About VLPI

Legal Framework

The goal of the Virtual Library of Indigenous Peoples, Inter-culturality and Traditional Medicine is to strengthen and broaden the flow of scientific and technical information as well as the written and oral ancestral knowledge through a network of information.

The development of the Virtual Library of Indigenous Peoples, Inter-culturality and Traditional Medicine is based in the regulatory framework of Convention No.169 of the ILO, the United Nations Declaration on the Rights of Indigenous Peoples, the Political Constitution of the Plurinational State of Bolivia. Their specific parts referenced will be presented below.

CONVENTION NO.169 OF THE ILO

Convention No.169 concerning Indigenous and Tribal Peoples in Independent Countries, having been convened at Geneva by the Governing Body of the International Labour Office, and having met in its 76th Session on 7 June 1989, is a legally binding international instrument open to ratification, which deals specifically with the rights of indigenous and tribal peoples. Today, it has been ratified by 20 countries. En Bolivia, the convention has been approved and ratified under the law of the republic number 1257 on July 11, 1991.

The Provisions of Convention No. 169 are compatible with the provisions of the United Nations Declaration on the Rights of Indigenous Peoples, and the adoption of the Declaration illustrates the broader acceptance of the principles of Convention No. 169 well beyond the number of ratifications.

The Convention stipulates that governments shall have the responsibility for developing co-ordinated and systematic action to protect the rights of indigenous and tribal peoples (Article 3) and ensure that appropriate mechanisms and means are available (Article 33). With its focus on consultation and participation, Convention No. 169 is a tool to stimulate dialogue between governments and indigenous and tribal peoples and has been used as a tool for development processes, as well as conflict prevention and resolution.

The Convention does not define who are indigenous and tribal peoples. It takes a practical approach and only provides criteria for describing the peoples it aims to protect. Self-identification is considered as a fundamental criterion for the identification of indigenous and tribal peoples, along with the criteria outlined below.

ELEMENTS OF TRIBAL PEOPLES INCLUDE:

  • Traditional life styles;
  • Culture and way of life different from the other segments of the national population, e.g. in their ways of making a living, language, customs, etc.; and
  • Own social organization and traditional customs and laws.

ELEMENTS OF INDIGENOUS PEOPLES INCLUDE:

  • Traditional life styles;
  • Culture and way of life different from the other segments of the national population, e.g. in their ways of making a living, language, customs, etc.;
  • Own social organization and political institutions; and
  • Living in historical continuity in a certain area, or before others “invaded” or came to the area.

THE BASIC PRINCIPLES OF ILO’S CONVENTION NO. 169 ARE:

NON-DISCRIMINATION

In recognition of the fact that indigenous and tribal peoples are likely to be discriminated against in many areas, the first general, fundamental principle of Convention No. 169 is non-discrimination. Article 3 of the Convention states that indigenous peoples have the right to enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination. In Article 4, the Convention also guarantees enjoyment of the general rights of citizenship without discrimination. Another principle in the Convention concerns the application of all its provisions to male and female indigenous persons without discrimination (Article 3). Article 20 provides for prevention of discrimination against indigenous workers.

SPECIAL MEASURES

In response to the vulnerable situation of indigenous and tribal peoples, Article 4 of the Convention calls for special measures to be adopted to safeguard the persons, institutions, property, labour, cultures and environment of these peoples. In addition, the Convention stipulates that these special measures should not go against the free wishes of indigenous peoples.

RECOGNITION OF THE CULTURAL AND OTHER SPECIFICITIES OF INDIGENOUS AND TRIBAL PEOPLES

Indigenous and tribal peoples’ cultures and identities form an integral part of their lives. Their ways of life, customs and traditions, institutions, customary laws, forms of land use and forms of social organization are usually different from those of the dominant population. The Convention recognizes these differences, and aims to ensure that they are protected and taken into account when any measures are being undertaken that are likely to have an impact on these peoples.

CONSULTATION AND PARTICIPATION

The spirit of consultation and participation constitutes the cornerstone of Convention No. 169 on which all its provisions are based. The Convention requires that indigenous and tribal peoples are consulted on issues that affect them. It also requires that these peoples are able to engage in free, prior and informed participation in policy and development processes that affect them.

