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

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

 


OEA/Ser.K/XVI
RECIDIN/INF.1/99
29 January 1999
Original: Spanish

OBSERVATIONS AND RECOMMENDATIONS OF THE INTER-AMERICAN JURIDICAL COMMITTEE ON THE "PROPOSED AMERICAN DECLARATION
ON THE RIGHTS OF INDIGENOUS POPULATIONS"

1. Preliminary Considerations

When discussing the preparation of this resolution, the Committee confirmed that all its members were in agreement with the purpose set forth by the Inter-American Committee on Human Rights in the Proposed American Declaration on the Right of Indigenous Peoples, in the sense of fostering full enjoyment of human rights by those individuals living on this Continent who have preserved former cultures of the European colonization, contributing to the preservation of said cultures that are an important cultural heritage of the Continent and, in light of the disadvantageous socio-economic situation of a large number of the individuals keeping up these cultures as compared to the rest of the population, remedying such a situation.

From this perspective, the Committee considered that its duty was not to provide a legal opinion on the proposed Declaration submitted to it, and when advisable to seek the appropriate solutions to achieve the objectives of the drafters thereof.

2. Background

2.1 General Information

There are a series of treaties and international juridical instruments that do not refer to indigenous peoples, but that may in general be considered as applicable to same:

    1. Articles 1 and 55 of the Charter of the United Nations establish the principle of self-determination of a people as an essential principle.
    2. The Universal Declaration of Human Rights
    3. Article 1, Article 18, paragraph 1, Article 23, paragraph 1, and Article 27 of the International Treaty on Civil and Political Rights
    4. Articles 1 and 13 of the International Treaty on Social, Economic, and Political Rights
    5. Article 20 of the Convention on Children's Rights

2.2 Specific Information

The main purpose of Convention 107 of the International Labor Organization adopted in 1957 was to improve the economic and social conditions of indigenous "peoples" as part of a broad community and not as a group or population. That said document does not refer to the indigenous customary law or to collective land property rights, and fosters domestic integration and voluntary assimilation programs.

The aforementioned Convention was revised in 1972 with the adoption of Convention 169, in 1991. In line with the trend of abandoning the integration and assimilation philosophy, the articles of the Convention provide for the protection of the integrity of indigenous culture, right to land and resources, non-discrimination with respect to social security, and participation by indigenous peoples in the decision-making process of their respective States. During the preliminary work, the use of the term "peoples" to designate the beneficiaries of the Convention was discussed in depth, as the said term is associated with self-determination, and the right to create an independent State. Pursuant to a commitment assumed, the document used the said term followed by the clarification: "The use of the term peoples in this Convention does not affect the right of self-determination as understood in international law."

The United Nations working group on indigenous peoples was created in 1982 as an agency of the Sub-Commission on the prevention of discrimination and protection of minorities. In 1985, the working group was authorized to draft a declaration on the rights of indigenous peoples for submission to the General Assembly of the UN. The drafting of said project was completed in 1988 and discussed until 1993, when it was submitted to the United Nations Sub-Commission on Human Rights for consideration. The scope of this project is beyond Convention 169 of the ILO, as it grants indigenous peoples the right to self-determination, including the right to land, resources and political autonomy. The right to self-determination is defined in the following provisions: "Indigenous peoples have the right of self-determination, in accordance with international law by virtue of which they may freely determine their political status and institutions, and freely pursue their economic, social and cultural development. An integral part of this is the right to autonomy and self-government" (paragraph 1). This project is still being discussed at the UN.

The following information is also worth noting:

The World Bank issued a resolution in 1991 regarding the financing of development projects in less developed countries, which also takes into consideration the impact of projects related to indigenous groups financed by the Bank.

The resolutions adopted by the United Nations Conference on Environmental Development in 1992, contain references to indigenous peoples.

The 1994 resolution of the European Parliament titled "Measures required internationally to provide effective protection for indigenous peoples" which grant them the "right to determine their own destiny by choosing their institutions, their political status and that of their territory."

2.3 Background available to the OAS

The Inter-American Indian Institute, which was later reorganized as a specialized organ of the OAS was created in 1940. Initially, the Institute adopted some programs to improve the economic welfare of indigenous peoples through their integration into the community.

The OAS General Assembly at its meeting in 1989, through resolution AG/RES.1022 (XIXÄO/89) requested the Inter-American Commission on Human Rights to develop a draft declaration on the rights of indigenous peoples.

On April 10, 1997, the Permanent Council received the "American Draft Declaration on the Rights of Indigenous Peoples." By resolution approved on June 5, 1997, the General Assembly of the OAS, recognizing that the draft should reflect the concerns of indigenous peoples and the work developed by the United Nations in this regard, requested the governments of the member States to submit their opinions and recommendations regarding the project, and also to provide their comments to the Inter-American Juridical Committee and the Inter-American Indian Institute. Upon receipt of these opinions and comments, the Permanent Council should call for a meeting of governmental experts for the purpose of adopting the draft during the XXVIII regular period of sessions of the General Assembly. Six States submitted their comments: Argentina, Brazil, Canada, Colombia, the United States and Mexico.

