The member states of the Organization of American States (hereinafter
the States),
RECOGNIZING:
That the rights of indigenous peoples are both essential and of historical
significance to the present and future of the Americas;
The important presence in the Americas of indigenous peoples and their
immense contribution to development, plurality, and cultural diversity, and
reiterating our commitment to their economic and social well-being, as well as
the obligation to respect their rights and cultural identity; and
That the existence of the indigenous cultures and peoples of the
Americas is important to humanity;
REAFFIRMING that indigenous peoples are original, diverse societies with
their own identities that constitute an integral part of the Americas;
CONCERNED that indigenous peoples have suffered from historic injustices
as a result of, inter alia, their
colonization and the dispossession of their lands, territories and resources,
thus preventing them from exercising, in particular, their right to development
in accordance with their own needs and interests;
RECOGNIZING the urgent need to respect and promote the inherent rights
of indigenous peoples, which derive from their political, economic, and social
structures and from their cultures, spiritual traditions, histories, and
philosophies, especially their rights to their lands, territories, and
resources;
RECOGNIZING ALSO that respect for indigenous knowledge, cultures, and
traditional practices contributes to sustainable and equitable development and
proper management of the environment;
BEARING IN MIND the progress achieved at the international level in
recognizing the rights of indigenous peoples, especially Convention No. 169 of
the International Labour Organization and the United Nations Declaration on the
Rights of Indigenous Peoples;
BEARING IN MIND ALSO the progress made in nations of the Americas at the
constitutional, legislative, and jurisprudential levels to safeguard, promote,
and protect the rights of indigenous peoples, as well as the political will of
states to continue their progress toward recognition of the rights of
indigenous peoples in the Americas;
RECALLING the commitments undertaken by the member states to guarantee,
promote, and protect the rights and institutions of indigenous peoples,
including those undertaken at the Third and Fourth Summits of the Americas;
RECALLING
ALSO the universality, inseparability, and interdependence of human rights
recognized under international law;
CONVINCED that recognition of the rights of indigenous peoples in this
Declaration will foster harmonious and cooperative relations among States and
indigenous peoples, based on the principles of justice, democracy, respect for
human rights, nondiscrimination, and good faith;
CONSIDERING the importance of eliminating all forms of discrimination
that may affect indigenous peoples, and taking into account the responsibility
of States to combat them; and
ENCOURAGING
states to respect and comply
with, as well as effectively implement, all their obligations as they apply to
indigenous peoples under international instruments, in particular those related
to human rights, in consultation and cooperation with the peoples concerned,
DECLARE:
Article I.
1. The
American Declaration on the Rights of Indigenous Peoples applies to the
indigenous peoples of the Americas.
2. Self-identification
as indigenous peoples will be a fundamental criterion for determining to whom
this Declaration applies. States shall respect the right to such
self-identification as indigenous, whether individually or collectively, in
keeping with the practices and institutions of each indigenous people.
Article II.
States recognize
and respect the multicultural and multilingual character of indigenous peoples,
who are an integral part of their societies.
Indigenous peoples have the right to self-determination. By virtue of
that right, they freely determine their political status and freely pursue
their economic, social, and cultural development.
Nothing in this Declaration may be interpreted as
implying for any State, people, group or person any right to engage in
any activity or to perform any act contrary to the Charter of the
Organization of American States or
the Charter of the United Nations or construed as authorizing or encouraging
any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent states.
Article V. Full effect and observance of human
rights
Indigenous peoples
and individuals have the right to the full enjoyment of all human rights and
fundamental freedoms, as recognized in the Charter of the United Nations, the
Charter of the Organization of American States, and international human rights
law.
Article VI. Collective rights
Indigenous peoples
have collective rights that are indispensable for their existence, well-being,
and integral development as peoples. In that regard, States recognize and
respect the right of indigenous peoples to their collective action; to their
juridical, social, political, and economic systems or institutions; to their
own cultures; to profess and practice their spiritual beliefs; to use their own
tongues and languages; and to their lands, territories and resources. States
shall promote, with the full and effective participation of indigenous peoples,
the harmonious coexistence of the rights and systems of different population
groups and cultures.
Article VII. Gender equality
1.
Indigenous women have the right to the recognition, protection, and
enjoyment of all human rights and fundamental freedoms provided for in
international law, free from discrimination of any kind.
2.
