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

PERMANENT MISSION OF PARAGUAY TO THE
ORGANIZATION OF AMERICAN STATES

Ref. VMRREE/DOI/OEA/L/No. 2161/98

As instructed by the President of INDI in response to the request of the Ministry of Foreign Affairs referenced above, I submit the following observations and comments:

The basic policy guidelines of the Republic of Paraguay with regard to Indian affairs are mainly set forth in the National Constitution, in ILO Agreement 169, in Law 904/81 and in their respective regulatory norms.

It should also be borne in mind that Paraguay has had a very specific history of conquest, colonization, and independence which is reflected in the also special current status of indigenous peoples.

If one examines this background and current situation and compares the guidelines and their respective legal framework with the main provisions in the Proposed American Declaration referred to, it emerges that the latter are not at variance with either the guidelines or the legal framework in force. Thus, both agree, for instance on:

a. Juridical recognition of indigenous peoples as fully entitled legal persons;

b. Commitment to promoting the development of native peoples;

c. The right of indigenous peoples to preserve and freely develop their cultural identity in all its aspects, untrammeled by any attempt at assimilation;

d. Recognition and respect for Indian ways of life, their customs, traditions, forms of social organization, institutions, practices, beliefs, values, and languages;

e. The right to freedom of conscience, religion, and spiritual practices;

f. Responsibility of the State to endow Indian peoples with lands that are extensive enough and suited to the conservation and development of their particular ways of life;

g. Respect for cultural differences, especially with regard to formal education;

h. Defenses against depredation of their habitat, pollution, and economic exploitation.

The declaration of the right of indigenous peoples to full and effective enjoyment of the human rights and fundamental liberties enshrined in the OAS Charter, the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, and other international human rights instruments ratified by the Republic of Paraguay do indeed also protect the indigenous population, but the emphasis placed on them in the Proposed Declaration is by no means amiss.

The declaration contained in Article VIII established that: "Indigenous peoples have the right to their own languages, philosophy, and concepts as a component of national and universal culture, and as such, states shall respect them and facilitate their dissemination thereof in consultation with the peoples involved." That declaration may constitute a corollary to the norms and principles established in Paraguayan substantive law and although it is not specified as such does not contradict them.

In that regard, it is worth pointing out that the way of life of the native peoples of Paraguay, with their egalitarian society and communal form of economy stands in contrast to the market economy; their respect for human beings, especially women and children, their sobriety, and respect for ecosystems and biodiversity contrasts with the plundering of natural resources carried out by surrounding society that causes irreparable harm to the country.

Deeply ethical values, such as equality, solidarity, and reciprocity, that are still cultivated in indigenous groups, are models to be promoted not only among native peoples but also in Paraguayan society as a whole, which has a lot to learn from them and which should assert them as prerequisites for social integration, harmony, and the integral development we long for.

Furthermore, some institutions and/or regulations that are a cause for concern in other States, such as ongoing land possession rights, pose no particular problem in the case of Paraguay, where the areas which indigenous peoples/communities may continue to occupy can be established precisely.

Nor is there any cause for fears or misgivings on the part of the Paraguayan Government with regard to eventual territorial splits or challenges to sovereignty over certain areas of the country reserved for indigenous groups, because neither in their origin nor in terms of current composition do they bear any resemblance to the Native American reserves found in the USA or Canada, or the autonomous territories in Nicaragua and Colombia, or the indigenous territories in Brazil. In Paraguay it is a question of scattered groups of small settlements (some 400 nationwide) formed by dispersed communities from different groups. There are even instances of communities such as Puerto Casado (in La Victoria), Casanillo, and Santa Teresita, formed by families from three or more ethnic groups.

One of the controversial issues in the Declaration has to do with so-called Indigenous Law. The phrasing of the Declaration implies the existence of an alternative indigenous law that must be recognized by national legal systems, be valid in the territories occupied by Indian peoples, and be exercised by Indian authorities.

According to the Paraguayan Constitution, indigenous peoples are free to apply their political, social, economic, cultural, and religious forms of organization and to choose to submit to their traditional rules for affairs within their communities, provided that they do not infringe fundamental rights established under the Constitution (Cf. Article 63).

In Paraguay, the legal status of the indigenous peoples/communities is governed not only by the Constitution but also by special laws (basically the Indigenous Communities Statute and Agreement 169), and it is regulated in part by customary law. The latter has not been systematized in writing, and there are few studies of it. This aspect needs to be addressed.

Law 904/81 provides for the establishment of the legal capacity of the indigenous communities, who are legally represented by the leaders those communities appoint. Very few such communities have statutes or written laws, and no regulations exist for Law 904 itself. Recognition of legal capacity, subsequent to recognition of the leadership, is a sine qua non for the community to have free and undivided, imprescriptible title to its lands, which may not be used as security nor alienated for any reason. That is, title to the lands is given in perpetuity when the community has been legally incorporated.

Article 2 of Agreement 169 provides that government shall assume responsibility for … respecting the social and cultural identity, customs and traditions, institutions, protecting the rights of indigenous peoples and ensuring respect for their integrity. Article 8 establishes that in applying national law with respect to the peoples concerned, due consideration shall be given to their customs or traditional law, and those peoples shall have the right to preserve their own customs and institutions, provided that these are not incompatible with the basic rights defined in the national legal system or with internationally recognized human rights.

The Agreement also provides that the methods to which the communities concerned traditionally resort in suppressing offenses committed by their members shall be respected. Some indigenous peoples in Paraguay apply sanctions in the form of community work, or the removal of political leaders who commit crimes against community property by means of a rapid and effective procedure, thereby upholding the principle of swift and inexpensive justice and substitution of other punishments for imprisonment.

Some countries’ reluctance to accept of the use of the term "peoples" in the Declaration is not really applicable in the case of Paraguay, as the term was adopted expressly in the National Constitution, Article 62 of which defines them as "groups of cultures existing prior to the formation and constitution of the Paraguayan State", and as it is the State that recognizes them as peoples, it is clear that the term is used to describe groups within Paraguay only, and cannot be interpreted as a synonym.

Furthermore, the Declaration in reference, in Article 1, provides that "the use of the term "peoples" shall not be interpreted to have any implication with respect to other rights that may be attributed to that term in international law."

The Declaration establishes that indigenous peoples have collective rights which are indispensable to full enjoyment of the individual human rights of their members. It contemplates the fundamental principle established for individual members of indigenous communities in the sense that exercise of individual and social guarantees depends upon the exercise of collective rights, as distinct peoples.

Moreover, we agree with the proposal of the Inter-American Indian Institute that adjustments should be made to the order in which the Declaration is set out so as to make its objective and terms easier to understand, and follow a logical sequence of ideas.

In light of the foregoing considerations, I consider that the Proposed AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES approved by the Inter-American Commission on Human Rights on February 26, 1997 should, generally speaking, be supported by the Paraguayan representation, with the proviso that approval of the Declaration will not be sufficient if steps are not taken to ensure its effective application in national society, which is rather racist in Paraguay, through systematic measures to promote awareness, as well as through information campaigns among the indigenous peoples, who should also be assisted in defending their rights, particularly aspects relating to basic human rights.