Miguel Agustín Pro Juárez Human Rights Center
Edgar Cortéz, Director
April 27, 2001

The Senate draft ignores the highest legal framework which exists concerning indigenous matters: Convention 169 of the ILO.

The draft voted on last night by the Senate to reform the Constitution regarding Indigenous Rights and Culture does not fundamentally recognize the historic demands of these peoples -- to be recognized as the subjects of right in terms of their collective nature and cultural diversity -- thus failing to take the opportunity to respond to this historic and just demand.

The reform proposal agreed to by the Senate in the matter of indigenous peoples would appear to respond to the circumstances of backwardness and the shameful economic, social and political disadvantage which the indigenous peoples experience, which should, obviously, be given priority attention. However, the fundamental aspect of the indigenous demands have to do with an historic demand of existing, developing, participating, deciding and relating to each other in conditions of equity with the population, and at the different levels of government, beginning with the recognition of and respect for their collective and culturally specific nature.

This fundamental aspect, expressed in Convention 169 on Indigenous and Tribal Peoples in Independent Nations of the International Labor Organization, as well as in the San Andre's Larra'inzar Accords, was not recognized by the Senate. However, secondary aspects were left in the reform text which do not belong in a document like this. One only needs to refer to paragraph B of the second article of the draft, where there is a list of government obligations.

One of our greatest concerns is that this draft completely ignores what is established in Convention 169, and which, by virtue of Article 133 of the Constitution, is the domestic, operative law in our country. It should, therefore, have been the fundamental focus for the drawing up of this proposal for constitutional reform.

Thus, rights which are so clearly recognized and guaranteed in this Convention were, in the best of cases, reduced and delineated by secondary laws, or they were flatly eliminated as recognized rights within the approved draft. Among these rights are: the exercise and enjoyment of their collective and cultural rights as peoples; being informed and consulted in all those aspects which interest and affect them (such as in education programs and plans, in economic and social development, in the use of resources found in their lands, to mention just a few); the right to the use and enjoyment of their ancestral lands; the right to choose their authorities, of procuring and imparting justice according to their regulatory systems.

In addition to the above, we would like to emphasize -- as another of the reform program's primary deficiencies -- the concept which continues to be present of the indigenous peoples. It is worrisome to confirm that our legislators were not able to express in the draft the collective and culturally specific dimension of the indigenous peoples as subjects of right, as well as the collective nature of their cultural rights, reducing the subjects of right, as well as the nature of the rights themselves, to an individual perspective.

This draft issued by the Senate demonstrates that our legislators are ignoring the depths of the demands of the indigenous peoples and that, therefore, as long as this fundamental aspect is not come to terms with, there will be no concrete responses to the demands of the indigenous peoples.

For now it is left for us to wait for the Chamber of Deputies -- which, in this case, will act to review the Senate proposal -- to take on the role of correcting the errors which have been made, and, therefore, give full responses to the historic demands of our country's indigenous peoples.

In this regard, it is of fundamental importance to express to our Deputies that, in delivering their opinions, and in their votes, they should keep in mind -- in addition to the ethical commitment they have to the building of democracy, justice and equity in our country -- that which has already been recognized as law in indigenous matters in Convention 169 on Indigenous and Tribal Peoples in Independent Countries. We believe that, if they take this as the fundamental reference in rendering their opinion and in voting, there will certainly be a large number of observations and clarifications necessary in order to respond to the demands of the indigenous peoples.

Making a preliminary evaluation of this process: if we were to be on a course in which there were a starting point from which we wished to leave, with awareness of the place to which we wished to arrive, one would have to say that this proposal barely crosses the starting line. However, if we ventured to gaze towards the finishing line, we would recognize that we still cannot make it out on the horizon, and, barely taking the first step, we have already bumped into the first obstacle.

The avoidance of these serious omissions is in the hands of the Deputies. The peace process is at stake.

The National Indigenous Congress, through Adelfo Regino Montes, has already made a statement in this regard, affirming that this draft does not recognize indigenous rights. Various specialists in the field have begun to express themselves publicly since the draft was released, concerning its implications and the vast divergences between the draft, the Cocopa proposal and Convention 160 of the ILO itself.

At this critical moment in the country's evolution, add the political complications to the technical ones: among them, the attitudes of key actors who are keeping the spotlight on themselves at this moment, who can confuse society and, even worse, obstruct the possibilities for a peaceful, just and dignified solution to the Chiapas conflict.

