Indigenous Land Rights in the Inter-American System: Substantive and Procedural Law 9004411259, 9789004411258

Table of contents :
Indigenous Land Rights in the Inter- Ameri - Mariana Monteiro de Matos.pdf
Half Title
Series Information
Title Page
Copyright Page
Dedication
Contents
Preface and Acknowledgements
Abbreviations of Institutions
Abbreviations of Legal Instruments
Tables
Table of International Legal Instruments
Table of Inter-American Legal Instruments
Table of Cases and Reports
References
Index

Citation preview

Indigenous Land Rights in the Inter-​American System

Studies in Intercultural Human Rights Editor-​in-​Chief Siegfried Wiessner St. Thomas University Board of Editors W. Michael Reisman (Yale University) Mahnoush H. Arsanjani (United Nations) Nora Demleitner (Hofstra University) Christof Heyns (University of Pretoria) Eckart Klein (University of Potsdam) Kalliopi Koufa (University of Thessaloniki) Makau Mutua (State University of New York at Buffalo) Martin Nettesheim (University of Tübingen; University of California at Berkeley) Roza Pati (St. Thomas University) Herbert Petzold (Former Registrar, European Court of Human Rights) Martin Scheinin (European University Institute, Florence)

volume 10 This series offers pathbreaking studies in the dynamic field of intercultural human rights. Its primary aim is to publish volumes which offer interdisciplinary analysis of global societal problems, review past legal responses, and develop solutions which maximize access by all to the realization of universal human aspirations. Other original studies in the field of human rights are also considered for inclusion.

The titles published in this series are listed at brill.com/​sihr

Indigenous Land Rights in the Inter-​American System Substantive and Procedural Law By

Mariana Monteiro de Matos

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Matos, Mariana Monteiro de, author. Title: Indigenous land rights in the inter-American system : substantive and procedural law / by Mariana Monteiro de Matos. Description: Leiden, The Netherlands ; Boston : Koninklijke Brill NV, [2021] | Series: Studies in intercultural human rights, 1876-9861 ; volume 10 | Includes bibliographical references and index. | Summary: “Mariana Monteiro de Matos, a brilliant young scholar, dedicates this book to the mighty Amazon, her “waterland,” and its peoples. Born and raised in northwest Brazil, she has witnessed in close proximity the alarming harm done to this lung of the Earth as well as the threats to the survival, both physical and cultural, of its natural stewards, its indigenous peoples. She has also seen the resistance rising against the razing of all cultural differences in the name of an allegedly superior modern civilization, based on overweening economic and military might. The banner-cry of this resistance was the plea to accommodate vastly different ways of life, identities, affiliations, and allegiances around the world. The author has coined the term “polyversity” to encapsulate this policy goal”– Provided by publisher. Identifiers: LCCN 2020024552 | ISBN 9789004411258 (hardback) | ISBN 9789004411272 (ebook) Subjects: LCSH: Indigenous peoples–Land tenure–America–History. | Land tenure–Law and legislation–America–History. | Indigenous peoples– Legal status, laws, etc.–America–History. Classification: LCC KDZ772 .M38 2021 | DDC 346.704/3208997–dc23 LC record available at https://lccn.loc.gov/2020024552

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. issn 1876-​9 861 isbn 978-​9 0-​0 4-​4 1125-​8 (hardback) isbn 978-​9 0-​0 4-​4 1127-​2 (e-​book) Copyright 2021 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-use and/or translations must be addressed to Koninklijke Brill NV via brill.com or copyright.com. This book is printed on acid-​free paper and produced in a sustainable manner.

For my waterland, the Amazon and its peoples

∵

Contents

Foreword xi Preface and Acknowledgements xv Abbreviations of Institutions xviii Abbreviations of Legal Instruments xix List of Tables xx

1

Introduction 1 1 Subject Matter: Polyversity and Indigenous Peoples 1 2 Research Objective and Questions 5 3 Preliminary Matters: on the Concept of Indigenous Peoples 7 4 Structure of the Book 10 Cases and Reports 12 References 12

2

General Background of the Inter-​American System 16 1 Overview: the iahrs and the adhr 16 2 Key Legal Instruments and Indigenous Land Rights 20 3 iahrs Main Organs and Their Procedures 25 Cases and Reports 31 References 32

3 First Wave: Individual Indigenous Persons as Holders of Land Rights, 2001–​2006 36 1 An Important Precedent: the Aloeboetoe Case, 1993 36 2 The Beginning of Communal Indigenous Property 40 2.1 Awas Tingni Case, 2001 42 2.2 Case Analysis 51 2.3 Preliminary Assessment 83 3 Afterawastingni.com 90 3.1 Moiwana Case, 2005 90 3.2 Yakye Axa Case, 2005 100 3.3 Sawhoyamaxa Case, 2006 104 4 Interim Conclusions: Protecting Indigenous Property through Individuals 108 Cases and Reports 112 References 116

viii Contents 4 Second Wave: Transition toward Indigenous Peoples as Holders of Land Rights, 2007–​2011 124 1 Between Individual and Collective Subjects of Rights 124 1.1 Saramaka Case, 2007 125 1.2 Case Analysis 128 1.3 Preliminary Assessment 155 2 Toward Collective Legal Subjects: Xákmok Kásek Case, 2010 158 2.1 Justifying the Collective Legal Capacity of Tribal and Indigenous Peoples? 158 2.2 Advancing the Recognition of the Collective Legal Capacity of Tribal and Indigenous Peoples: the adrip 163 3 Interim Conclusions 165 3.1 Summary of Chapter 4 and Its Relationship with Chapter 3 165 3.2 The Inter-​American Backdoor Approach 168 3.3 An International Faux Pas: the Requirement of Individualization of Groups 174 Cases and Reports 179 References 181 5 Third Wave: Indigenous Peoples as Holders of Land Rights, 2012–​2019 188 1 Recognizing Collective Rights Holders 188 1.1 Kichwa of Sarayaku Case, 2012 189 1.2 Case Analysis 203 2 Afterkichwaofsarayaku.com 232 2.1 Afro-​Descendant Communities Displaced from the Cacarica River Basin Case, 2013 232 2.2 Kuna and Emberá Case, 2014 235 2.3 Garífuna of Punta Piedra Case, 2015 241 2.4 Garífuna of Triunfo de la Cruz Case, 2015 246 2.5 Kaliña and Lokono Case, 2015 252 2.6 Xucuru Case, 2018 258 3 Interim Conclusions 262 3.1 Summary of Chapter 5 and Its Relationship with the Chapters 3–​4 263 3.2 General Effect of the Third Wave on the Inter-​American System 267 3.3 Contribution to International Human Rights Law: Procedural Corollaries 275 Cases and Reports 279 References 283

Contents

6 Conclusion 288 Cases and Reports 292 References 293 7

Summaries 294 1 Portuguese Summary: Resumo em Português 294 2 Spanish Summary: Resumen en Español 296 3 German Summary: Deutsche Zusammenfassung 299



Table of International Legal Instruments 303 Table of Inter-​American Legal Instruments 304 Table of Cases and Reports 305 References 316 Index 333

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Foreword Mariana Monteiro de Matos, a brilliant young scholar, dedicates this book to the mighty Amazon, her “waterland,” and its peoples. Born and raised in northwest Brazil, she has witnessed in close proximity the alarming harm done to this lung of the Earth as well as the threats to the survival, both physical and cultural, of its natural stewards, its indigenous peoples. She has also seen the resistance rising against the razing of all cultural differences in the name of an allegedly superior modern civilization, based on overweening economic and military might. The banner-​cry of this resistance was the plea to accommodate vastly different ways of life, identities, affiliations, and allegiances around the world. The author has coined the term “polyversity” to encapsulate this policy goal. What, exactly, however, is there to accommodate? Brazilian indigenous leader Ailton Krenak, Coordinator of the Indian Nations Union, has stated the problem poignantly: When the government took our land … they wanted to give us another place. … But the State, the government, will never understand that we do not have another place to go. The only possible place for [indigenous] people to live and to re-​establish our existence, to speak to our Gods, to speak to our nature, to weave our lives, is where our God created us. … We are not idiots to believe that there is possibility of life for us outside of where the origin of our life is. Respect our place of living, do not degrade our living conditions, respect this life. … [T]‌he only thing we have is the right to cry for our dignity and the need to live in our land. ailton krenak, World Commission on Environment and Development (wced) Public Hearing, São Paulo, Brazil (Oct. 28–​29, 1985)

Land rights are thus at the core of indigenous peoples’ pleas for survival. Their ways of life, and often their very existence, depend on their continued staying, and flourishing, on the territories they have a deeply spiritual connection with. Therefore, their struggle for laws that safeguard that life –​at all levels, domestic and international. The key actors in this struggle for essential land in the Americas have been the Inter-​American Commission and the Court of Human Rights. Not that they had not forged their own path in the world of human rights bodies before: responding to lamentable practices of military regimes, the Court had, for example, enunciated the right not to be subjected to enforced disappearance in

xii Foreword its 1988 judgment of Velásquez Rodríguez v. Honduras. Trailblazing again, they were the first human rights bodies to find a right of indigenous peoples to their land. In the 2001 seminal case of Awas Tingni v. Nicaragua, the Court presented an innovative interpretation of the originally individual right to property of Article 21 of the American Convention on Human Rights by recognizing a right of members of indigenous communities to own, and have delimited, demarcated, and titled, their traditional lands. In further decisions, they amplified this right of the individual members to a fully collectively framed right of the group. It is the desert of the author to retrace this development; she does so in painstaking, almost clinical analysis of the pertinent cases. As the author recognizes, the Court and the Commission did not develop this jurisprudence out of whole cloth. This novel interpretation of Article 21 of the American Convention on Human Rights could only be fathomed in the environment of a legal context welcoming such change. This welcoming ambience came about through the joint efforts of resurgent indigenous peoples around the globe, combining their forces since the mid-​1970s, and leading to progress in the law on many domestic and international legal fronts, culminating in the 2007 United Nations Declaration on the Rights of Indigenous Peoples. On the regional level, the Inter-​American Commission and Court of Human Rights were moved by one particular complaint –​that of the Awas Tingni community in the rainforest of Nicaragua –​to develop their jurisprudence constante on the rights of indigenous peoples to their traditional lands and resources. Nudged into this direction by ngo  s such as the Indian Law Resource Center and the National Conference of American Indians, the Commission referred to the novel academic insight of indigenous rights under customary international law –​an argument later buttressed by the International Law Association in its Resolution No. 5/​ 2012, which found, based on a comprehensive study of state practice and opinio juris by a committee of 30 global experts, that customary international law now includes indigenous peoples’ rights to their traditional lands and resources, their ways of life, their cultural heritage, and a wide range of autonomy. In her profound book on the Inter-​American system and indigenous peoples’ rights to land, Monteiro de Matos first courageously addresses the highly contested issue of the definition of indigenous and tribal peoples through a thorough dissection of the decisions of the Court. Beyond the sole criterion preferred by indigenous peoples, i.e. the subjective element of self-​identification, she finds three objective factors, including (1)  an autonomous organization with internal political institutions; (2)  socio-​cultural institutions different from the rest of society; and (3) a special relationship between the people and their land. Critically, this allows an autonomous definition of an indigenous people under international law, even if the group in question is not recognized

