By Efrén Diego Domingo
It is a reality that indigenous peoples and communities continue to be victims of violations of our collective rights by the governments of the States. In this work I will define what collective rights are, why there are rights for indigenous peoples, who we indigenous people are, rights in Convention 169, rights in the United Nations Declaration on the Rights of Indigenous Peoples and some mechanisms to enforce them .
It is a reality that indigenous peoples and communities continue to be victims of violations of our collective rights by the governments of the States. This as a result of a serious problem: the indigenous people themselves are unaware of the national and international instruments that recognize and protect our rights, as well as the mechanisms, also national and international, to enforce them against the States.
There is no hope that governments will one day have the political will to promote, disseminate and guarantee our indigenous collective rights. On the contrary, more and more, they are ignoring them or trying to weaken them. For this reason, indigenous peoples and communities have the obligation to know, study, appropriate, promote and enforce our rights against any authority of the State (Executive, Legislative and Judicial Organism). To defend and enforce them, we first have to know them, because we cannot defend something that we do not know.
It is, then, the idea with this little work: to contribute to the dissemination and knowledge of our indigenous rights so that we can meet indigenous men and women from all over the world. Only in this way can we speak of the validity of the rights of indigenous peoples and communities.
In this work I will define what collective rights are, why there are rights for indigenous peoples, who we indigenous people are, rights in Convention 169, rights in the United Nations Declaration on the Rights of Indigenous Peoples and some mechanisms to enforce them .
What are the collective rights of indigenous peoples and communities?
Indigenous rights are those collective rights (1) that exist in recognition of the specific condition of autochthonous peoples. They include not only the most basic human rights to life and integrity, but also rights over their territory, language, culture, religion and other elements that are part of their identity as a people. The rights of indigenous peoples are those that belong to the original inhabitants of a territory that has been invaded and colonized by outsiders. (2)
Why are there collective rights for us indigenous peoples and communities?
Because the indigenous peoples of Guatemala and the world have been looted, mistreated and abandoned for 500 years by governments and cultures other than our peoples. For this reason, indigenous peoples live in extreme poverty and we have not been able to improve our cultures and living conditions.
Indigenous peoples need collective rights to respect our languages, customs and ways of organizing ourselves socially. We need collective rights to defend our territories and authorities, and to get out of poverty. Also, because we have always fought to respect our human rights, autonomy, territory, dignity and indigenous culture. (3)
Who are the indigenous peoples and communities?
We are the original peoples of these lands, heirs of a great culture that existed long before the Spanish invasion (officially called conquest) (4) and before the founding of the States. We are communities that share a common culture (lands, territory, natural resources, language, dress, traditions, customs, authorities, festivals and thoughts).
We are also the unit of indigenous families who live in towns, who share lands and organize ourselves to work together, we have community assemblies, authorities, norms and customs of our own.
Where are our collective rights written as indigenous peoples and communities?
Speaking of specific rights of indigenous peoples, we find them in ILO Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries, adopted by the General Conference of the International Labor Organization on June 7, 1989, and the Declaration of the United Nations on the Rights of Indigenous Peoples, approved by the United Nations General Assembly on September 13, 2007.
What are our rights established in ILO Convention 169?
- Right not to be discriminated against.
- Right to have their integrity, their cultures and institutions respected.
- Rights to be consulted every time the government makes a decision likely to affect the rights and interests of indigenous peoples.
- Right to decide their own ways of development.
- Right to participation at all levels.
- Right to respect community rules.
- Right to official justice in one's own language.
- Right to historical possession and community ownership of the land.
- Right to use, manage and conserve natural resources and sacred places.
- Right not to be transferred or relocated from the lands they occupy.
- Right to education and health.
- Right to decent and fairly paid work.
- Right to contact other indigenous peoples.
What are our rights established in the United Nations Declaration on the Rights of Indigenous Peoples?
- Right not to be the object of any discrimination.
- Right to self-determination.
- Right to autonomy or self-government.
- Right to preserve and strengthen their political, legal, economic, social and cultural institutions.
