Draft Inter-American Commission Declaration on the Rights of Indigenous Peoples

PREAMBLE

1.            Indigenous institutions and the strengthening of nations

The member states of the Organization of American States (hereafter the states),

Aware that the indigenous peoples of the Americas constitute an organized, distinctive and integral segment of the population, are entitled to be part of the national identities of the countries, and have a special role to play in strengthening state institutions and in establishing national unity based on democratic principles;

Further recalling that some of the democratic institutions and concepts embodied in the constitutions of the American states stem from institutions of the indigenous peoples, and many of their present participatory systems for decision-making and for authority contribute to improving democracies in the Americas; and

Mindful of the need to develop their national juridical systems in order to strengthen the pluricultural nature of our societies.

2.             The Eradication of poverty and the right to development

Concerned over the frequency with which indigenous peoples are stripped of their human rights and fundamental freedoms, both within and outside their communities, as well as despoiled of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own traditions, needs and interests;

Recognizing the severe impoverishment afflicting indigenous peoples in several regions of the Hemisphere and the deplorable worsening of their living conditions in many instances; and

Recalling that in the Declaration of Principles issued by the Summit of the Americas in December 1994, the heads of state and governments noted that in observance of the International Decade of the World’s Indigenous People, they will focus their efforts on improving the exercise of democratic rights and providing indigenous peoples and their communities with access to social services;

3. Indigenous cultures and ecology

Recognizing the respect for the environment accorded by the cultures of indigenous peoples of the Americas, and considering the special relationship between those peoples and the environment, the lands, the resources, and the territories in which they live;

4.             Harmonious relations, respect, and the absence of discrimination

Reaffirming the responsibility of the states and peoples of the Americas to end racism and racial discrimination, with a view to establishing harmonious relations and respect among all peoples;

5.             Territories and indigenous survival

Recognizing that in many indigenous cultures, traditional collective systems for the control and use of land, territories, resources, bodies of water and coastal areas are a necessary condition for their survival, social organization, development and their individual and collective well-being; and that the forms of such control and ownership vary and differ, and do not necessarily coincide with the systems protected by the common laws of the states in which they reside.

6.             Security and indigenous areas

Reaffirming that the armed forces in indigenous areas shall confine their action to the performance of their functions, and shall not be the cause of abuses or violations of the rights of indigenous peoples;

7.             Human rights instruments and other advances in international law

Recognizing the paramountcy of the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights and other human rights instruments of inter-American and international law; and the applicability thereof to the states and peoples of the Americas;

Recognizing that indigenous peoples are addressed by international law, and mindful of the progress achieved by the states and indigenous peoples, especially in the sphere of the United Nations and the International Labor Organization, in various international instruments, particularly in ILO Convention 169, and

Affirming the principle of espousing universal and indivisible nature of human rights, and the application of internationally recognized human rights to all individuals;

8. The enjoyment of collective rights

Recalling the international recognition of rights that can be enjoyed when exercised collectively;

and

9. Advances in the content of national instruments

Noting the constitutional, legislative and jurisprudential advances progress in the Americas in guaranteeing the rights and institutions of indigenous peoples,

DECLARE:

SECTION ONE. INDIGENOUS PEOPLES

Article I. Scope and definitions

1.               This Declaration applies to indigenous peoples as well as to peoples whose social, cultural and economic conditions distinguish them from other sectors of the national community, and whose status is regulated wholly or in part by their own customs or traditions or by special laws or regulations.

2.               Self-identification as indigenous shall be regarded as a fundamental criterion for determining the peoples to which the provisions of this Declaration apply.

3.               Use of the term “peoples” in this Declaration shall not be construed as having any implication concerning other rights that might be associated with that term in international law.

SECTION TWO. HUMAN RIGHTS

Article II. Full observance of human rights

1.               Indigenous peoples are entitled to the full and effective enjoyment of the human rights and fundamental freedoms recognized in the OAS Charter, the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, and other international human rights instruments; and nothing in this Declaration shall be construed as in any way limiting, restricting, or denying those rights or authorizing any action not in accordance with the principles of international law including that of human rights.

