CHAPTER I

HISTORICAL BACKGROUND OF THE RIGHTS OF INDIGENOUS PEOPLES UNDER THE INTER-AMERICAN SYSTEM

1. BACKGROUND ON INTER-AMERICAN INDIGENOUS ISSUES

On February 27, 1997, the Inter-American Commission on Human Rights (hereinafter “the Commission�? or the “IACHR�?) in adopting the Proposed American Declaration on the Rights of Indigenous Peoples, passed a milestone in its efforts to promote observance and defense of the human rights of the indigenous peoples of the Americas. Those efforts began in 1971, when the Commission found that indigenous peoples had a right to special legal protection because they had endured severe discrimination[1], and 1972, when it held in its resolution on the problem of “Special Protection for Indigenous Populations. Action to combat racism and racial discrimination,�? that, “for historical reasons and because of moral and humanitarian principles, special protection for indigenous populations constitutes a sacred commitment of the states.�?[2]

Since then, the Commission has received and processed hundreds of petitions concerning situations that afflict indigenous people and their communities, and, in doing so, has basically applied the precepts contained in the American Declaration of the Rights and Duties of Man of 1948, and the American Convention on Human Rights of 1969.[3] In response to those petitions the Commission has issued resolutions, reports, and recommendations to the states, as well as requesting them to adopt urgent measures to ensure respect for the rights that are recognized by the inter-American instruments on human rights and that the states have undertaken to respect and ensure for all their inhabitants. As is analyzed in greater depth in the main body of this report, those petitions dealing with cases in which the victims are indigenous people and communities have to do, in particular with violations of the rights to life, personal liberty, humane treatment, property, dignity, judicial protection, and a fair trial; however, they also have implications for their functioning and collective rights, within each state, as communities, societies, and cultures with their own way of life and values within each state.

The Commission has also exercised its mandate to supervise and promote observance of human rights through its Special Reports on the situation of human rights in member countries, by having studied and reported on, in particular, the situation of indigenous peoples in Colombia (1993 and 1999), Guatemala (1993), Ecuador (1997), Brazil (1997), Mexico (1998), and Peru (2000), as well as the situation of the Miskitos in Nicaragua and the situation of Communities of Peoples in Resistance in Guatemala.

In 1990 the Commission decided to appoint Commission Member, Dr. Patrick Robinson as Special Rapporteur on the rights of indigenous peoples, a task that he performed until his mandate came to an end in 1996. During that period he was instrumental in the preparation of the proposed Declaration, an undertaking he carried out jointly with Commission Member, Professor Michael Reisman, and with Principal Specialist, Dr. Osvaldo Kreimer, who, since 1989, has been pursuing the task assigned to him by the Executive Secretariat of supporting the Office of the Rapporteur, and of directing the activities of drafting and consultations on the Declaration. In 1996, Commission Member, Dr. Carlos Ayala Corao was appointed Rapporteur on this issue, and played a central role in the drafting and final adoption of the Proposed Declaration that was submitted in 1997 to the General Assembly, and in guidance and development of this issue within the various mechanisms of the Commission. In March 2000 Commission Members Claudio Grossman and Julio Prado Vallejo were appointed as Rapporteurs.

At the suggestion of the Rapporteur, the Commission decided to prepare this report in order to encourage access to its doctrine and documents on special situations involving indigenous persons, communities and peoples. This first section on historical background is followed by Section II, which addresses the legal doctrine developed by the Commission on this issue; Section III, which contains a compilation of studies published on the situation of indigenous peoples in certain countries; and Section IV, which summarizes the preparation process of the Proposed American Declaration on the Rights of Indigenous Peoples adopted by the Commission in 1997, and currently under consideration by the political bodies of the OAS.

The Inter-American Commission on Human Rights has enhanced and given fresh impetus to an inter-American initiative in this area that was launched in 1922 when the Fifth International Conference of American States -a forerunner agency of the OAS- requested the governments to encourage study of the respective aboriginal languages and to adopt measures to ensure respect for archeological monuments. That initiative was continued subsequently by the Conferences of the Pan American Union, where the States, in 1933, called for an international meeting of indigenists to be organized in order to examine “the problem of the native races and the civilizations of tribes in the great jungles;�? and, in 1938, declared that “the indians, as descendants of the first settlers of the Americas have a special right to the protection of the public authorities, in order to compensate for the inadequacy of their physical and intellectual development and, in consequence, all that may be done to improve the lot of indians shall be just reparation for the lack of understanding with which they were treated in times past…�?.