States recognize that violence against indigenous peoples and individuals,
particularly women, hinders or nullifies the enjoyment of all human rights and
fundamental freedoms.
3.
States shall adopt, in conjunction with indigenous peoples, the
necessary measures to prevent and eradicate all forms of violence and
discrimination, particularly against indigenous women and children.
Article VIII. Right to belong to indigenous peoples
Indigenous individuals
and communities have the right to belong to one or more indigenous peoples, in
accordance with the identity, traditions, customs, and systems of belonging of
each people. No discrimination of any kind may arise from the exercise of such
a right.
Article IX. Juridical personality
States shall recognize fully the juridical personality of
indigenous peoples, respecting indigenous forms of organization and promoting
the full exercise of the rights recognized in this Declaration.
Article X. Rejection of assimilation
1. Indigenous peoples have the right to
maintain, express, and freely develop their cultural identity in all respects,
free from any external attempt at assimilation.
2. States
shall not carry out, adopt, support, or favor any policy of assimilation of indigenous
peoples or of destruction of their cultures.
Article XI. Protection against genocide
Indigenous peoples have the right not to be the object of
any form of genocide or attempts to exterminate them.
Article XII. Guarantees against racism, racial
discrimination, xenophobia, and related intolerance
Indigenous peoples have the right not to be the object of
racism, racial discrimination, xenophobia, or related intolerance. States shall
adopt the preventive and corrective measures necessary for the full and effective
protection of that right.
Article XIII. Right
to cultural identity and integrity
1. Indigenous peoples have the right to their own cultural
identity and integrity and to their cultural heritage, whether tangible or intangible,
including historic and ancestral heritage; and to the protection, preservation,
maintenance, and development of that cultural heritage for their collective
continuity and that of their members and so as to transmit that heritage to
future generations.
2. States shall provide redress through
effective mechanisms, which may include restitution, developed in conjunction
with indigenous peoples, with respect to their cultural, intellectual,
religious, and spiritual property taken without their free, prior, and informed
consent or in violation of their laws, traditions, and customs.
3. Indigenous people have the right to
recognition and respect for all their ways of life, cosmovisions, spirituality,
uses, customs, norms, traditions, forms of social, economic, and political
organization; forms of transmission of knowledge, institutions, practices,
beliefs, values, dress, and languages, recognizing their inter-relationship as
established in this Declaration.
Article XIV. Systems of knowledge, language, and communication
1. Indigenous peoples have the right to
preserve, use, develop, revitalize, and transmit to future generations their
own histories, languages, oral traditions, philosophies, systems of knowledge,
writing, and literature, and to designate and retain their own names for their
communities, individuals, and places.
2. States shall adopt adequate and
effective measures to protect the exercise of this right with the full and
effective participation of indigenous peoples.
3. Indigenous
peoples have the right to promote and develop all their systems and media of
communication, including their own radio and television programs, and to have
equal access to all other means of communication and information. States shall
take measures to promote the broadcast of radio and television programs in
indigenous languages, particularly in areas with an indigenous presence. States
shall support and facilitate the creation of indigenous radio and television
stations, as well as other means of information and communication.
4. States,
in conjunction with indigenous peoples, shall make efforts to ensure that those
peoples can understand and be understood in their own languages in
administrative, political, and judicial proceedings, if necessary through the
provision of interpretation or by other effective means.
Article XV. Education
1. Indigenous
peoples and individuals, particularly indigenous children, have the right to
all levels and forms of education, without discrimination.
2. States and indigenous peoples, in keeping with the principle
of equality of opportunity, shall promote the reduction of disparities in
education between indigenous and non-indigenous peoples.
3. Indigenous peoples have the right to
establish and control their educational systems and institutions providing
education in their own languages, in a manner appropriate to their cultural methods
of teaching and learning.
4. States, in conjunction with indigenous
peoples, shall take effective measures to enable indigenous individuals living
outside their communities, particularly children, to have access to education
in their own languages and cultures.
5. States shall promote harmonious
intercultural relations, ensuring that the curricula of state educational
systems reflect the pluricultural and multilingual nature of their societies
and encourage respect for, and knowledge of, the different indigenous cultures.
States, in conjunction with indigenous peoples, shall promote intercultural
education that reflects the cosmovision, histories, languages, knowledge,
values, cultures, practices, and ways of life of those peoples.
6. States,
in conjunction with indigenous peoples, shall adopt necessary and effective
measures to ensure the exercise and observance of those rights.
