...continued 

34. Rights relative to their religious beliefs and practices

           Chile is of the view that this point should be included in the new instrument.

          Canada maintains that an indigenous people must be allowed to practice its religion.

          Peru, for its part, maintains that all indigenous populations have the right to exercise their religious or spiritual beliefs freely, including the right to express those beliefs through instruction, practice, worship and observance.  If to exercise their religious beliefs freely they must have access to lands and natural formations, then no State may adopt measures that threaten, either directly or indirectly, the existence of or access to those lands.  Peru concludes by stating that no State may undertake or permit activities whose purpose is to introduce, through missions, nonindigenous religions among indigenous populations.

          Guatemala believes that the religious beliefs and practices of indigenous populations must be respected; however, as to State protection against attempts at systematic conversion, it notes that there is freedom of religion and if a religion's rites or ceremonies are not unlawful, then the Constitution provides that one is free to choose one's religion or worship.

          Colombia notes that even though this right has already been mentioned briefly under the section on freedom of conscience and religion, there should be specific reference to the fact that the State must establish mechanisms to protect indigenous communities from outside groups that use deceit or coercion to change the religious and spiritual convictions of those peoples.

          The indigenous organizations agree that the new instrument must emphasize the State's obligation to protect the religious and spiritual convictions and practices of indigenous populations; there are countless religious sects invading indigenous territories, bringing with them divisiveness and hatred of other peoples.  The State must punish any efforts to force indigenous populations to change their religious convictions or beliefs and attempts at systematic conversion.

          The intergovernmental organizations contend that the indigenous populations' cultures and traditions must be respected; this is especially true of their religious beliefs.

          35. Rights relative to establishing and controlling their educational processes

          Chile believes that this point should be included and that some reference should be made to the obligation of State officials to register the names and surnames as they are given by the parents.  Universities should add the study of the history of indigenous populations to their curricula.

          Canada notes that the Canadian Government is committed to increasing community control of education; under the current finding, the indigenous communities have increasingly taken on responsibility for arrangements their own education programs, which has increased student attendance, retention rates and performance at all levels of the education system.

          Peru is of the opinion that every indigenous nation and people has the right to raise and educate their children in the skills, ideas, values and beliefs of the respective communities and cultures, to establish their own institutions of learning and have access to education in their own language.

          Costa Rica believes that education must be strengthened among indigenous populations to make them aware of their own reality, with a view to their self-preservation.  Costa Rica also believes that those who practice professions or hold positions in areas inhabited by indigenous people should be better prepared.  It concludes that the education program should include instruction in one's native language and one's customs and beliefs.

          Colombia points out that it is the right of the children of indigenous communities to have the education they receive, either from the State or from private institutions, respect their traditions, language and rules that protect their culture; Colombia also maintains that the instrument should stipulate that the instruction given should be informed by the cultural traditions of the indigenous populations, and should teach the students how to relate to their general surroundings.

          In general, the indigenous organizations state that every inhabitant of a State, indigenous or not, has the right to receive a proper education.  The problem is the language difference.  They therefore believe that education must be bilingual and ever respectful of the cultural values of the indigenous populations.

          36. Rights relative to the indigenous family's protection and community care and protection of children

          Chile believes that this point requires careful examination, given the illegal traffic in infants who are being sent abroad.

          Peru maintains that the indigenous nations and peoples must have priority jurisdiction over all questions relating to the guardianship of children, to the caducity of parental rights, to placement before adoption and to the adoption of children who are members of their communities.

          Venezuela argues that the State protects the family, which is the basic unit of society.

          Colombia believes that the instrument should make some reference to the notion of family as it is understood in indigenous communities.  Families are formed, organized and dissolved according to the each group's cultural rules.  Agencies in charge of programs that concern families and children must develop programs to make it easier for them to produce and reproduce as an autonomous social group and that put them in a balanced relationship with their milieu.

          The indigenous organizations in general agree every indigenous community must bring that society's control to bear in raising and protecting its children and thereby ensure that the cultural values of those indigenous populations will be preserved.

          37. Right to special measures to protect their intellectual and artistic property

          Chile believes it is inadvisable to include this in an specific instrument, since it comes under general law.

          Guatemala points out that the State undertakes to protect and promote artistic and cultural expression, but questions involving the intellectual property of the indigenous populations must be dealt with like those of the country's other inhabitants.

