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
CONTENTS
REPORT OF THE CHAIR OF THE Working Group
TO PREPARE
THE Proposed American Declaration
on the Rights of Indigenous Populations
I. BACKGROUND
III. PROCEEDINGS
APPENDICES
A. Proposed American Declaration on the Rights of Indigenous Populations
B. PRESENTACIÓN DEL PRESIDENTE DEL GRUPO DE TRABAJO
C. PALABRAS DEL SECRETARIO GENERAL
D. LISTA DE DOCUMENTOS DISTRIBUIDOS POR LA SECRETARÍA
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
I.
BACKGROUND
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.
Back to Contents
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
III.
PROCEEDINGS
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:[1]/
“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:[2]/
“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:[3]/
“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….”[4]/
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:[5]/
“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:[6]/
“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:[7]/
“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)
EXPLANATORY NOTE
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;
DECLARE:
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)
Article II
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.
Article III
“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)
Article IV
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)
Article XXIII
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)
Article XXIV
The
rights recognized herein constitute the minimum standards for the survival,
dignity and well-being of the indigenous [peoples/populations] of the Americas.
Article XXV
Nothing
in this instrument shall be construed as granting any rights to ignore
boundaries between states.
[Article XXVI
s
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.
Distinguidos participantes:
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.
GT/DADIN/doc.1/99 CP06356 |
Proyecto de Declaración Americana
sobre los Derechos de las Poblaciones Indígenas |
E
I F P |
GT/DADIN/doc.1/99 rev. 1 CP06477 |
Proyecto de Declaración Americana
sobre los Derechos de las Poblaciones Indígenas |
E
I F P |
GT/DADIN/doc.1/99 rev. 1 corr. 1 CP06479 |
Proyecto de Declaración Americana
sobre los Derechos de las Poblaciones Indígenas |
E
I F P |
GT/DADIN/doc.2/99 CP06456 |
Temario |
E
I F P |
GT/DADIN/doc.3/99 CP06459 |
Aviso |
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GT/DADIN/doc.4/99 CP06460 |
Orden del día |
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GT/DADIN/doc.5/99 CP06508 |
Informe del Presidente |
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Documentos informativos |
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GT/DADIN/INF-1/99 CP06480 |
Directorio de
representantes/comunidades indígenas |
Textual |
GT/DADIN/INF-2/99 CP06504 |
Lista de documentos |
Textual |
GT/DADIN/INF-3/99 CP06542 |
Presentación del Presidente del
Grupo de Trabajo |
Textual |
GT/DADIN/INF-4/99 CP06543 |
Palabras del Secretario General |
Textual |
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Documentos de referencia |
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CP/CAJP-1576/99 CP06363 |
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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RECIDIN/INF-1/99 RE0001 |
Observaciones y Recomendaciones
del Comité Jurídico Interamericano al “Proyecto de Declaración Americana
sobre los Derechos de las Poblaciones Indígenas” |
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RECIDIN//INF-2/99 RE00032 |
Observaciones y Recomendaciones
del Instituto Indigenista Interamericano al “Proyecto de Declaración
Americana sobre los Derechos de las Poblaciones Indígenas (III) |
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RECIDIN/INF-3/99 RE00033 |
Observaciones y Recomendaciones de
Argentina al “Proyecto de Declaración Americana sobre los Derechos de las
Poblaciones Indígenas” |
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RECIDIN/INF-4/99 RE00034 |
Observaciones y Recomendaciones de
Brasil al “Proyecto de Declaración Americana
sobre los Derechos de las Poblaciones Indígenas” |
E
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RECIDIN/INF-5/99 RE00035 |
Observaciones y Recomendaciones de
Canadá al “Proyecto de Declaración Americana
sobre los Derechos de las Poblaciones
Indígenas” |
E
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RECIDIIN/INF-6/99 RE00036 |
Observaciones y Recomendaciones de
Colombia al “Proyecto de Declaración Americana sobre los Derechos de las
Poblaciones Indígenas” |
E
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RECIDIN/INF-7/99 RE00037 |
Observaciones y Recomendaciones de
los Estados Unidos al “Proyecto de Declaración Americana sobre los Derechos
de las poblaciones Indígenas” |
E
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RECIDIN/INF-8/99 RE00038 |
Observaciones y Recomendaciones de
Guatemala al “Proyecto de Declaración Americana sobre los Derechos de las
Poblaciones Indígenas” |
E
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RECIDIN/INF-9/99 RE00039 |
Observaciones y Recomendaciones de
México al “Proyecto de Declaración Americana
sobre los Derechos de las Poblaciones Indígenas” |
E
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RCIDIN/INF-10/99 RE00040 |
Observaciones y Recomendaciones
del Paraguay al “Proyecto de Declaración Americana sobre los Derechos de las
Poblaciones Indígenas” |
E
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RECIDIN/INF-11/99 RE00041 |
Observaciones y Recomendaciones de
Venezuela al “Proyecto de Declaración Americana sobre los Derechos de las
Poblaciones Indígenas” |
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