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The American Draft Declaration on the Rights of Indigenous Peoples

The American Draft Declaration on the Rights of Indigenous Peoples. By Luis Toro Utillano Department of International Law Secretariat for Legal Affairs Washington D.C. 2014. TOPICS OF DISCUSSION. 1 ) The Organization of American States

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The American Draft Declaration on the Rights of Indigenous Peoples

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  1. The American Draft Declaration on the Rights of Indigenous Peoples By Luis Toro Utillano Department of International Law Secretariat for Legal Affairs Washington D.C. 2014

  2. TOPICS OF DISCUSSION 1) The Organization of American States 2) The status of the negotiation of the American Draft Declaration

  3. THE ORGANIZATION OF AMERICAN STATES 1. Charter of the OAS • International Governmental Organization, created by a treaty. Thus a subject of international law.  Furthermore under article 52 of the UN Charter it is a regional organization. • Organs (art. 53 of the Charter) • General Assembly  (Voting.  One per State); Once a year in a different place.  Supreme organ, decide on the general action and policies, through resolutions addressed to the States member or organs.  • Meetings of Consultations;   • Permanent Counsel; Commissions; Working Groups  • Permanent Commissions (Political and Juridical)   • General Secretariat.  Headquarters. Washington, DC

  4. THE ORGANIZATION OF AMERICAN STATES Membership Art. 4. All American States that ratified the Charter. Today there are 35 Member States. Conditions Be an independent State; sing and ratify the Charter; accept all the obligations including those concerning “collective security”. Decision taken by the General Assembly by 2/3 of votes (art. 6 and 7 of the Charter) Expulsions None, but suspension. Art.9. A member of the OAS “whose democratically constituted government has been overthrown”: the case of Honduras 1. Charter of the OAS

  5. THE ORGANIZATION OF AMERICAN STATES Particular membership Observers (59 independent States) and the European Union Non-state entities: International organizations; Civil Society Organizations Civil society needs to be duly registered. 1. Charter of the OAS

  6. THE ORGANIZATION OF AMERICAN STATES Voting Each country has the right to one vote. Decisions adopted by a majority of two third of Members. Nevertheless, there is a practice to vote every resolution by consensus (a decision without active opposition by any of the Member States). Apparent differences: Demographics; Legal system; State of development (2 out of 35 belongs to the group of the 8 most industrialized countries, whereas on the other hand one of our Member States is in a stage of reconstruction). 1. Charter of the OAS

  7. THE ORGANIZATION OF AMERICAN STATES 1. Charter of the OAS • Some important principles • To ensure pacific settlement of disputes. • To promote and consolidate representative democracy, with due respect for the principle of non intervention (Article 2 (b), 1985; Article 9, 1992). • Respect of international law (art. 3).  • Respect of the territorial integrity, inviolability of the territory and non-intervention (art. 19 of Charter). • Collective security; • Integral development.

  8. THE ORGANIZATION OF AMERICAN STATES 2. Achievements • Among the work done by the OAS, one must recognize the following: • Fight against corruption, money laundering, drug trafficking; • Advances in the field of democracy; • Respect of human rights; • Matters relating to electoral observations ; • Political organization that facilitate mutual understanding among its Member States and the peaceful resolutions of conflicts; • Forum for dialogue.

  9. THE ORGANIZATION OF AMERICAN STATES 3. Challenges • Decisions taken by the Organization must respect the sovereignty of its member States.  Thus difficult equilibrium. • Different interests, legal traditions, growths, demographics, etc. • Voting system in favor of consensus obligates States to work together.

  10. THE RIGHTS OF INDIGENOUS PEOPLES WHY Well being of indigenous peoples is negative: • Development indicators (such as education and health) constantly fall under the rest of the population (World Bank, 2005). • 25% of people living in extreme poverty within the hemisphere are indigenous (BID). • IHCHR: In general terms, indigenous peoples are the poorest and the most excluded among those excluded in our societies.

  11. THE RIGHTS OF INDIGENOUS PEOPLES WHY Well being of indigenous peoples is negative: • Subject of discrimination and exclusion. • Lack of recognition of their fundamental rights. • Lack of recognition of their collective rights. • Assimilation and abandonment of their culture.

  12. THE RIGHTS OF INDIGENOUS PEOPLES The Record of the Current Status and the UN text WHO A.- The respect of the principle of self-identification B.- Objective elements (Article 1 of the ILO 169 Convention): “peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions”.

