The Government of the Argentine Republic presents its compliments
to the Executive Secretary of the Inter-American Commission on Human Rights in order to
transmit the comments and observations on the Proposed American Declaration on the Rights
of Indigenous Peoples (Document OEA/Ser/L/V/II.95 of 2/26/97).
Expanding upon the comments and observations made in November 1996 on
the working draft of the American Declaration on the Rights of Indigenous Peoples
(document OEA/Ser/L/V/II.95 doc.9 rev. 1 of 9/20/95), the Argentine Government recommends
amending the current ninth preambular paragraph of the "Proposed Declaration"
The changes and additions proposed by the Argentine Government are
underlined and in bold.
2. In connection with the foregoing considerations, and in order to
draw a distinction between the situation in countries like Argentina and that of other
countries where the indigenous presence is far-reaching, we propose a new preambular
paragraph no. 10, intended also to facilitate future acceptance of the proposed
Declaration without controversy.
The new paragraph recognizes the situation of indigenous peoples in
those countries in which national laws establish an appropriate and satisfactory
regulatory framework in this area.
The new preambular paragraph no. 10 proposed by the Argentine
Government reads as follows:
3. Observations will now be made in light of the new text being
considered for the proposed American Declaration on the Rights of Indigenous
Peopleshereinafter the "proposed Declaration."
3.1. Both the title and the first section of the "proposed
Declaration" continue to use the word "pueblos" (peoples). This has
already been objected to by the Argentine Government, which recommended replacing it with
As previously stated, OAS General Assembly resolution AG/RES. 1022
(XIX-O/89) itself requested that the Inter-American Commission on Human Rights prepare
"un instrumento jurídico relativo a los derechos de las poblaciones
indígenas..." ("a juridical instrument relative to the rights of the Indian
It has also been noted that the term "pueblo" is linked to
the "right to self-determination," which was enshrined in Resolution 1514 (XV)
of the United Nations General Assembly. This resolution, entitled "Declaration on the
Granting of Independence to Colonial Countries and Peoples," states the following in
paragraph 2: "[a]ll peoples have the right to self-determination; by virtue of that
right they freely determine their political status and freely pursue their economic,
social, and cultural development."
Accordingly, we reiterate that the word "pueblos" should be
replaced by "poblaciones," both in the title of the document and
throughout the text.
3.2. Article I of the "proposed Declaration" reads
"...whose status [referring to indigenous peoples] is regulated wholly or partially
by their own customs or traditions or by special laws or regulations."
Although it is acceptable to bear in mind indigenous customs or
traditions and, as in Argentine law, to have special regulations and laws, the word
"wholly" should be deleted from the third line. Under our laws it is not
possible for the legal system of the indigenous peoples to be governed entirely by a
parallel regulatory system.
3.3. We propose the following wording for Article VI.1:
"Indigenous peoples have the right to special guarantees against discrimination that
may have to be instituted to fully enjoy...human rights; as well as measures necessary
to enable indigenous women, men, and children to exercise civil, political, economic,
social, and cultural rights..." This does away with the redundant phrase
"without any discrimination."
3.3. In Article IX.5 of the "proposed Declaration,"
the state is still obliged to provide financial assistance to indigenous peoples for
implementation of their educational and teacher training plans. As previously mentioned,
this provision should be omitted, since it could provide grounds for future monetary
3.4. Article X.1 of the "proposed Declaration" reads
as follows, "Indigenous peoples have the right to freedom of conscience, freedom of
religion and spiritual practice, and to exercise them both publicly and privately."
Under our national laws, it is possible to restrict the right to
exercise ones religion in public if it affects public policy or runs counter to
ethics or moral conventions. Therefore, we suggest deleting the phrase "and to
exercise them both publicly and privately."
The end of paragraph 3 provides: "When sacred graves and relics
have been appropriated by state institutions, they shall be returned."
We might note that such a provision could generate future claims
against state organizations, the custodians of indigenous relics; we therefore recommend
that it be omitted.
