PERMANENT COUNCIL OF THE 
ORGANIZATION  OF AMERICAN STATES 
COMMITTEE ON JUDIRICAL AND POLITICAL AFFAIRS
 
Working Group to Prepare the Proposed American Declaration
on the Rights of Indigenous Populations
 
OEA/Ser.K/XVI
GT/DADIN/doc.9/01
12 January 2001
Original:  Spanish
 
WORKING DOCUMENT COMPARING THE PROPOSED AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES (APPROVED BY THE IACHR IN MARCH 1997) AND THE PROPOSALS MADE BY STATES AND INDIGENOUS REPRESENTATIVES AT OAS MEETINGS IN 1999
 
INTRODUCTION
 
          This document is a joint effort by the Chair of the Working Group to Prepare the Proposed American Declaration on the Rights of Indigenous Populations and the Executive Secretariat of the Inter-American Commission on Human Rights (IACHR), through the specialist for this topic, Dr. Oswaldo Kreimer.  
 
          The purpose is to facilitate the discussions of the Working Group and to provide basic information on the progress of the draft over time, on which parts of the text have been agreed upon, and on which still remain the subject of some disagreement.
 
          The document is intended to guide the efforts of the Working Group as the member states analyze and discuss the text and present proposals in those areas on which a consensus has yet to be reached.
To that end, it is organized in three columns.  The first contains the original texts presented by the IACHR.  The second contains alternative proposals presented by member states.  The third contains comments, observations, and alternative proposals presented by representatives of indigenous populations
 
          In keeping with the method adopted by the Working Group, the major differences proposed by member state representatives and indigenous representatives are indicated in the second and third columns as follows:
 
  • Square brackets:
 proposals on which consensus has not been reached.
  • Parentheses (round brackets): 
alternative proposals, presented by states, on which partial or total agreement might easily be reached
  • Normal typeface:
 original proposal by IACHR has been retained.
  • Bold type:
 phrases not agreed upon.
 
WORKING DOCUMENT COMPARING THE PROPOSED AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES (APPROVED BY THE IACHR IN MARCH 1997) AND THE PROPOSALS MADE BY STATES0 AND INDIGENOUS REPRESENTATIVES AT OAS MEETINGS IN 1999*
 
Made at the meetings of the Government Experts Group in Washington, February 1999 (which included an initial reading of the preamble) and the meeting of the OAS Permanent Council’s Working Group to Prepare the Proposed American Declaration on the Rights of Indigenous Populations in Washington, November 1999 (which included an initial reading of the articles).
 
This document was prepared by the Executive Secretariat of the IACHR at the request of the Chair of the Working Group, December 2000.  The texts have been taken from the Working Group’s document GT/DADIN/doc.1.99 rev. 1 corr. 1.

 

Original Project CIDH

Working Group Nov. 99 (STATES)

GT Nov. 99 Indigenous Proposed

PROPOSED AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES

 

(Approved by the Inter-American Commission on Human Rights on February 26, 1997, at its 1333rd session, 95th regular session)

PROPOSED AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS POPULATIONS

 

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

 

 

PREAMBLE

 

1. Indigenous institutions and the strengthening of nations

 

The member states of the OAS (hereafter the states),

 

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

 

[RECOGNIZING that the rights of indigenous [peoples/populations] constitute a fundamental and profoundly significant issue in the present and future history of the Americas];

 

1.             Indigenous institutions and the strengthening of nations

 

[Recognizing that indigenous [peoples/populations] form an integral part of the population of the Americas and that their values and cultures are inextricably linked to the identity both of the countries they live in and of the region as a whole]  [Recalling that throughout the Americas the indigenous [peoples/populations] constitute a distinctive element within society, and have a special role to play in defining the national identity, strengthening the institutions of the state and achieving national unity based on democratic principles]

 

[Recognizing the immense contribution of indigenous [peoples/populations] to the development and multicultural composition of our societies and reiterating our commitment to their economic and social well-being, as well as to the obligation to respect their rights and cultural identity];

 

[Recalling that the indigenous [peoples/populations] of the Americas are equal in dignity and rights to all other citizens;]

 

[Asserting that indigenous [peoples/populations] are equal in dignity and rights to all other [peoples/populations], while recognizing their right to be different, to be considered different, and to be respected as such];

