HISTORY IN THE MAKING:1999

MEETING OF THE WORKING GROUP
TO PREPARE THE PROPOSED AMERICAN DECLARATION

ON THE RIGHTS OF INDIGENOUS POPULATIONS

Held in Washington, D.C., November 8-12, 1999

REPORT OF THE CHAIR

At its twenty-eighth regular session, the General Assembly, in resolution AG/RES. 1549 (XXVIII-O/98), instructed the Permanent Council to convene a meeting of government experts and to take the measures it considers appropriate with a view to the adoption of an American Declaration on the Rights of Indigenous Populations at the twenty-ninth regular session of the General Assembly.

The Meeting of Government Experts to Analyze the Proposed American Declaration on the Rights of Indigenous Populations was held on February 10-12, 1999. The conclusions of the meeting were published in the final report, document RECIDIN/doc.10/99, and were subsequently considered by the OAS General Assembly, which, at its twenty-ninth regular session, in resolution AG/RES. 1610 (XXIX-O/99), and bearing in mind the progress made at the Meeting of Government Experts, established a working group to continue consideration of the proposed declaration. The working group was installed on July 28, 1999, and it was agreed that it should remain under the chairmanship of the Chair of the Committee on Juridical and Political Affairs.

The Working Group met at headquarters from November 8-12, 1999. The Working Group had before it background documents on the discussion of the topic by the various bodies, including the comments of the member states, organs, and entities of the inter-American system on the proposed declaration. The list of documents is attached as an appendix to this report.

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II. AGENDA OF THE MEETING

1. Presentation by the Chair

2. Consideration of the operative section of the Proposed American Declaration on the Rights of Indigenous Populations

a. Scope of application and definitions

b. Human rights

c. Cultural development

d. Freedom of association and political rights

e. Social, economic, and property rights

f. General provisions

3. Other business

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III. PROCEEDINGS

A. Organization of the Work

The Chair of the Working Group of the Committee on Juridical and Political Affairs, Ambassador Claude Heller, Permanent Representative of Mexico to the OAS, and the Secretary General of the OAS, Dr. César Gaviria addressed the Working Group (both statements are attached to this report).

The Vice President of the Inter-American Institute of Human Rights, Rodolfo Stavenhagen, then took the floor. He recommended that mechanisms should be created to include indigenous populations in the drafting of international legal instruments. The Chair of the Inter-American Commission on Human Rights, Robert Goldman, also spoke. He expressed his hope that the proposed declaration would be adopted at the next regular session of the General Assembly, to be held in Windsor, Canada, in 2000.

The Chair explained the working procedures to be used during the meeting. Those procedures had been approved by the Committee on Juridical and Political Affairs, which served as the preparatory body for the meeting of the working group. In that connection, the Chair announced that the proceedings would begin by dealing with the operative section of the proposed declaration on a chapter by chapter basis grouped under specific topics, as indicated on the agenda, given that the preambular section had been widely discussed at the meeting of this past February. He said this did not, however, preclude further consideration of the preambular section once review of the operative section is completed. He also commented on the modality for the participation of the representatives of the indigenous populations, in accordance with General Assembly resolution AG/RES. 1610 (XXIX-O/99), and on the basis of the agreements reached in the Committee on Juridical and Political Affairs. In that connection, when discussion of each of the three above-mentioned topics begins, the representatives would be allowed to present their views. In the light of the progress being made with respect to the work, the representatives would be allowed to speak again at the conclusion of the consideration of each chapter. The Chair underscored that the statements would be duly recorded in the report of the Working Group. He therefore invited both the delegations of the member states and the representatives of the indigenous populations to make their statements brief and, as far as possible, relevant to the topic under discussion.