          Canada maintains that though this issue could come under the national laws on the subject, however certain elements may not be supportable, such as "voice appropriation", which means that non-indigenous persons cannot relate stories from the indigenous' perspective.  In cases such as this, the instrument might well include provisions on cultural property relating to the restoration of cultural property where feasible; the instrument should also make provision for indigenous knowledge of the use and properties of medicinal plants.  The indigenous person's traditional knowledge of the environment should also be protected.

          Colombia believes it is very important to include this right, because outsiders so frequently intrude upon indigenous communities to appropriate the knowledge used to correct those communities' development and health problems and then market them for profit.

          The indigenous organizations agree that every indigenous people has the right to have the intellectual property, art, crafts and other property of every member of the community protected.  Hence, music, dance and other expressions of indigenous culture must be protected by the State.

38. Rights relative to the use and development of their own medical services

          For Canada, the new instrument should make reference to the recognition of the role of the community in dealing with some health issues.  In line with ILO Convention 169, reference should be made to  health services that have been planned and administered in cooperation with the indigenous population.

          Chile cautions that this point must be studied very carefully.

          Venezuela notes that the right to health protection and the obligation to consent to the health measures established by law appear in the Venezuelan Constitution.

          Guatemala points out that this issue must be studied carefully, given the implications of combining differing medical systems.  It adds that some radical adjustments will be required and care must be taken to be sure that certain medical practices are not illegal.

          Costa Rica maintains that health centers must be established and staffed with well trained personnel.  Efforts must be made to train people from the various areas inhabited by indigenous persons so that they may perform these functions in the future.  Health clinics and nutrition centers must be set up at strategic locations calculated to reach as much of the local population as possible.

          In Colombia's opinion, the therapeutic and cultural value of traditional medicine should be recognized, as should the importance of combining it with other preventive and remedial methods.

          Several indigenous organizations were of the view that the State should encourage knowledge and development of traditional medicine among the indigenous populations themselves, working in combination with modern medicine to protect the health of the indigenous population.

          39. Rights relative to the internal execution and development of the customary legal system, insofar as it is not contrary to the national constitution

          Chile believes that this rule should be included.

          Canada, on the other hand, mentions that this point is unclear; if it is a call for the right to develop their own internal affairs, it would need clarification.  If it calls for the right to establish a separate justice system, there are very practical problems for a country where not all the indigenous population lives in separate communities.  Canada is currently involved in examining ways of accommodating indigenous customary practices in to justice system to a greater extent.

          Peru believes that these peoples' own methods of social control and the nature of the collective and individual problems must be considered, with a view to enabling them to settle the less important problems and requiring States to adapt their laws to allow certain problems to be settled by means other than the courts.  It adds that indigenous populations must have the right to preserve their own customs and traditions, provided they are not inconsistent with the domestic laws or human rights; procedures must be established for settling any disputes to which the application of this principle gives rise.  The methods customarily used  by the indigenous populations to punish crimes committed by their members should be respected and the courts should take into consideration the customs of those peoples to the extent that they are compatible with the national legal system and internationally recognized human rights.

          Guatemala observes that while a recommendation to this effect is advisable, it would be difficult to sign any document that required the State to undertake this commitment immediately, since the task of integrating culturally different legal systems will call for an enormous conceptual and practical effort.  Therefore, combining the indigenous communities' legal systems with the national system will take time, as all the implications have to be studied and a method devised.

          Colombia notes that specific provisions must be established for the members of indigenous communities; this issue ties in closely with the issue of special courts to hear cases wherein the defendant is an indigenous person.  It adds that the authorities of the indigenous populations should be permitted to exercise jurisdictional authority in keeping with their customs.

          The indigenous organizations agree that the State must recognize and guarantee the existence and practice of indigenous law, and whenever possible the indigenous populations' customary law should be applied to their members.  The latter should be guaranteed under the constitution.

          Both intergovernmental organizations replied that indigenous communities should be allowed to develop and practice their legal rules and institutions, which should be made compatible with the legal system governing the society as a whole.

          40. Rights relative to the States' respect for and observance of treaties and other international agreements concluded with the indigenous populations

          Chile is of the view that before including a statement concerning execution of treaties, it must be established that an indigenous people is a subject of international law.

          Venezuela asserts categorically that it only concludes treaties with subjects of international law, and tacitly confirms that indigenous groups are not regarded as such.

          Canada notes that the Canadian Constitution recognizes and affirms existing aboriginal and treaty rights based on treaties with the indigenous populations.

