Guatemala, Chile and Colombia were of the view that since this individual right is recognized in other instruments, it need not be duplicated here.
Mexico believes that some reference should be made to this issue, since indigenous people sometimes are unaware of national positive law; there must be rules to prohibit unfair trials where the individual has neither a defense attorney nor an interpreter.
Peru believes that the instrument should stipulate that indigenous populations' institutions and decisions, like those of States, must observe internationally accepted individual and collective human rights; hence, any form of cruel or degrading punishment that their traditional systems of justice may still allow must be banned.
Colombia believes it is important that these rights be included, provided great care is taken to interpret what constitutes cruel or degrading treatment and to define what constitutes human dignity, while taking into consideration those cultural traditions that may be different from those of society as a whole.
Canada believes that this is every individual's inalienable right and it is, therefore, inconceivable that indigenous people will have the right in a special form. However, there is a particular history of abuse of a right, it might be mentioned in a general statement of rights, or even in a separate article.
The indigenous organizations believe that this right must be expressly included in the new instrument. They regard its violation as a form of ethnocide, whether by the State, religion or society itself. They add that there should be an explicit reference to the right to have one's spiritual integrity respected. Several indigenous organizations suggested that capital punishment be abolished and that attempts at assimilation cease.
The foregoing notwithstanding, one specialized organization (the Andean Commission of Jurists) believes that any reference to this in the instrument would be needless duplication, since it is a right that applies to the community as a whole, and no distinction need be made. The Commission does, however, note that some reference should be made to any exploitation of natural resources that exploits indigenous populations as well and forces them to live in degrading and inhuman conditions.
With reference to the second part of the question (prohibition of cruel or degrading treatment or punishment), the indigenous organizations note that in the States' legal proceedings the execution of a sentence or punishment ought not to be confused with the indiscriminate practice of torture; hence, it would be best to enforce indigenous customary law, as the indigenous person lives in another milieu and has only a rudimentary understanding of the laws of a country. The idea must be to recognize and respect cultural diversity at all times.
7. Right to personal liberty and security
Mexico states that even though this right is covered under its domestic laws, the indigenous populations' customary law should be considered.
Chile believes that all persons must be guaranteed these rights, without distinction.
Peru and Canada are of the view that a specific reference to the right to personal liberty and security will be appropriate in this instrument.
Colombia and Guatemala, on the other hand, contend that this right is already recognized in other international instruments and there should be no duplication.
As for the indigenous organizations, they all believe it is important for the new instrument to note that for many indigenous populations the meaning of the word "liberty" is not the generally accepted one. When it comes to the issue of what constitutes "liberty" for these sectors of society, therefore, the instrument must make allowance for some acceptances that are broader and others that are narrower.
On a more practical note, one organization (the Aymara Quechua Students Association) considers that indigenous persons should be penalized according to their own customary laws; thus, when an indigenous person is arrested and his/her domicile is in his/her community, then the individual in question should be remanded to his/her place of origin within 24 hours.
Along these same lines, several indigenous organizations suggested that some provision be made for "internal exile" and the "administrative neglect" that victimize indigenous populations, such as abduction and enforced disappearance by government security forces and paramilitary groups, and attempts at religious, ideological, political and cultural coercion by systems that have contributed to genocidal and ethnocidal practices against tribunal and indigenous populations. They believe effective mechanisms must be put into place to guarantee full respect for everyone's personal liberty and safety, including that of indigenous populations.
8. Prohibition of slavery, servitude or forced labor
Peru argues for a provision to expressly prohibit the practice of forcing indigenous persons to work without their consent, to ban any form of force or coercion, and to guarantee equal pay for equal work, access to jobs at all levels and the right to social security.
Colombia also mentions the need to include such a prohibition, considering the social vulnerability to which indigenous persons are exposed because they are different and/or not dominant.
Mexico, Chile, Canada and Guatemala indicate that these prohibitions are covered in existing international instruments. Chile and Canada add that a provision of this nature could only be included if it took into account the idiosyncrasies of each people or the special needs of indigenous persons.
On the whole, indigenous organizations believe that these practices and others like them should be expressly prohibited by the new instrument, particularly in reference to indigenous women who are the victims of sexual abuse, the theft of the indigenous populations' lands and rights and the forced removal of those peoples on the pretext of building hydroelectric, tourist and other public works, which are disguised forms of slavery which the State must prevent. They add that before an indigenous person takes a job, he/she should be advised of his/her labor rights and receive a fair wage. The new instrument should also stipulate that collective labor, called tequia or faena, is not to be regarded as forced labor since it is performed on the basis of an agreement entered into as a group, by group consensus and in keeping with indigenous custom and practice.
