OBSERVATIONS AND RECOMMENDATIONS BY VENEZUELA
REGARDING THE "PROPOSED AMERICAN DECLARATION ON THE RIGHTS
PERMANENT MISSION OF VENEZUELA TO THE
Venezuela considers that the document prepared by the Inter-American Commission on Human Rights (IACHR) on the human rights of indigenous peoples is a timely and commendable initiative by the Commission, whose goals are worthy of recognition and appreciation. The document can be described as an interesting effort to deepen and further develop the principles of international law with respect to human rights in general. It must be recalled in this regard that both the international and inter-American communities have been progressively constructing a major codification in this area with the development of universally accepted international rules and standards whose characteristics of indivisibility, equal importance, and interdependence do not provide for reservations by the states that have recognized them and have been widely reaffirmed by the international community in recent years.
Accordingly, the scope of the Proposed American Declaration on the Rights of Indigenous Peoples should conform with the principles and provisions of international instruments adopted and placed in force by the international and regional communities to protect and promote human rights, including the principles contained in the United Nations Charter. This initiative should also be incorporated within the activities of the International Decade of the Indigenous Populations approved by the United Nations in pursuance of the principles contained in the Vienna Plan of Action of 1993.
The principles set forth in the IACHR proposal should correspond strictly to those contained in the Human Rights Charter (Universal Declaration of Human Rights and the Human Rights Pacts for the protection of civil and political rights as well as those referred to as economic, social, and cultural). Its provisions should also be consistent, naturally, with the Convention to Eliminate Discrimination against Women and the Convention on the Rights of Children, as well as with the applicable provisions of the Declaration on the Right to Development.
For Venezuela, the idea of adopting a declaration to promote the rights of indigenous populations must be seen as a positive step towards the adoption of an instrument to compliment all of the provisions cited above so as to develop and establish the guidelines necessary to ensure that the enjoyment of human rights extends to that category of human beings that is composed of the indigenous population of the American states. It can be seen that generally, and for reasons beyond the scope of these comments, the situation of these human groups coincides largely with that of our most disadvantaged and neglected population segments. But, underlying this situation, which clearly must be corrected, is the fundamental idea of a culture that must be preserved.
Accordingly, any wording put forward in this regard should seek to ensure due respect for indigenous origins by fostering and promoting indigenous cultural values and institutions. In the view of Venezuela, the purpose of the declaration should not be to create new rights and obligations, but rather to ensure that the full and effective enjoyment of internationally recognized human rights is not denied to a segment of the hemispheres population by reason of its culture.
The Proposed Declaration in question is an instrument intended to enshrine a series of rights that would be applicable exclusively to the "indigenous peoples" of the hemisphere with the aim of protecting and promoting indigenous institutions, practices, and identity, and those of other peoples whose social, cultural and economic conditions distinguish them from other sections of the national community, through a policy of self-determination and full recognition by the states that these groups possess full legal personality. In that sense, without prejudice to their rights as citizens of the States Parties, the proposal provides for recognition of their forms of social organization, institutions, and languages; of their rights to administer their own educational and health programs, preserve their lands, territories, and resources, freely determine their political status and form of self-government; and of "indigenous law" as part of the states legal system, and therefore the right to maintain this law. The proposal also provides for the creation of special rights to the lands, territories, and resources they occupy and control.
The inclusion of "the right to the self-determination of peoples" has well known dimensions and consequences under international law, based on the United Nations Charter and numerous international instruments enshrining this right. In that sense, an open reference to this right concerns the Venezuelan State; it is therefore essential to clearly discern the precise significance and consequences of the various references made to this right in several articles of the proposal. Such clarifications should be made so as to permit conformity with the constitutional provisions and legal system of Venezuela and interpretation consistent with the provisions of international law. This applies in particular to such terms as: people, indigenous peoples, territory, resources, self-determination, self-government, compensation, historical and archeological heritage, and others.
An understanding of many of these terms is difficult because the proposal includes no definitions. Without going into an exhaustive examination of these terms frequently used in the text, a number of preliminary comments on some of them are in order given their important legal implications.
Both the title and the first section of the Proposed Declaration include the word "people", a term that has specific ramifications under Venezuelan Constitutional Law and International law. The political dimensions of this term, which are fundamental to the concept of the state and are widely recognized by this branch of law, and its use in the context of the right to self-determination, could imply the right to opt for independence and separate, sovereign statehood.
The use of this term in the expression "indigenous peoples" is inappropriate, inasmuch as the Constitution of the Republic recognizes only one meaning for the word "peoples", which is that referred to in the words "Venezuelan people". Moreover, in international law, the concept of "people" is used in the context of free self-determination, that is, the right to opt for independence and sovereignty. Consequently, it would not be appropriate to use this term to refer to indigenous populations, which do not have the right under constitutional law to free self-determination.
It would be preferable to replace this expression with the words "indigenous population". Though difficult perhaps to define, given the immense variety of indigenous cultures that have survived in the hemisphere, this wording provides a more appropriate means of definingdespite their differencesthe category of "persons who have preserved the fundamentally distinctive features of a culture existing prior to colonization, such as language, beliefs, and traditional uses and customs, that make them members of an indigenous culture."
The Government of Venezuela is concerned that the Proposed Declaration calls for the establishment of a separate indigenous legal system, which would be in open contradiction with the principle of equality before the law constitutionally established within the Venezuelan legal system for all Venezuelan citizens.
