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Draft of the Inter-American Declaration on the Rights of Indigenous Peoples
Draft approved by the IACHR at the 1278 session held on September 18, 1995
The present draft has been approved by the Inter-American Commission on
Human Rights of the OAS for consultation about its text with Governments,
indigenous organizations, other interested institutions and experts. On the
basis of their answers and comments, the IACHR will prepare its final
proposal to be presented to the General Assembly of the OAS.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
Draft of the inter-American Declaration on the Rights of Indigenous Peoples.
PREAMBLE
1. Indigenous institutions and the strengthening of nations
The Member States of the Organization of American States (hereafter the
States),
Recalling that the indigenous peoples of the Americas constitute an
organized, distinctive and integral segment of their population and are
entitled to be part of the countries' national identity, and have a special
role to play in strengthening the institutions of the State and in
establishing national unity based on democratic principles; and,
Further recalling that some of the democratic institutions and concepts
embodied in the Constitutions of American States originate from
institutions of the indigenous peoples, and that in many instances their
present participatory systems for decision-making and the internal
authority of the indigenous peoples contribute to improving democracies in
the Americas.
2. Eradication of poverty
Recognizing the severe and widespread poverty afflicting indigenous peoples
in many regions of the Americas, and that their living conditions and
social services are generally deplorable; and concerned that indigenous
peoples have been deprived of their human rights and fundamental freedoms,
resulting inter alia in 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.
Recalling that in the Declaration of Principles issued by the Summit of the
Americas, in December 1994, the Heads of State and Governments declared
that in observance of the International Decade of the World's Indigenous
People, they will focus their energies on improving the exercise of
democratic rights and the access to social services by indigenous peoples
and their communities.
3. Indigenous culture and ecology
Appreciating the respect for the environment accorded by the cultures of
indigenous peoples of the Americas, and considering the special
relationship between the indigenous peoples and the land on which they
live.
4. Harmonious relations, respect and the absence of discrimination.
Mindful of the responsibility of all the States and peoples of the Americas
to participate in the struggle against racism and racial discrimination.
5. Enjoyment of community rights
Recalling the international recognition of rights that can only be enjoyed
when exercised in community with other members of a group
6. Indigenous survival and control of their territories
Considering that in many indigenous cultures, traditional collective
systems for control and use of land and territory, including bodies of
water and coastal areas, are a necessary condition for their survival,
social organization, development and their individual and collective
well-being; and that the form of such control and ownership is varied and
distinctive and does not necessarily coincide with the systems protected by
the domestic laws of the States in which they live.
7. Demilitarization of indigenous areas.
Noting the presence of armed forces in many areas of the lands and
territories of the indigenous peoples, and emphasizing the importance of
withdrawing them from where they are not strictly needed for their specific
functions.
8. Human rights instruments and other advances in international law.
Recognizing the preeminence and applicability of the American Declaration
of the Rights and Duties of Man, the American Convention on Human Rights
and international human rights law, to the States and peoples of the
Americas; and
Mindful of the progress achieved by the States and indigenous organizations
in codifying indigenous rights, especially in the sphere of the United
Nations and the International Labor Organization, and in this regard
recalling the ILO Agreement 169 and the Draft UN Declaration on the
subject.
Affirming the principle of the universality and indivisibility of human
rights, and the application of international human rights to all
individuals.
9. Advances in the provisions of national instruments.
Noting the constitutional and legislative progresses achieved in some
countries of the Americas in guaranteeing the rights and institutions of
indigenous peoples.
Declare:
SECTION ONE. 'INDIGENOUS PEOPLES'
Art. 1. Definition.
1. In this Declaration indigenous peoples are those who embody historical
continuity with societies which existed prior to the conquest and
settlement of their territories by Europeans. (alternative I) [, as well as
peoples brought involuntarily to the New World who freed themselves and
re-established the cultures from which they have been torn]. (alternative 2)
[, as well as tribal peoples whose social, cultural and economic conditions
distinguish them from other sections of the national community and whose
status is regulated wholly or partially by their own customs or traditions
or by special laws or regulations.