9. Right to safeguarding honor and dignity
Colombia points out that as in the case of cruel and degrading treatment, many ancestral indigenous practices are viewed by society at large as violating honor and dignity; the cultural milieu has to be considered when interpreting this right.
Colombia also notes that outside these communities many things may be done to disregard, discredit, disparage or misrepresent their lifestyles, using images and perspectives that are demeaning to them. The instrument should limit or ban such practices.
Peru notes that in keeping with Article 11 of the American Convention, the new instrument should specifically state that customs must be respected and that judges shall take them into account when deciding cases involving violations of the right to privacy.
For its part, Chile points out that the right to privacy and to self identity should be a part of all constitutions and of the proposed instrument under examination here.
Canada maintains that the right to privacy could be included, in a new instrument insofar as it relates to the special needs of indigenous populations.
In general, the indigenous organizations' reply was that this right should be expressly included in the new instrument. They emphasized that the word "Indian" or "indigenous" should not be charged with hatred or used to insult or mock. Their private life, their families, and their domicile should be respected and any unlawful attacks on their honor and reputation should be prohibited. They add that everywhere they live, indigenous populations' cultural values and customary law, the memory of their ancestors, their museums, monuments, sacred cemeteries and other living testimony to the individual, family and social life of the people or peoples must be respected and the discriminatory practices and behavior hidden in many aspects of a society's daily life must be eradicated.
10. Freedom of conscience and of worship
All the countries note that their domestic laws provide for freedom of conscience and of worship. Colombia adds that in view of the attempts at systematic religious conversion, it might be best to include some reference to protection of this individual and collective right. It points out that in the course of the internal inquiries made to complete the questionnaire, cases were examined in which members of religious groups were trying to take advantage of circumstances, instilling in the indigenous communities, through deceit and fear, religious beliefs and practices alien to their traditions, thereby undermining their own religious authorities and beliefs Colombia suggests that indigenous populations should be free to decide which outside agents they will admit in, basing that decision on truthful information sufficient to make a free and informed choice about any change in their beliefs system.
Chile is of the view that in the new instrument, the States should agree upon a way to combine the notion of religious freedom with that of preservation of native cultures.
Canada says that historical experience shows that some mention should be made of this freedom to enable indigenous people to practice their religion.
Indigenous organizations in general agree that freedom of conscience and worship must be respected; that States must preserve the indigenous populations' freedom of conscience and religion, and repeal any legislation that imposes religions or philosophical beliefs that are hostile to the indigenous populations' existence on their territories; accordingly, no religious institution or sect can impose its religion against the will of the people. The individual or collective beliefs of indigenous persons and their spirituality and ancestral rites must be recognized, as must their right to preach and practice those traditional beliefs.
Mexico, Peru and Colombia concur on the need for express reference to freedom of thought and expression. Colombia attaches particular importance to this freedom since the potential to develop and reproduce their ancestral expressions, so important to their survival as unique groups within society, depends upon the exercise of this right.
Peru elaborated by stating that this right should include the opportunity to exchange information and ideas by whatever means, regardless of national borders, and the right to introduce in the international community concepts and ideas that follow from indigenous principles.
Mexico points out that when compared to the rest of the population indigenous populations have historically had little access to national information. Law codes, especially the constitutions, should be available in the indigenous languages and there should be programs to foster communications between indigenous and non-indigenous persons, engendering a mutual respect for cultural differences and a rich exchange of information.
Chile adds that the States must make provision for the suppression of racial hatred.
Canada believes that this right must figure in the new instrument, but as it pertains to the special needs of indigenous persons, adding educational measures intended to eliminate prejudice of the general population.
The indigenous organizations in general replied that this right should also include the guarantee that sufficient means of expression will exist to ensure the indigenous population is not outside the mainstream; they add that the freedom of thought and of expression of the indigenous populations must be according to their view of the cosmos. This right should also embrace cultural practices; these expressions may be in native orthographies and languages. They note that freedom of expression is essential to the exercise of political rights and should be respected even when a state of emergency has been declared.
12. Right of assembly
Mexico, Chile and Colombia believe this right should be included in the proposed instrument, especially where indigenous ceremony is concerned. Mexico and Chile, however, believe that this right should also mean respect for the sacred areas where the communities perform these ceremonies.
Colombia underscores the importance of this right to enable people to voice their concerns and grievances directly. It therefore believes that this right should be guaranteed with as few exceptions and qualifiers as possible. It indicates that the phrase "without arms" in Article 15 of the American Convention ought not to be interpreted as referring to instruments that, though they could be mistaken for arms, are in fact everyday tools or items that serve a purely ritualistic purpose in traditional ceremonies.