 

Further recalling that the presence of indigenous societies enriches the cultural heritage and national identities of the American states and contributes to the intellectual, artistic, social, and economic vitality of the Americas;]

[Recalling that the indigenous [peoples/populations] of the Americas are preexisting, distinctive, and integral societies and that they have a right to constitute part of the national identity of the countries they inhabit];

 

 

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

 

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/populations], and many of their present participatory systems for decision-making and for authority contribute to improving democracies in the Americas;

 

[Recalling the important contributions indigenous [societies] [peoples/populations] have made to the development of many of the political concepts and democratic principles embraced by American states;]

 

[Recognizing that indigenous [societies] [peoples/populations] have a vital and continuing role to play in strengthening the institutions of American states and achieving national unity in accordance with democratic principles;]

 

 

Recalling the need to develop their national juridical systems to consolidate the pluricultural nature of our societies.

 

[Mindful of the need to [develop] [strengthen] national juridical systems [and policies] in order to consolidate the multiplicity of cultures [, ethnic groups, and languages] in our societies;

 

 

3. Indigenous culture and ecology

 

Recognizing the respect for the environment accorded by the cultures of indigenous peoples of the Americas, and considering the special relationship between the indigenous peoples and the environment, lands, resources and territories on which they live and their natural resources.

3.             Indigenous culture and ecology

*               It has been proposed that this section be moved to the operative part.

Recognizing the respect for the environment accorded by the cultures of indigenous [peoples/populations] of the Americas, and considering the special relationship between those [peoples/populations] 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 all states and peoples of the Americas to end racism and racial discrimination, with a view to establishing harmonious relations and respect among all peoples.

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

 

Reiterating the responsibility incumbent upon all states to combat racism and all forms of racial discrimination with a view to eliminating them [AGREED ad referendum];

 

 

5. Territories and Indigenous Survival

 

Recognizing that in many indigenous cultures, traditional collective systems for control and use of land, territory and resources, including 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 form of such control and ownership is varied and distinctive and does not necessarily coincide with the systems protected by the domestic laws of the states in which they live.

 

5.             [Territory] [cultural territory] [habitat] and indigenous survival

(*             It has been proposed that this section be moved to the operative part.

**             It has been proposed that the subtitle be deleted or that the word "territory" be deleted or replaced.)

 

Recognizing that for many indigenous [peoples/populations], their various traditional systems for the use and control of their lands and other resources are necessary conditions for their development and individual and collective well-being. [AGREED ad referendum];

 

Recognizing that for many indigenous cultures their traditional collective systems for the use and control of land, territories, resources, waters, and coastal areas are necessary conditions for their survival, social organization, development, and individual and collective well-being [differ from those followed by other members of the population] [and that those systems of control [and dominion] [may be] [are] varied, specific to them, and not necessarily consistent with systems protected by ordinary law in the states in which they reside];

 

Further recognizing the importance for all humankind of preserving indigenous American cultures, which may include traditional collective forms of land ownership, social organization, and religious practices different from those followed by other members of the populations;

 

 

6. Security and indigenous areas

 

Reaffirming that the armed forces in indigenous areas shall restrict themselves to the performance of their functions and shall not be the cause of abuses or violations of the rights of indigenous peoples.

Eliminated

 

 

6.             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

 

[Recognizing the [applicability/relevance] throughout the Americas of the American Declaration of the Rights and Duties of Man, and, where [duly ratified/appropriate], other international human rights instruments, including the American Convention on Human Rights;

 

Reiterating the universal, indivisible, and interdependent nature of the human rights and fundamental freedoms recognized by the international community. [AGREED ad referendum];

 

 

 

8. Enjoyment of Collective Rights

 

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

Eliminated

 

 

9. Advances in the provisions of national instruments

 

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

7.             Advances in the provisions of national instruments and different national situations

 

[Bearing in mind the diversity of circumstances in different countries and the varying degrees of impact of indigenous communities in the different states, as well as the constitutional, legislative, and jurisprudential progress made in the Americas in securing the rights and institutions of indigenous [peoples/populations], in order to consolidate the multiplicity of cultures, ethnic groups, and languages in our societies [APPROVED ad referendum];

