SITUATION OF THE HUMAN RIGHTS OF INDIGENOUS PERSONS AND PEOPLES IN THE AMERICAS
To date, the rights of indigenous persons and peoples have not been specifically regulated in the basic instruments that govern the inter-American human rights system. In effect, neither the American Declaration on the Rights and Duties of Man nor the American Convention on Human Rights and its additional protocols or other inter-American human rights treaties contain provisions that develop indigenous rights.
Indeed it is unusual--indeed inexplicable--to note that the only international instruments (treaties) on indigenous rights that exist have been codified not by the international human rights organs, but specifically by the International Labor Organization (ILO). There are two relevant conventions: Convention 107 and Convention 169. Convention 107 concerning the Protection and Integration of Indigenous and Tribal Populations and other Tribal and Semi-tribal Populations in Independent Countries (1957); and Convention 169 on Indigenous and Tribal Peoples in Independent Countries (1989). Convention 169 is a revision of Convention 107, with a much more progressive approach to the indigenous peoples, in which the value of that which is properly indigenous is accorded priority, setting forth provisions on the elimination of discrimination; respect for the culture and institutions of the indigenous peoples, including their forms of government and customary law, with special attention to the provisions of criminal law; indigenous territories and lands; and form of social investment in indigenous populations, work, health, education, and culture. Notwithstanding the importance of Convention 169, it is in force in only a few countries of the inter-American system (Canada, Bolivia, Brazil, Colombia, Costa Rica, Guatemala, Honduras, Mexico, Paraguay, and Peru). Argentina ratified it in 1984, but the instrument of ratification has yet to be deposited with the ILO.
The other international approach to the rights of indigenous peoples, which is not yet specially tailored to them, is embodied in the various instruments regarding the struggle against discrimination and the rights of minorities. The International Covenant on Civil and Political Rights, for example, provides that in those States with ethnic, religious, or linguistic minorities, persons who belong to them shall not be denied their rights, which they hold in common with other members of their groups, to their own cultural life, to practice and profess their own religion, and to use their own language (Article 27).
In the inter-American sphere, the rights of indigenous peoples are even more tenuous, for they are only to be found in the American Declaration and American Convention under the right to equality, within the provisions barring discrimination on grounds of race, color, language, religion, social status, etc. (Article II of the Declaration and Article 1 of the Convention).
Nonetheless, as we will reiterate below, this approach to the rights of indigenous peoples via the concepts of “minorities” or “prohibition on discrimination,” while the only mechanism in some cases, is incomplete and reductionist, and therefore inadequate.
It is important to note that in 1948 the Ninth International Conference of American States, which created the OAS and adopted the American Declaration on the Rights and Duties of Man, adopted the Inter-American Charter of Social Guarantees, which, in one of its last articles, includes a provision on indigenous rights. In effect, that provision, contained in the section on rural labor, provided:
Article 39. In those countries in which the problem of the native population exists, the necessary measures shall be taken to provide the Indian protection and assistance, protecting his life, liberty, and property, and defending him from extermination, and safeguarding him from oppression and exploitation, protecting him from poverty, and providing adequate education.
The State shall exercise its tutelage to preserve, maintain, and develop the assets of the Indians or their tribes, and shall promote the exploitation of the natural, industrial, and extractive wealth or other sources of income from such assets or related to it, so as to ensure, when appropriate, the economic emancipation of the indigenous groups.
Institutions or services should be created to protect the Indians, and in particular to ensure respect for their lands, to legalize their possession by them, and to prevent the invasion of such lands by outsiders.
In contrast with this situation in the inter-American system, the African Charter on Human and Peoples’ Rights of 1981 was the first human rights instrument not limited to individual rights, as it also sets forth the collective rights of peoples.
This more recent trend in relation to the rights of indigenous peoples was recognized in the 1993 Vienna Declaration, adopted by the World Conference on Human Rights. There, the indigenous movement was able to separate its declaration of rights (Article 20) from the declaration on the rights of minorities (Article 19), winning its own distinct specificity. This declaration reflected the principles of equality and non-discrimination, including the obligation of States to adopt positive measures, and the right of indigenous peoples to participate in the matters that concern them. Nonetheless, the failure of that Declaration to refer to the rights to indigenous territories and lands is glaring.