Foreword

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as such by the domestic law of the state in which it lives. Indigenous communities as recognized by the Inter-​American Court may also include members not living on the traditional lands. The other original contribution is the author’s identification of three distinct waves of decisions regarding the objects of ownership or possession, the rights associated with it, and the holders of the rights at issue. In the first wave of pertinent jurisprudence (2001–​2006), started by Awas Tingni, and focusing on the goal of safeguarding cultural diversity, the object of ownership or possession was collective, and the right to this communal property included material and intangible aspects as well as state obligations to guarantee the use and enjoyment of the property by the community. Rights holders, and attendant beneficiaries of reparations for violations of this right, were the individual members of the tribal or indigenous communities. The second wave of the jurisprudence (2007–​2011), highlighted by the 2008 case of Saramaka v. Suriname, continued the original findings, but included in the concept of communal property natural resources within tribal or indigenous lands that were essential for the group’s subsistence; a community designated as a tribe (the Saramaka) was equated with indigenous peoples in terms of its legal status. Restrictions of their rights had to comply with state obligations such as the duty to consult them, if projects affected their traditional lands. Recognizing the need to include tribes or indigenous peoples as holders of the rights, the Commission and the Court, however, both stopped short of taking this step as they felt bound by the restriction of their jurisdiction ratione personae to individual human beings. The third and final wave started in 2012 with the decision of Sarayaku v. Ecuador. It continued the jurisprudence on the material, spiritual and other intangible aspects of communal property as developed before, and it amplified on the idea of property as one that included only, in the terms of Roman law, the right to use and enjoy, but not to alienate or otherwise dispose of it, e.g., by renting, selling or destroying it (uti and frui, but not fui). Finally, individual members as well as the tribes and indigenous peoples were recognized as holders of the rights and as beneficiaries of pertinent reparations. The relevant groups were thus included in the Commission’s and Court’s jurisdiction. The author also deals, in great detail, with the related issues of standing, the victim requirement, and other issues of admissibility, showing a penchant for, and finesse with, the seemingly technical, but highly important, issues of how to access the Inter-​American Human Rights System in pursuit of justice and an order of human dignity. May the reader thoroughly enjoy this work at the forefront of international law and its mastery of traditional techniques of legal interpretation. May

xiv Foreword its deep affection and respect for the waterland and the peoples inhabiting it also translate into a reality safeguarding the habitat of this planet and ensuring the flourishing of indigenous peoples as shining rightful parts of the global ­tapestry of cultures. Way to go! Siegfried Wiessner

Preface and Acknowledgements This book is the tangible outcome of my journey around the world as a young scholar of international law. My journey started many years ago in my dear waterland, the Amazon, to which this book is dedicated. It culminated in 2018 in a magna cum laude doctorate awarded by the Faculty of Law of the University of Göttingen in Germany. My dissertation had to undergo a short revision before turning into this book, which I am thrilled to share with you. Thank you, unknown reader, for reading it. The Amazon was the first phase in my research journey. I  was born and raised in the Brazilian Amazon. My family has been living for generations in different parts of the Amazonian region, both in the countryside and in the capital –​ from Belém to Tapajós to Marajó. The Amazon and its multiple regions constitute a diverse environment, both in terms of nature as well as culture. Having grown up there, I have always been fascinated about the unique relationships forged by plural societies in their everyday interaction with the natural world. This relationship has had a profound influence on my intellectual development. For instance, my first monograph as a law student analyzed the nature v. culture dichotomy in South American Constitutions  –​namely Brazil, Bolivia and Ecuador. Similarly, the subject of this book –​i.e, indigenous land rights in the Inter-​American system –​touches upon the topic of the intercultural dialogue in the lived world of human and natural creatures. I would certainly not have developed the curiosity and passion to write about this topic if I  had not lived in the Amazon. I  am profoundly indebted to the universe for inspiring me to write this book. I cannot possible give due credit to all the people who have in one way or another contributed to the completion of this project. I can only say that you know who you are and you will always remain in my heart. I would like to extend a special gratitude to my extended family in Brazil who have followed me throughout my research journey. Tudo vale a pena quando a alma não é pequena. Germany was essential for conceiving the theoretical framework that informs this book. My longstanding intellectual interest in plural societies has flourished immensely since my arrival in Germany. The strong presence of the Rechtsstaatlichkeit in an environment so densely populated by human beings with multiple backgrounds was striking to me. The European setting enabled me to expand my horizon on cultural and religious diversity and to visualize the role of law from a different perspective. To a certain degree, my life in Europe challenged my ideas about the law. It would have been impossible to write this book without the legal training that I thus far have received in Germany.

xvi 

Preface and Acknowledgements

This is why I  feel deeply grateful to all the institutions that have supported my research in Europe. I would like to thank Dr. h.c. Berthold Gees and the Konrad-​Adenauer-​Stiftung for inviting me to conduct research in Germany and providing the financial support. I want also to express my gratitude to the United Nations Climate Change Secretariat and its Legal Affairs Department in Bonn (Germany) for giving me the opportunity to work for the United Nations. Moreover, I would like to specially thank my former supervisor, Professor Peter-​ Tobias Stoll, and the staff of the Institute of International and European Law of the University of Göttingen for their dedicated assistance to my research project. It was through the various activities of this institute that my study gained further clarity and direction. I thank Mr. Andreas Nöthel and the library staff for making me feel at home during the long hours I spent buried under my books. Also, a special Dankeschön to Ms. Ulrike Hennemuth, secretary at the Faculty of Law of the University of Göttingen, for helping me with the German university bureaucracy. Without the extraordinary support I received whilst at the University of Göttingen, both from my friends and peers, I would not have collected so many lovely memories from my time there –​a kind thanks to all of you. My 2017 research stay at the Washington College of Law of the American University also gave me a range of insights, not to mention an American twist, to this book. As a visiting scholar, I  could experience the real and practical challenges of the Inter-​American human rights system. One of the most important consequences of this experience was the incorporation in this book of the analysis of procedural law associated with indigenous land rights. Such analysis was the missing ingredient in my research and it is reflected in the book’s subtitle. I am very grateful to the legal practitioners, scholars and professors that gave me their valuable time and advice during my stay in the US: Professors Ezra Rosser and Claudia Martin from the American University, Professor Thomas Antkowiak from the Seattle University, the Inter-​American Commission on Human Rights and its Rapporteurship on the Rights of Indigenous Peoples, Mr. Armstrong Wiggins, director of the Indian Law Resource Center, and Ms. Viviana Krsticevic, executive director of the Center for Justice and International Law (cejil). Australia was the last leg of my research journey. I held a presentation on some of the preliminary findings of this book at the Biannual Conference of the International Law Association in Sydney. My presentation was followed by discussions with legal scholars and practitioners that gave a special touch to the arguments advanced in this book. I am indebted to the International Law Association and the Universitätsbund Göttingen for supporting my participation in the conference. Also, I would like to thank Professor Lucas Lixinski from

Preface and Acknowledgements

xvii

the University of New South Wales for a coffee time enhanced by wonderful pieces of advice. My post-​PhD life has brought me again to Germany where I had the privilege to finish the process of editing this book while working at the Law & Anthropology Department of the Max Planck Institute for Social Anthropology. It is here that I am devoting myself to exploring the new challenges of European plural societies in relation to the global world. My academic journey has not yet ended, but this book has. During the editing process of this book, I had the fortune of once again being exposed to incredibly supportive individuals. I would like to kindly thank Lindy Melman and the Brill/​Martinus Nijhoff Publishing House for their support. In addition, I would like to specially thank my supervisor, Professor Marie-​Claire Foblets, director of the Law & Anthropology Department, her staff, guests, and associate scholars for their generous support of my career. The extraordinary academic life in Halle (Saale) has given a new direction to my scholarship that is more directly focused on international law and anthropology. A special thanks to Professor Jean Leclair from the University of Montreal for his kind support during his last research stay that helped this book in various ways. I would like to express my gratitude to my friends and peers who gave me language assistance with this book –​Ref. iur. Katrin Bensler, Dr. Rodrigo Céspedes, M.Sc. Herbert Tadeu Pereira de Matos, and Dr. phil. Sajjad Safaei. Finally, I  am deeply grateful to Professor Siegfried Wiessner from the St. Thomas University, editor-​in-​chief of the Brill Nijhoff Series on Intercultural Human Rights. His role went beyond the thoughtful editing of my manuscript. It was through our long joint working sessions that this book has flourished. Your lessons –​the Standbein and the Spielbein –​will remain unforgettable to me. I cannot begin to thank you enough for all of the time and support you eagerly offered. Thank you very much for believing so firmly in my project and for your insights and guidance. Needless to say that the errors or shortcomings of this book, in whatever shape, size or form, are my own, and no one else’s. Mariana Monteiro de Matos Halle an der Saale, Germany February 27, 2020

Abbreviations of Institutions achpr ACtHPR echr ECtHR hrc icj ILA ilc iachr IACtHR iahrs oas PCIJ UN uncerd unesco unga

African Commission on Human and Peoples’ Rights African Court on Human and Peoples’ Rights European Commission of Human Rights European Court of Human Rights United Nations Human Rights Committee International Court of Justice International Law Association International Law Commission Inter-​American Commission of Human Rights Inter-​American Court of Human Rights Inter-​American Human Rights System Organization of American States Permanent Court of International Justice United Nations United Nations Committee on the Elimination of Racial Discrimination United Nations Educational, Scientific and Cultural Organization United Nations General Assembly

Abbreviations of Legal Instruments AChHPR achr adhr adrip cbd cerd ECoHR iccpr icescr icrc udhr unclos undrip vclt

African Charter on Human and Peoples’ Rights American Convention on Human Rights American Declaration of the Rights and Duties of Man American Declaration on the Rights of Indigenous Peoples Convention on Biological Diversity Convention on the Elimination of All Forms of Racial Discrimination European Convention for the Protection of Human Rights and ­Fundamental Freedoms International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Convention on the Rights of the Child Universal Declaration of Human Rights United Nations Convention on the Law of the Sea United Nations Declaration on the Rights of Indigenous Peoples Vienna Convention on the Law of the Treaties

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Tables 1

Development of the concept of legal capacity in the iahrs 292

chapter 1

Introduction 1

Subject Matter: Polyversity and Indigenous Peoples

The accommodation of polyversity is a crucial challenge faced by contemporary societies.1 This challenge reflects on the evolving tensions between the different ethnic, religious, cultural, and social groups who share a common living territory. The case of indigenous peoples is an illustrative case in point. The concept of “indigenous peoples” refers to collective entities that have unique lifestyles different from the rest of the society. An essential feature of these lifestyles refers to the use of extensive land and natural resources by indigenous peoples. This constitutes the very axiom of indigenous life –​the special connection between indigenous territories and their cultural identity. This connection often emanates from indigenous religions, worldviews, or cosmologies.2 Notably, the etymology of the term “indigenous” comes from the Latin indigena, which derives from the contraction of both indi, indu (“in” preposition) and gen-​ (in passive “to be born”), together with ous (suffix). Literally, “indigenous” means “in-​born” person.3 In colloquial language, it means someone (or something) belonging naturally to a region.4 As Wiessner puts it, “being ‘indigenous’ means to live within one’s roots.”5 1 The word “polyversity” refers to the many different types of identities, affiliations, and allegiances existing in the present world –​religious, linguistic, ethnical etc. It aims to be more comprehensive than the concepts of “diversity” or “culture” that are highly controversial in socio-​legal scholarship. This all-​encompassing working concept was developed by the author during the writing of this book inspired by the discussions at the Department of Law & Anthropology of the Max Planck Institute for Social Anthropology (Halle an der Saale). 2 Philippe Descola, In the society of nature: A Native Ecology in Amazonia (Cambridge studies in social and cultural anthropology vol 93, Digital printing, Cambridge University Press 2000); Eduardo Viveiros de Castro, A Inconstancia da Alma Selvagem (Cosac Naify 2011). 3 Oxford University Press, ‘indigenous, adj.’. 4 Similarly see Jérémie Gilbert, Indigenous peoples’ land rights under international law: From victims to actors (Transnational Publishers 2006) XV; Patrick Thornberry, Indigenous peoples and human rights (Melland Schill studies in international law, Manchester University Press 2002) 38. 5 Siegfried Wiessner, ‘The United Nations Declaration on the Rights of Indigenous Peoples’ in Aristotle Constantinides and Nikos Zaikos (eds), The Diversity of International Law: Essays in Honour of Professor Kalliopi K. Koufa (Martinus Nijhoff Publishers 2009) 357.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004411272_002

2 Chapter 1 The plight of indigenous peoples has acquired in the last two decades burning topicality. Indigenous peoples represent 5% of the global population and account for about 15% of the extreme poor.6 The main reason behind this precarious situation lies in the structural discrimination against indigenous peoples. In other words, present state structures do not treat the different groups of the society in an equal manner. They prevent some vulnerable groups such as indigenous peoples from achieving their fundamental rights and gaining the benefits of full citizenship. Indirectly and continuously, states have been discriminating against indigenous peoples. Such discrimination underscores the sometimes still present attachment of modern states and their institutions to their colonial past filled with genocides and racist ideologies applied to the detriment of native populations. Structural discrimination against indigenous peoples contradicts the foundational normative basis of modern states –​equality before the state. To accomplish the rule of law, it is crucial that states tackle indigenous issues. Indeed, from the Guarani-​Kaiowá in Brazil to the Sami in Finland, from the Ainu in Japan to the Ogiek in Kenya, indigenous peoples have been organizing themselves across national boundaries and calling for substantive recognition. In response, governments have undertaken different measures that have ultimately modified their legal systems. Several states have enacted recent laws entitling indigenous peoples to a range of special rights. The importance of these rights is evident considering that in some cases, e.g. in Bolivia and Ecuador, they have constitutional status. On the international level, indigenous issues have been playing an unprecedented role. International financial institutions such as the World Bank and the Global Environmental Facility have elaborated their policies with consideration of indigenous peoples’ needs.7 The United Nations has been demonstrating its engagement with indigenous matters through the creation of various institutions, such as the Working Group on Indigenous Populations, the Expert Mechanism on the Rights of Indigenous Peoples, and the Inter-​Agency Support Group on Indigenous Issues. Additionally, in 2007 the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (undrip), which is the first legal document with a universal character to recognize specific rights for indigenous peoples. The United Nations proclaimed 2019 as the international year of indigenous languages. 6 World Bank, ‘Indigenous Peoples’ accessed 19 March 2019. 7 ibid; Global Environmental Facility, ‘Indigenous Peoples’ accessed 4 September 2019.

