OEA/Ser.L/V/II.106
Doc. 59 rev.
June 2, 2000
Original: Spanish

SECOND REPORT ON THE SITUATION OF
HUMAN RIGHTS IN PERU

CHAPTER X

THE RIGHTS OF INDIGENOUS COMMUNITIES

A. INTRODUCTION

1. Peru is a multicultural country by essence, historically; of a population of 25 million, 8 million consider themselves indigenous. The cultural diversity of these native peoples is reflected by the presence of more than 65 Quechua, Aymara, Aguaruna, Ashaninkas, and other Amazonian indigenous peoples, most of whom live in 1,300 rural and peripheral urban communities.

2. Most of the communities live in conditions of extreme poverty and inferior quality of life. Structural poverty affects the indigenous communities most intensely, limiting their full enjoyment of their human rights, including their economic, social, and cultural rights.

3. Before and during its on-site visit to Peru, the Commission received complaints about serious situations that affect the indigenous peoples in Peru. The problems that merit special mention include those relating to the recognition of communal lands, the right of indigenous peoples to participation and consultation, and the high percentage of indigenous families in extreme poverty, with problems of chronic malnutrition and high mortality, especially maternal and infant mortality. In this context, in this chapter the Commission studies several important aspects of the situation of the indigenous peoples of Peru.

B. LEGAL FRAMEWORK

1. International legal framework

4. The international human rights instruments of both the inter-American and universal systems contain provisions relevant to the analysis of the situation of indigenous communities.

5. The right to equality without discrimination is one of the pillars of human rights protection. This right is enshrined in both the Universal Declaration of Human Rights and the American Declaration of the Rights and Duties of Man. The American Declaration of the Rights and Duties of Man recognizes that:

Article II: All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.

Article XVII: Every person has the right to be recognized everywhere as a person having rights and obligations, and to enjoy the basic civil rights.

6. The American Convention on Human Rights provides at Article 1 that the States parties undertake to respect the rights and freedoms recognized in the Convention, and to guarantee their full and free exercise by all persons subject to their jurisdiction, without any discrimination. Article 24 of the Convention provides:

All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.

7. The most relevant international instrument is ILO Convention 169 on indigenous and tribal peoples, ratified by Peru on February 2, 1994. That Convention establishes obligations to consult and include the participation of indigenous peoples in respect of matters that affect them. The indigenous organizations increasingly use it, and in pressing their legal grievances. On ratifying this instrument, the Peruvian State undertook to take special measures to guarantee the indigenous peoples of Peru the effective enjoyment of human rights and fundamental freedoms, without restrictions, and to make efforts to improve living conditions, participation, and development in the context of respect for their cultural and religious values.

8. Activities are being undertaken in the inter-American system to promote the rights of indigenous peoples and communities. In response to a recommendation by the General Assembly of the OAS, the IACHR prepared the Proposed American Declaration on the Rights of Indigenous Peoples. That proposed declaration, in whose consideration the Peruvian State has participated, is currently being analyzed by a Working Group of the OAS Permanent Council.[1]

2. Domestic legal framework

9. In 1993, the Peruvian State modified its National Constitution. The current Constitution incorporates the principles of ethnic and cultural pluralism, acknowledging the existence of the native communities and cultures. The Constitution establishes, at Article 2(19), that:

Every person has the right to his or her ethnic and cultural identity. The State recognizes and protects the ethnic and cultural plurality of the Nation. Every Peruvian has the right to use his or her own language before any authority through an interpreter.

10. These principles are spelled out in Articles 17, 48, 89, and 149 of the Constitution. Article 17 supports bilingual and intercultural education, in accordance with the characteristics of each zone, and preserves the country's various cultural and linguistic expressions. Article 48 provides that the official languages are Spanish and, in the areas in which they predominate, Quecha, Aymara, and all other indigenous languages.

11. According to Article 89 of the Constitution, the peasant and native communities have legal existence, are juridical persons, and are recognized to have autonomy in their organization, communal work, and in the use and free disposal of their lands. According to the Constitution, the Peruvian State respects the cultural identity of the peasant and native communities.

12. The Code on the Environment[2] provides at Article 54 that the Peruvian State recognizes the property rights of the peasant and ancestral native communities to the lands they possess within naturally protected areas.