  13. THE RIGHTS OF INDIGENOUS PEOPLES WHO • 370 000 000 indigenous peoples in the world • 40 000 000 indigenous peoples in the Americas and the Caribbean (10% of the hemisphere). • 30 000 to 50 000 in the Caribbean. • 400 tribes with their own languages, ways of living, social organization and economic dynamic. • 90% located in five countries, with different percentages in each case: Bolivia: 12% (71% of the population of the country) Guatemala: 15% (66% of the population of the country) Peru : 27 % (47% of the population of the country) Ecuador: 8% (43% of the population of the country) Mexico : 26% (10% of the population of the country) Other: 12 %

  14. THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 1. INTRODUCTION • 1989 The OAS General Assembly requested the Inter-American Commission on Human Rights to prepare a legal instrument pertaining to the rights of indigenous populations, with a view to its adoption in 1992. • 1997 The Inter-American Commission on Human Rights submitted a proposed American declaration on the rights of indigenous peoples, which was received by the Permanent Council on April 10, 1997. • 1999 The General Assembly established a Working Group on the American Draft Declaration under the Committee for Political and Juridical Affairs in charge of its consideration.

  15. THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES • At the UN the process took 22 years • 1982: Working Group on indigenous populations by the Economic and Social Council (ECOSOC) • 1985: Working group start drafting a Declaration on the Rights of indigenous peoples. • 1993: Working Group adopts a final text for the study of the Sub-Commission • 1994: The text is sent to the Commission on Human Rights • 1995: The Human Rights Commission establishes a Working Group on the Draft Declaration for its discussion (quite similar to the working group of the OAS) • 2006: The new Council on Human Rights (former Commission) adopts the Declaration (30 in favor, 2 against and 12 abstentions) • September 12 2007:The General Assembly adopts the final text.

  16. General Assembly THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES Meeting of Consultation Permanent Counsel (Inter-American Counsel for Integral Development) General Committee • Committee on Administrative and Budgetary Affairs; • Committee on Hemispheric Security; and • Committee on Inter-American Summits Management and Civil Society • Committee on Juridical and Political Affairs Working Group to Prepare the American Draft Declaration General Secretariat. Department of International Law Executive Secretariat of the Inter-American Commission on Human Rights

  17. THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 2. The Working Group The Working group has established three instances to provide continuity to the analysis and negotiation of the Draft American Declaration: • Sessions programmed by the Committee on Juridical and Political Affairs. • Specialized Sessions of the Working Group. • Meetings of Negotiation in the quest for points of consensus.

  18. THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 3. The participants • The Working Group of the Committee on Juridical and Political Affairs have allowed the participation of indigenous peoples and a broad number of non governmental organizations: • Indigenous representatives without any affiliation to the Registry or NGOs • Non-governmental organizations • Lawyers, professors, anthropologists, lobbyists, members of think thank, etc.

  19. THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 3. The participants • Evolution of the participation of indigenous peoples • During the Drafting period of the IACHR • At the negotiation of the Draft proposed by the IACHR • At the negotiation of the Consolidated Text of the Presidency . XII Meeting of Negotiations in the Quest for Points of Consensus. December, 2009.

  20. THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 3. The participants • 2002 • The establishment of the “Specific Fund to Support the Elaboration of the American Declaration of Rights for Indigenous People” • participation of 25 indigenous representatives in addition to those who are able to attend the meetings through their own financial resources. . XII Meeting of Negotiations in the Quest for Points of Consensus. December, 2009.

  21. THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 3. The participants The participation of indigenous people in the UN process During the drafting process Active participation of inter-governmental organizations, specialized agencies, credited NGOs and indigenous organizations . The ones with consultative status could participate in debates and present motions (orally and written). Creation of the Voluntary Fund: precursor of the Permanent Forum (Advisory body to the UN: provides recommendations, creates conscience and promotes integration, and disseminates information) At the negotiation process (within the Human Rights Commission) The level of participation was quite similar but it was required an accreditation to the organization without a consultative statute.

  22. THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 4. The texts The legal instrument adopted by the Inter-American Commission on Human Rights was the first of three documents reviewed by the Working Group: • The original text It was the main reference for the meetings held between 1999 and 2002 (6 sections, 28 provisions and a preamble) • The second text It was introduced by the Chairperson in 2003 and it is called “the Consolidated Text of the Presidency” This text contained elements from the original instrument of the IACHR and some comments and proposals introduced by the States and the representatives of the indigenous peoples (35 articles and a preamble)

  23. THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 4. The texts • The resulting text of the “Seven Meetings of Negotiation for the Quest of Consensus” It is also known as “The Record of the Current Status of the Draft American Declaration on the Rights of Indigenous Peoples” (39 provisions plus a preamble).

  24. THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES The Record of the Current Status The draft is composed of 39 provisions, organized in six sections: 1.Indigenous Peoples: Scope of Application; 2.Human Rights and Collective Rights; 3.Cultural identity; 4.Organizational and Political Rights; 5.Social, Economic, and Property Rights; 6.General provisions.

  25. THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES The UN Declaration • The UN Declaration was approved by the UN General Assembly • Document composed of 45 articles • Decision did not reach consensus, out of 192 member States, 156 were present: • 143 voted in favor. • 3 against ( Canada, New Zealand and the United States), Australia changed its position • 10 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Georgia, Kenya, Nigeria, The Russian Federation, Samoa y Ukraine), Colombia changed its position.

