OBSERVATIONS AND RECOMMENDATIONS OF
BRAZIL ON THE
PROPOSED AMERICAN DECLARATION ON THE
GENERAL COMMENTS BY THE BRAZILIAN GOVERNMENT
1. Although the Proposed American Declaration on the Rights of Indigenous Peoples, as drafted by the Inter-American Commission on Human Rights, explicitly states in its Article 1 that the term "indigenous peoples" as used in the text cannot be construed in the sense permitted by international law, the Brazilian Government prefers that the term "indigenous populations" be used instead, precisely to prevent erroneous interpretations of the concept in question.
2. In addition, with respect to the use in the proposed declaration of the term "territory," the Brazilian Government believes this could be accepted only if it is qualified as "cultural territory." It would be better, however, for it to be replaced in the draft by the word "lands," thus avoiding the political content embodied in the first term. "Territory" is considered to be one of the components of a nation-state and refers to the physical space within which national sovereignty is exercised. Replacing it with the word "lands" would avoid the possibility of excessively broad interpretations. It would also prevent unnecessary politicization, since what is being sought is not the creation of a power parallel to the state, but the protection of the rights to full use of the habitat by the indigenous communities.
3. Lastly, the Brazilian Government believes that the reference in the draft declaration to the role of international cooperation as an effective vehicle for the promotion of the economic, cultural, and social development of the indigenous populations could be more substantive. The Declaration should contribute affirmatively to expanding the opportunities for international cooperation, especially in the areas of worker training, courses in indigenous culture and history, linguistic and anthropological research, health care, financing and construction of schools, production of educational materials, and implementation of community development projects of interest to indigenous groups.
PROPOSED AMERICAN DECLARATION ON THE
AMENDMENTS PROPOSED BY THE BRAZILIAN GOVERNMENT
ARTICLE 2. Eradication of poverty
Suggested wording for the first paragraph: Recognizing the severe impoverishment afflicting indigenous populations in many regions of the Americas and that their living conditions are generally deplorable, and concerned about the deprivation of the human rights and fundamental freedoms of the indigenous populations, which has inter alia resulted in the occupation and dispossession of their lands, territories, and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests;
Suggested revised title of this item: Indigenous survival and possession and use of the lands they have traditionally occupied
ARTICLE 7. Demilitarization of indigenous areas
Suggested wording: Taking special note of the need for any military presence in the lands of indigenous peoples, when it occurs, to contribute to the peace, progress, and economic and social development of these communities and to the mutual understanding and relations of friendship among the nations and peoples of the world.
Observation: The language used in the original version of this paragraph seems to suggest that the presence of the armed forces in indigenous areas is necessarily prejudicial or negative. In the case of Brazil, for example, this presence has played an important positive role, especially in the border regions.
ARTICLE 9. Advances in the provisions of national instruments
Suggested wording: Noting the constitutional and legislative advances achieved in the Americas in guaranteeing the rights and institutions of the indigenous populations.
ARTICLE I. Scope and definitions
Observation: The definition of "indigenous peoples" in Article I is appropriate. However, the addenda suggested in the two alternatives presented are not compatible with a declaration on the rights of indigenous peoples, inasmuch as "Alternative 1" would include among indigenous peoples the descendants of Africans who were organized in quilombos [havens for runaway slaves], and "Alternative 2" covers groups such as gypsies. Neither group can be characterized as "indigenous."
Suggested revised wording for the title: Right to belong to an indigenous (...) community
Suggested wording: Without entailing any disadvantage, indigenous persons and peoples have the right to a cultural identity, i.e., the right to belong to an indigenous community having its own traditions and customs.
Observation: Although anthropologically correct, the term "nation" used in the original text of this article is inappropriate for application to indigenous communities, because of its connotations under international law.
ARTICLE IV. Legal status of communities
Suggested wording: Subject to the specific provisions of each country's legislation, states shall ensure that legal personality is granted to communities of indigenous peoples.
ARTICLE V. No forced assimilation
Suggested wording: States shall refrain from adopting any measure that would result in the forced assimilation of indigenous peoples, and from supporting theories or taking actions that entail discrimination, destruction of a culture, or the possibility of genocide. Furthermore, they shall agree to punish such acts.
