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


February 10-12, 1999
Washington D.C.

 



OEA/Ser.K/XVI
RECIDIN/INF.6/99
2 February 1998
Original: Spanish

OBSERVATIONS AND RECOMMENDATIONS OF COLOMBIA REGARDING
THE "PROPOSED AMERICAN DECLARATION ON THE RIGHTS
OF INDIGENOUS POPULATIONS"

PERMANENT MISSION OF COLOMBIA TO
THE ORGANIZATION OF AMERICAN STATES

GOVERNMENT POLICY ON INDIGENOUS PEOPLES

First of all, we should point out that the Constitution of Colombia enshrines a series of principles of direct relevance to indigenous peoples. They take as their starting point the central proposition of that Constitution, which recognizes, without discrimination of any kind, the primacy of the inalienable rights of the individual, and proclaims the family as the basic institution of society (Article 5); moreover, the state also recognizes and protects the ethnic and cultural diversity of the Colombian nation (Article 7).

With respect to territory, Colombia’s indigenous reserves are not only collective, inalienable, imprescriptible, and indefeasible property (Articles 63 and 329), but they also constitute territorial entities that enjoy autonomy in the management of their interests. As such, they have the right to govern themselves through their own authorities; to exercise the powers within their competence; to administer resources and to establish such taxes as are necessary to fulfill their functions; and to share in national revenues (Article 287).

The indigenous territories are governed by councils and composed and regulated according to the usage and customs of their communities. Article 330 grants these councils the following functions:

1. To ensure the enforcement of legal rules over land use and settlement within their territories;

2. To design policies and economic and social development plans and programs within their territory, consistent with the National Development Plan;

3. To promote public investments in their territories and to ensure their proper execution;

4. To collect and distribute resources;

5. To ensure the preservation of natural resources;

6. To coordinate programs and projects put forward by the various communities within their territory;

7. To collaborate in maintaining public order within their territory, in accordance with the instructions and stipulations of the National Government;

8. To represent their territories before the National Government and other entities of which they are members, and

9. Such functions as may be assigned to them by the Constitution and by law.

Similarly, the Constitution provides that "the exploitation of natural resources in indigenous territories shall be conducted in ways that do not impinge upon the cultural, social, and economic integrity of indigenous communities. In all decisions relating to such exploitation, the Government shall seek the participation of representatives of the respective communities."

Consistent with this juridical context, the current government’s policy with respect to indigenous rights, as set out in the National Development Plan, 1994-1998, the "Salto Social" [the "social leap forward"], is designed to consolidate the rights of indigenous peoples, by guaranteeing "their participation in national life, articulating existing institutions and points of coordination, and creating such others as may be necessary to achieve full respect for their particular social and cultural features and their own forms of organization. National strategies for achieving these goals involve sectoral and territorial programs that will include sustainable human development, legal regularization of lands and territories, and involvement in major social and economic development projects."

Pursuant to the foregoing considerations, CONPES approved, on April 5 1995, the "Program of Ethnic Support and Reinforcement for Colombia’s Indigenous Peoples, 1995-1998", which states: "The Government shall support, reinforce, and ensure the consolidation and application of the rights of indigenous peoples recognized in the Constitution, on the basis of respect for their ethnic and cultural diversity, as regards their participation in national life, and in particular the design and implementation of social and economic development projects that have an impact on their social, economic, cultural, and political systems."

"Strategies for indigenous peoples involve: legal assurances of their rights; recognition of their own systems of social control and regulation, including the articulation of indigenous jurisdiction with the national judicial system; adoption of territorial and sectoral support programs, in coordination with indigenous communities; creation of Indigenous Territorial Entities (ETI); continuation of efforts to legalize and regularize indigenous territories; recognition and understanding of their values, usages and customs by government bodies; and community involvement in government programs of social and economic development:.

The Ministry of the Interior, through the General Directorate of Indigenous Affairs, is responsible for formulating and developing indigenous policy, in coordination with the indigenous peoples themselves and with other interested public and private agencies. In the particular case of the "Proposed American Declaration on the Rights of Indigenous Peoples," the General Directorate of Indigenous Affairs has described the scope of certain indigenous rights, in light of Colombia’s juridical context, in the following terms:

The right to identity as an indigenous people, which involves the right to be different and not to suffer discrimination in their relationship with the State and with society.