Introduction

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These domestic and international developments concerning indigenous issues have been generating original dilemmas in legal and political theory. They relate to the conceptualization of human rights and its inherent capacity to offer a meaningful response to the claims of culturally diverse groups. Cultural relativism, legal pluralism, multinormativity, and inter-​legality have been keywords in this debate. Also of great significance are the questions of whether the rights of indigenous peoples belong to the realm of human rights, and if they do not, whether they are compatible with the concept of human dignity. The reason behind these controversies lies in the purported opposition between individualistically framed human rights and group-​based rights of indigenous peoples. Such foundational controversies between human rights and the rights of indigenous peoples have been affecting legal practice. International judicial and quasi-​judicial organs have been issuing revolutionary decisions, which have generated a substantial jurisprudence on these issues. The pertinent jurisprudence exposes the complex tension between individual and collective aspects of human rights. It entails hermeneutical breakthroughs and contradictions that have been not entirely examined in legal scholarship. This book engages with these issues. The present study addresses this jurisprudence on the rights of indigenous peoples through the lens of the Inter-​American system. This system comprises two human rights organs –​the Commission and the Court, which have a complementary relationship. These organs have the mandate of monitoring states’ compliance with human rights in the Americas. By doing so, the Inter-​ American bodies have been assessing the situation of indigenous peoples on the ground. The critical problem of indigenous peoples relates to conflicts over lands and natural resources therein. Rights over lands represent the burning conflict between states and indigenous peoples. On the one hand, such rights are essential for the very survival of indigenous peoples.8 On the other hand, many of these peoples have been historically deprived of their original territories. Also, in several cases, indigenous peoples still enjoy the possession of their original lands while states do not effectively recognize their rights to them. As a result, indigenous peoples 8 On the importance of land rights for tribal and indigenous peoples see: José R M Cobo, ‘Study of the Problem of Discrimination Against Indigenous Populations: Final Report (last part)’ (30 September 1983). accessed 23 October 2018; Erika I Daes, ‘Indigenous Peoples and Their Relationship to Land’ (Final Working Paper Prepared by the Special Rapporteur, 11 June 2001) UN Doc. E/​CN.4/​Sub.2/​2001/​21.

4 Chapter 1 have been addressing courts and legislatures to secure their land tenure and therefore their continued, sustained existence. The focus of this book lies on land rights in the jurisprudence of the Inter-​ American system. The basic standards of the Inter-​American Human Rights System (iahrs) are to be found in the American Convention on Human Rights (IACHR or American Convention). These standards do not contain de lege lata any specific provisions on indigenous land rights. To overcome this gap and effectively address indigenous peoples’ complaints, the Inter-​American human rights organs have focused on the interpretation of the right to property –​Article 21 of the achr. This provision does not refer to collective concepts of property ownership or use. Due to that, the Inter-​American organs had to resolve indigenous collective land claims by broadly interpreting the originally individualistically conceived right to property. As a consequence, the Inter-​ American organs have progressively developed a cutting-​edge interpretation of property rights. Such interpretation has produced a substantial case law. This book examines this case law in-​depth. In doing so, it also grasps the normative significance of the concept of indigenous property that raises both individual and group-​oriented aspects.9 These aspects concern substantive and procedural rights. The iahrs case law on property belonging to indigenous peoples is the most extensive in international human rights law.10 Its uniqueness relies on advancing the concept of “communal property.” This concept is unique and it does not exist in the European system of human rights that some scholars consider as having by far the most developed case law concerning property.11 Such consideration is, however, inconsistent. Rather, from a more comprehensive perspective including individual and collective property, the jurisprudence of the European system of human rights is restricted. The European case law does 9

10

11

Peter-​Tobias Stoll and Anja von Hahn, ‘Indigenous Peoples, Indigenous Knowledge and Indigenos Resources in International Law’ in Silke v Lewinski (ed), Indigenous heritage and intellectual property:  Genetic resources, traditional knowledge, and folklore (2nd ed. Kluwer Law International 2008) 18. Jérémie Gilbert, ‘Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the African Commission on Human and Peoples’ Rights’ (2011) 60 International and Comparative Law Quarterly 245; Rainer Grote, ‘On the Fringes of Europe: Europe’s Largely Forgotten Indigenous Peoples’ (2006–​2007) 31(2) American Indian Law Review 425; Timo Koivurova, ‘Jurisprudence of the European Court of Human Rights Regarding Indigenous Peoples: Retrospect and Prospects’ (2011) 18 International Journal on Minority and Group Rights 1. Ursula Kriebaum and August Reinisch, ‘International Protection of the Right to Property’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018) para 33.

Introduction

5

not include indigenous land rights as property rights, despite the complaints filed by indigenous peoples before the ECtHR. This book offers to the reader an innovative assessment on indigenous land rights through the analysis of the corollary procedural law. Traditionally, legal scholarship on the rights of indigenous peoples has engaged with substantive rights associated with the use and enjoyment of indigenous lands. An example are hunting and fishing rights. In civil law terms, these rights are associated with the jus utendi, jus fruendi, and jus disponendi or uti, frui, fui.12 Besides grasping these rights, this book clarifies the related procedural aspects in the iahrs complaint procedure. Despite their tremendous relevance, procedural aspects have been marginalized in legal scholarship.13 They touch upon the legal representation of indigenous peoples, their participation in the proceedings before the IACtHR, and the evidence presented to substantiate their land claims. As a final result, this book presents the procedural corollaries that are attached to the culturally grounded land rights of indigenous peoples. 2

Research Objective and Questions

The main objective of this analysis is to grasp the normative content of the right to property as applied to indigenous lands in iahrs case law. Such objective reflects on the general question of how to conceptualize individual and collective aspects of the right to property pursuant to Article 21 of the American Convention on Human Rights. This question raises related subquestions, which this research equally explores. This book answers three specific research inquiries. Article 21 of the achr sets down that “everyone has the right to use and enjoyment of his property.” The IACtHR has explained that property refers to any material object subject to appropriation or any right that may be part of a person’s assets.14 Based on this definition, this analysis divides property into three doctrinal categories: (1) the legal rule (Rechtsnorm), (2) the legal object (Rechtsobjekt), and (3) the legal capacity of the rights holders (Rechtsträgerschaft). This book argues that

12

Land Rights (2012) 27. See also African Commission on Human and Peoples’ Rights v. Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights) para 124. 13 On the importance of procedural law in indigenous land claims see for example: Delgamuukw v. British Columbia [1997] 23799, [1997] (Supreme Court of Canada) para 146–​159. 14 Ivcher-​Bronstein v. Peru [2001] Series C No. 74, [2001] 1 (Inter-​American Court of Human Rights) para 122.

6 Chapter 1 the legal content of these doctrinal categories has been evolving in the Inter-​ American case law. To assess this jurisprudential evolution, this book engages with the following research subquestions: (1) Which are the rights associated with collective property or possession? (2) What kind of goods may be the object of ownership or possession? (3) Who are the rights holders of Article 21 of the achr, to what extent they may claim their property rights, and receive compensation for recognized violations? Importantly, the first two questions above deal with the substantive or conceptual issues surrounding the right to property (materielles Recht). Conversely, the last question concerns mostly the procedural aspects (prozedurales Recht) of the right to property. The first question addresses the different types of rights included in Article 21 of the achr. It is essential to keep in mind that property rights are composed of different rights.15 Among other rights, property rights may include, in the civil law system, possession, land use, and land-​limited usufruct. Accordingly, this book differentiates between the property rights related to the use, enjoyment, and disposal or transfer of indigenous peoples’ lands. The second question relates to the goods falling within the scope of Article 21 of the achr. Property may encompass not only tangible but also intangible goods. In other words, property goods may include pecuniary goods such as shares of stock, intellectual property rights, social security benefits, and spiritual values. Similar to the first research sub-​question, this second one connects with substantive aspects of law. The third question engages with the legal capacity attached to the claims of property. This research proposes as working definition that legal capacity is the capacity of a person: (1) to be victim of violation of rights set down in the achr, (2) to claim these rights through the iahrs complaint procedure, and (3) to receive compensation in this respect. Hence, the concept of legal capacity includes three different subcategories or sub-​capacities. Concisely, this definition connects with the questions of whether indigenous peoples are holders of rights, who speaks for them before the court, and who gets the benefits resulting from recognized violations. The concept of legal capacity reflects the uniqueness of the iahrs. In contrast to the European and the African human rights systems, the iahrs distinguishes between petitioners, victims, and beneficiaries of reparations. For 15

For references in the common law system see John W Bruce, ‘Review of tenure terminology’, Tenure Brief 1; Renée Giovarelli and Tim Hanstad, Land Ownership (Roy Prosterman and Tim Hanstad eds. World Bank Technical Paper, The World Bank 1999)  16; Jesse Dukeminier and others, Property (Aspen casebook series, Eighth edition, Wolters Kluwer Law & Business 2014) 104.

