MEETING OF GOVERNMENT EXPERTS TO EXAMINE
THE PROPOSED AMERICAN DECLARATION ON THE
RIGHTS OF INDIGENOUS POPULATIONS

February 10-12, 1999
Washington, D.C.

 

 

OEA/Ser.K/XVI
RECIDIN/INF.12/99
10 February 1999
Original: Spanish

POSITION OF BOLIVIA REGARDING THE "PROPOSED
AMERICAN DECLARATION ON THE RIGHTS
OF INDIGENOUS PEOPLES"

 

Prepared by:
Vice Ministry of Indigenous Affairs and
native peoples
Ministry of Sustainable Development
and Planning


PREAMBLE

It would be very important to devote a specific paragraph of the preamble to pointing out the important role of indigenous peoples in the identities of the American states and their essential contribution to both universal and American culture.

Not only have indigenous peoples been victims of history, they have been, and continue to be, players in history. Their knowledge and culture have contributed to culture both in the Americas and worldwide.

SECTION ONE. INDIGENOUS PEOPLES

Article I. Scope and definitions

Paragraph 1. The proposed text does not define indigenous peoples; it merely refers to them. We wonder why a definition of the term "indigenous people" was omitted. The definition used in ILO Convention 169 is applicable to the Americas and reflects both the historical and current realities of our indigenous peoples.

In the absence of a precise definition, it is possible that the original rights of indigenous peoples—rights which, as stated in the Constitution of Paraguay itself, existed before the creation of the nation states—will be curtailed.

The concept of indigenous peoples as set forth in ILO Convention 169 should be incorporated into the Declaration.

Bolivia has recognized indigenous peoples in its Constitution, in its Law on Popular Participation, and in its Regulatory Decree No. 23,858 of September 9, 1994, in which the indigenous peoples of Bolivia are defined as follows:

. . . the human community descended from populations that were settled prior to the conquest or colonization and are located within the current boundaries of the state; they have a history, an organizational structure, a language or dialect, and other cultural characteristics that identify their members as belonging to a given sociocultural unit; they maintain territorial ties by managing their habitat and their social, economic, political, and cultural institutions.

Moreover, the proposed document extends the scope of application of the future Declaration to peoples who fit the following definition:

"…as well as peoples whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations."

This definition is very generic and one cannot tell for certain to what type of groups it applies. The definition in ILO Convention 169 is clearly applicable to tribal peoples; but one cannot tell from the definition in the Declaration to what group it refers--African-American communities, Mennonites, Japanese colonies could fit the definition.

Moreover, if the Declaration is intended to apply to other sectors, then its title is incomplete, since it only mentions "indigenous peoples." The ILO's Convention 169 is precise, since its title refers to the two subjects of the Convention, namely indigenous and tribal peoples.

The Declaration cannot be tacit; it must be precise. It must specify the groups to which it refers using the definition of tribal peoples adopted in ILO Convention 169.

The draft approved by the Inter-American Commission on Human Rights of the OAS at its session 1278 on September 18, 1995, specifically proposed incorporation of the African-American population and gave a definition of this sector of society.

Consideration must be given to whether the black communities in the United States, Canada, and Brazil would be willing to be treated as indigenous or tribal peoples.

In conclusion, the text of the Declaration is highly ambiguous because it fails to define the concept "indigenous peoples"; and a definition of tribal peoples is introduced, but to whom it is intended to apply is unclear.

SECTION TWO. HUMAN RIGHTS

Article II. Full observance of human rights

Paragraph 1. Bolivia belongs to the inter-American human rights system, having signed the OAS Charter. It is party to the American Declaration of the Rights and Duties of Man and has signed the American Convention on Human Rights. It believes that the American Declaration on the Rights of Indigenous Peoples should be consistent with these standards and principles of international human rights law, which represent the highest juridical consensus on human values that has been reached by the international community. It therefore believes that the paragraph should be approved in its present form.

Article III. Right to belong to indigenous peoples

This article makes a distinction between an indigenous community and an indigenous people. In many legal systems the two terms are considered virtually synonymous insofar as the exercise of recognized indigenous rights is concerned.

Under the legal principle that the broader jurisdiction encompasses the lesser, it is understood that the indigenous community is the basic organizational unit of an indigenous people, and hence it is unnecessary to make a distinction between indigenous community and indigenous people.

It is impossible for a community that belongs to a given indigenous people to choose to belong to another people, since this could affect the collective identity. The spirit of this Declaration is to reaffirm the identity of indigenous peoples. It is not to recognize just any identity or to open the door to future interethnic conflicts.

We believe that if a community chooses to identify itself as indigenous or not it is fully within its rights to do so, as guaranteed under Article I, paragraph 2, of the Declaration; however, this is not the same thing as a Guaraní community, for example, wanting to belong to the Quechua people.