The principles of consultation and participation in Convention No. 169 relate not only to specific development projects, but also to broader questions of governance, and the participation of indigenous and tribal peoples in public life.

In Article 6, the Convention provides a guideline as to how consultation with indigenous and tribal peoples should be conducted:

  • Consultation with indigenous peoples should be undertaken through appropriate procedures, in good faith, and through the representative institutions of these peoples;
  • The peoples involved should have the opportunity to participate freely at all levels in the formulation, implementation and evaluation of measures and programmes that affect them directly;
  • Another important component of the concept of consultation is that of representativity. If an appropriate consultation process is not developed with the indigenous and tribal institutions or organizations that are truly representative of the peoples in question, then the resulting consultations would not comply with the requirements of the Convention.

The Convention also specifies individual circumstances in which consultation with indigenous and tribal peoples is an obligation.

1Consultation should be undertaken in good faith, with the objective of achieving agreement. The parties involved should seek to establish a dialogue allowing them to find appropriate solutions in an atmosphere of mutual respect and full participation. Effective consultation is consultation in which those concerned have an opportunity to influence the decision taken. This means real and timely consultation. For example, a simple information meeting does not constitute real consultation, nor does a meeting that is conducted in a language that the indigenous peoples present do not understand.

The challenges of implementing an appropriate process of consultation with indigenous peoples have been the subject of a number of observations of the ILO’s Committee of Experts, as well as other supervisory procedures of the ILO, which the ILO has now compiled in a Digest. Adequate consultation is fundamental for achieving a constructive dialogue and for the effective resolution of the various challenges associated with the implementation of the rights of indigenous and tribal peoples.

RIGHT TO DECIDE PRIORITIES FOR DEVELOPMENT

Article 7 of Convention No. 169 states that indigenous and tribal peoples have the right to “decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control over their economic, social and cultural development”.

This has been interpreted by the ILO’s supervisory bodies as an essential consideration when consultations with indigenous peoples take place1

THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES

The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly during its 62nd session at UN Headquarters in New York City on 13 September 2007. In Bolivia, through the law of the republic no. 3760, on November 7, 2007, the Declaration was adopted.

While as a General Assembly Declaration it is not a legally binding instrument under international law, according to a UN press release, it does represent the dynamic development of international legal norms and it reflects the commitment of the UN's member states to move in certain directions; the UN describes it as setting an important standard for the treatment of indigenous peoples that will undoubtedly be a significant tool towards eliminating human rights violations against the planet's 370 million indigenous people and assisting them in combating discrimination.

The Declaration sets out the individual and collective rights of indigenous peoples, as well as their rights to land, property, necessities, territories, recourses, culture, identity, language, employment, health, education, and to freely determine political statues and economic development. It also emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations. It prohibits discrimination against indigenous peoples, and it promotes their full and effective participation in all matters that concern them and their right to remain distinct and to pursue their own visions of economic and social development.

Article 13

  1. Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.

  2. States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.

Article 14

  1. Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.

  2. Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimination.

  3. States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language.

Article 15

  1. Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information.

  2. States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society.

Article 16

  1. Indigenous peoples have the right to establish their own media in their own languages and to have access to all forms of non-indigenous media without discrimination.

  2. States shall take effective measures to ensure that State-owned media duly reflect indigenous cultural diversity. States, without prejudice to ensuring full freedom of expression, should encourage privately owned media to adequately reflect indigenous cultural diversity.

Article 24

  1. Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals. Indigenous individuals also have the right to access, without any discrimination, to all social and health services.

  2. Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right.

Article 31

  1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

  2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.2

POLITICAL CONSTITUTION OF THE STATE

The Political Constitution of the State, endorsed by the constitutional referendum of January 25, 2009 and promulgated on February 9, 2009, guarantees the full participation of indigenous peoples in the construction of the Plurinational state of Bolivia, substantially incorporating the provision of Convention 169 of the ILO ratified by Law 1257 in July 1991 and of the United Nations Declaration on the Rights of Indigenous Peoples ratified by Law 3760 on November 7, 2007.

