POINT OF VIEW
 
Organization of American States
Working Group to Prepare the Draft American
Declaration on the Rights of Indigenous Peoples
Washington, D.C.
10-12 November 2003
 
 
Joint Position of the American Indian Law Alliance, Grand Council of the Crees (Eeyou Istchee), Tetuwan Oyate Teton Sioux Nation Treaty Council, and Na Koa Ikaika Kalāhui Hawai’i
 
 
CONSOLIDATED TEXT OF THE DRAFT DECLARATION PREPARED BY THE CHAIR OF THE WORKING GROUP
 
 
PROPOSED REVISIONS TO SECTION FOUR: ORGANIZATIONAL AND POLITICAL RIGHTS
 
 
Note: The revisions suggested below are an initial response to the “Consolidated Text of the Draft Declaration Prepared by the Chair of the Working Group”, OEA/Ser.K/XVI, GT/DADIN/doc.139/03, 17 June 2003 (hereafter “Chair’s Consolidated Text”).  As highlighted in its “Introduction”, the Consolidated Text “has not been subject to consultations or negotiation”. It has not been approved by the any entity within the OAS, member States or Indigenous peoples. In our respectful view, it has no preferred or legal status.
 
The OAS General Assembly has indicated that a “final phase of negotiations” would start from the Chair’s Consolidated Text. As numerous Indigenous peoples and organizations have emphasized to date, this approach raises a host of basic problems and concerns. In particular, Indigenous representatives have not finished analyzing and discussing the IACHR Proposed Declaration on the Rights of Indigenous Peoples.
 
It is critical that Indigenous representatives from all regions of the Americas have full and effective participation at all stages of the OAS standard-setting process relating to Indigenous peoples’ status and rights. States have no legitimate mandate to “negotiate” our human rights – especially when these negotiations are defined as “exclusively” among themselves.
 
Further, any Declaration proposed or adopted by the OAS must fully respect the Purposes and Principles of the Charter of the United Nations. Therefore, any existing draft provision or suggested change by States or other participants in the standard-setting process that would fail to wholly respect the prohibition against racial discrimination or would otherwise undermine the human rights of indigenous peoples must be firmly rejected. As our revisions make clear, the Chair’s Consolidated Text does not currently adhere to these crucial standards.
 
The common objective is to ensure that the rights of Indigenous peoples affirmed in any OAS Declaration constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the Americas. In no case should these standards fall short of those in the draft United Nations Declaration on the Rights of Indigenous Peoples (hereafter “draft U.N. Declaration”).
 
The OAS Declaration should also be fully compatible with the status, rights and aspirations of indigenous peoples, e.g. as reflected in the Declaration of the Indigenous Peoples Summit of the Americas, 2001.
 
Full citations of all authorities referred to are provided at the end of this submission.
 
                                           
 
Text (with proposed revisions) Explanatory notes
 
 
SECTION FOUR: ORGANIZATIONAL AND POLITICAL RIGHTS
 
 
 
 
 
Article XIX. Rights of association, assembly, freedom of expression and thought
 
 
 
 
 
1. Indigenous peoples and individuals have rights of association, assembly, organization, opinion and expression, without interference and in accordance with their values, usages, customs, ancestral traditions, beliefs, and spirituality.
 
 
The proposed revision ensures that rights and freedoms in para. 1 of Art. XIX of the Chair’s Consolidated Text applies to all Indigenous individuals (not only those who are “members” or “citizens” of an Indigenous people).
 
We propose adding “opinion” to this list of rights, especially in relation to Indigenous peoples. The right to freedom of opinion and expression is already recognized for individuals in the Universal Declaration of Human Rights, Art. 19; the International Covenant on Civil and Political Rights, Art. 19; and the International Convention on the Elimination of All Forms of Racial Discrimination, Art. 5(d)(viii).
 
The right of association of all individuals is recognized in the Universal Declaration of Human Rights, Art. 20; the International Covenant on Civil and Political Rights, Art. 22; and the International Convention on the Elimination of All Forms of Racial Discrimination, Art. 5(d)(ix).
 
