Stefania Errico (Coventry Univ. – Centre for Agroecology, Water and Resilience) has posted an ASIL Insight on The American Declaration on the Rights of Indigenous Peoples.
On June 15, 2016, the General Assembly of the Organization of American States (OAS) adopted the American Declaration on the Rights of Indigenous Peoples, after decades of laborious negotiations.
Adopted almost ten years after the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), the American Declaration addresses issues that were not covered by UNDRIP, including specific situations relevant to the region such as the rights of indigenous peoples in “voluntary isolation or initial contact,” and indigenous peoples affected by armed conflict. It also strengthens UNDRIP’s provisions concerning indigenous peoples’ treaty rights, which are particularly relevant to the Americas in ways that have been regarded as a “major victory” by some indigenous peoples of the hemisphere. However, in other areas the Declaration falls short of meeting the standards that have been set in UNDRIP or have been developed by the regional human rights institutions.
Comprised of forty-one articles divided into six thematic sections, the American Declaration recognizes a wide-ranging series of individual and collective rights deemed “indispensable for [indigenous peoples’] existence, well-being and integral development as peoples.” According to Article XLI, these rights constitute the minimum standards for the survival, dignity, and well-being of the indigenous peoples of the Americas. In keeping with the approach commonly followed in the other instruments concerning indigenous peoples, the Declaration does not provide any definition of the term “indigenous peoples.” Rather, it relies on the criterion of self-identification according to the “practices and institutions of each indigenous people” in order to define its scope of application.
Self-Determination, Autonomy, and Participation
In its Preamble, the Declaration reproduces some paragraphs of UNDRIP and recalls the historic injustices suffered by indigenous peoples, the urgent need to respect and promote their inherent rights, and the importance of eliminating all forms of discrimination against them. Strikingly, however, it does not acknowledge indigenous peoples as peoples “equal to all other peoples,” as UNDRIP had done, making explicit the link between indigenous groups as peoples and the right to self-determination. By doing that, UNDRIP acknowledges that indigenous peoples, like other peoples, have a full right to exercise self-determination, including in its external dimension, should the conditions be met.
A similar statement is not found in the American Declaration, which merely states that indigenous peoples have the right to self-determination, borrowing language from common Article 1 of the UN Covenants on Human Rights and Article 3 of UNDRIP, and lays down that in exercising this right, indigenous peoples have the right to autonomy or self-government in matters relating to their internal and local affairs, reproducing Article 4 of UNDRIP. This right is understood as a right to internal self-determination, in accordance also with the limits formulated in Article IV to safeguard “the territorial integrity or political unity of sovereign and independent States.”
Throughout the various thematic sections, the Declaration thus provides for the right of indigenous peoples to maintain their juridical, social, political, and economic systems or institutions, to have their indigenous law and legal systems recognized and respected, to promote and develop their “systems and media of communication,” to maintain their own health systems and practices, to establish and control their education systems and institutions, and to determine their priorities for development and design policies, plans, programmes and strategies accordingly. Echoing Article 18 of UNDRIP, the Declaration also recognizes, at Article XXI, indigenous peoples’ right to maintain and develop their own decision-making institutions and to participate in decision-making in matters that would affect their rights. Additionally, the Declaration states that indigenous peoples have the right to equal opportunities to access and participate fully and effectively as peoples in all national institutions and fora, including deliberative bodies.
Yet, the Declaration does not fully follow the dual approach, resting on the principles of self-government and participation as expressions of indigenous peoples’ self-determination that underpins UNDRIP. Article XXIII seems to narrow the scope of indigenous peoples’ participation to “matters which affect their rights and which are related to the development and execution of laws, public policies, programmes, plans and actions related to indigenous matters.” Moreover, Article XXIII limits their participation and consultation by presenting these concepts in the context of “contributions of the indigenous legal and organizational systems.” By contrast, as the UN Special Rapporteur on the rights of indigenous peoples noted when referring to the provisions in UNDRIP and other international instruments and related jurisprudence, indigenous peoples shall be involved in decision-making processes “whenever a State decision may affect indigenous peoples in ways not felt by others in society.” This may occur “when the interests or conditions of indigenous peoples that are particular to them are implicated in the decision, even when the decision may have a broader impact, as in the case of certain legislation.”