These early efforts led to the holding of the First Inter-American Indian Congress in Pátzcuaro, Michoacán, Mexico, in April 1940, where the states issued seventy-two agreements and declarations on, inter alia, distribution of indigenous lands, indigenous education policy, matters relating to their political and social well-being, social services, indigenous women, and respect for their languages. That Congress created the Inter-American Indian Institute.[4]

The Inter-American Charter on Social Guarantees adopted in 1948 at the same time as the American Declaration of the Rights and Duties of Man[5], contains detailed articles on the obligations of states and rights of indigenous persons specifically designed to protect “life, personal liberty, and property, by defending him [the indian] from extermination, safeguarding him from opression and exploitation, protecting him from poverty, and providing him with a decent education.�? As well as recommending measures “to preserve, maintain and develop the heritage of indians or of their tribes,�? the Charter of Social Guarantees mentioned that “institutions or services should be created for the protection of indians and, in particular, to ensure respect for their lands, to legalize their ownership thereof, and to prevent invasion of such lands by outsiders.�?

2. THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTS AND INDIGENOUS RIGHTS

A. The Inter-American Legal and Institutional Framework

Every state that respects human rights and is concerned with democratic and effective development is built on equality and non-discrimination of its inhabitants, and their full involvement in public, social and economic affairs, by capitalizing on and developing their human, cultural and organizational values. The foregoing is recognized by the inter-American instruments on human rights and the Charter of the Organization of American States, which states, inter alia, that:

The Member States agree that equality of opportunity, the elimination of extreme poverty, equitable distribution of wealth and income and the full participation of their peoples in decisions relating to their own development are, among others, basic objectives of integral development.[6]

The inter-American system of human rights establishes and defines a set of basic rights for all inhabitants, as well as obligatory standards of conduct for the states and their agents to promote, protect and ensure those rights; and possesses organs that promote and defend observance of those rights and standards. The American Convention on Human Rights (Pact of San José) and the American Declaration of the Rights and Duties of Man, the principal normative instruments of the system, provide a series of individual rights that are particularly relevant to the plight of indigenous people of the member countries. The Preamble of the Declaration states that:

All men are born free and equal, in dignity and in rights, and, being endowed by nature with reason and conscience, they should conduct themselves as brothers one to another. Since culture is the highest social and historical expression of […] spiritual development, it is the duty of man to preserve, practice and foster culture by every means within his power.

Other articles of the Declaration and the Convention establish the obligation of the states to respect and ensure respect for life, personal liberty, and humane treatment. In no circumstances, including states of emergency (armed conflicts, state of siege, etc.), may a state party to the Convention suspend these or any other rights that are regarded as essential.[7] The IACHR has taken up and pronounced a decision in many cases of violations of the aforesaid rights to life, personal liberty, and humane treatment where the victims have been indigenous individuals and groups, and which occurred in a context of repression of internal armed conflict in several countries.

Those instruments also recognize other rights that are of particular relevance to indigenous people, such as the right freely to profess their religious ideas and beliefs and to manifest and practice them both in public and in private (Article III of the Declaration and 12 of the Convention); right to the preservation of health and to well-being (Article XI); to the benefits of culture, (Article XIII); to recognition of juridical personality and civil rights (Articles XVII and 3); to vote and to be elected to public office (Articles XX and 25); to freedom of association to promote, exercise and protect their rights regardless of their nature (Articles XXII and 16); to own, use and enjoy their property (Articles XXIII and 21); to privacy (Articles V and 11); and to a fair trial and due process (Articles XVIII, XXV, XXVI, 8 and 25).

On ratifying the American Convention, the states acquire binding obligations.[8] The American Declaration is also a source of legal obligations as the instrument which sets forth the human rights obligations of member states to the OAS Charter, and because many of the provisions contained therein have become international customary law.[9]

The Inter-American Commission and the Inter-American Court, (the Inter-American Commission on Human Rights has its headquarters in Washington D.C., USA; and the seat of the Inter-American Court of Human Rights is in San José, Costa Rica) are the organs of the inter-American system for the protection of human rights. The Commission and the Court may also apply special international instruments as complementary provisions: for instance, ILO Convention No. 169 concerning “Indigenous and Tribal Peoples in Independent Countries.�?[10]