Article XVI. Indigenous spirituality
1. Indigenous
peoples have the right freely to exercise their own spirituality and beliefs
and, by virtue of that right, to practice, develop, transmit, and teach their
traditions, customs, and ceremonies, and to carry them out in public and in
private, whether individually or collectively.
2. No indigenous people or individual shall be subjected to
pressures or impositions, or any other type of coercive measures that might impair
or limit their right freely to exercise their indigenous spirituality and
beliefs.
3. Indigenous
peoples have the right to preserve, protect, and access their sacred sites,
including their burial grounds, to use and control their sacred objects and relics,
and to recover their human remains.
4. States, in conjunction with indigenous
peoples, shall adopt effective measures, to promote respect for indigenous
spirituality and beliefs, and to protect the integrity of the symbols,
practices, ceremonies, expressions, and spiritual protocols of indigenous
peoples, in accordance with international law.
Article XVII. Indigenous family
1. The
family is the natural and fundamental group unit of society. Indigenous peoples
have the right to preserve, maintain, and promote their own family systems.
States shall recognize, respect, and protect the various indigenous forms of
family, in particular, the extended family, as well as their forms of
matrimonial union, filiation, descent, and family name. In all cases, gender
and generational equity shall be recognized and respected.
2. In
matters relating to custody, adoption, severance of family ties, and related
matters, the best interests of the child shall be a primary consideration. In
determining the best interests of the child, courts and other relevant institutions
shall take into account the right of every indigenous child, in community with
members of his or her people, to enjoy his or her own culture, to profess and
practice his or her own religion, and to use his or her own language, and, in
that regard, shall take into account the indigenous law of the people concerned
and their points of view, rights and interests, including the positions of the individuals,
the family, and the community.
Article XVIII. Health
1. Indigenous
peoples have the collective and individual right to the enjoyment of the
highest attainable standard of physical, mental, and spiritual health.
2. Indigenous
peoples have the right to their own health systems and practices, as well as to
the use and protection of their vital medicinal plants, animals and minerals,
and other natural resources for medicinal use in their ancestral lands and
territories.
3. States
shall take measures to prevent and prohibit indigenous peoples and individuals
from being subjects of research programs, biological or medical
experimentation, or sterilization without their free, prior and informed
consent. Likewise, indigenous peoples and individuals have the right, as
appropriate, to access to their data, medical records, and documentation of
research conducted by individuals and institutions, whether public or private.
4. Indigenous
peoples have the right to use, without discrimination of any kind, all the
health and medical care institutions and services accessible to the general
population. States, in consultation and coordination with indigenous peoples,
shall promote intercultural systems and practices in the medical and health
services provided in indigenous communities, including training of indigenous
technical and professional health care personnel.
5. States
shall ensure the effective exercise of the rights contained in this article.
Article XIX. Right
to protection of a healthy environment
1. Indigenous
peoples have the right to live in harmony with nature and to a healthy, safe,
and sustainable environment, essential conditions for the full enjoyment of the
rights to life and to their spirituality, cosmovision, and collective
well-being.
2. Indigenous peoples have the right to
conserve, restore, and protect the environment and to manage their lands,
territories and resources in a sustainable way.
3. Indigenous
peoples have the right to be protected against the introduction, abandonment,
dispersion, transit, indiscriminate use, or deposit of any harmful substance
that could adversely affect indigenous communities, lands, territories and
resources.
Article XX. Rights
of association, assembly, and freedom of expression and thought
1. Indigenous
peoples have the rights of association, assembly, organization and expression,
and are entitled to exercise them without interference and in accordance, inter alia, with their cosmovision,
values, uses, customs, ancestral traditions, beliefs, spirituality, and other
cultural practices.
2. Indigenous
peoples have the right to assemble on their sacred and ceremonial sites and
areas. For that purpose they shall have free access to, and use of, such sites
and areas.
3. Indigenous peoples, in particular those
who are divided by international borders, have the right to travel and to
maintain and develop contacts, relations, and direct cooperation, including
activities for spiritual, cultural, political, economic, and social purposes,
with their members and other peoples.
4. States, in consultation and cooperation
with indigenous peoples, shall adopt effective measures to ensure the exercise
and enforcement of these rights.
Article XXI. Right
to autonomy or self-government
1. Indigenous
peoples, in exercising their right to self-determination, have the right to
autonomy or self-government in matters relating to their internal and local
affairs, as well as ways and means for financing their autonomous functions.