 

 

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8.             The situation of indigenous [peoples/populations] and specific circumstances in each country

 

Bearing in mind the foregoing paragraph, this Declaration should be interpreted and applied in harmony and in keeping with current legal systems in the member states and their international commitments;

 

Bearing in mind that this Declaration must be consistent with legal systems in force in member states and with their international commitments;

 

*               Note: The following proposals do not belong under subheading No. 8

 

Recognizing that indigenous [peoples/populations] and their societies have a vital role in [sustainable development and that their know-how and traditional practices must be respected];

 

Encouraging states to recognize the identity, culture, and interests of indigenous [peoples/populations] and their communities and make possible their effective participation in the achievement of sustainable development [AGREED ad referendum];

 

Recalling the commitment undertaken by the Heads of State and Government in the Declaration of Principles of the First Summit of the Americas, held in December 1994 in Miami, and at the Summit of the Americas on Sustainable Development, held in Santa Cruz de la Sierra in December 1996, and reaffirmed in the Plan of Action of the Second Summit of the Americas, held in April 1998 in Santiago, Chile;

 

Desiring to promote and strengthen international cooperation with respect to the economic, cultural, and social development of indigenous [peoples/populations]; [AGREED ad referendum]

 

Recognizing the severe poverty in which many indigenous people live in many parts of the Americas and the commitment made by the Heads of State and Government at the 1994 Summit of the Americas to focus their energies on improving the exercise of democratic rights and the access to social services by indigenous people and their societies;

 

 

DECLARE:

 

SECTION ONE. INDIGENOUS PEOPLES

 

Article I. Scope and definitions

 

1. This Declaration applies to indigenous peoples as well as peoples whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially 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. The use of the term "peoples" in this Instrument shall not be construed as having any implication with respect to any other rights that might be attached to that term in international law.

 

DECLARE:

 

SECTION ONE.  DEFINITIONS

 

For the purposes of the present Declaration, it shall be understood that, (Guatemala)

 

Article I.   Indigenous [peoples/populations]1 are understood to be a group of individuals who, within the National State, retain basic distinctive traits from a culture that existed prior to European colonization, such as language; practices and customs; social, economic, cultural, and political institutions; and whose members consider themselves to be part of that indigenous culture. (Chair)

 

Indigenous [peoples/populations] are understood to be those social and cultural groups which, within National States, retain basic distinctive traits from a culture that existed prior to the establishment and constitution of the Nation-State, such as language; normative systems; social, economic, cultural, and political institutions or a part thereof; and who self-identify and are recognized as members of that indigenous culture.  (Mexico)

 

The use of the term “[peoples/populations]” in this Declaration shall not be construed as having any implication concerning other rights that might be associated with the term under international law.  (Brazil)

 

1              Several representatives of indigenous populations indicated that it would not be appropriate for states to define the concept of “indigenous populations," this being the sole province of the communities involved.  Self-identification, as an essential criterion for the recognition of an indigenous people, is not subject to any obligation.  No term could encompass the multiplicity and variety of such communities existing in the Hemisphere. They indicated that they were neither ethnic minorities nor racial minorities nor populations (the latter term referring to communities not necessarily invested with historical continuity). They defined themselves as peoples, or collective, autonomous entities, with age-old languages, whose organization, shaped by lands, waters, forests, and other natural resources, afforded them a special world view and a unique social structure ensuring their continuity.

 

                The representatives of indigenous populations indicated that the progress made, both at the level of national law and in the efforts of multilateral organizations, show that discussions have focused on the content of the rights of indigenous communities rather than on attempts to arrive at some sort of definition. They said it was important here to preserve references to their collective rights, since their individual rights were already enshrined in numerous instruments of international law.  They concluded that the term “people” should remain in the draft Declaration, and that, should it not, examining the subsequent articles would be meaningless.

                 “Indigenous people have the collective and individual right to maintain and develop their identities and specific characteristics, including the right to identify themselves as indigenous and to be recognized as such.” (National Congress of American Indians)

 

 

 

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Article II

 

a.             “Self-determination”2 is understood to mean the ability of indigenous [peoples/populations] to exercise their forms of political, economic, social, and cultural organization within a framework of autonomy and self-government compatible with the national unity of the State.