The right to territory, understood as the right to sufficient habitat and space for their continued cultural survival as a people.

The right to autonomy in the various aspects of their life as a people: government, justice, education, health, social and economic growth, etc., in order to maintain control over their ethnic survival and the pace of cultural change.

The right to participate in the various spheres of national life, and the right to be consulted in advance on measures, plans, programs and projects that might affect their ethnic integrity, their territories or the natural resources located within them.

The right to their own development, in the sense of the future growth of their social groups, their culture and improvements in their quality of life, in accordance with their cultural and social systems and the lifestyle they adopt or work out as peoples; and self-development with respect to their cultural relationship to national development.

OBSERVATIONS AND COMMENTS

At the outset, we wish to point out that the following comments are of a preliminary nature. This reflects the fact that several of the substantive aspects of the draft declaration are currently the subject of consultation with the competent government authorities, and we do not yet have a response on them.

From a general viewpoint, the draft Declaration is significant, not only for the coherence and solidity of the principles enshrined in it, but also because it represents a major step forward for the American community towards recognizing the value of indigenous peoples in our societies.

Not only does the Declaration recognize rights that are inherent to indigenous peoples, it also contains mechanisms for their full enjoyment. This means that the Declaration will be more than a list of principles recognized by the American community, and will go beyond a mere declaration; the States will in fact be undertaking commitments and obligations that they must implement in order to ensure that those rights "constitute the minimum standards for the survival, dignity, and well-being of the indigenous peoples of the Americas" (Article XXIV).

With respect to the obligations of states arising from the Declaration, some of these have never been the subject of binding international instruments. In the case of our country, although it is party to Convention No. 169 on indigenous and tribal peoples in independent countries, Colombia would for the first time be accepting other, major international commitments, for example, in the area of communications, intellectual property, education, and special measures of compensation of indemnity for situations that arose in the past.

In addition, the Declaration attributes to the Organization of American States, and in particular to the Inter-American Indian Institute and the Inter-American Commission on Human Rights, the duty to promote the full respect and enforcement of its provisions.

From some of the expressions contained in the draft, it would appear that the text goes beyond the nature of a Declaration, since an international instrument of this kind does not normally contain provisions that are binding or mandatory on the part of states: such provisions are proper to an international agreement or convention. The Colombian Government will obviously have to give this point some careful thought, particularly in light of the fact that the Constitution does not empower the executive to enter into definitive international commitments without the prior approval of Congress, and a declaration of enforceability by the Constitutional Court.

On this point, we attach considerable importance to the analysis and comments, both of the Permanent Council and of the Inter-American Juridical Committee, with respect to those expressions in the draft text that are clearly more appropriate to an international treaty than to a declaration. Once the Colombian Government has completed its final review of the draft, we shall be able to offer more detailed observations on this point.

A second comment relates to the draft Declaration’s reference to indigenous people as being a "subject of international law" (Paragraph 7.2 of the Preamble and Article XXII). This expression could pose some difficulties since, strictly speaking, any subject of international law has the capacity to contract international obligations and to exercise and enforce its attributes internationally.

It would appear that the draft intends to treat indigenous peoples as the subject of rights with full international attributes. Or perhaps the notion is restricted to recognizing that indigenous peoples, as individuals, have a special status in terms of demanding observance and enjoyment of their fundamental rights. The first hypothesis is suggested by article XXII, which states that "Indigenous peoples have the right to the recognition, observance and enforcement of treaties... and to have states honor and respect such treaties. . . . Conflicts and disputes which cannot otherwise be settled should be submitted to competent bodies."

Bearing in mind that the Declaration is being developed with full respect for the principle of the unity and integrity of the State, and that nothing in it "may be construed as permitting any activity contrary to the purposes and principles of the OAS, including sovereign equality, territorial integrity and political independence of states" (Article XXVI), the expression "subject of international law" must be understood within the context of the purposes and aims of the Declaration itself. Consequently, agreements entered into by indigenous peoples with a state do not have the character of international treaties, and any disputes or conflicts arising from their application must be resolved by the competent internal bodies of the state in question.

As to the text itself, the proposed Declaration goes much further in pointing the way to what might constitute true progress in constitutional and legal provisions and government polices as they affect indigenous peoples. In this context, it is entirely appropriate for foreign policy to make a significant contribution to the process of making a reality of the rights that guarantee the survival, dignity and well-being of America’s indigenous peoples.

 

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