13. On May 9, 1978, Law No. 22,175 entered into force; it established legal recognition and juridical personality for the native communities, guaranteeing them the right to property with respect to lands suitable for crops and/or stock-breeding, and set out the regime for the protection of territorial property as inalienable, non-attachable, and imprescribable.

14. On July 18, 1995, the Law on Private Investment in the Development of Economic Activities on the Lands of the National Territory and of the Peasant and Native Communities was approved.[3] Article 10 of Law No. 26,505 provides that:

... the peasant communities and native communities shall regulate their communal organization in accordance with the constitutional precepts and this law....

15. The Commission has received reports that this law undermines one of the pillars of ILO Convention 169, which accords respect to the culture, religion, and social organization of the native communities; and in particular the right to be consulted and to participate, as such, in the matters that affect them.

C. LAND RIGHTS

16. Land, for the indigenous peoples, is a condition of individual security and liaison with the group. The recovery, recognition, demarcation, and registration of the lands represents essential rights for cultural survival and for maintaining the community's integrity.

17. The ratification of ILO Convention 169 by the Peruvian State was a victory for the indigenous peoples, as it established the need for special legislation to addressing the land issue.

18. Nonetheless, the new Peruvian Constitution of 1993 has done away with the inalienability of communal lands, on pointing to the autonomy and liberty of the communities in the use "and free disposal of their lands," which, together with other legal provisions that apply specially to the agrarian sector, it includes the possibility of establishing, on communal lands, the pledge of agricultural lands, or the mortgaging of lands.

19. In addition, Article 88 of the Constitution, by establishing that "abandoned lands" (those that are distinguished precisely and intentionally when the communal question is addressed) "pass into the control of the State for adjudication by sale," poses a serious threat to the functioning of the Andean communal technological and productive system, which is based on the extensive use of land, temporary use of the crops, rotation, and fallow periods, or "rest periods," which are mistaken for symptoms of abandonment. In conclusion, the legal framework does not offer the native communities effective security and legal stability over their lands.

20. At present, there are some 300 native communities that are not recognized and that do not even have title, and approximately 3,431 peasant communities that lack support for their traditional lands, and which therefore cannot enter their titles in the public registries, as they lack the plans and/or descriptive documents required.[4]

21. The procedure in place for titling indigenous communal lands is long and reiterative. Many native communities have suffered years of red tape and high costs, excessive legal rigor, that ends up being prejudicial to the interested parties.

22. In 1996, the Project for Regulating and Titling Lands was begun, under the PETT, or Special Project for Titling of Lands. The PETT is the state entity in charge of titling lands, but at present it does not grant property titles to the native communities that apply for them, arguing that it does not have a sufficient budget to do so. The Commission has received information that in this process priority has been accorded to clearing up the status of the property of small farmers, and not of the peasant and native communities.

23. A study notes that indigenous property rights have suffered significantly from the agrarian reform process that has unfolded since 1969, which granted more than nine million hectares to 438,000 beneficiary families, though only 66,000 titles were issued for properties covering 5.1 million hectares. Moreover, most of those titles have not been registered. The project detects the fragmentation of property as a problem, since some 400,000 of those families belong to associations that hold their property collectively, but which now, in general, have split up those properties.[5]

24. While complete statistics on the titling and registration of peasant and native communities do not exist, official data indicate that 310 peasant communities are being registered annually, and that 1,772 are about to be registered. Still pending are the titling procedures for 139 native communities (from the jungle), although 85% have sought the expansion of the boundaries recognized today. As of November 1999, the PETT project has completed the physical and legal clarification of property rights for 1.7 million lots, 700,000 of which have been recognized in the official real property registers.

25. In the above-mentioned study, it is noted that "the privatization and parceling of communal areas is a highly sensitive issue, that has the potential to threaten and weaken the social fabric.... The project should include mechanisms for the ongoing involvement of the indigenous organizations, as required by Convention 169, and there should be integrated monitoring of the titling and registration that ensures that the communities are fully clear about and aware of the law and its application."[6]

26. The Commission was informed of the large-scale exploitation of natural resources and raw materials in the Peruvian jungle, in indigenous territories. The actions of the lumber and oil companies in these areas, without consulting or obtaining the consent of the communities affected, in many cases lead to environmental degradation and endanger the survival of these peoples.[7] On this point, ILO Convention 169 provides in Article 15 for the participation of and prior consultation with the indigenous peoples when natural resources are to be used, their right to participate in the benefits of such activities, and their right to receive compensation for any damage they might suffer as a result of those activities.

