The Purpose of Module 6
The purpose of this module is to review
the international law related to the rights
of indigenous peoples and explore international
and domestic remedies available to vindicate
them.
The module
- summarizes the historical framework
and current situation related to indigenous
peoples rights;
- identifies the principal international
standards and the areas they cover;
- summarizes protections provided in domestic
law in Latin America; and
- discusses international, regional and
domestic mechanisms to protect indigenous
peoples rights.
A Bleak Future for Indigenous Peoples
In almost all societies where they are to
be found, indigenous people are poorer than
most other groups. In Australia, for example,
aboriginals receive about half as much income
as non-aboriginals. In developing countries
the poorest regions are those with the most
indigenous people. In Mexico, for example,
in municipios where less than 10% of
the population is indigenous, only 18% of
the population is below the poverty line.
But where 70% of the population is indigenous,
the poverty rate rises to 80%.
Indigenous people also fare worse in the
non-income dimensions of poverty. In Canada
the infant mortality rate for indigenous children
is twice as high as the population as a whole.
In Peru the Indian population is much more
prone to illness than the Spanish-speaking
populationand twice as likely to be
hospitalised.
Similar disparities are evident in education.
In Bolivia and Mexico indigenous children
receive on average three years less education
than non-indigenous children. And in Guatemala
the majority of indigenous people have no
formal educationonly 40% are literate.
But even when they have the same education
as the majority population, indigenous people
still face discrimination when it comes to
employment. In the United States, for example,
around 25% of the earnings shortfall of indigenous
people is estimated to result from discriminationin
Bolivia 28%, and in Guatemala close to 50%.
Indigenous people have seen their values
and customs destroyed by the incoming populationand
have frequently turned to alcoholism or suicide.
In developing countries they generally mix
to some extent with the majority population,
but in the industrial countries many have
ended up on reservations, facing a bleak future.
[1]
Historical Framework
The rights of indigenous peoples have been
specifically recognized and defined internationally
as a result of their particular cultural, linguistic,
economic, and religious conditions and their
socio-political organization. This recognition
is also grounded in the peculiarly fragile conditions
that indigenous peoples experience and the serious
threats they face. These distinguish them
from the rest of the population in the societies
in which they live, making it necessary to accord
them special legal protection in international
law and in the domestic legislation of nation-states.
This situation has been recognized by international
instruments that provide that the rights of
indigenous peoples belong to those whose social,
cultural and economic conditions distinguish
them from other sections of the national community,
whose status is regulated wholly or partially
by their own customs or traditions, and who
are considered indigenous on account of their
descent from populations that inhabited the
country before the time of the conquest, colonization,
or the establishment of the present state boundaries.
[2]
The rights of indigenous peoples are considered
collective rights, which belong
to them as peoples and collective subjects,
as well as original rights, since
they are claimed as historical
rights predating the nation-states. It
has been noted in this connection that recognition
of the rights of indigenous peoples implies
a profound change in the political and cultural
perspective by which nation-states are organized. [3] This recognition
is based on what some authors have called a
legal order of diversity, [4] in
which nation-states recognize their multiethnic
and multicultural character.
In the declaration of the Continental Encounter
of Indigenous Leaders and Authorities held in
Quito in August 1996, indigenous organizations
demanded the right of indigenous communities
to exist as peoples. They undertook several
national and international initiatives for the
recognition of collective rights, which strengthen
their self-worth as peoples and the multinational,
multiethnic, and multicultural character of
nation-states. [5] According to the indigenous organizations
present at the gathering, the rights of indigenous
peoples must be seen in the context of the processes
of building nation-states, which generally are
constituted unilaterally and seek to homogenize
and deny the rights of other sectors. In sum,
indigenous rights are specific rights that have
a collective dimension and are claimed as historical
and original rights whose recognition and exercise
are necessary to guarantee the life and existence
of indigenous peoples.
Current Situation
To better understand the current context in
which the rights of indigenous peoples are being
recognized, one must analyze the relationship
between the indigenous peoples and the nation-states
in which they live. In most of the countries
with indigenous populations, the relationship
has been marked by confrontationa confrontation
between the indigenous organizations that
seek respect for cultural diversity and territorial
rights, and the governments and their goals.
Governments seek integration of indigenous populations
into the schemes of the dominant unitary culture,
and the nations social, political, and
economic models are injected into indigenous
peoples traditional territories by state
projects. It has been noted:
In the coming decades nation states and indigenous
peoples and communities will see the intensification
of the tensions that characterize their relationship.
This process makes it necessary to develop
political and cultural forms by which society
can reorganize to make way for diversity and
pluralism.7
The Narmada Dams and
Tribal Peoples
"In the fifty years since Independence,
after Nehru's famous 'Dams are the Temples
of Modern India' speech (one that he grew
to regret in his own lifetime), his footsoldiers
threw themselves into the business of
building dams with unnatural fervour.
Dam-building grew to be equated with Nation-building.
Their enthusiasm alone should have been
reason enough to make one suspicious.
Not only did they build new dams and new
irrigation systems, they took control
of small, traditional systems that had
been managed by village communities for
thousands of years, and allowed them to
atrophy. To compensate the loss, the Government
built more and more dams. Big ones, little
ones, tall ones, short ones . . .