Introduction

7

instance, in some cases concerning indigenous peoples, non-​governmental organizations have filed a case before the iachr. The Court then recognized the members of the community as victims while designating the entire community as the beneficiary of reparations. Put succinctly, the petitioner who submits the petition to the iachr does not need to be the victim of the alleged violations. Even in cases where the petitioner is the victim, he or she might not be the only beneficiary of reparations. It is important to observe that this concept of legal capacity distinguishes itself from the categories of “legal subjectivity” and “legal personality.” These last concepts have no formal definition in international law or a consensus among legal scholars about their meaning.16 Ipsen suggests even that they are synonymous.17 Regardless of that, such scholarly debate on legal subjectivity and legal personality ignores the issue of reparations. This issue constitutes a central point in the iahrs jurisprudence. This is why this research does not use the concepts of “legal subjects” and “legal persons.” Using them would preclude an adequate analysis of the iahrs jurisprudence. Thus, despite being unusual, using the working definition of legal capacity as described above is more appropriate for the purposes of this research. 3

Preliminary Matters: on the Concept of Indigenous Peoples

The concept of indigenous peoples does not have a binding definition, neither in international human rights law nor in the iahrs. Article 1(2) of the adrip mentions only that self-​identification is the fundamental criterion for determining indigenous peoples, but it does not stipulate the other criteria needed. The only binding definition of indigenous peoples is comprised in Article 1 of the ilo Convention 169, which is applicable only to states that have ratified it. Even though many South American countries have ratified the ilo Convention 169, not all states parties to the achr have ratified the ilo Convention 169.18 16

17 18

Cf. James Crawford and Ian Brownlie, Brownlie’s Principles of Public International Law (8th ed. impr.: 5, Oxford University Press 2012) 115; Matthias Herdegen, Völkerrecht (Grundrisse des Rechts, 13. überarb. und erw. Auflage, Beck 2014) 68; Emmanuelle Jouannet, A short introduction to international law (Christopher Sutcliffe tr, Cambridge University Press 2013)  36. For a comprehensive overview on this topic see:  Roland Portmann, ‘Legal Personality in International Law’ (Doctoral Thesis, University of St. Gallen 2009). Knut Ipsen, Völkerrecht (5. völlig neu bearbeitete Auflage, C.H. Beck 2004) 55. As of April 2019, the following states have ratified the achr and not the ilo Convention 169:  Barbados, Dominican Republic, El Salvador, Grenada, Haiti, Jamaica, Panama, Suriname, Trinidad and Tobago, and Uruguay. For more information see: International

8 Chapter 1 There is a controversial debate on whether there is a need for defining indigenous peoples and what this definition should be.19 This was a particularly problematic issue during the drafting process of the undrip.20 The undrip is the only legal document of a universal character recognizing the rights of

19

20

Labour Organization, ‘Ratifications of C169’ (2019) accessed 29 March 2019; Organization of the American States, ‘American Convention on Human Rights  –​ Signatories and Ratifications’ (2019) accessed 6 August 2019. For an overview on the topic see: Russel L Barsh, ‘Indigenous Peoples’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2007) 833–​836; Benedict Kingsbury, ‘Indigenous Peoples’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018)  paras 3–​7; Nicola Wenzel, Das Spannungsverhältnis zwischen Gruppenschutz und Individualschutz im Völkerrecht (Univ. Diss. Heidelberg, 2006. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht vol 191, Max-​Planck-​Institut für ausländisches öffentliches Recht und Völkerrecht Heidelberg 2008)  11–​14. For a more substantial discussion see among others: Kerstin Asmuss, Ansprüche indigener Völker auf Rückführung rechtswidrig ausgeführten Kulturgutes: Eine Untersuchung für Ansprüche aus Art. 5 UNIDROIT-​Konvention 1995 und aus allgemeinem Völkerrecht (Veröffentlichungen aus dem Institut für Internationale Angelegenheiten der Universität Hamburg vol 36, Nomos 2011) 35–​48; Katja Göcke, Indigene Landrechte im internationalen Vergleich: Eine rechtsvergleichende Studie der Anerkennung indigener Landrechte in Kanada, den Vereinigten Staaten von Amerika, Neuseeland, Australien, Russland und Dänemark/​ Grönland  =  Indigenous land rights in international comparison:  a comparative study on the recognition of indigenous land rights in Canada, the United States of America, New Zealand, Australia, Russia and Denmark/​Greenland (Beiträge zum ausländischen öffentlichen Recht und Völkerrecht vol 253, Springer 2016) 9–​15; Anja von Hahn, Traditionelles Wissen indigener und lokaler Gemeinschaften zwischen geistigen Eigentumsrechten und der “public domain”: Traditional knowledge of indigenous and local communities between intellectual property rights and the public domain (Beiträge zum ausländischen öffentlichen Recht und Völkerrecht vol 170, Springer 2004)  21–​31; Benedict Kingsbury, ‘ “Indigenous Peoples” in International Law:  A Constructivist Approach to the Asian Controversy’ (1998) 92 American Journal of International Law 414; Philipp Socha, Definitionen und Anerkennung substaatlicher Gruppen im Völkerrecht:  Eine Untersuchung der rechtlichen Anwendung völkerrechtlicher Konstruktionen substaatlicher kollektiver Identitäten und aktueller Entwicklungen im Intergovernmental Committee der WIPO (Göttinger Studien zu Cultural Property Band 12, Universitätsverlag Göttingen 2017) 94–​101; Siegfried Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harvard Human Rights Law Journal 57 110–​115. For a detailed overview of the issue regarding the definition in the drafting process of the undrip, see Joshua Castellino and Cathal Doyle, ‘Who are ‘Indigenous Peoples’? An Examination of Concepts Concerning Group Membership in the UNDRIP’ in Jessie Hohmann and Marc Weller (eds), The UN Declaration on the Rights of Indigenous Peoples: A Commentary (Oxford commentaries on international law, 1st. ed. Oxford University Press 2018) 26–​30.

Introduction

9

indigenous peoples. It does not include an express definition of indigenous peoples. Taking a pragmatic approach, this research does not use an initial working definition of indigenous peoples. It recognizes that Inter-​American human rights bodies have progressively defined these peoples in developing their jurisprudence. This book develops the elements of the definition of indigenous peoples through the analysis of the pertinent iahrs jurisprudence. In its final conclusions, it provides the definition of indigenous peoples in the iahrs as applied under the complaint mechanism. It is important to observe that, throughout this study, the term “indigenous peoples” is used in parallel to “tribal peoples.” Since the Moiwana case (2005), those are interchangeable terms in the iahrs. Recently, the Inter-​American organs have used the concept of “tribal peoples” as akin to “afro-​descendant communities.”21 Notably, however, in state practice, tribal and indigenous peoples have been treated differently by states. Finally, it is important to state that in some contexts indigenous peoples are regarded as minorities. Such designation was used in the original phases of the iahrs.22 The European human rights system and the United Nations human rights bodies such as the hrc have been referring to indigenous communities as minority groups.23 The key difference between “indigenous peoples” and “minorities” relates to the entitlement to self-​determination. According 21

22

23

Inter-​American Commission on Human Rights (ed), Pueblos Indígenas, comunidades afrodescendientes y recursos naturales: Protección de derechos humanos en el contexto de actividades de extracción, explotación y desarrollo (2015) 21–​24; Afro-​descendant communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia [2013] Series C No. 270, [2013] (Inter-​American Court of Human Rights). Resolution 12/​ 85  –​Indios Yanomami (Brazil) [1985] 7615, [1985] (Inter-​ American Commission on Human Rights); Inter-​American Commission on Human Rights, ‘Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin’ (29 November 1983)  OEA/​ Ser.L./​ V.II.62  accessed 23 October 2018. On the European Human Rights System see: G. and E. v. Norway [1983] Application 9278/​ 81 & 9415/​81, [1983] 30–​38 (European Commission of Human Rights); Koivurova (n 10); Péter Kovács, ‘Indigenous Issues Under the European Convention on Human Rights, Reflected in an Inter-​American Mirror’ (2016) 48 The George Washington International Law Review 781-​806 802-​804; Thornberry, Indigenous peoples and human rights (n 4) 290–​ 317. On the Human Rights Committee see: General Comment No. 23: The Rights of Minorities (Art. 27) [1994] CCPR/​C/​21/​Rev.1/​Add.5, [1994] (Human Rights Committee); Thornberry, Indigenous peoples and human rights (n 4) 151–​181; Martin Scheinin, ‘Indigenous Peoples´ Rights under the International Covenant on Civil and Political Rights’ in Joshua Castellino and Niamh Walsh (eds), International Law and Indigenous Peoples (Martinus Nijhoff 2005) 4–​9.

10 Chapter 1 to current international human rights instruments, minority groups are not entitled to this right, whereas indigenous peoples are. Such crucial difference has emerged as a result of the collapse of the minority protection system under the auspices of the League of Nations.24 A  full analysis of this controversial issue surrounding the similarities and differences between the concepts of “indigenous peoples” and “minorities” lies outside the scope of this research.25 4

Structure of the Book

This book contains seven parts. In chapter one, an introduction to this study is provided. The subject matter, the research questions, the preliminary considerations on the definition of indigenous peoples, and the structure of the book are dealt with in this first chapter. Chapter two offers a general background on the iahrs. This chapter is envisaged for readers who are unfamiliar with international human rights law and the iahrs. It clarifies the content of the main iahrs instruments with a focus on indigenous land rights. In addition, it explains the mandate and the historical past of the iahrs main organs  –​the Commission and the Court. Finally, it elucidates the two legal procedures that are crucial for this study –​the IACtHR’s advisory jurisdiction and the iahrs contentious jurisdiction. Chapter three analyzes the first wave of jurisprudential development of indigenous land rights. It concerns the protection of communal indigenous property and the identification of individual indigenous persons as rights holders to land. Historically, it corresponds to the time period between 2001 and 2006. In the first part of this chapter, the analysis of the case Aloeboetoe et al. v. Suriname focuses on the problem of the individualization of victims in the cases regarding tribal and indigenous communities. This was for decades 24

25

For more information on the minorities protection system of the League of Nations see: Anna Meijknecht, ‘Minority Protection System between World War I and World War II’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018). For more details on this controversy see:  Will Kymlicka, ‘Minority Rights in Political Philosophy and International Law’ in Samantha Besson and John Tasioulas (eds), The philosophy of international law (Oxford University Press 2010); Socha (n 19) 13–​123; Erika I Daes and Asbjorn Eide, ‘Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples’ (July 2000). UN Doc. E/​CN.4/​Sub.2/​2000/​10; Socha (n 19).

Introduction

11

a key procedural problem in the iahrs. Section two of chapter three explains in depth the emergence of the concept of “communal indigenous property” in the case of Awas Tingni v. Nicaragua. After this case, other decisions in the same vein followed. Section three of chapter three analyzes these decisions in its assessment of the Moiwana, Yakye Axa, and Sawhoyamaxa cases. Finally, section four of chapter three presents interim conclusions that summarize the main findings of this part. Chapter four covers the transitional wave that represented the bridge between the first and the third wave. This wave goes from 2007 to 2011. Here this book explores the small procedural changes that were essential for the future recognition of the collective legal capacity of indigenous peoples. Such recognition occurred only in the third wave, but the second wave was a crucial forerunner. With respect to the procedural changes, section one of chapter four explains them in view of the Saramaka case. Then, in light of the Xákmok Kásek case, section two of chapter four develops the theoretical background related to the collective legal capacity of indigenous peoples. To sum up, section three of chapter four summarizes the main findings of this chapter. Additionally, it provides an overview of the similarities between procedural issues faced in other complaint mechanisms and in the Inter-​American system regarding complaints by indigenous peoples. Chapter five analyzes the third wave of case law that started in 2012 and is still ongoing (2019). In this wave, the iahrs recognized indigenous peoples as collective holders of land rights. Section one of chapter five analyzes the landmark case of Kichwa Indigenous Peoples of Sarayaku v. Ecuador. This was the first decision, in which the IACtHR recognized indigenous peoples as collective petitioners, victims, and beneficiaries of reparations. Section two of chapter five assesses a range of cases that followed this decision as a sort of “precedent” –​ Afro-​descendant Communities Displaced from the Cacarica River Basin case, the Kuna y Emberá peoples case, the Garífuna communities cases, the Kaliña y Lokono case, and the Xucuru case. Those decisions have in common the recognition of indigenous peoples as collective rights holders. Section three of chapter five contains interim conclusions. Here the book compiles the main findings of chapter five and it analyzes those findings in relation to the previous chapters. Additionally, it gives an analytical perspective of the effect of the iahrs jurisprudence on indigenous land rights in the iahrs and in international human rights law. Finally, chapter six and seven are the concluding chapters. Chapter six presented conclusions, which condenses the findings of chapters three, four, and five. Chapter seven reproduces the conclusions in three different languages –​ German, Spanish and Portuguese.

12 Chapter 1

Cases and Reports

African Commission on Human and Peoples’ Rights v. Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights). G. and E. v. Norway [1983] Application 9278/​81 & 9415/​81, [1983] 30–​38 (European Commission of Human Rights). General Comment No. 23:  The Rights of Minorities (Art. 27) [1994] CCPR/​C/​21/​Rev.1/​ Add.5, [1994] (Human Rights Committee). Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin (29 November 1983) OEA/​Ser.L./​V.II.62  accessed 23 October 2018. (Inter-​American Commission on Human Rights). Resolution 12/​85 –​Yanomami Indians (Brazil) [1985] 7615, [1985] (Inter-​American Commission on Human Rights). Pueblos Indígenas, comunidades afrodescendientes y recursos naturales: Protección de derechos humanos en el contexto de actividades de extracción, explotación y desarrollo (2015). (Inter-​American Commission on Human Rights). Ivcher-​Bronstein v. Peru [2001] Series C No. 74, [2001] 1 (Inter-​American Court of Human Rights).