Canada is of the view that the new instrument must mention the right of assembly, since indigenous persons have special needs in relation to its application. It adds that this right is important in the exercise of indigenous self-government.
The indigenous organizations agree that this right must mean that indigenous populations are free to assemble according to their uses, customs, ancestral traditions, beliefs, religions, etc, and in their customary places. They add that implicit in this right should be the right to defend the communal territory which the State has guaranteed to them through indigenous customary law or positive law.
The foregoing notwithstanding, the Andean Commission of Jurists
points out that the rights and limitations should be the same as those
recognized in the American Convention in respect to all persons and
members of a national group.
13. Rights of the family
Mexico maintains that the right to traditional matrimonial and kinship relationships should be recognized.
Chile, likewise, believes that the instrument must recognize the various systems that indigenous customary law uses to establish lawful paternity/maternity.
Canada, for its part, believes that the instrument should contain some provision related to custom adoption; it adds that in cases of adoption, family breakdown and other similar matters of that nature, the "best interests" of the child must be gauged by the interests of the individual, family and community and that some provision to that effect should be included.
Several indigenous organizations replied that the culture and customs for establishing families must be considered; indigenous marriage should be considered to have the same legal effects as civil or ecclesiastical marriage. This right should also include respect for the modus vivendi of indigenous populations. They add that the State must provide families with counseling on family planning, hygiene, etc. States must pass legislation to ensure that indigenous families are not torn apart and establish penalties against those who would traffic in indigenous children or remove them to other milieu on the pretext of providing them with different living conditions. These laws must also protect the physical, moral and cultural health of the families that make up the larger tribal family.
14. Right to a name
Colombia, Costa Rica, Mexico and Peru are all of the opinion that this right should be included to clarify specific situations that should be protected. Colombia emphasizes the "cultural-mythical" importance that many communities attach to having their "native" or "ancestral" name revealed outside the community or even within it. This means that some indigenous people may have two names so as not to have to reveal or renounce the traditional name; they use the second name to identify themselves outside their community when exercising their political or civil rights: for property deeds, voting in national elections, etc. In Colombia's case, these considerations and developments have acquired added importance at the present time, with creation of the Indigenous Territorial Entities and the fact that the functions of indigenous authorities have been expanded to include such areas as independent resource management and court functions. It contends that other communities whose value system is different and that are more actively engaged with society as a whole, have claimed the right to use their ancestral name in all activities, both within and outside the community, and have filed the necessary petitions with the appropriate authorities.
Costa Rica argues that the indigenous person must have the right to retain his/her native or natural name, and not be forced to change it for linguistic reasons.
Mexico recalls that the traditional legal systems have a very different notion of the right of family whereby entire indigenous populations use the names of their ancestors as surnames. Peru contends that including the right to call oneself by one's own name ties in with the right to state one's identity freely and openly, an ethnic and cultural characteristic.
Chile believes the instrument should include a norm that ensures respect for and preservation of indigenous surnames, to protect against enforced "hispanization".
Canada maintains that the recognition of indigenous names for groups and place names might also be considered.
The indigenous organizations all agree that the authorities must respect this right, inasmuch as every indigenous people has the right to demand that its original name be respected and to change or eliminate those names that are not to its liking, either because they were forced upon it, are not in its native language or are a convenience for statistical or official identification. They contend that the necessary precautions must be taken for adoptions, lack of documents and other problems of that nature.
15. Rights of the child
All the countries report on their child protection laws in general, which apply with equal force to indigenous children as well. Colombia points out the special protection provided by specialized agencies for the adoption of indigenous minors, primarily intended to keep them within or reinstate them to their native community, in keeping with the latter's customs and practices so long as those practices are not inimical to the child's best interests. It also points out the special protection against child labor whereby one must secure authorization from the local government or indigenous authorities in order to hire indigenous minors. It points out that it is the right of indigenous minors to have State or private education respect their traditions, language and culture. Colombia also notes that judges and civil servants that deal with the affairs of indigenous minors must take into account their uses, customs and traditions, and consult with the traditional authorities.
Mexico believes it is important to include the child's inalienable right to education in his/her native language, history and culture, as part of the academic curriculum, without having to forsake his/her right to subsequent education in the national and universal language and culture.
Chile believes that this issue ties in with the right of parents to educate their children in the values and languages of their people; accordingly, the educational system must encourage the child to be proud of being an indigenous person and to study his/her own history
Canada points out that the instrument must recognize the child's right to enjoy his/her own culture, profess his/her religion and use his/her own language with other members of the group.