27. The State informed the Commission that the multisectoral coordination of public agencies includes the participation of indigenous representatives, including the programs of the Ministry for Promotion of Women and Human Development; the Ministry of Defense; the Ministry of Education; the Ministry of Health; the Ministry of Fisheries; and the Ministry of Justice.

28. It also reported that in 1998, an Amazonian consultation meeting was held for the Indigenous Development Plan, with the participation of 22 indigenous peoples of the Amazon region, affiliated to the Asociación Interétnica de Desarrollo de la Selva Peruana (AIDESEP), and the Confederación de Nacionalidades Amazónicas del Perú (CONAP), in which they called for and reached conclusions on the need to guarantee peace; the need for the full participation of the indigenous communities into the country's political life; the need to strengthen and consolidate the organization of indigenous peoples; the need to assure their property rights in their territory and natural resources; and the need to consolidate indigenous culture and the quality of life for indigenous peoples.

29. The State also reported that the Amazonian communities are generally willing to actively make the following contributions:

• Full participation in the preparation of natural resources management plans.

• Preparation of laws and regulations for the use of natural resources.

• Ecological and economic zoning

• and measures for the regeneration and reforestation of native and commercial plants; and flora and
fauna for their own sustenance.

30. In this respect, the State's report does not indicate whether that positive willingness of the indigenous peoples has been taken into account, nor whether any measures have been adopted to put these demands into practice.

31. A proposed Regime for the Protection of the Collective Knowledge of the Indigenous Peoples and Regulations on Access to Genetic Resources is in the midst of a process in which public comment is being analyzed; if approved, it would be one of the first countries to adopt legislation protecting the collective knowledge of the indigenous peoples.

D. ETHNIC, SOCIAL, AND CULTURAL DISCRIMINATION

32. Even though the Peruvian Constitution accords formal recognition to the rights of indigenous peoples, patterns of ethnic, social, and cultural discrimination exist in society, institutionalized and reproduced at every level of society. The Congress was forced to promulgate a law against discrimination in the workplace, but this is a problem that is ingrained in the conscience and social practices that has been difficult to eradicate.[8]

E. POVERTY

33. Poverty tends to have disproportionately grave effects on indigenous populations. These populations are generally among the most vulnerable and dispossessed groups in society.

34. A report recently published by the Latin American and Caribbean Demographic Center (CELADE) indicates that 79% of the indigenous Peruvians are poor, and that half live in extreme poverty.[9] In its comments, the State notes that "poverty is generally accompanied by unemployment, malnutrition, illiteracy especially among women, environmental risks, and limited access to social and health services, including (limited access) to reproductive and family planning health services." It also notes the high percentages of the indigenous population of the jungle and the sierra beset by these problems; and that this issue is being confronted with assistance in the areas of food, housing, economic support, and re-incorporation and strengthening of the community.

F. EDUCATION

35. The Peruvian State has clear constitutional provisions that provide support for the adoption of a special regime of indigenous education that is in keeping with the culture of these communities. The Commission notes that Article 48 of the 1993 Constitution represents an advance in this area; as noted above, this provision does not posit the superiority of any language over any other. In the schools, Spanish is used in Peru as the first language. Many regions of Peru have bilingual and monolingual schools, though the latter receive, proportionately, more funds from the central government.[10]

36. While the population of Peru in general has improved its levels of schooling, indigenous children are at a disadvantage. It is noted that a high percentage of indigenous children do not attend school.

37. While most of the indigenous communities of Peru live in the highlands and the coast, there are indigenous peoples who have lived from ancestral times in the Amazon region, i.e. in the Peruvian jungle. Of the 65 ethnic groups in the Peruvian jungle, also called comunidades nativas, the INEI counted 48 indigenous communities, with an estimated population of 300,000, including 46,000 children under five years of age. Of this indigenous population, 23%, or approximately 40,000 people, do not know how to read and write. The children from the indigenous communities mostly live in poverty, without access to basic health services, suffering, along with the adults, historical neglect and marginality. The lack of access to intercultural, bilingual education is one of the main problems affecting the children from ethnic minorities and explains the fact that 22% of the children from the rural jungle areas do not attend school, the highest percentage in the country.[11] In its comments the State reports on two programs that seek to alleviate this situation: (a) the National Literacy Program, geared especially to women learning literacy, information on preventing family violence, sexual and reproductive health; and the exercise of citizen rights and obligations; and, (b) in the indigenous communities of the jungle, the "Bilingual/Multicultural Literacy Program for the Peruvian Amazon," coordinated with the authorities of the native communities.