The mandate issued to the Inter-American Juridical Committee by the General Assembly in Resolution AG/RES. 1479(XXVII-O/97) states:

"Taking into account the recommendations and comments made by the member States, to request the Inter-American Juridical Committee and the Inter-American Indian Institute to forward to the Permanent Council their comments on the "Draft American Declaration of the Rights of Indigenous Peoples".

In accordance with this mandate, the Juridical Committee examined the draft Declaration together with the comments from the member States at its Fifty-second period of sessions, in Santiago, Chile, from March 9 to 20, 1998.

3. General Considerations

3.1 Legal nature and effect of a Declaration

In general, a declaration is an act that only verifies the existence of facts or rights, as opposed to a constitutional act, which creates a new law. According to international practice, the declarations adopted by organs such as the General Assembly of the United Nations or the General Assembly of the Organization of American States may include, in addition to verifying the existing facts and rights, expressions of the intent of the States.

While strictly according to law, declarations have no binding effect on the member States being only resolutions, there are two ways in which they may be legally binding: first, as they reflect a recognition of preexisting rights and facts, they may be used by international courts as a basis for reaffirming said rights or situations or for the interpretation of treaties and other juridical acts which should be binding on the State. Secondly, provided the conduct of the States is in accordance with the provisions established in the declarations, the latter may become an international practice. In this case, the declaration itself may serve as evidence of the "opinio juris"; i.e. that a State is acting in the belief that it is complying with a compulsory juridical obligation.

In both cases, it is important to take into consideration whether the declaration has been unanimously adopted or whether one or more States have expressed their objection thereto.

Therefore, it is advisable that, in adopting a declaration, the member States clearly differentiate when they are recognizing the preexistence of said facts and rights and when they are expressing their intention or objectives.

Lastly, special care should be taken to ensure that the content of the declaration is consistent with the obligations assumed by the member States under other international instruments.

3.2 Obligations of the States

The State is obliged to protect and guarantee any individual or collective right. The obligations of the States may differ. Sometimes it has to do with the results: the State is responsible for guaranteeing a given result, and may be held liable if such result is not effectively achieved, irrespective of the circumstances. In other cases, it has to do with an obligation related to the means of achieving a given end, that is, to act diligently and spare no reasonable efforts. Even if the results have not been fully achieved, the State may not be held liable in respect thereof if it has fully complied with the foregoing obligation. Finally, there are some cases where the State is obliged to spare no reasonable efforts to find fair solutions when the existence of conflicting laws and interests do not allow the establishment, a priori, of drastic solutions.

For the sake of understanding the Declaration and ensuring its effectiveness, the pertinent obligation should be clearly stated in each case.

3.3 Purpose of the Declaration

The Juridical Committee understands that the Declaration does not endeavor to legislate; i.e. to establish new rights and obligations, as a Declaration would not be appropriate in this regard. The Juridical Committee understands that the purpose is to guarantee that full and effective exercise of all internationally recognized human rights by an important population group of the Continent is not impaired by reason of its culture. To this end, it is of the utmost importance to clearly establish the specific rights to which the individuals whose culture is different to the predominant one are entitled and commitments assumed by the member States to remedy situations that currently prevent or impair full and effective exercise of said right by said groups, whether on an individual or collective basis.

3.4 "Indigenous person" and "indigenous peoples" concepts

To ensure the effectiveness of the Declaration, and to avoid any misinterpretations and litigation, the beneficiaries of the rights stated therein should be clearly defined.

First, it is necessary to define the terminology: as explained hereinafter, the term "peoples" in international law and in constitutional law has a meaning that is different from what is intended in the Declaration with the term "indigenous peoples". Thus, it would be advisable to use another term in the Declaration, such as the term of "indigenous population" suggested by most of the member States that submitted opinions.

The definition of "indigenous population" and "indigenous person" raises a series of difficulties due to the large number of surviving indigenous cultures in our continent as well as the diversity thereof, as well as several de jury and de facto situations applicable to the populations of the different American States, including within the same State, such as the existence of slight cultural traces in certain groups of the community or the existence of communities that have in their own territories preserved their social and cultural organization. These differences are attributable to the different directions taken by the colonization of our Continent and the different attitudes of the predominant cultures, the different stages of economic development and the different legal systems prevailing in the member States.

