• International Processes and Initiatives

Indigenous World 2019: The Inter-American Human Rights System (IAHRC)

The Inter-American Human Rights System (IAHRS) is composed of two human rights bodies: The Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR). Both bodies work to promote and protect human rights in the Americas. While the IACHR is made up of seven independent members and two independent special rapporteurs, and is based in Washington, D.C., the Court is composed of seven judges and sits in San José, Costa Rica.

In 1990, in a reaffirmation of the fact that this protection is a fundamental obligation of states, the Court established a Rapporteurship on the Rights of Indigenous Peoples to devote special attention to the indigenous peoples of the Americas and strengthen, promote, and consolidate the Commission’s work in that area.

The IACHR’s work, through its various mechanisms, seeks to bring about change for indigenous communities and their members. To this end, the IACHR – and notably its Rapporteurship on the Rights of Indigenous Peoples – uses a range of instruments including exhaustive thematic studies and reports on topics related to indigenous peoples’ rights; petitions and cases, including friendly settlements; precautionary measures; thematic hearings; confidential requests for information from states; and press releases. The Commission also participates in conferences and seminars with states, academia and civil society, to raise awareness of indigenous peoples’ human rights, and has conducted training sessions and seminars with indigenous peoples to increase their understanding of the Inter-American Human Rights System (IAHRS). The Court, on the other hand, issues precautionary measures, judgments and advisory opinions.[1]

Regional thematic report on the Rights of the Indigenous and Tribal Peoples of the Pan-Amazon region.

In 2018, as part of a joint initiative with the Pan-Amazon Ecclesial Network (REPAM)[2], the Commission decided to produce a thematic report on the Rights of the Indigenous and Tribal Peoples of the Pan-Amazon region.

The report seeks to apply and expand the standards developed in the Inter-American system to the context and challenges faced by indigenous peoples in the Pan-Amazon region. With that in mind, the report will include an analysis of human rights infringements resulting from extractive industries and investment projects, and the social and environment impacts on the communities established there. The report is expected to be published and circulated in 2019.

Hearings

Over the four sessions held in 2018, there were 118 thematic hearings on indigenous peoples’ rights.

The 167th session[3] exposed the situation of indigenous women’s cultural rights in Guatemala and addressed the human rights situation of indigenous peoples in Canada. Attention was also called to alarming suicide rates among indigenous youth and the need for a national suicide information system, a national suicide prevention strategy, and programs and services for the children and families of the First Nations. The 168th session[4] addressed the human rights situation of indigenous communities affected by oil spills in Cuninico and Vista Alegre, Peru, and condemned the violation of the communities’ human right to water, among other rights, that has occurred because of oil spills from the North Peruvian Oil Pipeline and inadequate action by the state and the state-owned company Petroperú.

Also discussed was the human rights situation of indigenous peoples in the context of the Colombian Peace Agreements. Representatives of the Emberá people from Chocó, the Siona people from Putumayo and the Arhuaco people from the Sierra Nevada de Santa Marta reported an increase in violence in their territories in the post-agreement period and the implementation of mining and hydrocarbon mega-projects that failed to respect their right to free, prior and informed consent (FPIC).

The 169th session[5] addressed the rights situation of indigenous Maya Q’eqchi’ families affected by forced evictions in Guatemala. This session exposed a failure to guarantee the rights of children belonging to Colombia’s 102 indigenous groups. Attention was drawn to the vulnerable situation of most indigenous children, which entails extreme poverty, social exclusion, structural racism and the absence of effective state mechanisms to guarantee their rights. This period also saw reports of criminalization of the exercise of indigenous jurisdiction in Ecuador. There were also allegations of killings, threats and forced displacement of Afro-descendant and indigenous defenders in Colombia. Another topic addressed was the lack of indigenous land titling and demarcation in the Caribbean states of Belize, Guyana and Suriname, and for the Emberá, Wounaan, Guna, Buglé, Ngäbe, Naso and Bribri peoples in Panama. Reports were also presented of killings, disappearance and various forms of discrimination against indigenous communities and native Alaskan women in the United States.