G. HEALTH

38. The indigenous of Peru are in a relatively unequal situation compared to the rest of the population, in terms of the enjoyment of State services, in many regions suffering conditions of "high marginality." The indigenous communities generally lack basic health infrastructure, and suffer serious problems of malnutrition and pneumonia, among others. The State reports that three programs (the National Food Support Program; the Program for Repopulation and Development of Emergency Zones; and the Northeast Marañón Development Program) are offering food to needy populations.

H. RECOMMENDATIONS

39. Based on the foregoing, the Commission makes the following recommendations to the Peruvian State:

1. That it promulgate an indigenous law that develops the individual rights of indigenous peoples, that guarantees the mechanisms of participation of indigenous persons in the adoption of political, economic, and social decisions that affect their rights, and that they be accorded greater political participation in the adoption of decisions at the national level.[12]

2. That it improve access to the public services, including health and education, for the native communities, to offset the existing discriminatory differences, and to provide them dignified levels in keeping with national and international standards.

3. That it implement adequate mechanisms of monitoring and control of compliance by the Peruvian State with the rights and guarantees it undertook to respect in ratifying ILO Convention 169.[13]

4. That it adopt appropriate measures to guarantee the process of legal demarcation, recognition, and issuance to the indigenous communities of land titles, and to ensure that this process not prejudice the normal development of property and community life.

5. That it ensure, consistent with ILO Convention 169, that all projects to build infrastructure or exploit natural resources in the indigenous area or that affect their habitat or culture is processed and decided on with the participation of and in consultation with the peoples interested, with a view to obtaining their consent and possible participation in the benefits.

6. That it adopt policy measures against ethnic, social, and cultural discrimination in all forms and levels, and to improve the socioeconomic conditions of the indigenous population.

7. That it help strengthen the role of the indigenous populations so that they may have options and be able to retain their cultural identity, while also participating in the economic and social life of Peru, with respect for their cultural values, languages, traditions, and forms of social organization.

Notes______________________________

[1] The Proposed American Declaration on the Rights of Indigenous Peoples was published in the Annual Report 1997 of the IACHR, and may be found at the IACHR web site: <http://www.cidh.org>.

[2] Legislative Decree No. 613, of September 7, 1990.

[3] Law No. 26,505, known as the Law on Lands.

[4] Report provided by the Centro Amazónico de Antropología y Aplicación Práctica, Lima, October 30, 1999.

[5] Plant, Roger, and Hvalkof, Soren, "Land Titling and Indigenous Peoples" (draft). Sustainable Development Department. Inter-American Development Bank. December 1999.

[6] Id.

[7] Id.

[8] Permanent Conference of the Indigenous Peoples. Presentación Institucional. September 1998.

[9] See UN, Poblaciones Indígenas: un desafío para la comunidad internacional. That study can be found at the Internet page <http://www.un.org/spanish/hr/pobla.htm>.

[10] Corvalán, Graziella, "El bilinguismo en América Latina," in: La Educación, Revista Interamericana de Desarrollo Educativo, No. 98, 1985. Pp. 132-136.

[11] UNICEF, Informe sobre el estado de la niñez, la adolescencia y la mujer en el Perú. This study can be found at <http://ekeko.rcp.net.pe/UNICEF/estado/estado.htm>.

[12] With respect to this recommendation, in its comments the Peruvian State indicates that "with respect to an integral law, a framework that contains the provisions required to promote the development and juridical security of the indigenous peoples of Peru ... the Committee on Human Rights of the Congress of the Republic has drawn up two proposed laws on indigenous peoples," which are undergoing a technical review, with the proposal that it be submitted to the indigenous peoples for their consideration.

[13] With respect to this and the related recommendations, the State reports in its comments that by Supreme Decree 012/98, within the Ministry for Promotion of Women and Human Development, the operation of the Technical Secretariat for Indigenous Matters has been regulated. It is in charge of the policies, plans, and programs regarding peasant and native communities, pursuant to Peru's international commitments and Peruvian legislation.