CHAPTER II

PREPARATORY DOCUMENTS FOR THE
DRAFT AMERICAN DECLARATION OF THE INDIGENOUS PEOPLES

DOCUMENT 4. QUESTIONNAIRE SENT BY THE IACHR IN APRIL 1992 TO THE MEMBER STATES AND MORE THAN 300 INDIGENOUS AND INTERNATIONAL ORGANIZATIONS

FIRST ROUND OF CONSULTATIONS ON THE CONTENTS OF A FUTURE INTER-AMERICAN JURIDICAL INSTRUMENT ON THE HUMAN RIGHTS OF INDIGENOUS PEOPLES (QUESTIONNAIRE)

This first round of consultations constitutes a stage in the preparation of this inter-American instrument. To meet established deadlines, replies from governments and entities should be received by the Executive Secretariat of the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS by August 31, 1992.

I. BACKGROUND

On the proposal of the Inter-American Commission on Human Rights (IACHR), the OAS General Assembly, by resolution AG/RES. 1022 (XIX-0/89), requested “the Inter-American Commission on Human Rights to prepare a juridical instrument relative to the rights of the Indian peoples ...�? (henceforth, “the new instrument�?). This task is being carried out by the Commission with the cooperation of the Inter-American Indian Institute, headquartered in Mexico City.

Following informal consultations with the representatives of governments, indigenous organizations, and experts, the Commission, at its 80th session, on October 1, 1991, adopted a methodology for preparing the new instrument. Said methodology is attached hereto.

As established in the methodology, the first step has been the preparation of this questionnaire for the first round of consultations in order to elicit replies from governments and entities of the member countries–replies stemming from consultations by each of the governments in their respective countries among pertinent official agencies and the organizations representing indigenous populations, as well as any other entity deemed appropriate. The attached questionnaire was approved by the Commission at its 81st session (February 1992).

The replies to this questionnaire will be summarized and published according to the methodology approved by the Inter-American Commission on Human Rights.

II. QUESTIONNAIRE

FIRST PART

HUMAN RIGHTS TO BE COVERED IN AN INTER-AMERICAN
INSTRUMENT ON INDIGENOUS PEOPLES

In the view of your Government and the respective entities in your country, and taking into account the rights and guarantees recognized by the American Declaration of the Rights and Duties of Man and by the American Convention on Human Rights and the protocols thereto[1]:

1. In general, which human rights and their guarantees should be covered in the new inter-American legal instrument?

2. Should special consideration be given–and, if so, in what regard–to the obligation of states to respect rights and to ensure the free exercise thereof without any discrimination, as set forth in Article 1, and to the duty of states to adopt domestic provisions guaranteeing those rights and giving them effect?

3. Should this new instrument refer in particular to the legal status of the indigenous population and its members? In what manner and to what extent?

4. Should the new instrument refer in particular to the right to personal integrity [Article 5(1)], whether physical, mental, or moral? To what special extent?

5. With regard to the prohibition of cruel or degrading punishment and other conditions indicated in Article 5, should this new instrument contain a specific reference to the indigenous peoples? In what regard?

6. With regard to the prohibition of slavery and different types of servitude and forced labor indicated in Article 6, should this new instrument contain any specific reference to the indigenous peoples?

7. With regard to the right to personal liberty and security recognized in Article 7, should this new instrument contain any specific reference to the indigenous peoples?

8. With regard to the right to a fair trial recognized in Article 8, should this new instrument contain any specific reference to the indigenous peoples?

9. With regard to the right to privacy recognized in Article 11, should this new instrument contain any specific reference to the indigenous peoples? To what extent?

10. With regard to freedom of conscience and religion set out in Article 12, should this new instrument contain any specific reference to the indigenous peoples?

11. With regard to freedom of thought and expression and the conditions applying thereto, recognized and developed in Article 13, should this new instrument contain any specific reference to the indigenous peoples? Should any specific reference be made to the prohibition by law of any incitement to violation or hatred or to any discriminatory action mentioned in Article 13(5)?

12. With regard to the right of assembly and restrictions thereon, recognized in Article 15, should this new instrument contain any specific reference to the indigenous peoples?

13. With regard to the right to freedom of association and the restrictions recognized in Article 16, should this new instrument contain any specific reference to the indigenous peoples?

14. With regard to the rights protecting the family, recognized and elaborated on in Article 17 and the Protocol (Article 15), should this new instrument contain any specific reference to indigenous families?

15. With regard to the right to a name, recognized in Article 18, should this new instrument contain any specific reference to the indigenous peoples?

16. With regard to the rights of the child, recognized in Article 19 and the Protocol (Article 16), should this new instrument contain any specific reference to indigenous children?

