The Indigenous World 2021: The Inter-American Human Rights System (IAHRS)
The Inter-American Human Rights System (IAHRS) comprises two human rights bodies: the Inter-American Commission on Human Rights (IACHR or the Commission) and the Inter-American Court of Human Rights (IACHR Court). Both bodies work to promote and protect human rights in the Americas. The IACHR comprises seven independent members and two independent special rapporteurships, and is based in Washington, D.C., United States, while the Court comprises seven judges and is based in San José, Costa Rica.
In 1990, the IACHR created the Rapporteurship on the Rights of Indigenous Peoples with the aim of providing support for the Indigenous Peoples of the hemisphere, as well as strengthening, promoting and systematising the work the Commission itself is conducting in this area. To this end, the IACHR uses a variety of instruments, including thematic studies and reports; petitions and cases, including friendly settlements; precautionary measures; thematic hearings; confidential requests for information from states; and press releases. The Rapporteurship also participates in conferences and seminars organised by states, academic institutions and civil society. The Inter-American Court, on the other hand, issues advisory opinions and judgments, among other tasks.
The following sets out some of the main activities undertaken during 2020 by the IACHR and the IACHR Court in relation to the rights of Indigenous Peoples.
This article is part of the 35th 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
Thematic Reports
The IACHR did not publish a thematic report on the rights of Indigenous Peoples in 2020. However, the issue of the differentiated and intersectional impacts of COVID-19 on Indigenous Peoples was a particular focus. As part of its monitoring of this issue, the IACHR issued resolutions with specific recommendations to different countries of the Americas aimed at addressing the varying problems faced by Indigenous Peoples in the context of the pandemic from a human rights perspective.
On 10 April 2020, the IACHR issued Resolution No. 1/20 on Pandemic and Human Rights in the Americas today, which contains recommendations related to different vulnerable population groups, including Indigenous Peoples.[1] In addition, on 6 May 2020, it issued Press Release No. 103/20 of 6 May 2020, which highlights the need for states to take specific measures for Indigenous Peoples that are respectful of their worldview and cultural diversity.[2] In these documents, the IACHR recommends that the region’s states provide differentiated support, ensuring Indigenous Peoples’ direct participation in formulating and implementing public policies for the prevention and medical care of their people, as well as to guarantee the right to health from an approach of intercultural, gender and intergenerational solidarity, taking into account preventive care, healing practices and traditional Indigenous medicines. It was recommended that states refrain from introducing legislation or authorising natural resource exploitation projects in or around Indigenous territories during the period of the pandemic given the impossibility of conducting free, prior and informed consent processes due to the need for social distancing measures and because of the risk of transmission that such types of activity represent. It also urges states to take the utmost measures to protect the life and health of Indigenous Peoples living in isolation and initial contact, striving to respect the principle of no contact with peoples in isolation.
The Commission also held a series of webinars and virtual meetings where representatives of Indigenous leaders presented the challenges the pandemic represents and their responses and strategies for protecting their peoples in the context of the pandemic.
Public hearings
Ten hearings dealing specifically with the rights of Indigenous Peoples took place across the four sessions held in 2020.
175th Period of Sessions[3]
During this period, the IACHR held the hearing on Case No. 13.615 – the Miskitu Indigenous Community at Tasbapounie; the Community of African Descent at Monkey Point; the Rama Indigenous People; and the Black Creole Indigenous Community of Bluefields v. Nicaragua. The case concerns the alleged violation of the rights of the people of the South Atlantic Autonomous Region (RAAS) as a consequence of the state of Nicaragua’s approval of the construction project for the Nicaragua Grand Canal, allegedly without prior, free, and informed consultation. The purpose of the hearing was to hear testimony from the petitioning party and to hear oral arguments on the merits of the case. The witness claimed that the government’s consultation process did not follow the guidelines presented by the communities and had neither independent technical assistance nor the agreement of a majority of the community authorities. It was alleged that the state had usurped the communities’ territories and affected their rights. The existence of “parallel” community authorities was also denounced. For its part, the state argued that the petitioners were not the elected authorities of the communities and therefore did not consider them to be their legal representatives. It added that the consultation process had lasted approximately two years and was based on a document coordinated with members of the affected communities’ authorities.
The IACHR also held a hearing on the situation of members of the Qhara Qhara Nation and on violations of the human rights of Indigenous Peoples in Bolivia. Indigenous representatives reported on violations of their rights to their territories and collective property, a lack of respect for their traditional forms of collective organisation, and the legal action they had taken to defend their rights. Representatives of the Bolivian state expressed their commitment to addressing the demands of the Qhara Qhara Nation. Finally, the IACHR expressed its concern at this discrimination and human rights violations against Indigenous Peoples, especially the Qhara Qhara Nation and children.