"[Big Dams are] a brazen means of
taking water, land and irrigation away
from the poor and gifting it to the rich.
Their reservoirs displace huge populations
of people, leaving them homeless and destitute
. . .
"A huge percentage of the displaced
[in India] are tribal people (57.6 per
cent in the case of the Sardar Sarovar
Dam). Include Dalits and the figure becomes
obscene. According to the Commissioner
for Scheduled Castes and Tribes, it's
about 60 per cent. If you consider that
tribal people account for only eight per
cent, and Dalits fifteen per cent, of
India's population, it opens up a whole
other dimension to the story. The ethnic
'otherness' of their victims takes some
of the pressure off the Nation Builders.
It's like having an expense account. Someone
else pays the bills. People from another
country. Another world. India's poorest
people are subsidising the lifestyles
of her richest . . ."6
|
According to indigenous organizations, there
are five key points in the relationship between
states and indigenous peoples that have to do
with their rights:
1. Territories:
At issue here are the claims for control and
recovery of the territory in which the lives
of the indigenous peoples, including their reproduction
and development, unfold. (See Module 18 for
more discussion on land rights.)
2. Social
and political organization: This refers
to the right of indigenous peoples to have their
own forms of social and political organization,
to make decisions on their own matters, and
to participate fully in all levels of decision-making
in the structures of the states of which they
are part. It also refers to an organizational
dynamic aimed at creating a network of solidarity
among indigenous peoples to press their claims
and provide for their participation.
3. Economic
development: Indigenous peoples have a right
to control their own economies, attending to
the needs of their own systems of production.
It includes the right to participate in the
benefits of the economic development plans promoted
by the states.
4. Development
of a platform: Such a platform would make
it possible for indigenous peoples to press
their demands, which range from land and territorial
claims to cultural and technical grievances,
economic development, customary law and political
participation.
5. Valuing
their identity: This is related to recognition
of the ethnic and cultural diversity in each
of the states with indigenous populations.
International Standards Recognizing the Rights
of Indigenous Peoples
Beginning in the second half of the twentieth
century, advances have been made in recognizing
and protecting the specific rights of indigenous
peoples in various international agencies and
in the domestic legislation of most countries.
In 1957 the International Labour Organization
adopted Convention No. 107 concerning the Protection
and Integration of Indigenous and Tribal Populations
and other Tribal and Semi-tribal Populations
in Independent Countries. This was a first
effort to establish a set of standards for protecting
indigenous peoples. The emphasis in this convention
was on integration rather than on recognition
of the distinct characteristics and rights of
indigenous people. Later, as a result of the
conventions shortcomings and inadequacies
in the current context, the ILO revised it.
This effort concluded with the adoption in 1989
of Convention No. 169 concerning Indigenous
and Tribal Peoples in Independent Countries.
It confers international recognition on the
specific rights of indigenous peoples, and has
already been ratified by many nation-states,
making it applicable domestically in those countries.
In 1982 a Working Group on Indigenous Peoples
was created under the auspices of the UN Sub-Commission
on the Prevention of Discrimination and Protection
of Minorities. This working group prepared
a Draft Universal Declaration of the Rights
of Indigenous Peoples that is currently under
discussion in the United Nations. It is a very
broad and effective instrument for recognizing
the rights of indigenous peoples worldwide.
In 1993, within the framework of the World Conference
on Human Rights held in Vienna, those specific
rights won clear and express recognition as
collective rights.
For its part, the Organization of American
States (OAS), through the Inter-American Commission
on Human Rights, has produced many statements
and reports on the situation of indigenous peoples
rights in different countries. The Commission
prepared an American Declaration on the Rights
of Indigenous Peoples, which contains broad
recognition of the principal rights of indigenous
peoples in the Americas. It is awaiting approval
by the OAS General Assembly.
Economic Development
and Self-Identity
Sometime in the distant past the Orang
Suku Laut of Indonesia left the land to
start a life on the sea. Known now as
"sea nomads," they have lived
on the Riau-Lingga archipelago waters
of Indonesia for centuries. They can be
recognized by the presence of wooden boats
with leaf roofs; the boats serve both
as transportation and shelter. The life
of the Orang Suku Laut began to change
in the second decade of the nineteenth
century. From living totally as sea nomads
they gradually shifted to become seminomadic;
depending upon the climate and monsoon
winds, from time to time they would move
to temporary dwellings on land. Later,
a few groups began to live in permanent
dwellings, erecting groups of huts on
the shorelines, near mouths of rivers
and along riverbanks.
Since 1989 the administrative regions
of which the archipelago is a part have
become the center of a governmental development
project, now entitled the Indonesia-Malaysia-Singapore
Growth Triangle (IMSGT). Starting in 1992
the government initiated another development
project, which includes building six bridges
linking various islands of the archipelago.
Industrial estates and marine resorts
are being built along the shorelines.
As a result of these development projects
the natural habitat of the Orang Suku
Laut-both on the water and on land-is
changing rapidly. All of this development
is seriously disrupting the patterns and
livelihood of the Orang Suku Laut. Their
traditional way of life is seriously threatened,
as is their capacity to feed themselves.
