International rights
Indigenous peoples live all over the world, not only in Brazil. Their
rights in recent decades have been the subject of intense discussion in
international forums. The result is an innovative body of norms related
to the interrelationships between the national states and the indigenous
peoples, which has been motivating debate and changes in legislation of
each country.
Ana Valéria Araújo (Program Direito Socioambiental/
ISA) wrote the following:
Law suits and recognition
For a long time, the so called modern International Law dealt exclusively
with the rights of states, establishing concepts that served to promote
and support the colonialist standards imposed by the Europeans in every
part of the world. In this manner, the law was many times alienated
from the moral values, recognizing the rights of states in detriment
to any other rights, and these laws were used as justification of “just
wars”, the exploitation and the sacking of lands that had been
occupied by other peoples, causing killing and slavery.
More than 400 years and two world wars were required for International
law to concern itself with the maintenance of peace and the welfare
of man. From then on, international law has incorporated modern concepts
of protection of human rights, which, initially, sought only to protect
individuals, but gradually and with greater intensity, began to conceive
the existence of groups and of collective rights.
At the end of the decade of the 1970s, the International agenda of
discussion of human rights began to further a better understanding of
the demands and claims of groups identified as indigenous peoples. The
category of indigenous peoples has been understood as including not
only tribes, nations or native societies of the Americas, but also other
groups that are culturally differentiated, such as the aboriginal communities
of New Zealand and Australia, the tribal peoples of southern Asia, etc.
The efforts of indigenous groups in organizing to ensure the legal
protection of the right to continue existing as distinct communities,
endowed with cultures, political institutions and territories of their
own, which guaranteed them the mobilization of different programs of
international organizations on their behalf. In an appeal to the international
community, the indigenous peoples and some organizations supporting
them managed to connect these complains, suits and demands to the general
principles of human rights, such as the self determination of peoples
and the repudiation of any type of discrimination.
Recently, the fundamental rights of the indigenous peoples have been
gaining further recognition from the juridical point of view, and as
a result there has developed a new body (which is still being formed)
of norms of international human rights. This has happened, in one way,
at a crucial moment of world history, in which questions related to
territorial integrity and national state sovereignty are being reconsidered
and placed in check in the light of new facts in the global political
arena.
United Nations
The international position in the light of the indigenous question
began to change effectively with the resolution of the Economic and
Social Council of the United Nations in 1971, which authorized the study
on conditions of life of indigenous peoples. Ambassador Martinez Cabo
was given the duty to prepare the report, which was only completed in
the year 1983. The study, in five volumes, is considered one of the
best reports on the status of indigenous communities all over the world
when it was prepared. It contains conclusions and recommendations in
detail supporting the indigenous demands in general and became a juridical
benchmark and source of consultation for the normative decisions on
indigenous rights in the United Nations system.
The recommendations of Martinez Cabo, the growing amount of indigenous
themes on the agenda of debates and international conferences, but above
all, the years of lobbying on the part of the indigenous peoples themselves,
caused the United Nations to create, in 1982, the Work Group on Indigenous
Peoples. This group became the most important international forum for
the discussion of indigenous rights, and became a definitive benchmark
in the treatment of the question on an international level.
The original mandate of the Work Group proposed an analyst on the development
of the rights of indigenous peoples all over the world and an effort
to establish international reference standards. In 1985, this mandate
was further fine-tuned. The sub commission for the Prevention of Discrimination
and the Protection of Minorities--which is derived from the Commission
of Human Rights and the Economic and Social Council, in accordance with
the internal structure of the UN-- ratified the decision of the aforementioned
Work Group to write a draft on the rights of the indigenous peoples
for future consideration by the General Assembly of the United Nations.
In 1988, the president of that Work Group, , Erica-Irene Daes, produced
a first draft of what was to become the declaration, which from that
date onward, began to be discussed and commented upon by governmental
representatives, indigenous peoples, NGOs, and others present at the
annual meetings of the entity. In that same year, the United Nations,
set up the Voluntary Fund for Indigenous Peoples to help indigenous
representatives in their travel and lodging expenses, facilitating the
participation of many peoples and communities in the process.
The initial text of the Declaration was changed considerably as Dr.