 

a.             “Self-determination” is understood to mean the ability of indigenous [peoples/populations] to exercise their forms of political, economic, social, and cultural organization within a framework of autonomy and self-government compatible with the organizational structure of each State. (Brazil)

 

a.             “Self-determination” is understood to mean the ability of indigenous [peoples/populations] to freely develop and exercise their forms of political, economic, social, and cultural organization; and to guarantee their access to the State jurisdiction, within a framework of autonomy and self-government compatible with the national unity and juridical organization of the States.  (Mexico)

 

                “Indigenous peoples have the right to self-determination.  They may freely determine their political status and pursue their economic, social, and cultural development by virtue of this right.” (National Congress of American Indians)

 

b.             This framework of autonomy of self-government finds legal expression in areas and at levels where indigenous [peoples/populations], in accordance with national legislation, exercise their forms of political, economic, social, and cultural organization.

 

Article III

 

“Territory”3 is understood to mean the entire habitat, including the lands on which indigenous [peoples/populations] are settled or which they enjoy in some fashion, with the modalities established under national legislation.

 

“Lands” are understood to mean the entire habitat, including the lands on which indigenous [peoples/populations] are settled or which they enjoy in some fashion, with the modalities established under national legislation.  (Peru, Argentina)

 

“Lands” are understood to mean those areas of  land which indigenous peoples may own or have exclusive use of.  (Canada)

 

“Territories” are understood to be those areas which indigenous peoples do not own and do not have exclusive use of, but where they may conduct their traditional lifestyles, in accordance with domestic law or agreement. (Canada)

 

Article IV4

 

None of these definitions shall be interpreted to have the meaning that might be attributed to them in general international law.

2. The representatives of indigenous populations indicated that the terms “people” and “self-determination” could not be separated, and that the latter accorded political status, as well as economic, social, and cultural rights, which the indigenous communities could not relinquish, since these constituted a historical right that had been wrested from them.  They also stated that "self-determination" could not be defined by those outside the community in question, this being the exclusive province of that community.  Self-determination was a right of indigenous peoples, while sovereignty pertained to the state.  In no way was self-determination meant to infringe upon the territorial integrity of the state.  The intent was, rather, to enhance national unity, to secure recognition of the existence of such communities, invested with a distinct and special world vision, within the context of existing states.  The right to secede was not the aim.  Genuine autonomy must be built upon a pluralist foundation, with due recognition of the indigenous communities' own institutions.  Such autonomy was one way to exercise self-determination within a state.

 

3              On the concept of "territory," the representatives of indigenous populations said this was deeply connected with their spirituality, their culture, their language, their way of life, and their relationship with the environment, and thus it was important that the term remain in the draft Declaration.  Land, in Western culture, was something to be worked, a source of wealth subjugated to commerce.  For the indigenous peoples, it was an element of their very lives, a factor in their existence as a group or community within an integrated world view that included their traditional approaches to political representation.  The concept of territory was vital to defining all the rights of indigenous peoples.  Moreover, the term "lands" could not sufficiently express that reality.  However, since the populations had developed such a diverse range of approaches to territorial relations, any attempt to define the word "territory" would impose limitations on the traditional rights of indigenous communities.

 

4 The representatives of indigenous populations also called upon governments to include in their domestic legislation the three concepts discussed in this section, that is, “peoples,” “territory,” and “self-determination,” recognizing thereby the diversity of these communities.

 

SECTION TWO. HUMAN RIGHTS

 

Article II. Full observance of human rights

 

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

SECTION TWO.  HUMAN RIGHTS

 

Article II.  Full observance of human rights

 

                1.             Indigenous [peoples/populations] 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.

 

                1.             Indigenous individuals have the right to the full and effective enjoyment of the human rights and fundamental freedoms recognized in the Charter of the OAS, the American Declaration of the Rights and Duties of Man, and, where duly ratified, other international human rights instruments, including the American Convention on Human Rights; 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 relevant instruments of international law, including human rights law. (United States)

 

 

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

2.             Indigenous [peoples/populations] have the collective rights that are indispensable for full enjoyment of the individual human rights of their members.  Accordingly, the states recognize the right of indigenous [peoples/populations] inter alia to collective action; (to their social, political, and economic organization;) (to recognition of their sets of rules;) to their own cultures; to profess and practice their spiritual beliefs, and to use their languages.