It should, however, be clearly stated that the characteristics of an indigenous person may only derive from his or her cultural roots, and not from the fact that he or she pertains to a specific "ethnic" group. It should also be clearly stated that no segment of the population of a State may be considered as an indigenous population against its will, and that no person may be considered as an indigenous person against his or her will. On the contrary, and to avoid any misrepresentation that may negatively affect the beneficiaries of the Declaration, the free choice of an individual or group may not be considered as sufficient evidence to confer on it the status of indigenous person or indigenous population.

"Indigenous person" could be defined as a person whose culture dates from before the Spanish colonization, who freely considers himself as an indigenous individual, and who is recognized as such by the other members of the same culture. According to this approach, an "indigenous population" would be a group of individuals who maintains the distinctive fundamental features of a culture that dates from before the colonization, with its own language, religion and traditions, practices and customs, and whose members consider themselves as members of an indigenous culture.

It is true that in some regions of our Continent there are communities of African descent that have preserved their own language, communal governance system, traditions and customs, that are entitled to fully and effectively exercising all internationally recognized human rights. Prior to stating the same in the Declaration and to avoid inclusion of any confusing or vague elements in the definitions, it would be advisable, both for the purposes of the Declaration and the definitions, to issue a separate declaration.

3.5 Indigenous peoples or population and International Law

While some international instruments use the term "indigenous peoples," the prevailing international law does not confer on them any different legal rights from those granted other minorities. In turn, in international law the term "peoples" is used to indicate a people's right of free determination; i.e., the right to their independence and sovereignty. According to the constitutional law prevailing in most of the member States the term "peoples" refers to all citizens. Pursuant to the comments submitted by different member States, the Declaration should be carefully drafted to avoid any possible confusion in this regard.

On the other hand, while certain treaties entered into by or imposed on some member States with indigenous groups living within their territories are designated as "treaties", the latter lack, according to prevailing International Law, the characteristics and effect of international treaties in the sense that such a term is used in the Charter of the International Court of Justice.

3.6 Indigenous Peoples and Human Rights

Certainly, indigenous peoples and all individuals who are parties thereto are entitled to the full and effective exercise of all internationally recognized human rights, and this should be reaffirmed in the Declaration as it is an undeniable fact that, in varying degrees and under different circumstances, indigenous peoples of our Continent may not fully and effectively exercise the said rights because they have a culture different from that predominant in the respective State. Thus, it is of the utmost importance to clearly formulate the juridical consequences of the validity of human rights when the intention is to guarantee full and effective exercise of such rights by the individuals or group with different culture to the predominant one.

Any statement that may be construed as authorizing any practice contrary to human rights should be carefully avoided in the Declaration. Also, the Declaration should not contain any statement that may be construed as establishing legal discriminations to the detriment of the non-indigenous population.

In the area of human rights, international law with few exceptions protects individual rights although it is recognized that in certain cases individual rights may only be effectively exercised collectively. Any confusion on this point must be avoided.

3.7 The right of indigenous peoples and persons to preserve their culture and to develop

a. Preservation or redelivery

Certainly, the right of indigenous peoples to preserve their culture and to demand that such preservation does not result in any de jury or de facto disadvantage as respects their full and effective exercise of the human rights granted to all the inhabitants of the respective State is unquestionable. It is also an undeniable fact that the conquest and colonization of the Continent led to the dispossession of the original inhabitants, to the destruction and persecution of their cultures, to their forced assimilation and, in many cases, to discrimination.

However, the Declaration cannot be construed as intending to set back half of a millennium the clock of History, and creating redelivery or compensation rights not actually included in international law or the national laws of the respective States. Any such aim would render the Declaration inoperative, give rise to serious and endless litigation and dilute its fundamental purpose of preventing the extinction of the surviving cultures.

It is also essential to take into consideration that indigenous peoples and persons have the same right to develop as any other segment of the State's population. Therefore, it is of the utmost importance that the Declaration should not be construed as an authorization to "freeze" such cultures, even if their evolution implies the incorporation of technologies or other elements from other cultures.

b. Use of language

The right of indigenous peoples and persons to preserve and teach their language, as well as the obligation of the State to eliminate and prevent any external pressure impairing that right is unquestionable.

The main difficulties arise when considering the use of the indigenous language in the context of the official language or languages of the State. The solution of declaring all indigenous languages as official languages is obviously impractical as in many member States more than 100 languages are spoken. On the other hand, the scant knowledge of the official language or languages by an indigenous person represents an actual disadvantage and sometimes prevents that person from exercising his or her rights.

In such cases, the State is obliged to seek reasonable and fair solutions.

c. Traditional self-governance systems and practices having legal consequences

As already mentioned, the purpose of the Declaration is to preserve the surviving traditional communal government systems, and not to revive government systems that have not existed for many generations.

The term self-governance may give rise to undesirable confusion, from the standpoint of international and constitutional law. Thus, it is advisable to use the term "traditional communal government."