The Indonesian government considers the
Orang Suku Laut to be an "isolated
community." As such, they are not
legally recognized, and thus receive no
protection or recourse that might be available
under Indonesian law to other communities.
An Indonesian NGO, the Saka Kemuning
Foundation, works with the Orang Suku
Laut to help them fulfill their basic
needs, increase their awareness about
their rights to cultivation of natural
resources and to have access to social,
economic and educational opportunities,
and to express their own sociocultural
identity.
|
Convention No. 169 concerning Indigenous and
Tribal Peoples in Independent Countries
Convention No. 169 is a progressive instrument,
as it takes cognizance in an all-encompassing
and complete way of the demands of indigenous
peoples in recent decades. On adopting Convention
No. 169, the ILO observed that
in many parts of the world these peoples
do not enjoy fundamental human rights to the
same extent as the rest of the population,
recognizing their aspirations to take control
of their own institutions, their way of life,
and their economic development . . . The basic
concepts of the Convention are respect and
participation. Respect for ones own
culture, religion, social and economic organization,
and identity.
Convention No. 169 is an international legal
instrument that broadly sets forth binding provisions
for the protection of indigenous peoples
rights, inspired by respect for their cultures,
ways of life and traditional forms of organization.
It also establishes specific mechanisms by which
states are to carry their obligations in this
regard. The issues and rights addressed by
the convention in greatest detail are:
The right of indigenous peoples to be considered
peoples with their own identity
and the historical rights that derive from that
condition. Indigenous peoples have claimed
this right, since they do not consider themselves
populations or communities,
but peoples who have particular ways of life
and organizational forms, as well as their own
culture, territory and language. The term peoples
in the new convention reflects this idea. The
convention applies to peoples considered indigenous
because they descend from populations that inhabited
the country at the time of the conquest or colonization,
or from the establishment of the current state
boundaries, and that preserve their own social,
economic, cultural and political institutions.
Nonetheless, the convention itself declares:
The use of the term peoples
in this Convention shall not be construed as
having any implications as regards the rights
which may attach to the term under international
law (art. 2).
Adoption of measures by the states:
Convention No. 169 stresses in article 2 that
governments must assume responsibility for
developing coordinated actions, with the participation
of the indigenous peoples, to protect the
latters rights and guarantee respect
for their integrity. These must include measures
to ensure that they enjoy the same rights
and opportunities as all other members of
the population, on an equal basis. They must
also promote the full realization of the ESC
rights of these peoples, and help eliminate
socioeconomic differences. Furthermore, articles
4 and 5 require states to adopt special measures
to safeguard the persons, institutions, property,
work, cultures and environment of indigenous
peoples, and to ensure that their social,
cultural, religious, and spiritual values
and practices are recognized and protected.
Participation of and consultation with
indigenous peoples in all matters having
to do with their life and organizations are
fundamental threads running through the whole
document. The convention expressly states
in article 6 that indigenous peoples must
be consulted by means of appropriate procedures,
and in particular through their institutions,
when legislative or administrative measures
are to be taken that may affect them. Means
should be developed to allow for their participation
at all levels of decision-making in the agencies
responsible for the policies and programs
that concern them. In addition, the governments
should ensure that studies are undertaken,
in cooperation with indigenous peoples, to
evaluate the social, spiritual, cultural and
environmental impact of development activities
on these peoples.
Customary law: In another innovation,
Convention No. 169 recognizes the right of
indigenous peoples to use their own customs
and customary law to deal with their affairs
and resolve their conflicts. Indigenous peoples
have the right to preserve their own customs
and institutions, and traditional methods
are to be used for dealing with crimes or
offenses committed by members of the indigenous
peoples so long as they are not incompatible
with fundamental rights defined by the national
legal system. Moreover, the authorities and
courts called on to give their views on criminal
matters should bear in mind the customs of
the indigenous peoples in respect of such
matters.
Right to land and territory: Another
innovation in Convention No. 169 is that it
provides broad recognition for the right to
life and includes within that the right to
the territory which is the entirety of the
space in which the physical, cultural, social,
spiritual, political and economic life of
the indigenous people unfolds. The convention
takes as its starting point the special relationship
indigenous peoples have to the lands they
have traditionally occupied or used. Article
14 imposes an obligation on states parties
in the following terms: The rights of
ownership and possession of the peoples concerned
over the lands which they traditionally occupy
shall be recognized . . . Adequate procedures
shall be established within the national legal
system to resolve land claims by the people
concerned.
Furthermore, in terms of the rights of indigenous
peoples to the natural resources on their lands,
the convention indicates that special protection
should be afforded to these rights, which include
the use, management and conservation of the
resources. In addition, if the ownership of
mineral resources or resources of the subsoil
belong to the state, the governments must establish
procedures for consulting the indigenous peoples
to see whether their interests would be adversely
affected by exploitation of the resources. They
should, in any case, participate in the benefits
of such activities. (See Module 18.)
Recruitment and conditions of employment:
Convention No. 169 includes provisions that
require the governments to adopt special measures
to guarantee effective protection for indigenous
workers with respect to recruitment and employment
conditions. Similarly, as regards vocational
training and handicrafts, it provides that the
states shall take measures to promote the voluntary
participation of indigenous peoples in vocational
training programs that should be based on the
economic environment, social and cultural conditions,
and specific needs of these peoples. (See Module
10.)
