, and nontransferrable right of possession, ownership, and use of lands they traditionally occupy and of lands to which they traditionally have had access for their traditional activities and livelihood. (Brazil; this text would combine paragraphs 2 and 3)
3. i. Subject to the contents of 3.ii., when property and user rights of indigenous [peoples/populations] arise from rights existing prior to the creation of those states, the states shall recognize the titles of indigenous [peoples/populations] relative thereto as permanent, exclusive, inalienable, imprescriptible, and indefeasible.
ii. Such titles may be changed only by mutual consent between the state and the indigenous [peoples/populations] involved and when the latter have full knowledge and understanding of the nature or attributes of such property.
iii. Nothing in 3.i. shall be construed as limiting the right of indigenous [peoples/populations] to attribute ownership within the community in accordance with their customs, traditions, usages, and traditional practices, nor shall it affect any collective community rights thereto.
4. Indigenous [peoples/populations] have the right to an effective legal framework for the protection of their rights with respect to the natural resources on their lands, including the ability to use, manage, and conserve such resources, and with respect to traditional uses of their lands and their interest in lands and resources, such as subsistence items.
4. States should provide an effective legal framework for the protection of the rights of indigenous [peoples/populations] with respect to their natural resources on their lands, including the ability to use, manage, and conserve such resources, … such as subsistence. (USA)
5. [In the event that subsoil minerals or subsoil resources belong to the state, or that the state has rights to other resources on the lands, the states shall establish or maintain procedures for the participation of the [peoples/populations] concerned in determining whether their own interests would be adversely affected, and to what extent, before undertaking or authorizing any program for prospecting, planning, or exploiting the resources existing on their lands. The [peoples/populations] concerned shall participate in the benefits of such activities[[, and shall receive compensation, on a basis no less favorable than the standard sum under international law,] for any loss they may sustain as a result of such activities]]. Argentina proposes that the last part of the paragraph be deleted. Venezuela proposes that the entire paragraph be deleted. Brazil proposes that the reference to compensation on a basis no less favorable than the standard sum under international law be deleted.
5. In situations in which the state retains the ownership of mineral or subsurface resources or rights to other resources pertaining to lands held by indigenous societies, states should establish procedures to consult with them before undertaking or authorizing any program for exploiting such resources. Where possible, indigenous [peoples/populations] should benefit from these activities and receive just compensation for any damages sustained as a result. (USA)
6. Unless exceptional circumstances so warrant in the public interest, the states shall not transfer or relocate indigenous [peoples/populations] without the free, genuine, public, and informed consent of those [peoples/populations]; [and in all cases with prior compensation and] prompt replacement of lands appropriated, which must be of similar or better quality and have the same legal status; and guaranteeing the right to its return if the causes that gave rise to the displacement cease to exist.
6. States are encouraged to avoid relocation of indigenous societies. As a general matter, the free and informed consent of indigenous [peoples/populations] should be obtained before they are removed from their lands. Where such consent cannot be obtained, such removals should take place only in exceptional circumstances following appropriate procedures established by national laws and regulations. When indigenous [peoples/populations] have been removed from their lands, they should be given the opportunity to return should the reasons for their relocation cease to exist. (USA)
7. [Indigenous [peoples/populations] have the right to restitution of the lands, territories, and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, occupied, used, or damaged; or, when restitution is not possible, the right to compensation on a basis no less favorable than the standard set by international law .] Argentina, seconded by Venezuela, and Brazil proposes that this paragraph be deleted.
The United States proposes four new paragraphs:
States should respect the physical security of indigenous [peoples/populations]. During periods of armed conflict, states may require the total or partial evacuation of indigenous people if the security of the population or imperative military reasons so demand.
States should protect the right of indigenous individuals to own, develop and enjoy land, and interests in land, to the same extent as other individuals.
States should protect indigenous individuals and [peoples/populations] in the use and occupancy of their land. If their land is taken by the state, it should be for a public purpose and just compensation should be provided. States should consider the possibility of negotiated settlements, including the return of land as appropriate, when not otherwise required by law.
States should establish penalties and enforcement mechanisms to protect the lands of indigenous individuals and [peoples/populations] from unauthorized intrusions and uses.