It is suggested that the word "community" be deleted from the article.

To refer to indigenous persons, on the other hand, is not only realistic but necessary. Migration and contact between ethnic groups are producing marriages between persons of different indigenous peoples and lineage, so that an individual from one community can assume the identity of another.

Article IV. Legal status of communities

Bolivia has already recognized the legal status of indigenous communities and peoples (Article 171-II of the Constitution of Bolivia) and considers it important to leave the text of this article as it now stands.

In addition, it is suggested that a paragraph be added to specify that the traditional authorities of indigenous peoples have the power to represent these peoples and act in a legal capacity on their behalf, as follows:

The traditional authorities of indigenous peoples, elected according to their practices and customs, shall have the power to represent indigenous peoples and act in a legal capacity on their behalf.

Article VII. Right to cultural integrity

Bolivia has issued two supreme decrees in this regard. The first decree recognized the rights of indigenous communities to their pre-Columbian textiles, which had made it possible to retrieve textiles of the Coroma community from persons trafficking in archeological artifacts in Canada and the United States. Once recovered, these textiles were returned to their communities.

The second supreme decree provided for the return of the Pachamama stele (also known as the Bennett monolith) to its place of origin—namely, the shrine in Tiahuanacu.

Bolivia therefore believes that this article should be approved in its entirety.

Article IX. Education

Bolivia has enacted Educational Reform Act No. 1565, which states that education in Bolivia is bilingual and intercultural, since Bolivia is constitutionally defined as a multiethnic and multicultural country. It should be mentioned that 60% of its population is indigenous.

There is no bilingual education program developed specifically for indigenous peoples; rather, the intention of the law is that all formal education in Bolivia should be bilingual and intercultural, in order to form a truly multicultural and democratic society.

Economic resources, including credit from the World Bank and the Inter-American Development Bank, are being invested in the educational reform process, which is starting up essentially in the primary grades and gradually moving up to the higher levels.

The Government's efforts have been very important to this educational reform process, which has also included participation by indigenous organizations through the Native Peoples' Education Councils. These councils have the authority to participate in devising educational policy and overseeing its application, especially with regard to its bilingual and intercultural aspects.

The Declaration, and this article specifically, will support the efforts of the Bolivian Government and the indigenous organizations in developing a high-level educational system based on the indigenous identity. Bolivia endorses this article in its entirety.

Article XV. Right to self-government

Paragraph 1 establishes the right of indigenous peoples to freely determine their political status and freely pursue their economic, social, spiritual, and cultural development, by virtue of which they are entitled to autonomy or self-government. This means that self-determination of their political status translates into the right to autonomy or self-government.

However, this autonomy or self-government is only partial, applying only to the areas expressly stated in the paragraph.

It is possible that this limitation will facilitate approval of the Declaration by the signatory states. On the other hand, the indigenous peoples may feel that the present wording undermines their right to self-determination and therefore reject it.

Bolivia has signed and is party to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, which recognize the right of peoples to self-determination and specifically state as follows:

Article 1. . All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Self-determination is a right that emerges in a colonial context, in which colonial powers subjugate the peoples under their jurisdiction to plunder the economic and natural resources of those peoples. In other words, there is an intentionality and a rationale to this type of domination, the sole and exclusive intent being to exploit the natural resources and manpower of the subjugated peoples and maintain geopolitical hegemony over these colonial empires.

The Latin American nations are arose from a different situation—the misnamed "discovery of America," or, euphemistically, the "encounter of two worlds," which we might more appropriately call the arrival of the Spaniards on American soil as conquerors.

This historic event led to a widespread and profound mixing of the races, not only in the biological sense but also in cultural, political, social, and economic terms. The Latin American nations were built, for better or worse, on a foundation of existing pre-Hispanic realities; or, at the very least, when this was not the case, the Amerindian peoples still greatly influenced the makeup of the Latin American states.

Later on, during the emancipation of the American nations, the indigenous peoples were active participants in the fight for independence. Nevertheless, the states that emerged did not represent the interests of the indigenous peoples; on the contrary, state policies were imbued with European philosophical and political thought, based on social Darwinism.

The emancipation was a legitimate process—its legitimacy being derived from the international right that justifies rebellion against tyranny—and it was a process that involved Americans, including the indigenous peoples, who gave their lifeblood for the nation states.

The fact that the republican states were not democratic—in those days democracy was an ideal, not a form of government—and became oligarchies instead was part of a social process shaped by internal colonialism, arising over three centuries of Spanish and Portuguese domination in Latin America.

The Latin American countries have consolidated their national identities, of which the indigenous peoples are an integral part, and at the same time these peoples have identified themselves with their own nations.