Daes began to incorporate and perfect concepts and principles year after
year. In 1993, the review process ended in the sphere of the Work Group
and the last version if the Draft of the Declaration of the Rights of
Indigenous Peoples was considered quite satisfactory.
The draft faced considerable pressures on the part of some government,
determined to substantially amend and alter the text during the analysis
process by the organs that studied the report prior to the possible
approval by the General Assembly. Although there is no certainty as
to the final content of the declaration, is it certain , however, that
the discussions developed over the years helped contribute significantly
to the articulation and affirmation of the principles and maxims of
indigenous rights on an international level. They also resulted in important
developments such as the creation of permanent forum for indigenous
peoples on the part of the Human Rights commission of the un (See the
United Nations site). The World Labor Organization-OIT was another international
entity that paid further attention to indigenous rights.
Today there is a reasonable consensus on the series of minimum standards
favorable to the claims of the indigenous peoples, and these demands
have become part of a series of public manifestations of governmental
representatives and other authorities in many international forums.
The position of the Brazilian government
Even prior to being approved by the General Assembly of the United
Nations, the Declaration has been the subject of violent criticism in
Brazil. The representatives of the Brazilian government in the United
Nations have insistently resisted the advances contained in the text.
One should mention that Brazil was one of the countries that led a block
of nations that have been opposing the innovations in terms of indigenous
rights at the international level. For the Brazilian government, the
indigenous question is an internal question and nothing more.
Furthermore, whenever the topic is discussed, unfounded information
is circulated that the United Nations will be producing an international
document, which will support the independence of indigenous peoples
and will promote the violation of the sovereignty of nations. This obviously
has caused heated discussion in Brazil. Here, even today, one does not
admit that the indigenous peoples have the characteristic of a people
and , much less, any other implication that this term might signify
in terms of international law.
Convention 169 – World Labor Organization -OIT
Partly as a result of the initiative of the Work Group of the United
Nations, the International Labor Organization (ILO-OIT), an agency specialized
in integrated the system of the United Nations, was compelled to review
its convention on indigenous peoples, which was written in 1957, and
was largely criticized for having contained outdated concepts, specially
aimed at the assimilation of the indigenous communities by national
societies, totally out of synchronization with the development of more
current attitudes on indigenous rights at an international level.
In 1986, the ILO- OIT organized a meeting of specialists who recommended
that the old Convention (Convention 107) be reviewed, revised and updated
in the light of the modern attitudes, considering its "integrationalist"
language, considered to be obsolete and retrograde and destructive.
In this light, during the following years, the Conference of International
Labor (the highest deliberative organ of the ILO-OIT, discussed the
review of the convention during its annual meetings and a new text was
approved by consensus in the year 1989.
The 1989 Conference adopted the Convention on Indigenous Peoples and
Tribes in Independent Countries (more commonly known as Convention 169),
which was subject to strong criticism for having admitted express limitations
to some of the concepts incorporated in its text. It was also criticized
for not containing instruments, which could effectively constrain the
conduct of some governments. The convention text did not achieve the
expectations it had originally aroused.
Nevertheless, it was the first international instrument to deal with
the basic themes such as the rights of indigenous peoples to live and
develop as differentiated peoples, in accordance with their own standards.
Convention 169 (See the full text), without a doubt, was an advance
in the sense of recognizing the integrity of indigenous cultures, their
rights to their lands and their natural resources, as well as non-discrimination
in all spheres of social welfare. It came into effect on September 1,
1991 and its re-ratification has been the subject of examination in
various countries., In Brazil it has already been approved by the Chamber
of Deputies. At the Federal Senate level, after having been approved
by the Constitution, Justice and Citizenship Committee, in December
of 2000, it is awaiting its turn to be placed on the agenda for a plenary
session vote.
Inter-American Declaration -Organization of American
States (OAS)
The Organization of American States (OAS) is another international organism
that is seeking to accompany the development of norms on indigenous
rights. In 1989, its general assembly decided to solicit the International
Commission of Indigenous Rights, the preparation of a juridical instrument
related to indigenous peoples’ rights. The instrument would initially
be in the form of a resolution, but in fact, should have the character
of a declaration, and may become the basis of a future convention.
