PREPARATORY DOCUMENTS FOR THE
DRAFT AMERICAN DECLARATION OF THE INDIGENOUS PEOPLES
DOCUMENT 5. REPORT ON THE FIRST ROUND OF CONSULTATIONS CONCERNING
THE FUTURE INTER-AMERICAN LEGAL INSTRUMENT ON INDIGENOUS
In 1992, the IACHR sent a questionnaire to the governments of all the member States and to a long list of indigenous and intergovernmental institutions, to ask their opinion as to the issues and approaches that the future instrument should include, preparation of which was entrusted to the Commission by the General Assembly (AG/RES.1022 (XIX-0/89).
In keeping with the method approved by the Commission and reported in its 1991 Annual Report, the following is a summary of the responses received. These responses have come from the governments of Canada, Chile, Colombia, Costa Rica, Guatemala, Mexico, Panama, Peru, Saint Lucia, the United States and Venezuela and from the following intergovernmental organizations: A.E.K. Consultorio Jurídico Pueblos Indígenas de Panamá, Colonizadores del Trópico Boliviano, the Andean Commission of Jurists (Peru), the Consejo Regional Indígena del Cauca (Colombia), the Comisión Interamericana de Juristas Indígenas (Steering Office in Argentina), the Centro de Estudios Aymaras Quechuas (Bolivia), Fundación Comunidades Colombianas, the Assembly of First Nations (Canada), the Council of Crees (Canada), the Indigenous Bar Association of Canada, the World Council of Indigenous Peoples (international), the Center for Indigenous Culture (Brazil), the MARKA Center (Peru), the Comisión Jurídica de los Pueblos de Integración Tawantinsuyana (Peru), the Fundación del Aborigen Argentino (Argentina), the CINAMI A.C. Central Nacional de Ayuda a las Misiones Indígenas (Mexico), SER A.C. Servicios del Pueblo Mixe (Mexico), the Vicaría de Solidaridad de la Prelatura de Ayaviri (Peru), Inuit Tapirisat of Canada and the Indian Law Resource Center (U.S.). The Commission would like to thank the Inter-American Institute of Human Rights for its cooperation and all those governments and organizations that answered the questionnaire.
This summary is organized along the general lines of the questionnaire, which was based on the rights contained in the American Convention. It begins with some general observations (points 1 to 3) and then moves on to the individual rights and their guarantees (points 4 to 24). It ends with the replies received concerning collective rights (points 25 to 44). For comparative purposes, the replies received from the governments to the survey are summarized under each right; the countries' replies are followed by a summary of the replies received from the indigenous organizations, and then those received from the intergovernmental organizations, summary that does not necessarily record the position of each individual group or organization. This method will be useful to the government officials that concern themselves with this issue and the indigenous organizations working in this field. Thus, the areas of agreement and disagreement can be easily discerned.
The hope is that this report will show the progress that has been achieved in many countries, and also the challenges that remain to be conquered. The Commission believes this method will be helpful in preparing a preliminary draft instrument on the human rights of indigenous people and subsequent consultations thereon.
1. Thoughts on the instrument itself
In their replies, a number of countries elaborated upon their answers by expressing their views on what the strategy for the content of the instrument should be and how it should be organized. Costa Rica indicated a preference for a general reference to the human rights already recognized in conventions in force in the region, followed by those unique to the indigenous communities, rather than a complex, tiresome enumeration that would simply duplicate existing instruments.
Mexico was of the view that the proposed instrument should be geared to promoting the rights to development, social and cultural rights, the right to observe traditions, customs and forms of social organization, postulated within the framework of collective rights so as to avoid any conflict with the rights of other sectors of individuals that might create some form of privileged or subordinate status.
Several countries reaffirmed how important it was to take into account ILO Convention 169 and the proposed Declaration and Principles that the United Nations Commission on Human Rights is preparing.
Colombia recalled developments in the evolution of the OAS' philosophy, in particular the IACHR's pronouncements as to the States' commitment to protect the survival of indigenous populations, the need to train public officials who interact with them, the importance of land ownership and recognition of their cultural rights.
For its part, Venezuela reaffirms its adherence to and observance of human rights and its constitutional duty to preserve social equality and equality before the law, without discrimination based on race. It notes that preparation of a special instrument on the rights of indigenous populations might risk violating the spirit, purpose and logic of the existing inter-American instruments on human rights. It is aware, however, that just as its own Constitution does on the domestic front, a special international system of protection could be created that is responsive to the special characteristics and lifestyles of indigenous populations. It will advocate such a system as long as no privilege, distinction or anything detrimental to the harmony of the State and legal and social equality is created.
Guatemala states that a number of the rights listed in the questionnaire are already recognized and guaranteed under existing international instruments and should not, therefore, be repeated.
Chile is of the view that an international declaration on the rights of indigenous populations ought not to be a duplication of existing international declarations and covenants on human rights; instead, it should concern those rights that, by their nature, specifically pertain to indigenous populations, tribes and persons.
Canada stated that an instrument of this nature ought to provide tangible benefits and protection to the indigenous people; it must be unambiguous and its purpose must be very clear. It should reflect a balanced consideration of the rights of third parties and governments. Canada believes that the instrument should be the product of a wide consensus and that its purpose should be to expound upon the economic, social and cultural rights of indigenous populations.
The United States says that for now, it will reserve its judgment about whether an instrument of this nature is really necessary. Instead, it prefers to wait to see the other members States' replies and to examine what impact the existing instruments have on this area.
Overall, the indigenous organizations believe that an instrument of this kind should, first and foremost, clarify the relationship between each Nation-State and those universal rights that apply to all inhabitants of their territories, especially those rights that protect the survival of indigenous groups. In drafting the instrument, the problems, needs and aspirations of the indigenous populations must be the major consideration and indigenous populations must participate directly and extensively.
By the same token, the new instrument ought not to contain values, principles, rights and guarantees already governed under international human rights treaties; instead, it should focus only on those aspects that are part of the life, history, philosophy and aspirations of indigenous populations and their legal, political, economic and social processes. These indigenous organizations emphasize the need for very precise legal provisions that lend themselves to only one interpretation.
Both international organizations are of the view that the method adopted to prepare this instrument allows for thorough consultations with all interested parties. They specifically note the decision to consult indigenous organizations.
2. Ideas for the preamble
Panama stated that even though provisions of its Constitution and international conventions guarantee human rights without discrimination, in practice these rights are of no direct benefit to the indigenous populations and are not responsive to their idiosyncrasies, their disadvantages and, above all, their collective way of life.
Costa Rica states that for a variety of reasons, differences tend to arise between the public officials charged with safeguarding the interests of the indigenous communities and the communities themselves, and one of the objectives of the instrument must be to eliminate that friction. It also points out that indigenous cultures are slowly disappearing because of the agrarian problem, after of a history of being gradually stripped of their lands and constant violations of their claims even to territories that they have occupied since time immemorial. This has merely exacerbated the indigenous populations' dependency and economic impoverishment; hence, all sectors of society must be made aware of these issues and of the value of those cultures.
Costa Rica maintains that indigenous populations ought not to be forced to adopt lifestyles alien to them and involving radical and inappropriate changes or assimilation; instead, it should be the indigenous communities themselves that suggest the changes that will give them their stake in the development process that the rest of society is experiencing and that will raise their standard of living. The answers to the problems of indigenous populations must be in their hands.
At times, there is a cultural clash between a nation's laws and indigenous values; sometimes those laws do not carry compelling force in their minds. Costa Rica contends that scientific research into their lifestyles must be conducted and their cultural traditions objectively assessed.
Colombia underscores the importance of the economic, cultural-mythical relationship between the indigenous communities and their lands, a vital symbiotic relationship with the environment.
It also points out that the rights upheld in the eventual instrument should not be construed as a breach of the principle of equality and nondiscrimination; instead, they should be premised upon the fact that these are minorities and have special structural features in the political, economic and social realms.
Peru states that history has not protected the territorial rights of indigenous populations; their cultural and political rights are constantly denied, de facto more than de jure, by denying the autonomy of their forms of organization and their right to participate in the decisions of mainstream society without forsaking their own ethnic identity.
Peru stresses the need for a pluralistic democratic society that recognizes the multi-ethnic nature of our societies, extending that pluralism to political parties as well. Ethnic differences must be appreciated as a source of a nation's strength. Democracy must not be based on some false premise of uniformity or homogeneity that has nothing to do with reality. Such a democracy would be pure fiction and would threaten the hemisphere's political stability.
Peru also notes how ironic it is that the Andean and Meso-American Indians that domesticated and introduced to the world more than one hundred species of foods, such as potatoes and corn, should be among the most undernourished on earth. Centuries of subjugation and extreme poverty have left them with a meager, unbalanced diet that is high in carbohydrates but low in proteins, vitamins and minerals. Much of their rich food tradition is being lost and their invaluable traditional know-how is losing ground to urban lifestyles and practices. One of the governments' priorities must be to instill a new appreciation of this knowledge and help retrieve it and give it new life. A major part of this task is to change eating habits, one of the most intricate elements in the cultural dynamic.
Canada believes, that the instrument must have a well-defined statement of the obligations of the States and that any administrative and financial obligations that cannot be reasonably achieved should be avoided.
The indigenous organizations all feel that effective mechanisms must be established to ensure that the States respect the various rights recognized in the new instrument. They also believe it should make provision for swift procedures to be instituted should there be any violation or threat of a violation, and for effective sanctions. They also contend that there should be no privileges that give indigenous groups some advantage over the rest of society.
The intergovernmental organizations consulted note that the proposed instrument should make it very clear that all the rights and benefits established therein are in addition to--not in lieu of--those established by other applicable international instruments.
3. A definition of the term indigenous
In Costa Rica, for legal purposes indigenous populations are the descendants of the tribes or sub-tribes that inhabited the country at the time of the Spanish conquest and colonization and who today occupy certain isolated areas, live more in keeping with the social, economic and cultural institutions of that period than with the institutions elsewhere in the nation, are behind the rest of national public in terms of economic and social development and are governed, either in whole or in part, by their own customary law or by a special code.
Mexico, for its part, defines an ethnic society by the elements that go into giving it an identity of its own and that form its culture, including
A territory of its own historically speaking and exploitation thereof
Its own language
Its own methods of production, marketing objectives and patterns of consumption
Traditional ceremonial, political and social organization
Traditional dress, objects and adornments
Specific cottage and agricultural industries
Traditional medicine (today associated with the pharmaceutical industry)
A vision of the cosmos or philosophy and value system
Ceremonies -religious, civil and secular- and their instruments
Myths and legends; its own narrative
Education and transmission of culture
Canada is of the view that the term "indigenous" has to be defined in order to be clear about who it is that this instrument concerns. It adds that there is a definition in ILO Convention 169.
