OBSERVATIONS AND RECOMMENDATIONS OF ARGENTINA ON THE "PROPOSED AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES" (CP/doc.2878/97)

PERMANENT MISSION OF THE ARGENTINE REPUBLIC
TO THE ORGANIZATION OF AMERICAN STATES

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" as follows:

1. "9. Advances in the provisions of national instruments and different national situations. Noting the constitutional, legislative, and jurisprudential advances achieved in the Americas in guaranteeing the rights and institutions of indigenous peoples, which also reflect the varying degrees of impact of these communities in the different states and the particular ways indigenous peoples are included in those states."

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:

"10. The situation of indigenous peoples 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, which amply cover the rights of indigenous peoples, reflecting the varying degrees of impact of their participation in national life, as well as specific circumstances in each country."

3. Observations will now be made in light of the new text being considered for the proposed American Declaration on the Rights of Indigenous Peoples–hereinafter 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 "poblaciones" (peoples).

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 jur�dico relativo a los derechos de las poblaciones ind�genas..." ("a juridical instrument relative to the rights of the Indian peoples...").

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 claims.

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 one’s 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 in question.

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 medicine.

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 law.

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 institutions."

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 legal systems.

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 indigenous peoples.

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 Argentina’s 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 provisions.

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.