176th Period of Sessions[4]
The 176th Period of Sessions marked the start of a virtual format due to the conditions created by the coronavirus pandemic (COVID-19). During this session, issues related to petitions, cases and precautionary measures were analysed, and a series of meetings were held with civil society organisations to receive information on the human rights situation in the region, especially in the context of the COVID-19 pandemic. The situation of Indigenous Peoples was also reported, such as the cases of Peru and Ecuador. The IACHR also deliberated on merits reports covering various emblematic issues, including the traditional property of peoples of African descent and the right to consultation, Indigenous Peoples’ right to self-determination, and the death penalty.
177th Period of Sessions[5]
During the 177th Period of Sessions, a hearing was held on “Allegations of a lack of protection for groups of victims of armed conflict in Colombia: Indigenous, Afro-descendant, and peasant communities and social leaders”. The challenges of implementing the Ethnic Chapter of the Peace Agreement were presented, including the lack of collective land titles, the increase in violence and illicit crops on ethnic land, the difficulties in the collective reparation processes for Indigenous and Afro-descendant peoples, and the low rates of compliance with the agreements made following the Chocó Civic Strike. For its part, the state reported that the “Peace with Legality” policy had been in force two years now, and that this sought to overcome the causes of armed conflict by promoting development in Colombia. It also reported on institutional programmes with an ethnic-territorial focus. The IACHR called on the Colombian state to step up its efforts to ensure a comprehensive implementation of the peace agreements, particularly the ethnic chapter, which is significantly delayed. It stressed the importance of making progress in ensuring the right to collective ownership of ancestral territories, continuing with collective reparation policies for ethnic peoples, and improving interinstitutional coordination between the government’s and the territories’ plans.
During the same session, a hearing was held on “Pandemic and Indigenous Peoples in the Brazilian Amazon”, in which it was stated that the COVID-19 pandemic had aggravated the occupation of Indigenous territories, as well as deforestation and death threats towards Indigenous Peoples, as a result of the lack of demarcation and protection of their lands and territories. For its part, the state reported on policies adopted in the context of the pandemic, including food distribution programmes, contingency plans, sanitary barriers and the suspension of permits to enter Indigenous territories. The Commission expressed its concern at the high number of infections and deaths among Indigenous people due to the pandemic and stressed the importance of demarcating and protecting ancestral territories and of guaranteeing intercultural healthcare.
The hearing on “Violations of the human and collective rights of Indigenous Peoples in Ecuador” addressed the impacts of the COVID-19 pandemic on Indigenous Peoples due to the lack of medical assistance and limited access to biosecurity elements. The organisations also denounced the lack of consultation and consent regarding health care protocols and pandemic prevention and mitigation policies, and the lack of a state response to the impacts of the April 2020 oil spill. The Ecuadorian state reported on social policies with an intercultural perspective and other measures for the distribution of information, care and prevention of the pandemic aimed at Indigenous Peoples. The IACHR highlighted the importance of having disaggregated statistics on the impact of the pandemic on Indigenous Peoples in order to shed light on its specific effects on vulnerable groups, as well as the need to take action to address the impact of extractive activities.
The IACHR also held a hearing on the “Human Rights of Indigenous Peoples in the Peruvian Amazon” in which the petitioning parties presented the threats, attacks and murders being suffered by Indigenous leaders who defend their territorial rights. They stated that the increase in illegal economic activities and activities linked to the extractive and agribusiness sectors was affecting the right of Indigenous Peoples to their ancestral territories and their right to self-determination. The state, for its part, reported on the adoption of a protocol to assist human rights defenders and the national action plan for companies and human rights. The IACHR highlighted the need for consultation and coordination regarding protection measures for Indigenous defenders, as well as the need to investigate and punish those responsible and provide comprehensive reparations for the victims.
A hearing was also held on the right to consultation and free, prior, and informed consent of Indigenous Peoples, with special focus on the cases of Brazil, Colombia, Mexico and Peru. The main problems and challenges identified in this regard include the lack of state recognition and protection of the ancestral territories of Indigenous, tribal and traditional peoples. Particular concern was expressed at the way in which prior consultation is implemented, noting that, in many cases, it is neither prior nor consensual. The fact that some states had drafted laws and regulations on consultation that restrict the scope of international standards in this area was also denounced. Added to this are the threats and attacks suffered by Indigenous and tribal peoples for defending their territory and self-determination. The IACHR reiterated that prior consultation is a general principle of international law and that it is not an end in itself but rather a means to protect the right to self-determination and other rights of Indigenous Peoples. It stressed that it was important not to criminalise Indigenous and tribal peoples for claiming their rights to consultation and self-determination, and that states must recognise the autonomous consultation protocols developed by these peoples.