8. The states shall take all possible measures[, including the use of law enforcement mechanisms,] to avert, prevent, and punish, when applicable, any intrusion on or use of those lands by unauthorized persons in order to take possession or make use thereof. [The states shall place maximum priority on the demarcation and recognition of properties and areas of indigenous use.]
Article XIX. Workers' rights
1. Indigenous [peoples/populations] shall be entitled to full enjoyment of the rights and guarantees recognized under international labor law and domestic labor law (which have been recognized by the states); and to special measures to correct, redress, and prevent the discrimination to which they (might be subjected) (have historically been subjected).
1. Indigenous individuals have the right not to be subjected to any discriminatory conditions of labor, employment, salary, or other related benefits. (USA)
Proposal by Canada:
Indigenous individuals shall enjoy fully all rights established under applicable international and national labor law. States should take immediate and effective measures to ensure that indigenous children are protected from the worst forms of child labor.
Indigenous individuals have the right not to be subjected to any discriminatory conditions of labor, employment, or salary.
2. To the extent to which they are not effectively protected by laws applicable to workers in general, the states shall take such special measures as may be necessary to:
a. effectively protect workers and employees who are members of indigenous communities in regard to fair and equal hiring and terms of employment;
b. improve the labor inspection and enforcement service in regions, companies, or paid activities involving indigenous workers or employees;
c. ensure that indigenous workers:
i. enjoy equal opportunity and treatment as regards all conditions of employment, job promotion and advancement; and other conditions as stipulated under international law;
ii. enjoy the right of association (for lawful purposes), the freedom to engage in all (lawful) trade union activities, and the right to enter into collective agreements with employers or with workers’ organizations;
iii. are not subjected to racial, sexual, or other forms of harassment;
iv. are not subjected to coercive hiring practices, including servitude for debts or any other form of servitude, even if they are based on law, custom, or an individual or collective arrangement, which shall be deemed absolutely null and void in each instance;
v. are not subjected to working conditions that endanger their health and personal safety; and
vi. receive special protection when they serve as seasonal, casual, or migrant workers, and also when they are hired by labor contractors, so that they will benefit from national law and practice, which must itself be consistent with established international human rights standards for this type of worker; and
vii. that their employers are also made fully aware of the rights of indigenous workers, pursuant to national law and international standards, and of the resources and means available to them for the protection of those rights.
2. Indigenous individuals should have the right to special measures, where circumstances so warrant, to correct, redress, and prevent the discrimination to which they may have been subject historically. (USA)
Article XX. Intellectual property rights
1. Indigenous [peoples/populations] have the right to the recognition and full ownership, control, and protection of their cultural, artistic, spiritual, technological, and scientific (and biogenetic) heritage, and legal protection of their intellectual property through patents, trademarks, copyright, and other such procedures as established under domestic law; [as well as to special measures which ensure them legal status and institutional capacity to develop, use, share, market, and bequeath that heritage to future generations]. Venezuela proposes that the last section be deleted; Mexico seconds the motion.
1. Indigenous individuals are entitled to apply for and receive, on a non-discriminatory basis, legal protection for their intellectual property through trademarks, patents, copyright, and other such procedures as established under domestic law. (USA)
1. Indigenous populations and their members shall have the right to benefit from the intellectual property rights system under the same terms as the general population. The state shall spare no reasonable effort to protect the intellectual property rights of the indigenous population and its members and to prevent third parties from using an indigenous population's lack of familiarity with intellectual property rights to their own advantage. (CJI)
2. Indigenous [peoples/populations] have the right to control and develop their sciences (and) technologies (and genetic resources), including their human and genetic resources [in general, seeds, medicine, knowledge of plant and animal life, and original designs and procedures](in keeping with applicable national law). Mexico proposes that all the text in square brackets be deleted.
3. The states shall take appropriate measures to ensure the participation of indigenous [peoples/populations] in determining the rights cited in paragraphs 1 and 2.
Article XXI. (The right to development) (Economic development)
1. The states recognize the right of indigenous [peoples/populations] to decide (autonomously) [democratically] what values, objectives, priorities, and strategies will (guide) (govern and orient) the course of their development[, even when these differ from those adopted by the state at the national level or by other segments of society]. Indigenous [peoples/populations] shall be entitled to obtain, without discrimination of any kind, appropriate means for their own development [according to their preferences and values; and to contribute in their own ways, as distinct societies, to national development and international cooperation.]
