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The Cocopa Proposal will have International impact.

Alejandro Negrin - The concept of the free determination of indigenous peoples occupies a central place in the Cocopa's constitutional reform proposal, which was presented to the Congress by the Executive last December. Its significance is multiple. On the one hand, it includes the indigenous peoples' aspirations for autonomy, it consolidates the recognition of their collective rights and it channels the current of state Constitutions which have already incorporated this concept (such as in Oaxaca, Veracruz, Nayarit, Campeche and Chiapas). On the other hand, and hardly noticed, the concept of free determination in the constitutional reform project will also have, once it is approved, an international impact.

One can speak of at least two effects. One, the strengthening of international monitoring of respect for the rights of indigenous peoples. Two, it will locate Mexico in a position of vanguard in international discussions on this issue. The fact of its being the first country in the world to elevate the notion of the free determination of indigenous people to the constitutional level will position the indigenous question as one of the priorities in a new human rights foreign policy program.

The debates concerning emerging actors in international relations have been conventionally focused on non-governmental organizations, businesses and individuals. The indigenous peoples have passed almost unnoticed. It is, however, a universe which - even depending on the criteria and the source - takes in more than 30 million persons on the American continent, more than 150 million in Asia and 15 million in Africa. It is, in addition, an actor who has pervaded the entire spectrum of international organizations, with successes as notable as they have been unheralded. Some of their achievements have been institutional: practically all the bodies and agencies of the United Nations devote attention to the indigenous question, and there are, in addition, specific forums for studying them. Especially significant was the recent approval in the UN of a Permanent Forum for Indigenous Matters. Other achievements have to do with the introduction - practically irreversible - of a multicultural - not integrationist - focus, oriented towards a definition reached by consensus in the international community concerning the specific rights of indigenous peoples.

It is not a new debate. More than a decade ago, in 1989, the ILO approved Convention 169 on Indigenous and Tribal Peoples, the sole international legal instrument binding and in force designed to specifically recognize indigenous rights. It has been said that one of the intrinsic limitations of that convention is that it does not demand political rights. Nonetheless, its most notorious limitation has been its meager international acceptance: only 13 countries have ratified it (eight of them Latin American, including Mexico). One must reflect seriously about that.

Indigenous rights (all their rights: civil and political, as well as economic, social and cultural) are not, in any way, foreign to international debate. In the United Nations, for example, there has been discussion for six years about a Project for a Declaration concerning the Rights of Indigenous Peoples.

The central concept of that project, and also the most controversial one, is precisely that of the free determination of indigenous peoples. There is nothing strange about that. Free determination of indigenous peoples is a positive norm of international law, with universally accepted basis, scope and limitations. Its basis is in Articles 1.2 and 55 of the United Nations Charter; in Resolutions 1514, 1541 and 2625 of the UN General Assembly; in General Article 1 of the Fundamental Pacts of Human Rights (1966). Its scope: a collective right of peoples under colonial or foreign domination, and of the peoples of any State, to achieve independence, free association with another independent State or the acquisition of any other political condition. The norm does not establish a right limited to independence or to succession, and it has, on the contrary, limits and safeguards: national unity and territorial integrity of States conducted under the principle of equality of rights, which are also based on representativeness and legitimacy. With these bases and scope, the norm of free determination has carried out a central historic function as support for decolonization and liberation from foreign yokes for many peoples. Seventy-seven independent nations were created under that norm between 1960 and 1999. There is no doubt that this interpretation of free determination was also utilized in Article 89 of the Mexican Constitution as one of its foreign policy principles.

A vehicle for an additional emergent interpretation of the concept of free determination has been a demand of indigenous peoples upon forming themselves subject to that right. Current international debate oscillates between two poles. Until very recently, States have understood the norm of free determination of peoples exclusively as a basis for the creation, separation or independence of new States. On the other pole, indigenous have defended their existence as people with objective (language, history, culture, ethnicity, way of life and territory) and subjective (identification with collective values and aspirations) attributes, which make them subject to that right, without any discrimination whatsoever. In other words, indigenous peoples have defended their nature as subjects of the right to free determination without any adjectives.

The discussions in the United Nations have been slow and complex, and they have not created an international consensus. They have, nonetheless, already had a twofold impact. On the one hand, acceptance of the concept that free determination can mark a progressive evolution, and, specifically, that its applicability to indigenous peoples should be discussed. Some countries accept that, in addition to the traditional interpretation, applicable in a context of colonialism or foreign intervention, free determination is a right which is also applicable to indigenous peoples under two premises: as a right which is exercised "in a functional democracy in which citizens are participating in the political system and have the opportunity to have an influence on the political process which affects them". On the other hand, as a right which entails respect for territorial, political and constitutional integrity of States. Understood like this, the exercise of that right would be translated into negotiations to promote harmonious arrangements of self-government or autonomy inside States. Other countries have noted that the emerging significance of free determination applicable to groups inside nations implies that the concept will have an external dimension (applicable in the traditional sense) and another, internal, one (applicable under the above-noted premises). Still others are opposed to the application of the concept of free determination to the indigenous, simply denying them the status of peoples.

A second effect of the current discussions on the issue is that of specific international monitoring of the application of the norm of free determination of indigenous peoples, by bodies such as the Human Rights Committee, which safeguards the application of the UN's International Pact of Civil and Political Rights. That body has recently asked countries such as Canada and Norway to take measures for the application of that right.

The Cocopa proposal, presented by the Executive to Congress, is clearly within that context, and, although it is not its purpose, it will also contribute to the debate concerning a new international law in matters of indigenous rights, which will certainly be explicitly referred to during the exposition of the reasons for the proposal itself.

The concept of the free determination of indigenous peoples expressed in the proposal ("Indigenous peoples have the right to free determination, and, as an expression of this, to autonomy as part of the Mexican State…") has various characteristics. First, it reintroduces the agreements on indigenous rights and culture, or the San Andre's Accords (February 16, 1996). In three of the four documents which make up the Accords, the recognition of the free determination of indigenous peoples is agreed to within a framework of autonomy, without being to the detriment of national sovereignty. On the contrary, the Accords themselves establish that indigenous autonomy "will strengthen the country's sovereignty." Second, the proposal picks up the formulation in force in different state Constitutions (Oaxaca, Nayarit, Campeche and Chiapas). Third, the proposal establishes a broad formula for autonomy (social, political and economic organization; regulatory systems; languages; education and territorial support). Finally, and perhaps most importantly, it has established a concept in which "autonomy (appears) as the junction point between the right to the free determination of peoples and the sovereign constitutional right of the States."

Mexico is shaping up as the first country in the world to constitutionally recognize the free determination of indigenous peoples. When that happens, in addition to strengthening the rights of Mexican indigenous, historically denied and marginalized, it will grant a specific new content to foreign policy and an internal basis for assuming a position of vanguard, articulated in international discussions on this issue. But the eventual constitutional incorporation of the free determination of indigenous peoples will also strengthen international vigilance in their application. Already, in 1999, the UN Human Rights Committee recommended to Mexico that it "take adequate measures to increase (the) participation (of indigenous peoples) in the country's institutions, as well as in the exercise of the right to self-determination." With constitutional recognition, these concerns by international human rights bodies will most likely be made systematic.

The constitutional recognition of the right to free determination of indigenous peoples seems, thus, to be a contribution of singular importance in the proposal which the Congress will be discussing.

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