The Senators consider themselves satisfied and are self-congratulatory. They are emphasizing that the approval of the draft in the Highest Chamber is a "great advance" for the country. President Fox has talkatively charged in once again, with statements right and left, asserting that "there are no guerrillas anymore," that peace "is now a fact," praising the Senate, claiming that that draft - incomplete and partial -- is one more step forward. He avoids, however, speaking about what it will involve politically for the peace process and about the draft's omission regarding the recognition of the concept of territory and communities as subjects of public right. He says "everything is going along fine." All of this without taking into consideration that the discussion in the Chamber of Deputies has not concluded.

These attitudes are either part of the discursive strategy regarding the conflict which has been being implemented since Fox assumed the post of President of the Republic -- whose statements have vacillated between voluntarism and political incompetence in dealing with the matter (We are a "few weeks away from reaching a peace agreement in Chiapas", "the government has the will for peace", "the indigenous are our brothers", "there are no guerrillas in Mexico anymore"), or they end up unmasking the profound ignorance which persists in our levels of government concerning the rights of the Indian Peoples.

For those of us who respect and recognize what the indigenous struggle for the recognition of their rights entails, this triumphalist attitude outrages us. We profoundly reject it, because it once again presents the possibility that the mere public image of the Mexican State could be used to try and legitimize any action whatsoever against the EZLN, against their support bases, against the CNI and against the Indian peoples who support the struggle for autonomy and free determination. They could be identified, following this logic, as the intransigent players who do not want the country to have peace. The basic argument could continue in the same way: "We've already given you your law. What more do you want?"

The Senate approved a draft law on indigenous rights and culture which - unless the Chamber of Deputies blocks it -- would once again put the peace process seriously at risk in a state as divided as Chiapas is. It would, of course, leave the guarantee of fulfilling the rights of autonomy and free determination of the Indian Peoples partially "noted" in the Constitution.

The ball is now in the Chamber of Deputy's court, in their authority as the body which reviews the draft proposal. We are appealing to their responsibilities as legislators and representatives of Mexican society.

The Pro Center Presents The Legislators With Observations Concerning The Draft Drawn Up By The Senate

Within the framework of the discussion concerning the draft proposal, the Prodh Center has today delivered to the Deputies and Senators observations concerning the draft, which we present to you:

Observations:

In our communication of March 29 we expressed the expectation that, at this legislative opportunity, the possibility was within your grasp to resolve, once and for all, the historic demands of the indigenous peoples of this country, setting the foundations for the full force of their collective rights, with the approval of the Cocopa proposal. We also said that, with this approval, the paths to peace would be facilitated. It would contribute to the strengthening of the Rule of Law, fulfilling the obligations which Mexico assumed when it ratified Convention 169 of the ILO. And it would open the way for a new kind of legislating, derived from the demands and aspirations presented by society.

However, following the review we have made of the draft which was approved by the Senate yesterday, we find that it does not substantively reflect that the different contributions made by experts, social organizations, indigenous organizations, the EZLN, etcetera -- who widely argued the need for approving the Cocopa proposal -- have been heard or incorporated. As a consequence, the expectations of making progress in the democratization of legislative action in the country seems to be diminishing, which concerns us, since it does not correspond to the offer you made in this matter, and even less to the expectations expressed by society.

Below we note the main problems which are contained, from our perspective, in the draft which was approved:

1. -- It ignores the fact that the operative legal frame of reference is Convention 169. It concerns us that the existence of Convention 169, in both the setting out of goals and in the contents of the draft, is completely ignored, not only as a frame of reference, but also as the supreme applicable law in the country, under the terms contained in Article 133 of the Constitution and Articles 26 and 27.1 of the Vienna Convention on Treaty Law.

2.- The draft not only fails to incorporate the contents of Convention 169, but it appears to start from zero, reducing, diluting and leaving out already existing concepts.

a. The contents of the draft appear to reflect an idea of starting from zero regarding the recognition of the collective rights of the indigenous peoples and to refuse to recognize what is already Mexican Law, starting with the contents of the previously cited ILO Convention. And not only that, but rights and concepts which have been clearly established in said Convention are not incorporated in their totality, making not only their comprehension difficult, but also, and more importantly, their application. An example of this is the concept of "people", "habitat", "land," or the subject of the rights and obligations contained, as in Article 2.A.V., where autonomy is recognized and guaranteed in order to "Conserve and improve the habitat and to preserve the integrity of their lands under the terms established in this Constitution."