A number of indigenous organizations reply that the new instrument should explicitly prohibit the traffic in indigenous children and their unlawful adoption. The child must enjoy the rights recognized in the proposed instrument, receive a bilingual education from properly trained teachers in the child's native language community, and be given the protection that communal life dictates.
16. Right to nationality
The countries state that this right is guaranteed under their laws and there need be no specific reference to it in the future instrument.
Canada, however, believes that the instrument could include provisions on specific situations can be identified regarding the application of this right for individuals, then reference might be made to indigenous people.
The indigenous organizations in general maintain that the pluri-nationality of our countries must be recognized as must the right of nationality of an indigenous people or ethnic group, and that the State must guarantee the national and cultural identity of that people or ethnic group. In the case of border territories, the possibility of dual nationality should be considered. Several indigenous organizations add that the States must grant citizenship to indigenous individuals from different tribes or peoples if they meet the commonly accepted citizenship requirements; the expulsion of indigenous persons from neighboring States on the pretext that they carry disease must be banned. They conclude by observing that nationality comes by way of the indigenous nations or peoples, while citizenship is something the State grants to its inhabitants. The notions of "citizenship" and "nationality" must not be confused.
17. Right to private property and to its use and enjoyment
Although this right is in general guaranteed under all the legal systems, Mexico and Costa Rica stress the importance of including it in the proposed instrument. Mexico argues that the territorial rights and the right to individual and collective property must be respected. Given the fact that the indigenous populations' principal problems are related to agrarian disputes, Mexico believes that their legal practices and customs should be factors when finding a legal settlement to these disputes.
Costa Rica believes that there must be guarantees in the instrument to ensure development on indigenous reservations that protect the indigenous populations' right to their ancestral lands.
Chile believes that the instrument should allow for organizational arrangements that are consistent with indigenous customs.
Canada notes that this right must be considered in respect of indigenous persons as well. It believes that the intellectual property rights of indigenous persons and their cultural property must be considered in other fora.
In general, the indigenous organizations are of the view that private property, as conceived in the civil codes, is not compatible with the theory and practice of collective property among indigenous populations as their means to guarantee the use and enjoyment of the family property. A State must guarantee collective property when it recognizes an indigenous people's ownership of the land it has occupied since time immemorial and its ownership of the natural resources that land holds. The State must also establish the means to return those resources to the indigenous populations. The indigenous population must have full rights to use, enjoy and profit by their movable property and real estate. This, too, must be guaranteed and recognized by the State.
18. Freedom of movement and residence
Mexico, Peru and Colombia are of the view the instrument should include special provisions to uphold this right, though Mexico also believes that it must tie in with indigenous customs by guaranteeing freedom of movement for such customary practices as pilgrimages to sacred places across national borders.
Peru believes that the indigenous populations' right to self determination includes the freedom of move about and reside in their territories, the legal rights of society in general notwithstanding.
Colombia points out that there are well-known cases where entire indigenous populations have been uprooted from their ancestral lands on grounds not allowed under the American Convention; given that fact, Colombia believes that there should be language in the instrument to prohibit such situations. The paramount objective is to protect indigenous populations from being uprooted from their ancestral lands for reasons that have nothing to do with the community's own interests and accomplished by means of deception or intimidation.
Chile is of the view that the proposed instrument should make explicit reference to indigenous persons' freedom of movement.
Canada observes that special considerations should be included for some indigenous populations; while indigenous and non-indigenous persons should be able to move lawfully about the territory of the State, reservations -in Canada and other countries place certain restrictions on the ability of people to take up residence.
Several indigenous organizations note that the new instrument should recognize this right and should explicitly provide that no indigenous people shall be uprooted and/or eradicated from its territory without its consent; if its relocation is necessary, it should be compensated and sent to places that are ecologically similar. The instrument should also recognize the indigenous person's right to move about his/her national territory freely, that States must respect the habitat or territory where indigenous populations reside and even grant them the right to cross the borders between States for cultural, religious or economic reasons.
The foregoing notwithstanding, the Andean Commission of Jurists believes that as a statutory frame of reference, the protection afforded by existing international treaties is sufficient.
19. Political rights: the right to vote and to be elected to public office and to participate in public affairs
The responses indicate that indigenous populations have the same right to participate in political life as other citizens of the State.
Costa Rica believes that the electorate chooses those who will govern, and the governing may under no circumstances be divided into ethnic groups. Peru maintains that the State has the obligation to actively promote the indigenous people's participation by virtue of their right to be represented in the legislative, executive and judicial branches of government and in the general government. It emphasizes how important it is that the State lend its support and encouragement to help indigenous populations organize nationwide, independently of the organs of the State.