The aim of this text is to clearly determine the legal consequence of the observance of human rights when attempting to ensure their enjoyment by persons or human groups identified as pertaining to the indigenous culture. Great care must be taken, however, to ensure that the wording of the Declaration does not result in legal discrimination against the non-indigenous population, which would create situations contrary to equality among citizens categorically affirmed by the aforementioned constitutional provision.
Nonetheless, given the diversity of situations existing among the indigenous populations of the American states, it would be desirable to include some type of provision making it possible to differentiate between the particular conditions existing in each country. It should also be sufficiently flexible to differentiate between indigenous populations within a particular country, as in the case of Venezuela, where the situation of indigenous populations are in some cases very similar to that of populations in other American countries, but frequently are more characteristic of the particular part of the country where they live. Variations can be seen from ethnic, numerical, social, cultural, economic, and even legal points of view.
The separatist spirit of the Declaration (Article V) contrasts with the principle of integration enshrined in the National Constitution, which does not recognize the political, legal, or administrative autonomy of these groups as ethnic minorities. Nor is such autonomy recognized by Venezuelan legislation, which distinguishes solely between the duties of Venezuelans and non-Venezuelans, without recognizing perpetually present minorities with special characteristics, duties, and rights. The same principle is enshrined in the Constitution. Aggravating this, is the fact that the Proposed Declaration would apply not only to indigenous peoples, but would extend as well to "peoples whose social, cultural, and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions " (Article 1 of the Proposal), whereas national legislation does not establish distinctions in this regard.
The Government of Venezuela is also concerned that the Declaration would recognize these groups as having their own legal personality, with the right to establish a system of self-government and administration, including the right to use of their own languages, and the creation and consolidation of indigenous law distinct from national legislation, and which is based largely on the ancestral uses and customs of these peoples. These elements clearly violate the National Constitution and other laws of the Republic, which establish Spanish as the official language of the Republic and recognize only one legislation as applicable to Venezuelans or foreigners, whether or not they belong to indigenous ethnic groups.
With regard to the rights to land, territories, and resources, it is noted that Article XVIII (5) and (7) of the Proposed Declaration provides that in the event that ownership of the minerals or resources of the subsoil of lands occupied by indigenous populations pertains to the state, or in the event that it is necessary for the state to compensate indigenous populations for the confiscation of lands or territories, or for any damage they may suffer as a result of exploitation activities, such compensation must be provided on a basis not less favorable than the standard of international law. This presumes to differentiate between the compensation the Venezuelan state must provide to its citizens under national legislation for damage sustained in the exercise of eminent domain, and that which must be provided by virtue of the Proposed Declaration to specified ethnic minorities. As explained earlier, such minorities may not receive treatment either more or less favorable than that accorded to all Venezuelans, with the temporary exceptions set forth in Article 77 of the National Constitution. By virtue of the temporary character of the provisions allowing exceptions for indigenous populations for the time required for them to be integrated into national life, such exceptions are subject exclusively to domestic legislation, unless the state has undertaken international commitments in this regard.
Another objection concerns the word "territory" used throughout the Proposed Declaration. From a strictly legal standpoint "territory" is defined as the spatial extent of validity of the state legal system. Accordingly, only sovereign states, not indigenous populations, possess territory. The term "lands" is considered more acceptable in this regard, given the implications of this concept in international and constitutional law.
The Proposed Declaration would enshrine the right to legal recognition of their varied and specific forms and modalities of control, ownership, use and enjoyment of lands and resources. It should be pointed out in this connection that the legal system applicable in Venezuela to natural and non-renewable resource tenure within national territory does not distinguish on the basis of race. Article 106 of the Constitution provides that "the state will attend to the defense and conservation of natural resources within its territory and the exploitation of such resources will be geared primarily toward the collective benefit of Venezuelans". The objectives of the Venezuelan nation with respect to the use and ownership of land and resources must be consistent with this constitutional mandate.
Article XXI of the Proposed Declaration provides that "The States recognize the right of indigenous peoples to decide democratically what values, objectives, priorities and strategies will govern and steer their development course, even where they are different from those adopted by the national government or by other segments of society ". It must be noted in this regard that national authorities alone are empowered to regulate the economic, social, and cultural development of the Venezuelan people and to define the strategies for accomplishing that objective -- strategies which are intended for all Venezuelans without distinction according to race, creed, or social condition. This is based on the principle enshrined in Article 61 of the National Constitution prohibiting any type of distinction for such reasons. Accordingly, it would hardly be possible to recognize the right of an ethnic minority to regulate any matter which, by constitutional mandate, falls within the authority of the national government and is enshrined in Article 136 of the Constitution, such as health, education, development, domestic legislation, territorial development, etc.
The Proposed Declaration also provides for rights that must be recognized in respect of indigenous groups referring to such matters as workers rights, intellectual property, and human rights, which Venezuela recognizes and defends as applicable to all Venezuelans in their capacity as citizens, regardless of whether they belong, or not, to indigenous groups. It would therefore not be appropriate to accept the recognition of rights enshrined in the Constitution in such a way as to differentiate between their application to Venezuelans belonging or not belonging to minorities, inasmuch as the Constitution makes no such distinctions and requires vigilance to ensure the proper application of these rights without distinction based on race, creed, or social condition, as mentioned.