The Role of Individual
Rights in Indigenous Cultures
India has a diverse collection of indigenous
peoples or tribal communities that follow
what has been termed a tribal jurisprudence.
The concept of private property is alien
to such a tradition, and common property
resources are the basis of community interaction.
The community has usufructuary rights
to the forests on which they are dependent,
and even cultivated land is a common property
resource. In places such as Himachal Pradesh,
the line between private and common property
is blurred-often land when under cultivation
is privately controlled, and when fallow,
is used by the community in general for
grazing of cattle and other community
activities.
The spread of the modern legal system
and the introduction of the concept of
private property tore at the very fabric
of these communities. Efforts by the state
to address this problem through legislation
which forbids the alienation of tribal
lands to non-tribals has had limited effect.
One area of conflict has been the assertion
by women of their right to inherit property
within the tribal legal systems, which
recognize only collective rights.
Some years ago a fact-finding team went
into the Jharkhand region of Bihar, a
predominantly tribal area. During the
course of the fact-finding, one of the
members of the team, Madhu Kishwar, editor
of a women's magazine called Manushi,
found that women of the Ho tribe suffered
greatly as a result of denial of land
rights. She filed a writ petition invoking
the equality clauses of the Indian Constitution
and seeking the application of the Indian
Succession Act, 1925, to the Ho tribals.8
While on the face of it there can be no
objection to the demand for equal property
rights for Ho women, what the writ petition
also unthinkingly did was seek the termination
of the system of common property rights
practiced by the tribe, since common property
rights are not recognized by the Indian
Succession Act. It has been argued that
rather than impose an alien jurisprudence,
albeit one which is based on rights, on
such communities, it should be the choice
of marginalized sections within the community
to explore the possibilities of such systems
to grow and evolve with the times. "The
destruction of tribal societies means
the destruction of ways of life, philosophies
and traditions which are a rich source
of cultures which teach values based on
co-operation, rationality and consensus,
in contrast to the capitalist values of
competition, elections and conflict."9
|
Health and education: Article 25 of Convention
No. 169 provides that governments must ensure
that adequate health services are made available
to indigenous peoples and must seek to have
such services be the latters own responsibility
and under their own control. The services should
be community-based to the extent possible, be
administered in cooperation with the interested
peoples, and take account of their cultural,
social and geographic conditions, as well as
their methods of prevention, curative practices
and traditional medicines. In terms of education,
the convention requires that educational programs
and services earmarked for indigenous peoples
should be developed in cooperation with them
so as to answer to their particular needs, history,
knowledge,and value system. In addition, the
governments should recognize the right of these
peoples to create their own institutions and
means of education, and it is noted that wherever
possible, the children of indigenous peoples
should be taught to read and write in their
own language or in the language that is most
commonly spoken in the group to which they belong.
(See Modules 14 and 16 on the rights to health
and education, respectively.)
The Rights of Indigenous Peoples in Domestic
Law
In acknowledgment of the diversity and multicultural
nature of Latin America, considerable efforts
have been made to recognize and enact the rights
of indigenous peoples in statutes and constitutions
in various Latin American countries. Most current
statutory and constitutional law in Latin America
establishes clear principles regarding the rights
of indigenous peoples:
The Constitution of Panama (1972) recognizes
indigenous languages and bilingual education
(art. 84); the right of indigenous peoples
to their own cultural standards (art. 104)
and to economic, social and political participation
in national life (art. 120); and a guarantee
for the indigenous communities of the lands
they need for attaining their economic and
social well-being, as well as their collective
ownership (art. 123). It also recognizes
indigenous electoral districts (art. 141[5]).
The Constitution of Ecuador (1978) recognizes
indigenous languages as part of the national
culture (art. 1). The education systems in
indigenous areas are to use the indigenous
languages, and Spanish is the language for
intercultural relations (art. 27). Provisions
are included regarding community and cooperative
ownership of the land (art. 51).
The Constitution of Guatemala (1985) establishes
the right to cultural identity (art. 59) and
special protection for ethnic groups, recognizing,
respecting, and promoting their ways of life,
customs, traditions, forms of social organization,
use of indigenous attire, languages and dialects
(art. 66). It also includes provisions aimed
at protecting the lands of indigenous communities,
family property and low-cost housing, as well
as credit and technical assistanceall
necessary to guarantee the possession and
development of the land (arts. 67 and 68).
The Constitution of Nicaragua (1987) recognizes
that the country is multiethnic (art. 8) and
enshrines political, social, and ethnic pluralism
(art. 5). Similarly, the state recognizes
the existence of the indigenous peoples, stating
that they enjoy the rights, duties and guarantees
of the Constitution. It especially recognizes
the rights of indigenous peoples to develop
their identity and culture, to have their
own forms of social organization, and to administer
their local affairs. The Constitution also
establishes that the Nicaraguan state should
pass a law to adopt an autonomous regime for
indigenous peoples and other ethnic minority
communities of the Atlantic Coast region (art.
89).