In Venezuela's opinion, the proper expression should be "indigenous communities," since the Venezuelan Constitution uses the term "people" [pueblo in Spanish] to refer to all inhabitants of the Venezuelan State.
Several indigenous organizations contend that the new instrument should speak of "Indigenous and Tribal Peoples" or simply "Indigenous populations", as that is the terminology of ILO Convention 169 and the terminology they accept; these indigenous organizations point out that in some international fora--including the U.N. Working Group, the terminology used is "indigenous populations", which is incorrect. They conclude by pointing out that the United Nations resolved that 1993 would be the international year of "indigenous populations", rather than "indigenous populations" and that the "Universal Declaration of the Rights of Indigenous populations" would be preferable to the "universal declaration of the rights of indigenous populations".
One intergovernmental organization believes that the term "Indian" is overly specific and may not be acceptable to all indigenous groups as it would exclude other native Americans. In its view, the proper term is "indigenous".
4. Rights and guarantees in general
Colombia, Guatemala and Mexico all maintain that it is important to include some reference to international human rights law that upholds the fundamental rights and guarantees that serve as the basis for the notion of the human person. Guatemala, however, adds that specific reference must be made to the State's obligation to guarantee free and full exercise of those fundamental rights and freedoms, without any form of discrimination, and to adopt the internal measures needed to guarantee and give effect to those rights and freedoms.
Those three countries and Costa Rica contend that the State must guarantee, effectively and without discrimination, the minimum necessities that the rest of society enjoys: education, health, housing and land.
Chile includes the right to bilingual, intercultural education, the right to honor, with specific reference to self-identity and protecting the honor of indigenous individuals so as to avoid any cultural affront; the right to a fair trial, emphasizing the economic and cultural factors that affect indigenous persons and groups, and making allowance for the special circumstances that may arise in legal proceedings when one of the parties is indigenous (language, customary law, etc.); the right to have a hand in public policies that affect them and the right to have their ancestral lands recognized.
Canada believes that the new instrument should consider those rights that are particularly important or unique to indigenous populations, adding that some issues should be given more consideration than they are now given in existing instruments. Included here would be the rights to culture, education, health and justice. It adds that an article on the obligation to respect rights, similar to Article 1 of the American Convention on Human Rights, would be appropriate, provided that the article stipulates that men and women shall enjoy the same rights.
The indigenous organizations in general replied that collective rights should be given priority consideration, with the obligation that States respect those rights already established (civil, social, political, economic, etc.) and guarantee their free exercise, without any form of discrimination. They favor the indigenous populations' effective participation in society as a whole, with no form of exclusion and a ban against any ethnocidal and ecocidal practices. They also believe that other rights should be added, such as the right to land and its resources, respect for cultural pluralism, for indigenous customary law and for linguistic differences. For these indigenous organizations, States must guarantee these rights by means of substantive laws and programs, which should be realized with full and active indigenous participation and no discrimination of any kind.
5. The right to recognition as a person before the law in the case of indigenous populations and their members
The countries were unanimous in the response on recognizing the right to recognition as a person before the law in the case of indigenous individuals.
As for the right to such recognition in the case of tribes or peoples, Mexico indicates that their right to manage their own affairs and the authority of their officials and institutions to represent them must be recognized.
Guatemala accepts it if it is defined as a set of attributes unique to an ethnic group: language, customs, beliefs, traditions, dress, etc., but not under the concept of "juristic personality" which would create an entity other than the group of individuals who comprise it. It adds that they should be recognized as persons before the law once they have proven the necessary legal requirements to obtain such status.
Colombia, on the other hand, states that indigenous groups and their members should be recognized as persons before the law as this guarantees them the right to act directly to defend their interests vis-a-vis the State and other sectors of society.
Chile believes it would be inadvisable to institutionalize indigenous populations to that degree. Instead, it should be their communities that have the right to be recognized as persons before the law.
Canada believes that the instrument should be worded in terms of individual rather than collective rights and adds that many of the rights it address will be occasioned by membership in an indigenous group. There should also be a clause recognizing that the members of an indigenous group have the rights by virtue of their membership in the group, as for example the right to live as a group. Canada also mentions that under the present self-governance agreement, indigenous governments are persons in their own right, distinct from the group members or citizens. This has advantages since as a person before the law the indigenous government can, for example, enter into contracts.
Peru points out that indigenous populations should be recognized as nations or subjects of international law provided they want to be so recognized and meet the basic requirements of a nation (a permanent population, an established territory, a government and the capacity to enter into relations with other States). It adds that no indigenous nation or group should be deemed to have fewer rights because it has not concluded treaties or agreements with any State; they should be accorded the degree of independence they desire, in accordance with international law. Peru also believes that no State should assert, reclaim or exercise jurisdiction over any indigenous nation or group or their territories unless there is a valid treaty or an agreement entered into freely with the legal representatives of the indigenous nation or group concerned. It concludes that any action by a State that violates the right of self-determination of an indigenous nation or group will fall under the jurisdiction of the existing international organizations.
Costa Rica points out that in the proposed instrument the States will agree upon the provisions to govern the legal personality of indigenous populations.
The indigenous organizations agree that indigenous populations must be explicitly recognized as persons before the law, as subjects with rights and able to assume obligations. These organizations believe that States must pass legislation to create a register wherein the various indigenous populations are formally inscribed; said register shall indicate that the indigenous or tribal people may exercise their personality, and that States must recognize their juristic personality in furtherance of pre-existing agreements with the tribal or indigenous people and their rights, all within the framework of participatory democracy. They point to the many nationalities of which multinational and multiethnic States are comprised. They also contend that the indigenous populations have the ability to govern themselves internally, by the rules of their culture. More importantly, recognizing indigenous tribes and peoples as persons before the law would strengthen the democratic system of government.
As for the right of association, the States couch this in terms of the complex Nation State/indigenous populations relationship.
Mexico maintains that the right of association and to membership in one's ethnic group, based on custom, should be recognized.
Colombia suggests that some reference be made to those types of organization that are native to each community. Recognition of this right, it says, implies the State-indigenous community relationship, one that is in various stages of development in the region. The trend is toward greater autonomy, equity and negotiated agreement, which makes it all that more important to include the right of association in this instrument.
Chile believes that the instrument should recognize the right of association in a manner consistent with the traditional forms of association, and accordingly would use a formula that recognizes indigenous communities as persons before the law by virtue of their being social organizations composed of individuals belonging to the same indigenous culture, united because their lands are part of a common deed or because they belong to the same family line or acknowledge the same traditional chieftain. The international instrument should also make it possible for indigenous communities to be recognized as persons before the law based on their own forms of association and hierarchy.
Canada is of the view that freedom of association might make special reference to indigenous self-governance, and concludes that any possible relationship between this right and indigenous families is unclear.
In general the indigenous organizations maintain that the legal-political guarantees for an indigenous population's economic, social and political development must also be granted. The State must accept forms of association that are for specifically indigenous purposes and organization styles and methods of operating other than those provided for in the national laws, based instead on indigenous law, tradition and cultural values. The instrument must expressly stipulated that the indigenous population is not to be subject to any form of compulsory association.
One intergovernmental organization expresses the view that freedom of association ought not to be linked to the indigenous family.
6. Humane physical, mental and moral treatment and prohibition of cruel or degrading treatment or punishment
Guatemala, Chile and Colombia were of the view that since this individual right is recognized in other instruments, it need not be duplicated here.
Mexico believes that some reference should be made to this issue, since indigenous people sometimes are unaware of national positive law; there must be rules to prohibit unfair trials where the individual has neither a defense attorney nor an interpreter.
Peru believes that the instrument should stipulate that indigenous populations' institutions and decisions, like those of States, must observe internationally accepted individual and collective human rights; hence, any form of cruel or degrading punishment that their traditional systems of justice may still allow must be banned.
Colombia believes it is important that these rights be included, provided great care is taken to interpret what constitutes cruel or degrading treatment and to define what constitutes human dignity, while taking into consideration those cultural traditions that may be different from those of society as a whole.
Canada believes that this is every individual's inalienable right and it is, therefore, inconceivable that indigenous people will have the right in a special form. However, there is a particular history of abuse of a right, it might be mentioned in a general statement of rights, or even in a separate article.
The indigenous organizations believe that this right must be expressly included in the new instrument. They regard its violation as a form of ethnocide, whether by the State, religion or society itself. They add that there should be an explicit reference to the right to have one's spiritual integrity respected. Several indigenous organizations suggested that capital punishment be abolished and that attempts at assimilation cease.
The foregoing notwithstanding, one specialized organization (the Andean Commission of Jurists) believes that any reference to this in the instrument would be needless duplication, since it is a right that applies to the community as a whole, and no distinction need be made. The Commission does, however, note that some reference should be made to any exploitation of natural resources that exploits indigenous populations as well and forces them to live in degrading and inhuman conditions.
With reference to the second part of the question (prohibition of cruel or degrading treatment or punishment), the indigenous organizations note that in the States' legal proceedings the execution of a sentence or punishment ought not to be confused with the indiscriminate practice of torture; hence, it would be best to enforce indigenous customary law, as the indigenous person lives in another milieu and has only a rudimentary understanding of the laws of a country. The idea must be to recognize and respect cultural diversity at all times.
7. Right to personal liberty and security
Mexico states that even though this right is covered under its domestic laws, the indigenous populations' customary law should be considered.
Chile believes that all persons must be guaranteed these rights, without distinction.
Peru and Canada are of the view that a specific reference to the right to personal liberty and security will be appropriate in this instrument.
Colombia and Guatemala, on the other hand, contend that this right is already recognized in other international instruments and there should be no duplication.
As for the indigenous organizations, they all believe it is important for the new instrument to note that for many indigenous populations the meaning of the word "liberty" is not the generally accepted one. When it comes to the issue of what constitutes "liberty" for these sectors of society, therefore, the instrument must make allowance for some acceptances that are broader and others that are narrower.
On a more practical note, one organization (the Aymara Quechua Students Association) considers that indigenous persons should be penalized according to their own customary laws; thus, when an indigenous person is arrested and his/her domicile is in his/her community, then the individual in question should be remanded to his/her place of origin within 24 hours.
Along these same lines, several indigenous organizations suggested that some provision be made for "internal exile" and the "administrative neglect" that victimize indigenous populations, such as abduction and enforced disappearance by government security forces and paramilitary groups, and attempts at religious, ideological, political and cultural coercion by systems that have contributed to genocidal and ethnocidal practices against tribunal and indigenous populations. They believe effective mechanisms must be put into place to guarantee full respect for everyone's personal liberty and safety, including that of indigenous populations.