          Guatemala reasserts that the State must honor the treaties it signs, irrespective of the subject.

          Colombia points out that given the recognition of the autonomy of the indigenous populations, the State can enter into  agreements and other commitments to conduct coordinated efforts to satisfy their needs, while respecting their culture and providing the means necessary for it to develop properly.

          In general, the indigenous organizations agree that, through the national laws and backed by international conventions, States must recognize the treaties and other agreements they conclude with indigenous populations and honor them.

          41. Rights that ensure that multinational indigenous populations will be able to preserve their ethnic ties across national borders

          Chile contends that there is no need to duplicate the provisions of ILO Convention 169.

          Canada points out that ILO Convention 169 states that governments shall take appropriate measures, including by means of international agreements, to facilitate contacts and cooperation between indigenous and tribal peoples across borders, including activities in the economic, social, cultural, spiritual and environmental fields.

          Peru, for its part, contends that here  no State may undertake activities whose purpose is to inhibit, either directly or indirectly, the free flow of ideas among indigenous populations and between the latter and non-indigenous populations.

          Venezuela notes that it does not recognize the existence of "multinational indigenous populations", but rather the national indigenous citizens of each State.

          Guatemala is of the view that rights of this type should be discussed by binational commissions established by the States to concern themselves with border traffic of this kind.

          Colombia notes that even though Article 20 of the Convention is broad in this regard, express reference should be made to the fact that indigenous populations may share the territories.

of several states and that their rights should be respected inasmuch as their existence predates that of the States.

          Several indigenous organizations are of the opinion that the borders between States should be opened and indigenous people should be allowed to cross so as to strengthen the relations between indigenous populations.

          The international organizations note that special rights should be recognized in the case of indigenous populations because their existence as nations predates the formation of the nation-states in which they are located.

          42.          Territorial rights

          Chile reiterates the observations it made in connection with recognition of ancestral lands.

          Canada, on the other hands, is of the view that there are two different terms that must be distinguished: "land" refers to property that the group occupies to the exclusion of others, in which case the indigenous groups should have the right to make the same kinds of decisions making rights at least an extensive as those of private landowner would; then there is the term "territory", which refers to the properties that they traditionally use but do not occupied to the exclusion of others, in which case the government cannot protect indigenous territories or their traditional forms of use; it can, however, consult with indigenous populations in relation to their use.

          Peru believes that the lands and sacred places used for traditional ceremonies are particularly important and must be protected, preserved and respected. They must also be accessible to the indigenous persons, even if they are in areas settled and used by others.  It adds that indigenous populations' access to their land and natural resources must be guaranteed, considering the importance of the rights of the indigenous people to those lands and their traditions and aspirations.  Collective and individual property rights must be recognized.  National laws must respect the customary methods used to hand down property rights and the right to make use of the land, insofar as those customary methods fulfill the peoples' needs and do no thwart their economic and social development.  Measures must also be taken to prevent outsiders from taking advantage of the indigenous populations' customs or ignorance of the law to obtain title to or to use the property that belongs to these indigenous communities.

          Venezuela notes that the word "territory" is not the correct word to denote areas occupied by a State's indigenous groups; the proper word is "land", which would refer to the property or natural resources to which the indigenous nationals of each country have a claim.

          Guatemala believes that an indigenous community's farmlands and property and housing handed down through generations of families should receive special State protection and preferential credit and technical assistance to guarantee their development, ownership and ensure a better standard of living to all members of the community, thereby allowing the indigenous communities and others with lands that have traditionally belonged to them and which they have traditionally administered to preserve that system.

          Costa Rica maintains that reservations are tracts of land set aside by law for settlement by indigenous groups.  For Costa Rica, territories defined as indigenous communities may be in any of three situations:           

          a)  Those with the most authentic cultural identity, which preserve parts of their previous lifestyle and that have done less to alter their habitat.

          b)  Those that still preserve their language and certain other cultural features, but have altered their habitat somewhat and are more influenced by nonindigenous culture.

          c)  Those where the pressure from colonization has been greater; they tend to be close to urban centers.

          Costa Rica notes that its Indigenous Law stipulates certain special legal characteristics which an inter-American instrument might adopt, as follows: indigenous reservations are the essential, inalienable, nontransferable and exclusive right of the indigenous communities that inhabit them.  Costa Rica also states that indigenous communities should be encouraged to preserve their ancestral land use practices; observance of the rights of indigenous persons in respect of individual and collective land ownership should be monitored to stabilize land tenure.