1. States should take reasonable measures to consult with indigenous [peoples/populations] when considering public policies for the economic development of indigenous lands or regions, or programs that will affect the living conditions or other legitimate interests of such societies. (USA)
2. Unless exceptional circumstances so warrant in the public interest, the states shall take the necessary measures to ensure that decisions regarding any plan, program, or proposal affecting the rights or living conditions of indigenous [peoples/populations] are not made without the free and informed [consent and] participation of those [peoples/populations]; that their preferences are recognized; and that no provision which might have negative effects on those [peoples/populations] is adopted.
3. [Indigenous [peoples/populations] have the right to restitution or compensation, no less favorable than the standard under international law, for any loss caused them by the execution of those plans or proposals despite the foregoing precautions; and to the adoption of measures to mitigate adverse ecological, economic, social, cultural, or spiritual effects.] Argentina proposes that this paragraph be deleted; Brazil seconds the motion.
SECTION SIX. GENERAL PROVISIONS
Mexico suggests deleting the whole of this section.
[Article XXII. Treaties, acts, agreements and constructive arrangements
Indigenous [peoples/populations] have the right to the recognition, observance, and enforcement of valid treaties, agreements, and other arrangements that may have been concluded with states or their successors, as well as [historical acts], according to their spirit and intent; and to have states honor and respect such treaties, agreements, and constructive arrangements as well as the [historical rights] emanating from those instruments. [Conflicts and disputes which cannot otherwise be settled shall be submitted to the competent domestic bodies.]]
States should take all necessary steps under domestic law to implement obligations to indigenous [peoples/populations] under treaties and other agreements negotiated with them and, where appropriate, to establish procedures for resolving grievances arising under such treaties and agreements in accordance with principles of equity and justice. (United States)
Indigenous[peoples/populations] are entitled to recognition, respect, and application of the treaties, agreements, and any other arrangements they might have made with the States or their successors, in the spirit and intention with which they were concluded, and to take steps to ensure that they are respected and complied with by the States. (Brazil. Original text: Portuguese)
Nothing in this instrument shall be construed as excluding or limiting existing or future rights which indigenous [peoples/populations] may have or acquire.
Nothing in this declaration should be construed as diminishing or extinguishing rights of indigenous individuals or [peoples/populations]. (United States)
The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous [peoples/populations] of the Americas.
Nothing in this instrument shall be construed as granting any rights to ignore boundaries between states.
Nothing in this Declaration implies or may be construed as permitting any activity contrary to the purposes and principles of the Organization of American States, including sovereign equality, territorial integrity and political independence of states.]
Brazil and Mexico suggest deleting Article XXVI.
[Article XXVII. Implementation
The Organization of American States and its organs, agencies, and entities–in particular the Inter-American Indian Institute, the Inter-American Commission of Human Rights–shall promote respect for, and full application of, the provisions of this Declaration.]]
Argentina, Brazil, and Mexico suggest eliminating this article.
New paragraph proposed by Brazil:
“The nature and scope of the measures to be taken to comply with this Declaration shall be determined flexibly, taking into account the particular circumstances of each country.”
CONSEJO PERMANENTE DE LA OEA/Ser.K/XVI
ORGANIZACIÓN DE LOS ESTADOS AMERICANOS GT/DADIN/INF-3/99
30 noviembre 1999
COMISIÓN DE ASUNTOS JURÍDICOS Y POLÍTICOS Original: Textual
Grupo de Trabajo encargado de elaborar el
Proyecto de Declaración sobre los Derechos de
las Poblaciones Indígenas
Presentación del Embajador Claude Heller
Representante Permanente de México y
Presidente del Grupo de Trabajo.
8-12 de noviembre de 1999
Presentación del Embajador Claude Heller
Representante Permanente de México y
Presidente del Grupo de Trabajo.