2. Self identification as indigenous or tribal shall be regarded as a
fundamental criterion for determining the groups to which the provisions of
this Declaration apply.
3. The use of the term "peoples" in this Instrument shall not be construed
as having any implication with respect to any other rights that might be
attached to that term in international law.
SECTION TWO. 'HUMAN RIGHTS'
Art. II. Full observance of human rights
1. Indigenous peoples have the right to the full and effective enjoyment
of the human rights and fundamental freedoms recognized in the Charter of
the OAS, the American Declaration of the Rights and Duties of Man, the
American Convention on Human Rights, and international human rights law;
and nothing in this Declaration shall be construed as in any way limiting
or denying those rights or authorizing any action not in accordance with
the instruments of international law including human rights law.
2. The States shall ensure for all indigenous peoples the full exercise of
their rights.
3. The States also recognize that the indigenous peoples are entitled to
collective rights ins;insofar as they are indispensable to the enjoyment of
the individual human rights of their members. Accordingly they recognize
the right of the indigenous peoples to collective action, to their
cultures, to profess and practice their spiritual beliefs and to use their
languages.
Art III. Right to belong to an indigenous community or nation.
Indigenous peoples and individuals have the right to belong to an
indigenous community or nation, in accordance with the traditions and
customs of the community or nation concerned. No disadvantage of any kind
may arise from the exercise of such a right.
Art. IV. Legal status of communities.
The States shall ensure that within their legal system personality is
attributed to communities of indigenous peoples.
Art. V. No forced assimilation .
The States shall not take any action which forces indigenous peoples to
assimilate and shall not endorse any theory, or engage in any practice,
that imports discrimination, destruction of a culture or the possibility of
the extermination of any ethnic group.
Art. VI. Special guarantees against discrimination.
1. The States recognize that, where circumstances so warrant, special
guarantees against discrimination may have to be instituted to enable
indigenous peoples to fully enjoy internationally and nationally-recognized
human rights; and that indigenous peoples must participate fully in the
prescription of such guarantees.
2. The States shall also take the measures necessary to enable both
indigenous women and men to exercise, without any discrimination, civil,
political, economic, social and cultural rights. The States recognize that
violence exerted against persons because of their gender prevents and
nullifies the exercise of those rights.
SECTION THREE. CULTURAL DEVELOPMENT
Art. VII. Right to Cultural integrity.
1. States shall respect the cultural integrity of indigenous peoples,
their development in their respective habits and their historical and
archeological heritage, which are important to the identity of the members
of their groups and their ethnic survival.
2. lndigenous peoples are entitled to restitution in respect of property
of which they have been dispossessed, or compensation in accordance with
international law.
3. States shall recognize, and respect, indigenous life-styles, customs,
traditions, forms of social organization, use of dress, languages and
dialects.
Art. VIII. Philosophy, outlook and language.
1. States recognize that indigenous languages, philosophy and outlook are
a component of national and universal culture, and as such shall respect
them and facilitate their dissemination.
2. The States shall take measures to see to it that broadcast radio and
television programs are broadcast in the indigenous languages in the
regions where there is a strong indigenous presence, and to support the
creation of indigenous radio stations and other media.
3. The States shall take effective measures to enable indigenous peoples
to understand administrative, legal and political rules and procedures and
to be understood in relation to these matters. In areas where indigenous
languages are predominant, States shall endeavor to establish the pertinent
languages as official languages and to give them the same status that is
given to non-indigenous official languages.
4. When indigenous peoples wish, educational systems shall be conducted in
the indigenous languages and incorporate indigenous content, and that shall
also provide the necessary training and means for complete mastery of the
official language or languages.