          Colombia maintains that the issue of holding, using and crossing territory is an important one that would have to be expressly included in the new instrument.  Specific reference would have to be made to the custom of collective ownership/exploitation of many assets and to the fact that indigenous populations cannot be uprooted without the proper legal cause.

          The indigenous organizations in general believe that the States must recognize and guarantee the existence of indigenous territories in their respective countries, as juridical-political units.  They note that the State has an obligation to assign territories to the indigenous populations and to institute laws requiring that the members of those communities be allowed to develop their cultures in accordance with their traditional legal practices; in other words, according to customary law and governed by their institutions.  Some indigenous organizations add that the territories that the indigenous populations occupy and claim must not be subject to bargain and sale, as they constitute the very origin of these peoples' lives.  The State must adopt effective and explicit measures in their agricultural programs to guarantee that the territory of the indigenous people is respected.

          The intergovernmental organizations point out that the indigenous populations must have the right to own their own territory that ensures their survival and development as a people, with all other rights and guarantees consistent with the corresponding national laws.

          43.          Right to environmental protection

          Canada contends that the role of the indigenous population in managing the resources and ecosystems in their environment must be recognized.

          Chile again makes the point that when highly polluting industries are launched, the very lives and health of the indigenous communities are imperiled.  The latter do not have the same guarantees as private parties to assert their rights.

          Guatemala points out that the instrument should speak of environmental integrity and the ecological balance of the environment in which these communities live, which logically includes their lands and not their territories since in Guatemala's case the indigenous communities do not have assigned territories.

          Costa Rica  notes that integral development plans, programs and projects must be implemented to improve and preserve natural resources.  It adds that sustained development and the new jobs created by the effort to control and safeguard wild areas would raise the indigenous people's standard of living.

          Colombia maintains that the traditional indigenous practices must be recognized, respected, encouraged and implemented within their territories, as one means of maintaining an ecological equilibrium, since their farming practices and the other resources these peoples use have always been conservationist.  They are the product of generations of knowledge, built upon these peoples' special relationship with their environment.

          The indigenous organizations agree that the integrity of the environment should be assured by educating people in how to manage and use renewable and nonrenewable natural resources so that the ecological balance is preserved.  This is vital, given the symbiotic relationship between indigenous populations and the environment.

          44. Rights relative to the use of language in legal proceedings

          Guatemala points out that while this right should be included, in its own case, with so many indigenous languages, it would be difficult to find a trained and multilingual staff.  However, it notes, the problem could be handled by using interpreters and translators in the various dialects and languages.

          Colombia links this point to the principle of nondiscrimination and equality before the law.  Its own laws, it points out, state that if an individual does not speak Spanish, a translation shall be made or an interpreter provided.

          Several indigenous organizations believe this is a very serious problem that the new instrument must address.  Many judges and other court personnel do not speak the language of the indigenous populations.  Mechanisms have to be created to obviate this problem.

          Both intergovernmental organizations contend that indigenous populations must have the right to have, use and develop their own languages.  In any inter-ethnic encounter that concerns them, they have the right to deal in their own language, especially in the administrative and legal areas.

FUTURE STEPS IN PREPARING THE LEGAL INSTRUMENT ON THE RIGHTS OF INDIGENOUS POPULATIONS

          With publication of this document in its 1992 Annual Report, the Commission will have completed the third step in the method approved for preparing this instrument (OEA/Ser.L/V.II.80/doc.15, rev.1).  The Commission believes that this working paper (which is truly the first of its kind) will be invaluable in helping to draft an eventual inter-American instrument on the human rights of the indigenous populations. 

          Bearing in mind the observations of the Permanent Council, the General Assembly, the governments and institutions  concerning this summary, the Commission's next step will be to prepare the "Preliminary conclusions and a preliminary draft" of the legal instrument, to be discussed and reviewed by the Commission at its 84th session in October 1993.

          Once a preliminary draft has been approved, it will be sent to the governments and institutions for comment.  Based on the replies received, the Commission will prepare a final draft, which it will examine at its September 1994 session and then transmit to the General Assembly.

          The reader will appreciate that publication of the findings from the inquiry conducted by the Commission is an essential part of the search for "common ground" and common denominators among the members states of the OAS and the indigenous populations.  This preliminary study is being published for the purpose of sharing ideas and practices established in the various countries.  The Commission is not analyzing or evaluating the replies at this stage in the process.  Instead, at this point its desire is to enrich the exchange of views and share information among the protagonists themselves, who in the end will determine the content of an inter-American legal instrument to clarify the human rights of these indigenous tribes and peoples.