The issue regarding the legal consequences of the acts of communal governments or traditional practices within the general legal system of the State raises a series of legal and real problems that may in practice not be solved a priori as in the case of private international law. In this case the State is also obliged to seek reasonable and equitable solutions.

d. The use of land and natural resources

In this case also, as indicated in the recommendations submitted by the different member States, the use of the term "territory" leads to undesirable confusion in international law and in the constitutional law of the respective States, where it has a specific meaning that differs from the context in which it is used in the Declaration. Therefore, it would be advisable to use another term such as "lands" or "physical area."

It is important to make a distinction between the right to preserve, without external pressure, the traditional use of the lands and exploitation of its natural resources and the sovereignty or property and exploitation rights inconsistent with the culture to be protected, which in practice could lead to an alteration of the fundamental nature, and even the extinction of the said culture.

As mentioned above, the indigenous population has the right to develop, and the exercise of that right may result in changes of the traditions. In this case the State is also obliged to seek reasonable and fair solutions to foster such evolution.

3.8 Indigenous peoples right to participate in the decision-making process of the State

The right of any indigenous person to individually or collectively exercise all political rights granted by the State to its citizens is unquestionable. The effective exercise of the said right is frequently hindered because his or her culture is different than the predominant one. The State is responsible for seeking reasonable and fair solutions to guarantee active participation by indigenous peoples in the political decision-making bodies of the State. The State should also guarantee the informed and effective participation of the indigenous population in any decision directly affecting them.

As to the representation of an indigenous population before the State, a distinction should be made between the exercise of the right of freedom of association and the granting of any rights that may result in the creation of States within the State. In those cases where a specific indigenous population has retained its traditional communal government, the State should guarantee its communal representation without abandoning same. In those cases where no communal organization exists, the State should guarantee that, through any legal civil or political organization, the said indigenous population may effectively exercise its political rights. The foregoing may obviously not impair the individual's right to freely associate or any other individual political right of a person who is a member of an indigenous population.

3.9 The role of an indigenous person within the predominant culture

An indigenous person should not only have the right to freely act inside his or her community, but also to freely act inside the predominant culture. Consequently, the State is responsible for eliminating any restrictions that may prevent the exercise of the said rights.

However, it should be taken into consideration that in many cases the sole fact of belonging to another culture generates genuine problems, such as the lack of fluency in the official language, a legal system or commercial practices, which may result in the exploitation of the indigenous persons or in the inability of such persons to have their rights enforced. The State should spare no reasonable efforts to prevent and sanction any mistreatment and to neutralize the existing imbalances affecting the indigenous persons or any other segment of the population at a disadvantage in relation to others.

3.10 Rights to archeological assets, intellectual property rights, and genetic resources

The Committee considers that the Declaration should not create rights regarding archeological assets, intellectual property or genetic resources other than those granted in international instruments and in the legislation to the citizens of the respective States, but rather guarantee that the exercise of such right by the indigenous populations and persons is not impaired by reason of their cultural identity.

Most legislations provide that archeological assets belong to the State and prohibit trading thereof. Thus, provided appropriation is permitted, the intention is to ensure that the indigenous population is fairly treated and not to establish rights favoring a specific group of human beings. Obviously, the investigation and use of archeological assets may not be permitted if it causes undue disturbances to an indigenous population or represents an offence to their religious practices.

Regarding intellectual property rights, the intention is to guarantee access of indigenous populations to the internationally recognized general system, and not to create a new one. Thus, the State should spare no reasonable efforts to this end.

Regarding the rights on existing living species, the Declaration should not serve as a basis for granting indigenous populations a right that is currently being discussed at an international level.

3.11 Jurisdiction of the Inter-American Commission on Human Rights

A Declaration may not broaden or limit the jurisdiction of the Inter-American Commission on Human Rights as such jurisdiction is provided in the Charter of the Organization and the American Convention on Human Rights. Moreover, not all member States are parties to the latter.

Such an amendment is unnecessary as the purpose of the Declaration is to establish those rights which are considered essential to guarantee the full and effective exercise of internationally recognized human rights by the indigenous populations, and not to create new rights. The jurisdiction of the ACHR is unquestionable.

4. Comments on the wording of the draft

4.1 Preamble

1. The Preamble should only contain general principles, and not substantive issues which should be included in the provisions of the Declaration. The proposed Preamble should only state the background on which the provisions are based.

2. The Preamble should not consider indigenous peoples as a segment different from the civil community, but recognize that they are an integral part of the Americas' population, and that their values and cultures are closely linked to the rights and obligations of the citizens of each country, in addition to preserving and strengthening their own values and cultures.

3. The Preamble should establish that indigenous persons have the same human rights and fundamental freedoms guaranteed in prevailing international instruments to persons constituting the population of each State in the region.