178th Period of Sessions[6]
In its 178th virtual session, the IACHR held the hearing on Case 13.425 – Ernestina Ascencio Rosario and Others v. Mexico. The purpose of the case was to receive statements from the parties in relation to the case concerning the death of Ernestina Ascencio Rosario, a 73-year-old Nahua Indigenous woman in February 2007. The petitioner stated that the victim had been raped by members of the Army in Veracruz, which constituted an act of gender-based violence that jeopardised the collective and cultural identity of the victim’s community. They stated that it constituted an act of torture and a situation of multiple forms of discrimination due to the victim being an elderly, non-Spanish speaking, Indigenous woman living in poverty. For its part, the state indicated that it had not jeopardised the human rights of the victim as it had diligently investigated the case and corrected deficiencies in the investigations, adding that Mrs. Rosario had died of other causes related to her health situation. It also pointed out that the victim's family members had had access to the case file and were informed of the proceedings.
During the same session, a hearing was held on the situation of Indigenous Peoples in isolation and initial contact in Peru, which addressed the impacts of extractive, oil, forestry and mining activities that are jeopardising their lives and territories, all of which have been aggravated by the COVID-19 pandemic. They discussed the excessive delays in responding to requests for the creation of special reserves to protect these peoples. The state, for its part, reported on different measures to address the health situation of Indigenous Peoples, as well as the activation of early warning monitoring systems and territorial control and surveillance measures. The Commission emphasised that the situation of these peoples was a priority issue and expressed its concern over delays in recognising and protecting their territories.
In addition, the hearing was held on Case No. 13.144 – Embera Katío People of Alto Sinú v. Colombia. The case deals with the alleged responsibility of the Colombian state for violations arising from the implementation of the Urrá hydroelectric project without prior consultation, which caused the flooding of their lands and the displacement of the people, endangering their survival. The state, for its part, considered that it was not responsible since the Constitutional Court had issued adequate reparations to the victims and highlighted progress in the investigations regarding how the project had affected this people’s rights. It reported that the land is being cleaned up and that it has adopted environmental management programmes and measures for the protection of the people. The IACHR will continue its analysis of the case and will rule on the merits in the report it adopts on the matter.
Precautionary Measures
On 17 July 2020, the IACHR granted precautionary measures in favour of members of the Yanomami and Ye'kwana Indigenous Peoples of Brazil. These measures were requested due to the special situation of risk that the population of the Yanomami Indigenous Land find themselves in due to the COVID-19 pandemic, given their particular immunological vulnerability, deficiencies in the health system for their population, the illegal presence of third parties on their territory, mercury contamination and acts of violence against their leaders. The Commission requested that the Brazilian state take the necessary action to protect the rights to health, life and personal integrity of the members of these peoples, implementing culturally appropriate measures to prevent infection by COVID-19, as well as medical care that is adequate in terms of its availability, accessibility, acceptability and quality, in accordance with applicable international standards; and that such measures be agreed upon with the beneficiaries and their representatives.[7]
On 14 October 2020, the IACHR granted precautionary measures in favour of Mayan Poqomchi' Indigenous families from the communities of Washington and Dos Fuentes in Guatemala due to information received regarding the risk they face following a series of threats, intimidation and attacks in the context of an agrarian conflict over lands considered ancestral. The IACHR requested that the Guatemalan state protect the life and personal integrity of these Indigenous families by adopting culturally appropriate measures aimed at addressing, among other aspects, its members’ conditions of housing, health, food and access to water, as well as the conditions of those in a situation of displacement. It also ordered the adoption of concerted and culturally appropriate measures to avoid acts of violence by third parties and to safeguard the cultural identity of the proposed beneficiaries, as members of the Poqomchi' Mayan people.[8]
On 28 October 2020, the IACHR decided to grant precautionary measures in favour of members of the Native Community of Santa Clara de Uchunya and Mr. Miguel Guimaraes, in his capacity as President of the Federation of Native Communities of Ucayali (FENOCAU) in Peru. The IACHR was informed that the proposed beneficiaries were at risk due to threats and attacks for defending their land in the Amazonian region of Ucayali. The IACHR requested that Peru adopt the necessary measures, in a concerted manner and from a culturally appropriate perspective, to protect the life and personal integrity of the beneficiaries, preventing acts of violence by third parties. The state was also asked to report on the actions implemented to investigate the events that gave rise to the adoption of this precautionary measure.[9]
On 11 December 2020, the IACHR granted precautionary measures in favour of members of the Munduruku Indigenous people in Brazil. The petitioners alleged that members of the village were at risk due to the COVID-19 pandemic, especially given their particular vulnerability, health care failures and the presence of unauthorised third parties in their territory. The IACHR requested that the Brazilian state adopt, in concert with the beneficiaries, the necessary measures to protect the rights to health, life and integrity of the members of the Munduruku people, implementing culturally appropriate measures to prevent the dissemination of COVID-19 and providing them with adequate medical care, and that it report on the actions taken to investigate the events that led to the adoption of this precautionary measure.[10]