                 VII.  RECOMMENDATIONS

          Apart from the specific recommendations made throughout this report, the Commission has the following general recommendations:

          1.          That the member States that are not parties to the American Convention on Human Rights "Pact of San Josť" should either ratify it or accede thereto; that those States that have not yet done so should recognize the competence of the Inter-American Commission on Human Rights to receive and examine communications in which a State Party alleges that another State Party has violated a human right set forth in the Convention, pursuant to Article 45.3 of the Convention, and the binding jurisdiction of the Inter-American Court of Human Rights, pursuant to Article 62.2 of the Convention.

          2.          That the member States that have not yet done so, should sign, ratify or accede to, as appropriate, the Inter-American Convention to Prevent and Punish Torture; and that the States parties to the American Convention on Human Rights that have not yet done so should ratify or accede to, as appropriate, the Additional Protocol to the American Convention on Human Rights  in the area of economic, social and cultural rights and the Protocol to Abolish the Death Penalty.

          3.          That the member States that have not yet done so, should provide any information requested by the IACHR that falls within its general sphere of competence, especially under the Program of Action to strengthen the OAS in the area of human rights, pursuant to General Assembly resolution AG/RES. 1112 (XXI-0/91).

          4.          That the member States should respond to the Commission's second consultation on the content of an inter-American instrument to protect the rights of indigenous tribes and peoples, giving indigenous organizations as much of a role as possible in that process and widespread circulation of the document titled "First Round of Consultations on the Future Inter-American Legal Instrument on Indigenous Rights," as an instructive document and food for thought and analysis.

          5.          To reiterate to the governments of the member States the recommendation that all necessary guarantees continue to be given to the intergovernmental human rights organizations operating within their territories and to the members of those organizations, to enable them to monitor for the observance of human rights, in accordance with each country's constitution and laws.

          6.          That pursuant to Article 2 of the Convention, the member States undertake to adopt the necessary domestic legal measures to confine the competence and jurisdiction of military tribunals to only those crimes that are purely military in nature; under no circumstances are military courts to be permitted to sit in judgment of human rights violations.

          7.          That the member States should ensure that investigations and arrests of civilians are the exclusive competence of the appropriate civilian judicial and police authorities.

          8.          That the General Assembly make every possible effort to restore democracy and return President Jean Bertrand Aristide to the Presidency of Haiti, thereby averting continuation of the serious human rights violations that have been committed since the coup d'etat in that country.

          9.          That the General Assembly insist that the IACHR be allowed to play its proper, lawful role under the Charter and the American Convention on Human Rights in Haiti, including Commission access to the territory of that country.

          10.          That the General Assembly recommend to the General Secretariat that one of the priorities when preparing the proposed program-budget for the 1994-95 biennium be allocating resources to the Inter-American Commission and the Inter-American Court of Human Rights to enable them to discharge their functions to the fullest.

          11.          That the General Assembly should declare that the member States' obligation to promote the exercise of economic, social and cultural rights, to the extent that their means allow, is the basis of genuine, lasting development and an intrinsic part of the human rights program.  Enforcement of these rights benefits the neediest and most vulnerable segments of society, those to whom the violence and economic crisis have caused the greatest hardship.

          12.          That the General Assembly reaffirm that the eradication of extreme poverty and of the causes of economic underdevelopment and social injustice and reinforcement of democratic institutions are the basis for guaranteeing the protection and promotion of human rights in the hemisphere.

          13.          That the General Assembly request the governments of the member States to adopt measures to protect the autonomy, independence and integrity of the members of the judiciary in the performance of their functions and in the work of investigating human rights violations.

          14.          That the General Assembly acknowledge the cooperation between the member States and the Inter-American Commission on Human Rights during the on-site visits the Commission has made since the General Assembly's last regular session.

          15.          That the General Assembly recommend to the Inter-American Juridical Committee that it continue to include lectures and seminars on the inter-American human rights system in its annual course on international law as recommended previously in the General Assembly resolution AG/RES. 1112 (XXI-0/91), "Strengthening of the OAS in the area of Human Rights." 

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     [26]            References to collective rights also appear in the discussions of the individual rights, analyzed earlier.  See, in particular, point 5 on the right to recognition as a person before the law.