4. The Preamble should not include the affirmation that "indigenous peoples" are subjects of international law, as only States are subjects of International Law.

4.2 Provisions

Article 1, paragraph 1

Most States prefer to use the term "population" instead of "peoples". Thus, "self-determination" would not necessarily be implicit.

This article establishes that, in addition to indigenous peoples, the Declaration also applies "to those peoples whose social, cultural and economic situation differs from that of other segments of the domestic community and whose legal status is fully or partially governed by their own practices and traditions or by special regulations or laws."

The scope of the Declaration would be too broad and imprecise, because its drafting may include a large number of individuals. Thus, it could include human groups with characteristics that are quite different from those of indigenous populations.

Self-identification as an indigenous individual is an important element, but may not be considered as an essential element.

On the other hand, while according to the provisions of paragraph three the use of the term "peoples" would not have a direct implication under international law, there are other articles of the draft that may be construed as having another meaning.

Article 2, paragraph 1

It may not be considered that the American Convention on Human Rights automatically applies since it has not yet been ratified by all OAS member states.

Article 2, paragraph 2

It is necessary to define the expressions "collective rights" and "the essential collective rights to fully exercise the individual human rights of its members."

Article 2, paragraph 3

The phraseology "The member State shall guarantee ..., adopt the legislative and other measures ..." is more appropriate for a Convention and not a Declaration.

Article 3

While it may be recognized that the indigenous identity is a consequence of the participation in an indigenous community, it does not necessarily imply the existence of a right.

Article 4

While it may be recognized that indigenous populations have a legal capacity or "legal status," this is not part of international customary law.

Article 5

The term "artificial or forced assimilation" should be clarified.

Article 6, Paragraph 1

The scope of the legal term "special guarantees" and "spiritual rights" should be classified.

Article 6, paragraph 2

While the appropriateness of the term "full participation" may be recognized, this would not necessarily imply the existence of a right thereto.

Article 7, paragraph 1

The legal terms "cultural integrity" and "historical and archeological heritage" should be clearly defined.

Article 7, paragraph 2

The States do not unanimously recognize the right to restitution or compensation, nor the application of the principle of international law associated therewith.

Article 7, paragraph 3

The legal scope of the terms "recognize" and "respect" should be clearly defined.

Article 8, paragraph 1

The legal scope of the terms "recognize," "respect" and "broadcast" should be clearly defined.

Article 8, paragraph 2

The determination that "The States shall take measures and ensure that radio and television programs are broadcast in the indigenous language … and to support the creation of indigenous radio stations ...." is not consistent with the purpose of a Declaration. In addition, to grant the right of access to such means would be contrary to the generally accepted legal principles governing the telecommunications media. The large diversity of indigenous languages would aggravate the foregoing.

Article 8, paragraph 3

Most States are not willing to accept indigenous languages as an official language.

Article 8, paragraph 4

The legal scope of the term "recognition of the indigenous names" should be clearly defined.

Article 9

This article should be consonant with Article 13 of the United Nations Conventions on Economic, Social and Cultural Rights and the American Declaration on the Rights and Duties of Man.

Article 9, paragraph 1

Training of teachers and administrators by indigenous persons should be subject to the applicable regional or national minimum standard.

Article 9, paragraph 2

To ensure quality of indigenous education, minimum regional or national standards should be established and supervised by the State authorities.

Article 10

This article should be drafted in accordance with Article 18, paragraph 1, of the United Nations Convention on Civil and Political Rights.

Article 10, paragraph 1

The right to freedom of religion, by indigenous and other groups, should be governed by the public order.

Article 10, paragraph 3

The wording regarding preservation and protection of sacred sites should be exhortatory and not imperative. It should be taken into consideration that no rule exists under international law regarding the obligation to return sacred burial places and relics. On the other hand, potential rights of any third parties may not be ignored.

Article 11, paragraph 1

The importance of this paragraph should be based on the recognition of the legal consequences of the State’s legislation governing family, marriage, family name and filiation of indigenous persons, and not on the creation of new rules different from the existing ones.

Article 12, paragraph 1

The scope of the expression "legal recognition" should be clearly defined. Legal recognition should not imply the obligation of the State to promote indigenous traditional medicine. On the other hand, account should be taken of the fact that in most countries the illegal practice of medicine is classified as a crime.

Article 12, paragraph 2

Preservation of vital medicinal plants should be more specifically drafted. On the other hand, preservation should not be formulated as a right but as an aspiration.

Article 12, paragraph 3

The State should establish the minimum standards for the indigenous health systems.

Article 12, paragraph 4

The States should only be required to spare no reasonable efforts to improve indigenous health conditions.

Article 13

This article should be consonant with the international instruments addressing this issue.

Article 13, paragraph 1

International law does not yet recognizes the right to a safe and healthy environment, and the States are not obliged to grant any rights regarding environmental issues. This should be drafted as an aspiration.