Petitions and cases
Friendly settlements
On 29 June 2005, the IACHR received a petition filed on behalf of the Y'akậ Marangatú Indigenous Community of the Mbya people alleging violations of the community's right to its ancestral property. It was alleged that the community had been harassed by police and judicial authorities with threats of possible eviction, and that it had been requesting the demarcation of the land claimed for many years. The parties entered into a friendly settlement agreement on 2 March 2009. In this agreement, the Paraguayan state recognised its international responsibility and committed to implement several measures aimed at acquiring or expropriating lands claimed by the community and investigating the environmental harm denounced by the community, among other measures related to economic, social, cultural and environmental rights. In September 2020, the IACHR declared that the friendly settlement agreement was at the level of partial substantial compliance.[11]
Admissibility reports
On 14 April 2020, the IACHR approved the admissibility report related to a petition on behalf of the Indigenous Tourist and Environmental Communities of El Tatio Geysers addressing Chile’s alleged international responsibility for developing and authorising activities related to the deep drilling project by the company “Geotérmica del Norte S.A.” that would affect the rights of the communities of the Atacameño peoples in the region of El Tatio Geysers. The petition argues that the absence of measures to protect and guarantee the rights of Chilean communities has resulted in their defencelessness. The IACHR admitted the petition in relation to the rights to life, personal integrity, freedom of belief and religion, property and judicial protection under the American Convention.[12]
On 2 July 2020, the admissibility report was approved regarding the petition on behalf of the Teribe people in Costa Rica, which alleges violations of the rights of this people as a result of the massive illegal occupation and the lack of adequate demarcation of their ancestral territory; the imposition of the status of Integral Development Association, which ignores the representative institutions of the Teribe; the lack of consultation over the start-up of the El Diquís dam; and the absence of effective domestic remedy for the protection of their rights. The petition was admitted in relation to the rights to legal personality, the right to collective property and political rights under the American Convention, among others.[13]
On 4 August 2020, the IACHR approved the admissibility report regarding the petition on behalf of the Wayúu people of Colombia. The petition alleged violations as a result of the omission of prior consultation of the Wayúu when approving the reform of the royalties regime related to natural resource exploitation as it directly affects Indigenous Peoples in the Guajira region. It was likewise alleged that the rights to judicial guarantees were violated due to irregularities presented in the judicial process for the claims of unconstitutionality of the acts of the reform. The IACHR admitted the petition in relation to the rights to judicial guarantees, collective property, political rights and judicial protection under the American Convention.[14]
Merits Reports
On 24 August 2020, the IACHR published the report on the admissibility and merits of the case of Lezmond C. Mitchell with regard to the United States. The case alleged human rights violations regarding Lezmond Mitchell, a Navajo Indian who was the only Native American sentenced to execution at the federal level, despite the Navajo Nation's objection to capital punishment on cultural grounds and also given that the criminal conduct in question was committed on tribal land. It was also alleged that Mr. Mitchell's due process was violated due to several irregularities and illegalities in his arrest, prosecution and conviction. The IACHR found that the state had violated the American Declaration on the Rights and Duties of Man with regard to the rights to protection from illegal or arbitrary detention, to life and protection from cruel or unusual punishment, and also included an analysis of the right to self-determination and the cultural identity of Indigenous Peoples in relation to the rights to a fair trial and due process of the law. The IACHR recommended that the United States review the trial and sentencing of Mr. Mitchell in accordance with the guarantees of a fair trial and due process set out in the American Declaration, and that it review its laws, policies and practices related to the death penalty, and respect the sovereign decision of the Navajo Nation and other Indigenous Peoples not to use the death penalty, among other measures.[15] Mr. Mitchell was executed on 26 August 2020.[16]
Judgments of the Inter-American Court
On 6 February 2020, the Inter-American Court of Human Rights issued its judgment in the case of the Indigenous Communities Members of the Lhaka Honhat Association (Nuestra Tierra) v. Argentina. The case dealt with the land claims of several communities belonging to the Wichí (Mataco), Iywaja (Chorote), Komiek (Toba), Niwackle (Chulupí) and Tapy'y (Tapiete) peoples in the Province of Salta. For several decades, the communities had been trying to obtain recognition of their lands and protection from illegal logging and cattle ranching activities by Creoles, which was affecting forest resources, biodiversity and their traditional access to water and food. Based on the American Convention on Human Rights, the Court concluded that Argentina had violated the communities' collective property rights, political rights, judicial guarantees and economic, social, cultural and environmental rights. This is the first case in which the Court considered the rights to a healthy environment, adequate food, water and cultural identity autonomously on the basis of Article 26 of the American Convention. Among the main reparation measures, the Court ordered the state to conclude the delimitation, demarcation and titling of the 132 Indigenous communities as a whole, and to complete the transfer of the Creole population outside of the Indigenous territory, in observance of their rights, including resettlement or access to adequate productive lands.[17]
Advisory Opinions of the Inter-American Court
There were no advisory opinions regarding Indigenous Peoples published on the IACHR Court's website during 2020.
