DOCUMENTS FOR THE
JUSTIFICATION AND RECOMMENDATION TO THE GENERAL ASSEMBLY OF THE OAS
ON THE PREPARATION OF AN INTER-AMERICAN INSTRUMENT ON THIS MATTER (MARCH
The fact that 1992 marks 500 years since the arrival of the Iberian
conquerors on this continent offers a singular perspective for analyzing
the historical elements that have shaped the problems suffered by
Generally, these populations have been vulnerable as regards the
physical, psychological, spiritual, economic, legal, and institutional
aspects of life. Their
present situation is one of need, and in many cases they are marginalized
from even the most basic guarantees available to the general population.
Even more important is the preservation and development of the
indigenous cultures and their populations’ rights.
This is recognized not only as an ethical obligation of States out
of respect for, and in reparation for, the abuses and deprivations that
were forced upon them for centuries, but also as a socio-economic
necessity for States to draw upon these peoples as a source of wisdom,
customs, and values for the building of modern societies.
Along the same lines, at the present stage of development, the
exploitation of all available resources is crucial.
Nevertheless, development projects are often a threat to these
populations, even when these projects could be much more effective if they
were adequately synchronized with the knowledge and customs of the
indigenous peoples and respectful of their rights.
On the other hand, intentionally or not, many of the philosophical
premises upon which a good part of most countries’ legislation is based
have contributed to the erosion of the cultures of indigenous peoples and
their survival. This has been
principally manifested in different kinds of legislation, regarding for
example, land tenure, water rights, civil status, education, and even in
constitutional law. Such
legislation, however, could have taken advantage of the collective
experience of the indigenous populations in order to offer greater and
more efficient normative options for harmonious growth and social
As to international law, the valuable and sustained efforts
realized –especially within the United Nations—towards establishing
effective norms are far from completed.
Along these lines, the United Nations General Assembly approved
various resolutions which reaffirm the importance of raising the standard
of living of indigenous populations;
and the respect for the passing on of indigenous cultural traditions.
The Economic and Social Council, under the Subcommission on the
Prevention of Discrimination and the Protection of Minorities, began to
engage in studies of discrimination against indigenous populations in
This same subcommission created a working group on indigenous
populations that has been meeting since 1982 and is currently preparing a
draft of a Universal Declaration of Indigenous Peoples’ Rights.
The International Labor Organization (ILO) has drafted conventions
on the working conditions, education, training, and safety of indigenous
workers since 1921. These
efforts culminated in 1957 ILO Convention Nº 107, which is presently
ratified by 14 countries in the Americas.
The Convention, however, has recently been revised in order to
respond to criticism coming mainly from organizations of indigenous
peoples about “ethnocentric” or “paternalistic” character.
Certain legal and institutional steps have been taken within the
inter-American system as well. Aside
form precepts of the OAS Charter, the Inter-American Charter of Social
Guarantees of 1948, the American Declaration of the Rights and Duties of
Man, and the American Convention on Human Rights, both the mandates and
projects of the Inter-American Cultural Council as well as its successor,
the Inter-American Council for Education, Science and Culture (CIECC),
have overseen specific actions and measures related to the aboriginal
The Inter-American Indian Institute, created by a Convention
adopted in 1940 and later ratified by 17 American countries, deserves
special mention. This
Institute in spite of its modest resources, has been active in the area of
scientific investigation regarding indigenous affairs and promoting the
training and exchange of experts on these issues.
The Inter-American Commission on Human Rights has also adopted
important resolutions and reports dealing with the rights of indigenous
peoples in the OAS member States during its thirty years of activity.
Despite these achievements, the Commission is convinced that it
should progress further in order to reflect the Organization of American
States’ concern for the special and unique problems faced by the
aboriginal populations of the Americas in the area of human rights.
In an attempt to respond to these concerns, the Commission, while
recognizing the diversity of situations, advocates the need to establish
common international norms valid for the indigenous peoples of America.
Approximately 400 aboriginal ethnic groups exist in America,
differentiated by culture, language, and lifestyle, which comprise
population surpassing 30 million people, according to the conservative
estimates. This figure represents approximately 10% of the total
population of Latin America, with an increasing demographic importance.
These include small jungle tribes to important indigenous peasant
societies that are strong and well-organized in certain Andean countries.
There are many important reasons for stating the need for creating
common international legal norms for the protection of these groups’
human rights, despite their diversity and the different levels of
integration into national society that they represent.
In the first place, the groups share a common basic problem.
The inferiority and disdain with which these cultures have been
treated since the time of the conquest has generated a commonality in the
basic problems which affect these peoples.
Certain problems such as: the
direct attempts at physical or cultural genocide; the legal or de facto
disregard for their institutions or rights; the usurpation of their lands
or their right to collective and permanent use of their habitat; their
legal or de-facto condition as second-class citizens; the rejection or
ignorance of their cultural and pedagogical practices; and consequently,
the generalized destruction and erosion of their standards of living; have
in some way, usually intensively, threatened or affected all of the
indigenous tribes and their members.
The transcendental value of an international norm is a second
reason for calling for international standards.
While in the short term the international norm might be less
effective than the national, its capacity for mobilizing national
legislation from a broader perspective invariably facilitates national
efforts along these lines. And,
since many of the indigenous cultures transcend the political borders of a
particular country, the universality of the norm can guarantee greater
fairness in the protection of, and accommodation to the needs of said
peoples, offering a common framework for national or local legislation.
The adoption of the proposed instrument also has a pedagogical
value. Many of the de facto
or legal situations that affect indigenous populations arise form
ignorance or lack of understanding of their values, rights and the
processes necessary for the adequate development of cultural pluralism.