Article 13, paragraph 2

It should be mentioned that they could participate through democratic mechanisms.

Article 13, paragraph 3

It is necessary to define the scope of the terms "lands," "territories" and resources. The States generally prefer the term "lands" instead of "territories" due to the consequences of those terms under international law.

Article 13, paragraph 6

The expression "indigenous areas" needs to be defined.

Article 13, paragraph 7

The expressions "indigenous territory" and "protected area" need to be defined.

Article 14, paragraph 1

The right of association, assembly and freedom of expression should be subject to the applicable laws prevailing in each State.

Article 14, paragraph 2

The use of sacred and ceremonial sites may not ignore the potential rights of any third party on such sites. On the other hand, the right to full contact and common activities with individual members living in neighboring States may not violate the immigration and customs regulations prevailing in those States.

Article 15

There is no international rule granting self-determination rights to the indigenous populations. Likewise, most of the States do not recognize the right to autonomy and self-government as established in the draft.

Article 16, paragraphs 1 and 2

Not all States recognize that indigenous populations may have a separate legal system, and they would rather have a legal system more sensitive to indigenous laws, use, practices and expressions.

Article 16, paragraph 3

The term "full representation" should be construed as essential in respect of any indigenous legal institution.

Article 17

This article should not assume that all governmental organizations of the State must be reorganized to include indigenous institutions. Indigenous persons should participate in the bodies of government responsible for handling their affairs. Implementation of this article would create problems for those States with different indigenous languages and cultures.

Article 18

International law does not recognize the indigenous person's right of ownership and use of lands as defined in this article. On the other hand, return thereof should not be considered as the sole means of solving conflicts, as the possibility should exist of seeking alternative solutions.

Article 18, paragraph 1

The indigenous persons' right to the land is not always broad since for certain areas of land they have only some specific rights. As mentioned above, most States prefer to use the term "land" and not "territory." On the other hand, this right is subject to other national and international regulations, such as those related to environmental laws.

Article 18, paragraphs 2 and 3

It would be advisable to set forth the general principles related to the rights of ownership, thereby giving room for eventual negotiations between the parties.

Article 18, paragraph 4

The rights set forth in this paragraph should be included in the national legal system.

Article 18, paragraph 7

International law does not recognize, and most of the States do not accept, the principle of returning the land.

Article 18, paragraph 8

The State should not be solely responsible for preventing and punishing the usurpation of indigenous land as legal mechanisms exist to delegate such responsibility on other entities. Priority with respect to delineation and recognition of the boundaries of the indigenous properties and areas should conform to other priorities of the respective States.

Article 19, paragraph 1

"International labor legislation" should be construed as referring to the international conventions ratified by the States or to any recognized international practice. The term "redress and prevent historical discriminations" should be clearly defined.

Article 19, paragraph 2

Each State should have the right to decide regarding the preferential treatment to be adopted in respect of labor issues, as it is difficult to establish in general terms such "special measures."

Article 20

This article should be consistent with the prevailing international treaties regarding intellectual property rights.

Article 20, paragraph 1

The formulation of the right to "recognition and full ownership ... and to the legal protection of the intellectual property rights" is too broad.

Article 20, paragraph 2

In addition to the broadness of the provisions of this paragraph, it would be advisable to define the meaning of "human and genetic resources," "knowledge of plant and animal life" and "original procedures."

Article 21, paragraph 1

This paragraph should be subject to the international rules on human rights, local laws and availability of resources.

Article 21, paragraph 3

International law does not recognize the right to restitution and compensation. Nor does it establish that this should be based on the standards of international law. Some States are of the opinion that eventual compensations should be paid in accordance with the legislation in force in the respective State.

Article 22

Most States are of the opinion that it would not be appropriate to submit eventual conflicts to any international organization for consideration since such treaties may not be generally considered as international treaties. On the other hand, the "spirit and intent" are only partial components in an interpretation.

The expressions "historical acts" and "historical rights" concern the States due to their ambiguous broadness.

Articles 24 and 27

The wording of this article stating that there are "recognized rights" that "constitute the minimum standard" clearly evidences that despite the nomen juris "declaration," the draft reflects the intent of an actual convention that establishes duties for the States, specifically designating the Inter-American Indian Institute and the Inter-American Commission on Human Rights to "promote" and "fully apply" such rights.

Articles 25 and 26

The statements "nothing in this instrument shall be construed as granting any right to ignore boundaries between States" and "preservation of territorial integrity" renders difficult the understanding of other articles contained in this draft that provide the possibility of self-determination of the "indigenous peoples."

5. Conclusions

Thus, the Juridical Committee considers it appropriate and useful to adopt a Declaration stating the rights of indigenous populations and persons to guarantee full and effective exercise of all internationally recognized human rights, as well as the measures that are essential to achieve this purpose and eliminate any de jury or de facto inequities existing in our Continent.