The right of assembly of all individuals is recognized in the Universal Declaration of Human Rights, Art. 20; the International Covenant on Civil and Political Rights, Art. 21; and the International Convention on the Elimination of All Forms of Racial Discrimination, Art. 5(d)(ix).
 
 
1a.   Indigenous peoples and individuals have the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes.
 
 
In regard to Art. XIX of the Chair’s Text, we propose a new para. 1a that elaborates on the nature and scope of the right to freely associate. The wording in this new para. reflects the American Convention on Human Rights, Art. 16(1): "Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes."
 
 
1b.   The right to freedom of opinion and expression includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
 
 
In regard to Art. XIX of the Chair’s Text, we also propose a new para. 1b that elaborates on the nature and scope of the right to freedom of opinion and expression. The wording in this new para. reflects the Universal Declaration of Human Rights, Art. 19; and the International Covenant on Civil and Political Rights, Art. 19.
 
See also “Declaration of Principles on Freedom of Expression”, approved by the Inter-American Commission on Human Rights during its 108th regular session, 3rd preambular para.: “… the right to freedom of expression is essential for the development of knowledge and understanding among peoples, that will lead to a true tolerance and cooperation among the nations of the hemisphere …”
 
Declaration of Chapultepec, adopted by the Hemisphere Conference on Free Speech, Mexico City, 1994, Principle 1: “No people or society can be free without freedom of expression and of the press. The exercise of this freedom is not something authorities grant, it is an inalienable right of the people.”
 
Universal Declaration on Democracy, adopted without a vote by the Inter-Parliamentary Council at its 161st session, Cairo, 16 September 1997, Principle 21: “The state of democracy presupposes freedom of opinion and expression; this right implies freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
 
 
2. Indigenous peoples have the right of assembly and to the use of their sacred cultural and ceremonial sites.
 
 
With the revisions indicated, we support para. 2 of Art. XIX of the Chair’s Text.
 
 
 
 
3. Indigenous peoples have the right to maintain full contact, bonds, and common activities with their members who inhabit the territory of neighboring States.
 
 
In regard to para. 3 of Art. XIX of the Chair’s Text, we propose that it be deleted and replaced with a comprehensive provision (see Art. XIXA below).
 
Our right to maintain and develop contacts, relations, etc. with our “members” or “citizens” cannot be limited to “neighboring States”. This right would be more limited than that exercised by most individuals, in relation to their family members living in different regions of the globe.
 
Further, we have a right to maintain and develop international contacts, etc. with other Indigenous peoples. Such contacts, etc. are essential in an era of increasing globalization.
 
 
4. The States shall adopt measures aimed at facilitating the exercise of the rights recognized in this article, mindful of the rights of third persons.
 
 
It is proposed that para. 4 of Art. XIX of the Chair’s Text be deleted. Instead, we suggest that States’ obligations and Indigenous peoples’ input and participation should be addressed in terms of the implementation of the whole Declaration under Section Six -
”General Provisions”. In this regard, we propose the following:
For matters relating to indigenous peoples’ human rights, States’ obligations, implementation of this Declaration, and related reforms, indigenous peoples have the right to full, direct and effective participation at the international and national levels. Procedures shall be devised in conjunction with indigenous peoples, so as to ensure that any measures adopted are with the prior, free and informed consent of the peoples concerned.
 
 
Article XIXA. International contacts, relations, cooperation, etc.
 
 
 
This is a proposed new Article, addressing the right of Indigenous peoples to maintain and develop transnational contacts, etc. for political, economic, social, cultural, spiritual, environmental and other purposes.
 
 
Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic, social, environmental and other purposes, with their own citizens and with other peoples across borders. States shall take effective measures to ensure the exercise and implementation of this right.
 
 
The proposed new para. reflects the draft U.N. Declaration on the Rights of Indigenous Peoples, Art. 35. These international contacts, etc. of Indigenous peoples are essential in an era of increasing globalization. They are also an important manifestation of international cooperation, openness and democracy that is vital to a wide range of Indigenous affairs.
 