 

2.             Indigenous individuals may exercise their rights, including those as set forth in this Declaration, individually as well as in community with others, without discrimination.  Indigenous individuals have a right to be free from discrimination based upon their asserted [Tr. Spanish text says “established”] indigenous status or membership in an indigenous society. (United States)

“States shall therefore recognize the basic social, economic, political, and cultural rights of indigenous peoples, and in particular, the collective right to lands, territories, and resources, and the right of indigenous peoples to self-determination.” (National Congress of American Indians)

 

3. The states shall ensure for indigenous peoples the full exercise of all 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.

 

3.             The states shall guarantee all indigenous [peoples/populations] the full exercise of their rights, and shall adopt–in accordance with their constitutional provisions–such legislative or other measures as may be necessary to give effect to the rights recognized in this Declaration (, in accordance with their practices and customs).

 

3.             States should, in accordance with international law, take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous individuals, on the basis of equality and non-discrimination, and recognize the value and diversity of their distinct identities and culture. (United States)

 

4.             States are encouraged to remove any impediments to the free exercise and full enjoyment of these rights. (United States)

 

 

Article III. Right to belong to indigenous peoples

 

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

Article III.  Right to belong to indigenous [peoples/populations]

 

                Indigenous persons and communities have the right to belong to indigenous [peoples/ populations], in accordance with the traditions and customs of the [peoples/populations] or nation concerned.

 

                States should recognize the authority of indigenous [peoples/populations] to exercise autonomy in determining membership, consistent with international human rights. (United States

 

 

Article IV. Legal status of communities

 

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

Article IV.                Legal status

 

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

 

                States should provide appropriate mechanisms to extend legal status to [recognize the legal status of] indigenous entities [peoples/populations], enabling such [peoples/populations] to operate corporately, or in other comparable effective form, under State law. (United States)

 

                Subject to the specific provisions of each country’s legislation, states shall ensure that legal status is granted to indigenous [peoples/populations], communities, and organizations. (Brazil, Chile, Argentina)

 

                The traditional authorities of indigenous peoples, elected according to their practices and customs, shall have the power to represent these [peoples/populations] and to act in a legal capacity on their behalf. (Bolivia)

“States shall recognize the right of indigenous peoples in law in keeping with their traditional forms of representation or such legal norms as these peoples may develop. States shall adopt the necessary legislative measures for the recognition of this right.” (Hector Huertas from Panama)

 

Mr. Juan León, indigenous representative of the Mayan people of Guatemala, suggested that the title of Article 4 be “Legal recognition of indigenous peoples” (which includes existence, identity, and law), which distinguishes between the right of an entity in law and its legal capacity. Mr. Margarito Ruiz of Mexico requested that reference to “traditions” be included in the article.

 

Article V. No forced assimilation

 

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

 

2. The states shall not undertake, support or favour any policy of artificial or enforced assimilation of indigenous peoples, destruction of a culture or the possibility of the extermination of any indigenous peoples.

Article V. Rejection of forced assimilation

 

1.             Indigenous [peoples/populations] have the right to freely maintain, express and develop all aspects of their cultural identity, untrammeled by any attempt at assimilation.

 

1.             Indigenous people [people/populations] have the right to maintain their distinct cultures, beliefs, religions, and languages, subject to reasonable regulation consistent with international standards. (United States)

 

2.             The states shall not (undertake, support, or favor) (should not adopt, support, or favor) any policy of artificial or forced assimilation of indigenous [peoples/populations], destruction of (their) (a) culture or possibly of the extermination of an indigenous [people/population](and its heritage).