The Committee also considers that the language of the draft submitted to it should be adjusted to avoid formulations that may give rise to doubts as to their meaning, scope or intent. When proposing the modifications, the intention of the Committee is to contribute to the effectiveness of the Declaration by eliminating any term or expression which could not be supported by the States or generate discussions and litigation regarding their application.

The Committee is aware that the assignment of the General Assembly does not include the amendment of the Declaration nor the submission of an alternative draft. For the sake of comprehension of the considerations included in this report and only for illustrative purposes, attached to this report is an annex containing a draft of the Declaration, which is expected to be useful to those preparing the final draft.

The Committee understands that the mandate received from the General Assembly does not extend to amending the Draft Declaration or to presenting an alternative proposal. In a spirit of facilitating understanding of the considerations expressed in this report and as an illustrative example, the text of the declaration is attached as an annex to the present report in the hope that it will prove useful to those drawing up the final text of the declaration.

ANNEX

(ILLUSTRATIVE TEXT)

AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES

PREAMBLE

NOTING the cultural diversity of the American peoples and the need for maintaining harmonic and respectful relationships among them;

REAFFIRMING the responsibility of the States of guaranteeing full and effective exercise of all internationally recognized human rights by all individuals under their jurisdiction;

RECOGNIZING the richness and diversity of the indigenous cultures of the Continent;

RECOGNIZING that the social and economic situation of many indigenous peoples of the Continent is, in many cases, much worse as compared with other segments of the population, and that de jury and de facto situations have helped to create and perpetuate such inequities, thereby preventing the individuals of such populations to effectively and fully exercise internationally recognized human rights;

RECOGNIZING that indigenous culture of the Continent is subject, in many cases, to de jury and de facto external pressures which should be eliminated for the sake of the preservation thereof;

RECOGNIZING that indigenous peoples have the right to develop under the same conditions as the rest of the population without sacrificing their cultural heritage;

CONVINCED of the necessity of proclaiming the right of indigenous peoples and of establishing the policies and measures that States must adopt to guarantee full and effective exercise of internationally recognized human rights by these populations;

RECOGNIZING that these objectives may and should be achieved within a framework guided by respect for the sovereignty, territorial integrity and national unity of the States.

IT IS HEREBY DECLARED:

ONE: For the purposes of this Declaration, and notwithstanding the fact that each State may adopt broader criteria to its benefit, indigenous peoples shall refer to the group of individuals who have preserved the essential characteristics of a culture predating the European colonization, such as language, religion, traditions and customs, communal governance systems, art and own subsistence means.

TWO: For the purposes of this Declaration, and notwithstanding the fact that each State may adopt broader criteria to its benefit, any person shall be considered as an indigenous person who effectively belongs to such indigenous culture and considers himself or herself as such, and who is recognized to be an indigenous individual by other members sharing the same culture.

THREE: Indigenous peoples and persons are entitled to effectively and fully exercise all internationally recognized human rights on similar conditions as those of other segments of the population of their respective State. The State is responsible for adopting the necessary and reasonable policies and measures to guarantee full and effective exercise of such right.

FOUR: Indigenous peoples and persons have the right to preserve their culture, without any foreign pressures. The respective State i8 responsible for disregarding any such pressure, and to adopt the necessary and reasonable policies and measures to eliminate, prevent and, if applicable, punish any such pressure, whether exercised by the State or other parties.

FIVE: Indigenous peoples are entitled to effectively and fairly participate in the decision-making processes of their respective State. States where indigenous peoples with a predominant culture live are obliged to adopt all necessary and reasonable measures to guarantee the said right, and to recognize its condition of cultural diversity, as well as to eliminate any provision that may be construed as a negative statement affecting this indigenous culture.

SIX: Indigenous peoples have the right of association for their civil and political actions on similar conditions to those prevailing for any other group or segment of the State's population.

SEVEN: Any indigenous individual has the right to freely and voluntarily become assimilated into the predominant culture of the State, without pressure or impediment of any kind, and without constraint or discrimination.

EIGHT: Indigenous peoples living in an area separate from other cultures existing in the State have the right to preserve the integrity of their territory and not to be disrupted in the traditional use and enjoyment of land and natural resources. The State is responsible for respecting and safeguarding this right.

The presence of law enforcement officers on their territory shall be allowed only for purposes of the safety and defense of the State, and for protecting and defending the respective indigenous population. The State shall spare no reasonable efforts in ensuring that such law enforcement personnel do not disrupt such indigenous culture.

In respect of the exploitation of natural resources owned by the State and located within the territory of an indigenous population, the State shall take all necessary reasonable measures to avoid disturbing the indigenous population and to repair, or provide compensation for, any unavoidable damage resulting therefrom.

