Eighth Session of the permanent Forum on Indigenous Issues
New York, May 20 2009


Presentation by Nilo Cayuqueo, Jorge Dario Nahuel and Dario Duch of the Indigenous World Association, the Argentine Association of lawyers in Indigenous Rights and the Coordination of Mapuche Organizations of Neuquen respectively on procedural tools for the implementation of the Universal Declaration of Rights of Indigenous Peoples.


Madame President:

On behalf of the Indigenous World Association, the Argentine Association of lawyers in Indigenous Rights and the Coordination of Mapuche Organizations of Neuquen, organizations that support the content and philosophy of Declararción of the Rights of Indigenous Peoples of the United Nations, we must manifest our continuing concern about the lack of applicability of the Declaration in Argentina and other countries of the Americas.

Almost a year after its adoption, in Argentina for example, it is still very difficult to achieve effective implementation of rights enshrined therein, so we propose as a way to implement it, the formulation of legislative proposals intended to establish effective administrative and judicial proceedings.

In this regard, we understand that just as happened historically with the Universal Declaration of Human Rights 1948, a Universal Declaration of the Rights of Indigenous Peoples must be received and co-validated as much in international relations as in current domestic law, especially for those who affirmed with their vote its acceptance. This is how the text of the Declaration is understood, as stated in Article 42, that "The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, particularly at the local level, and States will promote respect for and full application of the provisions of this Declaration and tend to the effectiveness of this Declaration. "

At a minimum, this instrument should become the primary guidance that public policies of states that have signed should observe, as well as the guide for the legislative proposals at all levels, and court judgments, with particular and maximum revision made by the Superior Courts and Supreme Courts.

In addition, the fact that the jurisprudence of the Commission and the Inter-American Court of Human Rights has been progressively applying its judgments to the primary content of the Universal Declaration makes such provisions fully operational, even where domestic legal systems try to ignore it.

Recommendations to the permanent Forum regarding the adaptation of traditional process mechanisms.

In virtue of the foregoing reasons, we propose:
1) That the FPCI recommend to the nation states legislative adherence to the content of the Universal Declaration, as Bolivia has done, through national laws. In the same vein, it could be proposed that National Congresses with constitutional rank adopt the Declaration.
2) That the FPCI recommend to the states specific measures to limit the rigidity of criminal proceedings, accepting new grounds of justification or specific absolving excuses for certain correctional (misdemeanor???) crimes that occur within Indigenous communities, thus enabling the communities’ own judicial organs to intervene in and resolve such cases, which in any case can be appealed to Indigenous organizations on a higher level, such as Indigenous Parliaments, Confederations or Coordinators.
3) That the FPCI recommend systems for exceptions where there may be cultural conditions , promoting plain and simple dismissal of cases such as the misnamed "usurpation," (trespassing) when it comes to communities that recover a property to which they had had traditional access.
4) That the FPCI recommend to the states the recognition of Indigenous communities’ and peoples’ legal standing to initiate possessory actions and claims of ownership of a given territory, given that possession in the indigenous worldview takes forms that are notably different than those of others. A community or people should not be required to submit a deed as the lack or inexistence of such a document is the responsibility of the state.
5) That the FPCI propose a mechanism for an appeal or writ of legal protection of rights as a one of the ways to promote compliance with the fundamental content established in the Universal Declaration, by which states must pave the way for the formalities normally required when dealing with proposals made by indigenous peoples regarding their rights under the Declaration.
6) That the FPCI recommend that states make more flexible the "res judicata" status of sentences when they mean the eviction of an indigenous community, facilitating the promotion of procedures to determine their nullification due to constitutional violations against indigenous communities.


Recommendations on new procedures to be implemented
1) That the FPCI recommend to states the creation of new administrative and judicial procedures in order to offer proper observance of that which is established by the Universal Declaration. They may derive both from new laws as well as praetorian creations resulting from the decisions of the highest court that, required by raising of various "test cases " may establish criteria and set standards that spread to all other lower courts.
2) That the FPCI propose to the states to create an "Appeal/Writ of Indigenous Title" as a new procedure that makes it possible to bring before the judiciary adequate recognition of the terms of the new law, considering ownership of land in a collective manner, based on the spiritual and community regard that indigenous peoples have for their territories. To this end, it will be made a priority that the Indigenous organizations or communities themselves have the legal standing to institute legal proceedings, and it must be ensured that these are gratis and that the adoption of time limits that take into consideration the risk of loss or damage from which indigenous lands continuously suffer.
3) That the FPCI propose the adoption by states of specific types of evidence that support the validity of special procedures, such as the testimony of elders, community documents, reports of anthropologists and sociologists, in situ judicial recognition and others.
4) That the FPCI recommend to states that judicial authorities have the necessary legal powers to demand of political powers the creation and delivery of community land titles for the Original Community in question, imposing the corresponding sanctions on officials when they are not effective in their compliance within the period specified by the same sentence. As necessary, it may have power to impose upon the state in question an action plan with deadlines and obligations to fulfill in order to carry out cultural surveys, accompaniment for the processing of community legal recognition, studies of titles or special protective measures.

Thank you very much, Madame President.