- Right to a nationality.
- Right to life, physical and mental integrity, liberty and security.
- Collective right to live in freedom, peace and security.
- Right not to suffer forced assimilation or destruction of their culture.
- Right to belong to an indigenous community or nation.
- Right not to be forcibly displaced from their lands or territories.
- Right to practice and revitalize their traditions and customs.
- Right to manifest, practice, develop and teach their spiritual and religious traditions, customs and beliefs.
- Right to maintain and protect their religious and cultural places.
- Right to use and monitor your objects of worship.
- Right to revitalize, use, promote and transmit their histories, languages, oral traditions, philosophies, writing systems and literatures.
- The right to establish and control their educational systems and institutions that provide education in their own languages.
- Right to all levels and forms of education.
- Right to have the dignity and diversity of their cultures, traditions, histories, and aspirations reflected in public education and the public information media.
- Right to establish their own information media in their own languages.
- Right to access all other non-indigenous media without discrimination.
- Right to enjoy all labor rights.
- Right not to be subjected to discriminatory working conditions.
- Right to participate in decision-making in matters that affect your rights.
- Right to be consulted.
- Right to maintain and develop their political, economic and social systems or institutions.
- Right to be assured the enjoyment of their own means of subsistence and development.
- Right to freely dedicate themselves to all their traditional and other economic activities.
- Right to fair and equitable reparation.
- Right to the improvement of their economic and social conditions in education, employment, training and professional preparation, housing, sanitation, health and social security.
- Right to determine and develop priorities and strategies for their right to development. Right to actively participate in the development and determination of health, housing and other programs.
- Right to your own traditional medicines.
- Right to maintain your health practices.
- Right of access to all health and social services.
- Right to equal enjoyment of the highest possible level of physical and mental health.
- The right to maintain and strengthen their own spiritual relationship with their lands, territories, waters, coastal seas and other resources that they have owned or occupied and used.
- Right to the lands, territories and resources that they have traditionally owned, occupied or otherwise used or acquired.
- Right to own, use, develop and control their lands, territories and resources that they possess by reason of traditional ownership.
- Right to just, impartial and equitable reparation or compensation for the lands, territories and resources that they have traditionally owned or occupied or used that have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
- Right to the conservation and protection of the environment and the productive capacity of their lands or territories and natural resources.
- Right to maintain, control, protect and develop their cultural heritage, their knowledge.
- Right not to carry out military activities on the lands or territories of indigenous peoples.
- Right to maintain, control, protect and develop their cultural heritage, their traditional knowledge, their traditional cultural expressions and the manifestations of their sciences, technologies and cultures.
- Right to maintain, control, protect and develop their intellectual property, their traditional knowledge and their traditional cultural expressions.
- Right to determine and elaborate priorities and strategies for the development or use of their lands or territories and other resources.
- Right to determine their own identity or membership in accordance with their customs and traditions.
- Right to obtain citizenship of the States in which they live.
- Right to determine the structures and to choose the composition of its institutions according to its own procedures.
- Right to promote, develop and maintain their institutional structures and their own customs, spirituality, traditions, procedures, practices, customs or legal systems.
- Right to determine the responsibilities of individuals to their communities.
- Right to maintain and develop contacts, relationships and cooperation, including activities of a spiritual, cultural, political, economic and social nature, with its members or other peoples across borders.
- Right to have the treaties, agreements and other constructive arrangements concluded with the States or their successors recognized, observed and applied.
- Right to financial and technical assistance from the States.
- Right to equitable and fair procedures for the settlement of disputes with States or other parties
What are the obligations of States related to our rights contemplated in both Convention 169 and the Declaration?
The State has the obligation to respect human rights and guarantee their free and full exercise to any person who is subject to its jurisdiction without any discrimination on the basis of race, color, sex, language, religion, political opinions or of any other nature, national or social origin, economic position, birth or any other social condition.
