The Indigenous World 2021: Argentina

Written on 18 March 2021. Posted in Argentina

Argentina comprises 23 provinces with a total population of approximately 40 million. The most recent national census (2010) gave a total of 955,032 people who self-identify as descended from or belonging to an Indigenous people. There are 35 different officially recognised Indigenous Peoples in the country. They legally hold specific constitutional rights at the federal level and in various provincial states.

In addition, ILO Convention 169 and other universal human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic and Social and Cultural Rights (ICESCR) are of constitutional force in the country. Argentina voted in favour of the UN Declaration on the Rights of Indigenous Peoples.

This article is part of the 35^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of the Indigenous community of Kawemhakan, Suriname, where they blocked their airstrip to prevent outsiders from arriving into their villages and potentially bringing COVID-19 with them. This photo was taken by the Mulokot Foundation in Kawemhakan and is the cover of The Indigenous World 2021 where this article is featured. Find The Indigenous World 2021 in full here 

Health emergency: the impact of COVID-19 on Indigenous Peoples

The year 2020 will be remembered as “the year of the pandemic”, a phenomenon that has affected all of humankind and whose impact is still difficult to measure. While the emergence of different vaccines heralds some improvement in the medium term, the truth is the consequences will remain with us for several years to come. Indigenous Peoples were not untouched by this extraordinary situation. On the contrary, their vulnerabilities meant they suffered a greater impact than other sectors due to the reality of their health status, the phenomena of racism and discrimination, and a deepening of institutional violence. All this resulted in a deterioration in their overall situation.

It is interesting and relevant to consider the time variable in this analysis – a diachronic perspective – as this enables us to reflect on a pre-pandemic time, a pandemic time and a future post-pandemic time. This perspective is closely linked to processes of visibility/invisibility which, in some cases, conceal or disguise long-standing structural problems and deficiencies and, in others, emphasise an unwavering stance on the part of Indigenous Peoples in their relationship with and defence of nature, denouncing the depredatory advance of an environment whose effects are causing the global health emergency.^[1]

The endemic and concomitant diseases that exacerbate COVID-19, such as diabetes, malaria, dengue fever and tuberculosis, are present in Indigenous communities and weaken their ability to deal with the virus. In addition, food insecurity and a lack of water^[2] only aggravate an already very worrying situation.^[3] In Argentina, the definition of “vulnerable groups” was even broadened to include Indigenous Peoples (alongside health workers and residents of “popular neighbourhoods” - a euphemism for shantytowns), demonstrating the state's admission of the worrying situation in Indigenous communities and their special health status (Ministry of Health, 2020).

Alongside this, the Emergency Committees set up across the country to establish guidelines and policies for addressing COVID-19 did not have – and nor do they have at the time of writing – any Indigenous participation or presence. At a time when it is a priority to ascertain the needs and requirements of each sector, all the more so for Indigenous communities that find themselves in differing situations (some with difficulties in accessing water, an essential element in confronting the pandemic), their absence from decision-making is inexplicable, and also a sign that they are not seen as a major player on the national political scene.

The explanation for their absence from the public debate – the fact that they were not invited to take part, beyond some national-level actions that attempted to mitigate these deficits – is clearly a reflection of the discrimination and racism that form the Indigenous reality in Argentina. An example will illustrate what I mean. A few months after the start of the pandemic, in Fontana town in Chaco (near the city of Resistencia, the provincial capital), the police entered the home of a Qom family – without a search warrant and in violation of all constitutional guarantees – took the young people present to the police station, threatened them, beat them and tortured them, all the while shouting “infected Indians”. Not only is this an example of structural and systematic violence directed at Indigenous communities but it also reflects a state system that is both colonial and racist.^[4]

The pandemic has coloured both the country’s public and private life; Indigenous Peoples are no exception and have had to adapt to very changing circumstances. The institutional violence has continued, however, and structural problems in health, education and territorial issues only got worse, with their living conditions significantly affected. While the health emergency initially led some to consider “suspending” their historical territorial disputes, it is precisely the severity of the phenomenon we have experienced in 2020 that has demonstrated that humankind is not up to the task. In other words, harassment and criminalisation have not gone away and, indeed, have intensified over the last year.

Territorial conflicts

2020 was marked, like so many other years, by territorial disputes, eviction attempts, court cases and a lack of public policies. In February 2020 (pre-pandemic), the Federal Security Council met in Tucumán province where the Minister of Security expressed her intention to transform the crime prevention and prosecution paradigm within the context of the new government’s administration. An alternative mechanism for resolving territorial conflicts with Indigenous Peoples was established as part of these changes, especially designed for the outstanding territorial conflicts with Mapuche communities.