Colombia believes that the instrument should mention the need to adopt mechanisms that protect and guarantee the exercise of this set of rights, as a tangible demonstration of these peoples' autonomy.
Chile, for its part, believes that in view of the evidence that the indigenous population is underepresented, some thought might be given to the eventual implementation of affirmative action.
Canada observes that the instrument could include a specific mention of this point, since indigenous persons have been among the last to be extended political rights by national government. It adds that in keeping with the Canadian Charter of rights and freedoms, there have been proposals to include special indigenous electoral districts in federal elections and senatorial representation. It also notes that the indigenous populations should be consulted before making any changes to the articles of the constitution that affect them.
The indigenous organizations believe that indigenous populations must have effective political participation and be permitted to exercise their rights to the fullest and without interference from political parties. They should participate through their representatives, selected according to their own traditional procedures; the State must guarantee the right of the indigenous populations' political parties and civil and social institutions to function. Correspondingly, the proposed instrument must recognize the indigenous populations' right to self-governance and to self-determination as essential to achieving political autonomy, equality, human dignity, freedom, environmental protection and ecological balance. All the foregoing are essential to the survival of the indigenous populations and must not be regarded as a threat to the State's territorial integrity.
20. Equality before the law and equal protection under the law
Costa Rica, Mexico and Colombia believe there are certain points that need to be addressed here. Costa Rica states that often the arm of the law does not reach the indigenous communities, either because of distance or because of friction between the national authorities and the indigenous people.
Colombia believes that the proposed instrument should specifically state that the law applied should be informed by the uses and customs of the community, which means that special tribunals are needed.
Mexico believes that means must be provided to enable indigenous populations to understand the law linguistically and when legal proceedings are involved interpreting services should be available to whomever requires them. Mexico also argues that the legal system must recognize the pluralistic nature of society, guaranteeing the rights of indigenous populations and ensuring that indigenous persons will have effective access to the courts, with no discrimination of any kind.
For Chile, this principle must be reinforced in the specific case of indigenous populations since where they are concerned, formal equality before the law does not necessarily translate into real equality.
Canada maintains that "equality" does not necessarily mean that no differences are permitted. It argues that it is not discrimination if the differences in treatment have a legitimate purpose or when the classification is based on substantial factual differences. It notes that Article 8.2 of the American Convention on Human Rights concerns criminal proceedings; ILO Convention 169, on the other hand, also provides for measures that must be taken to ensure that an indigenous person is able to understand and to be understood in legal proceedings where interpreting services are needed.
The indigenous organizations in general replied that the new instrument should state that indigenous people have a right to protection under the law, but must also recognize their differences in respect to uses, customs and customary law. Therefore, special courts should be created to hear cases to which indigenous persons are party. Several indigenous organizations add that States must guarantee the right to equality and to equal protection under the law, allowing indigenous populations to exercise their rights just as the general citizenry is allowed to exercise its rights.
21. The right to a simple, effective and swift recourse when rights are violated
Colombia is of the opinion that while the American Convention covers this right in general, because indigenous people often live far away from centers of government the new instrument should guarantee that recourse shall be immediate and always available.
Peru suggests that the new instrument might make provision for establishing procedures to settle any disputes that may arise in applying the principle of respect for and preservation of the communities' own customs and institutions that are legally compatible with the national or international principles.
Chile, on the other hand, contends that no new procedural remedy need be created to protect the rights of indigenous people.
Canada believes that this may have particular importance to indigenous people and would therefore be in favor of including it in the proposed instrument.
In general, the indigenous organizations maintain that the instrument must recognize this right in order to avoid acts that violate the fundamental rights of the indigenous people; they are in favor of a special law in each country to guarantee a swift and simple recourse, first applying the constitutional principles in respect of all individual rights and freedoms and then the special substantive laws. The culture of the indigenous people must be respected at all times.
One of these indigenous organizations, the Inter-American Commission of Indigenous Jurists, maintains that in their procedural laws States must guarantee the administration of justice based on indigenous law whenever pertinent, and use local persons designated by the indigenous tribes and peoples to administer justice; the decisions of local `magistrates' can be appealed with the municipal, state or federal ordinary courts. When the rights of the indigenous populations have clearly been violated and once appeals all the way to the Supreme Court have been exhausted, a case can be filed with the Inter-American Court of Human Rights by means of a simple petition stating the facts about the previous proceedings so that the appropriate inquiries can be made.