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

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.

GENERAL OBSERVATIONS:

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 Commission’s 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

PREAMBLE:

POINT 1.

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):

Recognizing that indigenous peoples form an integral part of the population of the Americas and that their values and cultures are inextricably linked to the identity both of the countries they live in and of the region as a whole;

Reiterating the inalienable right of indigenous peoples to participate in strengthening national unity within a truly democratic system, without loss of their own identity, culture, and organizations, in the same manner and with the same rights as the other component members of the nations in which they live and grow;

POINTS 2, 3, 4, and 5. No comments

POINT 6.

We suggest replacing the term "indigenous areas" by "indigenous settlements and communities", and propose the following wording:

Reaffirming that the armed forces in indigenous settlements and communities must guarantee and preserve order on the basis of constitutional provisions, with full respect for the individual human rights of indigenous people.

POINT 7.

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:

Bearing in mind the progress that states have achieved, particularly in the sphere of the United Nations, the Organization of American States, and the International Labor Organization, in several regional and international instruments.

Eliminate the phrase, "Recognizing that indigenous peoples are a subject of international law," since it contradicts the spirit and objective of the Declaration.

SECTION ONE

Article I.

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."

SECTION TWO

Article II

Point 1. Add after "and other [instruments of] international human rights law ratified by the states . . . ."

Article VI.

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.

SECTION THREE

Article VII.

Point 1. Add the following paragraph to the end of Point 1, as a substitute for Point 2, which would be eliminated:

Indigenous peoples shall be allowed to participate in the management and conservation of monuments, archeological and ceremonial sites belonging to the state when these are located on the lands of indigenous peoples. (Governance).

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.

Article VIII.

Point 2. Add at the end of the text, in accordance with each state’s legal provisions.

Article IX.

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:

1. States shall guarantee indigenous peoples the right to participate, together with the national education authorities, in defining and implementing indigenous education plans and programs, and in preparing curricula and teaching materials for education of this kind; and b) in developing educational programs with a regional content that will recognize the local cultural heritage.

Article X.

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.

Article XIII.

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.

SECTION FOUR

Article XIV.

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.

Article XV.

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:

1. Indigenous peoples have the right to elect their authorities and to exercise their own forms of internal government, provided these guarantee respect for the political rights of all citizens and the participation of women under conditions of equality, and the right to pursue, together with national governments, their economic, social, spiritual, and cultural development, and accordingly, they have the right to a framework of autonomy with respect to their internal forms of community life and of social, economic, political, and cultural organization.

Point 2. We suggest the following wording:

2. Indigenous peoples have the right to participate without discrimination, if they so decide, in all decision-making, at all levels, with regard to matters that might affect their rights, lives, and destiny. They may do so directly or through representatives chosen in accordance with their own cultural traditions. They shall also have the right to maintain and develop their own indigenous decision-making institutions, and to have access to and participate in all national institutions and fora.

Article XVI.

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:

1. The legal practices of indigenous people, when they do not violate individual guarantees and human rights, shall be recognized in all courts and proceedings that involve indigenous persons or communities, so as to ensure full access for these people to state jurisdiction.

2. Indigenous peoples have the right to maintain their standards, practices, and customs and to apply them to matters within their communities for the resolution of internal disputes, with full respect for human rights.

3. In the jurisdiction of any state, proceedings involving indigenous persons shall be conducted according to due process, and to the legal and cultural practices of indigenous peoples, where these are consistent with national legislation.

Article XVII. Participation of indigenous peoples in governmental institutions

State institutions that deal with indigenous questions shall provide for the participation of the indigenous peoples concerned so as to reinforce and promote their identity, cultures, traditions, organization and values.

SECTION FIVE

Article XVIII.

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.

Article XIX.

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.

Article XXI

We suggest the following wording:

1. The states recognize the right of indigenous peoples to decide democratically what values, objectives, priorities, and strategies will govern and steer their development course, provided these are consistent with those adopted by the national government. States shall make provision in their budgets for the funds necessary for the development of indigenous peoples; any additional resources must be channeled through the appropriate state agencies.

2. Unless exceptional circumstances so warrant in the public interest, the states shall take necessary measures to ensure that decisions regarding any plan, program or proposal affecting the rights or living conditions of indigenous peoples exclusively are not made without the consultation and informed view of those peoples.

3. Indigenous peoples have the right to restitution or compensation consistent with national legislation for any loss; and to propose measures to mitigate adverse environmental, economic, social, cultural, or spiritual impacts.

Article XXII.

Replace the word "constructive" in the title, with implicit.

We recommend addition of the following article: