PREPARATORY DOCUMENTS FOR THE
DRAFT AMERICAN DECLARATION OF THE INDIGENOUS PEOPLES
DOCUMENT 8. PROPOSED AMERICAN DECLARATION ON THE RIGHTS OF
(Approved by the Inter-American Commission on Human Rights on February 26,
1997, at its 1333rd session, 95th Regular Session)
1. Indigenous institutions and the strengthening of nations
The member states of the OAS (hereafter the states),
Recalling that the indigenous peoples of the Americas constitute an organized, distinctive and integral segment of their population and are entitled to be part of the national identities of the countries of the Americas, and have a special role to play in strengthening the institutions of the state and in establishing national unity based on democratic principles; and,
Further recalling that some of the democratic institutions and concepts embodied in the constitutions of American states originate from institutions of the indigenous peoples, and that in many instances their present participatory systems for decision-making and for authority contribute to improving democracies in the Americas.
Recalling the need to develop their national juridical systems to consolidate the pluricultural nature of our societies.
2. Eradication of poverty and the right to development
Concerned about the frequent deprivation afflicting indigenous peoples of their human rights and fundamental freedoms; within and outside their communities, as well as the dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own traditions, needs and interests.
Recognizing the severe impoverishment afflicting indigenous peoples in several regions of the Hemisphere and that their living conditions are generally deplorable.
And recalling that in the Declaration of Principles issued by the Summit of the Americas in December 1994, the heads of state and governments declared that in observance of the International Decade of the World's Indigenous People, they will focus their energies on improving the exercise of democratic rights and the access to social services by indigenous peoples and their communities.
3. Indigenous culture and ecology
Recognizing the respect for the environment accorded by the cultures of indigenous peoples of the Americas, and considering the special relationship between the indigenous peoples and the environment, lands, resources and territories on which they live and their natural resources.
4. Harmonious relations, respect and the absence of discrimination
Reaffirming the responsibility of all states and peoples of the Americas to end racism and racial discrimination, with a view to establishing harmonious relations and respect among all peoples.
5. Territories and indigenous survival
Recognizing that in many indigenous cultures, traditional collective systems for control and use of land, territory and resources, including bodies of water and coastal areas, are a necessary condition for their survival, social organization, development and their individual and collective well-being; and that the form of such control and ownership is varied and distinctive and does not necessarily coincide with the systems protected by the domestic laws of the states in which they live.
6. Security and indigenous areas
Reaffirming that the armed forces in indigenous areas shall restrict themselves to the performance of their functions and shall not be the cause of abuses or violations of the rights of indigenous peoples.
7. Human rights instruments and other advances in international law
Recognizing the paramouncy and applicability to the states and peoples of the Americas of the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights and other human rights instruments of inter-American and international law; and
Recognizing that indigenous peoples are a subject of international law, and mindful of the progress achieved by the states and indigenous organizations, especially in the sphere of the United Nations and the International Labor Organization, in several international instruments, particularly in the ILO Convention 169.
Affirming the principle of the universality and indivisibility of human rights, and the application of international human rights to all individuals.
8. Enjoyment of Collective Rights
Recalling the international recognition of rights that can only be enjoyed when exercised collectively.
9. Advances in the provisions of national instruments
Noting the constitutional, legislative and jurisprudential advances achieved in the Americas in guaranteeing the rights and institutions of indigenous peoples,
SECTION ONE. INDIGENOUS PEOPLES
Article I. Scope and definitions
1. This Declaration applies to indigenous peoples as well as peoples whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations.
2. Self identification as indigenous shall be regarded as a fundamental criterion for determining the peoples to which the provisions of this Declaration apply.
3. The use of the term "peoples" in this Instrument shall not be construed as having any implication with respect to any other rights that might be attached to that term in international law.
SECTION TWO. HUMAN RIGHTS
Article II. Full observance of human rights
1. Indigenous peoples have the right to the full and effective enjoyment of the human rights and fundamental freedoms recognized in the Charter of the OAS, the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, and other international human rights law; and nothing in this Declaration shall be construed as in any way limiting or denying those rights or authorizing any action not in accordance with the instruments of international law including human rights law.
2. Indigenous peoples have the collective rights that are indispensable to the enjoyment of the individual human rights of their members. Accordingly the states recognize inter alia the right of the indigenous peoples to collective action, to their cultures, to profess and practice their spiritual beliefs, and to use their languages.
3. The states shall ensure for indigenous peoples the full exercise of all rights, and shall adopt in accordance with their constitutional processes such legislative or other measures as may be necessary to give effect to the rights recognized in this Declaration.
Article III. Right to belong to indigenous peoples
Indigenous peoples and communities have the right to belong to indigenous peoples, in accordance with the traditions and customs of the peoples or nation concerned.
Article IV. Legal status of communities
Indigenous peoples have the right to have their legal personality fully recognized by the states within their systems.
Article V. No forced assimilation
1. Indigenous peoples have the right to freely preserve, express and develop their cultural identity in all its aspects, free of any attempt at assimilation.
2. The states shall not undertake, support or favour any policy of artificial or enforced assimilation of indigenous peoples, destruction of a culture or the possibility of the extermination of any indigenous peoples.
Article VI. Special guarantees against discrimination
1. Indigenous peoples have the right to special guarantees against discrimination that may have to be instituted to fully enjoy internationally and nationally-recognized human rights; as well as measures necessary to enable indigenous women, men and children to exercise, without any discrimination, civil, political, economic, social, cultural and spiritual rights. The states recognize that violence exerted against persons because of their gender and age prevents and nullifies the exercise of those rights.
2. Indigenous peoples have the right to fully participate in the prescription of such guarantees.
SECTION THREE. CULTURAL DEVELOPMENT
Article VII. Right to Cultural integrity
1. Indigenous peoples have the right to their cultural integrity, and their historical and archeological heritage, which are important both for their survival as well as for the identity of their members.
2. Indigenous peoples are entitled to restitution in respect of the property of which they have been dispossessed, and where that is not possible, compensation on a basis not less favorable than the standard of international law.
3. The states shall recognize and respect indigenous ways of life, customs, traditions, forms of social, economic and political organization, institutions, practices, beliefs and values, use of dress, and languages.
Article VIII. Philosophy, outlook and language
1. Indigenous peoples have the right to indigenous languages, philosophy and outlook as a component of national and universal culture, and as such, shall respect them and facilitate their dissemination.
2. The states shall take measures and ensure that broadcast radio and television programs are broadcast in the indigenous languages in the regions where there is a strong indigenous presence, and to support the creation of indigenous radio stations and other media.
3. The states shall take effective measures to enable indigenous peoples to understand administrative, legal and political rules and procedures, and to be understood in relation to these matters. In areas where indigenous languages are predominant, states shall endeavor to establish the pertinent languages as official languages and to give them the same status that is given to non-indigenous official languages.
4. Indigenous peoples have the right to use their indigenous names, and to have the states recognize them as such.
Article IX. Education
1. Indigenous peoples shall be entitled: a) to establish and set in motion their own educational programs, institutions and facilities; b) to prepare and implement their own educational plans, programs, curricula and materials; c) to train, educate and accredit their teachers and administrators. The states shall endeavor to ensure that such systems guarantee equal educational and teaching opportunities for the entire population and complementarity with national educational systems.
2. When indigenous peoples so decide, educational systems shall be conducted in the indigenous languages and incorporate indigenous content, and they shall also be provided with the necessary training and means for complete mastery of the official language or languages.
3. The states shall ensure that those educational systems are equal in quality, efficiency, accessibility and in all other ways to that provided to the general population.
4. The states shall take measures to guarantee to the members of indigenous peoples the possibility to obtain education at all levels, at least of equal quality with the general population.
5. The states shall include in their general educational systems, content reflecting the pluricultural nature of their societies.
6. The states shall provide financial and any other type of assistance needed for the implementation of the provisions of this article.
Article X. Spiritual and religious freedom
1. Indigenous peoples have the right to freedom of conscience, freedom of religion and spiritual practice, and to exercise them both publicly and privately.
2. The states shall take necessary measures to prohibit attempts to forcibly convert indigenous peoples or to impose on them beliefs against their will.
3. In collaboration with the indigenous peoples concerned, the states shall adopt effective measures to ensure that their sacred sites, including burial sites, are preserved, respected and protected. When sacred graves and relics have been appropriated by state institutions, they shall be returned.
4. The states shall encourage respect by all people for the integrity of indigenous spiritual symbols, practices, sacred ceremonies, expressions and protocols.
Article XI. Family relations and family ties
1. The family is the natural and basic unit of societies and must be respected and protected by the state. Consequently the state shall recognize and respect the various forms of indigenous family, marriage, family name and filiation.
2. In determining the child's best interest in matters relating to the protection and adoption of children of members of indigenous peoples, and in matters of breaking of ties and other similar circumstances, consideration shall be given by courts and other relevant institutions to the views of the peoples, including individual, family and community views.
Article XII. Health and well-being
1. Indigenous peoples have the right to legal recognition and practice of their traditional medicine, treatment, pharmacology, health practices and promotion, including preventive and rehabilitative practices.
2. Indigenous peoples have the right to the protection of vital medicinal plants, animal and mineral in their traditional territories.
3. Indigenous peoples shall be entitled to use, maintain, develop and manage their own health services, and they shall also have access, on an equal basis, to all health institutions and services and medical care accessible to the general population.
4. The states shall provide the necessary means to enable the indigenous peoples to eliminate such health conditions in their communities which fall below international accepted standards for the general population.
Article XIII. Right to environmental protection
1. Indigenous peoples have the right to a safe and healthy environment, which is an essential condition for the enjoyment of the right to life and collective well-being.
2. Indigenous peoples have the right to be informed of measures which will affect their environment, including information that ensures their effective participation in actions and policies that might affect it.
3. Indigenous peoples shall have the right to conserve, restore and protect their environment, and the productive capacity of their lands, territories and resources.
4. Indigenous peoples have the right to participate fully in formulating, planning, managing and applying governmental programmes of conservation of their lands, territories and resources.
5. Indigenous peoples have the right to assistance from their states for purposes of environmental protection, and may receive assistance from international organizations.
6. The states shall prohibit and punish, and shall impede jointly with the indigenous peoples, the introduction, abandonment, or deposit of radioactive materials or residues, toxic substances and garbage in contravention of legal provisions; as well as the production, introduction, transportation, possession or use of chemical, biological and nuclear weapons in indigenous areas.
7. When a state declares an indigenous territory as protected area, any lands, territories and resources under potential or actual claim by indigenous peoples, conservation areas shall not be subject to any natural resource development without the informed consent and participation of the peoples concerned.
SECTION FOUR. ORGANIZATIONAL AND POLITICAL RIGHTS
Article XIV. Rights of association, assembly, freedom of expression and
freedom of thought
1. Indigenous peoples have the right of association, assembly and expression in accordance with their values, usages, customs, ancestral traditions, beliefs and religions.
2. Indigenous peoples have the right of assembly and to the use of their sacred and ceremonial areas, as well as the right to full contact and common activities with their members living in the territory of neighboring states.
Article XV. Right to self government
1. Indigenous peoples have the right to freely determine their political status and freely pursue their economic, social, spiritual and cultural development, and accordingly, they have the right to autonomy or self-government with regard to inter alia culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resource management, the environment and entry by nonmembers; and to determine ways and means for financing these autonomous functions.
2. Indigenous peoples have the right to participate without discrimination, if they so decide, in all decision-making, at all levels, with regard to matters that might affect their rights, lives and destiny. They may do so directly or through representatives chosen by them in accordance with their own procedures. They shall also have the right to maintain and develop their own indigenous decision-making institutions, as well as equal opportunities to access and participate in all state institutions and fora.
Article XVI. Indigenous Law
1. Indigenous law shall be recognized as a part of the states' legal system and of the framework in which the social and economic development of the states takes place.
2. Indigenous peoples have the right to maintain and reinforce their indigenous legal systems and also to apply them to matters within their communities, including systems related to such matters as conflict resolution, crime prevention and maintenance of peace and harmony.
3. In the jurisdiction of any state, procedures concerning indigenous peoples or their interests shall be conducted in such a way as to ensure the right of indigenous peoples to full representation with dignity and equality before the law. This shall include observance of indigenous law and custom and, where necessary, use of their language.
Article XVII. National incorporation of indigenous legal and organizational systems
1. The states shall facilitate the inclusion in their organizational structures, the institutions and traditional practices of indigenous peoples, and in consultation and with consent of the peoples concerned.
2. State institutions relevant to and serving indigenous peoples shall be designed in consultation and with the participation of the peoples concerned so as to reinforce and promote the identity, cultures, traditions, organization and values of those peoples.
SECTION FIVE. SOCIAL, ECONOMIC AND PROPERTY RIGHTS
Article XVIII. Traditional forms of ownership and cultural survival.
Rights to land, territories and resources
1. Indigenous peoples have the right to the legal recognition of their varied and specific forms and modalities of their control, ownership, use and enjoyment of territories and property.
2. Indigenous peoples have the right to the recognition of their property and ownership rights with respect to lands, territories and resources they have historically occupied, as well as to the use of those to which they have historically had access for their traditional activities and livelihood.
3. i) Subject to 3.ii.), where property and user rights of indigenous peoples arise from rights existing prior to the creation of those states, the states shall recognize the titles of indigenous peoples relative thereto as permanent, exclusive, inalienable, imprescriptible and indefeasible.
ii) Such titles may only be changed by mutual consent between the state and respective indigenous peoples when they have full knowledge and appreciation of the nature or attributes of such property.
iii) Nothing in 3.i.) shall be construed as limiting the right of indigenous peoples to attribute ownership within the community in accordance with their customs, traditions, uses and traditional practices, nor shall it affect any collective community rights over them.
4. Indigenous peoples have the right to an effective legal framework for the protection of their rights with respect to the natural resources on their lands, including the ability to use, manage, and conserve such resources; and with respect to traditional uses of their lands, interests in lands, and resources, such as subsistence.
5. In the event that ownership of the minerals or resources of the subsoil pertains to the state or that the state has rights over other resources on the lands, the governments must establish or maintain procedures for the participation of the peoples concerned in determining whether the interests of these people would be adversely affected and to what extent, before undertaking or authorizing any program for planning, prospecting or exploiting existing resources on their lands. The peoples concerned shall participate in the benefits of such activities, and shall receive compensation, on a basis not less favorable than the standard of international law for any loss which they may sustain as a result of such activities.
6. Unless exceptional and justified circumstances so warrant in the public interest, the states shall not transfer or relocate indigenous peoples without the free, genuine, public and informed consent of those peoples, but in all cases with prior compensation and prompt replacement of lands taken, which must be of similar or better quality and which must have the same legal status; and with guarantee of the right to return if the causes that gave rise to the displacement cease to exist.
7. Indigenous peoples have the right to the restitution of the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, occupied, used or damaged, or when restitution is not possible, the right to compensation on a basis not less favorable than the standard of international law .
8. The states shall take all measures, including the use of law enforcement mechanisms, to avert, prevent and punish, if applicable, any intrusion or use of those lands by unauthorized persons to take possession or make use of them. The states shall give maximum priority to the demarcation and recognition of properties and areas of indigenous use.
Article XIX. Workers rights
1. Indigenous peoples shall have the right to full enjoyment of the rights and guarantees recognized under international labor law and domestic labor law; they shall also have the right to special measures to correct, redress and prevent the discrimination to which they have historically been subject.
2. To the extent that they are not effectively protected by laws applicable to workers in general, the states shall take such special measures as may be necessary to:
a. effectively protect the workers and employees who are members of indigenous communities in respect of fair and equal hiring and terms of employment;
b. to improve the labor inspection and enforcement service in regions, companies or paid activities involving indigenous workers or employees;
c. ensure that indigenous workers:
i. enjoy equal opportunity and treatment as regards all conditions of employment, job promotion and advancement; and other conditions as stipulated under international law;
ii. enjoy the right to association and freedom for all lawful trade union activities, and the right to conclude collective agreements with employers or employers' organizations;
iii. are not subjected to racial, sexual or other forms of harassment;
iv. are not subjected to coercive hiring practices, including servitude for debts or any other form of servitude, even if they have their origin in law, custom or a personal or collective arrangement, which shall be deemed absolutely null and void in each instance;
v. are not subjected to working conditions that endanger their health and safety;
vi. receive special protection when they serve as seasonal, casual or migrant workers and also when they are hired by labor contractors in order that they benefit from national legislation and practice which must itself be in accordance with established international human rights standards in respect of this type of workers, and,
vii. as well as their employers are made fully aware of the rights of indigenous workers, under such national legislation and international standards, and of the recourses available to them in order to protect those rights.
Article XX. Intellectual property rights
1. Indigenous peoples have the right to the recognition and the full ownership, control and protection of their cultural, artistic, spiritual, technological and scientific heritage, and legal protection for their intellectual property through trademarks, patents, copyright and other such procedures as established under domestic law; as well as to special measures to ensure them legal status and institutional capacity to develop, use, share, market and bequeath that heritage to future generations.
2. Indigenous peoples have the right to control, develop and protect their sciences and technologies, including their human and genetic resources in general, seed, medicine, knowledge of plant and animal life, original designs and procedure.
3. The states shall take appropriate measures to ensure participation of the indigenous peoples in the determination of the conditions for the utilization, both public and private, of the rights listed in the previous paragraphs 1. and 2.
Article XXI. Right to development
1. The states recognize the right of indigenous peoples to decide democratically what values, objectives, priorities and strategies will govern and steer their development course, even where they are different from those adopted by the national government or by other segments of society. Indigenous peoples shall be entitled to obtain on a non-discriminatory basis appropriate means for their own development according to their preferences and values, and to contribute by their own means, as distinct societies, to national development and international cooperation.
2. Unless exceptional circumstances so warrant in the public interest, the states shall take necessary measures to ensure that decisions regarding any plan, program or proposal affecting the rights or living conditions of indigenous peoples are not made without the free and informed consent and participation of those peoples, that their preferences are recognized and that no such plan, program or proposal that could have harmful effects on those peoples is adopted.
3. Indigenous peoples have the right to restitution or compensation no less favorable than the standards of international law, for any loss which, despite the foregoing precautions, the execution of those plans or proposals may have caused them; and measures taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.
SECTION SIX. GENERAL PROVISIONS
Article XXII. Treaties, Acts, agreements and constructive arrangements
Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and constructive arrangements, that may have been concluded with states or their successors, as well as historical Acts in that respect, according to their spirit and intent, and to have states honor and respect such treaties, agreements and constructive arrangements as well as the rights emanating from those historical instruments. Conflicts and disputes which cannot otherwise be settled should be submitted to competent bodies.
Nothing in this instrument shall be construed as diminishing or extinguishing existing or future rights indigenous peoples may have or acquire.
The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the Americas.
Nothing in this instrument shall be construed as granting any rights to ignore boundaries between states.
Nothing in this Declaration may be construed as permitting any activity contrary to the purposes and principles of the OAS, including sovereign equality, territorial integrity and political independence of states.
Article XXVII. Implementation
The Organization of American States and its organs, organisms and entities, in particular the Inter-American Indian Institute and the Inter-American Commission on Human Rights shall promote respect for and full application of the provisions in this Declaration.