Lastly, in the 170th session[6], the Commission was alerted to violations of the human rights of members and leaders, both male and female, of the Native Community of Santa Clara de Uchunya in the Peruvian Amazon.

Precautionary Measures

Of the 86 precautionary measures granted in 2018, eight were in relation to indigenous communities and their members. Two of these measures concern the protection of the lives and personal integrity of defenders of indigenous peoples’ human rights. In the first case, the beneficiary is a member of the Zapotec community of Juchitán, in the state of Oaxaca, Mexico. Additionally, the IACHR requested precautionary measures in favour of Y.P.G., who identifies as a Cañari Kichwa native, in Ecuador. In both cases, the Commission requested, among other matters, that the governments of Mexico and Ecuador, respectively, take the necessary steps to preserve the lives and personal integrity of the beneficiaries, and enable them to further engage in their activities as human rights defenders without being subjected to threats, harassment, or violent acts in the course of doing so. [7]

In 2018, the IACHR also granted precautionary measures aimed at protecting the lives and personal integrity of indigenous authorities and traditional leaders. In this sense, it was decided to request these measures in favour of the Siona authorities and the families living on the Siona (ZioBain) reserves known as Gonzaya (Buenavista) and Po Poyuya (Santa Cruz de Piñuña Blanco), in Colombia. Among other matters, the Commission requested that Colombia take the necessary steps to safeguard the lives and personal integrity of the Siona authorities and the families of the Gonzaya and Po Piyuya Siona reserves, and that it take culturally appropriate protective measures to enable them to live safely on their territory, without being subjected to violence, threats or harassment.

Other precautionary measures granted by the Commission in 2018 concerned forced eviction and internal displacement. The first case relates to indigenous families from the Chaab’il Ch’och’ community in Guatemala. The community is made up of families that fled internal armed conflict in various parts of Alta Verapaz, having been persecuted and dispossessed of their land. Precautionary measures were also requested in favour of evicted and displaced families from the Maya Q’eqchi’ community Nueva Semuy Chacchilla, in Guatemala. Likewise, the IACHR decided to adopt precautionary measures in favour of families from the Maya Q’eqchi’ community La Cumbre Sa’kuxhá, in Guatemala.[8]

Similarly, precautionary measures were requested in favour of Tzotzil natives reported displaced from the Puebla ejido in the city of San Cristóbal de Las Casas, Chiapas, and members of the Ku’untik Human Rights Center in Mexico. In a similar vein, precautionary measures were required in favour of Tzotzil natives of the Cruzton, Tzomolto’n, Bojolochojo’n, Cruz Cacanam, Tulantic, Bejelto’n, Pom, Chenmut and Kanalumtic communities from Chalchihuitán, and the Majompepentic community from Chenalhó, in Mexico.

In all the cases of forced displacement and eviction described, the IACHR requested, among other matters, that the governments of Guatemala and Mexico, respectively, take culturally appropriate measures to protect the lives and personal integrity of families and prevent acts of violence by third parties; ensure that community members can carry out their work as human rights defenders without being subjected to threats, harassment or acts of violence in the course thereof; and report on action taken in order to investigate the facts that gave rise to this precautionary measure, and thus prevent their recurrence.

Finally, based on an intersectional analysis of human rights, the IACHR granted a precautionary measure in favour of an indigenous girl and her family in Mexico. It is claimed that the beneficiaries have been subjected to threats, intimidation and accusations within their community for having reported the alleged rape of the girl, who is reported to suffer from health issues as a result.