8-12 de noviembre de 1999
MUY BUENOS DIAS. DAMOS INICIO A ESTA REUNION DEL GRUPO DE TRABAJO DE LA COMISION DE ASUNTOS JURIDICOS Y POLITICOS DEL CONSEJO PERMANENTE ENCARGADO DE LA ELABORACION DEL PROYECTO DE DECLARACION AMERICANA SOBRE LOS DERECHOS DE LAS POBLACIONES INDIGENAS, QUE SE CELEBRA DE CONFORMIDAD CON EL MANDATO DE LA ASAMBLEA GENERAL DE LA OEA CONTENIDO EN SU RESOLUCION 1610 ADOPTADA EN JUNIO PASADO EN GUATEMALA.
DOY LA BIENVENIDA AL SECRETARIO GENERAL DE LA ORGANIZACION, A LAS DELEGACIONES GUBERNAMENTALES, OBSERVADORES PERMANENTES, REPRESENTANTES DE ORGANOS, ORGANISMOS Y ENTIDADES DEL SISTEMA INTERAMERICANO, ASI COMO A LOS REPRESENTANTES DE COMUNIDADES INDIGENAS QUE NOS ACOMPAÑAN EN ESTA REUNION.
HOY REANUDAMOS LA TAREA INICIADA POR EL GRUPO DE EXPERTOS GUBERNAMENTALES QUE SE REUNIO EN FEBRERO PASADO EN ESTA CIUDAD. COMO PUDIMOS CONSTATAR EN ESA OCASION, LA TAREA QUE NOS ENCOMENDO LA ASAMBLEA GENERAL NO ES SENCILLA. EMPRENDEMOS UN EJERCICIO EN EL QUE DEBEN CONCILIARSE POSICIONES GUBERNAMENTALES Y EN EL QUE TAMBIEN SE DEBEN ENCONTRAR FORMULAS CREATIVAS QUE PERMITAN UNA PARTICIPACION ADECUADA DE REPRESENTANTES DE COMUNIDADES INDIGENAS.
AL MISMO TIEMPO, ES EVIDENTE QUE NO ESTAMOS EMPEZANDO DESDE CERO, YA QUE CONTAMOS CON APORTACIONES PRESENTADAS POR LOS ESTADOS MIEMBROS, ORGANOS DEL SISTEMA Y REPRESENTANTES DE COMUNIDADES INDIGENAS, LOS CUALES NO HACEN SINO ENRIQUECER NUESTROS TRABAJOS.
COMO BIEN SEÑALA LA ASAMBLEA GENERAL EN LA RESOLUCION 1610, LA DECLARACION CUYA ELABORACION SE NOS HA ENCOMENDADO, DEBE “FORTALECER EL RECONOCIMIENTO, LA PROMOCIÓN Y LA PROTECCIÓN DE LOS DERECHOS DE LAS POBLACIONES INDIGENAS” Y CONTRIBUIR AL DESARROLLO DE LAS ACTIVIDADES DE LA OEA SOBRE LA MATERIA.
CON DICHO OBJETIVO EN MENTE, LA PRESIDENCIA ESTA CONVENCIDA DE QUE NUESTRA DECLARACION DEBE SER UN DOCUMENTO QUE MIRE HACIA EL FUTURO, PARTIENDO DEL RECONOCIMIENTO DE LAS MUY DIVERSAS EXPERIENCIAS HISTORICAS, CULTURALES, SOCIALES, Y ECONOMICAS TANTO DE LOS ESTADOS MIEMBROS DE LA ORGANIZACION COMO DE LAS COMUNIDADES INDIGENAS DE TODO NUESTRO HEMISFERIO. LA DECLARACION DEBE CONSTITUIR UN MARCO DE REFERENCIA FUNDAMENTAL PARA LAS POLITICAS NACIONALES QUE COADYUVE AL MISMO TIEMPO A LA CONSECUCION DE LAS ASPIRACIONES INDIGENAS Y A SU PLENA PARTICIPACION EN EL DESAROLLO ECONOMICO Y SOCIAL DE NUESTRAS SOCIEDADES.
EL INOBJETABLE COMPROMISO DE TODOS LOS PARTICIPANTES EN ESTE PROCESO ENFRENTA SIN LUGAR A DUDA LAS LIMITACIONES REALES QUE NOS IMPONEN EL CALENDARIO Y LOS RECURSOS MATERIALES A NUESTRA DISPOSICION. EL HECHO DE QUE EN MOMENTOS EN QUE LA ORGANIZACION ENFRENTA SERIOS PROBLEMAS FINANCIEROS, SE CELEBRE ESTA REUNION DE CINCO DIAS DE DURACION, ES UN EJEMPLO CONCRETO DEL COMPROMISO DE TODOS LOS ESTADOS MIEMBROS CON ESTA TAREA.
