OBSERVATIONS AND RECOMMENDATIONS BY MEXICO REGARDING
The Government of Mexico is ready to play a constructive role in the work of the OAS relating to the American Declaration on the Rights of Indigenous Peoples. Mexico recognizes the need to establish a relationship between the state and indigenous peoples that is based on acknowledgment of the multi-cultural composition of our countries and on respect for the constitutional principles of national unity, sovereignty, and territorial integrity.
In light of the foregoing, the following observations pertain to the draft text approved by the Inter-American Commission on Human Rights in February 1997.
It is important to bear in mind the efforts being made on this topic in other international fora such as the United Nations, where the Human Rights Commissions Working Group responsible for developing a draft declaration on the issue has been hearing the concerns expressed by representatives of indigenous peoples. At the same time, however, it has identified a number of highly controversial points on which it will be very difficult to achieve consensus once the process of negotiating and drafting such a declaration is launched. These points relate to defining the concepts of self-determination, nationality, and autonomy for indigenous peoples; the restoration of lands, properties, and territories that are claimed to have been confiscated; and the definition of the collective rights of indigenous peoples.
The basic premise underlying the provisions of any declaration must be to preserve the constitutional structure of each OAS member state, if our countries are to adopt it as part of their national legislation.
SPECIFIC OBSERVATIONS AND RECOMMENDATIONS
The Declaration should seek to avoid promoting the "separateness" of indigenous people, and should eschew unequal treatment of the kind that leads to reverse discrimination. It would be better therefore to avoid statements such as, "Indigenous peoples constitute a . . . segment," and to adopt instead the Mexican proposal put forward at the Meeting of Experts in Guatemala (Nov. 96):
POINTS 2, 3, 4, and 5. No comments
We suggest replacing the term "indigenous areas" by "indigenous settlements and communities", and propose the following wording:
We suggest eliminating the word "peoples" in the first paragraph, since the declarations of international bodies are adopted by states. We propose the following wording:
Eliminate the phrase, "Recognizing that indigenous peoples are a subject of international law," since it contradicts the spirit and objective of the Declaration.
The definition of indigenous peoples should not refer to other peoples who distinguish themselves from the national community and who govern themselves according to their own customs; this would tend to include such peoples in the personal sphere of application of the Declaration, which would run counter to the purpose of the Declaration. Consequently, we propose eliminating the phrase, "as well as peoples whose social, cultural and economic conditions distinguish them from other sections of the national community."
Point 1. Add after "and other [instruments of] international human rights law ratified by the states . . . ."
The phrase, "Indigenous peoples have the right to special guarantees against discrimination . . ." should be modified because it is incompatible with Article 4 of the Constitution, and could be improperly interpreted as meaning that indigenous communities are automatically discriminated against.
Point 1. Add the following paragraph to the end of Point 1, as a substitute for Point 2, which would be eliminated:
Point 2. Compensation should be according to domestic rather than international law, since it would be discriminatory against the rest of the population if indigenous communities were granted a privilege of this kind that is not enshrined in our Constitution.
Point 2. Add at the end of the text, in accordance with each states legal provisions.
Point 1. The text purports to grant powers to indigenous peoples to establish and set in motion their own educational programs, institutions, and facilities; to prepare and implement their own educational plans, programs, curricula, and materials; and to train, educate and accredit their teachers and administrators. Such powers would in fact be incompatible with the unity of national education systems, both in terms of content and objectives, and could over the longer run lead to the proliferation of education systems, to the detriment of indigenous peoples themselves, and of society as a whole. Moreover, it could give rise to different kinds of education that would fragment national education policy, creating a legal and juridical vacuum with regard to responsibility and jurisdiction over education policy for such groups. (Observations from SEGOB; we are awaiting an opinion from SEP).
We propose the following wording:
We recommend the following wording for the final part of point 3: When sacred graves and relics are the property of the state, indigenous people may participate in their management and conservation.
If indigenous people are to be granted rights to the use and ownership of natural resources located in the geographic area of their settlements, such rights must be clearly defined and fully consistent with the forms, modalities, and limitations governing property as established in the legislation of member states, so as to avoid any conflicts or problems arising from collective exploitation of those resources, which might threaten the property and ownership rights of individuals who possess lands in areas inhabited by indigenous peoples.
We suggest the following revisions:
Point 3. Indigenous peoples shall have the right to conserve, restore and protect their environment, and the productive capacity of their lands, territories and natural resources, with full respect for the forms, modalities and limitations governing property as established in the constitutions and laws of member states.
Point 4. Indigenous peoples have the right to participate, together with government authorities, in formulating, planning, managing and applying governmental programs of conservation of their lands and natural resources, with full respect for the forms, modalities, and limitations governing property as established in the constitutions and laws of member states.