Petitions and cases

Friendly settlements. In 2018, the G.B.B., C.B.B. and Chile report was approved.[9] On 15 May 2011, the IACHR received a petition filed by the Corporación Humanas Regional Human Rights and Gender Justice Center and the Observatory for Indigenous Peoples’ Rights.[10]

The petitioners alleged that between 18 and 23 July 2007, G.B.B. and her son D.E.B., then aged 3 years and 11 months, who both belonged to the Aymara indigenous community, were shepherding in the General Lagos commune. On their way home after finishing their work, the boy reportedly got lost, and subsequently G.B.B. looked for him until nightfall with no success. The next day, the report states, the victim went to report her son’s disappearance to the Carabiniers of Chile police force. However, state authorities centred their attention on prosecuting G.B.B. for the incident in the report, subjecting her to torture and cruel, inhuman and degrading treatment to extract a confession, which resulted in a 10-year prison sentence for the abandonment and subsequent death of her son. It is claimed that G.B.B.’s public defender filed an appeal to nullify the first-instance judgment. Later, the petition states, a second trial was held, resulting in G.B.B. being sentenced to 12 years’ imprisonment for her role as the perpetrator of the crime of abandonment of a child under 10 in a secluded place, resulting in the child’s death. The petitioners alleged that while G.B.B. was arbitrarily deprived of her liberty, she was prohibited from seeing her other two children, C.B.B. and R.B.B., leading to her daughter and youngest child C.B.B. being unlawfully given up for international adoption, without regard for her ethnic origin and despite both parents’ express objection.

On 18 March 2013, Chile submitted to the Commission its response on admissibility. Finally, following several working meetings, the parties signed the following Friendly Settlement Agreement:

  1. Acknowledgment of responsibility by the State of Chile;
  2. Expungement of G.B.B.’s criminal record;
  3. That a livelihood is to be provided for G.B.B.;
  4. Adequate housing for G.B.B.;
  5. Background information relating to the petition filed to the Commission is to be included in the adoption process of the girl C.B.B., along with post-adoption information about the girl, and action is to be taken to facilitate re-establishing a bond between Mrs. G.B.B. and her family;
  6. Guarantees of non-recurrence.

The IACHR has been closely monitoring the development of the friendly settlement reached in this case. In this regard, the Commission declares that items 1, 3, and 4, and subsections a), c), and d) of item 5 have been fully met. However, item 2; subsections b) and e) of item 5; and item 6 of the agreement have been partially met, and the Commission will therefore continue to monitor the implementation of the settlement.

Admissibility reports. In 2018 there were two admissibility reports on indigenous issues. The first concerns the situation of five indigenous Maya Achí communities, who claim to have inhabited a country estate (finca) since pre-Hispanic times, which historically they have managed communally. They stated that to protect their property, they bought land from the state, which they obtained titles to and registered in the name of seventeen community members as joint owners, the land having been purchased with money from all those living on the estate. They add that in the context of the internal armed conflict, community members belonging to the Civil Defense Patrols (PAC), acting in bad faith, conducted intestate succession proceedings to succeed the 17 original owners, obtaining individual title deeds to the estate. They claim that, in that context, the alleged victims have been subject to eviction, persecution, and even acts of violence including killings, assault and threats by community members who obtained the title deeds or their family members.

The government, on the other hand, submits that this matter concerns alleged violations that took place between 1981 and 1986. Consequently, it objects to the petition being filed in the future in the Inter-American Court of Human Rights as the court lacks jurisdiction to hear events occurring before 9 March 1987, and claims that it has not violated the petitioners’ rights because the conflict arose between members of indigenous communities, and no public official took part in the alleged violations.

In view of the aspects of fact and law set forth by the parties and the nature of the matter brought to its attention, the Commission considers that, if proven, the allegations regarding the reported killing, the death threats and assault experienced by community members, the absence of an investigation into the above incidents, the lack of a public defender in proceedings initiated against the joint owners and lack of legal counsel on proceedings they may have been able to institute to contest the ownership of the land, the alleged violations of due process, and the disruption of the ownership of their ancestral land, may constitute violations of Articles 4, 5, 8, 21, 24, 25 and 26 of the American Convention to the detriment of the alleged victims, all in light of Articles 1.1 and 2 of the aforesaid instrument.[11]

The second report concerns the alleged violation of rights to freedom of expression, equality before the law, and cultural identity to the detriment of the indigenous Kaqchikel Maya people from Sumpango, Sacatepéquez; the Maya Achí people from San Miguel Chicaj, Baja Verapaz; the Maya Mam people from Cajolá, Quetzaltenango; and the Maya indigenous people from Todos Santos Cuchumatán, Huehuetenango. This is the result of the lack of legal recognition of the radio stations that operate in their communities and the continuing discriminatory legal conditions that prevent them from accessing the radio spectrum and criminalize the development of their own means of communication. According to the petition, the four indigenous peoples mentioned have organized themselves to set up radio stations in their communities with the aim of spreading information among community members and promoting and protecting their native cultures and languages.