Consultation and Free, Prior, and Informed Consent
The Declaration reiterates Articles 19 and 32.2 of UNDRIP, providing for states to consult and cooperate in good faith with indigenous peoples through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them, and prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. However, contrary to UNDRIP, the Declaration does not provide for consultation with the indigenous peoples concerned before using their lands or territories for military activities . Nor does it make indigenous peoples’ consent a requirement in the case of relocation and storage or disposal of hazardous materials in the lands or territories of indigenous peoples. In this regard, it should be recalled that in the view of the Inter-American Court of Human Rights (IACtHR) the state has a duty to obtain the free, prior, and informed consent of indigenous peoples in the case of large-scale development or investment projects that would have a major impact within indigenous peoples’ territories. The Inter-American Commission on Human Rights (IACHR) has also recognized that indigenous peoples’ consent is required in the case of displacement and storage or disposal of hazardous materials.
Land, Territories, and Resources
The Declaration acknowledges indigenous peoples’ right to cultural integrity, including the recognition and respect for their ways of life, and more specifically, their distinctive relationship with their lands, territories, and resources, and recognizes their right to maintain and strengthen this relationship. Quoting Article 26 of UNDRIP, the Declaration recognizes indigenous peoples’ rights to “own, use, develop and control” their lands, territories, and resources. It also introduces a new paragraph whose meaning is somewhat unclear, providing for the legal recognition of forms of property, possession, and ownership “in accordance with the legal system of each State and the relevant international instruments.” The foundation of indigenous peoples’ rights to their land lies in their traditional occupation and use of their territory, and this right exists regardless of whether it is officially recognized by the state. The new paragraph may be directed at accommodating varying national regimes governing land and natural resources, including those cases in which the state retains the ownership of certain natural resources as expressly contemplated in ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169) (ILO C169), at Article 15. However, whereas ILO C169 safeguards indigenous peoples’ ability to participate in the benefits arising out of the exploration and exploitation of such resources pertaining to their lands, the Declaration provides no such right. Furthermore, unlike UNDRIP, the Declaration does not contemplate the right of indigenous peoples to redress, including restitution, for the lands, territories, and resources that they have traditionally owned or otherwise occupied or used and that were confiscated, taken, occupied, used, or damaged without their free, prior, and informed consent. Again, redress, including restitution, has been recognized by the IACtHR as an essential element of indigenous peoples’ land rights.
Treaties, Agreements, and Other Constructive Arrangements
Closely linked to self-determination and land rights are the provisions concerning treaties, agreements, and other constructive arrangements. As has been mentioned above, the Declaration includes a stronger provision than UNDRIP, establishing the principle that these shall be recognized and enforced “in accordance with their true spirit and intent in good faith” and providing for the submission of related disputes to regional and international bodies.
In conclusion, the Declaration has been considered a “historic step” for the recognition, promotion, and protection of indigenous peoples’ rights in the continent, a sign of the commitment of OAS member states in this regard, and an important guiding instrument to support OAS organs in the implementation of their mandates, notably the IACtHR and the IACHR. The Declaration recognizes that the rights of indigenous peoples are “essential to the present and future of the Americas” and calls upon states to promote the adoption of legislative and other measures to give effect to it, with the full participation of indigenous peoples. It also invites the OAS to take all necessary measures for its promotion. Whereas, for certain aspects, the Declaration may fall short of meeting the standards already set in other international instruments and those developed by the regional human rights institutions, Article XL states that nothing in the Declaration shall be construed as diminishing or extinguishing rights that indigenous peoples now have or may acquire in the future. Indeed, as stressed by the IACHR and the UN Permanent Forum on Indigenous Issues, the Declaration shall be read in conjunction with UNDRIP, ILO C169, and other international and regional human rights instruments.