2.               Indigenous peoples have the collective rights that are indispensable for full enjoyment of the individual human rights of their members. Accordingly, the states recognize inter alia the right of indigenous peoples to collective action, to their cultures, to profess and practice their spiritual beliefs, and to use their languages.

3. The states shall ensure all indigenous peoples the full exercise of their rights, and shall adopt—in accordance with their constitutional processes—such legislative or other measures as may be necessary to give effect to the rights recognized in this Declaration.

Article III. Right to belong to indigenous peoples

Indigenous persons and communities have the right to belong to indigenous peoples, in accor
dance with the traditions and customs of the peoples or nation concerned.

Article IV. Legal status

Indigenous peoples have the right to have their legal status fully recognized by the states within their systems.

Article V. Rejection of forced assimilation

1.               Indigenous peoples shall have the right to freely preserve, express and develop all aspects of their cultural identity, untrammeled by any attempt at assimilation.

2.               The states shall not undertake, support or favor any policy of artificial or forced assimilation of indigenous peoples, destruction of a culture or possibly of the extermination of an indigenous people.

Article VI. Special guarantees against discrimination

1.                Indigenous peoples have the right to such special guarantees against discrimination as may be required for full enjoyment of internationally and nationally recognized human rights, and as to any measures necessary to enable indigenous women, men and children to exercise their, civil, political, economic, social, cultural and spiritual rights without any discrimination. The states recognize that violence used against persons because of their gender and age obstructs and nullifies the exercise of those rights.

2.               Indigenous peoples have the right to full participation in the prescription of such guarantees.

SECTION THREE. CULTURAL DEVELOPMENT

Article VII. Right to cultural integrity

1.               Indigenous peoples have the right to their cultural integrity and their historical and archeological heritage, which are important both for their survival and for the identity of their members.

2.               Indigenous peoples are entitled to the restitution of property of which they have been dispossessed, and when that is not possible, to compensation on a basis no less favorable than the standard recognized by international law.

3. The states shall recognize and respect indigenous lifestyles, customs, traditions, forms of social, economic and political organization, institutions, practices, beliefs, values, clothing, and languages.

Article VIII. Concepts and language

1.               Indigenous peoples have the right to their own languages, philosophy, and concepts as a component of national and universal culture, and as such, shall respect them and facilitate their dissemination thereof in consultation with the peoples involved.

2.               The states shall take measures to promote and ensure that radio and television programs are broadcast in the indigenous languages in areas having a strong indigenous presence, and to support the creation of indigenous radio stations and other means of indigenous communications.

3.                The states shall take effective measures to enable indigenous peoples to understand administrative, legal and political rules and procedures, and to be understood in relation to these matters. In areas where indigenous languages are predominate, states shall expend the necessary efforts to have them established as official languages and to grant them the same status that is accorded to non-indigenous official languages.

4.               Indigenous peoples have the right to use their indigenous names, and to have the states recognize them as such.

Article IX. Education

1.                Indigenous peoples shall be entitled: a) to establish and set in motion their own educational programs, institutions and facilities; b) to prepare and implement their own educational plans, programs, curricula and teaching materials; and c) to train, educate and accredit their teachers and administrators. The states shall take steps to ensure that such systems guarantee equal educational and teaching opportunities for the general population as well as complementarity with the national educational systems.

2.               When indigenous peoples so desire, educational systems shall be conducted in the indigenous languages and shall incorporate indigenous content, and they shall also be given the necessary training and means for complete mastery of the official language or languages.

3.               The states shall ensure that those educational systems are equal in quality, efficiency, accessibility and in all other respects to that provided to the general population.

4.               The states shall include in national general educational systems content reflecting the pluricultural nature of their societies.

5.                The states shall provide financial and any other type of assistance needed to implement the provisions of this article.

Article X.

Spiritual and religious freedom

1.               Indigenous peoples have the right to freedom of conscience, freedom of religion and spiritual practice, and to exercise them both publicly and privately.