 
 
Article XX. Right to self-government
 
 
 
 
 
1. Indigenous peoples, as a specific form of exercising their right of self-determination have the right to autonomy or self-government with respect to, inter alia, culture, language, spirituality, education, information, communications, health, housing, employment, social well-being, community and regional security, family relations, economic activities, lands, territories and resources, environment, development, entry of non-citizens, and ways and means of financing these self-governing jurisdictions.
 
 
In no case should the affirmation of the right to self-determination be linked to the right of self-government, in the manner done in para. 1 of Art. XX of the Chair’s Consolidated Text. In particular, we propose that the phrase “in the exercise of the right to self-determination” be replaced with “as a specific form of exercising their right of self-determination”.
 
The proposed revisions are consistent with the draft U.N. Declaration on the Rights of Indigenous Peoples, Art. 31.
 
It is suggested that the phrase “within the States” be deleted from the Chair’s Text. As drafted, para. 1 of Art. XX of the Chair’s Text strongly implies that the right of Indigenous peoples to self-determination is limited to “internal” aspects within a state – not the full right of self-determination under international law. This would violate the principle of “equal rights and self-determination of peoples” and the prohibition against racial discrimination.
 
See, for example, F. Przetacznik, “The Basic Collective Right to Self-Determination of Peoples and Nations as a Pre-Requisite to Peace” (1990) 8 N.Y.L.Sch. J. of H. Rts. 49, at p. 55: “Both the internal and external aspects of the right to self-determination of peoples and nations are constitutive and inseparable elements of this basic collective human right.”
 
U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination Against Indigenous Populations: Vol. V, Conclusions, Proposals and Recommendations, (1986) (J. Martínez Cobo, Special Rapporteur), para. 581:
It must also be recognized that the right to self-determination exists at various levels and includes economic, social, cultural and political factors. In essence, it constitutes the exercise of free choice by indigenous peoples who must, to a large extent, create the specific content of this principle, in both its internal and external expressions, which do not necessarily include the right to secede from the state in which they live and to set themselves up as sovereign entities. [emphasis added]
 
In light of its central importance, the right of Indigenous peoples to self-determination under international law must be affirmed in a separate para. under Section Two on “Human Rights”. This is what we have proposed in Art. VIA of the present draft Declaration. In order to avoid creating a lesser and discriminatory standard relating to Indigenous peoples, the wording in Art. VIA must not derogate from the two international human rights Covenants, Art. 1.
 
 
2. Indigenous peoples have the right to full and effective participation without discrimination in decision-making at all levels, in relation to matters that may directly affect their rights, lives, and destiny.  They may do so either directly or through their representatives elected or otherwise selected by them in accordance with their own procedures.  They also have the right to maintain and develop their own indigenous decision-making institutions and legal systems, while retaining the right to full and effective participation, if they so choose, in the political, economic, social and cultural life of the state.
 
 
The proposed revisions are consistent with the draft U.N. Declaration on the Rights of Indigenous Peoples, Art. 19:
Indigenous peoples have the right to participate fully, if they so choose, at all levels of decision-making in matters which may affect their rights, lives and destinies through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
 
See also draft U.N. Declaration, Art. 4: "Indigenous peoples have the right to maintain and strengthen their distinct political, economic, social and cultural characteristics, as well as their legal systems, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State."
 
 
Article XXI. Indigenous law and jurisdiction
 
 
 
 
 
1a. Indigenous peoples’ fundamental status, rights and law are inextricably linked to international law. Relations and disputes between indigenous peoples and States are not matters to be determined or resolved through recourse solely to national law.
 
 
We propose a new para. 1a for inclusion in Art. XXI of the Chair’s Consolidated Text. In order to provide an accurate and balanced legal framework in the draft Declaration, it is critical to highlight that Indigenous peoples’ status, rights and law are inseparably linked to international law. This historical and contemporary reality is greatly reinforced by the ever-increasing significance of international human rights law.
 
See, for example, I/A Comm. H.R., Mary and Carrie Dann v. United States, Report No. 113/01, at para. 124: “… in addressing complaints of violations of the American Declaration it is necessary … to consider those complaints in the context of the evolving rules and principles of human rights law in the Americas and in the international community more broadly, as reflected in treaties, custom and other sources of international law. … [T]his broader corpus of international law includes the developing norms and principles governing the human rights of indigenous peoples.”
 