The Political Constitution of the State emphasizes the active participation of nations and rural native indigenous peoples in the economic, social, cultural, and political life of Bolivia.

Therefore, five of the six articles of first chapter on the state´s cornerstones, rights, duties, and security, refer to: the communitarian plurinational right of the state of native indigenous nations´ and peoples’ free determination to self-government, culture, recognition of their institutions, and consolidation of their territorial areas, freedom to religion, spiritual beliefs, and worldviews, and recognition of Castilian and all of the languages of the native indigenous nations and people, which are Aymara, Araona, Baure, Bésiro, Canichana, Cavineño, Cayubaba, Chácobo, Chimán, ese Ejja, Guaraní, Guarasu’we, Guarayu, Itonama, Leco, Machajuyai-kallawaya, Machineri, Maropa, Mojeñotrinitario, Mojeño-ignaciano, Moré, Mosetén, Movima, Pacawara, Puquina, Quechua, Sirionó, Tacana, Tapiete, Toromona, Uru-chipaya, Weenhayek, Yaminawa, Yuki, Yuracaré, and Zamuco, as official languages of the state.

Following the principles, values, and goals of the state, the political constitution of the state assumes and promotes the ethical and moral principles of the plural society, Ama qhilla, Ama llulla, Ama suwa (do not be lazy, do not be a liar or a thief), suma qamaña (live well), ñandereko (live harmonious), teko kavi (have a good life), ivi maraei (have a land without evil) and qhapaj ñan (lead a noble path or life), typical of community life.

In terms of political rights, the political constitution of the state establishes the election, designation, and direct nomination of representatives of native indigenous nations and peoples according to their own rules and procedures.

The fourth chapter of the political constitution of the state addresses specifically the rights of the nations and rural native indigenous peoples establishing that nations and rural native indigenous peoples are the whole human community that shares a cultural identity, language, historic tradition, institutions, territory, and worldview whose existence predates the Spanish colonial invasion, who enjoy the following rights that the state guarantees, respects, and protects:

CHAPTER FOUR
RIGHTS OF THE NATIONS AND RURAL NATIVE INDIGENOUS PEOPLES

Article 30.I. A nation and rural native indigenous people consists of every human collective that shares a cultural identity, language, historic tradition, institutions, territory and world view, whose existence predates the Spanish colonial invasion.

II. In the framework of the unity of the State, and in accordance with this Constitution, the nations and rural native indigenous peoples enjoy the following rights:

  1. To be free.
  2. To their cultural identity, religious belief, spiritualties, practices and customs, and their own world view.
  3. That the cultural identity of each member, if he or she so desires, be inscribed together with Bolivian citizenship in his identity card, passport and other identification documents that have legal validity.
  4. To free determination and territoriality.
  5. That its institutions be part of the general structure of the State.
  6. To the collective ownership of land and territories.
  7. To the protection of their sacred places.
  8. To create and administer their own systems, means and networks of communication.
  9. That their traditional teachings and knowledge, their traditional medicine, languages, rituals, symbols and dress be valued, respected and promoted.
  10. To live in a healthy environment, with appropriate management and exploitation of the ecosystems.
  11. To collective ownership of the intellectual property in their knowledge, sciences and learning, as well as to its evaluation, use, promotion and development.
  12. To an inter-cultural, intra-cultural and multi-language education in all educational systems.
  13. To universal and free health care that respects their world view and traditional practices.
  14. To the practice of their political, juridical and economic systems in accord with their world view.
  15. To be consulted by appropriate procedures, in particular through their institutions, each time legislative or administrative measures may be foreseen to affect them. In this framework, the right to prior obligatory consultation by the State with respect to the exploitation of non-renewable natural resources in the territory they inhabit shall be respected and guaranteed, in good faith and upon agreement.
  16. To participate in the benefits of the exploitation of natural resources in their territory.
  17. To autonomous indigenous territorial management, and to the exclusive use and exploitation of renewable natural resources existing in their territory without prejudice to the legitimate rights acquired by third parties.
  18. To participate in the organs and institutions of the State.

III. The State guarantees, respects and protects the rights of the nations and the rural native indigenous peoples consecrated in this Constitution and the law.