Art. lX. Education
1. Indigenous peoples shall be entitled to a) establish and set in motion
their own educational programs, institutions and facilities; b) to prepare
and implement their own educational plans, programs, curricula and
materials; c) to train, educate and accredit their teachers and
administrators. The States shall endeavor to ensure that such systems
guarantee equal educational and teaching opportunities for the entire
population and complementarity with national educational systems.
2. States shall ensure that those educational systems are equal in all ways
to that provided to the rest of the population.
3. States shall provide financial and any other type of assistance needed
for the implementation of the provisions of this Article.
Art. X. Spiritual and religious freedom.
1. lndigenous peoples have the right to liberty of conscience, freedom of
religion and spiritual practice for indigenous communities and their
members, a right that implies freedom to conserve them, change them,
profess and propagate them, both publicly and privately.
2. States shall take necessary measures to ensure that attempts are not
made to forcibly convert indigenous peoples or to impose on them beliefs
against the will of their communities.
3. In collaboration with the indigenous peoples concerned, the States shall
adopt effective measures to ensure that their sacred sites, including
burial sites, are preserved, respected and protected. When sacred graves
and relics have been appropriated by state institutions, they shall be
returned.
Art. Xl. Family relations and family ties
I . Families are a natural and basic component of societies and must be
respected and protected by the State. Consequently the State shall protect
and respect the various established forms of indigenous organizations
relating to family and filiation.
2. In determining the child's best interest in matters relating to the
protection and adoption of children of members of indigenous peoples, and
in matters of breaking of ties and other similar circumstances,
consideration shall be given by Courts and other relevant institutions to
the views of the those peoples, including individual, family and community
views.
Art. XII. Health and wellbeing
The States shall respect indigenous medicine, pharmacology, health
practices and promotion, including preventive and rehabilitative practices.
2. They shall facilitate the dissemination of those medicines and practices
of benefit to the entire population.
3. Indigenous peoples have the right to the protection of vital medicinal
plants, animal and minerals.
4. lndigenous peoples shall be entitled to use, maintain, develop and
manage their own health services, and they shall also have access, without
any discrimination, to all health institutions and services and medical
care
5. The states shall provide the necessary means to enable the indigenous
peoples to eliminate such health conditions in their communities which fall
below international accepted standards.
Art. XIII. Right to environmental protection
1. lndigenous peoples are entitled to a healthy environment, which is an
essential condition for the enjoyment of the right to life and well-being.
2. Indigenous peoples are entitled to information on the environment,
including information that might ensure their effective participation in
actions and policies that might affect their environment.
3. Indigenous peoples shall have the right to conserve, restore and protect
their environment, and the productive capacity of their lands, territories
and resources.
4. Indigenous peoples shall participate fully in formulating and applying
governmental programs of conservation of their lands and resources.
5. Indigenous peoples shall be entitled to assistance from their states
for purposes of environmental protection, and may request assistance from
international organizations.
SECTION FOUR. 'ORGANlZATIONAL AND POLITICAL RIGHTS'
Art. XIV. Rights of association, assembly freedom of expression and freedom
of thought
1. The States shall promote the necessary measures to guarantee to
indigenous communities and their members their right of association,
assembly and expression in accordance with their uses, customs, ancestral
traditions, beliefs and religions.
2. The States shall respect and enforce the right of assembly of indigenous
peoples and to the use of their sacred and ceremonial areas, as well as the
right to full contact and common activities with sectors and members of
their ethnic groups living in the territory of neighboring states.
Art. XV. Right to self government. management and control of internal affairs.
1. States acknowledge that indigenous peoples have the right to freely
determine their political status and freely pursue their economic, social
and cultural development, and that accordingly they have the right to
autonomy or self-government with regard to their internal and local
affairs, including culture, religion, education, information, media,
health, housing, employment, social welfare, economic activities, land and
resource management, the environment and entry by non-members; and to the
ways and means for financing these autonomous functions.
2. Indigenous populations have the right to participate without
discrimination, if they so decide, in all decision-making, at all levels,
with regard to matters that might affect their rights, lives and destiny.