The Rights of Indigenous
Peoples in the New Constitution of Venezuela
A new Constitution has recently been
approved in Venezuela. The text was drafted
by the National Constitutional Assembly
of 1999, whose 131 members were elected
by popular vote. Of the 131 assembly members,
three were representatives of Venezuela's
indigenous peoples and communities. They
were elected directly by the indigenous
organizations, pursuant to the rules for
election to the Assembly approved in a
popular referendum by the Venezuelan people.
Recognition of the rights of indigenous
peoples in the new Constitution is the
result of the struggle waged by the indigenous
members of the Constitutional Assembly,
together with indigenous organizations
nationwide and various allied organizations.
With this recognition, the Venezuelan
Constitution is now one of the most advanced
and sweeping in Latin America.
In September 1999 in an historic ceremony
indigenous organizations from throughout
Venezuela presented a document with their
main proposals for the new Constitution
to the President of the Constitutional
Assembly. This proposal was put together
with discussions at and contributions
from numerous meetings, community assemblies,
regional congresses and the First Congress
of Indigenous Peoples of Venezuela, held
in Ciudad Bolívar in March 1999.
The proposal made by the indigenous peoples
recognized that the indigenous peoples
existed as groups of cultures prior to
the formation of the Venezuelan State,
and considered the rights of indigenous
peoples as first nations.
The Assembly's Committee on the Rights
of Indigenous Peoples began to work on
and enrich this proposal with the help
of advisers and specialists supportive
of the indigenous cause. As a result of
a tireless effort on the part of the indigenous
members of the Constitutional Assembly
and their advisers, the Constitutional
Commission ended up including most of
the proposals made in the report by the
Committee on the Rights of Indigenous
Peoples. A chapter on indigenous peoples'
rights was included in the draft Constitution,
which was forwarded to the plenary for
debate.
Indigenous organizations from throughout
the country, especially the Pemón,
Warao, Arawako, Wayuú, Kariña,
Añú, Ye'kuana, Jivi, Piaroa,
Piapoco, Yanomami, Baré, and Curripaco,
maintained a presence at the legislative
palace throughout the proceedings. Of
the country's different sectors, it was
the indigenous organizations who remained
vigilant throughout the process, with
a daily and massive presence in the corridors.
Day after day they met to evaluate and
plan, to lobby and to peacefully demonstrate
to press their claims. It was a very long
wait. They waited day after day for the
time to come for discussion of the chapter
that contained their rights. They passed
the time making crafts, dancing and praying,
with chants by the shamans, and forming
friendships in the midst of the struggle.
The Committee on Security and Defense
of the Assembly, presided over by a group
of military officers, opposed the proposal
of the indigenous peoples, alleging that
it represented a threat to the country's
sovereignty and endangered its future
territorial integrity. It based its arguments
on a four-day visit to the border, where
members "observed" that the
indigenous groups were being manipulated
by nongovernmental organizations, transnational
corporations, missionaries and churches.
The committee insisted that one could
not grant constitutional rights to the
indigenous peoples over their traditional
lands and territories, and that the term
"indigenous peoples" ("pueblos
indígenas") should not be
used, because the Venezuelan "people"
are one, and no distinctions can be drawn-special
rights should not be given to some to
the detriment of the others.
The Committee on the Rights of Indigenous
Peoples argued that the indigenous peoples
had conserved and protected their territories
for hundreds of years, and that in the
border areas they were really the ones
who exercised sovereignty, given the neglect
of the State.
On Sunday, 31 October 1999, the time
came to discuss the Chapter on Indigenous
Peoples' Rights in the plenary. The indigenous
representatives, in their traditional
attire and paints, had occupied the entire
upper section of the Senate chamber. The
session began. The first to take the floor
was General Visconti, who after asserting
that the proposals of the indigenous peoples
represented an attack on Venezuela's sovereignty,
asked that the discussion be deferred
and that a special committee be appointed
to discuss the chapter. The indigenous
members of the Assembly and their allies
responded. There was no consensus. The
Assembly split between the militarists
and the supporters of indigenous rights;
it was decided to leave the matter for
discussion in a special committee. A national
debate ensued on the question of indigenous
rights, clarifying who were with the indigenous
peoples and who, answering to entrenched
interests, refused to recognize their
rights as the original inhabitants of
this country.
The special committee began its discussion.
Several members of the Assembly, specialists
and advisers participated. Finally, after
tough negotiations, an agreement was reached
whereby the Committee on Security and
Defense accepted the term "pueblos
indígenas" with the inclusion
of an article that would make it clear
that the indigenous peoples were part
of the single, sovereign and indivisible
Venezuelan State and People, and that
the use of the term indigenous peoples
does not connote the implication of the
term "peoples" in international
law. In addition, the word "territory,"
demanded by the indigenous peoples, was
replaced by "habitat."
Finally, on 3 November 1999, the plenary
of the assembly approved the chapter on
the Rights of Indigenous Peoples as a
package; much solidarity was shown by
most members of the Assembly. Once the
chapter was approved, the indigenous peoples
present embraced and sang the national
anthem. It had taken five hundred years
for their rights as first nations to be
recognized.
|
The Constitution of Brazil (1988) contains
a chapter aimed at guaranteeing the rights
of indigenous peoples. The social organization,
customs, languages, beliefs and traditions
of the indigenous peoples are recognized,
along with their original rights to the lands
they traditionally occupy. The federal government
has the responsibility to demarcate, protect
and respect all their properties (art. 231).