However, tensions around Indigenous territorial rights that were not guaranteed by the state escalated over the months. On the one hand, the lack of a law on Indigenous communal ownership has left the door open to old and new evictions (its passage through parliament seems increasingly remote, particularly in a year when Congress has sat for only a short length of time and given that a bill of this nature is never a priority on the parliamentary agenda). On the other hand , the advance of landowners, extractive activities and economic interests into areas around the Indigenous territories is resulting in daily acts of violence. Prosecution through the courts does not mean that “justice will be done” by the state; on the contrary, it leads to a doubling down and endorsement of the spiralling violence that is already taking hold of their territories.

An example of the above can be seen in the Mapuche community of Buenuleo in the city of Bariloche, Río Negro province, where violent acts have been perpetrated by individuals resulting in physical violence against community members and intimidation of their children.^[5] Although it is also true that the state activated its mechanisms after these acts of violence, and representatives visited in an attempt to bring about dialogue and a response to this situation of permanent violence, the actions came too late given that the heralded attacks had already taken place. The Inter-American Commission on Human Rights granted a precautionary measure in May 2020 in favour of the Indigenous community. It called on Argentina to take all necessary and culturally-appropriate measures to protect the communities’ right to life and physical integrity.^[6]

Another case worthy of mention given that it illustrates the degree of violence that the coercive apparatus of the state can achieve is that of the Lafken Winkul Mapu community, which has recovered territory opposite Lake Mascardi, also in Río Negro province. At the very place where Rafael Nahuel was murdered in 2017, and in the midst of a health crisis, attempts are again being made by the provincial police to evict the community, once more resulting in an upsurge in violent harassment and constant threats.^[7] The year 2020 ended with the community in a state of alert, neighbours organizing marches from Bariloche in a notably racist demonstration (even though it is not their private property at stake but rather a dispute with the National Parks Administration and the Bishopric of San Isidro, which would have acquired a portion of the territory from said administration), and with attempts to ensure continuing discussions with national and provincial authorities that have thus far yielded no results.

Judgment of the Inter-American Court: case of the Lhaka Honhat Association vs. Argentina

Given the “austere” reception given to Indigenous rights in the Constitution, this judgment of the Inter-American Court of Human Rights is paradigmatic in that it is the first time the Court has held the Argentine state responsible for violations of various Indigenous rights. It moves the content of the Constitution forward and establishes a violation of Indigenous communal property as being a violation of the rights to consultation, to a healthy environment, to adequate food, to water, and to cultural identity. In short, the judgment overwhelmingly defines the scope of Indigenous territorial rights and their interdependence with other rights.

At the heart of the case is the claim being made by 132 Indigenous communities of the Wichí (Mataco), Iyjwaja (Chorote), Komlek (Toba), Niwackle (Chulupí) and Tapy'y (Tapiete) peoples who live in what is known as the Chaco Salteño (Salta province). They are laying claim to a single, undivided title to 400,000 hectares of land. The measures ordered by the Court were directed at both the Legislative and the Executive branches, in both their national and provincial dimensions.^[8] Not only must the work of delimiting and demarcating the territory now be completed, together with the relocation of the Creoles, but the state must also refrain from carrying out works or ventures on the territory that could affect its existence, value or enjoyment, without first ensuring due participation of Indigenous Peoples through their right to consultation. It also orders a study to be conducted within six months into the critical situation of lack of water and food in order to draw up an action plan to remedy this. It is further noteworthy that the Court considered that Argentina lacks adequate legislation – and therefore cannot guarantee the right to Indigenous communal property – and thus ordered the adoption, within a reasonable timeframe, of the legislative and/or other measures that may be necessary to give legal certainty to the right to Indigenous communal property, providing for specific procedures to that end.

In addition to all of the above, the most novel and innovative aspect of the ruling, in my opinion, is the content of Recital 201. This recital notes that this is the first contentious case to come before the Court in which it has been called to rule upon the rights to a healthy environment, to adequate food, to water and to participation in cultural life, on the basis of Article 26 of the Convention. It further considers the four rights as being interdependent and central to guaranteeing the lives of Indigenous Peoples.

A separate paragraph sets out the rights to adequate food and access to water (even more so in the context of a pandemic). Food means more than simply adequate and suitable nutrition for the preservation of health. In line with the international human rights treaties and the observations of the Committee on Economic, Social and Cultural Rights (CESCR), it highlights both the cultural relevance of food and the importance of its accessibility - food security - in terms of guaranteeing it for both present and future generations.

In turn, water is conceptualized as a condition for the full enjoyment of life and all human rights. When applied to Indigenous Peoples, this must be understood within the context of their habits and customs. In addition, also in accordance with the CESCR and its General Comment, it affirms that the right to water entails both freedoms and rights: freedoms associated with not being subject to interference (for example, contamination of water resources) and rights in terms of a guaranteed water supply and management.