Declaration of Machu Picchu on Democracy, the Rights of Indigenous Peoples and the Fight Against Poverty, Lima – Machu Picchu, 2001, Art. 8: “Our states are duty-bound to safeguard and guarantee the enforcement of all the provisions of the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights and the other regional and international instruments in force, in order to ensure the full and effective exercise of the human rights of indigenous peoples in accordance with the principle of nondiscrimination.”
 
Draft U.N. Declaration on the Rights of Indigenous Peoples, preamble:
Encouraging States to comply with and effectively implement all international instruments, in particular those related to human rights, as they apply to indigenous peoples, in consultation and cooperation with the peoples concerned,
 
Emphasizing that the United Nations has an important and continuing role to play in promoting and protecting the rights of indigenous peoples …
 
H. Berman, "Perspectives on American Indian Sovereignty and International Law, 1600 to 1776", in O. Lyons & J.C. Mohawk, eds., Exiled in the Land of the Free: Democracy, Indian Nations, and the U.S. Constitution, 1992, at pp. 126-127:
... the specific relationship that each nation initially established with the United States was born of the principles and practices of international law, and was typically defined through the treaty process.
 
Obviously then, the links between past and present are of central importance to any analysis of indigenous rights.
 
U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study on treaties, agreements and other constructive arrangements between States and indigenous populations (M. Alfonso Martínez, Special Rapporteur, Final Report), 1999, at p. 18, para. 112: “In the course of history, the newcomers  … nevertheless attempted to divest indigenous peoples … of their sovereign attributes, especially jurisdiction over their lands, recognition of their forms of societal organization, and their status as subjects of international law.”
 
Judicial decisions by the highest court in both Canada and the United States recognize that indigenous peoples were treated, in international terms, as independent nations by European States: see, for example, Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), at p. 559; R. v. Sioui, [1990] 1 S.C.R. 1025, at pp. 1052-1053.
 
Right Honourable Beverley McLachlin, P.C. Chief Justice of Supreme Court of Canada, “Aboriginal Rights: International Perspectives”, Vancouver, British Columbia, February 8, 2002: “Aboriginal rights from the beginning have been shaped by international concepts. … Whether we like it or not, aboriginal rights are an international matter. Different countries may take different approaches to particular problems. But underlying the differences, one finds considerable consensus on the fundamental principles.”
 
Declaration of the Indigenous Peoples Summit of the Americas, 2001, para. 1: “The fundamental collective human rights of Indigenous Peoples as Peoples including particularly our right of self-determination, must be recognized and respected in accordance with international law.”
 
See also A. Cassese, International Law (Oxford/N.Y.: Oxford University Press, 2001), at p. 166: “… international law no longer constitutes a sphere of law tightly separate and distinct (subject to one or two exceptions) from the sphere of the law of national legal systems. … It no longer constitutes a different legal realm from the various municipal systems, but has a huge daily direct impact on these systems. It conditions their life in many areas and even contributes to shaping their internal functioning and operation. In addition, many international rules address themselves directly to individuals, without the intermediary of national legal systems …”
 
 
1. Indigenous peoples’ status, rights, and law shall be recognized and respected as a fundamental part of national and international legal systems and an essential framework to ensure their integrity and well-being as distinct peoples and their ongoing development according to their own aspirations, values, priorities, and needs.
 
 
The proposed revisions in para. 1 of the Chair’s Consolidated Text underline the overall significance of Indigenous peoples’ status, rights and law in national and international legal systems. Our suggested revisions also seek to ensure the integrity, ongoing development and well-being of Indigenous peoples.
 
 See also Declaration of Machu Picchu on Democracy, the Rights of Indigenous Peoples and the Fight Against Poverty, Lima – Machu Picchu, 2001, Art. 7: “Accordingly, we firmly support every effort to promote and safeguard the rights and fundamental freedoms of indigenous peoples … We state our resolve to safeguard these rights as part of public policy and pursuant to the constitutional and legal provisions in force in our countries.”
 