The Inter-American Commission, the organ of the OAS in charge of promotion of observance and protection of human rights in the Americas, has a special role to play in furthering compliance with international provisions on human rights. In addition to processing petitions on individual cases of alleged violations of rights of persons or groups (see Section I. c. 2) and, as appropriate, of submitting them to the Court, the Commission also permanently monitors the general situation of human rights in each member state and, when it believes it to be warranted, conducts observation missions. It also prepares special reports, which may encompass the general situation of a member country (see Section III), or be issue-specific, for instance, on the status of women[11] or prison conditions in the region.[12]

As well as processing petitions on individual cases and monitoring the general situation of human rights in the member states, a third area of work of the Commission is preparation of future inter-American instruments on issues within its sphere of competence, such as, for instance, the Proposed American Declaration on the Rights of Indigenous Peoples, which it adopted and referred to the General Assembly for consideration in 1997 (see Section IV). The IACHR had previously drawn up other draft instruments, including the American Convention on Human Rights itself, the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on Forced Disappearance of Persons, and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights "Protocol of San Salvador."[13]

The Court exercises compulsory jurisdiction to interpret and apply the provisions contained in the Convention in individual cases submitted to it by the Commission or the states, when the latter have accepted the jurisdiction of the Court.[14] The Commission has referred to the Court several cases dealing with violations of rights of indigenous individuals and communities.[15] The Inter-American Court of Human Rights, established by the American Convention, further exercises advisory jurisdiction to interpret human rights norms in force in the Americas. The advisory opinions of the Court constitute authoritative interpretations of said norms.

Other agencies of the OAS also addressed the issue of indigenous rights. Foremost is the Inter-American Indian Institute, which was created in 1940, has its headquarters in Mexico City, and is composed of 17 countries of the Americas. Its Governing Board is made up of the governmental indigenist agencies of those countries. The III conducts technical meetings and studies, as well as publishing the magazine América Indígena, of which more than 250 issues have been published in its 60-year history. In turn, the various technical cooperation agencies of the OAS, in the areas of education, social and economic development, and, in particular, the Office of Culture (now part of CIDI - Inter-American Council for Integral Development) have, over the past five decades, carried out a large number of projects targeted at different aspects of development of indigenous peoples and their cultures. The Unit for Promotion of Democracy of the General Secretariat has also undertaken projects concerned with indigenous issues, in particular in the area of training on settlement of disputes over indigenous lands and resources.

Looking at the history of the hemisphere to the present, it is clear that the challenge of consolidating the truly participatory democracy, to which the member states of the OAS have committed themselves[16], requires strengthening the participation of all social sectors in the political, social and economic life of each nation. The more than 40 million indigenous men, women, and children in the Americas belonging to some 400 peoples, in some cases comprising a majority and in others a minority of the population of each country, are in all cases necessary players in bringing about the full development of national identities and cultures. Moreover, the economic, political and social input of indigenous people is essential if the democracies and institutions of those countries are to function to their full potential. Protection of the human dignity and of the individual and collective rights of indigenous people is a part of that objective.

The foregoing has been underscored by the Heads of State and of Government at the Summits of the Americas, both in Miami (1994) and in Santiago (1998). At the latter they pledged to:
Proceed with inter-governmental examination of the Proposed American Declaration on the Rights of Indigenous Peoples prepared by the IACHR.

Support activities in the field of education aimed at improving indigenous participation in society, strengthen their identity, and promote respectful coexistence among different social groups.

Promote the widening of basic and secondary education services with training orientation, mainly in regions with high percentages of indigenous populations, and to support and promote capacity building activities and productive projects. To the extent possible, these should be administered by indigenous populations.

It is important to emphasize that this inter-governmental policy implemented through the OAS, is sustained by progress made at the national level by the states, which, especially in the last two decades, have adopted public policies, concrete measures – particularly as regards demarcation and recognition of indigenous territories, and increasingly far-reaching and positive legislation for the development of those peoples within the framework of the multicultural reality of the American nations.

B. The Protection Mechanisms of the Inter-American System of Human Rights

As the principal organ of the OAS mandated to promote and protect human rights in the hemisphere, the Inter-American Commission on Human Rights has a unique role to play in assisting the member states in their efforts to respect and ensure the rights of the individuals subject to their jurisdiction. Among its many functions, the Commission is charged with:

promoting awareness of human rights in the Americas;
providing member states with advisory services in the field of human rights;
monitoring the situation of human rights in each member state and carrying out on-site observations;
acting on individual petitions alleging human rights violations;
preparing studies and reports; and
making recommendations to OAS member states for the adoption of progressive measures in favor of human rights.