2. Indigenous
peoples have the right to maintain and develop their own decision-making
institutions. They also have the right to participate in decision-making in
matters which would affect their rights. They may do so directly or through
their representatives, and in accordance with their own norms, procedures, and
traditions. They also have the right to equal opportunities in accessing and
participating fully and effectively as peoples in all national institutions and
forums, including deliberative bodies.
Article XXII. Indigenous law and jurisdiction
1. Indigenous
peoples have the right to promote, develop and maintain their institutional
structures and their distinctive customs, spirituality, traditions, procedures,
practices and, in the cases where they exist, juridical systems or customs, in
accordance with international human rights standards.
2. Indigenous
law and legal systems shall be recognized and respected by national, regional
and international legal systems.
3. Matters concerning
indigenous individuals or their rights or interests in the jurisdiction of each
State shall be conducted in such a way as to afford indigenous individuals the
right to full representation with dignity and equality before the law.
Consequently, they are entitled, without discrimination, to equal protection
and benefit of the law, including the use of linguistic and cultural
interpreters.
4. States
shall take effective measures in conjunction with indigenous peoples to ensure
the implementation of this article.
Article XXIII. Participation of indigenous peoples and contributions
of indigenous legal and organizational systems
1. Indigenous peoples have the right to full and effective
participation in decision-making, through representatives chosen by themselves
in accordance with their own institutions, in matters which affect their
rights, and which are related to the development and execution of laws, public
policies, programs, plans, and actions related to indigenous matters.
2. States
shall consult and cooperate in good faith with the indigenous peoples concerned,
through their own representative institutions, in order to obtain their free,
prior and informed consent before adopting and implementing legislative or
administrative measures that may affect them.[1]/
Article XXIV. Treaties, agreements, and other
constructive arrangements
1. Indigenous
peoples have the right to the recognition, observance, and enforcement of
treaties, agreements and other constructive arrangements concluded with States or
their successors, in accordance with their true spirit and intent in good faith
and to have States honor and respect same. States shall give due consideration
to the understanding of the indigenous peoples as regards to treaties,
agreements and other constructive arrangements.
2. When
disputes in relation to such treaties, agreements and other constructive
arrangements cannot be resolved between the parties, they shall be submitted to
competent bodies, including regional and international bodies, by the states or
indigenous peoples concerned.
3.
Nothing in this Declaration may be interpreted as diminishing or eliminating
the rights of indigenous peoples contained in treaties, agreements and other
constructive arrangements.
Article XXV. Traditional forms of property and
cultural survival. Right to land, territory, and resources
1.
Indigenous peoples have the right to maintain and strengthen their
distinctive spiritual, cultural, and material relationship with their lands,
territories, and resources and to uphold their responsibilities to preserve
them for themselves and for future generations.
2.
Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or otherwise used or
acquired.
3.
Indigenous peoples have the right to own, use, develop and control the
lands, territories and resources that they possess by reason of traditional
ownership or other traditional occupation or use, as well as those which they
have otherwise acquired.
4.
States shall give legal recognition and protection to these lands,
territories and resources. Such recognition shall be conducted with due respect
to the customs, traditions and land tenure systems of the indigenous peoples
concerned.
5.
Indigenous peoples have the right to legal recognition of the various
and particular modalities and forms of property, possession and ownership of
their lands, territories, and resources, in accordance with the legal system of
each State and the relevant international instruments. States shall establish
special regimes appropriate for such recognition and for their effective
demarcation or titling.
Article XXVI. Indigenous peoples in voluntary isolation
or initial contact
1. Indigenous
peoples in voluntary isolation or initial contact have the right to remain in
that condition and to live freely and in accordance with their cultures.
2. States
shall, with the knowledge and participation of indigenous peoples and
organizations, adopt appropriate policies and measures to recognize, respect,
and protect the lands, territories, environment, and cultures of these peoples
as well as their life, and individual and collective integrity.
Article XXVII. Labor
rights
1. Indigenous
peoples and individuals have the rights and guarantees recognized in national
and international labor law. States shall take all special measures necessary to
prevent, punish and remedy any discrimination against indigenous peoples and individuals.
2. States,
in conjunction with indigenous peoples, shall adopt immediate and effective
measures to eliminate exploitative labor practices with regard to indigenous
peoples, in particular, indigenous children, women and elderly persons.