References

Asmuss K, Ansprüche indigener Völker auf Rückführung rechtswidrig ausgeführten Kulturgutes:  Eine Untersuchung für Ansprüche aus Art. 5 UNIDROIT-​Konvention 1995 und aus allgemeinem Völkerrecht (Veröffentlichungen aus dem Institut für Internationale Angelegenheiten der Universität Hamburg vol 36, Nomos 2011). Barsh RL, ‘Indigenous Peoples’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2007). Bruce JW, ‘Review of tenure terminology’, Tenure Brief. accessed 10 June 2020. Castellino J and Doyle C, ‘Who are ‘Indigenous Peoples’? An Examination of Concepts Concerning Group Membership in the UNDRIP’ in Jessie Hohmann and Marc Weller (eds), The UN Declaration on the Rights of Indigenous Peoples: A Commentary (Oxford commentaries on international law, 1st. ed. Oxford University Press 2018). Cobo JRM, ‘Study of the Problem of Discrimination Against Indigenous Populations: Final Report (last part)’ (30 September 1983)  accessed 23 October 2018.

Introduction

13

Crawford J and Brownlie I, Brownlie’s Principles of Public International Law (8th ed. impr.: 5, Oxford University Press 2012). Daes EI, ‘Indigenous Peoples and Their Relationship to Land’ (Final Working Paper Prepared by the Special Rapporteur, 11 June 2001) UN Doc. E/​CN.4/​Sub.2/​2001/​21. Daes EI and Eide A, ‘Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples’ (July 2000). UN Doc. E/​CN.4/​Sub.2/​2000/​10. Descola P, In the society of nature: A Native Ecology in Amazonia (Cambridge studies in social and cultural anthropology vol 93, Digital printing, Cambridge University Press 2000). Dukeminier J and others, Property (Aspen casebook series, Eighth edition, Wolters Kluwer Law & Business 2014). Gilbert J, Indigenous peoples’ land rights under international law: From victims to actors (Transnational Publishers 2006). Gilbert J, ‘Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the African Commission on Human and Peoples’ Rights’ (2011) 60 International and Comparative Law Quarterly 245. Giovarelli R and Hanstad T, Land Ownership (World Bank Technical Paper, The World Bank 1999). Global Environmental Facility, ‘Indigenous Peoples’ accessed 4 September 2019. Göcke K, Indigene Landrechte im internationalen Vergleich:  Eine rechtsvergleichende Studie der Anerkennung indigener Landrechte in Kanada, den Vereinigten Staaten von Amerika, Neuseeland, Australien, Russland und Dänemark/​Grönland  =  Indigenous land rights in international comparison: a comparative study on the recognition of indigenous land rights in Canada, the United States of America, New Zealand, Australia, Russia and Denmark/​Greenland (Beiträge zum ausländischen öffentlichen Recht und Völkerrecht vol 253, Springer 2016). Grote R, ‘On the Fringes of Europe:  Europe’s Largely Forgotten Indigenous Peoples’ (2006–​2007) 31(2) American Indian Law Review 425. Hahn A von, Traditionelles Wissen indigener und lokaler Gemeinschaften zwischen geistigen Eigentumsrechten und der “public domain”:  Traditional knowledge of indigenous and local communities between intellectual property rights and the public domain (Beiträge zum ausländischen öffentlichen Recht und Völkerrecht vol 170, Springer 2004). Herdegen M, Völkerrecht (Grundrisse des Rechts, 13. überarb. und erw. Auflage, Beck 2014). International Labour Organization, ‘Ratifications of C169’ (2019) accessed 29 March 2019. Ipsen K, Völkerrecht (5. völlig neu bearbeitete Auflage, C.H. Beck 2004).

14 Chapter 1 Jouannet E, A short introduction to international law (Christopher Sutcliffe tr, Cambridge University Press 2013). Kingsbury B, ‘ “Indigenous Peoples” in International Law: A Constructivist Approach to the Asian Controversy’ (1998) 92 American Journal of International Law 414. Kingsbury B, ‘Indigenous Peoples’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018). Koivurova T, ‘Jurisprudence of the European Court of Human Rights Regarding Indigenous Peoples: Retrospect and Prospects’ (2011) 18 International Journal on Minority and Group Rights 1. Kovács P, ‘Indigenous Issues Under the European Convention on Human Rights, Reflected in an Inter-​American Mirror’ (2016) 48 The George Washington International Law Review 781–​806. Kriebaum U and Reinisch A, ‘International Protection of the Right to Property’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018). Kymlicka W, ‘Minority Rights in Political Philosophy and International Law’ in Samantha Besson and John Tasioulas (eds), The philosophy of international law (Oxford University Press 2010). Lenzerini F, ‘Land Rights’, Sofia Conference (2012) –​ILA Final Report –​Rights of Indigenous Peoples (2012). Meijknecht A, ‘Minority Protection System between World War I and World War II’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018). Organization of the American States, ‘American Convention on Human Rights –​Signatories and Ratifications’ (2019) accessed 29 March 2019. Oxford University Press, ‘indigenous, adj.’. Portmann R, ‘Legal Personality in International Law’ (Doctoral Thesis, University of St. Gallen 2009). Scheinin M, ‘Indigenous Peoples´ Rights under the International Covenant on Civil and Political Rights’ in Joshua Castellino and Niamh Walsh (eds), International Law and Indigenous Peoples (Martinus Nijhoff 2005). Socha P, Definitionen und Anerkennung substaatlicher Gruppen im Völkerrecht: Eine Untersuchung der rechtlichen Anwendung völkerrechtlicher Konstruktionen substaatlicher kollektiver Identitäten und aktueller Entwicklungen im Intergovernmental Committee der WIPO (Göttinger Studien zu Cultural Property Band 12, Universitätsverlag Göttingen 2017). Stoll P-​T and Hahn A von, ‘Indigenous Peoples, Indigenous Knowledge and Indigenos Resources in International Law’ in Silke v Lewinski (ed), Indigenous heritage and intellectual property: Genetic resources, traditional knowledge, and folklore (2nd ed. Kluwer Law International 2008).

Introduction

15

Thornberry P, Indigenous peoples and human rights (Melland Schill studies in international law, Manchester University Press 2002). Wenzel N, Das Spannungsverhältnis zwischen Gruppenschutz und Individualschutz im Völkerrecht (Univ. Diss. Heidelberg, 2006. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht vol 191, Max-​Planck-​Institut für ausländisches öffentliches Recht und Völkerrecht Heidelberg 2008). Wiessner S, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harvard Human Rights Law Journal 57. Wiessner S, ‘The United Nations Declaration on the Rights of Indigenous Peoples’ in Aristotle Constantinides and Nikos Zaikos (eds), The Diversity of International Law:  Essays in Honour of Professor Kalliopi K.  Koufa (Martinus Nijhoff Publishers 2009). World Bank, ‘Indigenous Peoples’ accessed 19 March 2019.

chapter 2

General Background of the Inter-​American System This chapter accommodates primarily those readers who are unfamiliar with human rights law. It offers an explanation of the main aspects of the iahrs, which are crucial for understanding this book. Those aspects refer to the iahrs historical background, legal instruments, organs, and procedures. This analysis elucidates these aspects in the context of the universal human rights system. 1

Overview: the iahrs and the adhr

The origins of the iahrs date back to the 1826 Congress of Panama convened by Simon Bolivar (1826 Congress) with the goal of considering a confederation of Latin American states.1 The endeavor to create such confederation was not successful. However, after the 1826 Congress, American states have started to meet regularly in a series of regional meetings. These meetings have adopted decisions, some of which touch upon indigenous issues.2 For instance, the Inter-​American Charter of Social Guarantees recognized in its Article 39 that states should create institutions or services to protect the “Indians” and their lands. Such provision is astonishingly avant-​gardist. It precedes the first international treaty on the rights of indigenous peoples, ilo Convention 107, by about ten years. The regional meetings of American states after Simon Bolivar’s initiative were the basis for creating the iahrs. A hundred years on from the 1826 Congress, the internationalization of domestic affairs and human rights was gaining momentum. States all around the world gathered together in one organization, the United Nations, and adopted the UN Charter for the sake of maintaining peace and protecting the dignity and worth of the human person. In parallel, the general desire of establishing a regional legal public order system

1 Karsten Seifert, Das interamerikanische System zum Schutz der Menschenrechte und seine Reformierung (Schriften zum internationalen und zum öffentlichen Recht Bd. 75, Peter Lang 2008) 29–​34; Dinah Shelton and Paolo G Carozza, Regional Protection of Human Rights (Oxford University Press 2013) 53. 2 La Organización de los Estados Americanos y su Trabajo con los Pueblos Indígenas (2013) 11–​ 12. See also Dinah Shelton, ‘The Inter-​American Human Rights Law of Indigenous Peoples’ (2013) 35 University of Hawai’i Law Review 937 941.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004411272_003

General Background of the Inter-American System

17

was growing worldwide.3 Consequently, in 1950, European states created the European system of human rights. But, before that, in 1948, American states established their regional organization, the oas, and its related regional human rights system. The multilateral treaty for the oas constitution set forth the respect for individual rights and the principle of non-​discrimination (Article 3, 13 oas Charter).4 Notably, the oas is the oldest regional organization worldwide.5 At present, oas member states include:  Antigua and Barbuda, Argentina, Barbados, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, the Bahamas, Trinidad and Tobago, the United States of America, Uruguay, and Venezuela.6 The year of 1948 represents a milestone for the iahrs. The diplomatic conference that created the oas in 1948 proclaimed the first legal instrument, which is fundamental for the regional protection of human rights, the adhr. On April 30, 1948, the Ninth International Conference of American States in Colombia approved the adhr.7 The proclamation of the adhr has added value to the emerging system of international human rights law. Despite preceding by a few months the udhr, the adhr and the udhr drafting processes were synchronized. It is important to highlight that the adhr was instrumental to the elaboration of the udhr. Both the adhr and the udhr build on the same cornerstone and start their texts by recognizing the inherent dignity of all human beings.8 Accordingly, 3

4 5 6 7

8

Robert K Goldman, ‘History and Action: the Inter-​American Human Rights System and the Role of the Inter-​American Commission on Human Rights’ (2009) 31 Human Rights Quarterly 856 857–​859; Karsten Seifert, Das interamerikanische System zum Schutz der Menschenrechte und seine Reformierung (Schriften zum internationalen und zum öffentlichen Recht Bd. 75, Peter Lang 2008) 35. Dinah Shelton and Paolo G Carozza, Regional Protection of Human Rights (Oxford University Press 2013) 54. Karsten Seifert, Das interamerikanische System zum Schutz der Menschenrechte und seine Reformierung (Schriften zum internationalen und zum öffentlichen Recht Bd. 75, Peter Lang 2008) 37. Organization of the American States, ‘Member States’ accessed 3 April 2019. For a historical account see Hector Gros Espiell, ‘La declaración americana: Raíces conceptuales y políticas en la historia, la filosofía y el derecho americano’ (1989) Número especial en conmemoración del 40 aniversario de la DADDH Revista del Instituto Interamericano de Derechos Humanos 41–​64. For a comprehensive analysis on the relationship between the udhr and the adhr see: Álvaro Paúl, Los trabajos preparatorios de la declaración americana de los derechos y

18 Chapter 2 Glendon points to Latin America as “the forgotten crucible of the universal human rights idea.”9 Later on, the udhr influenced the elaboration of the ECoHR.10 Therefore, it is compelling to recognize the adhr as an inspirational source for the universal development of human rights law. The adhr, the udhr, and the ECoHR include very similar guarantees, but they also have some specificities.11 For instance, differently from the ECoHR, the adhr did not establish any institution to oversee state compliance with the rights set down therein.12 For the sake of this research, it is important to highlight some features of the adhr. The adhr does not mention the term “indigenous peoples” in its provisions. Moreover, it does not differentiate between individual and collective legal persons. Remarkably, it set down in Article 23 of the adhr the right of every person to own private property as it meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home. Finally, the adhr does not set procedural guidelines. The normative value of the adhr is highly controversial.13 Initially, as an ordinary conference resolution, the adhr lacked legally binding effects.14 Through the development of Inter-​American law, the nature of the adhr has allegedly changed. Buergenthal was responsible for one of the most influential defenses of the normative character of the adhr.15 According to him, the