They may do so through representatives elected by them in accordance with
their own procedures. They shall also have the right to maintain and
develop their own indigenous decision-making institutions, as well as equal
opportunities to access to all national fora.
Art. XVl. Indigenous Law.
1. Indigenous law is an integral part of the States' legal system and of
the framework in which their social and economic development takes place.
2. Indigenous peoples are entitled to maintain and reinforce their
indigenous legal systems and also to apply them to matters within their
communities, including systems pertaining to ownership of real property and
natural resources, resolution of conflicts within and between indigenous
communities, crime prevention and law enforcement, and maintenance of
internal peace and harmony.
3. In the jurisdiction of any State, procedures concerning indigenous
peoples or their interests shall be conducted in such a way as to ensure
the right of indigenous peoples to full representation with dignity and
equality before the law. This shall include observance of indigenous law
and custom and, where necessary, use of the native language.
Art. XVII. National incorporation of indigenous legal and organizational
systems.
1. The States shall promote the inclusion, in their national
organizational structures. of institutions and traditional practices of
indigenous peoples.
2. The institutions of each state in areas that are predominantly
indigenous or that are serving in those communities, shall be designed and
adapted as to reflect and reinforce the identity, culture and organization
of those populations, in order to facilitate their participation.
SECTlON V. SOCIAL, ECONOMIC AND PROPERTY RIGHTS.
Art. XVIII. Traditional forms of ownership and ethnic survival. Rights to
land and territories.
1. Indigenous peoples have the right to the legal recognition of the
various and specific forms of control, ownership and enjoyment of
territories and property by indigenous peoples.
2 Indigenous peoples have the right to the recognition of their property
and ownership rights with respect to lands and territories they have
historically occupied, as well as to the use of those to which they have
historically had access for their traditional activities and livelihood.
3. Where property and user rights of indigenous peoples arise from rights
existing prior to the creation of those States, the States shall recognize
the titles of indigenous peoples relative thereto as permanent, exclusive,
inalienable, imprescriptible and indefeasible. This shall not limit the
right of indigenous peoples to attribute ownership within the community in
accordance with their customs, traditions, uses and traditional practices,
nor shall it affect any collective community rights over them. Such titles
may only be changed by mutual consent between the State and respective
indigenous people when they have full knowledge and appreciation of the
nature or attributes of such property.
4. The rights of indigenous peoples to existing natural resources on their
lands must be especially protected. These rights include the right to the
use, management and conservation of such resources.
5. In the event that ownership of the minerals or resources of the subsoil
pertains to the State o that the State has rights over other resources on
the lands, the governments must establish or maintain procedures for the
participation of the peoples concerned in determining whether the interests
of these people would be adversely affected and to what extent, before
undertaking or authorizing any program for tapping or exploiting existing
resources on their lands. The peoples concerned shall participate in the
benefits of such activities, and shall receive compensation in accordance
with international law, for any damages which they may sustain as a result
of such activities.
6. The States shall not transfer or relocate indigenous peoples except in
exceptional cases, and in those cases with the free, genuine and informed
consent of those populations, with full and prior indemnity and prompt
replacement of lands taken, which must be of similar or better quality and
which must have the same legal status; and with guarantee of the right to
return if the causes that gave rise to the displacement cease to exist.
7. Indigenous peoples have the right to the restitution of the lands,
territories and resources which they have traditionally owned or otherwise
occupied or used, and which have been confiscated occupied, used or
damaged, or the right to compensation in accordance with international law
when restitution is not possible.
8. The States shall take all measures, including the use of law enforcement
personnel, to avert, prevent and punish, if applicable, any intrusion or
use of those lands by unauthorized persons or by persons who take advantage
of indigenous peoples or their lack of understanding of the laws, to take
possession or make use of them. The States shall give maximum priority to
the demarcation of properties and areas of indigenous use.
Art. XIX. Workers rights.