 

2.             States shall refrain from adopting any measure that would result in the forced assimilation of indigenous [people/populations], and from supporting theories or taking actions that entail discrimination, destruction of a culture, or the possibility of genocide. (Brazil)

 

2.             States repudiate any attempt at artificial or forced assimilation, and the destruction, of an autochthonous culture, and shall guarantee effective exercise of the previously mentioned right. (Paraguay)

The National Congress of American Indians also proposed replacing the present wording of Article 5 of the proposed declaration with the following:

 

“Indigenous peoples have the collective and individual right not to be subjected to ethnocide or cultural genocide, including the right to prevention of and reparation for:

 

a. Any act whose purpose or effect is to deprive indigenous peoples of their integrity as unique peoples, or their cultural values, or their ethnic identity;

b. Any act whose purpose or effect is to deprive them of their territories or natural resources;

c. Any type of displacement whose purpose or effect is the violation or prejudice of any of their rights;

d.Any type of assimilation by or integration into other cultures or lifestyles imposed through legislative, administrative, or other measures;

e. Any type of propaganda directed against them.”

 

Article VI. Special guarantees against discrimination

 

1. Indigenous peoples have the right to special guarantees against discrimination that may have to be instituted to fully enjoy internationally and nationally-recognized human rights; as well as measures necessary to enable indigenous women, men and children to exercise, without any discrimination, civil, political, economic, social, cultural and spiritual rights. The states recognize that violence exerted against persons because of their gender and age prevents and nullifies the exercise of those rights.

 

2. Indigenous peoples have the right to fully participate in the prescription of such guarantees.

Article VI.                Special guarantees against discrimination

 

1.             Indigenous [peoples/populations] have the right to such (special guarantees) (have recourse to the guarantees contemplated under domestic legislation) against discrimination as may be required for full enjoyment of internationally and nationally recognized human rights, and to any measures necessary to enable indigenous women, men and children to exercise their civil, political, economic, social, cultural and (religious) (spiritual) rights (and their cosmovisions) (without any discrimination).  The states recognize that violence used against persons because of their (race, creed) gender or age (or political or religious affiliation) obstructs and nullifies the exercise of those rights.

1.             Where circumstances warrant, States should take measures to enable indigenous individuals to exercise fully and effectively all their human rights and fundamental freedoms without any discrimination.  States are encouraged to take “special measures” aimed at the immediate, effective, and continuing improvement of indigenous economic and social conditions. (United States)

 

2.             Indigenous [peoples/populations] have the right to full participation in the prescription (and exercise) of such guarantees.

2.             All rights and freedoms herein are equally guaranteed to indigenous women and men.  States recognize that gender-based violence impedes and undermines the exercise of those rights. (United States)

Finally, regarding Article 6 of the proposed declaration, the National Congress of American Indians proposed replacing the phrase “special guarantees” with “special measures.”

 

“The states shall adopt the measures necessary to prevent discrimination, ethnocide, and cultural genocide in indigenous populations.” (Altepetls Nahuas, A.C./Seminario Indígena)

 

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 as well as for the identity of their members.

 

2. Indigenous peoples are entitled to restitution in respect of the property of which they have been dispossessed, and where that is not possible, compensation on a basis not less favorable than the standard of international law.

 

3. The states shall recognize and respect indigenous ways of life, customs, traditions, forms of social, economic and political organization, institutions, practices, beliefs and values, use of dress, and languages.

SECTION THREE.  CULTURAL DEVELOPMENT

 

 

Article VII.                Right to cultural integrity

 

                1.             Indigenous [peoples/populations] have the right to their cultural integrity, [and their historical and archeological heritage,] which are important both for their (continuity as a society) (survival) and for the identity of their members.

 

                1.             States should respect the cultural integrity of indigenous [peoples/populations], their relationship with their own lands and environment, as well as their historical and archaeological heritage, which are important to the identity of the members of their groups and their ethnic survival. (United States)

 

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

 

                Brazil suggests eliminating paragraph 2.

 

                2.             Indigenous [peoples/populations] have the right to own their heritage and to restitution if they have been dispossessed of it.(Mexico)

 

                2.             States should provide an effective legal framework for the protection of indigenous culture, including, where appropriate, mechanisms for the repatriation of cultural property. (United States)

 

                3.             The states recognize and (respect) (promote respect for) indigenous lifestyles, customs, traditions, forms of social organization, institutions, practices, (beliefs, values), (cosmovisions) clothing, and languages.

 

                3.             States should take appropriate measures to prevent discrimination based on indigenous lifestyles, customs, traditions, forms of social organization, use of dress, languages, and dialects, and other cultural practices. (United States

 

 

Article VIII. Philosophy, outlook and language

 

1. Indigenous peoples have the right to indigenous languages, philosophy and outlook as a component of national and universal culture, and as such, shall respect them and facilitate their dissemination.