POR ELLO, EXHORTO A TODOS LOS PARTICIPANTES A APROVECHAR AL MAXIMO EL TIEMPO DISPONIBLE MEDIANTE SU PARTICIPACION ACTIVA, ENFOCADA DIRECTAMENTE EN EL TEMA BAJO DISCUSION, EVITANDO DECLARACIONES GENERALES. A RESERVA DE REFERIRME MAS ADELANTE A LA FORMA EN QUE LA PRESIDENCIA CONDUCIRA EL EXAMEN DEL DOCUMENTO, AGRADEZCO DE ANTEMANO LA BREVEDAD DE SUS INTERVENCIONES Y SU ACTITUD CONSTRUCTIVA, YA QUE SOLO A TRAVES DE NUESTRO ESFUERZO COLECTIVO LOGRAREMOS AVANZAR EN ESTA REUNION.
DE ACUERDO CON LAS DELIBERACIONES DE LA COMISION DE ASUNTOS JURIDICOS Y POLITICOS, EL PASADO 22 DE OCTUBRE LA PRESIDENCIA DIRIGIO COMUNICACIONES A TODAS LAS MISIONES PERMANENTES, AL SECRETARIO GENERAL Y AL DIRECTOR DEL INSTITUTO INDIGENISTA INTERAMERICANO ESTABLECIENDO LA METODOLOGIA DE TRABAJO Y LAS MODALIDADES DE PARTICIPACION DE LOS REPRESENTANTES DE COMUNIDADES INDIGENAS, DESARROLLADAS A PARTIR DE LAS RESOLUCIONES PERTINENTES DE LA ASAMBLEA GENERAL Y DEL CONSEJO PERMANENTE. ESTAS, ORIENTADAS A QUE ESTEMOS EN POSIBILIDAD DE CONCLUIR POR LO MENOS UNA PRIMERA REVISION DEL PROYECTO DE DECLARACION, PUEDEN RESUMIRSE DE LA SIGUIENTE MANERA:
CENTRAR LAS DISCUSIONES EN LA PARTE DISPOSITIVA DEL PROYECTO DE DECLARACIÓN.
REVISAR LOS ARTÍCULOS DEL PROYECTO DE DECLARACIÓN SOBRE LA BASE DE UNA AGRUPACIÓN TEMÁTICA, CORRESPONDIENTE A LOS CAPÍTULOS IDENTIFICADOS EN EL DOCUMENTO, SIN PREJUZGAR EL ORDEN EN QUE PUEDAN SER ABORDADOS: ÁMBITO DE APLICACIÓN Y DEFINICIONES; DERECHOS HUMANOS; DESARROLLO CULTURAL; DERECHOS ORGANIZATIVOS Y POLÍTICOS; DERECHOS SOCIALES, ECONÓMICOS Y DE PROPIEDAD; Y DISPOSICIONES GENERALES.
EN LO RELATIVO A LAS MODALIDADES DE PARTICIPACIÓN DE REPRESENTANTES DE COMUNIDADES INDÍGENAS, LA PRESIDENCIA OTORGARA A DICHOS REPRESENTANTES, AL INICIO DE LA CONSIDERACION DE CADA AGRUPACIÓN TEMÁTICA, UN ESPACIO DE TIEMPO SUFICIENTE PARA QUE ÉSTOS PUEDAN FORMULAR SUS COMENTARIOS. ASIMISMO, SUJETO AL GRADO DE AVANCE EN LOS TRABAJOS, LA PRESIDENCIA PERMITIRÁ PARTICIPACIONES ADICIONALES AL FINAL DE LAS DISCUSIONES. ES EVIDENTE EN QUE LAS POSIBILIDADES DE PARTICIPACIONES ADICIONALES AUMENTARAN EN LA MEDIDA EN QUE LOGREMOS AGOTAR LAS DISCUSIONES SOBRE CADA PUNTO EN UN TIEMPO RAZONABLE. AQUI NUEVAMENTE LA PRESIDENCIA PIDE RESPETUOSAMENTE LA COOPERACION DE LOS REPRESENTANTES DE LAS ORGANIZACIONES INDIGENAS QUE NOS ACOMPAÑAN, INVITÁNDOLOS A COORDINAR SUS INTERVENCIONES Y A ORGANIZAR LOS TURNOS EN EL USO DE LA PALABRA. AL MISMO TIEMPO, LES PIDO QUE ANTES DE FORMULAR SUS INTERVENCIONES, SE IDENTIFIQUEN EN EL MICROFONO.