2.               The states shall take the necessary measures to prohibit attempts to forcibly convert indigenous peoples or to impose on them beliefs against their will.

3.                In collaboration with the indigenous peoples concerned, the states shall adopt effective measures to ensure that their sacred places, including burial sites, are preserved, respected and protected. When sacred graves and relics have been appropriated by state institutions, they shall be returned.

4.            The states shall ensure respect from society as a whole for the integrity of indigenous spiritual symbols, practices, sacred ceremonies, expressions and protocols.

Article XI. Family relations and family ties

1.               The family is the natural and basic unit of societies and must be respected and protected by the state. Consequently, the state shall recognize and respect the various forms of the indigenous family, marriage, family name and filiation.

2.               In determining the child’s best interests in matters relating to the protection and adoption of children of members of indigenous peoples, and in the severance of ties and other similar circumstances, consideration shall be given by courts and other relevant institutions to the views of the peoples, including individual, family and community views.

Article XII. Health and well-being

1.                Indigenous peoples have the right to legal recognition and practice of their traditional medicine, treatment, pharmacology, health practices and promotion, including preventive measures and rehabilitative.

2.                Indigenous peoples have the right to protection of vital medicinal plants, animals, and minerals in their traditional territories.

3.               Indigenou
s peoples shall be entitled to use, maintain, develop and manage their own health services, and they shall also have access, on an equal footing, to all health institutions and services and medical care accessible to the general population.

4.               The states shall provide the necessary means for indigenous peoples to eliminate any health conditions in their communities which fall below the standards accepted for the general population.

Article XIII. The right to environmental protection

1. Indigenous peoples have the right to a safe and healthy environment, which is an essential condition for enjoyment of the right to life and collective well-being.

2.               Indigenous peoples have the right to be informed of measures which could affect their environment, including information ensuring their effective participation in acts and policies which might affect it.

3.               Indigenous peoples shall have the right to conserve, restore and protect their environment and the productive capacity of their lands, territories and resources.

4.               Indigenous peoples have the right to full participation in formulating, planning, managing and applying governmental programs for the conservation of their lands, territories, and resources.

5.               Indigenous peoples shall have the right to assistance from their states for purposes of environmental protection, and shall be allowed to receive assistance from international organizations.

6.               The states shall prohibit and punish, and in conjunction with the indigenous peoples, shall impede the introduction, abandonment, or deposit of radioactive materials or residues, toxic substances and waste material in contravention of legal provisions; as well as the production, introduction, transportation, possession or use of chemical, biological and nuclear weapons in indigenous areas.

7.               When a State declares an indigenous territory to be a protected area, and in the case of any lands, territories and resources under potential or actual claim by indigenous peoples, as well as locales used as natural biopreserves, conservation areas shall not be subject to any natural resource development without the informed consent and participation of the peoples concerned.

SECTION FOUR. ORGANIZATIONAL AND POLITICAL RIGHTS

Article XIV. The rights of association, assembly, freedom of expression and freedom of thought

1.                Indigenous peoples have the right of association, assembly and expression pursuant to their values, usages, customs, ancestral traditions, beliefs and religions.

2.                Indigenous peoples have the right of assembly and to the use of their sacred and ceremonial areas, as well as the right to full contact and common activities with their members living in the territory of neighboring states.

Article XV. The right to self government

1.               Indigenous peoples have the right to freely determine their political status and freely pursue their economic, social, spiritual and cultural development, and are therefore, entitled to autonomy or self-government with regard to inter alia culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resource management, the environment and entry by nonmembers; and to determine ways and means for financing these autonomous functions.

2.                Indigenous peoples have the right to participate without discrimination, if they so decide, in decision-making, at all levels, concerning matters which might affect their rights, lives and destiny. They may do so directly or through representatives chosen by them pursuant to their own procedures. They shall also have the right to maintain and develop their own indigenous decision- making institutions, as well as equal opportunities to gain access to, and participate in, all state institutions and fora.

Article XVI. Indigenous law

1.               Indigenous law shall be recognized as a part of the states’ legal system and framework in which the states’ social and economic development takes place.