3. Where indigenous peoples are not
effectively protected by the laws applicable to workers in general, States, in
conjunction with indigenous peoples, shall adopt all necessary measures to:
a. protect indigenous workers and
employees in relation to hiring under fair and equal conditions in both formal
and informal employment;
b. establish, apply, or improve labor
inspection and the enforcement of rules with particular attention to, inter alia, regions, companies, and
labor activities in which indigenous workers or employees participate;
c. establish, apply, or enforce laws so
that both female and male indigenous workers:
i. enjoy equal opportunities and
treatment in all terms, conditions, and benefits of employment, including
training and capacity building, under national and international law;
ii.
enjoy the right of association, the right to form trade unions and participate
in trade union activities, and the right to collective bargaining with
employers through representatives of their own choosing or through workers’
organizations, including traditional authorities;
iii.
are not subject to discrimination or harassment on the basis of, inter alia, race, sex, origin, or indigenous
identity;
iv.
are not subject to coercive hiring systems, including debt servitude or
any other form of forced or compulsory labor, regardless of whether the labor
arrangement arises from law, custom, or an individual or collective
arrangement, in which case the labor arrangement shall be deemed absolutely
null and void;
v.
are not forced to work in conditions that endanger their health and
personal safety; and are protected from work that does not conform to occupational
health and safety standards;
vi.
receive full and effective legal protection, without discrimination,
when they provide their services as seasonal, occasional, or migrant workers,
as well as when they are hired by employers, such that they receive the
benefits of national laws and practices, which shall be in accordance with
international human rights laws and standards for this category of workers;
d. ensure that indigenous
workers and their employers are informed of the rights of indigenous workers
under national law and international and indigenous standards, and of the
remedies and actions available to them to protect those rights.
4. States
shall take measures to promote employment of indigenous individuals.
Article XXVIII. Protection of cultural heritage and intellectual
property
1. Indigenous
peoples have the right to full recognition and respect for the ownership, dominion,
possession, control, development, and protection of their tangible and
intangible cultural heritage and intellectual property, including its
collective nature, transmitted over millennia from generation to generation.
2. The
collective intellectual property of indigenous peoples includes, inter alia,
traditional knowledge and traditional cultural expressions, including
traditional knowledge associated with genetic resources, ancestral designs and
procedures, cultural, artistic, spiritual, technological, and scientific
expressions, tangible and intangible cultural heritage, as well as knowledge
and developments of their own related to biodiversity and the utility and
qualities of seeds, medicinal plants, flora, and fauna.
3. States,
with the full and effective participation of indigenous peoples, shall adopt measures
necessary to ensure that national and international agreements and regimes
provide recognition and adequate protection for the cultural heritage of
indigenous peoples and intellectual property associated with that heritage. In
adopting such measures, consultations shall be held to obtain the free, prior
and informed consent of indigenous peoples.
Article XXIX. Right to development
1. Indigenous
peoples have the right to maintain and determine their own priorities with
respect to their political, economic, social, and cultural development in
conformity with their own cosmovision. They also have the right to be
guaranteed the enjoyment of their own means of subsistence and development, and
to engage freely in all their economic activities.
2. This
right includes the development of policies, plans, programs, and strategies in
the exercise of their right to development and to implement them in accordance
with their political and social organization, norms and procedures, own cosmovisions,
and institutions.
3. Indigenous
peoples have the right to be actively involved in developing and determining
development programs that affect them and, to the extent possible, to
administer such programs through their own institutions.
4. States shall consult and cooperate in
good faith with the indigenous peoples concerned through their own
representative institutions in order to obtain their free and informed consent
prior to the approval of any project affecting their lands or territories and
other resources, particularly in connection with the development, utilization
or exploitation of mineral, water, or other resources.[2]/
5. Indigenous
peoples have the right to effective measures to mitigate adverse ecological,
economic, social, cultural, or spiritual impacts of the implementation of
development projects that affect their rights. Indigenous peoples who have been
deprived of their means of subsistence and development have the right to
restitution and, where this is not possible, to fair and equitable compensation.
This includes the right to compensation for any harm caused to them by the
implementation of plans, programs, or projects of the State, international
financial institutions, or private business.
Article XXX. Right to peace, security, and protection
1. Indigenous
peoples have the right to peace and security.
2. Indigenous
peoples have the right to recognition and respect for their institutions for
the maintenance of their organization and control of their communities and
peoples.