POR OTRA PARTE, SE HA RESERVADO EL SALON GABRIELA MISTRAL, UBICADO EN EL PISO PRINCIPAL DE ESTE EDIFICIO PARA QUE LOS REPRESENTANTES DE COMUNIDADES INDIGENAS CUENTEN CON UN ESPACIO PROPIO PARA CONSULTAR Y COORDINAR SU PARTICIPACION.
COMO SE ESTABLECE EN EL PROYECTO DE TEMARIO CONTENIDO EN EL DOCUMENTO CP/CAJP-1582/99, CENTRAREMOS NUESTROS TRABAJOS EN LA CONSIDERACION DE LA PARTE DISPOSITIVA DEL PROYECTO DE DECLARACION. EN SUS INTERVENCIONES, LA PRESIDENCIA LOS INVITA A TOMAR EN CUENTA LOS DOCUMENTOS DE TRABAJO QUE HAN SIDO PRESENTADOS POR ESTADOS MIEMBROS, ORGANOS DEL SISTEMA Y COMUNIDADES INDIGENAS, ASÍ COMO EL INFORME ELABORADO POR EL INSTITUTO INDIGENISTA INTERAMERICANO EN CUMPLIMIENTO DE LA SOLICITUD DE LA ASAMBLEA GENERAL CONTENIDA EN LA RESOLUCION 1610. ESTOS DOCUMENTOS, CIRCULADOS CON ANTERIORIDAD, PUEDEN SER OBTENIDOS EN LA MESA DE DOCUMENTOS UBICADA EN ESTA SALA.
CONSEJO PERMANENTE DE LA OEA/Ser.K/XVI
ORGANIZACIÓN DE LOS ESTADOS AMERICANOS GT/DADIN/INF-4/99
30 noviembre 1999
COMISIÓN DE ASUNTOS JURÍDICOS Y POLÍTICOS Original: Textual
Grupo de Trabajo encargado de elaborar el
Proyecto de Declaración sobre los Derechos de
las Poblaciones Indígenas
PALABRAS DEL SECRETARIO GENERAL CÉSAR GAVIRIA
ANTE EL GRUPO DE TRABAJO PARA CONSIDERAR LA PROPUESTA DE DECLARACION AMERICANA SOBRE LOS DERECHOS DE LAS POBLACIONES INDIGENAS
8 de noviembre de 1999
PALABRAS DEL SECRETARIO GENERAL CÉSAR GAVIRIA
ANTE EL GRUPO DE TRABAJO PARA CONSIDERAR LA PROPUESTA DE DECLARACION AMERICANA SOBRE LOS DERECHOS DE LAS POBLACIONES INDIGENAS
8 de noviembre de 1999
Quiero en primer lugar expresar mis agradecimientos al Embajador Claude Heller, Representante Permanente de México ante la OEA y quien Preside esta reunión, y a los miembros del Grupo de Trabajo por permitirme esta oportunidad de intercambiar ideas con Ustedes en esta reunión que se celebra para considerar la propuesta de Declaración Americana sobre los Derechos de las poblaciones Indígenas. Estoy seguro que bajo el liderazgo y con el profesionalismo del Embajador Heller el Grupo de Trabajo cumplirá los objetivos que se ha propuesto.
Ofrezco una muy cordial bienvenida a los representantes de los gobiernos y de los pueblos indígenas a esta Casa de las Américas, cuyo origen y destino están ligados a los ideales de paz, democracia, vigencia de los derechos humanos y bienestar de los pueblos que nos unen a todos los americanos.
La reunión de Expertos Gubernamentales, celebrada en febrero pasado, sentó las bases para esta reunión. La discusión de los Estados miembros será enriquecida por la participación y comentarios de los representantes indígenas. Agradecemos su presencia en esta ocasión y sus contribuciones al perfeccionamiento de la democracia en las Américas.