One of the exceptional characteristics of the inter-American human rights system is the amplitude of its mandate and the diversity of mechanisms through which it can take action.

C. The individual petition system

Any person or group can file a petition alleging the violation of the American Convention, or of the American Declaration. While it is usually necessary to identify the victim so that the respective state can investigate and respond to the allegations, the identity of the petitioner may be kept in confidence. The petition must be in writing, it must be signed, and it must set forth facts which tend to show the violation of a protected right.

Once a petition is reviewed and the basic requirements to initiate processing are deemed to have been met, the American Convention and the Commission's Statute and Regulations provide for a process to gather information. This includes transmitting the relevant portions of the petition to the Government with a request for information in response. The petitioner will have the opportunity to submit observations on any response, as well as additional information, and the Government will thereafter be requested to submit its own observations. This process may be repeated when necessary. The Commission may, at the request of a party or its own initiative, convene both parties for a hearing to receive new information, testimony or legal arguments. The Commission also has the competence to carry out an on site investigation of an individual case, although this is exceptional.

In order for the Commission to admit a case under the American Convention, American Declaration, for consideration on the merits, it must be satisfied that certain requirements have been met. First, and most importantly, because international and regional human rights systems are designed to be subsidiary to national systems, the party alleging the violation must have exhausted all available remedies under domestic law. Exceptions may be made when the legislation of the state concerned did not provide due process, the party was denied access to those remedies, or when there was unwarranted delay in reaching a final judgment--in other words, if remedies were unavailable as a matter of law or fact.

Second, a petition must be submitted in a timely manner. In the case where a final judgment has been issued by a domestic court, the petition must be filed with the Commission within six months of notification. Otherwise, it must be filed within a reasonable time from the occurrence of the situation denounced. Third, the Commission will not examine a complaint which essentially duplicates a petition pending or previously settled by itself or by another international governmental organization of a similar nature. Where a case is opened, but the basic requisites such as the foregoing are not shown to have been met, the Commission will declare the case inadmissible.

At any stage during the processing, the Commission is authorized pursuant to Article 48.1.f of the Convention to facilitate the "friendly settlement" of the situation denounced if the parties wish to avail themselves of that procedure. Generally, once the initial written proceedings have been completed, the Commission will notify both parties that it is placing itself at their disposal for this purpose for a fixed period of time. If the parties are so disposed, the Commission will assist, for example, by arranging meetings, transmitting communications, and otherwise mediating negotiations. Pursuant to the terms of Article 48.1.f, any agreement reached by the parties will be reviewed by the Commission to evaluate whether it is in accord with "respect for the human rights recognized" in the American Convention before the matter can be deemed to have been amicably resolved.

When a case has not been resolved through friendly settlement, and is ready for decision, the Commission draws up an initial report of its findings referred to in Article 50 of the Convention to send to the State in question. In cases where a violation has been established, the Commission sets forth recommendations to be implemented by the State, generally aimed at securing a full investigation of the facts, the prosecution and punishment of those determined responsible, and action to repair the consequences suffered by the victim. The State has a first confidential opportunity to take action on the recommendations, and is asked to report within a fixed time on the measures taken. The Commission will evaluate any response received and decide between two alternatives. It may adopt a final report, referred to in Article 51 of the Convention, to be sent to both parties, in which it will report on the extent of compliance with its recommendations, and, where necessary, issue recommendations with an additional period for action. After that period has expired, the Commission will decide whether to publish the final report.[17] As an alternative to adopting a final report, if the State in question has accepted the compulsory jurisdiction of the Inter-American Court, the Commission may decide to submit the case for adjudication.