ARTICLE VI. Special guarantees against discrimination
Suggested wording for the second paragraph: The states shall also adopt measures necessary to enable indigenous women, men, and children to exercise, without any discrimination, their civil, political, economic, social and cultural rights. The states recognize that violence exerted against persons because of their gender or age impedes and nullifies the exercise of those rights.
ARTICLE VII. Right to cultural integrity
Observation: The Brazilian Government believes that the second paragraph of Article VII could give rise to false hopes for compensation. It is not unusual for indigenous peoples to have been dispossessed of their property many decades ago, and any proceedings that might be filed to claim the original right to those properties would remain unresolved. In Brazil, demarcation of indigenous areas follows the principle of the current occupation of the land, according to the cultural traditions of the indigenous community. Given its ineffectiveness, we suggest that the second paragraph of this article be deleted.
ARTICLE IX. Education
Suggested wording for the introduction to the first paragraph: In places where there is a large indigenous population, indigenous peoples, if they so desire, shall be entitled: (a) .....
Observation: Educational programs directed specifically to indigenous communities are justified only on the basis of the size of the indigenous population contingent.
ARTICLE X. Spiritual and religious freedom
Suggested wording for the third paragraph: In collaboration with the indigenous peoples concerned, the states shall adopt effective measures to ensure that their sacred sites, 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.
ARTICLE XII. Health and well-being
Observation: The Brazilian Government suggests that the second and third paragraphs of this article be combined into a single paragraph in which it would be appropriate to mention the right of indigenous peoples to a fair and equitable distribution of the benefits generated by the commercial use of their traditional knowledge.
ARTICLE XIII. Right to environmental protection
Suggested wording for the fifth paragraph: Indigenous peoples have the right to assistance from their states for purposes of environmental protection and may, to that end, receive assistance from international organizations, in accordance with procedures set forth in national laws.
The Brazilian Government suggests the insertion of a new article into the draft declaration. It could be placed at beginning of Section Four ("Organizational and Political Rights") and would read as follows:
Right to nationality. Indigenous peoples have the right to the nationality of the states to which they belong.
Observation: With respect to the end of the second paragraph of this article, there is no objection to facilitation of contacts among members of the same indigenous ethnic group who are separated by international boundaries. However, such facilitation of contacts cannot be allowed to occur in disregard of the enforcement of government border control rules.
ARTICLE XV. Right to self-government, administration, and control over internal affairs
Suggested wording for the first paragraph: The states recognize the right of indigenous peoples to self-determination, understood as the right to freely pursue their economic, social, and cultural development and (...) the right to autonomy and self-government with regard to internal and local matters (....). They shall seek to promote access to the ways and means for financing the exercise of those rights.
Suggested wording for the second paragraph: Indigenous populations have the right to active and informed participation in the debates on matters that might affect their rights, lives and destiny. (....) They also have the right to maintain and develop their own indigenous decision-making institutions for their internal affairs. They are also accorded access to national fora under conditions equal to those afforded other citizens.
ARTICLE XVI. Indigenous law
Suggested wording for the first paragraph: The states recognize that indigenous peoples have the right to apply their rules of custom and usage to the regulation of their internal affairs.
Observation: The Brazilian Government considers the list in the second paragraph of this article unnecessary, since recognition of customary rules cannot prevail over the application of cogent rules of national legal systems.
Suggested wording for the title of this article: Incorporation by national institutions of the traditional practices of the indigenous populations
Observation: The issue of "national incorporation of indigenous legal systems" referred to in the original title of this article and dealt with in the preceding article, is not actually mentioned in the text.
Suggested wording for the first paragraph: In accordance with specific national bodies of law, the indigenous peoples have the right to legal recognition of the possession, control, or use of their lands and property.
Suggested wording for the second paragraph: In accordance with specific national bodies of law, indigenous peoples have a permanent, exclusive, inalienable, imprescriptible, non-attachable and non-transferable right to the recognition of the possession, ownership or use of the lands they have historically occupied, as well as to the use of those to which they have historically had access for their activities and livelihood.
Suggested wording for the third paragraph: The recognition of the possession, ownership, or use mentioned in the preceding paragraph shall not limit the right of indigenous peoples to attribute ownership within the community in accordance with their customs, traditions, uses and traditional practices, nor shall it affect any collective community rights over them. The possession, ownership or use may only be changed by mutual consent between the state and the respective indigenous people when the latter have full knowledge and appreciation with respect to the proposed changes.