Some meetings were held and consultations were made with indigenous
and non-governmental organizations throughout the Americas with the
commission, which later requested the Inter-American Institute of Human
Rights, an impendent organ, but closely connected to the OAS, to continue
the process. With this in mind, the institute invited a small number
of specialists from Latin American countries to discuss the possibility
of preparing a first version of the document (In Brazil Carlos Frederico
Marés de Souza Filho was invited.
The group of specialists, who composed the so-called Committee of Independent
Specialists, however, concluded that it should not be their duty to
write the text of the declaration. The Committee chose to carry out
consultations and discussion throughout Latin America, which resulted,
in a broader document, which can serve as a reference for the writing
of the official text. The Document of the Committee of Specialists analyzes
the current situation in Latin America, reflecting on the obsolete models
in the light of qualitative changes, which have occurred n the relations
between the states and the indigenous peoples in almost every country
in the hemisphere. This body of material would consubstantiate or serve
as a basis for a more precise declaration of current principles .
The Inter-American Institute contracted two more consultants, which
produced a long text on the indigenous rights in Latin America, which
should assist in the document that the Institute will deliver to the
commission of human rights of the Organization of American States as
a contribution to the process in preparing the declaration,. It is certain,
however, that the committee has already prepared the first draft of
this declaration and has been conducting its own consultations with
governments, indigenous organizations an d support entities throughout
the Americas.
Agenda 21
Special attention should also be given to the results of the Conference
eon the Environment and Development of the United Nations-UNCED, which
met in Rio de Janeiro, in June of 1992, with indigenous peoples, environmentalists,
NGOs, activities, and one hundred and eighty eight heads of state, in
one of the most significant meetings held in the sphere of International
Rights, the so called Eco 92 meeting.
From this meeting came documents such as the Convention on Biological
Diversity, the Declaration of Rio and the declaration of principles
on the management and conservation of forests.. The declaration of indigenous
rights had a strong imp; act on the other declarations. Special attention
was given to the signing of Agenda 21, which became one of the most
extensive and formal recognition of these rights ever registered by
International Law.
The Agenda 21 is above all an ambitious document, containing four sections,
forty chapters and more than one hundred programs, through which the
governments which sign the document plan to establish an action program
for the global sustainable development during the next century. The
documents deals with all areas of the planet where there is an intercession
between environment and development, as well as the social groups affected.
The third section is dedicated to the strengthening of the role of these
agents, and a chapter has been dedicated to indigenous peoples and their
communities. In this chapter there are details on the rights and responsibilities
of these peoples and communities in the face of national legislation.
Fund for indigenous development
In the area of International treatment of the claims of indigenous
peoples, one must highlight the creation of the fund for the Development
of Indigenous Peoples of Latin America and the Caribbean, in 1992. The
agreement, which constitutes this fund, is being analyzed by Brazil’s
congress for ratification purposes.
This fund, with headquarters in Bolivia, has the initial support of
the Anti-American Bank of Development (IDB) and the International Fund
for Agricultural Development (Fida) of the United Nations Programs for
Development (PNUD) and the World Labor Organization, ILO-OIT. The fund
seeks to deal with the projects filed by the indigenous communities
themselves or their organizations. The structure of the fund presumes
the presence of indigenous delegates and representatives of member states
in their administrative organs. Although it is currently in early stages
of organization, it is without doubt the first time in which their indigenous
representation is admitted at an institutional level.
The Decade of Indigenous Peoples
It is important to highlight that the declaration of the United Nations
of the International Decade of Indigenous Peoples (1994-2004)which was
preceded by the International Year of Indigenous Peoples in 1993.
In the declaration f the Decade the objective was to strengthen the
international cooperation to solve the indigenous problems, especially
in areas such as human rights, environment development, education and
health. Some persons might question the validity of these types of procedures
but the truth is that fifteen years ago, they would have been unthinkable.
Regarding the International year of Indigenous Peoples, it is certain
that in Brazil little was done, and there were few repercussions. One
inter-ministry commission was created to define steps and measures,
but as it was headed by Itamaraty, it spent nearly all the time of its
limited existence discussing if it should or should not adopt the official
nomenclature, “people” or “indigenous people” or
should use the word “population,”. “indigenous peoples”or
any other concept that does not represent, in its way of thinking, any
threat to legislation or national sovereignty. In concrete terms, the
commission did nothing and the International Year sailed by without
being perceived by the indigenous peoples or the Brazilian public in
general.