2.               Indigenous peoples have the right to maintain and reinforce their legal systems and apply them to affairs within their communities, including systems addressing such matters as conflict resolution, crime prevention and the maintenance of peace and harmony.

3.               In the jurisdiction of each state, procedures involving indigenous persons or their interests shall be conducted in such a way as to ensure the right of indigenous peoples to full representation with dignity and equality before the law. This shall include observance of indigenous law and custom and, where necessary, use of their language.

Article XVII. National incorporation of indigenous legal and organizational systems

1.                The states shall facilitate inclusion of the institutions and traditional practices of indigenous peoples in their organizational structures, in consultation with, and subject to the consent of, the peoples concerned.

2.               The relevant institutions in each state which serve indigenous peoples shall be designed in consultation with and are subject to the participation of, the peoples concerned so as to reinforce and promote the identity, cultures, traditions, organization and values of those peoples.

SECTION FIVE. SOCIAL, ECONOMIC, AND PROPERTY RIGHTS

Article XVIII. Traditional forms of property ownership and cultural survival. The rights to land and territories

1.               Indigenous peoples have the right to legal recognition of the varied and specific forms and modalities of their possession, control, and enjoyment of territories and property.

2.               Indigenous peoples are entitled to recognition of their property and ownership rights with respect to lands, territories and resources they have historically occupied, and to the use of those to which they historically have had access for their traditional activities and livelihood.

3. i.                         Subject to the contents of 3.ii., when property and user rights of indigenous

peoples arise from rights existing prior to the creation of those states, the states shall recognize the titles of indigenous peoples relative thereto as permanent, exclusive, inalienable, imprescriptible and indefeasible.

ii.   Such titles may be changed only by mutual consent between the state and the respective indigenous peoples when they have full knowledge and understanding of the nature or attributes of such property.

iii.  Nothing in 3.i. shall be construed as limiting the right of indigenous peoples to attribute ownership within the community in accordance with their customs, traditions, uses and traditional practices, nor shall it affect any colle
ctive community rights thereto.

4.                Indigenous peoples have the right to an effective legal framework for the protection of their rights with respect to the natural resources on their lands, including the ability to use, manage, and conserve such resources, and with respect to traditional uses of their lands and their interest in lands and resources, such as subsistence items.

5.                In the event that the subsoil minerals or resources of the subsoil belong to the state, or the state has rights over other resources on the lands, the governments shall establish or maintain procedures for the participation of the peoples concerned in determining whether the interests of such peoples would be adversely affected and to what extent, before undertaking or authorizing any program for planning, prospecting, or exploiting the resources existing on their lands. The peoples concerned shall participate in the benefits of such activities, and shall receive compensation, on a basis no less favorable than the standard international law sum for any loss which they may sustain as a result of such activities.

6.               Unless exceptional and justified circumstances so warrant in the public interest, the states shall not transfer or relocate indigenous peoples without the free, genuine, public and informed consent of those peoples, and in all cases with prior compensation and prompt replacement of lands appropriated, which must be of similar or better quality and which must have the same legal status; and guaranteeing the right to its return if the causes that gave rise to the displacement cease to exist.

7.               Indigenous peoples have the right to restitution of the lands, territories, and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated,

occupied, used or damaged; or when restitution is not possible, the right to compensation on a basis no less favorable than the standard set by international law .

8. The states shall take all possible measures, including the use of law enforcement mechanisms, to avert, prevent and punish, when applicable, any intrusion on or use of those lands by unauthorized persons in order to take possession or make use thereof. The states shall place maximum priority on the demarcation and recognition of properties and areas of indigenous use.

Article XIX. Workers rights

1.               Indigenous peoples shall be entitled to full enjoyment of the rights and guarantees recognized under international labor law and domestic labor law; and to special measures to correct, redress and prevent the discrimination to which they have historically been subject.