The representatives of the indigenous populations read a statement on their position with respect to the procedure for their participation in the Working Group. In that regard, they felt that the procedure was inadequate and did not reflect the spirit of General Assembly resolution AG/RES. 1610 (XXIX-O/99). They requested a review of the respective decision in order to permit full participation by the representatives of the indigenous populations in decision-making. Nonetheless, they announced their decision to participate in the meeting while expressing their position as follows:

a. Participation in the discussion; they requested a full and unrestricted right to speak, as well as the opportunity to comment on the statements of the government delegations.

b. Adoption of the agreement: they requested that the government delegations consider the actual situation of the indigenous populations before taking a decision.

c. Recording the statements: they requested that the statements of the representatives of the indigenous populations be recorded and that these statements, as well as the conclusions of the meeting, be transmitted to the governments.

Furthermore, they emphasized the need for obtaining resources to allow the representatives of indigenous populations to continue to participate in the consideration of the proposed declaration.

The Chair of the Working Group indicated that participation by representatives of indigenous populations was guaranteed under agreements reached earlier by the Committee on Juridical and Political Affairs. He promised that the spirit behind the meeting was constructive and that the proposals made by those representatives would be duly reflected in the report. He also indicated that the examination of the draft declaration would not be completed at this meeting, and that the decision-making phase would therefore follow a subsequent reading of the text. Lastly, the Chair stated that the Organization had expended the effort to hold a five-day meeting, despite its serious financial constraints, because of the importance it attributed to the matter.

A number of government delegations emphasized the importance of abiding by decisions reached within the Committee on Juridical and Political Affairs concerning participation by representatives of indigenous populations, which were recapitulated by the Chair at the beginning of the meeting. It was indicated that those decisions ensured suitable participation by those representatives and was consistent with the aforementioned General Assembly resolution.

The representatives of indigenous populations took the floor on various occasions throughout the working group proceedings. Their statements are recorded in this report along with the comments made by member state delegations and by representatives of various bodies and institutions of the inter-American system, such as the Inter-American Juridical Committee (CJI), the Inter-American Commission on Human Rights (IACHR), the Inter-American Indian Institute (III), and the Inter-American Institute of Human Rights.

B. Consideration of the Proposed Declaration

a. Section One: Definitions

The Chair proposed that deliberations begin with the identification and discussion of concepts whose definition would shape the rest of the text, so as to provide a shared focus for the discussions. He suggested, therefore, that the scope and meaning of terms such as “people,” “population,” “self-determination," "autonomy," "self-government," and "territory" be defined and set forth in a chapter entitled "Definitions." He circulated a written proposal containing three articles for Section One: “Definitions” (Article 1: Peoples and Populations; Article 2: Self-Determination; Article 3: Territory). The Chair clarified that these articles were drawn from a number of available sources, including comments by the member states, the Inter-American Juridical Committee, and the Inter-American Indian Institute.

Regarding the terms "people" and "population," some delegations expressed a preference for the latter term, citing international law and a number of General Assembly resolutions. They stated that the expression "people" was tied to the concept of self-determination, and that international law did not accord that right to indigenous communities. Some delegations said that a safeguard like the one included in Convention 169 of the International Labour Organization might be advisable, since it would allow the term "people" to be used without the implications it normally has under international law.

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.

Other representatives of indigenous populations pointed out, however, that a clearer definition of such concepts would be an important step forward, as it would help to assure progress in a definition of the rights derived from them.

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.

In this context, the National Congress of American Indians proposed that Article 1 of the draft Declaration read as follows:^[1]^/

“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.”

Some government delegations, after hearing the position taken by the representatives of indigenous populations, said that it would be wise to discuss the criteria by which the latter define themselves as peoples.

With respect to the concept of "self-determination," a number of government delegations indicated that, in the United Nations context, the concept was still evolving, and that this term should be defined on the basis of agreements reached by the states and the indigenous populations at the national level. In any case, the concept must not have the effect of diminishing the political integrity of the state.

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.

Some government delegations said it would be wise to discuss the concept "self-determination"–its scope and meaning in the context of a modern international community. Other delegations expressed their willingness to offer indigenous populations a wide margin of autonomy in the economic, social, cultural, and similar arenas.