Tengo un interés particular en las relaciones de nuestros Estados con las culturas indígenas de nuestro hemisferio. Este interés nace de la experiencia de mi propio país, Colombia, y de los significativos avances que logramos consagrar en nuestra Constitución del 91 para establecer y preservar sus derechos, para generar algunas leyes que desarrollaran los principios constitucionales y las políticas que fueran consistentes con el nuevo espíritu que reina en nuestras relaciones con los Pueblos Indígenas.
El proceso de elaborar y someter a la consideración de los Estados la Declaración es de una importancia transcendental para avanzar en unos principios que todos respetemos. Hasta hace poco, debemos reconocer, la situación de los indígenas ha sido tratada al margen del Sistema Interamericano de instituciones. Hoy reconocemos que la protección de los derechos de los indígenas es muy relevante para enfrentar los desafíos a los que colectivamente nos hemos comprometido: erradicación de la pobreza y las desigualdades socioeconómicas; fortalecimiento y consolidación de la democracia; pleno respeto a los derechos humanos; y protección del medio ambiente.
Y este encuentro nos acerca al momento de hacer concreta y efectiva la incorporación del tema indígena en las prioridades de nuestra agenda. No podemos continuar ignorando la contribución que los 40 millones de indígenas que habitan en las Américas hacen a diario en cada uno de nuestros países, ni tampoco los abusos de sus derechos humanos, ni los problemas de discriminación, marginación y pobreza que soportan la mayoría de ellos.
Por estas circunstancias, en 1989 los Estados miembros encomendaron a la Comisión Interamericana de Derechos Humanos elaborar una propuesta de Declaración sobre la protección de los derechos de los indígenas. Desde su inicio, la Comisión ha prestado una atención especial a este tema con su sistema de casos e informes especiales. El resultado de su trabajo se evidencia al leer la propuesta de Declaración. Quiero reconocer especialmente el importante papel jugado por el Relator para Derechos Indígenas, el Doctor Carlos Ayala Corao, y su antecesor Patrick Robinson. También quiero reconocer las contribuciones del Instituto Indigenista Interamericano, el Instituto Interamericano de Derechos Humanos y del Fondo Indígena al proceso de consultas y elaboración de la propuesta de Declaración.
Este compromiso para desarrollar un instrumento regional a favor de los derechos indígenas ha sido reiterado por los Jefes de Estado y de Gobierno de las Américas en los mandatos de las Cumbres de las Américas de Miami en 1994, y de Santiago en 1998.
Espero que esta reunión nos impulse a conocer las perspectivas de los gobiernos y de importantes representantes indígenas, a dialogar y trabajar conjuntamente para mejorar el respeto a los derechos de los indígenas y de sus culturas, a incluir plenamente a los indígenas y sus instituciones en nuestras democracias, al igual que buscar mecanismos más eficientes para erradicar la pobreza y la discriminación de que son objeto.
El reconocimiento de la identidad y de los derechos de los pueblos indígenas constituye un asunto crítico y de gran transcendencia para hacer efectivos los mandatos que nos han otorgado nuestros presidentes y jefes de Gobierno. A partir de la historia de conquista, colonización y migraciones, las Américas tienen hoy un carácter multiétnico, pluricultural y multilingüe. El Instituto Indigenista Interamericano ha identificado una población indígena compuesta por cerca de 400 grupos étnicos. En las poblaciones indígenas se encuentra una extraordinaria diversidad lingüística y étnica, múltiples formas de desarrollo comunal en hábitats tan diversos como la selva, la montaña, el campo y los centros urbanos. En todas estas latitudes las comunidades indígenas se caracterizan por utilizar mecanismos de decisión comunitarias que contienen elementos de una cultura democrática muy fuerte.
Sin embargo, no siempre hemos sido respetuosos y conscientes de la riqueza y profundidad que representan la diversidad cultural y los diferentes modelos socioeconómicos de estas comunidades. Tampoco hemos hecho lo suficiente para respetar sus tradiciones y autoridades. Al contrario, por muchos años, nuestros gobiernos siguieron una política paternalista que trajo consecuencias adversas tanto para los Estados como para los indígenas. Estas políticas mostraron enormes limitaciones en sus intentos tanto de reducir la pobreza y marginación en la que ellos han vivido como en mejorar la relación entre indígenas y Estado.