D. Request to states for precautionary or provisional measures

The Commission and Court also have the capacity to request that a State take protective action on an urgent basis. Pursuant to Article 29 of its Regulations, in "urgent cases, where it becomes necessary to avoid irreparable damage to persons, the Commission may request that precautionary measures be taken to avoid irreparable damage in cases where the denounced facts are true." The Commission may request that the Court order the adoption of provisional measures under similarly grave circumstances in a matter that has not yet been submitted to the Court for consideration. This emergency action is taken without prejudice to any future decision on the merits of the situation denounced, and is generally taken to protect the life and/or physical and mental integrity of individuals.[18]

[1] In that resolution the Commission called on the member states “to implement the recommendations made by the Inter-American and Indianist Conferences (see box on “Background on Inter-American …�?) and, in particular, the provisions contained in Article 39 of the Inter-American Charter of Social Guarantees.�?
Davis, Sheldon “Land Rights and Indigenous Peoples. The Role of the Inter-American Commission on Human Rights�?. Cultural Survival Report 29. Cambridge, Mass, 1988.
[2] That resolution is transcribed in Report 12/85 (Yanomami Case), which is reproduced herein. It is interesting to recall that in that same year the U.N. Economic and Social Council invited the OAS and it specialized agencies, in particular the IACHR and the Inter-American Indian Institute “to collaborate in eradicating all forms of discrimination against indigenous populations.�? Cited by Davis, S. Op.cit. p.8
[3] The Commission also uses as a complementary provision for purposes of interpretation (lex specialis) ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, based on the principle of full guarantee established by Articles 29 (b) and 64 of the American Convention (in this connection see, Inter-Am. Ct. H.R., Advisory Opinions OC 1-83, para. 42, and O.C. 10).
[4] See “International Conferences of American States, 1889-1936,�? and “International Conferences of American States, 1938-1942,�? Carnegie Endowment Washington D.C. 1938 and 1943, respectively.
[5] Adopted by the Ninth International Conference of American States, (Bogota, 1948) convened by the Pan American Union, the immediate predecessor of the OAS
[6] Charter of the OAS, Article 34.
[7] The rights that cannot be suspended under Article 27(2) are those set forth in the following articles: 3 (Right to Juridical Personality), 4 (Right to Life), 5 (Right to Humane Treatment), 6 (Freedom from Slavery), 9 (Freedom from Ex Post Facto Laws), 12 (Freedom of Conscience and Religion), 17 (Rights of the Family), 18 (Right to a Name), 19 (Rights of the Child), 20 (Right to Nationality), and 23 (Right to Participate in Government). This prohibition also applies to the judicial guarantees essential for the protection of the aforesaid rights.
[8] The following member states are parties to the American Convention on Human Rights: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad and Tobago, United States, Uruguay, and Venezuela.
[9] See, in general, Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89 of July 14, 1989, Inter-Am. Ct.H.R. (Ser. A) No. 10 (1989).
[10] In that respect, in its Advisory Opinion 1/82, the Inter-American Court has held that the Commission “has properly invoked other treaties concerning the protection of human rights…�? and that that to exclude them would weaken the principle of full guarantee enunciated in Articles 29 (b) and 64 of the American Convention. Similarly, in its Advisory Opinion 10/89, the Court has mentioned that American law of human rights “must be interpreted and applied within the overall framework of the juridical system in force at the time of the interpretation.�?
[11] “Report of the IACHR on the Status of Women in the Americas,�? OAS/Ser.L/V/V/II.100 Doc 17, October 13, 1998.
[12] IACHR, Annual Reports 1996 and 1997.
[13] All these reports are published in “Basic Documents Pertaining to Human Rights in the Inter-American System�? OAS/Ser.L/V/I.4 Rev.7, February 2, 2000, and are available for consultation on the IACHR web page at www.cidh.org
[14] As of the date of this publication the following states have accepted the compulsory jurisdiction of the Court: Argentina, Bolivia, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad and Tobago, Uruguay and Venezuela.
[15] Inter alia, the Colotenango (Guatemala), María Mejía (Guatemala), and Awas Tingi (Nicaragua) cases.
[16] See “The Hemispheric Summits Process. The OAS and its Contribution on behalf of Indigenous Peoples.�? General Secretariat of the OAS. Washington, D.C., 1998.
[17] With respect to the member states not party to the American Convention, once the processing has been completed, the Commission will issue a final decision including the facts and its conclusions, and recommendations where pertinent, with a deadline set for compliance. Where the measures recommended are not implemented within that deadline, the Commission may decide to publish its decision. There is a procedure, which may only be utilized once, whereby a party to the case may request that the Commission reconsider its conclusions or recommendations.
[18] The Commission has requested various states to adopt special measures to provide immediate protection to threatened indigenous populations. Among many others, the Commission has requested precautionary measures for indigenous communities and persons in Brazil, Guatemala, Mexico, Paraguay, and Peru.