3. Indigenous
peoples have the right to protection and security in situations or periods of
internal or international armed conflict, in accordance with international
humanitarian law.
4. States,
in compliance with international agreements to which they are party, in
particular those of international humanitarian law and international human
rights law, including the Geneva
Convention relative to the Protection of Civilian Persons in Time of War
and Protocol II thereof relating to the protection of victims of non-international
armed conflicts, shall, in the event of armed conflicts, take adequate measures
to protect the human rights, institutions, lands, territories, and resources of
indigenous peoples and their communities. Likewise, States:
a.
Shall not recruit indigenous children and adolescents into the armed
forces under any circumstances;
b.
Shall adopt effective reparation measures and provide adequate resources
for said reparation, in conjunction with the indigenous peoples concerned, for
the damages or harm caused by an armed conflict.
c.
Shall take special and effective measures in collaboration with
indigenous peoples to guarantee that indigenous women and children live free
from all forms of violence, especially sexual violence, and shall guarantee the
right of access to justice, protection, and effective reparation for harm caused
to the victims.
5.
Military activities shall not take place in the lands or territories of
indigenous peoples, unless justified by a relevant public interest or otherwise
freely agreed to or requested by the indigenous peoples concerned.[3]/
Article XXXI
1. States shall ensure the full enjoyment
of civil, political, economic, social, and cultural rights by indigenous
peoples; their right to maintain their cultural and spiritual identity, religious
traditions, cosmovision, and values; the protection of their sacred sites and
places of worship, and all the human rights contained in this Declaration.
2. States
shall promote, with the full and effective participation of indigenous peoples,
the adoption of such legislative and other measures as may be necessary to give
effect to the rights recognized in this Declaration.
Article XXXII
All the rights and freedoms
recognized in the present Declaration are guaranteed equally to indigenous
women and men.
Article XXXIII
Indigenous peoples and individuals have the right to
effective and suitable remedies, including prompt judicial remedies, for the
reparation of any violation of their collective and individual rights. States,
with the full and effective participation of indigenous peoples, shall provide
the necessary mechanisms for the exercise of this right.
Article XXXIV
In the event of
conflicts or disputes with indigenous peoples, States shall provide, with the
full and effective participation of those peoples, just, equitable and
effective mechanisms and procedures for their prompt resolution. For that
purpose, due consideration and recognition shall be accorded to the customs,
traditions, norms and legal systems of the indigenous peoples concerned.
Article XXXV
Nothing in this Declaration may be interpreted as limiting,
restricting, or denying human rights in any way, or as authorizing any action
that is not in keeping with international human rights law.
Article XXXVI
In
the exercise of the rights enunciated in the present Declaration, the human
rights and fundamental freedoms of all shall be respected. The exercise of the
rights set forth in this Declaration shall be subject only to such limitations
as are determined by law and in accordance with international human rights
obligations. Any such limitations shall be non-discriminatory and strictly as
required for the purpose of securing due recognition and respect for the rights
and freedoms of others and for meeting the just and most compelling needs of a
democratic society.
The provisions set forth in
this Declaration shall be interpreted in accordance with the principles of
justice, democracy, respect for human rights, equality, non-discrimination,
good governance, and good faith.
Article XXXVII
Indigenous
peoples have the right to have access to financial and technical assistance
from States and through international cooperation, for the enjoyment of the
rights contained in this Declaration.
Article XXXVIII
The Organization of American States, its organs,
agencies, and entities, shall adopt all necessary measures to promote the full observance,
protection, and application of the provisions contained in this Declaration,
and shall endeavor to ensure their efficacy.
Article XXXIX
The
nature and scope of the measures that shall be adopted to implement this
Declaration shall be determined in accordance with the spirit and purpose of
said Declaration.
Nothing
in this Declaration shall be construed as diminishing or extinguishing rights
that indigenous peoples now have or may acquire in the future.
Article XLI
The
rights recognized in this Declaration and the United Nations Declaration on
the Rights of Indigenous Peoples constitute the minimum standards for the
survival, dignity, and well-being of the indigenous peoples of the Americas.
1.
… indigenous communities’ free, prior and
informed consent before adopting and enforcing legislative or administrative
measures that could affect them.