2.               To the extent to which they are not effectively protected by laws applicable to workers in general, the states shall take such special measures as may be necessary to:

a.               effectively protect workers and employees who are members of indigenous

communities in regard to fair and equal hiring and terms of employment;

b.               to improve the labor inspection and enforcement service in regions, companies or paid

activities involving indigenous workers or employees;

c.               ensure that indigenous workers:

i.    enjoy equal opportunity and treatment as regards all conditions of employment, job promotion and advancement; and other conditions as stipulated under international law;

ii.   enjoy the right to association and freedom for all lawful trade union activities, and the right to conclude collective agreements with employers or employers’ organizations;

iii.  are not subjected to racial, sexual or other forms of harassment;

iv.  are not subjected to coercive hiring practices, including servitude for debts or any other form of servitude, even if they are based on law, custom, or an individual or collective arrangement, which shall be deemed absolutely null and void in each instance;

v.   are not subjected to working conditions that endanger their health and personal safety;

vi.  receive special protection when they serve as seasonal, casual or migrant workers and also when they are hired by labor contractors in order to benefit from national legislation and practice which must itself be in accordance with established international human rights standards for this type of workers; and,

vii. that their employers are also made fully aware of the rights of indigenous workers, pursuant to national legislation and international standards, and of the resources available to them for the protection of those rights.

Article XX. Intellectual property rights

1.               Indigenous peoples have the right to the recognition and full ownership, control, and protection of their cultural, artistic, spiritual, technological and scientific heritage, and legal protection of their intellectual property through patents, trademarks, copyright, and other such procedures as established under domestic law; as well as to special measures which ensure them legal status and institutional capacity to develop, use, share, market and bequeath that heritage to future generations.

2.                Indigenous peoples have the right to control, develop and protect their sciences and technologies, including their human and genetic resources in general, seeds, medicine, knowledge of plant and animal life, original designs and procedures.

3.               The states shall take appropriate measures to ensure the participation of indigenous peoples in determining the conditions for both public and private utilization, of the rights cited in the preceding two paragraphs.

Article XXI. The right to development

1.                The states recognize the right of indigenous peoples to decide democratically what values, objectives, priorities and strategies will govern and steer their development course, even when they differ from those adopted by the national government or by other segments of society. Indigenous peoples shall be entitled to obtain on a non-discriminatory basis appropriate means for their own development according to their preferences and values; and to contribute by their own means, as distinct societies, to national development and international cooperation.

2.               Unless exceptional circumstances so warrant in the public interest, the states shall take the necessary measures to ensure that decisions regarding any plan, program, or proposal affecting the rights or living conditions of indigenous peoples are not made without the free and informed consent and participation of those peoples; that their preferences are recognized; and that no plan, program or proposal which might have harmful effects on those peoples is adopted.

3.               Indigenous peoples have the right to restitution or compensation no less favorable than set by the standards of international law, for any loss which—despite the foregoing precautions, the execution o
f those plans or proposals may have caused them; and to the adoption of measures to mitigate adverse environmental, economic, social, cultural or spiritual effect.

SECTION SIX. GENERAL PROVISIONS

Article XXII. Treaties, acts, agreements and constructive arrangements

Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other arrangements that may have been concluded with states or their successors, as well as historical Acts, according to their spirit and intent; and to have states honor and respect such treaties, agreements, and constructive arrangements as well as the historical rights emanating from those instruments. Conflicts and disputes which cannot otherwise be settled shall be submitted to the competent bodies.

Article XXIII.

Nothing in this instrument shall be construed as excluding or limiting existing or future rights which indigenous peoples may have or acquire.

Article XXIV.

The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the Americas.

Article XXV.

Nothing in this instrument shall be construed as granting any rights to ignore boundaries between states.

Article XXVI.

Nothing in this Declaration implies or may be construed as permitting any activity contrary to the purposes and principles of the Organization of American States, including sovereign equality, territorial integrity and political independence of states.

Article XXVII. (Implementation)

The Organization of American States and its organs, agencies, and entities—in particular the Inter-American Indian Institute, the Inter-American Commission of Human Rights—shall promote respect for, and full application of, the provisions of this Declaration.