  26. THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES The Record of the Current Status Among the provisions that have not achieved any consensus or been approved: • collective rights; • informed and prior consent; • ownership over natural resources; • reparations; • self-determination, etc.

  27. THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES The Record of the Current Status 9 Provisions have reached consensus: • Self identification (I); • Gender equality (VII); • Juridical personality (IX); • Rejection of assimilations (X); • Protection against genocide (Xbis); • Indigenous peoples in voluntary isolation (XXVI); • Recognition of right and freedoms (XXXII); • Two interpretative clauses (XXXIV bis, XXXVIII).

  28. THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES The Record of the Current Status 9 Provisions have been approved: • Multicultural and multilingual character (II); • Full effect and observance of human rights (V); • Right to belong to the indigenous peoples (VIII); • Special guarantees against assimilation (XI) • Systems of knowledge, language and communication (XIII) • Education (XIV) • Effective and appropriate remedies (XXXIII); • Three interpretative clauses (XXXV, XXXVI, XXXIX).

  29. The Record of the Current Status and the UN text • Compared to the Universal Declaration, by achieving consensus at the hemispheric level, the OAS Declaration will have a greater legitimacy. • The UN text must now be considered a mandatory reference and will provide guidelines in regard to its application. • At the UN diplomacy played a large role. • Importance of having a document that is agreed to by the indigenous peoples. • Importance for the hemispheric declaration to avoid repeating the same principles adopted at the UN without any increased value

  30. The Record of the Current Status and the UN text • When addressing common themes, both texts are similar Self identification (art. I and 33 UN); Minimum standard (art. XXXIX and 43 UN); Self-determination (art.IV and 46 UN); Property rights (art.XIV and 25 a 32 UN).

  31. The Record of the Current Status and the UN text • Both texts establish minimum standards Article 43 UN: The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world. Article XXXIX of the OAS Draft: The rights recognized in this Declaration constitute the minimum standards for the survival, dignity, and well-being of the indigenous peoples of the Americas.

  32. The Record of the Current Status and the UN text • The OAS draft format and content contains elements that belong to a treaty- binding instrument The OAS draft has a final section with provisional articles. Several mandatory provisions on States, such as shall guarantee, promote and respect. Several detail oriented provisions. Article XXVII includes all the elements described in article 20 of ILO Convention 169 and add new ones.

  33. The Record of the Current Status and the UN text • Property rights • Both texts include strengthening the indigenous peoples’ spiritual relationship with their lands, territories, and resources. • They also speak in favor of ownership and rights of dominion over lands and territories, and of legal recognition of modalities and forms of property, possession, and ownership of their lands and territories. • The OAS text speaks on the attribution of ownership within the community and the modification of titles. • Both texts require the participation of the peoples concerned in order for the State to carry out certain projects. • Both provide for equitable compensation (fair and equitable compensation in the UN text)

  34. The Record of the Current Status and the UN text • Self determination • In the OAS Draft Declaration, the right of self-determination involves the ability to define “their forms of organization,” while the UN Declaration expressly refers to political status. • In both cases, the right of self-determination will also serve to promote the economic, social, and cultural development of indigenous peoples. • It is important to note that these provisions must be analyzed in light of Articles IV and XXXVII of the OAS text and Article 46 of the UN text, which add additional parameters, such as • respect for territorial integrity, • sovereignty, • independence or political unity of sovereign and independent States, • Charter of the OAS, Charter of the UN, and • respect for domestic constitutional systems.

  35. The Record of the Current Status and the UN text • The OAS draft is innovative with regard to two elements: • 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. The States shall adopt adequate policies and measures with the knowledge and participation of indigenous peoples and organizations to recognize, respect, and protect the lands, territories, environment, and cultures of these peoples as well as their life, and individual and collective integrity. Jurisprudence at the IACHR. Yanomami no.7615 • Article IX. Juridical personality

  36. THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 5. Challenges • Achieving consensus • the Working Group acts as a facilitator; the General Assembly is the entity that decides • Political will • Differing views among indigenous representatives • Changes in governments • The UN Declaration • Bringing back to the negotiation table two isolated Member States

  37. 5. Challenges • During the XI Meeting there was no consensus because two Members departed from the negotiation table. Thus the six provisions approved by the rest of the countries lack the necessary consensus. Canada. “We will no longer actively negotiate or introduce text. We will, however, continue to be present and will occasionally speak about Canadian experience and perspectives.” USA “reserving its position on the final text under discussion and does not join in any text that might be approved or otherwise appear in the Chair’s rolling text for the 11th meeting of the Working Group.”

  38. THE NEGOTIATION OF THE DRAFT AMERICAN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 6. Achievements • The mandates of the General Assembly • Resolutions since 1999 • Participation of indigenous peoples • Meetings and negotiations • The Plan of action of Heads of State and Governments of the Hemisphere • The decisions of the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights

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