Indigenous and Tribal Peoples Convention, 1989, Art. 2, para. 1: “Governments shall have the responsibility for developing, with the participation of the peoples concerned, co-ordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity.”
 
American Convention on Human Rights, Art. 5: “Every person has the right to have his physical, mental, and moral integrity respected.”
 
Declaration of the Indigenous Peoples Summit of the Americas, 2001, para. 4: “States in the Americas must not invoke the particularities of their own legal and political system as an excuse for refusing to recognize and respect the human rights of Indigenous Peoples. This is especially important in regard to the territorial, land and resource rights, including subsoil rights, of Indigenous Peoples. 
 
See also Alexkor Ltd. and Another v. Richtersveld Community and Others, Case CCT 19/03, judgment rendered by Constitutional Court of South Africa,14 October 2003, para. 50:
The nature and the content of the rights that the Richtersveld Community held in the subject land prior to annexation must be determined by reference to indigenous law. That is the law which governed its land rights. Those rights cannot be determined by reference to common law. The Privy Council has held, and we agree, that a dispute between indigenous people as to the right to occupy a piece of land has to be determined according to indigenous law “without importing English conceptions of property law.”
 
 
2. Indigenous peoples have the right to maintain, reinforce and control their own legal systems and apply them to their populations, territories, lands, resources, environment, and other affairs. States shall recognize and respect the laws, decisions and rulings of indigenous institutions.
 
Any disputes between indigenous peoples and States, or between indigenous peoples themselves, relating to issues of jurisdiction or rights shall be resolved peacefully and in good faith, through mutually acceptable and fair procedures, in a manner consistent with principles of co-existence, mutual respect, justice, democracy and respect for human rights.
 
 
In regard to Indigenous peoples’ legal systems, it is inaccurate and insufficient for para. 2 of Art. XXI of the Chair’s Text to apply such systems to “internal matters in their communities”. Such an approach fails to fully consider the implications of globalization and the increasing international dimensions of Indigenous peoples’ roles, responsibilities and rights.
 
Therefore, the proposed revisions affirm a broad range of rights and jurisdictions of Indigenous peoples consistent with our right to self-determination and self-government. At the same time, the revisions emphasize corresponding State obligations to respect the laws, decisions and rulings of Indigenous institutions.
 
In addition, a new para. is proposed to provide for peaceful resolution in a principled manner of any disputes relating to matters of jurisdiction and rights. It is foreseen that current or future disputes may be between Indigenous peoples and States, or between Indigenous peoples themselves.
 
 
3. The matters referring to indigenous persons or to their interests in the jurisdiction of each State shall be conducted so as to provide for the right of the indigenous to full representation with dignity and equality before the law, and, if necessary, the use of interpreters.
 
 
In cases where State jurisdiction applies, procedures involving indigenous peoples or individuals, or their rights and interests, shall be conducted in such a way as to ensure their right to full representation with dignity, as well as their right to equality before the law and equal protection of the law without any discrimination. This shall include observance of indigenous law and custom, use by the indigenous peoples or individuals concerned of their language and, where necessary, the use of interpreters.
 
 
The proposed revisions in regard to para. 3 of Art. XXI of the Chair’s Text are neutral, in that they do not presume that States automatically have jurisdiction over Indigenous peoples or individuals in any given matter. Also, procedures concerning both Indigenous peoples and individuals are contemplated.
 
Aside from the “right to equality before the law”, the revised text adds the “right to equal protection of the law without any discrimination”. Similarly, see the American Convention on Human Rights, Art. 24; International Covenant on Civil and Political Rights, Art. 26; and the International Convention on the Elimination on All Forms of Racial Discrimination, preamble.
 
 
4. The States shall take measures to reinforce the legal status and judicial capacity of the indigenous peoples and to establish their jurisdictions, and to coordinate them with all other jurisdictions, as appropriate.  In addition, the States shall take measures to ensure that the judiciary is knowledgeable of and applies indigenous law and custom, and to ensure that it is taught in the law schools.
 