The obligations of the State and all public officials in matters of human rights are:
to) Recognize: the human rights of all people.
b) Respect: The obligation to respect requires that States Parties refrain from interfering with the enjoyment of rights. For example, the right to education is violated if the State party denies pregnant girls to stay in the school system.
c) To protect: the obligation to protect requires the State to prevent human rights violations by third parties. For example, the failure of the State to guarantee that health systems comply with minimum standards in matters of sexual and reproductive health can be considered a violation of the right to health.
d) To guarantee: The obligation to guarantee refers to the duty of the State to adopt the necessary measures that allow all people the full and effective enjoyment of human rights. The obligation to guarantee also includes: a) the obligation to prevent, b) the obligation to investigate, c) the obligation to punish, and d) the obligation to repair damages caused to the detriment of persons. (5)
and) Perform: The obligation to carry out demands that the State promote the adoption of legislative, administrative, budgetary and judicial measures, among others, that are necessary to achieve the effective realization of rights. (6)
What happens if the State does not comply with its obligations related to our indigenous collective rights?
He commits violations of our human rights and we can sue him in national or international courts. The important thing is to know what are the procedures that we must follow in order to carry it out. Any violation of our collective rights must be denounced so that it does not go unpunished, repaired and compensated.
What is a human rights violation?
It is an action or omission that disrespects the individual and collective human rights of the person, whether committed by officials or agents of the State, entities or persons acting with consent or acquiescence.
What is the difference between a human rights violation and a crime?
A crime is committed by an individual person or group of people, while a violation of human rights implies a state responsibility, by action or omission. (7)
Who or who are responsible within the State for protecting our collective rights?
Although the State is responsible for the enforcement of human rights, its judicial protection corresponds to the authorities of the administration of justice. Within the structure of the State, the Judicial Organism (judges, magistrates) is in charge of administering justice, a power that is delegated by the people and regulated by the Constitution and the other laws of each of our countries.
What instruments and mechanisms exist specifically for indigenous collective rights?
At the national level:
In each of our countries, for example in the case of Guatemala, the constitutional amparo action is one of the main instruments we have for the defense and protection of our rights. The Political Constitution of the Republic establishes: Origin of the protection. Amparo is instituted in order to protect people against threats of violations of their rights or to restore their rule when the violation has occurred. There is no area that is not susceptible of protection, and it will proceed whenever the acts, resolutions, provisions or laws of authority imply a threat, restriction or violation of the rights that the Constitution and the laws guarantee (Article 265).
In each of our countries we also have Human Rights Ombudsmen or Ombudsmen, with different names. Making use of the attributions that each one of the Constitutions grants them within the framework of the internal jurisdictions, the Defenders should direct their actions in the specific sense already noted. In such a way that they investigate, inspect, verify, request files, reports, documents, antecedents, determine the production of any element that they consider useful for the purposes of the investigations, propose constitutional actions and make use of the procedural legitimacy available to them, recommend the signing of treaties and agreements, design programs and mechanisms for coordination with governmental and non-governmental organizations, in the specific field of the rights of indigenous peoples. They must disseminate both national and international regulations and jurisprudence on the matter, as well as the mechanisms that indigenous peoples have for the protection of their rights in the event that they are in danger or the violation has already been consummated. (8)
There may also be, as in the case of Guatemala, the Human Rights Commission and the Indigenous Communities Commission of Congress or the Office of the Ombudsman for Indigenous Peoples of the Human Rights Ombudsman.
What we must do is know the functions of each of these entities to make use of them in the promotion, protection and defense of our rights. Many times we do not know what they do but they are there. You have to use them, but knowing what work they are assigned according to the law.
On an international level:
If in each of our countries we do not find justice for the protection and guarantee of our rights, we can go before international human rights bodies. In the case of the American continent, we have the Inter-American Human Rights System.
And what is the Inter-American Human Rights System?
It is a regional system for the promotion and protection of human rights and is made up of two bodies: the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (I / A Court HR), which monitor compliance by member states of the Organization of American States (OAS) with the obligations contracted.
What is the Inter-American Commission on Human Rights and what is its function?
