OAS: Regressive elements in the American Declaration
The American Declaration was unanimously approved by the participating States on 15 June 2016, albeit with scant indigenous participation. The regional organization issued a press release stating that the American Declaration on the Rights of Indigenous Peoples had finally been adopted, after 17 years of expectations on the part of Indigenous Peoples.
The culmination of this process has not, however, been the result of wide and participatory discussions between the OAS Member States and Indigenous Peoples. In fact, due to apparent budgetary restrictions, indigenous participation was limited to one representative for each of the four regions that make up the Americas. Moreover, different indigenous organizations have denounced the fact that the negotiation process lacked transparency, stating that the provisions were opened up to discussion at the end of the negotiating process without Indigenous Peoples having been informed in due time.
The hopes of the continent’s Indigenous Peoples have been dashed in terms of obtaining improved recognition of their rights. These hopes were based on the unquestionable progress that had been made within the Inter-American Human Rights System in this regard, a body that has set clear standards which have, however, been omitted from the American Declaration because of pressure exerted by governments aimed at safeguarding States’ interests over and above those of Indigenous Peoples.
The following sets out some of the most problematic issues in the American Declaration:
1. The Declaration does not specify that the countries of the Americas are plurinational and multilingual specifically because of the existence of Indigenous Peoples within the American republics. Euphemistically, Article II recognises and respects the multicultural and multilingual character of Indigenous Peoples, assuming that they generally have just one culture and one language that they wish to conserve and pass on to future generations.
2. Although Article III of the American Declaration recognises that Indigenous Peoples have the right to self-determination in the same terms as the UN Declaration on the Rights of Indigenous Peoples, it is notable that the following article, Article IV, affirms the principle of the State’s territorial integrity and sovereignty. It should be noted that a similar point only comes at the end of the UN Declaration on the Rights of Indigenous Peoples, in the section on general provisions, Article 46.1 to be precise, when pressure exerted by a number of States to ensure a counterbalance to self-determination finally prevailed.
After recognising the indigenous right to self-determination, Article 4 of the Universal Declaration on the Rights of Indigenous Peoples sets outs the implications of this and establishes that it involves autonomy over their internal affairs. Article XXII of the American Declaration recognises the right to autonomy and self-government in similar terms to the UN Declaration. As can be seen, however, the American Declaration regulates this right separately to the right to self-determination, established in Article III above.
5. A precept similar to Article 32.2 of the UN Declaration on the Rights of Indigenous Peoples has been omitted. This notes that:
“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 and territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”
During the negotiation of provisions corresponding to Article XVIII on environmental protection, some States insisted on incorporating the precepts of Article 15 of ILO Convention 169 on Indigenous and Tribal Peoples in Independent Countries. This proposal was thrown out by the Indigenous Conclave, however, and no consensus was reached with the States to introduce the previously mentioned text of the UN Declaration on the Rights of Indigenous Peoples.
6. Article XXIV governs indigenous rights to the lands, territories and natural resources they have traditionally occupied, possessed or acquired. This article is problematic because it refers to the legal system of each State when defining methods of recognition and forms of ownership, possession or dominion. To act as a balance to this, reference is made to the relevant international instruments.
Paragraph 5 states: “Indigenous peoples have the right to legal recognition of the various and particular modalities and forms of property, possession, and ownership of their lands and territories, in accordance with the principles of the legal system of each state. The States shall establish the special regimes appropriate for such recognition, and for their effective demarcation or titling”.
Domestic law is thus referred to when determining the legal method of demarcating, titling or recognising indigenous rights to lands, territories and natural resources and types of ownership although this should, in fact, be defined by the Indigenous Peoples themselves, in exercise of their self-determination and in line with their own institutional mechanisms.
The American Declaration is regressive in relation to the UN Declaration on the Rights of Indigenous Peoples, which contains no reference to States’ legal systems when defining indigenous rights to lands, territories and resources.
Although the logical counterbalance to this precept is a reference to relevant international instruments, the text thus introduces an ambiguity that is very far from ensuring that indigenous rights are guaranteed. In fact, it would seem to place national law on a par with the relevant international instruments (UN Declaration on the Rights of Indigenous Peoples, ILO Convention 169 and other international human rights instruments) when these latter regulate human rights and therefore enjoy higher legal status and must take precedence over national legislation governing the property system.
7. Other objectionable provisions:
- Article VIII refers to the right to belong to one or more Indigenous Peoples. This recognition could be problematic if it is not established that self-identification is the basis of ethnic membership and also of multiple affiliations. Moreover, any resulting conflicts must be resolved by the Indigenous Peoples’ own institutions and not by State-imposed structures, unless these are accepted by the Indigenous Peoples.
- Article XII stipulates that the States shall provide redress for indigenous assets that are usurped, using mechanisms that may include restitution, although this is discretionary rather than compulsory. To mitigate this, the UN Declaration on the Rights of Indigenous Peoples states that Indigenous Peoples should be involved in defining these mechanisms but there is no such qualification in the American Declaration.
- Article XXIX, which governs the right to development, does not include Indigenous Peoples’ right to participate in the benefits of third-party operations on their territories. Paragraph 6 does envisage restitution and compensation as mitigating measures for projects likely to affect indigenous societies’ means of subsistence although, under such circumstances, the projects would not be possible in the first place unless Indigenous Peoples had consented to them.
- Although Article XXX establishes that no military activities shall take place on indigenous territories as a general principle, it allows for such intervention when this is in the public interest.
* Document produced by Nancy Yáñez Fuenzalida (PhD), lawyer, University of Chile; Batchelor’s degree in Legal and Social Sciences from the University of Chile; Master’s in International Human Rights Law, with particular focus on Indigenous Rights, Center for Civil and Human Rights, University of Notre Dame, United States; Doctorate in Law, University of Chile. Legal advisor to the International Work Group for Indigenous Affairs (IWGIA). Co-director of the Citizens’ Observatory (NGO – Chile).
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