Point 5. Indigenous peoples have the right to assistance from their states for purposes of environmental protection, and may receive assistance from international organizations, in strict accordance with domestic legal provisions.
Point 7. When a state declares a protected area for the lands of indigenous peoples, it shall not be subject to any natural resource development without the consultation and informed view of the peoples concerned.
Point 1. Add at the end of the paragraph: provided that these do not conflict with the provisions of state legislation.
Point 2. Add at the end of the paragraph: consistent with the migration laws of each country.
Point 1. We find the current draft text inappropriate, and believe that a formula should be found that will not in any way conflict with the existing constitutional order. The concepts of "autonomy" and "self-government" are contrary to the constitutional precepts set forth in Articles 115, 1, 3, 4, 23, 27, 43, 52, 53, 54, 55, 63, 127, and Title V of the Constitution. We suggest the following wording:
Point 2. We suggest the following wording:
Use of the term legal systems to refer to standards, practices, or customs applied by indigenous peoples in governing and resolving internal disputes among their members may cause confusion, since in juridical theory "legal system" has a different connotation from traditional practices of the kind that constitute customary law among indigenous communities.
To avoid false interpretations that could lead to the creation of special courts or privileges for indigenous peoples, we recommend that the term "legal systems" be replaced by the expression standards, practices, and customs.
Recognition of customary law must not lead to extrapolations that would alter or disrupt the national legal order in any state.
We suggest the following wordings that are consistent with the existing constitutional order:
Article XVII. Participation of indigenous peoples in governmental institutions
The indiscriminate use of the term territory in the draft Declaration could lead to conflicting interpretations as to its meaning, since it suggests a space in which some kind of authority is exercised, and not simply a right of possession, enjoyment, or property. Use of this term could also be seen as promoting the territorial disintegration of a country, since "territory" is an essential attribute of any national state.
It is true that this term is recognized in international instruments and in national legislation. Inserting it in the Declaration, however, would cause controversy in the indigenous legal context of member countries, including Mexico, and it would be best to replace the concept of territory by that of lands.
To characterize indigenous peoples lands as inalienable, imprescriptible, and indefeasible is contrary to the existing constitutional order, and the Mexican government considers such a characterization to be improper.
Part iii) confers on indigenous people the right to attribute ownership within the community, a situation that would render inapplicable the rules on property acquisition and transfer contained in state legislation, both at the local and the national level.
We suggest the following revisions:
Article XVIII. Traditional forms of ownership and cultural survival. Rights to possession and ownership of land.
1. Indigenous peoples have the right to the legal recognition of the varied and specific forms and modalities of their control, ownership, use, and enjoyment of their lands, when these are consistent with national legislation.
2. Indigenous peoples have the right to the recognition of their possession and ownership rights with respect to lands and natural resources they have historically occupied, consistent with the forms, modalities, and limitations relating to property as established in national legislation.
3. Indigenous peoples have the right to an effective legal framework for the protection of their rights with respect to the natural resources on their lands, including the ability to use, manage, and conserve such resources.
4. In the event that ownership or rights over the natural resources referred to in the previous paragraph or any others pertains to the state, 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 planning, prospecting, or exploiting existing resources on their lands. The peoples concerned shall participate in the benefits of such activities, to the extent possible, or shall receive compensation for any loss which they may sustain as a result of such activities.
5. Unless exceptional and justified circumstances so warrant in the public interest, the states shall not transfer or relocate indigenous peoples without the free, genuine, public, and informed consent of those peoples, but in all cases with prior compensation and prompt substitution of new lands, which must be of similar or better quality; and with guarantee of the right to return if the causes that gave rise to the displacement cease to exist.
6. Indigenous peoples have the right to the restitution of the lands, consistent with national property legislation, and of the natural resources which they have traditionally owned and which have been confiscated, occupied, used, or damaged; or when restitution is not possible, they shall be entitled to compensation.
7. States shall take all measures, including the use of law enforcement mechanisms, to avert, prevent, and punish, if applicable, any intrusion or use of those lands by unauthorized persons to take possession or make use of them.
This should state that "Indigenous peoples shall have the right to full enjoyment of the rights and guarantees recognized by domestic labor law, and by international labor laws that are recognized by the state."
Moreover, we agree with the suggestion contained in note OAS-514 of November 4, 1997, to divide point 1 of this article into two clearly defined commitments. With respect to special measures, a drafting must be found that will not imply acceptance of liability or duty to repair damage caused by discrimination.
We suggest the following wording:
Replace the word "constructive" in the title, with implicit.
We recommend addition of the following article:
Article XXIII. Flexibility in applying the declaration.