8. Prohibition of slavery, servitude or forced labor
Peru argues for a provision to expressly prohibit the practice of forcing indigenous persons to work without their consent, to ban any form of force or coercion, and to guarantee equal pay for equal work, access to jobs at all levels and the right to social security.
Colombia also mentions the need to include such a prohibition, considering the social vulnerability to which indigenous persons are exposed because they are different and/or not dominant.
Mexico, Chile, Canada and Guatemala indicate that these prohibitions are covered in existing international instruments. Chile and Canada add that a provision of this nature could only be included if it took into account the idiosyncrasies of each people or the special needs of indigenous persons.
On the whole, indigenous organizations believe that these practices and others like them should be expressly prohibited by the new instrument, particularly in reference to indigenous women who are the victims of sexual abuse, the theft of the indigenous populations' lands and rights and the forced removal of those peoples on the pretext of building hydroelectric, tourist and other public works, which are disguised forms of slavery which the State must prevent. They add that before an indigenous person takes a job, he/she should be advised of his/her labor rights and receive a fair wage. The new instrument should also stipulate that collective labor, called tequia or faena, is not to be regarded as forced labor since it is performed on the basis of an agreement entered into as a group, by group consensus and in keeping with indigenous custom and practice.
9. Right to safeguarding honor and dignity
Colombia points out that as in the case of cruel and degrading treatment, many ancestral indigenous practices are viewed by society at large as violating honor and dignity; the cultural milieu has to be considered when interpreting this right.
Colombia also notes that outside these communities many things may be done to disregard, discredit, disparage or misrepresent their lifestyles, using images and perspectives that are demeaning to them. The instrument should limit or ban such practices.
Peru notes that in keeping with Article 11 of the American Convention, the new instrument should specifically state that customs must be respected and that judges shall take them into account when deciding cases involving violations of the right to privacy.
For its part, Chile points out that the right to privacy and to self identity should be a part of all constitutions and of the proposed instrument under examination here.
Canada maintains that the right to privacy could be included, in a new instrument insofar as it relates to the special needs of indigenous populations.
In general, the indigenous organizations' reply was that this right should be expressly included in the new instrument. They emphasized that the word "Indian" or "indigenous" should not be charged with hatred or used to insult or mock. Their private life, their families, and their domicile should be respected and any unlawful attacks on their honor and reputation should be prohibited. They add that everywhere they live, indigenous populations' cultural values and customary law, the memory of their ancestors, their museums, monuments, sacred cemeteries and other living testimony to the individual, family and social life of the people or peoples must be respected and the discriminatory practices and behavior hidden in many aspects of a society's daily life must be eradicated.
10. Freedom of conscience and of worship
All the countries note that their domestic laws provide for freedom of conscience and of worship. Colombia adds that in view of the attempts at systematic religious conversion, it might be best to include some reference to protection of this individual and collective right. It points out that in the course of the internal inquiries made to complete the questionnaire, cases were examined in which members of religious groups were trying to take advantage of circumstances, instilling in the indigenous communities, through deceit and fear, religious beliefs and practices alien to their traditions, thereby undermining their own religious authorities and beliefs Colombia suggests that indigenous populations should be free to decide which outside agents they will admit in, basing that decision on truthful information sufficient to make a free and informed choice about any change in their beliefs system.
Chile is of the view that in the new instrument, the States should agree upon a way to combine the notion of religious freedom with that of preservation of native cultures.
Canada says that historical experience shows that some mention should be made of this freedom to enable indigenous people to practice their religion.
Indigenous organizations in general agree that freedom of conscience and worship must be respected; that States must preserve the indigenous populations' freedom of conscience and religion, and repeal any legislation that imposes religions or philosophical beliefs that are hostile to the indigenous populations' existence on their territories; accordingly, no religious institution or sect can impose its religion against the will of the people. The individual or collective beliefs of indigenous persons and their spirituality and ancestral rites must be recognized, as must their right to preach and practice those traditional beliefs.
11. Freedom of thought and of expression
Mexico, Peru and Colombia concur on the need for express reference to freedom of thought and expression. Colombia attaches particular importance to this freedom since the potential to develop and reproduce their ancestral expressions, so important to their survival as unique groups within society, depends upon the exercise of this right.
Peru elaborated by stating that this right should include the opportunity to exchange information and ideas by whatever means, regardless of national borders, and the right to introduce in the international community concepts and ideas that follow from indigenous principles.
Mexico points out that when compared to the rest of the population indigenous populations have historically had little access to national information. Law codes, especially the constitutions, should be available in the indigenous languages and there should be programs to foster communications between indigenous and non-indigenous persons, engendering a mutual respect for cultural differences and a rich exchange of information.
Chile adds that the States must make provision for the suppression of racial hatred.
Canada believes that this right must figure in the new instrument, but as it pertains to the special needs of indigenous persons, adding educational measures intended to eliminate prejudice of the general population.
The indigenous organizations in general replied that this right should also include the guarantee that sufficient means of expression will exist to ensure the indigenous population is not outside the mainstream; they add that the freedom of thought and of expression of the indigenous populations must be according to their view of the cosmos. This right should also embrace cultural practices; these expressions may be in native orthographies and languages. They note that freedom of expression is essential to the exercise of political rights and should be respected even when a state of emergency has been declared.
12. Right of assembly
Mexico, Chile and Colombia believe this right should be included in the proposed instrument, especially where indigenous ceremony is concerned. Mexico and Chile, however, believe that this right should also mean respect for the sacred areas where the communities perform these ceremonies.
Colombia underscores the importance of this right to enable people to voice their concerns and grievances directly. It therefore believes that this right should be guaranteed with as few exceptions and qualifiers as possible. It indicates that the phrase "without arms" in Article 15 of the American Convention ought not to be interpreted as referring to instruments that, though they could be mistaken for arms, are in fact everyday tools or items that serve a purely ritualistic purpose in traditional ceremonies.
Canada is of the view that the new instrument must mention the right of assembly, since indigenous persons have special needs in relation to its application. It adds that this right is important in the exercise of indigenous self-government.
The indigenous organizations agree that this right must mean that indigenous populations are free to assemble according to their uses, customs, ancestral traditions, beliefs, religions, etc, and in their customary places. They add that implicit in this right should be the right to defend the communal territory which the State has guaranteed to them through indigenous customary law or positive law.
The foregoing notwithstanding, the Andean Commission of Jurists points out that the rights and limitations should be the same as those recognized in the American Convention in respect to all persons and members of a national group.
13. Rights of the family
Mexico maintains that the right to traditional matrimonial and kinship relationships should be recognized.
Chile, likewise, believes that the instrument must recognize the various systems that indigenous customary law uses to establish lawful paternity/maternity.
Canada, for its part, believes that the instrument should contain some provision related to custom adoption; it adds that in cases of adoption, family breakdown and other similar matters of that nature, the "best interests" of the child must be gauged by the interests of the individual, family and community and that some provision to that effect should be included.
Several indigenous organizations replied that the culture and customs for establishing families must be considered; indigenous marriage should be considered to have the same legal effects as civil or ecclesiastical marriage. This right should also include respect for the modus vivendi of indigenous populations. They add that the State must provide families with counseling on family planning, hygiene, etc. States must pass legislation to ensure that indigenous families are not torn apart and establish penalties against those who would traffic in indigenous children or remove them to other milieu on the pretext of providing them with different living conditions. These laws must also protect the physical, moral and cultural health of the families that make up the larger tribal family.
14. Right to a name
Colombia, Costa Rica, Mexico and Peru are all of the opinion that this right should be included to clarify specific situations that should be protected. Colombia emphasizes the "cultural-mythical" importance that many communities attach to having their "native" or "ancestral" name revealed outside the community or even within it. This means that some indigenous people may have two names so as not to have to reveal or renounce the traditional name; they use the second name to identify themselves outside their community when exercising their political or civil rights: for property deeds, voting in national elections, etc. In Colombia's case, these considerations and developments have acquired added importance at the present time, with creation of the Indigenous Territorial Entities and the fact that the functions of indigenous authorities have been expanded to include such areas as independent resource management and court functions. It contends that other communities whose value system is different and that are more actively engaged with society as a whole, have claimed the right to use their ancestral name in all activities, both within and outside the community, and have filed the necessary petitions with the appropriate authorities.
Costa Rica argues that the indigenous person must have the right to retain his/her native or natural name, and not be forced to change it for linguistic reasons.
Mexico recalls that the traditional legal systems have a very different notion of the right of family whereby entire indigenous populations use the names of their ancestors as surnames. Peru contends that including the right to call oneself by one's own name ties in with the right to state one's identity freely and openly, an ethnic and cultural characteristic.
Chile believes the instrument should include a norm that ensures respect for and preservation of indigenous surnames, to protect against enforced "hispanization".
Canada maintains that the recognition of indigenous names for groups and place names might also be considered.
The indigenous organizations all agree that the authorities must respect this right, inasmuch as every indigenous people has the right to demand that its original name be respected and to change or eliminate those names that are not to its liking, either because they were forced upon it, are not in its native language or are a convenience for statistical or official identification. They contend that the necessary precautions must be taken for adoptions, lack of documents and other problems of that nature.
15. Rights of the child
All the countries report on their child protection laws in general, which apply with equal force to indigenous children as well. Colombia points out the special protection provided by specialized agencies for the adoption of indigenous minors, primarily intended to keep them within or reinstate them to their native community, in keeping with the latter's customs and practices so long as those practices are not inimical to the child's best interests. It also points out the special protection against child labor whereby one must secure authorization from the local government or indigenous authorities in order to hire indigenous minors. It points out that it is the right of indigenous minors to have State or private education respect their traditions, language and culture. Colombia also notes that judges and civil servants that deal with the affairs of indigenous minors must take into account their uses, customs and traditions, and consult with the traditional authorities.
Mexico believes it is important to include the child's inalienable right to education in his/her native language, history and culture, as part of the academic curriculum, without having to forsake his/her right to subsequent education in the national and universal language and culture.
Chile believes that this issue ties in with the right of parents to educate their children in the values and languages of their people; accordingly, the educational system must encourage the child to be proud of being an indigenous person and to study his/her own history.
Canada points out that the instrument must recognize the child's right to enjoy his/her own culture, profess his/her religion and use his/her own language with other members of the group.
A number of indigenous organizations reply that the new instrument should explicitly prohibit the traffic in indigenous children and their unlawful adoption. The child must enjoy the rights recognized in the proposed instrument, receive a bilingual education from properly trained teachers in the child's native language community, and be given the protection that communal life dictates.
16. Right to nationality
The countries state that this right is guaranteed under their laws and there need be no specific reference to it in the future instrument.
Canada, however, believes that the instrument could include provisions on specific situations can be identified regarding the application of this right for individuals, then reference might be made to indigenous people.
The indigenous organizations in general maintain that the pluri-nationality of our countries must be recognized as must the right of nationality of an indigenous people or ethnic group, and that the State must guarantee the national and cultural identity of that people or ethnic group. In the case of border territories, the possibility of dual nationality should be considered. Several indigenous organizations add that the States must grant citizenship to indigenous individuals from different tribes or peoples if they meet the commonly accepted citizenship requirements; the expulsion of indigenous persons from neighboring States on the pretext that they carry disease must be banned. They conclude by observing that nationality comes by way of the indigenous nations or peoples, while citizenship is something the State grants to its inhabitants. The notions of "citizenship" and "nationality" must not be confused.
17. Right to private property and to its use and enjoyment
Although this right is in general guaranteed under all the legal systems, Mexico and Costa Rica stress the importance of including it in the proposed instrument. Mexico argues that the territorial rights and the right to individual and collective property must be respected. Given the fact that the indigenous populations' principal problems are related to agrarian disputes, Mexico believes that their legal practices and customs should be factors when finding a legal settlement to these disputes.
Costa Rica believes that there must be guarantees in the instrument to ensure development on indigenous reservations that protect the indigenous populations' right to their ancestral lands.
Chile believes that the instrument should allow for organizational arrangements that are consistent with indigenous customs.
Canada notes that this right must be considered in respect of indigenous persons as well. It believes that the intellectual property rights of indigenous persons and their cultural property must be considered in other fora.
In general, the indigenous organizations are of the view that private property, as conceived in the civil codes, is not compatible with the theory and practice of collective property among indigenous populations as their means to guarantee the use and enjoyment of the family property. A State must guarantee collective property when it recognizes an indigenous people's ownership of the land it has occupied since time immemorial and its ownership of the natural resources that land holds. The State must also establish the means to return those resources to the indigenous populations. The indigenous population must have full rights to use, enjoy and profit by their movable property and real estate. This, too, must be guaranteed and recognized by the State.
18. Freedom of movement and residence
Mexico, Peru and Colombia are of the view the instrument should include special provisions to uphold this right, though Mexico also believes that it must tie in with indigenous customs by guaranteeing freedom of movement for such customary practices as pilgrimages to sacred places across national borders.
Peru believes that the indigenous populations' right to self determination includes the freedom of move about and reside in their territories, the legal rights of society in general notwithstanding.
Colombia points out that there are well-known cases where entire indigenous populations have been uprooted from their ancestral lands on grounds not allowed under the American Convention; given that fact, Colombia believes that there should be language in the instrument to prohibit such situations. The paramount objective is to protect indigenous populations from being uprooted from their ancestral lands for reasons that have nothing to do with the community's own interests and accomplished by means of deception or intimidation.
Chile is of the view that the proposed instrument should make explicit reference to indigenous persons' freedom of movement.
Canada observes that special considerations should be included for some indigenous populations; while indigenous and non-indigenous persons should be able to move lawfully about the territory of the State, reservations -in Canada and other countries place certain restrictions on the ability of people to take up residence.
Several indigenous organizations note that the new instrument should recognize this right and should explicitly provide that no indigenous people shall be uprooted and/or eradicated from its territory without its consent; if its relocation is necessary, it should be compensated and sent to places that are ecologically similar. The instrument should also recognize the indigenous person's right to move about his/her national territory freely, that States must respect the habitat or territory where indigenous populations reside and even grant them the right to cross the borders between States for cultural, religious or economic reasons.
The foregoing notwithstanding, the Andean Commission of Jurists believes that as a statutory frame of reference, the protection afforded by existing international treaties is sufficient.
19. Political rights: the right to vote and to be elected to public office and to participate in public affairs.
The responses indicate that indigenous populations have the same right to participate in political life as other citizens of the State.
Costa Rica believes that the electorate chooses those who will govern, and the governing may under no circumstances be divided into ethnic groups. Peru maintains that the State has the obligation to actively promote the indigenous people's participation by virtue of their right to be represented in the legislative, executive and judicial branches of government and in the general government. It emphasizes how important it is that the State lend its support and encouragement to help indigenous populations organize nationwide, independently of the organs of the State.
Colombia believes that the instrument should mention the need to adopt mechanisms that protect and guarantee the exercise of this set of rights, as a tangible demonstration of these peoples' autonomy.
Chile, for its part, believes that in view of the evidence that the indigenous population is underepresented, some thought might be given to the eventual implementation of affirmative action.
Canada observes that the instrument could include a specific mention of this point, since indigenous persons have been among the last to be extended political rights by national government. It adds that in keeping with the Canadian Charter of rights and freedoms, there have been proposals to include special indigenous electoral districts in federal elections and senatorial representation. It also notes that the indigenous populations should be consulted before making any changes to the articles of the constitution that affect them.
The indigenous organizations believe that indigenous populations must have effective political participation and be permitted to exercise their rights to the fullest and without interference from political parties. They should participate through their representatives, selected according to their own traditional procedures; the State must guarantee the right of the indigenous populations' political parties and civil and social institutions to function. Correspondingly, the proposed instrument must recognize the indigenous populations' right to self-governance and to self-determination as essential to achieving political autonomy, equality, human dignity, freedom, environmental protection and ecological balance. All the foregoing are essential to the survival of the indigenous populations and must not be regarded as a threat to the State's territorial integrity.
20. Equality before the law and equal protection under the law
Costa Rica, Mexico and Colombia believe there are certain points that need to be addressed here. Costa Rica states that often the arm of the law does not reach the indigenous communities, either because of distance or because of friction between the national authorities and the indigenous people.
Colombia believes that the proposed instrument should specifically state that the law applied should be informed by the uses and customs of the community, which means that special tribunals are needed.
Mexico believes that means must be provided to enable indigenous populations to understand the law linguistically and when legal proceedings are involved interpreting services should be available to whomever requires them. Mexico also argues that the legal system must recognize the pluralistic nature of society, guaranteeing the rights of indigenous populations and ensuring that indigenous persons will have effective access to the courts, with no discrimination of any kind.
For Chile, this principle must be reinforced in the specific case of indigenous populations since where they are concerned, formal equality before the law does not necessarily translate into real equality.
Canada maintains that "equality" does not necessarily mean that no differences are permitted. It argues that it is not discrimination if the differences in treatment have a legitimate purpose or when the classification is based on substantial factual differences. It notes that Article 8.2 of the American Convention on Human Rights concerns criminal proceedings; ILO Convention 169, on the other hand, also provides for measures that must be taken to ensure that an indigenous person is able to understand and to be understood in legal proceedings where interpreting services are needed.
The indigenous organizations in general replied that the new instrument should state that indigenous people have a right to protection under the law, but must also recognize their differences in respect to uses, customs and customary law. Therefore, special courts should be created to hear cases to which indigenous persons are party. Several indigenous organizations add that States must guarantee the right to equality and to equal protection under the law, allowing indigenous populations to exercise their rights just as the general citizenry is allowed to exercise its rights.
21. The right to a simple, effective and swift recourse when rights are violated
Colombia is of the opinion that while the American Convention covers this right in general, because indigenous people often live far away from centers of government the new instrument should guarantee that recourse shall be immediate and always available.
Peru suggests that the new instrument might make provision for establishing procedures to settle any disputes that may arise in applying the principle of respect for and preservation of the communities' own customs and institutions that are legally compatible with the national or international principles.
Chile, on the other hand, contends that no new procedural remedy need be created to protect the rights of indigenous people.
Canada believes that this may have particular importance to indigenous people and would therefore be in favor of including it in the proposed instrument.
In general, the indigenous organizations maintain that the instrument must recognize this right in order to avoid acts that violate the fundamental rights of the indigenous people; they are in favor of a special law in each country to guarantee a swift and simple recourse, first applying the constitutional principles in respect of all individual rights and freedoms and then the special substantive laws. The culture of the indigenous people must be respected at all times.
One of these indigenous organizations, the Inter-American Commission of Indigenous Jurists, maintains that in their procedural laws States must guarantee the administration of justice based on indigenous law whenever pertinent, and use local persons designated by the indigenous tribes and peoples to administer justice; the decisions of local `magistrates' can be appealed with the municipal, state or federal ordinary courts. When the rights of the indigenous populations have clearly been violated and once appeals all the way to the Supreme Court have been exhausted, a case can be filed with the Inter-American Court of Human Rights by means of a simple petition stating the facts about the previous proceedings so that the appropriate inquiries can be made.
22. Economic, social and cultural rights in general
Several countries said that while there are international instruments -especially ILO Convention 169- that address these issues, some aspects should be included in the proposed instrument, such as those summarized below.
Work and satisfactory working conditions
Peru believes that, with their own organizations cooperating, indigenous workers should, by law, be accorded certain guarantees to ensure that national laws on hiring practices and employment contracts are enforced and that affirmative action will be taken to avoid de facto discrimination. The indigenous workers' right of association must also be respected, so that they may engage freely in any lawful union activities; their right to enter into collective contracts must also be respected. Guatemala points up the need for similar legislation. Colombia reiterates the pertinent provisions of ILO Convention 169.
Canada contends that some specific reference may be made to the right of indigenous people to practice their traditional occupations in pursuit them of their traditional lifestyles. Some reference should be made to just, equitable and satisfactory working conditions and to respecting the right to organize for business purposes. These rights apply with equal force to the rest of the population.
The indigenous organizations agree that communal labor must be respected, as must the practice of traditional occupations. The proposed instrument must recognize the right of workers to organize themselves -according to their customs- to defend their rights. It must also ensure indigenous women the same right to work and a fair wage. The instrument must guarantee that employers will fulfill all their obligations; the indigenous people's own vision of the cosmos must be respected here.
Costa Rica, Peru, Guatemala and Canada believe that the proposed instrument should provide that social security must be gradually extended to indigenous populations, with no discrimination of any kind. Costa Rica underscores the importance of guaranteeing the social and legal security of the indigenous populations.
Canada, Costa Rica, Colombia and Peru highlight community health services and the importance of combining traditional and modern medicine to reinforce each other.
Peru notes that it is the duty of governments to safeguard the health of the people. Governments must make certain that adequate health services are made available to the interested peoples or provide them with the means to organize and deliver those services on their own, the goal being to enable those peoples to enjoy the maximum possible level of physical and mental well-being. It argues that insofar as possible, health services should be organized at the community level. These services should be planned and administered in cooperation with the interested peoples and take account of their economic, geographic, social and cultural circumstances and traditional preventive treatments, cures and medications.
Where training and employment are concerned, the health care system should give preference to community health care personnel and focus on primary health care, while maintaining a close association with other levels of health care.
Costa Rica proposes some guidelines for improving indigenous health programs by building health posts, inter-institutional arrangements involving medical rounds or rural health outreach workers to avoid duplication of functions, focusing the common effort on a specific target; expanding coverage of rural health care programs and visits to conduct environmental sanitation activities: health, hygiene, nutrition, food and drinking water for indigenous persons living in remote areas, and in-depth studies of malnutrition, mortality and morbidity.
Colombia believes that the instrument should make express reference to appreciation of and respect for traditional remedial practices and to how these should be articulated and combined with western treatment methods to provide the most complete health care possible, especially since the communities are being exposed to new diseases that they do not have the knowledge to handle.
In general, the indigenous organizations believe that respect for the practice of preventive and remedial medicine, using the traditional medications and methods of the community and culture must be guaranteed. The proposed instrument should stipulate that government health programs are to be responsive to the indigenous populations' own priorities where health is concerned.
Colombia notes that the instrument should mention respect for a healthy environment, guaranteed by mechanisms readily available to the indigenous populations and which the competent authorities can use to correct problems quickly. It maintains that this issue ties in closely with that of land tenure and the right to work and pass along ancestral lands. Chile adds that this right should be included in the instrument because when polluting facilities are put into operation, the lives and health of indigenous communities are imperiled. These communities do not have the same means that other private citizens enjoy to assert their rights. Given the relationship between indigenous man and nature, this type of abusive exploitation of natural resources is detrimental to these communities' normal development.
Canada believes the proposed instrument should recognize the right of the indigenous person and his/her community to a healthy environment.
The indigenous organizations agree that the new instrument should recognize indigenous populations as one of the sectors most interested in and concerned with the rational use of natural resources and preservation of the natural habitat in general; therefore, indiscriminate deforestation, pollution of rivers and other spaces and the extinction of wildlife must be regarded as violations of the human rights of indigenous populations. The instrument should list specific obligations in respect of nature as man's habitat and penalize their violation.
Some countries have responded to this point in their answers about children's rights and the right to preserve and develop one's culture, including language. Costa Rica regards this as one of the most important points that the future instrument should target. It believes that education should be interpreted in the broadest possible sense (civic, political, social, etc.). Canada believes that the indigenous population should have the same right to education as the rest of the population and access to education in indigenous tongues. It also believes that education should be reflective of indigenous culture and traditions.
A number of indigenous organizations contend that the history of the indigenous populations and their present circumstance should be taught, without the distortions and misrepresentation that bring about prejudice; the content and methods should be tailored to the regions inhabited by the indigenous populations and their customs. Any punishment for using one's own language should be avoided at all costs, and special care must be taken to make allowance for the demands posed by the indigenous economy and culture.
Protection of the elderly
Given the prominent place that the elderly have in indigenous cultures, Peru believes their rights and benefits must be guaranteed as much as those of the rest of the population, and be realized through special programs for the elderly.
The benefits of culture
Chile believes this right must be included, since respect for a people's culture and its right to participate in it are principles that inform many other provisions. Canada also believes this right must be mentioned specifically, given the suppression of indigenous cultures in the past.
Diet and food
Canada believes this right must be afforded in a way that does not interfere with the indigenous people's right to practice their traditional lifestyle.
The indigenous organizations in general contend that the right to food should not be applied in a way that would infringe upon the rights of indigenous people to practice their own way of life.
Means of protecting the economic, social and cultural rights
Chile maintains that what was said concerning special procedural rules would apply here as well.
Canada, on the other hand, believes that specific references must be made to ensure that the rights of the indigenous people are respected.
The indigenous organizations agree that under the new instrument, States must agree to protect indigenous populations because they have for so long been socially excluded; their methods of production and lifestyles must be respected, as must their beliefs and faith; national and international financial institutions should provide direct assistance to indigenous communities, ever mindful of the indigenous populations' idiosyncrasies.
23. Correlation between duties and rights and the limitations of a democratic society
Peru, Colombia and Mexico mention the reciprocity of rights and duties as a relevant consideration for the instrument; in other words, having one's individual rights observed carries with it the obligation to respect the rights of others.
Peru notes that the institutions of indigenous populations and their decisions, like those of States, must honor internationally accepted collective and individual human rights. Accordingly, any cruel or degrading punishment or treatment that traditional systems of justice still practice must be outlawed.
Colombia is of the view that to accord specific rights to indigenous populations based on the fact that they are a unique minority that has had to contend with various kinds of limitations, means that they, too, must accord that same rights to other groups or individuals. This reciprocity of rights and duties becomes particularly significant in countries with a wide ethnic diversity.
Colombia also mentions the fact that certain legal exemptions to duties incumbent upon the rest of society, such as taxes or military service, cannot be regarded as detrimental to the general interest.
Chile, for its part, believes that some consideration must be given to the cultural differences that make it more difficult for indigenous populations to discharge the duties that reciprocity entails.
Canada notes that some reference to this could be made when the special needs of indigenous populations are considered.
The indigenous organizations agree that the reciprocity of rights and duties must obtain not only between the State and the indigenous community, but also from one indigenous community to the other, given each people's cultural values. Any paternalistic and ethnocidal concept that would argue the contrary in respect of the indigenous populations' freedom to grow must be rejected.
24. Right to a fair trial
Chile believes that this right must be included and that indigenous populations must be assured access to justice through mechanisms and procedures that are tailored to their specific needs and culture. The new instrument should stipulate that the national laws must establish a procedure that indigenous persons can avail themselves of.
Canada believes that a new instrument might refer to measures to provide for understanding of the procedures, and a consideration of customary practices might be included in a new instrument on indigenous rights.
Peru is of the view that the legal proceedings must be acceptable to both parties. Any legal proceeding that does not have the consent of the indigenous nations or groups should be stopped and a new proceeding -one consistent with the new instrument- instituted.
Guatemala mentions that because these guarantees are already recognized in other international instruments, they need not be duplicated in the proposed instrument.
Colombia notes that judges and courts must be acquainted with the customs of the indigenous populations so that they have the information needed to ensure that justice is done when the accused is an indigenous person.
The indigenous organizations believe that the proposed instrument should make express reference to this right. They maintain that indigenous populations must have special courts of their own to ensure that justice is administered in accordance with the laws of the State and the ancestral customs and practices of the indigenous populations; when one of the parties in a case is an indigenous person, the courts should use his/her language. Where that party is concerned, the customary law of his/her respective community should be applied. Accordingly, there must be a well documented report on the culture and an expert in anthropology should participate. The indigenous organizations also believe that the individual and family rights of indigenous prisoners must be protected. They point out that the confinement of an individual who is a member of an ethnic group must be under circumstances that do not constitute an abrupt departure from his/her natural lifestyle, though the punitive nature of the confinement should be preserved.
RESPONSES CONCERNING COLLECTIVE RIGHTS
25. General observations
Colombia, Guatemala, Mexico, Panama and Saint Lucia have some general observations on collective rights. Colombia points out that the political, economic, social and cultural rights upheld in its Constitution emanate from an appreciation of the value of what ethnic peoples bring to the national identity.
Guatemala states that though the economic and political rights are the same as those enjoyed by all inhabitants of the country, the social and cultural rights warrant special treatment.
Saint Lucia says that its indigenous people have no special traits that would distinguish them from the rest of society so that their rights as a group need not be defined.
Panama contends that the indigenous populations' most important demands fall under the heading of collective rights, which must be expressly guaranteed. They must be classified as collective rights and mechanisms must be established to enable the indigenous populations to invoke the new legal instrument. Consequently, it is vital that the OAS establish the guidelines for guaranteeing collective rights in the Americas.
Mexico maintains that the instrument on the rights of indigenous populations should recognize only those rights whose full meaning is realized only in collective life. The individual rights of the members of those communities must not be subordinate to the collective rights. It contends that the rights recognized in the American Declaration and the Pact of San Jose protect all individuals, without distinction, and together constitute an established framework whose legal effect must be reaffirmed.
Mexico states that the 20 points raised in this section represent the indigenous populations' historical demands that have to some extent materialized in the form of norms in positive law and national legal systems. The 20 points represent the indigenous populations most pressing needs. Once this first survey is conducted, the 20 points are to be combined in a regional instrument, representing the economic, political and social rights of indigenous populations.
Mexico states that Convention 169 of the International Labour Organisation would also have to be considered. The view is that as part of the International Year of the Indigenous Peoples of the World (1993), the member states of the OAS could issue a declaration affirming the region's commitment to upholding the rights of indigenous populations in the hemisphere. Proposals can also be examined, such as the one introduced at the "Amer-India 92" meeting, for creating regional mechanisms to safeguard and defend the rights of indigenous populations.
The indigenous organizations in general indicate that the collective human rights of the indigenous population are essential if they are to enjoy their individual human rights to the fullest. However, if the rights are not spelled out in sufficient detail, there will be no way to ascertain the natural rights of the indigenous populations. Correspondingly, they are of the opinion that the collective rights of the indigenous populations must take precedence over the individual rights of their members. They also believe that some thought should be given to the States' undertaking international obligations more rigorous than those contemplated in other international instruments vis-a-vis the peoples in their territories. They point out that the instrument must emphasize that collective rights are not incompatible with individual rights; instead, they are mutually reinforcing. They also believe that effective respect for human rights and the rights of indigenous populations calls for a proper instrument accepted by all the States and intended to safeguard those rights and penalize their violation.
Both intergovernmental organizations noted that the rights in this section should be recognized.
26. The right to peaceful coexistence in national society
The countries answered the question on this issue by pointing to the existence of multi-cultural societies and the right that the cultures in such societies have to survive and flourish.
Mexico points out that its Constitution establishes that it is a multi-cultural nation and affirms the indigenous populations' right to their own cultural life and to protection and promotion of their languages, customs and own forms of social organization from whence come many of the distinctive features of their identity.
Peru points out that the instrument should uphold the collective right to exist and to be protected against genocide, and express reference should be made to the rights to life, to humane treatment, to personal liberty and the security of one's person; that indigenous populations consist of nations and peoples that are collective entities with the right of self- determination, and that every indigenous people has the right to decide the shape, structure and authority of its institutions, based on equality and nondiscrimination.
Peru asserts that ethnodevelopment is the inalienable right of indigenous groups. It means that the diverse cultural milieux can expand and survive by strengthening a culturally diverse society's ability to make decisions that steer its development and exercise its right to self-determination, regardless of the level. It implies an equitable power structure, which in turn means that an ethnic group is a political-administrative unit with authority over its own territory and able to make decisions on issues relevant to its development, as part of a process of growing autonomy and self-management.
Colombia states that a worthwhile precedent at the international level are articles 26, 27, 28 and 29 of ILO Convention 169. It cites the clause of its Constitution where this right is established:
Article 7. The State recognizes and protects the ethnic and cultural diversity of the Nation.
Article 68. Paragraph 5. Members of ethnic groups shall be entitled to an education that respects and develops their cultural identity.
Colombia believes that a specific provision on this right is very much needed, especially given the forced assimilation efforts that indigenous communities have sometimes been compelled to undergo.
One precedent would be Article 3, paragraph 2 of ILO Convention 169 (1989) and the reference made in Article 31 to the role of education in making every community tolerant.
In a reference to land rights as they pertain to peaceful coexistence, Costa Rica asserts that the reservation should not isolate indigenous populations. Instead, with the peace that is gained by definitively acknowledging their tenure of the land, they are being given a real opportunity for self-development.
Chile believes that this type of right must be mentioned. It argues that racism is still present among large sectors of the community; because of it indigenous persons are regarded as second-class citizens. Their rights are violated and their way of life attacked.
Canada believes that this right must be strongly supported in the proposed instrument. Given the historical experience of indigenous people, particular reference might be made to the prohibition of genocide, as defined by the United Nations.
The indigenous organizations agree that States must recognize the existence of the indigenous populations and tribes, with all attendant rights and obligations. This in itself would do much to contribute to peaceful coexistence between indigenous populations and the other inhabitants of the State. The States have an obligation, and private citizens a duty, to respect this coexistence. The guarantees that a State ensures should also include one ethnic group's mutual acceptance, tolerance and respect of the other.
27. Right to have differences accepted
Costa Rica, Guatemala, Mexico and Peru believe that this issue should be included. Venezuela, on the other hand, does not consider it acceptable inasmuch as it does not have a corollary in the national legal system.
Mexico states that the instrument should also provide for the right to cultural diversity and to one's own language; it also believes the proposed instrument should uphold the indigenous populations' right to participate actively in community life, according to their specific forms of social organization, without creating a special law code for indigenous populations.
Peru notes that this right is protected under the broad language of Article 11 of the American Convention. Nevertheless, it still believes that the new instrument should specifically mention that customs are to be respected and that judges shall take them into account when ruling on violations of those legal rights.
Chile is of the view that the instrument must recognize that the populations of the countries of this region are multi-ethnic and pluri-cultural.
Canada believes that the wording of the question is unclear and that mutual acceptance, peace and tolerance could be subsumed under the notion of peaceful coexistence.
The indigenous organizations in general maintain that States must recognize that their people are pluri-national and pluri-cultural in nature by recognizing that each indigenous people in their respective territories has a national and cultural identity of its own. They should regard them as subjects in law within the society as a whole, and guarantee that indigenous populations will never again be the victim of genocide or ethnocide.
Both intergovernmental organizations are of the view that every indigenous people has the right to be recognized as a culturally and socially distinct people.
28. The right to participate, as a people, in the governance of their affairs
The countries that replied to the Commission's survey all agree that this right should be upheld. However, their ideas as to its scope and the form it should take vary. Venezuela asserts that all citizens can take part in national politics.
Costa Rica believes that the answer to indigenous problems should be in their hands; hence, the instrument should establish this right.
While Guatemala believes the instrument should recognize this right, it should do so with a proviso to the effect that this participation must be within the political-administrative framework established under each country's constitution. Because of the type of political-administrative organization Guatemala has (departments, municipalities, cities, towns, villages, hamlets), this particular right is not relevant.
Mexico believes that the instrument should establish the indigenous populations' right to govern their own affairs and to have their own authorities and institutions to represent them. It argues that the instrument must recognize the right of indigenous populations to govern their social affairs by their own rules, insofar as possible.
Peru notes that the ethnic group is a political administrative unit with authority over its own territory; these peoples' systems of internal organization are part of their culture and legal system, have held them together and helped preserve their sociocultural tradition. It believes that when Article 15 is applied, the following should be the objective:
a. Enlist the cooperation of these peoples and their representatives;
b. Give these peoples every opportunity to realize their initiatives to the fullest;
c. Foster, by every means possible among those populations, civic freedoms and the establishment of elective institutions or participation in such institutions.
Peru also contends that indigenous nations and peoples that want to confine themselves to the exercise of internal self-determination should be free to do so. The rights to free self-determination should include (though not be limited to) the following:
a. the right to control their own economy;
b. the right to pursue freely an economic, social and cultural development that is commensurate with their traditional customs and social practices;
c. the right to maintain relations and trade abroad if they so desire;
d. the right to restore and practice their cultures, languages, traditions and lifestyles and to educate their children in them;
e. the right to ownership of the land as the indigenous populations' territorial base.
It argues that these are peoples with the right to self-determination; in other words, on their own lands they are free to enjoy however much autonomous government they choose to have; they have the right to move about freely and reside there, without prejudice to the rights that the law accords to the other inhabitants.
Peru also states that every indigenous people has the right to decide the type, structure and authority of its institutions. These decisions, customs and practices of the indigenous populations will be recognized by national and international law, on the basis of equality and nondiscrimination. When an indigenous people exercises its right of self-determination within one or more States and that State or States has some jurisdiction over the indigenous people or over the individuals who belong to that indigenous people:
a. The persons who belong to the indigenous people have the right to participate in the political life of the State or States, in the same way as citizens of that State or States;
b. The indigenous people has the right to be represented in the legislative, executive and judicial branches of government and in the civil service. The State has the obligation to promote that participation actively;
c. The indigenous people should have a national organization or organizations, chosen and structured by them, independently of the organs of the State. In cases where the indigenous people are poor or scattered over a wide geographic area and hence unable to create that organization or organizations, the State should provide them with funds to establish and maintain such an organization or organizations.
Quoting from the relevant articles of its Constitution, Colombia states that the instrument should contain a specific clause recognizing indigenous populations and their members as persons before the law since by so doing it is guaranteeing that they will be able to take direct action to defend their interests vis-a-vis the State and other social sectors.
Colombia explains that this ties in closely with the possibility of concluding treaties and other types of agreement between the State and the indigenous populations, a matter raised in points 18 and 20 of the second part of the questionnaire. If legal status is not recognized, it is because these peoples are not regarded as valid interlocutors or cannot lawfully undertake commitments. Their chance to participate in decisions on matters that either directly or indirectly affect them is at stake.
Colombia also contends that recognition is based on the freedom of these groups to decide their own development style, according to their needs and traditions. Recognition as persons before the law should mean that these groups are able to make known their priorities to State and non-State sectors when decisions that will affect them are to be made.
Colombia believes that the language of Article 23 of the Convention is all-inclusive. However, because indigenous populations are more vulnerable, there should be some provision to adopt mechanisms to protect and guarantee the exercise of this set of rights, a concrete manifestation of these peoples' autonomy.
Canada asserts that indigenous populations should be consulted on decisions which affect them directly; they should be allowed to govern themselves in the sense of deciding what their priorities are and controlling their own development as much as possible.
The indigenous organizations believe that the right to self determination is essential to the future of indigenous populations, and should be reinforced at the regional and communal levels. They also contend that indigenous populations have the right to organize themselves politically; this means creating their own national organizations that will guarantee, by means of legal instruments and the people's representation, their presence on the national and international scenes along with similar organizations with the same economic, political and social conditions; they also have the right to participate in national elections and not just in the decisions that affect them. They should express their own thoughts and needs. The indigenous organizations also point out that a State must legally recognize the indigenous organization and its political, social, cultural and economic institutions.
The intergovernmental organizations note that indigenous populations should have a right to share decision-making power and participate in approving, rejecting or amending any decision that may affect them.
29. Right to have their characteristics reflected in public institutions
Guatemala maintains that while this right should be included, it should apply only to those public institutions that have direct contact with indigenous communities, operate therein or are integrated with them. An across-the-board provision on this issue would necessitate a radical restructuring of State institutions in the countries of the hemisphere, making it difficult for the States to sign the legal instrument.
Venezuela reports that in keeping with its Constitution, legislation has already been enacted that creates the institutions and provides the laws considered necessary in this regard. Venezuela believes that the characteristics and needs of indigenous populations should be reflected in the machinery of the State by establishing institutions charged with defending the indigenous populations in each country.
Colombia believes that the instrument should make reference to the fact that indigenous community has its own idea of family, which is created, organized and dissolved according to each group's customs. For example, the age at which one can marry may not be a factor at all or may vary from one group to the next.
Another issue related to point 4 under Section Two of this questionnaire (how or whether the traits of the indigenous populations are reflected in public institutions) is the fact that agencies in charge of programs for the family and the child must conduct programs that ensure an indigenous people's next generation and thus its survival as an autonomous social group, and that create the conditions that put them in a balanced relationship with the environment.
Chile, for its part, maintains that the agencies that in some way concern themselves with indigenous affairs should be careful to preserve certain features of democracy and organized indigenous participation.
Canada points out that particular rights, which are required for the distinctive characteristics of indigenous people to be reflected in public institutions, are not readily identifiable at the present time, particularly when there are many indigenous groups. As an example one might cite the ability to organize and express their views.
In general, the indigenous organizations believe that the new instrument must provide for an arrangement whereby both the State and the organizations representing the indigenous populations participate in these institutions; the State should permit and encourage indigenous persons to participate, and thus bring all their special qualities to the nature of these public institutions.
30. Right to preserve and develop their traditional economic structures, institutions and lifestyles
Colombia believes that an objective assessment must be made of the unremunerated collective labor practices that many groups have and that serve to pull the group together. The new instrument must prevent violation of this right: outside these communities, certain activities may disregard, demean, misrepresent or adversely affect their way of life by projecting negative images or voicing opinions that are disrespectful of their unique character.
Chile believes that these rights should be included, which have been overtaken somewhat by the concepts of "development" and "modern living".
Canada maintains that if traditional institutions, lifestyles and economies can be an option, then development must also be an option that enables indigenous communities to participate in the broader society to the extent they deem appropriate, and to receive the benefits of that participation.
Peru believes that no indigenous people should be the target of actions that could lead to their physical, cultural or political destruction. Like the rest of humanity, they have the right to life and to live free of any form of oppression, discrimination and aggression. Peru adds that indigenous populations should be allowed free and equal participation in the country's economic, social and political development.
Guatemala agrees that this right should be included in the instrument.
As to preserving the lifestyle, Costa Rica points out that when designing housing for indigenous communities, for example, the new houses should be built with modern materials but preserve each community's traditional architecture. It again notes that indigenous populations must be the ones to decide how to resolve their problems; new lifestyles that involve a radical and inappropriate departure from their traditional way of life or attempted assimilation cannot be forced upon them. The values, culture, beliefs, etc. of the indigenous communities must be respected when promoting their development.
In general, the indigenous organizations maintain that the State must help preserve and develop their traditional economic structures, their institutions and their lifestyles because they are inherent parts of their culture. To do anything else would be a violation of their human rights.
31. Right to their own economic development
Chile maintains that some reference should be made to developing the indigenous populations' prospects, understood as the corollary to sustainable development and the opposite of degradation of natural resources.
On another note, Canada believes that indigenous people have a right to autonomous economic development on their own lands, and decisions on autonomous development should aim for community's self-sufficiency and not involve continuous financial support from other governments. It adds that indigenous people must be given the opportunity to pursue their traditional economy.
Guatemala believes this right must be included.
For their part, the indigenous organizations agree that indigenous populations have a right to autonomous economic development; to that end, the State and the appropriate agencies must provide economic support in the form of financing for social, economic and productive projects and must help open up national and international markets for the products produced by indigenous populations.
32. Right to control and manage any development plans and projects being conducted on their own territory.
Chile believes this should be one form of social participation. The State's administrative organs would hear the views of the indigenous people before making decisions on any plans, programs and projects that will have some effect or bearing on issues that concern them.
Canada believes that this should be phrased as an objective, and not as a right to control those public services.
Guatemala maintains that even though it does not have territories set aside for its indigenous population, it can still discuss community-targeted development plans. The indigenous populations should participate in designing and managing those plans.
In general the indigenous organizations contend that indigenous populations have sufficient wherewithal to manage and control development plans and the delivery of public services on their territories. Some also contend that the only thing needed is to teach the members of the group the techniques that the development plan approved for each zone or region calls for.
The intergovernmental organizations are of the view that the indigenous populations should have the right to autonomy vis-a-vis their internal affairs and to control and manage their territories, observing national federal statutes. They add that this means having their own authorities and traditional systems of local and even ethnic government, ethnic being understood as a group of discrete communities with the same roots. Those authorities and systems are not to outrank State authorities and institutions at the same level.
33. Rights relative to their own cultural development
Guatemala believes that these rights should be mentioned in the instrument.
Colombia maintains that the instrument must mention the preservation, development and dissemination of the indigenous populations' science, culture and art. It adds that indigenous populations must be given an opportunity to express their feelings and solve their problems according to their own belief systems. This is an essential part of the identity and development of the group as a whole and each member individually.
Chile maintains that the instrument should include provisions to preserve the archeological, historic and cultural heritage of indigenous populations. It adds that indigenous languages should be given the same official status that Spanish enjoys and that the national system of education should have a unit that enables students to learn and appreciate indigenous cultures. Chile also believes that the inviolability of cemeteries and other sacred sites must be guaranteed and crafts, jewelry, books, manuscripts and other objects that have historical significance for the indigenous populations must not be allowed to leave the national territory.
Canada notes that the United Nations Working Group on Indigenous Populations has identified several aspects here, such as restitution of property taken without their consent, the right to relive and practice their own cultural identity and traditions, the right to maintain, develop and protect manifestations of their cultures, such as archeological and historical sites, artifacts, designs, ceremonies, technology and works of art.
Peru mentions that the indigenous populations' experiences, knowledge and achievements in the cultural, social, political, judicial, scientific and technological realms are a vital part of their heritage. They should therefore have the right to enjoy, disseminate and transmit that heritage, without this impairing their right to partake in mankind's cultural heritage.
Costa Rica believes that safeguards must be taken to ensure that any existing or future legal provision to protect the indigenous cultural heritage is observed, in cooperation with the institutions so charged.
The indigenous organizations in general maintain that through the corresponding institutions, States must guarantee and protect the cultural assets of the indigenous populations. States must also ensure that the commercial exploitation of indigenous crafts and arts is fair and equitable. They specifically mention that indiscriminate exploitation of that heritage by non-indigenous middlemen and the States' failure to protect against such exploitation via proper legal means must be regarded as violations of the indigenous populations' human rights.
34. Rights relative to their religious beliefs and practices
Chile is of the view that this point should be included in the new instrument.
Canada maintains that an indigenous people must be allowed to practice its religion.
Peru, for its part, maintains that all indigenous populations have the right to exercise their religious or spiritual beliefs freely, including the right to express those beliefs through instruction, practice, worship and observance. If to exercise their religious beliefs freely they must have access to lands and natural formations, then no State may adopt measures that threaten, either directly or indirectly, the existence of or access to those lands. Peru concludes by stating that no State may undertake or permit activities whose purpose is to introduce, through missions, nonindigenous religions among indigenous populations.
Guatemala believes that the religious beliefs and practices of indigenous populations must be respected; however, as to State protection against attempts at systematic conversion, it notes that there is freedom of religion and if a religion's rites or ceremonies are not unlawful, then the Constitution provides that one is free to choose one's religion or worship.
Colombia notes that even though this right has already been mentioned briefly under the section on freedom of conscience and religion, there should be specific reference to the fact that the State must establish mechanisms to protect indigenous communities from outside groups that use deceit or coercion to change the religious and spiritual convictions of those peoples.
The indigenous organizations agree that the new instrument must emphasize the State's obligation to protect the religious and spiritual convictions and practices of indigenous populations; there are countless religious sects invading indigenous territories, bringing with them divisiveness and hatred of other peoples. The State must punish any efforts to force indigenous populations to change their religious convictions or beliefs and attempts at systematic conversion.
The intergovernmental organizations contend that the indigenous populations' cultures and traditions must be respected; this is especially true of their religious beliefs.
35. Rights relative to establishing and controlling their educational processes
Chile believes that this point should be included and that some reference should be made to the obligation of State officials to register the names and surnames as they are given by the parents. Universities should add the study of the history of indigenous populations to their curricula.
Canada notes that the Canadian Government is committed to increasing community control of education; under the current finding, the indigenous communities have increasingly taken on responsibility for arrangements their own education programs, which has increased student attendance, retention rates and performance at all levels of the education system.
Peru is of the opinion that every indigenous nation and people has the right to raise and educate their children in the skills, ideas, values and beliefs of the respective communities and cultures, to establish their own institutions of learning and have access to education in their own language.
Costa Rica believes that education must be strengthened among indigenous populations to make them aware of their own reality, with a view to their self-preservation. Costa Rica also believes that those who practice professions or hold positions in areas inhabited by indigenous people should be better prepared. It concludes that the education program should include instruction in one's native language and one's customs and beliefs.
Colombia points out that it is the right of the children of indigenous communities to have the education they receive, either from the State or from private institutions, respect their traditions, language and rules that protect their culture; Colombia also maintains that the instrument should stipulate that the instruction given should be informed by the cultural traditions of the indigenous populations, and should teach the students how to relate to their general surroundings.
In general, the indigenous organizations state that every inhabitant of a State, indigenous or not, has the right to receive a proper education. The problem is the language difference. They therefore believe that education must be bilingual and ever respectful of the cultural values of the indigenous populations.
36. Rights relative to the indigenous family's protection and community care and protection of children.
Chile believes that this point requires careful examination, given the illegal traffic in infants who are being sent abroad.
Peru maintains that the indigenous nations and peoples must have priority jurisdiction over all questions relating to the guardianship of children, to the caducity of parental rights, to placement before adoption and to the adoption of children who are members of their communities.
Venezuela argues that the State protects the family, which is the basic unit of society.
Colombia believes that the instrument should make some reference to the notion of family as it is understood in indigenous communities. Families are formed, organized and dissolved according to the each group's cultural rules. Agencies in charge of programs that concern families and children must develop programs to make it easier for them to produce and reproduce as an autonomous social group and that put them in a balanced relationship with their milieu.
The indigenous organizations in general agree every indigenous community must bring that society's control to bear in raising and protecting its children and thereby ensure that the cultural values of those indigenous populations will be preserved.
37. Right to special measures to protect their intellectual and artistic property
Chile believes it is inadvisable to include this in an specific instrument, since it comes under general law.
Guatemala points out that the State undertakes to protect and promote artistic and cultural expression, but questions involving the intellectual property of the indigenous populations must be dealt with like those of the country's other inhabitants.
Canada maintains that though this issue could come under the national laws on the subject, however certain elements may not be supportable, such as "voice appropriation", which means that non-indigenous persons cannot relate stories from the indigenous' perspective. In cases such as this, the instrument might well include provisions on cultural property relating to the restoration of cultural property where feasible; the instrument should also make provision for indigenous knowledge of the use and properties of medicinal plants. The indigenous person's traditional knowledge of the environment should also be protected.
Colombia believes it is very important to include this right, because outsiders so frequently intrude upon indigenous communities to appropriate the knowledge used to correct those communities' development and health problems and then market them for profit.
The indigenous organizations agree that every indigenous people has the right to have the intellectual property, art, crafts and other property of every member of the community protected. Hence, music, dance and other expressions of indigenous culture must be protected by the State.
38. Rights relative to the use and development of their own medical services
For Canada, the new instrument should make reference to the recognition of the role of the community in dealing with some health issues. In line with ILO Convention 169, reference should be made to health services that have been planned and administered in cooperation with the indigenous population.
Chile cautions that this point must be studied very carefully.
Venezuela notes that the right to health protection and the obligation to consent to the health measures established by law appear in the Venezuelan Constitution.
Guatemala points out that this issue must be studied carefully, given the implications of combining differing medical systems. It adds that some radical adjustments will be required and care must be taken to be sure that certain medical practices are not illegal.
Costa Rica maintains that health centers must be established and staffed with well trained personnel. Efforts must be made to train people from the various areas inhabited by indigenous persons so that they may perform these functions in the future. Health clinics and nutrition centers must be set up at strategic locations calculated to reach as much of the local population as possible.
In Colombia's opinion, the therapeutic and cultural value of traditional medicine should be recognized, as should the importance of combining it with other preventive and remedial methods.
Several indigenous organizations were of the view that the State should encourage knowledge and development of traditional medicine among the indigenous populations themselves, working in combination with modern medicine to protect the health of the indigenous population.
39. Rights relative to the internal execution and development of the customary legal system, insofar as it is not contrary to the national constitution
Chile believes that this rule should be included.
Canada, on the other hand, mentions that this point is unclear; if it is a call for the right to develop their own internal affairs, it would need clarification. If it calls for the right to establish a separate justice system, there are very practical problems for a country where not all the indigenous population lives in separate communities. Canada is currently involved in examining ways of accommodating indigenous customary practices in to justice system to a greater extent.
Peru believes that these peoples' own methods of social control and the nature of the collective and individual problems must be considered, with a view to enabling them to settle the less important problems and requiring States to adapt their laws to allow certain problems to be settled by means other than the courts. It adds that indigenous populations must have the right to preserve their own customs and traditions, provided they are not inconsistent with the domestic laws or human rights; procedures must be established for settling any disputes to which the application of this principle gives rise. The methods customarily used by the indigenous populations to punish crimes committed by their members should be respected and the courts should take into consideration the customs of those peoples to the extent that they are compatible with the national legal system and internationally recognized human rights.
Guatemala observes that while a recommendation to this effect is advisable, it would be difficult to sign any document that required the State to undertake this commitment immediately, since the task of integrating culturally different legal systems will call for an enormous conceptual and practical effort. Therefore, combining the indigenous communities' legal systems with the national system will take time, as all the implications have to be studied and a method devised.
Colombia notes that specific provisions must be established for the members of indigenous communities; this issue ties in closely with the issue of special courts to hear cases wherein the defendant is an indigenous person. It adds that the authorities of the indigenous populations should be permitted to exercise jurisdictional authority in keeping with their customs.
The indigenous organizations agree that the State must recognize and guarantee the existence and practice of indigenous law, and whenever possible the indigenous populations' customary law should be applied to their members. The latter should be guaranteed under the constitution.
Both intergovernmental organizations replied that indigenous communities should be allowed to develop and practice their legal rules and institutions, which should be made compatible with the legal system governing the society as a whole.
40. Rights relative to the States' respect for and observance of treaties and other international agreements concluded with the indigenous populations
Chile is of the view that before including a statement concerning execution of treaties, it must be established that an indigenous people is a subject of international law.
Venezuela asserts categorically that it only concludes treaties with subjects of international law, and tacitly confirms that indigenous groups are not regarded as such.
Canada notes that the Canadian Constitution recognizes and affirms existing aboriginal and treaty rights based on treaties with the indigenous populations.
Guatemala reasserts that the State must honor the treaties it signs, irrespective of the subject.
Colombia points out that given the recognition of the autonomy of the indigenous populations, the State can enter into agreements and other commitments to conduct coordinated efforts to satisfy their needs, while respecting their culture and providing the means necessary for it to develop properly.
In general, the indigenous organizations agree that, through the national laws and backed by international conventions, States must recognize the treaties and other agreements they conclude with indigenous populations and honor them.
41. Rights that ensure that multinational indigenous populations will be able to preserve their ethnic ties across national borders
Chile contends that there is no need to duplicate the provisions of ILO Convention 169.
Canada points out that ILO Convention 169 states that governments shall take appropriate measures, including by means of international agreements, to facilitate contacts and cooperation between indigenous and tribal peoples across borders, including activities in the economic, social, cultural, spiritual and environmental fields.
Peru, for its part, contends that here no State may undertake activities whose purpose is to inhibit, either directly or indirectly, the free flow of ideas among indigenous populations and between the latter and non-indigenous populations.
Venezuela notes that it does not recognize the existence of "multinational indigenous populations", but rather the national indigenous citizens of each State.
Guatemala is of the view that rights of this type should be discussed by binational commissions established by the States to concern themselves with border traffic of this kind.
Colombia notes that even though Article 20 of the Convention is broad in this regard, express reference should be made to the fact that indigenous populations may share the territories of several states and that their rights should be respected inasmuch as their existence predates that of the States.
Several indigenous organizations are of the opinion that the borders between States should be opened and indigenous people should be allowed to cross so as to strengthen the relations between indigenous populations.
The international organizations note that special rights should be recognized in the case of indigenous populations because their existence as nations predates the formation of the nation-states in which they are located.
42. Territorial rights
Chile reiterates the observations it made in connection with recognition of ancestral lands.
Canada, on the other hands, is of the view that there are two different terms that must be distinguished: "land" refers to property that the group occupies to the exclusion of others, in which case the indigenous groups should have the right to make the same kinds of decisions making rights at least an extensive as those of private landowner would; then there is the term "territory", which refers to the properties that they traditionally use but do not occupied to the exclusion of others, in which case the government cannot protect indigenous territories or their traditional forms of use; it can, however, consult with indigenous populations in relation to their use.
Peru believes that the lands and sacred places used for traditional ceremonies are particularly important and must be protected, preserved and respected. They must also be accessible to the indigenous persons, even if they are in areas settled and used by others. It adds that indigenous populations' access to their land and natural resources must be guaranteed, considering the importance of the rights of the indigenous people to those lands and their traditions and aspirations. Collective and individual property rights must be recognized. National laws must respect the customary methods used to hand down property rights and the right to make use of the land, insofar as those customary methods fulfill the peoples' needs and do no thwart their economic and social development. Measures must also be taken to prevent outsiders from taking advantage of the indigenous populations' customs or ignorance of the law to obtain title to or to use the property that belongs to these indigenous communities.
Venezuela notes that the word "territory" is not the correct word to denote areas occupied by a State's indigenous groups; the proper word is "land", which would refer to the property or natural resources to which the indigenous nationals of each country have a claim.
Guatemala believes that an indigenous community's farmlands and property and housing handed down through generations of families should receive special State protection and preferential credit and technical assistance to guarantee their development, ownership and ensure a better standard of living to all members of the community, thereby allowing the indigenous communities and others with lands that have traditionally belonged to them and which they have traditionally administered to preserve that system.
Costa Rica maintains that reservations are tracts of land set aside by law for settlement by indigenous groups. For Costa Rica, territories defined as indigenous communities may be in any of three situations:
a. Those with the most authentic cultural identity, which preserve parts of their previous lifestyle and that have done less to alter their habitat.
b. Those that still preserve their language and certain other cultural features, but have altered their habitat somewhat and are more influenced by nonindigenous culture.
c. Those where the pressure from colonization has been greater; they tend to be close to urban centers.
Costa Rica notes that its Indigenous Law stipulates certain special legal characteristics which an inter-American instrument might adopt, as follows: indigenous reservations are the essential, inalienable, nontransferable and exclusive right of the indigenous communities that inhabit them. Costa Rica also states that indigenous communities should be encouraged to preserve their ancestral land use practices; observance of the rights of indigenous persons in respect of individual and collective land ownership should be monitored to stabilize land tenure.
Colombia maintains that the issue of holding, using and crossing territory is an important one that would have to be expressly included in the new instrument. Specific reference would have to be made to the custom of collective ownership/exploitation of many assets and to the fact that indigenous populations cannot be uprooted without the proper legal cause.
The indigenous organizations in general believe that the States must recognize and guarantee the existence of indigenous territories in their respective countries, as juridical-political units. They note that the State has an obligation to assign territories to the indigenous populations and to institute laws requiring that the members of those communities be allowed to develop their cultures in accordance with their traditional legal practices; in other words, according to customary law and governed by their institutions. Some indigenous organizations add that the territories that the indigenous populations occupy and claim must not be subject to bargain and sale, as they constitute the very origin of these peoples' lives. The State must adopt effective and explicit measures in their agricultural programs to guarantee that the territory of the indigenous people is respected.
The intergovernmental organizations point out that the indigenous populations must have the right to own their own territory that ensures their survival and development as a people, with all other rights and guarantees consistent with the corresponding national laws.
43. Right to environmental protection
Canada contends that the role of the indigenous population in managing the resources and ecosystems in their environment must be recognized.
Chile again makes the point that when highly polluting industries are launched, the very lives and health of the indigenous communities are imperiled. The latter do not have the same guarantees as private parties to assert their rights.
Guatemala points out that the instrument should speak of environmental integrity and the ecological balance of the environment in which these communities live, which logically includes their lands and not their territories since in Guatemala's case the indigenous communities do not have assigned territories.
Costa Rica notes that integral development plans, programs and projects must be implemented to improve and preserve natural resources. It adds that sustained development and the new jobs created by the effort to control and safeguard wild areas would raise the indigenous people's standard of living.
Colombia maintains that the traditional indigenous practices must be recognized, respected, encouraged and implemented within their territories, as one means of maintaining an ecological equilibrium, since their farming practices and the other resources these peoples use have always been conservationist. They are the product of generations of knowledge, built upon these peoples' special relationship with their environment.
The indigenous organizations agree that the integrity of the environment should be assured by educating people in how to manage and use renewable and nonrenewable natural resources so that the ecological balance is preserved. This is vital, given the symbiotic relationship between indigenous populations and the environment.
44. Rights relative to the use of language in legal proceedings
Guatemala points out that while this right should be included, in its own case, with so many indigenous languages, it would be difficult to find a trained and multilingual staff. However, it notes, the problem could be handled by using interpreters and translators in the various dialects and languages.
Colombia links this point to the principle of nondiscrimination and equality before the law. Its own laws, it points out, state that if an individual does not speak Spanish, a translation shall be made or an interpreter provided.
Several indigenous organizations believe this is a very serious problem that the new instrument must address. Many judges and other court personnel do not speak the language of the indigenous populations. Mechanisms have to be created to obviate this problem.
Both intergovernmental organizations contend that indigenous populations must have the right to have, use and develop their own languages. In any inter-ethnic encounter that concerns them, they have the right to deal in their own language, especially in the administrative and legal areas.
FUTURE STEPS IN PREPARING THE LEGAL INSTRUMENT ON THE RIGHTS
OF INDIGENOUS POPULATIONS
With publication of this document in its 1992 Annual Report, the Commission will have completed the third step in the method approved for preparing this instrument (OEA/Ser.L/V.II.80/doc.15, rev.1). The Commission believes that this working paper (which is truly the first of its kind) will be invaluable in helping to draft an eventual inter-American instrument on the human rights of the indigenous populations.
Bearing in mind the observations of the Permanent Council, the General Assembly, the governments and institutions concerning this summary, the Commission's next step will be to prepare the "Preliminary conclusions and a preliminary draft" of the legal instrument, to be discussed and reviewed by the Commission at its 84th session in October 1993.
Once a preliminary draft has been approved, it will be sent to the governments and institutions for comment. Based on the replies received, the Commission will prepare a final draft, which it will examine at its September 1994 session and then transmit to the General Assembly.
The reader will appreciate that publication of the findings from the inquiry conducted by the Commission is an essential part of the search for "common ground" and common denominators among the members states of the OAS and the indigenous populations. This preliminary study is being published for the purpose of sharing ideas and practices established in the various countries. The Commission is not analyzing or evaluating the replies at this stage in the process. Instead, at this point its desire is to enrich the exchange of views and share information among the protagonists themselves, who in the end will determine the content of an inter-American legal instrument to clarify the human rights of these indigenous tribes and peoples.
 Approved by the Inter-American Commission on Human Rights in March, 1993 at its 83rd session and published in its 1992-1993 Annual Report.
 References to collective rights also appear in the discussions of the individual rights, analyzed earlier. See, in particular, point 5 on the right to recognition as a person before the law.