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Draft American Declaration on the Rights of Indigenous Peoples moves forward

WASHINGTON – An international human rights declaration geared specifically toward meeting the legal needs of the indigenous peoples of the Americas took a step forward last month when the Organization of American States’ working group in charge of preparing the Draft American Declaration on the Rights of Indigenous Peoples held a special session in Washington.

Around 50 indigenous representatives from the Americas attended the special session Dec. 9-12 at OAS headquarters in the Simón Bolívar Room. The OAS is an international body comparable to the United Nations that consists of 35 nations in the Americas. It is the region’s principal multilateral forum for strengthening democracy, promoting human rights, and dealing with shared problems such as poverty, terrorism, illegal drugs and corruption, and carries out mandates established by the hemisphere’s leaders. Visit the group’s Web site at www.oas.org.

The working group is involved in final revisions of the text, working out issues related to the process of negotiation, and pinpointing the particular issues unique to the hemisphere’s indigenous peoples that should be reflected in the declaration.

December’s special session was not a negotiating session, but nevertheless presented challenges, said Leonardo Crippa, a Kolla member from Argentina, and staff attorney at the Indian Law Resource Center, which has been participating in the process of developing the American Declaration since its beginning in 1989. The center’s Web site can be viewed at www.indianlaw.org.

“In negotiating sessions we usually negotiate the language that will be in the text of the American Declaration, but this time even though there were no negotiations there were some challenges, for instance, the identification of the particularities of the region that this American Declaration should reflect. That was challenging because we needed to reach some sort of agreement between the indigenous representatives and the state representatives,” Crippa said.

There is consensus among the indigenous representatives, but one of the major challenges has been to get the U.S. government under the Bush administration to ratify any human rights treaty. The U.S., Canada, New Zealand, and Australia were the only four nations that voted against adoption of the U.N. Declaration on the Rights of Indigenous Peoples by the U.N. General Assembly on Sept. 13, 2007.

The U.S. government has submitted statements to the working group outlining its general reservations about the outcome of each negotiation session. It also submitted 10 principles of the rights of indigenous peoples that it believes were already achieved in the negotiation process.

“And by doing this the U.S. basically said, ‘Well, since we are submitting our general reservations on this with the 10 principles, we’re not going to be involved actively in the discussions,’ and that’s what they’ve been doing for almost one year.”

Canada and Columbia fall in line with whatever the U.S. wants.

The U.S. still sends representatives to the sessions, but they are observers only and not actively involved. There is hope that will change with the Obama administration, he said.

The American Declaration will complement the U.N. Declaration on the Rights of Indigenous Peoples. Whereas the U.N. Declaration makes a universal and broad statement of rights, the American Declaration will address the particular needs of the indigenous peoples of the Americas.

Crippa said the special session in December was successful in defining the articles of the Draft American Declaration that are close to agreement and will become part of the negotiation sessions this year, and in identifying the regional particularities that should be reflected in the Draft American Declaration.

In Columbia, for example, there is an internal armed conflict that is imposing human rights violations on indigenous peoples there, Crippa said. Another regional particularity is the regularity with which states fail to comply with treaties they’ve signed with indigenous peoples. And there is the case of indigenous peoples in voluntary isolation in the Amazon and regional countries like Peru, Columbia and Ecuador.

The sensitive areas basically relate to property rights, land uses, natural resources, self government and self determination.

Indigenous peoples are threatened by destructive industrial projects on or near their territories – mining, oil drilling, construction and logging. This is an issue faced both by American Indian tribes and indigenous peoples in developing countries.

“And a big particularity is the existence of indigenous peoples with their own judicial system, with their own government, with their own legislative organizations which is something that is occurring here in the U.S.,” Crippa said.

These issues often end up in U.S. courts with rulings against the tribes. The American Declaration on the Rights of Indigenous Peoples will provide the standards for the administration of justice and the OAS to provide the international venue to adjudicate these cases.

The Inter-American Commission on Human Rights is an autonomous organ of the OAS and is one of two bodies in the inter-American system for the promotion and protection of human rights. The commission has its headquarters in Washington, D.C. The other human rights body is the Inter-American Court of Human Rights, which is located in San José, Costa Rica.

“Both the Inter American Commission and the court will interpret the American Declaration because they will have jurisdiction to do that legal work whenever they have a case concerning human rights violations of indigenous peoples,” Crippa said.

That means the American Declaration will, in fact, be more effective on the ground than the U.N. Declaration because it will be implemented through an already existing court system. At the U.N. level, there is no international human rights court.

“It’s a big difference,” he said.

He said the Inter-American Court and domestic courts in Mexico and central and South America have already used the standards of the Draft American Declaration in deciding indigenous cases, so a body of case law is being built that will set precedent for future legal actions.

Just as most international human rights laws started out as declarations, the Draft American Declaration on the Rights of Indigenous Peoples is the first step toward becoming an international convention or treaty.

The working group will hold meetings in Washington Jan. 26-30 and March 23-27. Once the indigenous and state representatives agree on the language of the declaration, the working group will submit the text to the OAS General Assembly for adoption by a vote of all the American member states.

“I think some time in 2010 it will be adopted.”

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