3.5. The second sentence of Article XI.1 of the "proposed
Declaration" reads: "Consequently the state shall recognize and respect the
various forms of indigenous family, marriage, family name and filiation."
Here again we see the incongruity of expecting the state to recognize
indigenous peoples own system to govern marriage, family name, and filiation, since,
under Article 75, paragraph 12, of the Argentine Constitution, the Civil Code exclusively
governs this matter under national law.
For this reason, we must reaffirm our position, previously expressed,
that "marriage, family name and filiation" be excluded from the article
3.6. Article XII.1 of the "proposed Declaration"
reads: "Indigenous peoples have the right to legal recognition and practice of their
traditional medicine, treatment, pharmacology, health practices and promotion, including
preventive and rehabilitative practices."
As previously mentioned, our penal code outlaws the illegal practice of
Therefore, for this article we must propose language that is less broad
and general and that, in the end, eliminates the possibility of "the practice of
medicine" by indigenous peoples.
3.7. Article XV of the "proposed Declaration" contains
references to "self government," which is not acceptable under our Constitution.
Although improvements have been made over the original text considered,
it should be borne in mind that the right to self-determination has been applied
specifically in the context of decolonization. Recognition of a right to
self-determination for indigenous peoples simply because they are indigenous, on the other
hand, is in no way supported either in the practices of states or in current international
Therefore, we suggest reiterating that the references to autonomy and
self-government should be deleted from this article and that the scope of the provisions
should be limited to "participation by indigenous peoples in managing their own
3.8. Article XVI of the "proposed Declaration"
continues to propose that there be a parallel legal framework governed by indigenous law,
which is incompatible with our national law.
We repeat that the states cannot be obliged to recognize indigenous
The text is not acceptable, since it is clearly incompatible with
Article 31 of the Argentine Constitution and oversteps the bounds of the regulations
envisioned in Article 75, paragraph 17, of that most basic Argentine law.
Therefore, the "proposed Declaration" could only
provide that indigenous law be borne in mind in the adoption of decisions involving
3.9. Article XVIII of the "proposed Declaration"
continues to use the word "territories." As previously mentioned by the
Argentine Government, from a strictly legal point of view, "territory" is
defined as the spatial limits within which the state legal system applies; therefore, only
sovereign states, not indigenous peoples, possess territory. In addition, Article 75,
paragraph 17, of the Argentine Constitution employs only the term "lands."
Accordingly, we recommend that the word "territories" be
deleted, since it is sufficient to use the word "lands", already found in the
article in question.
3.10. Article XXII of the current version of the "proposed
Declaration" has been simplified in its wording, and addresses Argentinas
main concerns regarding conflicts and disputes.
Nonetheless, there remain in the text two expressions which lack legal
precision and could lead to future difficulties. The article in question uses the phrases
"historical Acts" and "historical rights," which, in the opinion of
the Argentine Government, should be removed.
3.11. In the "proposed Declaration" there are still
three articles (VII, XVIII, and XXI) which contain references to possible
"compensation on a basis not less favorable than the standard of international
law" for indigenous peoples.
The Argentine Government has already indicated that the customary
provision of international law that establishes the obligation to provide reparations,
through an adequate indemnity, for damage caused applies to relations between subjects of
the rights of man, not to relations between a state and a sector of the population.
Therefore, with respect to the principles envisioned in the above-mentioned clauses, the
potential right to claim an indemnity or compensation should be evaluated in light of the
domestic law of each state. Doing otherwise would entail establishing an exception which,
in the case of the Argentine Republic, would be incompatible with the guarantee of
equality before the law, enshrined in Article 16 of the Constitution.
Therefore, Argentina reiterates its reservations concerning such
4. In paragraphs 1 and 2, amendments to the ninth preambular paragraph
have been proposed, as has the addition of a new 10th preambular paragraph, which would
allow for distinctions to be made according to specific circumstances in each country. It
is clear that the situation of indigenous populations in some American states is not the
same as it is in Argentina and other countries, from an ethnic, numerical, social,
cultural, economic, and, especially, legal point of view. The Declaration should therefore
reflect these different realities.