In this respect one should recall the Supreme Court of an American
country in which the impunity of landowners who had assassinated
indigenous people were granted impunity on the argument that these
assassins shared a general belief that the natives were inferior beings,
unprotected by the law. The
definition, by international bodies, of common basic norms for the
treatment of issues like this would be of use as guidelines for the whole
population, obligating it to reevaluate concepts to modify prejudices and
to discover valuable and positive elements that were previously unknown to
The problem of the indigenous populations is specific to the
American region. As was
expressed earlier, 1992 offers a privileged perspective the analysis of
the historical conditions that have shaped the problems that affect the
indigenous populations and society, in general, through their reciprocal
J. Marti wrote in “Our America” that …” this pretension of
the impossible denial and forgetting was what originated a divided
society, porous and without consistency.”
While the efforts at understanding and recognition began at least
as early as the activities of the Fathers Las Casas and Montesinos, it is
only recently that national legislations have begun to recognize and
respect the institutions and specific characteristics of the indigenous
peoples. Upon analysis of
these laws, the specificity of the problems that affect the American
natives is revealed to be generally associated to land tenure, the respect
given to their institutions, and the recognition of their equality within
a context of cultural autonorny. Some
background material worth mentioning which demonstrates the specificity of
the indigenous American problems includes: the Brazilian Law on the Indian
(Estatuto do Indio, Lei 6001 (Dec. 1973)) and the Brazilian Constitution
(1988), the Law for Indigenous Policy of Argentina (1984); the legal
concept of indigenous community established in Paraguay in 1981 and its
self-definition as a multi-lingual country; the same in Ecuador; the
concept of ethno-education proposed by the Betancur Law in Colombia; the
recognition of the ethnic pluralism constituting the Nation of Guatemala
(article 66 of the 1985 Constitution); the 1986 Constitution of Nicaragua
and the Statute for the Autonomy of the Atlantic Coast (1987); the
numerous treaties between Native American Nations in the United States and
the Federal Government between 1867 and 1971; the recognition of the
Caribs’ Reserve in Dominica (West Indies) after its independence; and
the Panamanian recognition of the Kuna Nation in a special Organic
Another indicator of the specificity of the regional situation is
provided by the inadequacy of international law in the area.
The U.N. International Covenant on Civil and Political Rights, for
example, does not include collective rights, and the rights, in general,
are protected negatively, in that there is no obligation on the States to
take affirmative action to improve the current situation. Also, although Article 27 of the Covenant protects the
cultural rights of ethnic minorities, it does not distinguish between
minorities and indigenous peoples, an important cultural pluralism in
The Commission, therefore, proposes the adoption of an
international instrument the objective of which would be to define the
rights of indigenous peoples. However,
the Commission declines to take a position on the possible legal nature of
such an instrument, leaving that decision to be taken by the member
States’ own governments. In
this regard, the most feasible alternatives are a Declaration adopted by
means of a General Assembly Resolution, or, an Additional Protocol to the
American Convention on Human Rights, or a separate inter-American
convention having no connection to the Pact of San Jose, Costa Rica.
The possibility of adopting at least two of these instruments
successively might also be considered.
For example, in 1992, the General Assembly could adopt an American
Declaration on the Rights of Indigenous Peoples and later proceed to
elaborate a conventional instrument.
Whichever option is chosen, it is important that two essential
elements be taken into account. In
the first place, it should be drafted as a juridical instrument and, at
the same time, it should receive the consent of the States that intent to
be bound by its provisions. It
should be kept in mind that as regards the issue of the rights of
indigenous peoples, there has been a dichotomy between the resolutions
that express the aspirations of the indigenous peoples themselves, usually
adopted in congresses of indigenous peoples, and the incorporation of
these rights into national or international law.
The Commission, by proposing such an instrument, wishes to avoid
this incongruence and, therefore, favors the adoption of an instrument
which faithfully expresses the legitimate aspirations of indigenous
peoples, can also be accepted by the States who will be bound by the
The Inter-American Commission on Human Rights, the body endowed by
the OAS Charter with the task of promoting the observance of human rights
in the continent, and which has had an important role in the codification
and progressive development of international human rights law, lends
itself to being the most appropriate body for carrying out the task of
preparing this instrument. In
addition, the Commission has been involved in the subject through the
preparation of reports and studies involving indigenous populations and
maintains fruitful contacts with the institutions which should be invited
to collaborate in this project, such as the Inter-American Indian
Institute, the Inter-American Institute of Human Rights, the specialized
agencies of the United Nations, such as UNESCO, and non-governmental
organizations of human rights, especially those formed by the indigenous
The General Assembly of the OAS, in resolution AG/RES. 927
Taking into account the above, and depending on the General
Assembly’s resolve concerning the formulation of an instrument
concerning the rights of indigenous peoples, the Commission manifests its
willingness to carry out the task of preparing such an instrument,
planning to rely upon the assistance of anthropologists, jurists, and
diplomats, both indigenous as well as non-indigenous.
With the financial assistance of other organizations, especially
the Inter-American Institute of Human Rights, meetings of experts
designated by the IACHR will be organized during the course of the year
1990 and part of 1991, in order for the first draft of this instrument to
be drawn up. This would then
be reviewed by the Commission and, once approved, would be sent to the
competent bodies of the Organization in order to be adopted during the
course of the year 1992.
in the IACHR’s 1988-1989 Annual Report, Chapter VI,
Resolution 313 (V). 1950.
Resolution 2497 (XXIV).
ECOSOC Resolution 1589 (L).
 See, Sheldon H. Davis, Land Rights and Indigenous Peoples. The Role of the Inter-American Commission on Human Rights. Cultural Survival. Cambridge, Massachusetts, 1988.