En los últimos quince años hemos sido testigos de nuevas actitudes que han permitido buscar una redefinición en la relación entre pueblos indígenas, Estado y la sociedad civil. Desde comienzos de los años ochenta las sociedades de América Latina experimentaron un proceso gradual de profundización y fortalecimiento de sus Instituciones democráticas. Los ciudadanos han ganado mayores espacios de participación política. Es en ese contexto en el que nuestras sociedades comienzan a dejar de lado las aprehensiones y sospechas hacia las ideas que promueven la tolerancia, el respeto por la diversidad, y ha sido posible ir desarrollando políticas que han permitido redefinir las relaciones del Estado con sectores marginados de nuestra sociedad incluyendo en especial a los indígenas.
Hay conciencia en gobiernos en el sentido de que la vieja manera de abordar las relaciones con las comunidades indígenas no da mucho más y ha mostrado sus enormes limitaciones. Por ello, los gobiernos han comenzado a modificar su política indígena con un reconocimiento de sus derechos, promoviendo su desarrollo socioeconómico y tratando de encontrar soluciones democráticas, pacíficas, acordadas con los indígenas y sus representantes.
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Proyecto de Declaración Americana sobre los Derechos de las Poblaciones Indígenas
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GT/DADIN/doc.1/99 rev. 1
Proyecto de Declaración Americana sobre los Derechos de las Poblaciones Indígenas
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GT/DADIN/doc.1/99 rev. 1 corr. 1
Proyecto de Declaración Americana sobre los Derechos de las Poblaciones Indígenas
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Orden del día
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Informe del Presidente
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Directorio de representantes/comunidades indígenas
Lista de documentos
Presentación del Presidente del Grupo de Trabajo
Palabras del Secretario General
Documentos de referencia
Informe del Instituto Indigenista Interamericano (III) sobre las acciones desarrolladas en diferentes organismos internacionales para la promoción de los derechos de los pueblos indígenas
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Observaciones y Recomendaciones del Comité Jurídico Interamericano al “Proyecto de Declaración Americana sobre los Derechos de las Poblaciones Indígenas”
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Observaciones y Recomendaciones del Instituto Indigenista Interamericano al “Proyecto de Declaración Americana sobre los Derechos de las Poblaciones Indígenas (III)
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Observaciones y Recomendaciones de Argentina al “Proyecto de Declaración Americana sobre los Derechos de las Poblaciones Indígenas”
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Observaciones y Recomendaciones de Brasil al
“Proyecto de Declaración Americana sobre los Derechos de las Poblaciones Indígenas”
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Observaciones y Recomendaciones de Canadá al
“Proyecto de Declaración Americana sobre los
Derechos de las Poblaciones Indígenas”
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Observaciones y Recomendaciones de Colombia al “Proyecto de Declaración Americana sobre los Derechos de las Poblaciones Indígenas”
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Observaciones y Recomendaciones de los Estados Unidos al “Proyecto de Declaración Americana sobre los Derechos de las poblaciones Indígenas”
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Observaciones y Recomendaciones de Guatemala al “Proyecto de Declaración Americana sobre los Derechos de las Poblaciones Indígenas”
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Observaciones y Recomendaciones de México al
“Proyecto de Declaración Americana sobre los Derechos de las Poblaciones Indígenas”
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Observaciones y Recomendaciones del Paraguay al “Proyecto de Declaración Americana sobre los Derechos de las Poblaciones Indígenas”
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Observaciones y Recomendaciones de Venezuela al “Proyecto de Declaración Americana sobre los Derechos de las Poblaciones Indígenas”
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Index of Draft American Declaration | History | Proposed American Declaration | Working Document Comparing Proposed Declaration | Dialogue 2001 | Journey to the Summit | Third Summit of the Americas 2001 | Dialogue 2002 | Dialogue 2003 | Negotiations with Indigenous Representatives 2003 | Second Meeting of Negotiations 2004 | Third Meeting of Negotiations 2004 | Consolidated Text of Draft Declaration | Interactive Version of Consolidated Text