CHAPTER II

PREPARATORY DOCUMENTS FOR THE
DRAFT AMERICAN DECLARATION OF THE INDIGENOUS PEOPLES

DOCUMENT 1. JUSTIFICATION AND RECOMMENDATION TO THE GENERAL ASSEMBLY OF THE OAS ON THE PREPARATION OF AN INTER-AMERICAN INSTRUMENT ON THIS MATTER (MARCH 1989)[1]

The fact that 1992 marks 500 years since the arrival of the Iberian conquerors on this continent offers a singular perspective for analyzing the historical elements that have shaped the problems suffered by indigenous populations.

Generally, these populations have been vulnerable as regards the physical, psychological, spiritual, economic, legal, and institutional aspects of life. Their present situation is one of need, and in many cases they are marginalized from even the most basic guarantees available to the general population.

Even more important is the preservation and development of the indigenous cultures and their populations’ rights. This is recognized not only as an ethical obligation of States out of respect for, and in reparation for, the abuses and deprivations that were forced upon them for centuries, but also as a socio-economic necessity for States to draw upon these peoples as a source of wisdom, customs, and values for the building of modern societies.

Along the same lines, at the present stage of development, the exploitation of all available resources is crucial. Nevertheless, development projects are often a threat to these populations, even when these projects could be much more effective if they were adequately synchronized with the knowledge and customs of the indigenous peoples and respectful of their rights.

On the other hand, intentionally or not, many of the philosophical premises upon which a good part of most countries’ legislation is based have contributed to the erosion of the cultures of indigenous peoples and their survival. This has been principally manifested in different kinds of legislation, regarding for example, land tenure, water rights, civil status, education, and even in constitutional law. Such legislation, however, could have taken advantage of the collective experience of the indigenous populations in order to offer greater and more efficient normative options for harmonious growth and social development.

As to international law, the valuable and sustained efforts realized –especially within the United Nations—towards establishing effective norms are far from completed. Along these lines, the United Nations General Assembly approved various resolutions which reaffirm the importance of raising the standard of living of indigenous populations;[2] and the respect for the passing on of indigenous cultural traditions.[3] The Economic and Social Council, under the Subcommission on the Prevention of Discrimination and the Protection of Minorities, began to engage in studies of discrimination against indigenous populations in 1971.[4] This same subcommission created a working group on indigenous populations that has been meeting since 1982 and is currently preparing a draft of a Universal Declaration of Indigenous Peoples’ Rights.

The International Labor Organization (ILO) has drafted conventions on the working conditions, education, training, and safety of indigenous workers since 1921. These efforts culminated in 1957 ILO Convention Nº 107, which is presently ratified by 14 countries in the Americas. The Convention, however, has recently been revised in order to respond to criticism coming mainly from organizations of indigenous peoples about “ethnocentric�? or “paternalistic�? character.

Certain legal and institutional steps have been taken within the inter-American system as well. Aside form precepts of the OAS Charter, the Inter-American Charter of Social Guarantees of 1948, the American Declaration of the Rights and Duties of Man, and the American Convention on Human Rights, both the mandates and projects of the Inter-American Cultural Council as well as its successor, the Inter-American Council for Education, Science and Culture (CIECC), have overseen specific actions and measures related to the aboriginal populations.

The Inter-American Indian Institute, created by a Convention adopted in 1940 and later ratified by 17 American countries, deserves special mention. This Institute in spite of its modest resources, has been active in the area of scientific investigation regarding indigenous affairs and promoting the training and exchange of experts on these issues.

The Inter-American Commission on Human Rights has also adopted important resolutions and reports dealing with the rights of indigenous peoples in the OAS member States during its thirty years of activity.[5]

Despite these achievements, the Commission is convinced that it should progress further in order to reflect the Organization of American States’ concern for the special and unique problems faced by the aboriginal populations of the Americas in the area of human rights.

In an attempt to respond to these concerns, the Commission, while recognizing the diversity of situations, advocates the need to establish common international norms valid for the indigenous peoples of America.

Approximately 400 aboriginal ethnic groups exist in America, differentiated by culture, language, and lifestyle, which comprise population surpassing 30 million people, according to the conservative estimates. This figure represents approximately 10% of the total population of Latin America, with an increasing demographic importance. These include small jungle tribes to important indigenous peasant societies that are strong and well-organized in certain Andean countries.

There are many important reasons for stating the need for creating common international legal norms for the protection of these groups’ human rights, despite their diversity and the different levels of integration into national society that they represent.

In the first place, the groups share a common basic problem. The inferiority and disdain with which these cultures have been treated since the time of the conquest has generated a commonality in the basic problems which affect these peoples. Certain problems such as: the direct attempts at physical or cultural genocide; the legal or de facto disregard for their institutions or rights; the usurpation of their lands or their right to collective and permanent use of their habitat; their legal or de-facto condition as second-class citizens; the rejection or ignorance of their cultural and pedagogical practices; and consequently, the generalized destruction and erosion of their standards of living; have in some way, usually intensively, threatened or affected all of the indigenous tribes and their members.

The transcendental value of an international norm is a second reason for calling for international standards. While in the short term the international norm might be less effective than the national, its capacity for mobilizing national legislation from a broader perspective invariably facilitates national efforts along these lines. And, since many of the indigenous cultures transcend the political borders of a particular country, the universality of the norm can guarantee greater fairness in the protection of, and accommodation to the needs of said peoples, offering a common framework for national or local legislation.