The Commission is a principal and autonomous organ of the OAS created in 1959. It is located at its headquarters in the United States. Its main function is to promote the observance and defense of human rights in America. It exercises this function through visits to countries, thematic activities or initiatives, the preparation of reports on the situation of human rights in a country or on a particular subject, the adoption of precautionary measures or request for provisional measures to the Inter-American Court, and the processing and analysis of individual petitions in order to establish the international responsibility of the States for human rights violations and issue the recommendations it deems necessary.
The individual petitions examined by the Commission may be submitted by individuals, groups of individuals, or organizations that allege violations of the human rights guaranteed in the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, and other inter-American treaties on human rights (9), although they do not mention the collective rights of Indigenous Peoples, as long as these peoples and their organizations achieve formal recognition of their Peoples rights in the Internal Normative Systems of their countries, they can use the protection in many situations. that these international instruments of human rights guarantee for individuals. Among these other treaties that can be invoked by indigenous persons in specific cases, we can mention the Additional Protocol to the American Convention on Human Rights in matters of economic, social and cultural rights, "Protocol of San Salvador"; Protocol to the American Convention on Human Rights regarding the abolition of the death penalty; Inter-American Convention on Forced Disappearance of Persons; Inter-American Convention to Prevent, Punish, and Eradicate Violence against Women "Convention of Belém Do Pará" and the Inter-American Convention to Prevent and Punish Torture. (10)
What is the Inter-American Court of Human Rights?
The Inter-American Court, installed in 1979, is an autonomous judicial body of the OAS, whose mandate arises from the American Convention on Human Rights. It is based in San José, Costa Rica. Its objective is to interpret and apply the American Convention and other inter-American human rights treaties, in particular, through the issuance of judgments on cases and advisory opinions. Only the States Parties to the Convention and the Inter-American Commission can submit a case to the Inter-American Court. Individuals cannot go directly to the Inter-American Court and must first present their petition to the Commission and complete the steps provided before it. (11)
To date, the Inter-American Court, through the analysis of five contentious cases related to the issue of the rights of indigenous and tribal peoples over their lands, has established a solid international legal framework to resolve conflicts that arise between the States and indigenous or tribal communities for the concessions granted by the governments for the extraction, exploitation and development of natural resources in their territories. The cases are the following: Case of the Saramaka People v. Suriname, Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Case of the Moiwana Community v. Suriname, Case of the Yakie Axa Indigenous Community v. Paraguay and Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. (12)
And at the United Nations level, what mechanisms exist for us indigenous people?
Well, we have the United Nations Special Rapporteur on the Rights of Indigenous Peoples.
What is the mandate of the Special Rapporteur?
The mandate of the Special Rapporteur on the Rights of Indigenous Peoples was established by the United Nations Human Rights Council in resolution 6/12 of 09/28/2007, of its sixth session.
Resolution 6/12 of the Human Rights Council requests the Special Rapporteur to:
a) Examine the ways to overcome existing obstacles to the full and effective protection of human rights and fundamental freedoms of indigenous people, in accordance with its mandate, and to identify, exchange and promote best practices;
b) Gather, request, receive and exchange information and communications from all relevant sources, including governments, indigenous peoples and their communities and organizations, on the reported violations of their human rights and fundamental freedoms;
c) Make recommendations and proposals on the appropriate measures and activities to prevent and repair violations of human rights and fundamental freedoms of indigenous people;
d) Work in close cooperation, seeking to avoid unnecessary duplication, with other special procedures and subsidiary bodies of the Human Rights Council, relevant United Nations bodies, treaty bodies and regional human rights organizations;
e) Work in close cooperation with the Permanent Forum on Indigenous Issues and participate in its annual session;
f) Establish a systematic cooperative dialogue with all relevant actors, including governments, competent organs, specialized agencies and programs of the United Nations, as well as with indigenous peoples, non-governmental organizations and other international subregional institutions, in particular on the possibilities of providing technical cooperation requested by governments;
g) Promote the United Nations Declaration on the Rights of Indigenous Peoples and international instruments related to the promotion of the rights of indigenous peoples, when appropriate;
h) Pay special attention to the human rights and fundamental freedoms of indigenous women and children, and take into account the gender perspective in the performance of their mandate;
i) Consider relevant recommendations from world conferences, summits and other meetings of the United Nations, as well as recommendations, observations and conclusions of the treaty bodies on matters pertaining to its mandate;
j) Submit a report on the implementation of its mandate to the Human Rights Council in accordance with the Council's annual work program.