NINE: Indigenous peoples preserving a traditional social organization, communal governance system or traditional practices and customs with respect to family, health, education, property, commercial or productive activities or the prevention and punishment of criminal actions, shall have the right to preserve and freely exercise such rights, in addition to the right of any individual belonging to said indigenous group to fully and effectively exercise all internationally recognized human rights. The State shall make every reasonable effort, in consultation with the parties concerned, to harmonize and reconcile these customs with general legislation.

TEN: Indigenous persons shall have the right to act freely outside of their indigenous community. The State shall be responsible for preventing and punishing, if applicable, any form of discrimination in respect of any such indigenous person. The State shall spare no reasonable efforts to compensate any actual disadvantage derived from the fact that the said person belongs to an indigenous culture, such as language problems, commercial rights and practices, and to prevent and punish, if applicable, any commercial or employment-related mistreatment.

ELEVEN: Indigenous peoples shall have the right to preserve and practice their religious or philosophical beliefs, in addition to the right of any individual belonging to the said indigenous group to fully and effectively exercise all internationally recognized human rights.

TWELVE: Indigenous peoples shall have the right to achieve development on similar conditions to those enjoyed by any other segment of the population of the respective State. The State shall spare no reasonable efforts to safeguard the full and effective exercise of the said right.

If such development requires the introduction of elements not pertaining to the indigenous culture or other nontraditional uses of lands and natural resources, the State shall spare no reasonable efforts to seek, in consultation with the interested parties, appropriate and fair solutions without impairing the preservation of the environment. This shall not imply granting the indigenous peoples or persons the right to exploit the natural resources or to engage in commercial activities other than those in which other citizens of the State are allowed to engage.

THIRTEEN: As to development of ethnic or archeological studies and investigations, the State shall be responsible for preventing violation of the basic religious or moral principles of the respective indigenous peoples, and to prevent, insofar as is possible and in consultation with the interested parties, and negative impact deriving from such studies and investigations.

FOURTEEN: Indigenous peoples and persons shall have the right to benefit from the intellectual property rights system under similar conditions to the population in general. The State shall spare no reasonable efforts to protect the intellectual property rights of the indigenous population or its members or rights protected under the laws governing intellectual property rights.

FIFTEEN: Indigenous peoples shall have the right to freely develop their culture. To this end, they shall be granted the right to create and administer educational facilities, as well as to establish educational programs in their own language in keeping with their culture, and to spread their culture and language through any permissible means. The State shall seek reasonable and fair solutions, in consultation with the interested parties, to facilitate the effective exercise of these rights.

SIXTEEN: In those cases where the same indigenous population lives in the territory of two or more States, the latter shall spare no reasonable efforts, notwithstanding their security and defense for the adoption of the necessary measures to prevent criminal or illicit activities, to facilitate communication, cooperation and traditional commercial among the individuals belonging to the respective indigenous population.

SEVENTEEN: This Declaration shall not be construed as impairing any of the special rights granted to indigenous peoples or persons or as preventing any State from granting or recognizing rights greater than those enjoyed by the indigenous peoples or persons within their territories.

CJI/RES.l/LII/98

COMMENTS OF THE INTERÄAMERICAN JURIDICAL COMMITTEE
ON AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES

THE INTER-AMERICAN JURIDICAL COMMITTEE.

CONSIDERING the resolution of the General Assembly AG/RES.1479 (XXVII-O/97) Draft American Declaration on the Rights of Indigenous Peoples, by which the Inter-American Juridical Committee was requested to submit to the Permanent Council its comments regarding the Draft American Declaration on the Rights of Indigenous Peoples taking into consideration any comments and recommendations that may be submitted by the member States;

WHEREAS the Committee discussed during this period of sessions the aforementioned draft as requested in the said resolution of the General Assembly, and drafted a document that includes, for illustration purposes only, an illustrative Draft Declaration as an annex;

RESOLVES:

    1. To approve the document attached to this Resolution, entitled Comments of the Inter-American Juridical Committee regarding the Draft American Declaration on the Rights of Indigenous Peoples (OEA/Ser.Q, IJC/doc.29/98 rev 1).
    2. To deliver, through the General Secretariat, the said document and this resolution to the Permanent Council of the Organization.

This Resolution was unanimously approved at the regular session held on March 18, 1998, with the attendance of the following members: Dr. Eduardo Vío Grossi; Dr. Keith Highet; Dr. Olmedo Sanjur G.; Dr. Luis Marchand Stens; Dr. José‚ Luis Siqueiros; Dr. Luis Herrera Marcano; Dr. Kenneth O. Rattray; Dr. Gerardo Trejos Salas; Dr. Brynmor T. Pollard and Dr. João Grandino Rodas.

 

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