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.

Finally, the representatives of indigenous populations stated that what was being discussed was a proposed declaration, not a draft convention. They therefore stressed that a declaration was an “aspiration” in terms of the rights of such populations, and that therefore it could not be subject to the constitution or the domestic legal norms of states, as this would clearly be retrograde insofar as such an aspiration was concerned. The objective of such a declaration was to open a path to dialogue based on a shared focus.

In that connection, the representative of the Inter-American Indian Institute stated that the fact that a declaration was being discussed did not release states from an obligation to seek precision and clarity in the concepts to be utilized; the representative of the Inter-American Juridical Committee pointed out that a declaration, although not binding, might recognize a status or right, and to that extent might have legal effect in that it was of some interpretive value. He went on to state that a declaration might give rise to a custom, a source recognized in international law.

The representative of the Inter-American Indian Institute indicated that any attempt to draft a declaration on the topic should take account of the process of recognition as well as that of rebuilding indigenous populations. He also indicated that states had the responsibility of harmonizing the concepts discussed herein with already-enshrined domestic concepts, and that only frank dialogue with indigenous representatives would be able to harmonize such concepts with the demands of those groups.

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.

Given the various opinions expressed, it was decided to maintain the formula “people/population” in the proposed declaration until the scope of each concept was defined. Some delegations also insisted on the importance of defining certain basic concepts to be used in developing the rest of the declaration. Satisfaction was also expressed that an opportunity had been provided to hear the indigenous representatives on topics as significant as those discussed in this section.

b. Section Two: Human rights

Several delegations proposed amendments to the second section of the proposed declaration. In particular, with respect to collective rights, there was feeling that it was advisable to include references to the right to the social, political, and economic organization and to recognition of the legal systems of those communities. However, in that connection some delegations expressed reservations in that this could be interpreted as recognition of a parallel legal system within a single state.

In reference to the right to recognition in law, it was felt that it would be necessary to specify what type of recognition was being discussed, whether international or recognition defined under the domestic law of each state.

The topic of rejection of assimilation also led to discussion among the delegations. In particular, it was suggested that specific reference be made to the protection of indigenous populations against the possibility of genocide.

In reference to special guarantees against discrimination, some delegations indicated that they had difficulty with language that imposed an obligation on the state to implement more guarantees that those already provided at constitutional level. Several delegations indicated that there was no reason for exclusive reference to gender- or age-based violence; rather reference should be made to all types of violence, which hindered or prevented the exercise of the rights of indigenous populations.

The general feeling was that this section dealt more with the rights of indigenous populations than with the obligations of the states, and that the declaration’s structure as such should be preserved and the necessary accommodations made in the rest of the articles. The chair suggested that this be borne in mind, and that the obligations of the states should be the subject of a specific chapter.

Representatives of indigenous populations, on the other hand, stated that the articles in this section should bear more directly on the obligations of the states. They also suggested that throughout the section, the phrase “and their members” should be added after the phrase “indigenous peoples.” The National Congress of American Indians suggested a new wording of Article 2, on self-determination, taken from the draft declaration now being negotiated at the United Nations:^[2]^/

“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.”

The National Congress of American Indians proposed the following wording for Article 2, paragraph 2:

“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.”

In that connection, some representatives of indigenous populations indicated that self-determination was a basic collective human right, perhaps the most important of such rights, that ensured, inter alia, the right to land and to the development of indigenous communities in accordance with their particular needs, within the general framework of the state. They indicated that many of the states present here had recognized the right to self-determination in other international fora, and they were now asking that the same be done within the framework of the OAS. However, they stated that there were many other collective rights, and drew attention to those already enshrined in several international instruments.

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.

One of the representatives of indigenous populations, Mr. Héctor Huerta of Panama, proposed the following wording:

“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.”

The National Congress of American Indians also proposed replacing the present wording of Article 5 of the proposed declaration with the following:^[3]^/

“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