In short, the ruling opens the door to more solid protection of Indigenous communal property and advances the protection of rights to nature by perceiving the environment as an autonomous right. In its Recital 203, the Court refers to Advisory Opinion OC-23/17 to define the right to a healthy environment. The Court thus says: “...It stated on that occasion that the right to a healthy environment ‘constitutes a universal value’ and ‘is a fundamental right for the existence of humankind’, and that ‘as an autonomous right (...) it protects the components of the (...) environment, such as forests, rivers and seas, as legal interests in themselves, even in the absence of the certainty or evidence of a risk to individuals. It is about protecting nature’ not only because of its ‘usefulness’ or ‘effects’ with respect to human beings ‘but because of its importance to the other living organisms with which we share the planet.’”

The Court's interpretive work in this case has contributed significantly to protecting the rights of Argentina’s Indigenous Peoples and will certainly have a considerable impact at the regional level.

Conclusion

The situation of Indigenous Peoples and their rights in 2020 of necessity has to be assessed in the light of the pandemic, of the actions the state has taken to address this, and the impact it has had – and continues to have – on Indigenous communities, not only in terms of their health but also in terms of the other structural situations from which they suffer, and which have been exacerbated. This is in addition to the contradictions and inconsistencies of the government's public policies which, on the one hand, are aimed at protection while, on the other, resort to actions of intimidation, criminalisation and dispossession.

The diachronic overview offered in this article is useful to the extent that it can be used as a parameter by which to evaluate the context and current situation of Indigenous Peoples. The COVID-19 virus is a global phenomenon and we can therefore see how old and new relationships between Indigenous Peoples and the state are being established, detecting gaps and also acknowledging encouraging prospects such as the strengthening of some territorial autonomies. Faced with such a tangible threat of infection and the fluctuating and ambivalent policies of the state, Indigenous communities are finally drawing on their internal strength and overcoming and resisting the repeated violations of their rights.

Silvina Ramírez. Lawyer. Doctor of Law. Postgraduate teacher at the School of Law of the University of Buenos Aires (UBA) and the University of Palermo and other universities in the country and in Latin America. Member of the Association of Lawyers in Indigenous Law (AADI). Academic Advisor to the Legal Group for Access to Land (GAJAT) of CEPPAS (Public Policy Centre for Socialism). Director of the Indigenous Law Programme of the Institute of Comparative Studies in Criminal and Social Sciences (INECIP). Contact: This email address is being protected from spambots. You need JavaScript enabled to view it..

This article is part of the 35^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of the Indigenous community of Kawemhakan, Suriname, where they blocked their airstrip to prevent outsiders from arriving into their villages and potentially bringing COVID-19 with them. This photo was taken by the Mulokot Foundation in Kawemhakan and is the cover of The Indigenous World 2021 where this article is featured. Find The Indigenous World 2021 in full here

Notes and references

^[1] Ramírez, Silvina, “Los pueblos indígenas frente a la emergencia sanitaria”. In Bohoslavsky, Juan Pablo (editor), "COVID-19 y Derechos Humanos. La pandemia de la desigualdad. Editorial Biblos, Buenos Aires, 2020.

^[2] The “Expanded Report: Socioeconomic and Cultural Effects of the COVID-19 Pandemic and the Social, Preventive and Compulsory Isolation of Indigenous Peoples in Argentina, Second Phase, June 2020” states in one of its conclusions: “...2.3 Lack of access to water (not only in quantity but also in quality) and sanitation or basic hygiene - among other things - limit the possibility of enjoying healthy conditions with which to face up to the COVID-19 pandemic. Another factor that limits this possibility is the absence or low frequency of waste collection, which causes sewers to overflow, the outskirts or peripheral areas of urban centres usually lacking in such infrastructure.”

Conicet. ihucso.conicet.gov.ar/informe-nacional/

^[3] So much so that these rights form part of a judgment of the Inter-American Court, which will be considered in more detail in another section of this article.    

^[4] See the press release of the Permanent Assembly of Human Rights (APDH) dated 2 June 2020, among many others issued to repudiate these events.

^[5] “Bariloche: golpes y herida de arma blanca en ataque a comunidad mapuche”, ANRED, 29 April 2020. https://www.anred.org/2020/04/29/bariloche-golpes-y-herido-de-arma-blanca-en-ataque-a-comunidad-mapuche/    

^[6] Resolution 23/2020 of the IACHR.

^[7] “Bariloche: represión a Lof Winkul Mapu”. ANRED, 21 May 2020. https://www.anred.org/2020/05/21/bariloche-represion-a-la-lof-winkul-mapu/

^[8] It should be recalled that Argentina is a federal state, and that the provinces retain their autonomy.