Article 31.I. The nations and the rural native indigenous peoples that are in danger of extinction, in voluntary isolation and not in contact, shall be protected and respected with respect to their forms of individual and collective life.

II. The nations and the rural native indigenous peoples that live in isolation and out of contact enjoy the right to maintain themselves in that condition, and to the legal definition and consolidation of the territory which they occupy and inhabit.

Article 32. The Afro-Bolivian people enjoy, in everything corresponding, the economic, social, political and cultural rights that are recognized in the Constitution for the nations and the rural native indigenous peoples.

SECTION II
RIGHT TO HEALTH AND SOCIAL SECURITY

Article 42.I. It is the responsibility of the State to promote and guarantee the respect for, and the use, research and practice of traditional medicine, rescuing ancestral knowledge and practices created from the thinking and values of all the nations and the rural native indigenous peoples.

II. The promotion of traditional medicine shall include the registry of natural medicines and of their curative properties, as well as the protection of their knowledge as intellectual, historic, cultural property and as patrimony of the nations and the rural native indigenous peoples.

III. The law shall regulate the practice of traditional medicine and shall guarantee the quality of service.

SECTION III
CULTURES

Article 98.I. Cultural diversity constitutes the essential basis of the Pluri-National Communitarian State. The inter-cultural character is the means for cohesion and for harmonic and balanced existence among all the peoples and nations. The intercultural character shall exist with respect for differences and in conditions of equality.

II. The State takes strength from the existence of rural native indigenous cultures, which are custodians of knowledge, wisdom, values, spiritualties, and worldviews.

III. It shall be a fundamental responsibility of the State to preserve, develop, protect and disseminate the existing cultures of the country.

Article 100.I. The world views, myths, oral history, dances, cultural practices, knowledge and traditional technologies are patrimony of the nations and rural native indigenous peoples. This patrimony forms part of the expression and identity of the State.

II. The State shall protect this wisdom and knowledge through the registration of the intellectual property that safeguards the intangible rights of the nations and rural native indigenous peoples and of the intercultural and Afro-Bolivian communities.

Article 101. The intangible aspects of the manifestations of art and popular industries shall enjoy the special protection of the State. Likewise, the tangible and intangible aspects of places and activities, which are declared cultural patrimony of humanity, shall be protected.

Article 102. The State shall register and protect individual and collective intellectual property in the works and discoveries of authors, artists, composers, inventors and scientists, under the conditions determined by law.

SECTION IV
SCIENCE, TECHNOLOGY, AND RESEARCH

Article 103.I. The State shall guaranty the development of science and scientific, technical and technological research for the benefit of the general interest. The necessary resources shall be provided, and state science and technology systems shall be created.

II. The State shall adopt a policy of implementing strategies to incorporate the knowledge and application of new information and communication technologies.

III. In order to strengthen the productive base and to stimulate full development of society, the State, the universities, the productive and service enterprises, both public and private, and the nations and rural native indigenous peoples, shall develop and coordinate processes of research, innovation, promotion, and dissemination, and the application and transfer of science and technology, in accordance with the law.3

BIBLIOGRAFIC REFERENCES

1 Organización Internacional del Trabajo. Folleto Nº2: El convenio Num.169 de la OIT y otros programas de la OIT específicamente destinados a los pueblos indígenas y tribales. Ginebra; OIT; s.f. 1(3) p. Available at: http://www.ops.org.bo/textocompleto/ley31768.pdf

2 Asamblea General de las Naciones Unidas. Ley de la república Nº3760 de la declaración de las Naciones Unidas sobre los Derechos de los Pueblos Indígenas. La paz; ONU; 2007. 11-(23). p. Available at: http://www.ops.org.bo/textocompleto/ley31654.pdf

3 Asamblea Constituyente de Bolivia. Nueva Constitución Política del Estado. La Paz; HCN; 2008. 3(22) p. Available at:http://www.ops.org.bo/textocompleto/ley31656.pdf

UNIVERSIDAD MAYOR DE SAN ANDRES - UMSA
Av. Villazón No. 1995
Monoblock Central
Tel:(591-2)2442505 • 2440047
La Paz - Bolivia
BVS Site 5.2.11 © BIREME/OPS/OMS