Suggested wording for the fifth paragraph: In the event that ownership of the minerals or resources of the subsoil pertains to the state, or that the state has rights over other resources on the surface, the governments must establish or maintain procedures for the participation of the peoples concerned in determining whether the interests of these people would be adversely affected and to what extent, before undertaking or authorizing any program for prospecting or exploiting the resources existing on those lands. The peoples concerned shall participate in the benefits flowing from those activities and shall receive compensation, in accordance with applicable laws, for any loss which they may sustain as a result of such activities.
Observation on the sixth paragraph: The Brazilian Government believes that the term "full compensation" to which this paragraph refers would only be appropriate, in principle, to cases where it is impossible for the people to return to the original land.
ARTICLE XIX. Workers rights
Suggested wording for part (a) of the second paragraph: effectively protect the workers and employees who are members of indigenous communities in respect of fair and equal hiring and terms of employment, affording them suitable guarantees and protections;
Suggested wording for part (b) of the second paragraph:
ARTICLE XX. Intellectual property rights
Suggested wording for the first paragraph: The states recognize the intellectual property rights of the indigenous peoples, so as to guarantee them control and protection of their cultural and artistic heritage and their traditional knowledge. They further recognize the right to a fair and equitable share in the benefits derived from the use of that heritage and knowledge.
Suggested wording for the second paragraph: Indigenous peoples have the right to special measures for the control, development, and protection of the use of their sciences, technologies, (...) methods, traditional knowledge, seed, medicine, knowledge of plant and animal life, original designs and procedures, as well as the right to a fair and equitable distribution of the benefits derived from that use.
Observation: The intellectual property rights of indigenous peoples have been the subject of debates by the FAO's Committee on Genetic Resources, where the International Commitment on Plant Genetic Resources, which mentions farmers' rights, is now being renegotiated, as is the Convention on Biological Diversity. The most recent Conference of the Parties to that Convention was held in Jakarta in November 1995, and instructed the Secretariat to conduct a study on the relationship between intellectual property and the fair and equitable distribution of the benefits derived from the use of bodies of traditional knowledge. Under these circumstances, the Brazilian Government believes that the language in Article XX should be more assertive. Therefore, we suggest deletion of the phrase "when circumstances so warrant," which weakens the content of the second paragraph, and suggest a change in the indicative listing, so as to enhance the article.
ARTICLE XXI. Right to development
Suggested wording for the first paragraph: The states recognize the right of indigenous peoples to decide (...) what values, objectives, priorities and strategies will govern and steer their development course, even where they are different from those adopted by the national government or by other segments of society. Indigenous peoples shall be entitled to obtain on a non-discriminatory basis appropriate means for their own development according to their preferences and values, and to contribute by their own means, as distinct societies, to national development and international cooperation.
Observation: The Brazilian Government suggests that the word "democratically" be deleted from the first paragraph, since ethnographic evidence shows that decision-making in indigenous societies cannot always be characterized as "democratic."
Suggested wording for the second paragraph: The states shall take necessary measures to ensure that decisions regarding any plan, program, or proposal affecting the rights or living conditions of indigenous peoples are made with the free and informed (....) participation of those peoples, that they attempt to recognize their preferences, and that they do not include any provision that could result in harmful effects for the normal survival of said peoples. Indigenous peoples have the right to compensation, under national laws, for any loss which, despite the foregoing precautions, the execution of those plans or proposals may have caused them; and [are entitled, have the right to] measures to mitigate adverse ecological, economic. social, or cultural (....) impact.
Observation: The term "consent" used in the original version of the second paragraph of this article could give indigenous communities a veto right over projects in which they have an interest. What we should try to guarantee here is the effective participation of the indigenous communities in the discussion of matters pertaining to them.
ARTICLE XXII. Treaties, agreements, and implicit understandings
Suggested wording: Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements, or other understandings that may have been concluded with states or their successors, according to their spirit and intent, and to have states honor and respect these.
Observation: The Brazilian Government recommends deletion of the second phrase in this article, since controversies are normally resolved within the framework of national jurisdictions.
The Brazilian Government suggests that a new article be inserted in Section Six ("General Provisions") of the draft declaration. This article would read as follows:
"The nature and scope of the measures to be taken to carry out this Declaration should be determined with flexibility, taking into account the specific conditions prevailing in each country."