How can we present information to the Special Rapporteur on the situation of our indigenous collective rights?
Any organization, community or indigenous person can present information to the Special Rapporteur, without the intermediation of NGOs or lawyers.
Here are some practical tips. It is very important that the information is as accurate, current and specific as possible.
The information must include a detailed description of the circumstances of the alleged violation. It should be brief and precise (1-2 pages may be sufficient) and may be accompanied by attachments that provide written or graphic evidence about the case.
The quality and level of information provided are crucial to ensure that the Special Rapporteur responds quickly to the case, as incomplete information will require further investigations that may delay his consideration of the case.
Any additional information that is known of the case should be sent to the Rapporteur in new messages, since this is essential for his intervention or in the follow-up of the communications sent to the Governments.
What is the required information?
When and where: precise date, time and place where the incident took place (country, region, municipality and area).
Victim (s): Name and complete details of the individuals, towns or communities that have been or may be affected or are at risk of suffering the alleged events.
What happened: The circumstances of the alleged violation must be detailed. If the initial event led to others, please describe them chronologically. In the case of general measures such as national legislation or policies, indicate the stage of development you are in and how indigenous peoples may be affected.
Responsible: Information must be submitted on who is believed to have committed the violation. It should be explained if the reasons for these suspicions are known and if they are related to national authorities.
Actions taken by national authorities: Has the case been reported to the national judicial or administrative authorities? What actions have the responsible authorities taken to remedy the situation?
Actions in the international arena: Has any legal action been initiated in any international or regional human rights body? What is the state in which it is?
Source: Name and full address of the organization or individuals submitting the information. These details are essential in the event that the Special Rapporteur needs clarification or additional information on the case. This information is always kept confidential.
What happens after the information is received by the Special Rapporteur?
After receiving the information, the RE determines its validity and decides if it is appropriate to send a communication to the government concerned:
It will be an urgent appeal (in imminent cases of violation of human rights of individuals or communities) or a letter of allegation (if the violations have already taken place or are not urgent).
Upon receipt of the letter, governments can take steps to investigate, prevent or end the violation, but this does not always happen. The RE follows up on the case and can repeatedly communicate with the government. Sometimes governments do not respond to ER communications. Pressure from civil society / indigenous organizations is essential.
RE communications are confidential. A summary of the communications is made public as Annex 1 of its annual report to the Human Rights Council. (13)
What is the address of the Special Rapporteur so that we can contact him?
United Nations Special Rapporteur on the Rights of Indigenous Peoples c / o OHCHR-UNOG. Office of the High Commissioner for Human Rights. Palais Wilson, 1211 Geneva 10, Switzerland. Fax: +41 - 22 917 90 06, email: [email protected] (14)
The Special Rapporteur's mandates mention the Permanent Forum on Indigenous Issues. What is the Permanent Forum? It is a subsidiary body of the Economic and Social Council of the United Nations. Its mandate is to discuss all indigenous issues related to economic and social development, culture, environment, education, health and human rights. The Permanent Forum is made up of 16 independent experts, of which eight are appointed by the governments and the other eight are indigenous experts appointed by indigenous organizations and elected by the president of the Economic and Social Council. The Forum meets every year for two weeks in New York.
About a thousand people participate in these sessions, including delegates from governments, United Nations agencies, representatives of indigenous organizations, NGOs, and academic institutions. The creation of the Forum is a historic milestone in the struggle of indigenous peoples to obtain an institutional platform within the United Nations System. (15)
What other strategies can we implement to promote, protect and defend our collective rights?