In addition, the lands permanently inhabited
by the indigenous groups, those used for their
productive activities, those essential for
the preservation of the resources necessary
for their well-being, and those necessary
for their physical and cultural reproduction,
according to their uses, customs, and traditions,
are defined in broad terms. In addition,
it is expressly noted that the lands of the
indigenous peoples are inalienable, may not
be disposed of, and are not subject to prescriptive
claims. It further provides that indigenous
peoples, their communities and their organizations
have standing to pursue legal actions on behalf
of their rights and interests; the Public
Ministry intervenes in all the steps of the
process (art. 232).
The Constitution of Colombia (1991) begins
by recognizing and protecting the ethnic and
cultural diversity of the Colombian nation
(art. 7) and the political rights of indigenous
peoples, creating an additional two seats
in the Senate for election, in a national
electoral district, by indigenous communities.
Similarly, the Colombian Constitution, within
the scheme of territorial organization, created
what are called indigenous territorial entities,
which enjoy autonomy for managing their own
affairs (arts. 286, 287, 329 and 330), which
are to be governed by councils constituted
and regulated in accordance with the uses
and customs of their communities. Furthermore,
it is provided that the indigenous resguardos
are collective property and are inalienable
(art. 329), and that the exploitation of the
natural resources in the indigenous territories
shall be without detriment to the cultural,
social and economic integrity of the indigenous
communities (art. 330).
The Constitution of Paraguay (1992) expressly
recognizes the existence of indigenous peoples,
defined as cultural groups that predate the
formation of the Paraguayan state (art. 62);
the right of indigenous peoples to preserve
and develop their ethnic identity in their
respective habitat; the right to freely apply
their system of political, social, economic,
cultural and religious organization, and their
right to enforce customary indigenous law
(art. 63). Furthermore, the Paraguayan Constitution
also recognizes that indigenous peoples have
the right to community ownership in the land,
of sufficient extent and quality to preserve
and develop their particular ways of life
(art. 64); such lands are nonattachable, indivisible,
nontransferable and not subject to prescriptive
claims. Similarly, indigenous peoples are
recognized as having the right to participate
in the countrys economic, social, political
and cultural life (arts. 66 and 77); and indigenous
persons are exempted from social, civil or
military service and from the public taxes
set by law (art. 67).
The Constitution of Mexico (1992) states that
the Mexican nation is multicultural, originally
based on its indigenous peoples and provides
that the law shall protect and promote the
development of their languages, cultures,
uses, customs, resources and specific forms
of social organization, and shall guarantee
their members effective access to the judiciary
(art. 4). In addition, the Mexican Constitution
notes that the law shall protect the integrity
of the lands of indigenous peoples and that
in any agrarian trials or proceedings to which
they are a party, their legal practices and
customs shall be taken into account in the
terms established by law (arts. 27 and 4).
The Constitution of Peru (1993) provides that
all persons have a right to their ethnic and
cultural identity and that the state recognizes
and protects the ethnic and cultural plurality
of the nation (art. 2). The Constitution
makes the indigenous languages official (art.
48) and guarantees the right to communal property
in the lands of the peasant and native communities
(art. 88), whose legal existence and capacity
it recognizes (art. 89). It allows the authorities
of the native communities to exercise judicial
functions pursuant to their customary law
within their territory (art. 149).
The Constitution of Bolivia (1994) expressly
indicates that the ESC rights of the indigenous
peoples, especially in respect of their community
lands, are to be recognized, respected and
protected by law, guaranteeing the use and
sustainable exploitation of natural resources,
as well as protection of the peoples
identity, values, languages, customs and institutions
(art. 171). In addition, it notes that the
Bolivian state recognizes the legal standing
and natural authorities of the indigenous
communities to perform the functions entailed
in administering and enforcing their own laws,
as an alternative means of resolving disputes,
based on their uses and customs (art. 171).
Mechanisms to Protect and Implement the
Rights of Indigenous Peoples
International mechanisms
United Nations Working Group on Indigenous
Populations
The United Nations Working Group on Indigenous
Populations was created in 1982 to promote the
protection of the rights of indigenous peoples
worldwide. The working group holds regular
sessions each year, normally in July and August,
at UN headquarters in Geneva. During these
sessions, it examines, together with experts,
the human rights situation of indigenous peoples
worldwide. Indigenous organizations have the
opportunity to participate and to submit their
reports and complaints, which are processed
by the working group.
One fundamental task of the working group in
recent years has been to prepare the Draft Universal
Declaration of the Rights of Indigenous Peoples,
which is under discussion in several organs
of the United Nations and is ultimately to be
submitted to the General Assembly. Though as
a declaration it will not be binding, it should
provide guidance for national legislation on
indigenous rights. The World Council of Indigenous
Peoples has said that the Draft Declaration
is largely a progressive declaration, especially
given the broader political context of some
of its provisions, self-determination and
land rights in particular. . . . One of the
most important aspects of the draft with respect
to lands and territories is in the provision
on ethnocide (art. b), which recognizes that
actions that have the objective and
effect of dispossession and depriving
the indigenous peoples of their lands, territories
and resources is tantamount to cultural genocide,
or ethnocide.10
Other United Nations bodies
Other organs in the United Nations may be used
to defend the rights of indigenous peoples.