17. With regard to the right to a nationality, recognized in Article 20, should this new instrument contain any specific reference to the indigenous peoples?

18. With regard to the right to private property and the use and enjoyment thereof, as well as the restrictions thereon, recognized in Article 21, should this new instrument contain any specific reference to the indigenous peoples?

19. With regard to the freedom of movement and residence and the restrictions thereon, recognized in Article 22, should this new instrument contain any specific reference to the indigenous peoples?

20. With regard to the political rights and in particular the right to take part in the conduct of public affairs, to vote and be elected in genuine periodic elections, and to have access, under conditions of equality, to the public service, as well as to the restrictions thereon, all of which are recognized in Article 23, should this new instrument contain any specific reference to the indigenous peoples?

21. With regard to equality under the law and the right to equal protection of the law, recognized in Article 24, should this new instrument contain any specific reference to the indigenous peoples?

22. With regard to judicial protection and the right to simple, prompt, and effective recourse for protection against acts that violate fundamental rights, should this new instrument contain any specific reference to the indigenous peoples?

23. With regard to the economic, social, and cultural rights conditionally recognized in the Additional Protocol to the American Convention in those areas (Protocol of San Salvador) and especially those developed in the articles of the Protocol mentioned below, should this new instrument contain any specific reference to the indigenous peoples?

Article 6 Right to Work
Article 7 Just, Equitable, and Satisfactory Conditions of Work
Article 8 Trade Union Rights
Article 9 Right to social security
Article 10 Right to Health
Article 11 Right to a Healthy Environment
Article 12 Right to Food
Article 13 Right to Education
Article 14 Right to the Benefits of Culture
Article 17 Right to Protection of the Elderly
Article 19 Means of Protection for Economic, Social, and Cultural Rights

24. With regard to the relationship between duties and rights and the fact that the rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society, as recognized in Article 32, should this new instrument contain any specific reference to the indigenous populations?

25. Should this new instrument refer to any issue pertaining to the human rights of the indigenous peoples that is not envisaged in the previous questions?

SECOND SECTION

In recent years, various national constitutions, agreements, and draft international instruments have been defining the rights of the indigenous peoples as a group. Some of those possible rights have been listed below in no particular order to enable your Government and the appropriate entities to express their views on the inclusion of those rights in the new inter-American legal instrument.

1. Rights of the indigenous peoples as such to peaceful coexistence in national society as a whole.

2. Rights to recognition by the state of the diverse characteristics of the indigenous populations within society as a whole. Rights to recognition of the multiethnic and multicultural nature of the population of the states in which there are indigenous peoples and the ensuing obligation of states to promote mutual acceptance, tolerance, and peace among different ethic groups, both indigenous and non-indigenous.

3. Rights to political participation as peoples in the decisions that affect them directly.

4. Rights necessary for the distinctive characteristics of the indigenous peoples to be duly reflected in state institutions.

5. Rights to the maintenance and development of their traditional economic structures, institutions, and life styles.

6. Rights to their own autonomous economic development.

7. Rights to management and control by the indigenous peoples of development plans and the provision of public services in their designated territories.

8. Territorial rights and rights pertaining to protection of their territories by the state and traditional legal forms of land ownership and use.

9. Rights necessary for the protection and environmental integrity of their territory and its ecological balance.

10. Rights to their own cultural development and protection of their cultural assets.

11. Rights to respect for their beliefs and religious and spiritual practices and to protection by the state against attempts at systematic conversion.

12. Rights to establishment and control of their educational processes and to recognition and appropriate respect by the national educational system of the cultural values of indigenous peoples.

13. Rights to protection of the indigenous family, and the role of indigenous communities in the rearing and protection of children.

14. Right to special measures for protection of their intellectual and artistic property.

15. Rights to the use and development of their own medical services, pharmacology, and health practices, in conjunction with non-indigenous medical services.

16. Rights to use of their languages in governmental administrative and judicial proceedings affecting them.

17. Rights to the domestic application and development of their own legal system, within the national constitutional framework.

18. Rights to respect for and effective compliance by the state with treaties and other conventions and agreements concluded with the indigenous peoples.

19. Rights of multinational indigenous peoples to maintain, without impediment, their ethnic ties across national boundaries.

20. Rights of the indigenous peoples to acquire legal status.

SECOND PART

APPLICATION OF CURRENT NATIONAL LEGISLATION

What are the legal provisions in your country (including constitutional provisions; laws; and national, provincial, and local decrees; administrative and other provisions; as well as treaties, agreements, and other constructive arrangements between the state and the indigenous peoples) that can provide relevant and useful background material for the preparation of this inter-American instrument? Please attach a copy of those provisions to your reply.

[1] Unless otherwise indicated, the articles mentioned are from the American Convention on Human Rights.