The United Nations has been discussing a Declaration on the Rights of Indigenous Peoples since 1982; it is now before a Working Group of the Commission on Human Rights. While serious disagreements among the States need to be worked out before the Declaration can be approved, the process has helped achieve significant advances in the countries’ positions and in the doctrine regarding the rights of indigenous peoples.
This very brief overview reflects the embryonic state of the treatment of the rights of indigenous peoples in international instruments.
More than 40 million persons who identify themselves as belonging to indigenous peoples live in the Americas, and it is estimated that there are no fewer than 400 indigenous ethnic groups and peoples. In general, and especially in Latin America, the indigenous are the poorest of the poor, and the most excluded of the excluded; in other words, they are among the poorest and most excluded persons in our societies.
The traditional approach to their rights, considering them as minorities, or barring discrimination, is not sufficient, as it fails to recognize the nature and complexity of indigenous peoples. The indigenous peoples are, in effect, more complex and complete than is suggested by the concept of minority, or even of ethnic group. In effect, the indigenous peoples constitute a history and cultures, languages, ethnic diversities, different forms of worship or religion, their own ancestral techniques, artistic traditions, institutions, legal regimes and forms of administration of justice, territories and habitat: the reality of the indigenous peoples, so rich and complex, is much more than a minority or a race. In addition, the rights of indigenous peoples have a simultaneous dual dynamic, consisting of the interconnection between individual rights and collective rights.
The foregoing analysis reflects the lack of specialized instruments in both the international and inter-American human rights system setting forth and developing the rights of indigenous peoples.
In the inter-American context, since 1941 the Mexico City-based Inter-American Indian Institute has had the function of supporting the indigenous policy of the member States, undertaking studies and analyses, and promoting policies for integral development and the eradication of poverty.
Since it was established in 1959, the Inter-American Commission on Human Rights (the “Commission” or the “IACHR”) has been promoting protection for the rights of indigenous peoples. In effect, the Commission has contributed to this task through its on-site visits and general reports on countries, dedicating special chapters to the situation of indigenous peoples (Colombia, Guatemala, Ecuador, Chile, Bolivia, Suriname, Brazil, and Mexico); or producing special reports (on the situation of the human rights of persons of Miskito origin in Nicaragua, 1987; and on the Communities of Peoples in Resistance in Guatemala, in 1994). In addition, the Commission, through its individual case system, has had the opportunity to resolve petitions from indigenous individuals or communities whose human rights have been violated. The Commission has resolved several cases since 1970 that are outlined herein, regarding both individual rights (e.g., to life and to liberty) and collective rights (e.g., to land, family). Furthermore, in 1972 the Commission adopted a major resolution on “Special Protection for Indigenous Populations, action to combat racism and racial discrimination,” affirming, among other principles, that “for historical reasons and moral and humanitarian principles, protecting especially the indigenous populations is a sacred commitment of the States.”
Finally, pursuant to an application by the Commission, in 1993 the Inter-American Court of Human Rights resolved the case of Aloeboetoe v. Suriname, in which it recognized the lawfulness of reparations based on indigenous customary family law, including polygamy as practiced by that community, in the context of a massacre of members of the indigenous community. Recently, in 1998, the Commission submitted a new case to the Inter-American Court (“Awas Tingi v. Nicaragua”) regarding judicial guarantees and the guarantee of the consultative participation of the indigenous peoples in their territories.
In summary, the inter-American system of human rights needs to be strengthened in this area by several initiatives that include objective provisions, adopted by the member States of the OAS, who establish their own minimal standards in each case with respect to the rights of indigenous peoples. This has also been recognized by the Heads of State and Government at the Summit of the Americas, held in 1998 in Santiago, Chile. Its objective will be, first, to compel the states to adopt and develop necessary measures in their own domestic law to guarantee the effective observance of the rights declared. Second, a declaration on the rights of indigenous peoples will facilitate more in-depth and specialized action on the part of the organs of the system (Commission and Court) in the promotion and defense of the rights of the indigenous peoples of this hemisphere.