These include the Committee on the Elimination
of Racial Discrimination (CERD), the Human Rights
Committee and the general mechanisms of the
ILO for examining complaints under Conventions
107 and 169. The CERD, the supervisory organ
of the International Convention on the Elimination
of All Forms of Racial Discrimination, examines
violations of the collective rights of the indigenous
peoples, in so far as they constitute discrimination
against these peoples. Under article 9 of the
convention, states are required to submit reports
every two years on their compliance with the
convention and on the legislative, judicial
and administrative steps they have taken; after
examining the reports the CERD may make general
suggestions and recommendations. One mechanism
for indigenous peoples participation is
the submission of their own reports, parallel
to those submitted by the states, to enable
the CERD to compare the information presented
by the states with the information presented
by the indigenous peoples and their organizations.
Indigenous communities may also submit complaints
to the Human Rights Committee of the United
Nations to seek pro-tection when faced with
situ-ations that violate their funda-mental
rights. The committee has received and processed
violations of rights such as the right to self-determination,
belonging to an indigenous people, and rights
over land and territories. The committee has
made important pronounce-ments in its decisions.11
Patents and Cultural
Rights
In November 1999 the US Patent and Trademark
Office (PTO) reexamined and rejected a
1986 patent claim by a US citizen to the
Ayahuasca plant, which has religious uses
among the groups indigenous to the Amazon.
The claim had been challenged by indigenous
tribes from several Amazonian countries
grouped in the Coordinating Body of Indigenous
Organizations of the Amazon (COICA), along
with the Coalition for the Amazonian Peoples
and their Environment and the Center for
International Environmental Law (CIEL).
The PTO ruling was grounded on the scientific
finding that the 1986 claim described
cultivars that could not be distinguished
from others previously described. The
ruling helps to forestall the private
appropriation, outside of their communities,
of the potential economic benefit to be
derived from centuries-old traditions
of tribal and indigenous peoples, as well
as the commodification of traditional
cultural values.12
|
Regional mechanisms
Inter-American System for the Protection
of Human Rights
There are two bodies within the Inter-American
system that can be used to defend indigenous
peoples rightsthe Inter-American
Commission on Human Rights and the Inter-American
Court of Human Rights. (See Module 30 for further
discussion on remedies available in the Inter-American
system.)
The Inter-American Commission on Human Rights
has made visits to various countries in response
to grave violations of the rights of indigenous
peoples and has issued reports on those particular
situations in the cases of Guatemala (1981,
1983, 1985,1993); Bolivia (1981); Suriname (1983,
1985); Nicaragua (1983); and Colombia (1981,
1993). With respect to the petitions in individual
cases alleging violations of the rights of indigenous
peoples, the commission has examined cases in
several countries, such as the case of the Guahibos
in Colombia, the Aché in Paraguay, the Yanomami
in Brazil and the Miskitu in Nicaragua.13
Because of the importance of the resolution
handed down by the commission in the case of
the Yanomamis of Brazil (1985), on the protection
for the ESC rights of indigenous peoples, we
cite some of the key sections. The case concerned
the grave situation and gradual death of the
Yanomamis due to the building of roads in their
territory, prospecting and other activities
on their lands, all to the detriment of their
health as well as cultural and spiritual integrity.
The commission noted in its decision that
the violations alleged originate in the construction
of the Transamazonian highway, BR-210, which
runs through the territories of indigenous
peoples; in the failure to create the Yanomami
park for the protection of the cultural heritage
of this indigenous group; in the authorization
to exploit the wealth of the subsoil of indigenous
territories; in allowing the massive penetration
in the indigenous territory of newcomers who
carry diseases . . . and in not ensuring the
medical care essential for the persons affected
and finally for proceeding to displace the
Indians from their ancestral lands.14
In that decision, the commission declared that
the government of Brazil was responsible for
the violation of several rights, including the
right to preservation of health and well-being,
and it recommended that the government adopt
preventive and curative health measures to protect
the life and health of the indigenous peoples,
and that pursuant to its legislation it should
proceed to delimit and demarcate ancestral lands.
In addition, the commission recommended that
the government adopt various measures to protect
the land against, among others, gold prospectors,
known as garimpeiros, who had invaded
the Yanomamis territory by the thousands.
The decision also underscores the responsibility
of the Brazilian state for failing to adopt
measures in a timely and effective manner to
protect the human rights of the Yanomami. This
means that states may incur responsibility not
only for their acts but also for their omissions,
when they fail to adopt protective measures.
Referring to this case, one author has noted:
On linking the violation of the human rights
of the Yanomami directly to the violation
of the right to land, the Commission took
an important step towards the eventual recognition
of the right of indigenous peoples to their
traditional lands, as an intrinsic element
of the international norms in place.15
Another important case that demonstrates the
real possibilities of the Inter-American system
is the petition against the Paraguayan government
with respect to the grave situation of the Enxet
indigenous communities in the Chaco region of
Paraguay and the illegal occupation of their
ancestral lands. This case was brought before
the Inter-American Commission on Human Rights
in December 1996 by the Center for Justice and
International Law (CEJIL) and Fundación Tierra
Viva. In the framework of a friendly settlement
proposed by the commission, the Paraguayan government
recognized the arguments presented and organized
a plan for the recovery of these communities
lands, which included economic investment.