One of the most important current-day issues in Latin America has been the rights of indigenous peoples, which has led to major constitutional reforms that expressly recognize specific rights of indigenous peoples.

It is not true that the concept of self-determination gave rise to the national liberation processes in Africa and Asia; rather, the establishment of this right is associated with the end of the liberation process.

It is also incorrect to assume that the adoption of this principle of international law could trigger secessionist movements in countries with indigenous populations.

On the contrary, this principle can serve to establish relations based on the principles of respect, fairness, and equality, and can lead to the formulation and promotion of a new order of relations with indigenous peoples and the Latin American states.

Article XVI. Indigenous law

With regard to indigenous law, the Government of Bolivia considers this a fundamental and basic right, a consubstantial aspect of the identity of indigenous peoples, and for this reason it has been incorporated in the text of the Constitution, Article 171, paragraph III, which reads:

The natural authorities in the indigenous and rural communities shall have the power to perform administrative functions and apply their own laws as alternative dispute settlement mechanisms, in accordance with their customs and practices, as long as these do not run counter to this Constitution and the law. The law shall harmonize these functions with the powers of the branches of government.

The indigenous legal systems (indigenous or customary law) are a true legal order, with their own axiology, procedures, and means of resolution, which are sometimes totally different from Western law. This statement is fully consistent with the universal principle of ubi societas, ubi jus, which is also supported, better than any other, by the "theory of the institution."

There is no doubt that many aspects of the indigenous identity have been modified, eliminated, or reshaped by outside influences. This process has been much more marked and critical in the case of indigenous law. But that does not justify the line of thinking that would deny the existence of indigenous law. What is clear is that there are indigenous legal systems that should be recognized by the Declaration.

Article XVIII. Traditional forms of ownership and cultural survival. Rights to land, territories, and resources

The concepts of ILO Convention 169 have been incorporated here, and for this reason Bolivia has only a few minor comments to make with regard to this article.

The Convention departs from the agrarian view of land as solely a means of production and adopts the universalizing concept of indigenous territories, which includes not only rights to the land but also participation in the administration, use, and conservation of natural resources, as well as conservation management and environmental protection.

Bolivia has issued Act No. 1715 of the National Agrarian Reform Service, which defines the constitutional status of the communal lands of indigenous peoples in the following terms:

Article 3. Constitutional Guarantees

III. The rights of indigenous and native peoples and communities to their communal lands of origin are guaranteed, taking into account the economic, social, and cultural implications thereof and the use and sustainable harvesting of renewable natural resources, in accordance with the provisions of Article 171 of the Constitution. The term "communal lands of origin" encompasses the concept of indigenous territory, in accordance with the definition set forth in Part II of Convention 169 of the International Labour Organisation, ratified by Act 1257 of July 11, 1991.

Title to communal lands of origin accords to indigenous and native peoples the collective ownership of these lands and recognizes their right to the use and sustainable harvesting of the renewable natural resources contained therein.

The use and harvesting of nonrenewable resources on communal lands of origin shall be governed by the provisions of the Constitution and by the special laws that govern them.

Communal lands of origin and collectively owned communal lands shall not revert; their ownership shall not be transferred; and they shall not be encumbered, seized, or acquired by adverse possession. Distribution and redistribution for individual and family use and development within communal lands of origin or collectively owned communal lands shall be governed by the rules of the community, in keeping with its standards and customs.

The application of agrarian laws and regulations to indigenous and native peoples shall take into account their customs or customary law, as long as these are not incompatible with the national legal system.

Article 4. Tax basis and exemptions

III. Ancestral homes, small landholdings, and real estate owned by rural communities and by indigenous and native peoples, shall be exempt from paying the taxes normally imposed on agrarian real estate, in accordance with the provisions of the tax laws currently in effect.

This shows that Act No. 1715 of the National Agrarian Reform Service has adopted the definitions of indigenous territories and incorporated them into the legislation, in accordance with concrete circumstances in Bolivia. The Bolivian Government therefore supports this article, considering the essential value of land and territories to the material, social, and cultural development of indigenous peoples.

Paragraph 3 of the article had to be included in light of circumstances in the leading nations—namely, Canada and possibly the United States—which must be taken into account in order to obtain the greatest possible consensus for signature and adoption of the Declaration.

Accordingly, the Government of Bolivia pledges its support to this article.

WITH RESPECT TO THE REMAINING ARTICLES

The Government of Bolivia has examined the rest of the articles in the Proposed American Declaration on the Rights of Indigenous Peoples and supports them in their entirety, since they represent the aspirations not only of the indigenous peoples but also, and fundamentally, of the states of the Americas to achieve a balanced, just, and equitable relationship with the indigenous peoples.

 

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