 
It is proposed that para. 4 of Art. XXI of the Chair’s Text be revised. In particular, it is important to reinforce in national legal systems the full legal status of Indigenous peoples. In addition, it would be inaccurate to indicate that Indigenous peoples’ jurisdictions need to be “established” in national legal systems rather than confirm our inherent jurisdictions.
 
It is important to emphasize that it would be highly inappropriate for States to resolve all of these matters unilaterally. Therefore, we suggest that States’ obligations and Indigenous peoples’ input and participation be addressed through an umbrella provision that contemplates the implementation of the whole Declaration under Section Six -
”General Provisions”. In this regard, we propose the following:
For matters relating to indigenous peoples’ human rights, States’ obligations, implementation of this Declaration, and related reforms, indigenous peoples have the right to full, direct and effective participation at the international and national levels. Procedures shall be devised in conjunction with indigenous peoples, so as to ensure that any measures adopted are with the prior, free and informed consent of the peoples concerned.
 
 
Article XXII. Coordination of State and indigenous legal and organizational systems
 
 
It is proposed that the title of Art. XXII of the Chair’s text be revised to more accurately reflect the “coordination” of State and Indigenous legal and organizational systems.
 
 
1. The States shall facilitate the inclusion, within their national organizational structures, as appropriate, of the traditional and other institutions and practices of the indigenous peoples, in conjunction with and with the prior, free and informed consent of the peoples concerned.
 
 
In regard to para. 1 of Art. XXII of the Chair’s Text, it is proposed that collaboration with States occur in a manner that is wholly inclusive of Indigenous peoples and that respects the principle of “prior, free and informed” consent.
 
Of course, a more comprehensive and efficient approach for all of Art. XXII would be to address States’ obligations and Indigenous peoples’ input and participation through an umbrella provision that contemplates the implementation of the whole Declaration. We propose such an Article for inclusion under Section Six - ”General Provisions”, as follows:
For matters relating to indigenous peoples’ human rights, States’ obligations, implementation of this Declaration, and related reforms, indigenous peoples have the right to full, direct and effective participation at the international and national levels. Procedures shall be devised in conjunction with indigenous peoples, so as to ensure that any measures adopted are with the prior, free and informed consent of the peoples concerned.
 
 
2. The relevant institutions of each State that serve the indigenous peoples, as well as their respective public policies, shall be designed in conjunction with and with the participation of the peoples concerned to reinforce and promote the identity, culture, traditions, organizations, and values of those peoples.
 
 
In order to effectively include Indigenous peoples’ identity, cultures, etc. in relevant State institutions, it is proposed for para. 2 of Art. XXII of the Chair’s Text that these bodies be designed in “conjunction with” the peoples concerned. This emphasizes the need for close collaboration if common objectives are to be attained.
 
Universal Declaration on Democracy, adopted without a vote by the Inter-Parliamentary Council at its 161st session, Cairo, 16 September 1997, Principle 22: “The institutions and processes of democracy must accommodate the participation of all people in homogeneous as well as heterogeneous societies in order to safeguard diversity, pluralism and the right to be different in a climate of tolerance.”
 
 
3. Indigenous peoples have the right to participate fully, if they so choose, through procedures determined by them, in devising legislative or administrative measures that may affect them. States shall obtain the free and informed consent of the peoples concerned before adopting and implementing such measures.
 
 
In regard to Art. XXII, we propose a new para. 3 that reflects the draft U.N. Declaration on the Rights of Indigenous Peoples, Art. 20.
 
See also Indigenous and Tribal Peoples Convention, 1989, Art. 6: “1. In applying the provisions of this Convention, governments shall: (a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly …; 2. The consultations carried out … shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.”
 
Article XXIII. Treaties, agreements, and constructive arrangements
 
 
 
 
 
Indigenous peoples have the right to the recognition, observance, and enforcement of the treaties, agreements, and other constructive arrangements concluded with States, their predecessors or successors, in good faith and according to their original spirit and intent; and  States have a solemn obligation to honor and respect such treaties, agreements, and constructive arrangements. Conflicts and disputes that cannot otherwise be settled shall be submitted to the competent international bodies for effective remedy, in accordance with principles of justice, fairness and good faith.
 