Article VIII.               (Logical conceptions and language) (Linguistic rights)

 

                1.             Indigenous [peoples/populations] have the right to their own languages, philosophy, and (cosmovision) [logical conceptions] as a component of national and universal culture, and as such, the states shall recognize, respect, and promote them, (in consultation with the [peoples/populations] involved.)

 

                1.             States recognize that indigenous languages, philosophy, and outlook are a component of national and universal culture, and, as such, states should respect them and, where appropriate, facilitate their dissemination. (United States)

“Indigenous peoples and individuals have the right to preserve and practice their indigenous language, philosophy, and outlook as a necessary expression of their distinct culture. The states shall take appropriate measures to protect the exercise of this right.” (Indian Las Resource Center)

                “Indigenous peoples have the right to revitalize, use, develop, and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems, and literature, and to designate and retain their own names for communities, places, and persons.” (National Congress of American Indians

 

2. The states shall take measures and ensure that broadcast radio and television programs are broadcast in the indigenous languages in the regions where there is a strong indigenous presence, and to support the creation of indigenous radio stations and other media.

 

                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.

 

                2.             To encourage diversity of voices and viewpoints, states should take appropriate measures under their national systems wherever possible to facilitate radio and television broadcasts in indigenous languages in regions having large indigenous populations, and to encourage the development of indigenous radio stations and other media. (United States)

 

                2.             The states shall take measures to promote and ensure that indigenous languages are used by radio and television stations in areas having a strong indigenous presence, and to support the creation of indigenous means of communication. (Mexico)

“Where there is a strong indigenous presence, the states shall take measures to ensure that broadcast radio and television programs are broadcast in the appropriate indigenous languages. The state shall also support the creation of indigenous radio stations and other media.” (Indian Law Resource Center)

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 predominant, states shall endeavor to establish the pertinent languages as official languages and to give them the same status that is given 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.

                3.             The states shall take effective measures to enable indigenous [peoples/populations] to understand administrative, legal and political rules and procedures, and to be understood in relation to these matters. In areas where indigenous languages 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].

 

                3.             States should take measures to enable indigenous [peoples/populations] to understand and to be understood when dealing with laws and administrative, legal, and political procedures. (United States)

 

                3.             The states shall take effective measures to enable indigenous [peoples/populations] to have full access to state jurisdiction in their own languages. (Mexico)

 

                4.             Indigenous [peoples/populations] 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 materials; c) to train, educate and accredit their teachers and administrators. The states shall endeavor to ensure that such systems guarantee equal educational and teaching opportunities for the entire population and complementarity with national educational systems.

Article IX. Education

 

                1.             (Taking into consideration the minimum standards set by the competent state authority, (in countries in which national curricula are in force,) for the national education system,) Indigenous [peoples/populations] 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, (in consultation with the competent state authorities and in accordance with applicable education laws and standards).  [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.]

 

                1.             States should recognize the authority of indigenous [peoples/populations] to (a) establish and operate their own educational programs, institutions, and facilities; (b) to prepare and apply their own educational plans, programs, curricula, and materials; and (c) to train and accredit their own teachers and administrators, provided that indigenous educational programs meet generally applicable minimum state requirements in the field of education. (United States)

 

 

2. When indigenous peoples so decide, educational systems shall be conducted in the indigenous languages and incorporate indigenous content, and they shall also be provided with 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 ways to that provided to the general population.

 

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

 

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

                2.             When indigenous [peoples/populations] so desire, educational systems shall be conducted (where practicable) 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.

 

                2.             Non-discriminatory access to public education is a right that should be enjoyed by indigenous individuals in common with other citizens of the State.  State-funded education should respect indigenous cultures. (United States)

 

                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.

 

                3.             States should take appropriate measures so that, wherever possible, indigenous individuals have adequate opportunities to learn their native indigenous language or to receive instruction in that language. (United States)

 

                Proposal by Canada for a new paragraph:

 

                Indigenous children living outside their communities should, where practicable, have access to education in their own culture and language.

 

                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, (without prejudice to support for the rest of the population).]

                5.             States should take appropriate measures to provide resources for these purposes (United States)

 

                Argentina suggests deleting paragraph 5.