9 10

11 12

13

14 15

deberes del hombre y el origen remoto de la Corte Interamericana (Serie doctrina jurídica vol 810, Primera edición, Universidad Nacional Autónoma de México 2017) 2–​4. Mary A Glendon, ‘The Forgotten Crucible: The Latin American Influence on the Universal Human Rights Era’ (2003) 16 Harvard Human Rights Law Journal 27-​39 27. Alexandra Huneeus and Mikael R Madsen, ‘Between Universalism and Regional Law and Politics:  A Comparative History of the American, European and African Human Rights Systems’ (29 May 2017). iCourts Working Paper Series 96 9  accessed 23 October 2018. Cançado Trindade, O Sistema Interamericano de Direitos Humanos no Limiar do Novo Século (n 36) 32. Alexandra Huneeus and Mikael R Madsen, ‘Between Universalism and Regional Law and Politics:  A Comparative History of the American, European and African Human Rights Systems’ (29 May 2017). iCourts Working Paper Series 96 12  accessed 23 October 2018. For a comprehensive analysis see Álvaro Paúl, Los trabajos preparatorios de la declaración americana de los derechos y deberes del hombre y el origen remoto de la Corte Interamericana (Serie doctrina jurídica vol 810, Primera edición, Universidad Nacional Autónoma de México 2017) 5–​20. Opinión Consultiva 10/​89 [1989] Series A No. 10, [1989] 1 (Inter-​American Court of Human Rights) para 34. Thomas Buergenthal, ‘The Revised OAS Charter and the Protection of Human Rights’ (1975) 69(4) The American Journal of International Law 828.

General Background of the Inter-American System

19

revised oas Charter gave legal force to the human rights provisions of the adhr.16 Some oas member states have strongly opposed Buergenthal’s interpretation. Conversely, the IACtHR implicitly accepted it.17 In an advisory opinion, the IACtHR stated that the adhr as related to the oas Charter is a source of international obligations, i.e. it is legally binding.18 Regardless of the normative value of the adhr, it is undeniable that the adhr has had legal consequences. The IACtHR has been applying the adhr in interpreting the achr under its contentious and advisory jurisdiction.19 Moreover, the iachr has developed a solid case law based on the adhr that includes non-​legally binding decisions against all oas member states. The foremost importance of the adhr lies in enabling individual and collective complaints against oas member states that otherwise could not be raised because they have not ratified the achr and recognized the IACtHR’s jurisdiction.20 These oas member states who otherwise could not be charged refer to twelve states, including Cuba, Canada, the United States of America (USA), and Venezuela.21 Some states such as the USA have contended the Commission’s findings on the basis that the achr is allegedly not a legally binding instrument.22 The iachr has positioned itself against those arguments by reaffirming its jurisdiction.

16 17 18 19

20 21

22

The revised oas Charter refers to the document amended by the Protocol of Buenos Aires (1967), which is binding for all oas member states. Opinión Consultiva 10/​89 [1989] Series A No. 10, [1989] 1 (Inter-​American Court of Human Rights). ibid para 45. Opinión Consultiva OC 22/​16  –​Titularidad de Derechos de las Personas Jurídicas en el Sistema Interamericano de Derechos Humanos [2016] Series A  No. 22, [2016] (Inter-​ American Court of Human Rights) paras 18, 25, 45, 48; Comunidad Moiwana v. Suriname [2005] Series C No. 124, [2005] (Inter-​American Court of Human Rights) para 63; Bámaca Velásquez v. Guatemala [2000] Series C No. 70, [2000] (Inter-​American Court of Human Rights) paras 12, 179; Opinión Consultiva 10/​89 [1989] Series A  No. 10, [1989] 1 (Inter-​ American Court of Human Rights). For a critical perspective see Ariel Dulitzky, ‘The Relationship between the African Commission and the African Court: Lessons from the Inter-​American System’ (2005) 15 Interights Bulletin 10 10. Alexandra Huneeus and Mikael R Madsen, ‘Between Universalism and Regional Law and Politics:  A Comparative History of the American, European and African Human Rights Systems’ (29 May 2017). iCourts Working Paper Series 96 12–​13  accessed 23 October 2018; Álvaro Paúl, Los trabajos preparatorios de la declaración americana de los derechos y deberes del hombre y el origen remoto de la Corte Interamericana (Serie doctrina jurídica vol 810, Primera edición, Universidad Nacional Autónoma de México 2017) 23. For example see Report No. 75/​02 –​Mary and Carrie Dann (United States) (2002) 11.140 (Inter-​American Commission on Human Rights) para 163.

20 Chapter 2 2

Key Legal Instruments and Indigenous Land Rights

The iahrs would not be complete without a binding instrument on human rights. Almost compelled by the historical events of the political crisis in the late 1950s, the oas General Assembly, in 1959, charged the Inter-​American Council of Jurists with the task of drafting a proposal for a regional human rights treaty.23 Since the very beginning of the drafting of the achr, the idea of coexistence and coordination between the universal and the Inter-​American system was present.24 To that end, Inter-​American organs conducted a comparative study on the draft achr, the UN international human rights covenants, and the optional protocol to the iccpr.25 On November 22, 1969, during the Inter-​American specialized conference on human rights in San José, Costa Rica, the states parties to the oas adopted the American Convention on Human Rights. This adoption occurred ten years after the beginning of its drafting by the Inter-​American Council of Jurists.26 Due to the lack of sufficient ratifications, the entry into force of the achr was delayed for almost ten years until 1978. Remarkably, the achr is in line with other instruments of international human rights law. For instance, Article 1 of the achr resembles the provisions of universal human rights instruments such as the iccpr. Yet, as Neumann points out, the rights catalogue of the achr goes far beyond the one of the iccpr.27 Moreover, another instrument to influence the achr was the ECoHR.28 In this regard, one of the key common features between these instruments is 23

Gerald L Neuman, ‘American Convention on Human Rights (1969)’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018). 24 Inter-​American Commission on Human Rights, ‘Annotations on the Draft Inter-​American Convention on Protection of Human Rights’ (1969) 3. 25 ibid. 26 Dunshee de Abranches, Carlos Alberto, ‘The Inter-​American Court of Human Rights’ (1980) 30 The American University Law Review 79 80–​85; Robert K Goldman, ‘History and Action: the Inter-​American Human Rights System and the Role of the Inter-​American Commission on Human Rights’ (2009) 31 Human Rights Quarterly 856 860; Laurence Burgorgue-​Larsen and others, The Inter-​American Court of Human Rights: Case law and commentary (Oxford University Press 2013) xix; Cecilia Medina Quiroga, The American Convention on Human Rights: Crucial Rights and their Theory and Practice (2nd rev. ed. Intersentia 2016) 5. 27 Gerald L Neuman, ‘American Convention on Human Rights (1969)’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018). 28 Jo M Pasqualucci, The practice and procedure of the Inter-​American Court of Human Rights (2. ed. Cambridge University Press 2013) 4; Thomas Buergenthal, ‘The American

General Background of the Inter-American System

21

the establishment of a two-​organ system composed by a commission and a court for overseeing state compliance with the achr (Articles 45 and 62 thereof). This is, according to Buergenthal, a consequence of the similarities concerning legal, political, and cultural traditions between Europe and America.29 In contrast, due to regional specificities, the functions of these organs in the European and the Inter-​American system were completely different.30 The Pact of San José is legally binding on oas states parties upon ratification or adherence. Similar to the former European human rights system and the African human rights system, the ratification of the achr does not imply the state acceptance of the complaint procedure mechanism. By ratifying the achr, a state may decide about the extent of their engagement with human rights and choose whether they accept or not the IACtHR’s jurisdiction. As of April 2019, twenty-​three states parties have ratified the achr: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, and Uruguay.31 Almost all of these states have accepted the Court’s jurisdiction with the exception of Dominica, Grenada, and Jamaica. In 2012 and 1998 respectively, Venezuela and Trinidad & Tobago submitted their denunciation to the achr. Pursuant to Article 78 of the achr, such denunciations release the states parties of the obligations contained in the achr –​including the jurisdiction of the IACtHR –​one year after the submission of the denunciation notice to the Secretary General of the oas. On July 1, 2019, under Guaido’s administration, Venezuela again ratified the achr and submitted itself again to the jurisdiction of the IACtHR.32 and European Conventions on Human Rights: Similarities and Differences’ (1980) 30 The American Journal of International Law 155–​166. 29 Thomas Buergenthal, ‘The American and European Conventions on Human Rights: Similarities and Differences’ (1980) 30 The American Journal of International Law 155-​166 156. 30 Alexandra Huneeus and Mikael R Madsen, ‘Between Universalism and Regional Law and Politics:  A Comparative History of the American, European and African Human Rights Systems’ (29 May 2017). iCourts Working Paper Series 96 11  accessed 23 October 2018. 31 Organization of the American States, ‘American Convention on Human Rights  –​ Signatories and Ratifications’ (2019) accessed 6 August 2019. 32 Venezuela, ‘Derechos Humanos y la Protección Internacional que Ofrecen la Corte Interamericana de Derechos Humanos y la Comisión’ (2019) accessed 4 September 2019.

22 Chapter 2 For the sake of this research, it is important to bear in mind Article 21 achr, the right to property. Paragraph one of this provision establishes the right of everyone to the use and enjoyment of his property that may be subordinated by law to the interest of the society. Its formulation resembles Article 14 of the African Charter. In addition, the Convention’s wording is similar to Article 1 of Protocol 1 to the ECoHR whose formulation is yet stricter in view of its Paragraph 2.33 Paragraph 2 of Article 21 of the achr concerns the requirements for the deprivation of property that include the payment of compensation. This requirement is absent in the European, African, and Arabic basic human rights instruments.34 Notably, some American states declared reservations against Article 21 of the achr by the time of ratifying the achr. Argentina and Chile stated that the IACtHR and the iachr may not make statements with respect to the reasons of “public utility” or “social interest” taken into account by the state in depriving a person of its own property. In order to apply the right to property to complaints by indigenous peoples, the Inter-​American organs have been interpreting Article 21 of the achr in light of Article 2 thereof. Article 2 of the achr establishes the state obligation to adopt legislative and other measures that are necessary to give effect to the rights and freedoms set down in the American Convention. On a comparative basis, the ECoHR does not entail a similar provision whereas Article 2(2) of the iccpr does. The main application of Article 2 of the achr unfolds in the reparations part of the Court’s judgments. The IACtHR developed a comprehensive jurisprudence on adequate redress measures for indigenous peoples. Accordingly, it ordered that states undertake measures to give effectiveness to the property rights of indigenous peoples, including through changing and enacting domestic laws. Reparation measures to indigenous peoples include mechanisms for recovering collective memory and preserving collective culture, medical, and psychological treatment to the victims, and translation of the achr and the IACtHR’s decisions in the native language of indigenous communities.35 33

34 35

Article 1 of Protocol 1 to the ECoHR stipulates that: Protection of property. (1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. (2) The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. Similarly see Thomas M Antkowiak and Alejandra Gonza, The American Convention on Human Rights: Essential Rights (Oxford University Press 2017) 265. For a short summary on the different reparation types in the complaints on indigenous issues see Cuadernillo de Jurisprudencia de la Corte Interamericana de Derechos Humanos