The petitioners allege that these communities have not accessed broadcasting licenses to operate these radio stations due to the constraints imposed by existing legislation. They explained that the General Telecommunications Law of Guatemala has a direct impact on the alleged victims’ ability to exercise their rights. Furthermore, the petitioners allege that the lack of recognition and the legal barriers to accessing the frequency spectrum have gone hand in hand with heavy criminalization of indigenous community radio broadcasting.

The government, on the other hand, requests that the IACHR find this petition inadmissible claiming the state has not violated any right enshrined in the American Convention.

The IACHR found this petition admissible in relation to Articles 13, 24, and 26 of the American Convention, in conjunction with Articles 1.1 and 2 of the aforesaid instrument, and Article XIII of the American Declaration of the Rights and Duties of Man.[12]

Cases before the Court. On 1 February, the IACHR submitted to the jurisdiction of the Inter-American Court of Human Rights case no. 12,094: Indigenous Communities Belonging to the Lhaka Honhat (Our Land) Association with respect to the Republic of Argentina.

The Commission requested that the Inter-American Court deduce and declare the international responsibility of the State of Argentina for the violation, to the detriment of the indigenous communities in the Lhaka Honhat Association, of rights to property, judicial guarantees and protection, and rights to access information and participate in matters that may affect them, as established in Articles 21, 8, 25, 13, and 23 of the American Convention on Human Rights, in relation to the obligations set forth in Articles 1.1 and 2 of the aforesaid instrument.

Judgments by the Inter-American Court of Human Rights

The first case is that of the Xukuru indigenous community and its members vs. Brazil.[13] This case concerns the violation of the right to collective property as a result of the over 16-year delay – from 1989 to 2005 – in the administrative process for the recognition, titling, demarcation and delimitation of their ancestral land and territories.

The Court found, among other issues, that the state is responsible for violating rights to judicial guarantees within a reasonable time and judicial protection, and the right to collective property.

The second judgment is that of the case of Coc Max and others (Xamán massacre) vs. Guatemala[14], which relates to a “massacre” carried out by members of the Armed Forces of the Republic of Guatemala on 5 October 1995, in which 11 people from the indigenous Q’eqchi’, Mam, Q’anjob’al, Ixil and K’iche peoples, who occupied the Xamán country estate (finca) after having taken refuge in Mexico, were killed – including a girl and two boys.

 The Court found, among other issues, that the state is responsible for violating rights to judicial guarantees and judicial protection, and the right to life and personal integrity.

Advisory Opinions of the Inter-American Court

There were no advisory opinions on indigenous rights in 2018.

* This article has been reduced for English publication. The full version of the article is available in Spanish, in El Mundo Indígena 2019.

Notes and references

[1] The 2018 description of the Inter-American System, drawn up in 2018, has been kept.

[2] This initiative is the first experience in implementing Program 12 of Objective 3 of the IACHR’s Strategic Plan 2017-2021, which seeks to strengthen agreements with academic research centers and promote the creation of an academic network specialized in the IAHRS that can contribute studies, research, and other joint activities to expand knowledge and generate important information for the promotion and defense of human rights in the region., 2018. and human rights situation of indigenous peoples in the context of the Colombian Peace Agreements, May 10th on.t activit

[3] IACHR, Hearings, 167th Session: Cultural rights situation of indigenous women in Guatemala, 26 February 2018; and human rights situation of indigenous peoples in Canada, 28 February, 2018. Available at: http://bit.ly/2T8HHx0