1. Indigenous peoples shall have the right to full enjoyment of the rights
and guarantees recognized under international labor law or domestic labor
law; they shall also be entitled, where circumstances so warrant, to
special measures to correct, redress and prevent the discrimination to
which they have historically been subject.
2. Where circumstances so warrant, the States shall take such special
measures as may be necessary to:
a. protect effectively the workers and employees who are members of
indigenous communities in respect of fair and equal hiring and terms of
employment, insofar as general legislation governing workers overall does
not provide;
b. to improve the work inspection service in regions, companies or paid
activities involving indigenous workers or employees;
c. ensure that indigenous workers:
i. enjoy equal opportunity and treatment as regards all conditions of
employment, job promotion and advancement;
ii. are not subjected to racial, sexual or other forms of harassment;
iii. are not subjected to coercive hiring practices, including servitude
for debts or any other form of servitude, even if they have their origin in
law, custom or a personal or collective arrangement which shall be deemed
absolutely null and void in each instance;
iv. are not subjected to working conditions that endanger their health,
particularly as a result of their exposure to pesticides or other toxic or
radioactive substances;
v. receive special protection when they serve as seasonal, casual or
migrant workers in agriculture or in other activities and also when they
are hired by labor contractors in order that they benefit from national
legislation and practice which must, itself be in accordance with firmly
established international human rights standards in respect of seasonal
workers, and
vi. ensure that indigenous workers or employees are provided with full
information on their rights, consistent with such national legislation and
international standards, and on recourses available to them in order to
protect those rights.
Art. XX. Intellectual property rights.
1. Indigenous peoples shall be entitled to recognition of the full
ownership, control and protection of such intellectual property rights as
they have in their cultural and artistic heritage, as well as special
measures to ensure for them legal status and institutional capacity to
develop, use, share, market and bequeath, that heritage on to future
generations.
2. Where circumstances so warrant, indigenous peoples have the right to
special measures to control, develop and protect, and full compensation for
the use of their sciences and technologies, including their human and
genetic resources in general, seeds, medicine. knowledge of plant and
animal life, original designs and procedures.
Art. XXI. Right to development.
1. The states recognize the right of indigenous peoples to decide
democratically what values, objectives, priorities and strategies will
govern and steer their development course, even if they are different from
those adopted by the national government or by other segments of society.
Indigenous peoples shall be entitled to obtain on a non-discriminatory
basis appropriate means for their own development according to their
preferences and values, and to contribute by their own means, as
distinguishable societies, to national development and international
cooperation.
2. The States shall take necessary measures to ensure that decisions
regarding any plan, program or proposal affecting the lives or living
conditions of indigenous people are not made without the free and informed
consent and participation of those peoples, that their preferences are
recognized and that no such plan, program or proposal that could have
harmful effects on the normal livelihood of those populations is adopted.
Indigenous communities have the right to restitution or compensation in
accordance with international law, for any damage which, despite the
foregoing precautions, the execution of those plans or proposal may have
caused them; and measures taken to mitigate adverse environmental,
economic, social, cultural or spiritual impact.
SECTION SIX. GENERAL PROVISIONS.
ART. XXII. Treaties, agreements and other implied arrangements.
Indigenous peoples have the right to the recognition, observance and
enforcement of treaties, agreements and other arrangements concluded with
States or their successors, according to their spirit and intent, and to
have States honor and respect such treaties, agreements and other
constructive arrangements. Conflicts and disputes which cannot otherwise be
settled should be submitted to competent international bodies (agreed to by
all parties concerned).
Art. XXIII.
Nothing in this instrument shall be construed as diminishing or
extinguishing existing or future rights indigenous peoples may have or
acquire.
Art. XXIV.
Nothing in this instrument shall be construed as granting any rights to
ignore boundaries between States.
September 19, 1995.
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South and Meso American Indian Rights Center (SAIIC)
Box 28703
Oakland, CA 94604
(510) 834-4263 Fax: (510) 834-4264 Email: saiic@igc.apc.org
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