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Recognizing Indigenous Peoples' Rights in the Americas

by Robert Guitteau & Nadia Ezzelarab

The Inter-American Commission on Human Rights (IACHR) is currently in the process of developing the text of a new draft declaration on the rights of indigenous populations in the Americas. The draft is being prepared at the request of the General Assembly of the Organization of American States (OAS), and is part of an on-going trend in the development of international human rights to address the inadequacies of existing human rights mechanisms vis a vis the complex survival needs of indigenous peoples.

International instruments, such as the Charter of the United Nations and the two international covenants addressing civil and political rights and economic, social and cultural rights, provide all peoples with the right of self-determination. These documents, however, do not address indigenous populations directly. Nonetheless, they lay the groundwork for the more recent development of legal protections for indigenous peoples. As noted by University of Iowa College of Law Professor, Jim Anaya, there is a "trend among states toward the express recognition that the principle of, or the right of, self-determination implies obligations on the part of states for indigenous peoples." Recently, the International Labor Organization adopted the Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO 169), and the UN is currently developing a draft declaration on the rights of indigenous populations.

In formulating the draft instrument, the IACHR has made an effort not to contradict ILO 169 (five of the six countries that ratified ILO 169 are members of the OAS - Bolivia, Colombia, Costa Rica, Mexico, and Paraguay) and the UN's draft declaration. According to Dr. Osvaldo Kreimer, an attorney with IACHR, any overlap with these instruments reflects the IACHR's desire to reinforce the principles contained in the other two instruments, while at the same time address conditions specific to the Americas.

In addressing the legal effect of a declaration, Professor Anaya suggests that, "a declaration would be beneficial to the rights of indigenous peoples in that the Inter-American Commission and the Court and the OAS Member States would likely be held, as a practical matter, to the standards in the declaration." While the declaration will not have the same legal effect as a treaty, its applicability, according to Dr. Kreimer, will compare to that of a UN General Assembly Resolution. That is, the declaration would be used by adjudicative and administrative bodies for its interpretive value of indigenous peoples' rights and would reflect the collective "state of mind" of the Member-States of the OAS.

As the IACHR's proposed declaration is still in draft form, it does not constitute a final agreement of OAS Member-States. The IACHR is interested in receiving viewpoints and suggestions regarding the further development of the document. Comments can be addressed to: IACHR General Secretariat, Organization of American States, 1889 F Street, N.W., Washington, D.C. 20006, U.S.A.


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