[4]  IACHR, Hearings, 168th Session: Human rights situation of indigenous communities affected by oil spills in Cuninico and Vista Alegre, Peru, 7 May 2018; and human rights situation of indigenous peoples in the context of the Colombian Peace Agreements, 10 May 2018. Available at: http://bit.ly/2T9KNRA

[5]  IACHR, Hearings, 169th Session: The rights of the indigenous Maya Q’eqchi’ families affected by forced evictions in Guatemala, 1 October 2018; Guarantees of children’s rights in the 102 indigenous groups of Colombia, 2 October 2018; Reports of criminalization of the exercise of indigenous jurisdiction in Ecuador, 3 October 2018; Reports of killings, threats and forced displacement of defenders of Afro-descendant and indigenous land rights in Colombia, 3 October 2018; Demarcation and titling of indigenous land in the Caribbean, 4 October 2018; Collective land titling and protection of indigenous Emberá, Wounaan, Guna, Buglé, Ngäbe, Naso, and Bribri peoples in Panama, Friday, 5 October 2018; Reports of killings, disappearance and various forms of discrimination against indigenous communities and native Alaskan women in the United States, 5 October 2018. Available at: http://bit.ly/2T8ME94

[6]  IACHR, Hearings, 170th Session: Situation of indigenous peoples in the Peruvian Amazon, land and the environment, 5 December 2018. Available at: http://bit.ly/2Tb5psz

[7] IACHR Resolution 67/18 (only available in Spanish), Precautionary Measure 807/18 - Yaku Pérez Guartambel, with respect to Ecuador. Available at: http://bit.ly/2TeoKcf

[8] IACHR, Resolution 43/18 (only available in Spanish), Precautionary Measure 44/18 – Families of the Maya Q’eqchi’ community “La Cumbre Sa’kuxhá”, with respect to Guatemala. Available at: http://bit.ly/2TaiD8U

[9] IACHR, Report No. 138/18, Petition 687-11. Friendly settlement G.B.B. and C.B.B. 21 November 2018. Available at: http://bit.ly/2TfYxdC

[10] The petition alleged the international responsibility of the Chilean State for the violation of Articles 1.1. (obligation to respect and guarantee rights), Article 2 (right to adopt provisions of domestic law), Article 5 (right to integrity), Article 7 (right to personal liberty), Article 8.1 (judicial guarantees), Article 17 (protection of family), Article 19 (rights of children), Article 24 (equality before the law and non-discrimination), Article 25 (judicial protection), and Article 26 (progressive development) of the American Convention on Human Rights (hereinafter the “Convention” or the “American Convention”); and for the violation of Articles 7 a) and b), 8, 9, and 26 of the Convention of Belém do Pará, to the detriment of G.B.B. and her daughter C.B.B.

[11] IACHR, Report No. 10/18. Admissibility. Indigenous Maya Achí families. Guatemala. 24 February 2018. Available at: http://bit.ly/2Tb5v3p

[12] IACHR, Report No. 51/18. Admissibility. Indigenous Kaqchikel Maya people from Sumpango and others. Guatemala. 5 May 2018. Available at: http://bit.ly/2EsZDIs

[13] Inter-American Court of Human Rights, Case of the Indigenous Xukuru community and its members vs. Brazil (only available in Spanish), Preliminary Defenses, Substance, Reparations, and Costs. Judgment dated 5 February 2018. Series C N° 346. Available at: http://bit.ly/2EqKxTQ

[14] Inter-American Court of Human Rights, Case of Coc Max and others (Xamán massacre) vs. Guatemala (only available in Spanish), Substance, Reparations, and Costs. Judgment dated 22 August 2018. Series C N° 356. Available at: http://bit.ly/2Eo0Fpb

Elsy Curihuinca Neira is a lawyer and holds a master’s degree in international human rights law, and a diploma in the recognition, strengthening and legal protection of the rights of indigenous children and adolescents. She is currently the specialist in charge of the Rapporteurship on the Rights of Indigenous Peoples of the Inter-American Commission on Human Rights.

 

 

 

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