 
It is proposed that a number of revisions be made in regard to Art. XXIII of the Chair’s Consolidated Text.
 
In regard to treaties, etc., “good faith” is an essential and well-established principle in both international and domestic law. See, for example, Nuclear Tests (Australia v. France), [1974] I.C.J. Rep. 253 at p. 267; and Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at p.1123.
 
Moreover, “good faith” is also an important contributor to the establishment and maintenance of harmonious relations between Indigenous peoples and States. As confirmed in the Charter of the Organization of American States, Art. 3(c), the principle of good faith must govern all relations among States.
 
The proposed changes also include a direct reference to the “solemn obligation” of States to honor and respect treaties, etc. This obligation is fundamental to any treaty, etc. with Indigenous peoples. Otherwise the purpose for entering into such agreements would not exist.
 
In regard to the draft Declaration, it would be unjust and regressive for any State to seek to limit the remedies of Indigenous peoples to competent “domestic” bodies. The treaties, etc. relating to Indigenous peoples generally involve basic human rights issues.
 
For this reason alone, treaty violations are already the rightful subject of international/regional scrutiny and complaints. See, for example, I/A Comm. H.R., Mary and Carrie Dann v. United States, Case Nº 11.140, Report No. 113/01, para. 124. It would be outrageous to argue that human rights issues should be excluded from resolution by competent international/ regional bodies, simply because they were included in a treaty between Indigenous peoples and States.
 
Moreover, it has been confirmed in a U.N. study that, unless otherwise agreed to by Indigenous peoples, our treaties rightfully belong “in the realm of international law”: see U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study on treaties, agreements and other constructive arrangements between States and indigenous populations (M. Alfonso Martínez, Special Rapporteur, Final Report), E/CN.4/Sub.2/1999/20, 22 June 1999, at p. 30, para. 194. For all of the above reasons, the reference to “competent bodies” must necessarily include international/regional bodies, based on existing international law.
 
The reference to an “effective remedy” for violations of Indigenous peoples’ fundamental rights is consistent with the basic objectives of treaties, etc., as well with existing principles in both international and domestic law. See, for example, International Covenant on Civil and Political Rights, Art. 2, para. 3; Universal Declaration of Human Rights, Art. 8; International Convention on the Elimination of All Forms of Racial Discrimination, Art. 6; and Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms,  1999, Annex, Art. 9. It is important to note that all States in the Americas are committed to “seek to promote and give effect to” this latter Declaration: see Summit of the Americas, 2001, Plan of Action, heading 2 (Human rights and fundamental freedoms).
 
LIST OF AUTHORITIES
 
 
International instruments, studies, etc
 
 
American Convention on Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123 entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/I.4 Rev.9 at 27, 31 January 2003
 
Charter of the Organization of American States, 119 U.N.T.S. 3, entered into force December 13, 1951, amended 721 U.N.T.S. 324, entered into force Feb. 27, 1990
 
Declaration of Chapultepec, adopted by the Hemisphere Conference on Free Speech, Mexico City, March 11, 1994, subsequently endorsed by at least 28 heads of state in the Americas
 
Declaration of Machu Picchu on Democracy, the Rights of Indigenous Peoples and the Fight Against Poverty, Lima – Machu Picchu, July 28-29, 2001, adopted by the Presidents of the member states of the Andean Community (Bolivia, Columbia, Ecuador, Peru, and Venezuela). Reprinted in OEA/Ser.K/XVI, GT/DADIN/doc.34/01, 29 October 2001
 
“Declaration of Principles on Freedom of Expression”, approved by the Inter-American Commission on Human Rights during its 108th regular session
 
Declaration of the Indigenous Peoples Summit of the Americas, adopted by representatives of Indigenous peoples, nations and organizations from the North, Central and South Americas and the Caribbean meeting in Ottawa, Canada, March 31, 2001
 
Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms,  U.N.G.A. Res. 53/144, U.N. Doc. A/RES/53/144, 8 March 1999, Annex
 