 

                Commentary:  Canada suggests merging paragraphs 3 and 5 into a single paragraph, which would then read as follows:

 

                “States [shall/should] take effective measures to provide appropriate resources for these purposes.”

 

 

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.

Article X. Spiritual and religious freedom

 

                1.             Indigenous [peoples/populations] have (shall have) the right to freedom of conscience, freedom of religion and spiritual practice, [and to exercise them both publicly and privately].

 

                1.             Indigenous individuals have the right to freedom of thought, conscience, and religion. (United States)

                “Indigenous peoples and individuals have the right to freedom of thought, conscience and religion; this right includes freedom to change one’s religion or belief, and freedom in public or private, to manifest their religion or belief in teaching, practice, worship and observance.” (Indian Law Resource Center)

 

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

 

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

 

2.             This right shall include freedom to have or adopt a religion or belief of her or his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice, and teaching. (United States)

2.             Indigenous [peoples/populations] have the right to preserve and practice their religious or philosophical beliefs, the only condition being respect for public order and the full and effective enjoyment by the persons making up those [peoples/populations] of their internationally recognized human rights.  States must take the necessary measures to prohibit any attempt to forcibly convert an indigenous [people/population] or to impose on it beliefs or religious practices against its will. (Inter-American Juridical Committee, with amendment by Mexico.  English re-translated.)

                It also proposed that in paragraph 2 the words “forcibly convert” be replaced by the words “to convert indigenous peoples without their free and informed consent”. (Indian Law Resource Center)

 

 

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

 

3.             In collaboration with the indigenous [peoples/populations] concerned, the states shall (make best efforts to) 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 (or private entities), they shall be returned.]

 

3.             States shall take appropriate measures, in consultation with the indigenous [peoples/populations] concerned, to preserve and protect sites that are sacred to them, including burial sites.  States should provide an effective legal framework for the return of sacred objects, relics, and human remains taken from graves or sacred sites. (United States)

"Indigenous peoples and individuals have the right to maintain and protect their cultural and religious properties including sacred sites, relics, graves and the human remains and articles found within graves. This includes the right to restitution of religious and cultural property taken without their free and informed consent or in violation of their laws, traditions and customs. In collaboration with the indigenous peoples concerned, the states shall adopt effective measures to ensure that such properties are preserved, respected and protected.  Where appropriated by state institutions, they shall be returned." (National Congress of American Indians)

 

4. The states shall encourage respect by all people for the integrity of indigenous spiritual symbols, practices, sacred ceremonies, expressions and protocols.

 

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

 

                Mexico suggests deleting this paragraph.

 

                4.             States are encouraged to respect the use of sacred and ceremonial areas and to provide for indigenous access to and use of such sites as may be under the management or control of a State. (United States)

 

 

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 indigenous family, marriage, family name and filiation.

 

2. In determining the child's best interest in matters relating to the protection and adoption of children of members of indigenous peoples, and in matters of breaking 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 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), (parental systems), marriage, (assignment of name) family name and filiation.]

 

                1.             The family in all its forms is the natural and fundamental group unit of society and is entitled to protection by society and the State. (United States)

 

                2.             In determining the child’s best interests in matters relating to the protection and adoption of children of members of indigenous [peoples/populations], 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/populations], including individual, family and community views.

 

                2.             Consistent with international human rights instruments, States should accord appropriate recognition to indigenous institutions, laws, and traditions concerning the family and the integrity of family relations. (United States)

 

                3.             Proposal by Mexico regarding indigenous women pending.

“In all actions concerning children, the state has a duty to respect the responsibilities, rights, and duties of parents, or where applicable, the members of the extended family or community as provided for by local customs”. (Indian Law Resource Center)

 

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 and rehabilitative practices.

 

Article XII.                Health and well-being

 

                1.             Indigenous [peoples/populations] have the right to [legal] [recognition and practice of their traditional medicine, treatment, pharmacology, health practices and promotion], including preventive measures and rehabilitation], (subject to national laws).

 

                Argentina suggests that no reference should be made to legal recognition of the practice of their traditional medicine, treatment, pharmacology, health practices and promotion, including preventive measures and rehabilitation.

 

                1.             Ind