General Background of the Inter-American System

23

Also of substantial importance for the interpretation of the right to property is Article 1 of the achr. This last provision is complex and comprises three main aspects. First, Article 1(2) of the achr delimits the scope ratione personae of the American Convention. It specifies that the word “person” in the provisions of the achr refers to every human being. In its jurisprudence, the Inter-​American Court has traditionally interpreted “person” as meaning that only individual persons may be victims of violations of human rights.36 Second, Article 1(1) of the achr sets down the states’ negative obligation to refrain from violating human rights and the positive obligation to take measures to ensure the exercise of these rights. Third, Article 1(1) of the achr establishes the principle of non-​discrimination, i.e. states should fulfill their obligations without any discrimination of race, color, sex, language, etc. In cases concerning indigenous peoples, the IACtHR has been interpreting Article 1(1) of the achr in light of the right to cultural identity. The Court explained that (emphasis added): In view of the fact that the instant case addresses the rights of the members of an indigenous community, the Court deems it appropriate to recall that, pursuant to Articles 24 (Right to Equal Protection) and 1(1) (Obligation to Respect Rights) of the American Convention, the States must ensure, on an equal basis, full exercise and enjoyment of the rights of these individuals who are not subject to their jurisdiction. However, it is necessary to emphasize that to effectively ensure those rights, when they interpret and apply their domestic legislation, the States must take into account the specific characteristics that differentiate the members of the indigenous peoples from the general population and that constitute their cultural identity. The Court must apply that same reasoning, as it will do in the instant case, to assess the scope and content of the Articles of the American Convention, which the Commission and the representatives allege were breached by the State.37

36 37

No 11:  Pueblos Indígenas y Tribales [2018] 1 (Inter-​American Court of Human Rights) 4; Eduardo Ferrer Mac-​Gregor and Carlos M Pelayo Möller, ‘Capítulo I  –​Enumeración de deberes’ in Christian Steiner and Patricia Uribe (eds), Convención Americana sobre Derechos Humanos:  Comentario (Fundación Konrad Adenauer Stiftung 2014)  79–​81. For a critical analysis on the jurisprudence regarding reparations in case of indigenous peoples see:  Thomas M Antkowiak, ‘A Dark Side of Virtue:  The Inter-​American Court and Reparations for Indigenous Peoples’ (2014) 25(1) Duke Journal of Comparative & International Law 1. Advisory Opinion 14/​94 [1994] [1994] (Inter-​American Court of Human Rights) 27. Comunidad Indígena Yakye Axa v.  Paraguay [2005] Series C No. 125, [2005] (Inter-​ American Court of Human Rights) para 51.

24 Chapter 2 Within the iahrs framework, an important non-​binding instrument specifically addressing indigenous peoples is the Inter-​American Democratic Charter (2001). This document represents a milestone for the development of democracy in the Americas.38 Article 9 of the Inter-​American Democratic Charter attaches the principle of non-​discrimination as applied to indigenous peoples to the idea of the advance of democracy. A major non-​binding legal instrument specifically addressing indigenous peoples is the American Declaration on the Rights of Indigenous Peoples (adrip). The adrip was the result of a twenty-​seven-​years drafting process that involved the participation of indigenous peoples, including through oas financial support.39 The third plenary session of the oas General Assembly adopted the adrip under resolution AG/​RES. 2888 (XLVI-​O/​16) in June 2016. Upon adoption, only Canada, Colombia, and the United States made reservations to the adrip. As of April 2019, the adrip has achieved only a minor impact on Inter-​American legal practice.40 It is undeniable that the provisions of the adrip enable a dialogue between the iahrs and the universal standards of human rights.41 Similar to the undrip and ilo Convention 169, the adrip attaches the definition of indigenous peoples to the self-​identification criterion pursuant to its Article 1. This criterion is not necessarily the exclusive criterion of indigenous peoplehood. It may be complemented by other criteria. Moreover, Article 3 of the adrip sets down the right of indigenous peoples to self-​determination in a similar manner to Article 3 of the undrip and Article 1 of the 1966 international covenants. Among the innovative features of the adrip compared to other international instruments, there is the recognition of the right of indigenous peoples to the protection of a healthy environment (Article 19 of the adrip) and the right of indigenous peoples in voluntary isolation or initial contact to remain in that

38 39 40 41

Organization of the American States, ‘Political Dialogue’ (2018) accessed 23 October 2018. La participación de los Pueblos Indígenas en la OEA (2013) 31–​34. The only reference to the ADRIP in the Inter-​American case law is in: Opinión Consultiva OC-​23/​17  –​Medio Ambiente y Derechos Humanos [2017] Series A  No. 23, [2017] (Inter-​ American Court of Human Rights) 27. For a critical analysis on this issue see Bartolomé Clavero, ‘La declaración Americana sobre derechos de los pueblos indígenas: El reto de la interpretación de una norma contradictoria’ (Facultad de Derechos y Ciencias Políticas de la Universidad Nacional Mayor de San Marcos, Peru, 3 August 2016)  accessed 8 April 2019; Stefania Errico, ‘The American Declaration on the Rights of Indigenous Peoples’ (2017) accessed 16 April 2019.

General Background of the Inter-American System

25

condition (Article 26 of the adrip). The adrip is the only international legal document so far to touch upon this topic. For the sake of this research, it is important to flesh out the content of Article 25 of the adrip that relates to the property rights of indigenous peoples. This provision resembles Articles 25–​27 undrip. Remarkably, paragraph 1 of Article 25 of the adrip recognizes the right of indigenous peoples to the spiritual relationship with their lands, and paragraph 3 of Article 25 of the adrip sets forth the right to own, use, develop, and control their territories and resources. Therefore, lands and natural resources therein are intertwined. This notion is crucial for indigenous property. Additionally, Article 25 implies state obligations. Paragraph 4 of Article 25 adrip raises the state obligation to give legal recognition and protection to indigenous lands. Paragraph 5 of Article 25 adrip complements this obligation by establishing another one related to the state obligation of the creation of special regimes appropriated for the recognition of indigenous property and the effective demarcation and titling of indigenous lands. This provision is very similar to Article 14 of ilo Convention 169. There are two critical points in Article of the 25 adrip that contrast with the undrip provisions. First, paragraph 1 of Article 25 of the adrip upholds indigenous peoples’ responsibilities to preserve their lands for themselves and for future generations. In light of this provision, the controversial framing of indigenous peoples as environmental stewards becomes particularly evident. Article 25 of the adrip is in line with other international instruments such as Article 8(j) of the cbd and Principle 22 of the Rio Declaration on Environment and Development. Second, paragraph 5 of Article 25 of the adrip defines that the right of indigenous peoples to the legal recognition of their properties should follow domestic laws and relevant international instruments. Legal scholarship criticized such limitation due to its assimilationist character.42 In a context of polyversity, indigenous normativities should receive due acknowledgment by states. 3

iahrs Main Organs and Their Procedures

The iahrs has two main organs, the iachr and the IACtHR. The first to be created was the iachr. After the Cuban revolution and the establishment of the dictatorship of Rafael Trujillo in the Dominican Republic, the drafting of the 42

Stefania Errico, ‘The American Declaration on the Rights of Indigenous Peoples’ (2017) 2  accessed 16 April 2019.

26 Chapter 2 achr began. Together with it the historical political process for the establishment of the iachr was initiated.43 By that time, states felt the need to build a solid protection of human rights. The Commission’s initial milestones date back to 1959 with the Resolution viii of the Fifth Meeting of Consultation of Ministers of Foreign Affairs in Santiago de Chile.44 The oas Council complied with this resolution by adopting the Commission’s statute and electing the first seven iachr members. It qualified the iachr as “an autonomous entity” whose function was to advance human rights. In 1967, the protocol of Buenos Aires amended the oas Charter. This amendment changed the legal nature of the iachr who became an oas-​ Charter-​based organ. Therefore, the Inter-​American Commission acquired institutional autonomy and constitutional legitimacy. In the early stages of the iahrs, the iachr fulfilled a unique role. During the cold war period, it was more able to intervene in domestic affairs regarding human rights violations than others human rights organs.45 In addition, in contrast to the law-​based approach of the European human rights system, the iachr has developed political diplomacy for advancing human rights.46 The Inter-​ American Commission has its headquarters in Washington, D.C. where it plans the activities to fulfil its mandate. Pursuant to Article 106 of the oas Charter, the iachr works as a consultative organ of the oas and promotes the observance and protection of human rights. In parallel, as a Convention’s organ pursuant to Article 33 of the achr, the iachr monitors state compliance with the convention’s rights. Article 19 of the iachr statute details the Commission’s tasks in this regard. 43

Alexandra Huneeus and Mikael R Madsen, ‘Between Universalism and Regional Law and Politics:  A Comparative History of the American, European and African Human Rights Systems’ (29 May 2017). iCourts Working Paper Series 96 12–​13  accessed 23 October 2018; Felipe González, ‘The Experience of the Inter-​American Human Rights System’ (2009) 40(1) Victoria University of Wellington Law Review 103-​125 104. 44 Thomas Buergenthal, Dinah Shelton and David P Stewart, International Human Rights in a Nutshell (West Nutshell Series, 4th edition, West 2009)  263–​264; Karsten Seifert, Das interamerikanische System zum Schutz der Menschenrechte und seine Reformierung (Schriften zum internationalen und zum öffentlichen Recht Bd. 75, Peter Lang 2008) 52. 45 Cançado Trindade, O Sistema Interamericano de Direitos Humanos no Limiar do Novo Século (n 36) 37–​42; Alexandra Huneeus and Mikael R Madsen, ‘Between Universalism and Regional Law and Politics:  A Comparative History of the American, European and African Human Rights Systems’ (29 May 2017). iCourts Working Paper Series 96 14  accessed 23 October 2018. 46 ibid.

General Background of the Inter-American System

27

The achr and the iachr Statute set forth in Articles 34 to 40 and Articles 2 to 15, respectively, membership rules for the Commission’s composition. Accordingly, Commission’s members should be seven persons of high moral character and recognized competence in the field of human rights. They are elected in their personal capacity by the oas General Assembly for a term of four years. They act in their individual capacities and not as state representatives. Reelection is allowed only one time. The iachr has a long-​standing history of activities with indigenous peoples. With the beginning of the international indigenous movement, in the early 1970s, the iachr started to pay attention to indigenous special needs.47 Notably, in 1972, the Commission published its first resolution on this matter entitled “Special Protection for Indigenous Populations, Action to Combat Racism and Racial Discrimination.”48 More recently, in 1990, the Inter-​American Commission created the office of the special rapporteur on the rights of indigenous peoples in order to monitor indigenous peoples’ ­grievances.49 The Commission’s historical work with indigenous peoples has influenced the IACtHR’s interpretation of cases associated with collective property rights. Furthermore, the other main iahrs organ is the IACtHR. The milestone for its creation refers to the adoption of the achr.50 Chapter viii of the achr sets forth the organization, jurisdiction and functions, and procedure of the IACtHR. In 1978, with the entry into force of the achr, states parties to the achr started to establish the Court. They elected the first judges of the IACtHR in 1979. In this same year, the Court’s settling ceremony occurred in San José da Costa Rica, where later on its headquarters were built.51 The IACtHR became de facto inaugurated. 47 48

49 50 51

Shelton H Davis, Land rights and indigenous peoples:  The role of the Inter-​American Commission on Human Rights (Cultural Survival report vol 29, Cultural Survival 1988) 7. In this regard, see also Ariel Dulitzky, ‘Los pueblos indígenas: Jurisprudencia del sistema interamericano de protección de los derechos humanos’ (1998) 26 Revista del Instituto Interamericano de Derechos Humanos 137-​ 188 138-​ 153; Dinah Shelton, ‘The Inter-​ American Human Rights Law of Indigenous Peoples’ (2013) 35 University of Hawai’i Law Review 937 948–​950. Organization of the American States, ‘Rapporteurship on the Rights of Indigenous Peoples: About the Rapporteurship Mandate’ (2018) accessed 23 October 2018. Karsten Seifert, Das interamerikanische System zum Schutz der Menschenrechte und seine Reformierung (Schriften zum internationalen und zum öffentlichen Recht Bd. 75, Peter Lang 2008) 67–​68. Inter-​American Court of Human Rights, ‘Court History’ (2018) accessed 23 October 2018.