At the initiative of the Commission, since 1989, and at the recommendation of the OAS General Assembly, the Commission began its work to prepare a Declaration on the rights of indigenous peoples. After two rounds of consultation and other activities to discuss the Declaration in the member states, and with several indigenous groups of the hemisphere, on February 27, 1997, the Commission, at its 95th session, approved the document entitled “Proposed American Declaration on the Rights of Indigenous Peoples.” That instrument, which we present here among the materials contained in this publication, has a preamble and 37 articles. The preamble contains preliminary declarations in relation to the indigenous institutions and the need to strengthen them nationally; the eradication of poverty and the right to development; indigenous culture and ecology; living in harmony with others, respect, and non-discrimination; territory and indigenous survival; security and indigenous areas; international human rights instruments and other advances in international law; the enjoyment of collective rights, and advances in domestic law. The Declaration has six sections, on: indigenous peoples; human rights; cultural development; organizational and political rights; social, economic, and property rights; and general provisions. Each section of the Declaration is made up of various articles, as follows:
I. scope of application and definitions
II. full observance of human rights right to belong to indigenous peoples juridical personality rejection of assimilation special guarantees against discrimination
III. right to cultural integrity logical conceptions and language education spiritual and religious life family relations and ties health and well-being right to protection of the environment
IV. rights to association, assembly, freedom of expression and thought right to self-government indigenous law national incorporation of indigenous legal and organizational systems
V. traditional forms of ownership and cultural survival right to lands and territories labor rights intellectual property rights right to development
VI. treaties, acts, agreements, and constructive arrangements interpretation implementation
The proposed American Declaration establishes that its scope of application is to the indigenous peoples and others whose traditions or customs allow them to be encompassed as well. In order to determine who belongs to an indigenous people, the Declaration defers to “self-identification” and the traditions and norms of each people. In addition, like ILO Convention 169, the Declaration clarifies that the term “people” used in it should not be interpreted as per its meaning in international law (self-determination as a state), and thus it cannot lead to any failure to recognize the boundaries of states, nor to ignore the principles of the OAS, including the sovereign equality, territorial integrity, and political independence of states.
Finally, as regards the rules of interpretation, the proposed Declaration establishes that it may not be interpreted so as to exclude or limit present or future rights that indigenous peoples may have or acquire. In addition, the rights recognized in the Declaration constitute the standard minimum for the survival, dignity, and well-being of indigenous peoples in the Americas.
The Declaration proposed by the Commission was submitted to a Meeting of Government Experts held at the OAS in February 1999, pursuant to the guidelines established by the General Assembly in 1998, in Caracas. That meeting was the first governmental meeting of the OAS with the participation of representatives of indigenous peoples of the hemisphere. As detailed in the publication we present, certain decisions were made at that meeting regarding the document.
By decision of the General Assembly held in Guatemala in 1999, during 1999 and leading up to the General Assembly to be held in Canada (2000), preparatory meetings are to be held, also organized by the Committee on Juridical and Political Affairs of the OAS Permanent Council. To this end, the Working Group on the Declaration met at the OAS in November 1999.
We should take the opportunity of the publication of this volume to recognize the work of the members of the Commission who served before as rapporteur on the rights of the indigenous peoples, and who contributed to carrying out the tasks of the Commission in this area. They are Patrick Robinson, Michael Reisman, and John Donaldson, with the effective support of the Executive Secretary of the Commission, Ambassador Jorge Taiana. In particular, I would like to highlight the work put into this report by Commission principal specialist, attorney Osvaldo Kreimer, for his vocation and professional dedication to the rights of indigenous peoples, to which he has contributed in singular fashion since 1989.
The publication introduced here is directed to the peoples and states of the Americas, to contribute to the process of adopting the American Declaration on the Rights of Indigenous Peoples. In addition, this publication is intended to disseminate not only the process and the instrument being proposed, but also the case-law and doctrine that has been developed in recent years by the inter-American human rights system with respect to the indigenous persons of the Americas and their peoples. We hope that this effort will help increase awareness throughout the hemisphere on these issues, which are of such importance to the future of our Americas and their peoples.
Carlos M. Ayala Corao
Special Rapporteur on the Rights of Indigenous Peoples (1996-1999)
Inter-American Commission on Human Rights