Nevertheless, on the international level, the International Year of
Indigenous Peoples created unusual opportunities for indigenous peoples
representatives to discuss directly with governments, opening important
space for negotiation within international organisms . It also managed
to achieve significant repercussion in the press all over the world
(or nearly everywhere). At the opening session of the International
Year, held in New York, nearly twenty indigenous representatives from
all parts of the world spoke to the general assembly of the United Nations,
including Davi Yanomami. Some months later, various leaders spoke before
the Commission of Human Rights of the United Nations, presenting denunciations,
charges and claims. In June of the same year, twelve representatives
were heard in a plenary session of the World Conference on Human Rights
held in Vienna.
Obviously, if these facts demonstrate the impact of the International
Year, the concrete results of twenty years of struggles for a cultural,
legal and, above all, political recognition are even more impressive..
A few years ago, for example it would have been difficult to imagine
Rigoberta Menchu, the indigenous activist leader of Guatemala, receiving
the Nobel Peace Prize. The same could be said of an indigenous delegate
addressing formally any of the eminently governmental organs of the
United Nations.
One cannot deny that the indigenous question has guaranteed its space
on the International Agenda. Various seminars have been held to discuss
relevant themes related to International Law, including racism, self-government,
sustainable development and indigenous territorial rights. At the present
time, the United Nations is studying a proposal to create a permanent
forum for indigenous peoples. Furthermore, special analysts for the
Work Group on Indigenous Populations were designated to prepare studies
on the existence and validity of treaties and agreements betweens states
and indigenous peoples, as well as the protection of cultural and intellectual
property of these native peoples. Indigenous peoples have organized
themselves to an increasing degree, assuming their rightful place in
all the large international forums that discuss human rights today.
One must add, however, that the International Decade established by
he United Nations has been confronted with new demands. Indigenous communities
have been increasingly seeking international cooperation as a means
to improve their living conditions. With this in mind, it is necessary
to set up significant resources from the International Community, and
in a certain way, this is one of the largest challenges of recent years.
The development agencies, within and outside the system of the United
Nations, need to take into consideration the environmental, cultural
questions as well as the protection of human rights, among other themes,
to establish development programs which can preferably be coordinated
by the communities themselves, benefiting their groups specifically.
None of this is easy, since the funds available for projects of development
are largely committed to other matters. Furthermore, the international
organisms are not prepared to deal with the community projects, which
almost always represent a small amount of money, such as the projects
presented by indigenous peoples or communities. One must convince governments
to dedicate more funds for ethnic development, and the international
agencies should combine their know-how and resources specialized in
this area with those of indigenous peoples so that the projects are
planned and implemented jointly with the communities.
Considerable advances
Despite the problems the series of facts mentioned above reflect an
enormous advance of international law in the treatment of the indigenous
question. The new international norms are juridical matters based upon
what the indigenous peoples can present as their demands before international
forums, even if the procedures to compel the respect for the regulations
of international law are somewhat limited. Whatever the case may be,
there are relevant mechanisms for the defense of human rights in the
sphere of organisms like the United Nations, the International Labor
Organization and the Organization of American States, which, in one
form or another, can be triggered by the indigenous peoples in the defense
of their collective rights—something that was not feasible some
years ago.
It is clear that there are those who still consider all this as nothing
more than words with little practical results. This is, however, only
one limited form of observing history.
More than anything else it is important to understand that the advances
of international law, have been an impulse for the development of different
ways of thinking by government authorities and governments themselves.
As such, concepts are transformed, concepts which had been previously
considered as outlandish and absurd, they now have become unquestioned
references to open the door to the future consolidation of rights (something
that had been heretofore inconceivable) in the sphere of internal juridical
systems of each state. Some of the recent constitutions of South America
have recognized the multi-ethnical character of their countries and
the right of the peoples who live in them to have and maintain different
characteristics. Everywhere the debate on the rights of indigenous peoples
requires changes in national legislation. All this is part of a process
for which International Law has made a significant contribution. (Ana
Valéria Araújo – March 1996, with a few updates).