The case alleged a violation of the indigenous
communities right to land recognized by
the Paraguayan Constitution, drawing on article
29 of the American Convention on Human Rights,
which establishes that when a right is incorporated
in the domestic law, especially in the Constitution,
it is possible to allege that right before the
Inter-American system. It was thus possible
to turn to the Inter-American system to argue
a violation of the right to land recognized
in a domestic legal system.
National mechanisms
Each nation-state with an indigenous population
has both administrative and judicial mechanisms
for defending and protecting the rights of indigenous
peoples. As regards judicial procedures, most
of the constitutions in Latin America establish
mechanisms for the effective protection of citizens
rights known as acciones de amparo or
acciones de tutela. These remedies can
be used by indigenous peoples to protect their
specific rights.
One especially interesting example of the use
of this mechanism is found in Colombia, where
there is a constitutional court that takes cognizance
of violations of rights recognized in the Constitution.
The indigenous organizations of Colombia have
turned to this court several times, bringing
acciones de tutela, alleging the violation
of their rights to the land and to cultural
diversity within the Colombian nation. In several
cases the constitutional court has issued opinions
favorable to the constitutional protection of
indigenous rights. In a 1993 decision which
resulted from an acción de tutela brought
by the Organización Indígena de Colombia
on behalf of the Embera-Katío indigenous community
against the Corporación Nacional de Desarrollo
and the Compañía de Maderas del Darién,
indigenous rights were recognized and protected.
It was deemed that the omission by the Corporación
and the acts of the Compañía violated
and threatened the fundamental rights of the
indigenous community. These included the rights
to life, work, property, ethnic integrityboth
cultural and territorialthe right to the
special protection of the state as an ethnic
group, as well as the rights set forth in international
treaties on indigenous peoples, such as ILO
Convention No. 169, ratified as domestic law.
The acts had to do with logging in the indigenous
territory by the company, and the omissions
were those of the corporation in failing to
adequately consider the environmental and cultural
harm being caused. This judgment highlights
the violation of ESC rights of the indigenous
peoples:
The judge, in the exercise of the constitutional
jurisdiction, finally established the violation
of and threat to the rights to work, to integrity,
to special protection as an ethnic group .
. . since the devastation of part of the forests
of the indigenous resguardo, in his
view, made their working conditions more burdensome,
injured their cultural and territorial identity,
and seriously endangered their traditional
mode of production.16
Author: The author of this module is
Luis Jesús Bello.
USING
MODULE 6 IN A TRAINING PROGRAM
NOTES
1. United Nations Development
Programme, Human Development Report 1997,
43.
2. International Labour Organization,
Convention No. 169 concerning Indigenous and
Tribal Peoples in Independent Countries, 1989,
article 1.
3.
Edelberto Torres Rivas, Consideraciones
sobre la condición indígena en América Latina
y los derechos humanos, (San José:
Inter-American Institute of Human Rights,
1996), 403.
4. Jorge Dandler, Hacia
un Orden Jurídico de Diversidad, in
De Amerindia hacia el tercer milenio, Instituto
Nacional Indigenista (UNESCO-INI, 1991),
59.
5. Agencia Latinoamericana
de Información, Servicio Informativ.
No. 238 (August 1996), 14.
6. Arundhati
Roy, The Cost of Living (London: Flamingo,
1999), 15-16.
7. Iturralde y Diego, Los
pueblos indígenas y sus derechos en América
Latina, Revista Justicia y Paz,
Centro de Derechos Humanos Fray Francisco
de Vitoria, no. 25 (May 1992), 21.
8. See Madhu
Kishwar vs. State of Bihar (1992) 1 Supreme
Court Cases 102.
9. See Nandita
Haksar, Human Rights Lawyering: A Feminist
Perspective, in Engendering Law:
Essays in Honour of Lotika Sarkar, eds.
Amita Khanda and Archana Parashar, (Lucknow:
EBC, 1999).
10. World Council of Indigenous
Peoples, UN Draft Declaration on the Rights
of Indigenous Peoples, (Ottawa, 1994, mimeographed).
11. Daniel
ODonnell, Protección internacional
de los derechos humanos, Comisión Andina de
Juristas-Fundación Friedrich Naumann,
2nd ed. (Lima, 1989), 354-357.
12. Taken
from Patent on Sacred Plant Revoked,
Colombia Update 11, nos. 3 and 4 (Winter/Spring
2000): 21.
13. Shelton
H. Davis, Land Rights and Indigenous People:
The Role of the Inter-American Commission
on Human Rights (Cambridge, 1988).
14. Inter-American
Commission on Human Rights, Coulter et
al., Resolution No. 12/85, Case 7615,
Brazil, 5 March 5 1985, OAS/Ser.L/V/II.66,
doc.10 rev 1, 1 October 1985, 4-34.
15. ODonnell,
op. cit., 364.
16. Ibid.
|