The adoption of the proposed instrument also has a pedagogical value. Many of the de facto or legal situations that affect indigenous populations arise form ignorance or lack of understanding of their values, rights and the processes necessary for the adequate development of cultural pluralism. In this respect one should recall the Supreme Court of an American country in which the impunity of landowners who had assassinated indigenous people were granted impunity on the argument that these assassins shared a general belief that the natives were inferior beings, unprotected by the law. The definition, by international bodies, of common basic norms for the treatment of issues like this would be of use as guidelines for the whole population, obligating it to reevaluate concepts to modify prejudices and to discover valuable and positive elements that were previously unknown to them.

The problem of the indigenous populations is specific to the American region. As was expressed earlier, 1992 offers a privileged perspective the analysis of the historical conditions that have shaped the problems that affect the indigenous populations and society, in general, through their reciprocal relations.

J. Marti wrote in “Our America�? that …�? this pretension of the impossible denial and forgetting was what originated a divided society, porous and without consistency.�? While the efforts at understanding and recognition began at least as early as the activities of the Fathers Las Casas and Montesinos, it is only recently that national legislations have begun to recognize and respect the institutions and specific characteristics of the indigenous peoples. Upon analysis of these laws, the specificity of the problems that affect the American natives is revealed to be generally associated to land tenure, the respect given to their institutions, and the recognition of their equality within a context of cultural autonorny. Some background material worth mentioning which demonstrates the specificity of the indigenous American problems includes: the Brazilian Law on the Indian (Estatuto do Indio, Lei 6001 (Dec. 1973)) and the Brazilian Constitution (1988), the Law for Indigenous Policy of Argentina (1984); the legal concept of indigenous community established in Paraguay in 1981 and its self-definition as a multi-lingual country; the same in Ecuador; the concept of ethno-education proposed by the Betancur Law in Colombia; the recognition of the ethnic pluralism constituting the Nation of Guatemala (article 66 of the 1985 Constitution); the 1986 Constitution of Nicaragua and the Statute for the Autonomy of the Atlantic Coast (1987); the numerous treaties between Native American Nations in the United States and the Federal Government between 1867 and 1971; the recognition of the Caribs’ Reserve in Dominica (West Indies) after its independence; and the Panamanian recognition of the Kuna Nation in a special Organic Charter.

Another indicator of the specificity of the regional situation is provided by the inadequacy of international law in the area. The U.N. International Covenant on Civil and Political Rights, for example, does not include collective rights, and the rights, in general, are protected negatively, in that there is no obligation on the States to take affirmative action to improve the current situation. Also, although Article 27 of the Covenant protects the cultural rights of ethnic minorities, it does not distinguish between minorities and indigenous peoples, an important cultural pluralism in America.

The Commission, therefore, proposes the adoption of an international instrument the objective of which would be to define the rights of indigenous peoples. However, the Commission declines to take a position on the possible legal nature of such an instrument, leaving that decision to be taken by the member States’ own governments. In this regard, the most feasible alternatives are a Declaration adopted by means of a General Assembly Resolution, or, an Additional Protocol to the American Convention on Human Rights, or a separate inter-American convention having no connection to the Pact of San Jose, Costa Rica. The possibility of adopting at least two of these instruments successively might also be considered. For example, in 1992, the General Assembly could adopt an American Declaration on the Rights of Indigenous Peoples and later proceed to elaborate a conventional instrument.

Whichever option is chosen, it is important that two essential elements be taken into account. In the first place, it should be drafted as a juridical instrument and, at the same time, it should receive the consent of the States that intent to be bound by its provisions. It should be kept in mind that as regards the issue of the rights of indigenous peoples, there has been a dichotomy between the resolutions that express the aspirations of the indigenous peoples themselves, usually adopted in congresses of indigenous peoples, and the incorporation of these rights into national or international law.

The Commission, by proposing such an instrument, wishes to avoid this incongruence and, therefore, favors the adoption of an instrument which faithfully expresses the legitimate aspirations of indigenous peoples, can also be accepted by the States who will be bound by the instrument.

The Inter-American Commission on Human Rights, the body endowed by the OAS Charter with the task of promoting the observance of human rights in the continent, and which has had an important role in the codification and progressive development of international human rights law, lends itself to being the most appropriate body for carrying out the task of preparing this instrument. In addition, the Commission has been involved in the subject through the preparation of reports and studies involving indigenous populations and maintains fruitful contacts with the institutions which should be invited to collaborate in this project, such as the Inter-American Indian Institute, the Inter-American Institute of Human Rights, the specialized agencies of the United Nations, such as UNESCO, and non-governmental organizations of human rights, especially those formed by the indigenous peoples themselves.

The General Assembly of the OAS, in resolution AG/RES. 927 (XVIII-O-88) resolved:

To recommend that all competent bodies and entities continue to support the projects and activities of the Fifth Centennial through the means possible in their range of action.

Taking into account the above, and depending on the General Assembly’s resolve concerning the formulation of an instrument concerning the rights of indigenous peoples, the Commission manifests its willingness to carry out the task of preparing such an instrument, planning to rely upon the assistance of anthropologists, jurists, and diplomats, both indigenous as well as non-indigenous.

With the financial assistance of other organizations, especially the Inter-American Institute of Human Rights, meetings of experts designated by the IACHR will be organized during the course of the year 1990 and part of 1991, in order for the first draft of this instrument to be drawn up. This would then be reviewed by the Commission and, once approved, would be sent to the competent bodies of the Organization in order to be adopted during the course of the year 1992.

[1] Published in the IACHR’s 1988-1989 Annual Report, Chapter VI, pp.245-250.
[2] Resolution 313 (V). 1950.
[3] Resolution 2497 (XXIV). 1969.
[4] ECOSOC Resolution 1589 (L).
[5] See, Sheldon H. Davis, Land Rights and Indigenous Peoples. The Role of the Inter-American Commission on Human Rights. Cultural Survival. Cambridge, Massachusetts, 1988.