b. It is important for the concept of people contained in Convention 169 to also be transferred to the "community." Nonetheless, if it is about transferring the rights contained in the Convention to the Constitution in order to facilitate their exercise and guarantee, the concept of "people" should not be left out. If it is done in any other way, instead of facilitating their application, it will make it more difficult. It is curious that this concept was left out, if we also note that it is a proposal which has been contained in almost all the initiatives which have been presented that, in general terms, have reproduced the concept contained in Convention 169.

c. The rights of the peoples regarding natural resources are even more restricted. The use and enjoyment of natural resources "of the places which they inhabit and occupy" are subjected to provisos regarding strategic areas, as well as the forms and means of ownership and possession contained in the Constitution and the collective rights acquired by third parties or by members of the community. In this aspect the contents of Convention 169 are not only not incorporated, but openly contravened.

d. The validation by judges and courts which is proposed regarding their own forms of conflict resolution is contrary to the concept of autonomy. That regarding conflict solution according to uses and customs subject to "validation" by relevant judges and courts is contrary to the recognition of their own forms of coexistence and organization, which Article 2.A.I. refers to. The addition to Article 18 is welcome, because it is a right of all persons, whether or not they are indigenous, but it does not incorporate the contents of Convention 169 relative to the application of alternative punishments.

3.- The draft demonstrates that it was conceived from a western individual frame of reference, and not for the protection and respect of the collective rights of the indigenous peoples.

It would appear that it is legislation for individual persons, with some relationship with the indigenous peoples, making repeated references to rights which, as persons and Mexican citizens, they already possess, and not for collective subjects whose existence has already been legally recognized in Convention 169, but without the ability to exercise their rights. Some examples are: the third paragraph added to Article 1 regarding discrimination; the contents of part B which refers to "promoting equality of opportunity for the indigenous and eliminating any discriminatory practice." This is a reflection of the continuation of indigenist policies, which are concerned with the poverty and exclusion suffered by members of the people. This is laudable, but it does not respond to the demand clearly made by the peoples, of being recognized as subjects of rights and abilities to decide how they want to live and to organize themselves.

4. It hands over to the states the legislating and resolving of questions which should be guaranteed and resolved by the Congress of the Union. The rights of free determination and autonomy are left without guarantees. As we stated in the documents we attached to our previous communication, we agree that the exercise of collective rights are guaranteed regarding diversity. Nonetheless, the manner of dealing with this challenge is omissive and evasive in its handing over to the states the recognition of peoples and communities, as well as the characteristics of free determination and autonomy. We ask ourselves if they will not provoke the phenomena of "balkanization" which we wish to avoid. In this regard, we insist on the necessity for the federation to be the one which guarantees and ensures a minimum standard of rights, and that the states broaden and accommodate as necessary, dealing fairly with the specific natures of the peoples which compose them.

5. It leaves the expressly voiced demands of the indigenous peoples unresolved.

Regarding access to and administration of municipal resources. As it is thus far presented, the reform does not resolve the demands of the peoples regarding access to and administration of the municipal resources which correspond to them. Although the reform to Article 115 puts forward the possibility of coordination and association of indigenous communities within the municipal arena, it does not state that the aim is the administration of resources. Instead it makes reference to a law which does not yet exist.

6. -- The contents of part "B" of the proposed Article 2 lists what are more like agenda points which the government should carry out, instead of constitutional guarantees.

The entire contents of Part "B" of the proposed Article 2 constitute points for a government agenda, unfulfilled obligations contained in the existing Constitution as the responsibility of different bodies and levels of governments. They do not constitute new rights or guarantees which should be allocated to the dogmatic part of the constitutional regulations.

7. -- The addition to Article 1 which prohibits discrimination will facilitate the fulfillment of international obligations which the Mexican State has contracted in that regard, but it does not constitute a substantive advance towards its implementation.

This addition is welcome, even though it does not constitute a substantive response to the consistent demands expressed by the indigenous peoples, the full guarantee and protection of their collective rights.

The Modification Of The Draft Is Requested Based On The Above Presented Arguments

For the above stated reasons, we believe that the decree approved yesterday by the Senate should be modified by the Chamber of Deputies, incorporating the contents and meaning of the Cocopa proposal. If this does not take place, Mexico will lose this opportunity for fully resolving the circumstances of the indigenous peoples, for making the rights contained in Convention 169 effective, as well as for making peace possible. If not, they will fail to fulfill the Constitution and international State obligations.

We appreciate your attention and, above all, your timely intervention in order to ensure and guarantee, through this legislative action, the collective rights of this country's indigenous peoples.