It is an imperative for the men and women, members of the indigenous peoples of the continent, to establish a policy and a strategy for the defense of their rights and that these are specified in a minimum agenda. Gabriela Olguín Martínez suggests some ideas such as the ones listed below:
- Constitución de un equipo básico dedicado a los derechos indígenas.
- Formación en derechos humanos y derechos de los pueblos indígenas.
- Alianzas sociales
- Asesore y consultores cercanos a la organización que pudiera apoyarlos en algunas tareas técnicas
- Campañas de sensibilización alusivas a los derechos humanos y en especial a los derechos de los pueblos indígenas.
- Creación de un fondo de reserva.
- Acciones en el ámbito internacional de la OIT.
- Establecimiento de un observatorio de derechos indígenas.
- Vigilancia social
- Fortalecer un frente interno.
- Procedimientos administrativos y judiciales.
- Hacer de los mecanismos de protección en el Sistema Interamericano.
- Solidaridad internacional y nacional.
- La gestión político administrativos.(16)
A esta listada, agrego también la lucha legal, política y técnica de nosotros los indígenas. Estos tres elementos son importantes, estos son interdependientes, es decir, una tiene que ver con la otra. Porque de nada va a servir si sólo accionamos legalmente, o accionamos política o técnicamente. Los tres son importantes para lograr lo que realmente queremos.
Efrén Diego Domingo
(1) El término derechos colectivos se refiere al derecho de los pueblos a ser protegidos de los ataques a sus intereses e identidad como grupo. El más importante de estos derechos es el derecho de autodeterminación. http://es.wikipedia.org/….
(2) Derechos Indígenas: http://es.wikipedia.org/….
(3) Olivia Arce Bautista y Roberto Gamboa Vázquez. Área Educativa. Centro de Derechos Humanos de la Montaña Tlachinollan, A.C.: ¿Por qué hay derechos colectivos para los pueblos Indígenas? Pág. 3 y 4.
(4) Efrén Diego Domingo. Derechos de los Pueblos Indígenas en el Convenio 169 y la Declaración de las Naciones Unidas sobre los Derechos de los Pueblos Indígenas. Pág. 3, año 2011.
(5) Las obligaciones de los Estados en Materia de Derechos Humanos. http://184.108.40.206….
(6) Preguntas Frecuentes sobre Derechos Humanos: http://www.unfpa.org/….
(7) Oficina del Alto Comisionado de las Naciones Unidas para los Derechos Humanos en Guatemala, OACNUDH / Guatemala. Derechos Humanos y el trabajo de los Parlamentarios, pág. 8.
(8) María José Veramendi Villa y Gaia Hernández Palacios. Cuadernos electrónicos – Derechos Humanos y Democracia. Las Defensorías del Pueblo como órganos de Defensa de los Derechos de los Pueblos Indígenas en el contexto del Sistema Interamericano de Protección de los Derechos Humanos: realidades y expectativas. www.portafolio.org/….
(9) OEA. Comisión Interamericana de Derechos Humanos. Folleto Informativo: Sistema de Peticiones y Casos. Sin número de páginas. 2010.
(10) Olguín Martínez, Gabriela. Derechos de los pueblos indígenas en el Sistema Interamericano. Guía legal sobre la utilización del Sistema interamericano para la defensa de los derechos indígenas. San José, Costa Rica, Oficina Internacional del Trabajo, 2002. Serie Guías Legales – Derechos Indígenas, No. 4.
(11) OEA. 2010.
12) Thomas Antkowiak y Alejandra Gonza. El derecho a la consulta en las Américas: marco legal e internacional. Aportes DPLF-Numero 14, año 3, septiembre de 2010, pág. 3.
(15) Mikel Berraondo (Coord.) Instituto de Derechos Humanos, Universidad de Deusto, Bilbao. Lola García Alix y Patricia Borraz: Participación Indígena en los Foros Internacionales: lobby político indígenas. 230, año 2006.
(16) Olguín Martínez, Gabriela. 4. Págs. 66, 67, 68, 69, 70 y 71.