Indigenous and Tribal Peoples Convention, 1989, I.L.O. Convention No. 169, I.L.O., 76th Sess., reprinted in (1989) 28 I.L.M. 1382
 
International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, (1966) 5 I.L.M. 352. Adopted by U.N. General Assembly on December 21, 1965, opened for signature on March 7, 1966, and entered into force on January 4, 1969
 
International Covenant on Civil and Political Rights, G.A. Res 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) at 52, U.N. Doc. A/6316, Can. T.S. 1976 No. 47 (1966).  Adopted by the U.N. General Assembly on December 16, 1966 and entered into force March 23, 1976
 
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966); Can. T.S. 1976 No. 46 (entered into force 3 January 1976, accession by Canada 19 May 1976)
 
Proposed American Declaration on the Rights of Indigenous Peoples, OEA/Ser/L/ V/.II.95, Doc. 6, 26 February 1997 (approved by the Inter-American Commission on Human Rights on February 26, 1997, at its 95th regular session, 1333rd meeting)
 
Summit of the Americas, 2001, Plan of Action, adopted at the Third Summit of the Americas, Québec City, Canada, April 22, 2001
 
United Nations Declaration on the Rights of Indigenous Peoples (Draft), in U.N. Doc. E/CN.4/1995/2; E/CN.4/Sub.2/1994/56, 28 October 1994, at 105-115, reprinted in (1995) 34 I.L.M. 541
 
U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination Against Indigenous Populations: Vol. V, Conclusions, Proposals and Recommendations, U.N. Doc. E/CN.4/Sub.2/1986/7/Add. 4 (1986) (J. Martínez Cobo, Special Rapporteur)
 
U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study on treaties, agreements and other constructive arrangements between States and indigenous populations (M. Alfonso Martínez, Special Rapporteur, Final Report), E/CN.4/Sub.2/1999/20, 22 June 1999
 
Universal Declaration of Human Rights, U.N.G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948). Adopted by the U.N. General Assembly on December 10, 1948
 
Universal Declaration on Democracy, adopted without a vote by the Inter-Parliamentary Council at its 161st session, Cairo, 16 September 1997 (Inter-Parliamentary Union, Geneva, Switzerland)
 
 
Books, articles, etc.
 
 
H. Berman, "Perspectives on American Indian Sovereignty and International Law, 1600 to 1776", in O. Lyons & J.C. Mohawk, eds., Exiled in the Land of the Free: Democracy, Indian Nations, and the U.S. Constitution (Santa Fe: Clear Light Publishers, 1992) 125
 
A. Cassese, International Law (Oxford/N.Y.: Oxford University Press, 2001)
 
Right Honourable Beverley McLachlin, P.C. Chief Justice of Supreme Court of Canada, “Aboriginal Rights: International Perspectives”, Order of Canada Luncheon, Canadian Club of Vancouver, Vancouver, British Columbia, February 8, 2002
 
F. Przetacznik, “The Basic Collective Right to Self-Determination of Peoples and Nations as a Pre-Requisite to Peace” (1990) 8 N.Y.L.Sch. J. of H. Rts. 49
 
 
Cases
 
 
Alexkor Ltd. and Another v. Richtersveld Community and Others, Case CCT 19/03, judgment rendered by Constitutional Court of South Africa, 14 October 2003
 
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (Supreme Court of Canada)
 
I/A Comm. H.R., Mary and Carrie Dann v. United States, Case Nº 11.140, Report No. 113/01
 
Nuclear Tests (Australia v. France), [1974] I.C.J. Rep. 253 (Merits)
 
R. v. Sioui, [1990] 1 Supreme Court Reports 1025
 
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)

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Index of Draft American Declaration | History | Proposed American Declaration | Working Document Comparing Proposed Declaration | Dialogue 2001 | Journey to the Summit | Third Summit of the Americas 2001 | Dialogue 2002 | Dialogue 2003 | Negotiations with Indigenous Representatives 2003 | Second Meeting of Negotiations 2004 | Third Meeting of Negotiations 2004 | Consolidated Text of Draft Declaration | Interactive Version of Consolidated Text

Draft American Declaration
 


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