Leonardo J. Alvarado, M.A., J.D., L.L.M. is a lawyer and expert in international law on the rights of Indigenous Peoples. He is currently working as a specialist lawyer in the Office of the Rapporteurship on the Rights of Indigenous Peoples of the Inter-American Commission on Human Rights.
The compilation in this document is the sole responsibility of the author and does not constitute a work carried out within the context of his role within the IACHR.
This article is part of the 35th 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] IACHR, Resolution 1/20, Pandemic and Human Rights in the Americas (10 April 2020), paras. 54-57.
[2] IACHR, Press Release 103/20, IACHR Warns of the Specific Vulnerability of Indigenous Peoples to the COVID-19 Pandemic, Calls on States to Adopt Targeted, Culturally Appropriate Measures that Respect These Peoples’ Land, 6 May 2020.
[3] Section based on IACHR Press Release 56/20, IACHR ends its 175th Period of Sessions and Annex: Summary to Public Hearings.
[4] Section based on IACHR Press Release 167/20, IACHR concludes 176th Period of Sessions, 19 July 2020.
[5] Section based on IACHR, Press Release 253/20 IACHR completes 177th session virtually and Annex: Summary to Public Hearings.
[6] Section based on IACHR, Press Release 311/20, IACHR concludes 178th Virtual Period of Sessions. 23 December 2020, and Annex: Summary to Public Hearings.
[7] IACHR, Resolution 35/2020, Precautionary Measure No. 563-20, Members of the Yanomami and Ye'kwana Indigenous Peoples, Brazil, 17 June 2020.
[8] IACHR, Resolution 67/2020, Precautionary Measure No. 306-20. Poqomchi' Mayan Indigenous Families of Washington and Dos Fuentes communities, Guatemala. 14 October 2020.
[9] IACHR, Resolution 81/20, Precautionary Measure No. 776-20, Members of the Indigenous Community of Santa Clara de Uchunya et al., Peru, 28 October 2020.
[10] IACHR, Resolution 94/2020, Precautionary Measure No.679-20. Munduruku Indigenous People, Brazil, 11 December 2020.
[11] See IACHR, Report No. 256/20, Petition 747-05, Friendly Settlement Report, the Indigenous Y'akậ Marangatú Community from the Mbya People - Paraguay. 28 September 2020.
[12] IACHR, Report No. 35-20. P-393-08. Admissibility. Indigenous Rural Tourist and Environmental Communities of El Tatio Geysers, Chile. 14 April 2020.
[13] IACHR, Report No. 167/20. Petition 448-12. Admissibility. Teribe Indigenous People. Costa Rica. 2 July 2020.
[14] IACHR, Report No. 202/20. Admissibility. Wayúu Indigenous People. Colombia. 4 August 2020.
[15] IACHR, Report No. 211/20. Case 13.570. Admissibility and merits (publication). Lezmond C. Mitchell. United States of America. 24 August 2020.
[16] IACHR, Press Release 229/20. IACHR Condemns Execution of Lezmond Mitchell, Only Native American on Federal Death Row in the United States, 24 September 2020.
[17] I/A Court H.R., Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina, Judgment of 6 February 2020. Series C No. 400.
Tags: Global governance