About the Author: Stefania Errico is an Honorary Research Fellow, Coventry University, Centre for Agroecology, Water and Resilience.
 The adoption of the Declaration was accompanied by the objection of the United States, and the “non-position” of Canada. The Government of Colombia declared unacceptable the provisions concerning free, prior and informed consent (Arts. XXIII, para.2; and XXIX, para.4) and military activities (Art. XXX, para. 5). American Declaration on the Rights of Indigenous Peoples, AG/RES.2888 (XLVI-O/16) (June 15, 2016), available at http://cdn7.iitc.org/wp-content/uploads/AG07150E06_web.pdf [hereinafter American Declaration].
 Id. arts. XXVI, XXX.
 Id. art. VI. In addition to the issues discussed here and other issues previously addressed in other agreements, the Declaration includes previously unaddressed issues involving indigenous family, gender equality, juridical personality, internal and international armed conflicts, and indigenous peoples in voluntary isolation or initial contact. It furthermore places a particular emphasis on the provision of intercultural social services. See, id. arts. XV, XVIII.
 Id. art. I.
 See Stefania Errico, The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview, 7 Human Rights L. Rev. 741 (2007); S. James Anaya, International Human Rights and Indigenous Peoples (2009).
 American Declaration, supra note 1, arts. III, XXI.
 Id. arts. VI,XXII; XXII, para. 2; XIV, para. 3; XVIII, para. 2; XV, para. 3; XXIX.
 Id. art. XXI, para. 2.
 James Anaya (Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people), Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, UN Doc. A/HRC/12/34, para. 43 (July 15, 2009), available at http://unsr.jamesanaya.org/docs/annual/2009_hrc_annual_report_en.pdf.
 American Declaration, supra note 1, arts. XXIII, para. 2, XXIX, para. 4.
 See id. art. XXX, para. 5.
 See id. art. XIX, para. 2.
 See also Stefania Errico, Control over Natural Resources and Protection of the Environment of Indigenous Territories, in The UN Declaration on the Rights of Indigenous Peoples: A Commentary (Weller and Jessie Hohmann eds., 2017). See also Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, Costs, Inter-Am. Ct. H.R. (ser. C) No. 172, ¶ 134 (Aug. 12, 2008).
 Indigenous and Tribal Peoples’ Rights over Their Ancestral Lands and Natural Resources, OEA/Ser.L/V/II.Doc 56/09, Inter-Am. Comm’n H.R., ¶¶ 334(1), (3) (2009), available at http://www.oas.org/en/iachr/indigenous/docs/pdf/ancestrallands.pdf.
 American Declaration, supra note 1, arts. XIII, XXV.
 See, e.g., Int’l Labour Org. [ILO] Observation (CEACR), Indigenous and Tribal Peoples Convention, 1989 (No. 169) – Peru (Ratification: 1994), (2002); Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-Am. Ct. H.R., (ser. C) No. 79 (2001).
 The IACtHR has held that benefit sharing is a form of just compensation under Article 21 of the Inter-American Convention in the case of restrictions on indigenous peoples’ land rights. See, e.g., Kichwa Indigenous People of Sarayaku v. Ecuador, Inter-Am. Ct. H.R., (ser. C) No. 245, ¶ 157 (2012).
 See, e.g., Sawhoyamaxa Indigenous Community v. Paraguay, Inter-Am. Ct. H.R., (ser. C) No. 146, ¶ 128 (2006).
 American Declaration, supra note 1, art. XXIV.
 See IACHR Press Release, The IACHR Celebrates the Adoption of the American Declaration on the Rights of Indigenous Peoples (June 22, 2016), http://www.oas.org/en/iachr/media_center/PReleases/2016/082.asp [hereinafter IACHR Press Release].
 American Declaration, supra note 1, art. XXXI.
 Id. Art. XXXVIII.
 See, IACHR Press Release, supra note 20; Permanent Forum on Indigenous Issues, Rep. on the Work of Its Sixteenth Session, U.N. Doc. E/2017/43-E/C.19/2017/11, ¶ 19 (2017).