This is because Colombian law defines such communities’ right to prior
consultation in accordance with Convention No. 169 of the International Labour
Organization. Thus, the Colombian Constitutional Court has ruled that the
consultation process must be pursued “with the aim of reaching an agreement or
securing the consent of indigenous communities regarding the proposed
legislative measures.” It must be noted that this does not translate into the
ethnic communities having the power of veto over measures affecting them
directly whereby such measures cannot proceed without their consent; instead,
it means that following a disagreement “formulas for consensus-building or
agreement with the community” must be presented.
Moreover, the Committee of Experts of the ILO has established that prior
consultation does not imply the right to veto State decisions, but is, rather,
a suitable mechanism for indigenous and tribal peoples to enjoy the right of
expression and of influencing the decision-making process.
Accordingly, on the understanding that this Declaration’s approach to
prior consent is different and could amount to a possible veto, in the absence
of an agreement, which could bring processes of general interest to a halt, the
contents of this article are unacceptable to Colombia.
2.
… indigenous communities’ free, prior and
informed consent before approving projects that could affect their lands or
territories and other resources.
This is because, although the Colombian State has included in its legal
order a wide range of rights intended to recognize, guarantee, and uphold the
constitutional rights and principles of pluralism and ethnic and cultural
diversity in the nation within the framework of the Constitution, the recognition
of the collective rights of indigenous peoples is governed by legal and
administrative provisions, in line with the objectives of the State and with
principles such as the social and ecological function of property as well as State
ownership of the subsoil and nonrenewable natural resources.
Accordingly, in those territories indigenous peoples exercise their own
political, social, and judicial organization. By constitutional mandate, their
authorities are recognized as public State authorities with special status and,
as regards judicial matters, recognition is given to the special indigenous
jurisdiction, a significant advance compared to other countries of the region.
In the international context, Colombia has led the way in enforcing the
rules governing prior consultation set out in Convention No. 169 of the
International Labour Organization (ILO), to which our State is a party.
On the understanding that this Declaration’s approach to prior consent
is different and could amount to the possibility of vetoing the exploitation of
natural resources found in indigenous territories, in the absence of an
agreement, which could halt processes of general interest, the contents of this
article are unacceptable to Colombia.
In addition, it is important
to note that the constitutions of many States, including Colombia’s, stipulate
that the subsoil and nonrenewable natural resources are the property of the
State to preserve and ensure their public usefulness for the benefit of the
entire nation. For that reason, the provisions contained in this article are
contrary to the domestic legal order of Colombia, based on the national
interest.
3.
… Constitution of Colombia, the
security forces are obliged to be present in any part of the nation’s territory
to provide and ensure for all inhabitants protection and respect for their lives,
honor, and property, whether individual or collective. The protection of the
rights and integrity of indigenous communities depends largely on the security
of their territories.
Thus, in Colombia the security forces have been given instructions to
observe the obligation of protecting indigenous peoples. Accordingly, the above
provision of the American Declaration on the Rights of Indigenous Peoples would
be in breach of the principle of need and effectiveness of the security forces,
preventing them from fulfilling their institutional mission, which renders it
unacceptable to Colombia.
NOTES OF INTERPRETATION OF THE DELEGATION OF COLOMBIA
INTERPRETATIVE NOTE No. 1
OF
THE STATE OF COLOMBIA WITH RESPECT TO ARTICLE VIII OF THE AMERICAN DECLARATION
ON THE RIGHTS OF INDIGENOUS PEOPLES
As
regards Article VIII, on the right to belong to indigenous peoples, Colombia
expressly declares that the right to belong to one or more indigenous peoples
is to be governed by the autonomy of each indigenous people.
The
foregoing is in accordance with Article 8, paragraph 2 of Convention No. 169 of
the International Labour Organization (ILO): “These peoples shall have the
right to retain their own customs and institutions, where these are not
incompatible with fundamental rights defined by the national legal system and
with internationally recognised human rights. Procedures shall be established,
whenever necessary, to resolve conflicts which may arise in the application of
this principle.”
It
is important to specify that when a person shares different indigenous
origins—in other words, when, for instance, his or her mother belongs to one
ethnic group and his or her father belongs to another—his or her belonging to
one or another of those indigenous peoples may only be defined according to the
traditions involved. In other words, to determine an individual’s belonging to
a given indigenous people, the cultural patterns that determine family ties, authority,
and ethnic attachment must be examined on a case-by-case basis.
A
case of contact between two matrilineal traditions is not the same as a contact
between a matrilineal tradition and a patrilineal one. Similarly, the
jurisdiction within which the individual lives, the obligations arising from
the regime of rights contained in that jurisdiction, and the socio-geographical
context in which he or she specifically carries out his or her everyday
cultural and political activities must be established.
The
paragraph to which this note refers is transcribed below:
ARTICLE
VIII
RIGHT
TO BELONG TO INDIGENOUS PEOPLES
“Indigenous
individuals and communities have the right to belong to one or more indigenous
peoples, in accordance with the identity, traditions, customs, and systems of
belonging of each people. No discrimination of any kind may arise from the
exercise of such a right.”
INTERPRETATIVE
NOTE No. 2
OF
THE STATE OF COLOMBIA WITH RESPECT TO ARTICLE XIII, PARAGRAPH 2; ARTICLE XVI,
PARAGRAPH 3; ARTICLE XX, PARAGRAPH 2; AND ARTICLE XXXI, PARAGRAPH 1, OF THE
AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES
As
regards the idea of sacred sites and objects referred to in Article XIII,
paragraph 2; Article XVI, paragraph 3; Article XX, paragraph 2; and Article
XXXI, paragraph 1, of the American Declaration on the Rights of Indigenous
Peoples, the Colombian State expressly declares that the determination and
regulation of indigenous peoples’ sacred sites and objects is to be governed by
developments attained at the national level. This is because there is no
internationally accepted definition and neither ILO Convention No. 169 nor the
United Nations Declaration on the Rights of Indigenous Peoples makes reference
to or defines those terms.
Colombia
has been making progress with the regulation of the issue, which has involved
and will continue to involve the participation of the indigenous peoples, and
it will continue to advance toward that goal in accordance with Colombian law and,
where appropriate, the applicable international instruments.
The
paragraphs to which this note refers are transcribed below:
ARTICLE
XIII
RIGHT
TO CULTURAL IDENTITY AND INTEGRITY
2. “States
shall provide redress through effective mechanisms, which may include restitution,
developed in conjunction with indigenous peoples, with respect to their
cultural, intellectual, religious, and spiritual property taken without their
free, prior and informed consent or in violation of their laws, traditions and
customs.”
ARTICLE
XVI
INDIGENOUS
SPIRITUALITY
3. “Indigenous
peoples have the right to preserve, protect, and access their sacred sites,
including their burial grounds, to use and control their sacred objects and relics,
and to recover their human remains.”
ARTICLE
XX
RIGHTS
OF ASSOCIATION, ASSEMBLY, AND FREEDOM OF EXPRESSION AND THOUGHT
2. “Indigenous
peoples have the right to assemble on their sacred and ceremonial sites and
areas. For that purpose they shall have free access to, and use of, such sites
and areas.”
ARTICLE XXXI
1. “States
shall ensure the full enjoyment of civil, political, economic, social, and
cultural rights by indigenous peoples; their right to maintain their cultural
and spiritual identity, religious traditions, cosmovision, and values; the protection
of their sacred sites and places of worship, and all the human rights contained
in this Declaration.”
INTERPRETATIVE
NOTE No. 3
OF
THE STATE OF COLOMBIA WITH RESPECT TO ARTICLE XIII, PARAGRAPH 2, OF THE OAS
DECLARATION ON INDIGENOUS PEOPLES:
The
State of Colombia expressly declares that the right of indigenous peoples to
promote and develop all their systems and media of communication is subject to
the requirements and procedures established in the domestic regulations in
force.
The
paragraph to which this note refers is transcribed below:
ARTICLE
XIV
SYSTEMS
OF KNOWLEDGE, LANGUAGE, AND COMMUNICATION
3. “Indigenous
peoples have the right to promote and develop all their systems and media of
communication, including their own radio and television programs, and to have
equal access to all other means of communication and information. States shall
take measures to promote the broadcast of radio and television programs in
indigenous languages, particularly in areas with an indigenous presence. States
shall support and facilitate the creation of indigenous radio and television
stations, as well as other means of information and communication.”
[1]. The State of
Colombia breaks with consensus on Article XXIII, paragraph 2, of the American Declaration on the Rights of Indigenous Peoples,
which deals with consultations for obtaining …
[2]. The State of
Colombia breaks with consensus on Article
XXIX, paragraph 4, of the American Declaration
on the Rights of Indigenous Peoples, which deals with consultations for
obtaining …
[3]. The State of Colombia breaks with consensus
as regards Article XXX, paragraph 5, of the OAS Declaration on Indigenous
Peoples since, according to the mandate contained in the ….
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