28 Chapter 2 The Court’s composition was regulated in Articles 52 to 60 of the achr and Articles 4 to 11 of the Court’s statute. Accordingly, the IACtHR should consist of seven judges who are nationals of oas member states (and not necessarily states parties to the achr). Only states parties to the achr vote for the election of the judges who are elected in their individual capacity from among jurists of the highest moral authority and of recognized competence in the field of human rights. Each judge elected has a six-​year-​term that may be extended only once. Since the IACtHR is not a permanent court, judges may exercise other professional activities provided that they observe the limits established in Article 71 of the achr in conjunction with Article 18 of the Court’s statute.52 Notably, as of July 2019, most of the Court’s judges were from Latin American states. The United States has had only one appointed Judge, Thomas ­Buergenthal. The Inter-​American Court has three main functions. The first one, in accordance with Article 63(2) of the achr, is that the Inter-​American Court may adopt provisional measures in cases of extreme gravity and urgency. Such function is common among international human rights bodies, being practiced for instance by both the African and the European courts of human rights. Moreover, the Court has an advisory jurisdiction pursuant to Article 64 achr. Any oas member state may consult the IACtHR regarding the interpretation of the achr or other treaties concerning the protection of human rights in the American states, including the compatibility of domestic laws with international instruments. The preparatory work of the achr indicates that the IACtHR’s advisory jurisdiction was conceived to have a large scope.53 Article 53 achr enables some oas organs to consult the Court regarding the interpretation of the achr or of other treaties concerning the protection of human rights in the American states. To define the extent of the “interpretation of the achr or of other treaties”, the IACtHR uses the principle of compétence de la compétence.54 In other words, the Court has the discretionary authority to decide upon the issuance (or not) of an advisory opinion. Comparatively, the Court has the broadest

52 53 54

Karsten Seifert, Das interamerikanische System zum Schutz der Menschenrechte und seine Reformierung (Schriften zum internationalen und zum öffentlichen Recht Bd. 75, Peter Lang 2008) 70. Jo M Pasqualucci, ‘Advisory Practice of the Inter-​American Court of Human Rights: Contributing to the Evolution of International Human Rights Law’ (2002) 38 Stanford Journal of International Law 241-​288 250. ibid 250–​252.

General Background of the Inter-American System

29

advisory jurisdiction of any international tribunal, including the PCIJ, the icj, the ECtHR, and the ACtHPR.55 The Inter-​American Court’s advisory opinions have a tremendous importance for the iahrs.56 They have been generating far-​reaching effects. Those effects have influenced other regional human rights systems and contributed to the conceptual evolution of international human rights law.57 For the sake of this research, the Advisory Opinion 22/​16 appears as particularly important. It clarifies the legal capacity of collective entities in the iahrs, including tribal and indigenous peoples. Also, as a related matter, the Advisory Opinion 14/​94 was important to define the Court’s jurisdiction ratione personae. Such opinion had a profound effect in procedural matters. The content and effects of those advisory opinions are explored in more details in the next chapters. Furthermore, the IACtHR has a contentious jurisdiction to rule upon cases alleging violations of human rights recognized in the achr against states parties to the achr who have also accepted the Court’s jurisdiction. Accordingly, individuals may file a complaint against the violation of their rights by American states. Article 62 of the achr establishes that the conditio sine qua non for this possibility is the recognition by states parties to the achr of the Court’s jurisdiction through a special declaration or agreement. Thus, American states may sign the American Convention without recognizing the IACtHR’s 55

56

57

Opinión Consultiva OC 03/​83 –​Restricciones a la pena de muerte (Arts. 4.2 y 4.4 Convencion Americana sobre Derechos Humanos) [1983] [1983] (Inter-​American Court of Human Rights) para 43; Alejandra Nuno, ‘Articulos 61, 62, 66–​69: Competencia, funciones y procedimiento ante la Corte IDH’ in Christian Steiner and Patricia Uribe (eds), Convención Americana sobre Derechos Humanos: Comentario (Fundación Konrad Adenauer Stiftung 2014) 906; Jo M Pasqualucci, ‘Advisory Practice of the Inter-​American Court of Human Rights:  Contributing to the Evolution of International Human Rights Law’ (2002) 38 Stanford Journal of International Law 241-​288 252; Marijke de Pauw, ‘The Inter-​American Court of Human Rights and the Interpretative Method of External Referencing’ in Yves Haeck, Oswaldo Ruiz-​Chiriboga and Clara Burbano-​Herrera (eds), The Inter-​American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015) 6. For a comprehensive analysis see:  Jo M Pasqualucci, The practice and procedure of the Inter-​American Court of Human Rights (2. ed. Cambridge University Press 2013)  37–​ 80; Jo M Pasqualucci, ‘Advisory Practice of the Inter-​ American Court of Human Rights:  Contributing to the Evolution of International Human Rights Law’ (2002) 38 Stanford Journal of International Law 241–​288. Victor Abramovich, ‘From Massive Violations to Structural Patterns:  New Approaches and Classic Tensions in the Inter-​American Human Rights System’ (2009) 6(11) Sur  –​ International Journal on Human Rights 7 13; Thomas Buergenthal, ‘The Advisory Practice of the Inter-​American Human Rights Court’ (1985) 79 The American Journal of International Law 1-​27 18; González (n 68), 112.

30 Chapter 2 jurisdiction. Up to the present moment, only Grenada and the United States of America have done so.58 Canada has not signed or ratified the Convention. Similar to the European Human Rights System before the entry into force of Protocol 11 of the ECoHR (1998), the iahrs complaint procedure is double staged. Only upon the Commission’s decision on the admissibility of a complaint may the IACtHR deal with a case. In accordance with Article 61 of the achr, only states parties to the achr and the iachr may submit a case to the Court. In practice, the iachr acts as an intermediary organ between petitioners and the Court. The complaint procedure has two stages. Stage one takes place before the iachr. The Commission’s proceedings are regulated in Articles 48–​51 of the achr complemented by the Commission’s statute and rules of procedure, both of which have been constantly updated. After receiving a complaint, the iachr initiates an admissibility procedure that includes fact finding.59 Eventually, a friendly settlement may occur and solve the case at any stage.60 At the end of these proceedings, the Commission draws up a report comprising the proven facts and stating its conclusions. Then the iachr transmits this report to the state concerned. In case the respective state has recognized the Court’s competence, the iachr may decide to submit the case to the IACtHR. Alternatively, the state may present the matter to the Inter-​American Court. If the Commission brings the case to the Court, it begins Stage two of the complaint procedure. This stage is regulated in Articles 61–​69 of the achr that should be interpreted in view of the Court’s statute and rules of procedure, both of which have been constantly updated. Upon receipt of the complaint, the Court may review the Commission’s conclusions concerning facts and related law. In other words, the iahrs complaint procedure entails a double review of facts and related law. The complaint’s admissibility is analyzed two times, once before the Commission and then before the Court. After the due assessment, the tribunal issues a final judgment that is unappealable. In its decision, the Court may establish compensatory damages that are executable in the country 58 Organization of the American States, ‘American Convention on Human Rights  –​ Signatories and Ratifications’ (2019) accessed 6 August 2019. 59 For a detailed analysis on the initial stage see Álvaro Paúl Díaz, ‘La Revisión Inicial de Peticiones por la Comisión Interamericana y la Subsidiaridad del Sistema de Derechos Humanos’ [2014] Revista de Derecho de la Pontificia Universidad Católica de Valparaíso 609. 60 For a critical assessment of the friendly settlement see Dinah Shelton, ‘Human Rights, Individual Communications/​ Complaints’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018) para 47.

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31

concerned in accordance with domestic procedures. Pursuant to Article 67 of the achr, any of the parties to the final judgment may request from the Court a clarification regarding the meaning or scope of the judgment issued. In this case, the Court issues another decision denominated as “interpretation of judgment.” Due to the lack of a Convention’s enforcement mechanism of the Court’s judgments, the IACtHR has established on its own a follow-​up mechanism.61 For the sake of this research, it is important to highlight that Inter-​American procedural law emerges as a combination of the Convention’s law and internal regulation by the iahrs organs. In other words, the complaint procedure is articulated by the achr, on the one side, and by the Commission’s and Court’s statutes and rules of procedures, on the other side. Such a combination enables a high degree of flexibility regarding the complaint procedure that may be adapted to changing social realities. The iachr and the IACtHR both decide on the modifications needed to the better functioning of the complaint mechanism. The next chapters demonstrate how such modifications occurred in the period between 2001 and 2019 and how profoundly they affected the Inter-​American case law.

Cases and Reports

Report No. 75/​02 –​Mary and Carrie Dann (United States) (2002) 11.140 (Inter-​American Commission on Human Rights). Opinión Consultiva (OC) 03/​83 –​Restricciones a la pena de muerte (Arts. 4.2 y 4.4 Convención Americana sobre Derechos Humanos) [1983] [1983] (Inter-​American Court of Human Rights). Opinión Consultiva (OC) 10/​89 [1989] Series A No. 10, [1989] 1 (Inter-​American Court of Human Rights). Advisory Opinion 14/​94 [1994] [1994] (Inter-​American Court of Human Rights). Case of Bámaca Velásquez v. Guatemala [2000] Series C No. 70, [2000] (Inter-​American Court of Human Rights). Comunidad Moiwana v.  Suriname [2005] Series C No. 124, [2005] (Inter-​American Court of Human Rights). Comunidad Indígena Yakye Axa v.  Paraguay [2005] Series C No. 125, [2005] (Inter-​ American Court of Human Rights). 61

For a critical analysis on state compliance with the iahrs decisions see James L Cavallaro and Stephanie E Brewer, ‘Reevaluating Regional Human Rights Litigation in the Twenty-​ First Century: The Case of the Inter-​American Court’ (2008) 102(4) The American Journal of International Law 768.

32 Chapter 2 Opinión Consultiva (OC) 22/​16 –​Titularidad de Derechos de las Personas Jurídicas en el Sistema Interamericano de Derechos Humanos [2016] Series A No. 22, [2016] (Inter-​ American Court of Human Rights). Opinión Consultiva (OC) 23/​17  –​Medio Ambiente y Derechos Humanos [2017] Series A No. 23, [2017] (Inter-​American Court of Human Rights).



References

Abramovich V, ‘From Massive Violations to Structural Patterns: New Approaches and Classic Tensions in the Inter-​American Human Rights System’ (2009) 6(11) Sur –​International Journal on Human Rights 7. Antkowiak TM, ‘A Dark Side of Virtue: The Inter-​American Court and Reparations for Indigenous Peoples’ (2014) 25(1) Duke Journal of Comparative & International Law 1. Antkowiak TM and Gonza A, The American Convention on Human Rights:  Essential Rights (Oxford University Press 2017). Buergenthal T, ‘The Revised OAS Charter and the Protection of Human Rights’ (1975) 69(4) The American Journal of International Law 828. Buergenthal T, ‘The American and European Conventions on Human Rights: Similarities and Differences’ (1980) 30 The American Journal of International Law 155–​166. Buergenthal T, ‘The Advisory Practice of the Inter-​American Human Rights Court’ (1985) 79 The American Journal of International Law 1–​27. Buergenthal T, Shelton D and Stewart DP, International Human Rights in a Nutshell (West Nutshell Series, 4th edition, West 2009). Burgorgue-​Larsen L and others, The Inter-​American Court of Human Rights: Case law and commentary (Oxford University Press 2013). Cançado Trindade AA, ‘O Sistema Interamericano de Direitos Humanos no Limiar do Novo Século: Recomendações para o Fortalecimento de seu Mecanismo de Proteção’ (Superior Tribunal de Justiça (Brasil). accessed 10 June 2020. Cavallaro JL and Brewer SE, ‘Reevaluating Regional Human Rights Litigation in the Twenty-​First Century:  The Case of the Inter-​American Court’ (2008) 102(4) The American Journal of International Law 768. Clavero B, ‘La declaración Americana sobre derechos de los pueblos indígenas: El reto de la interpretación de una norma contradictoria’ (Facultad de Derechos y Ciencias Políticas de la Universidad Nacional Mayor de San Marcos, Peru, 3 August 2016)  accessed 8 April 2019. Davis SH, Land rights and indigenous peoples: The role of the Inter-​American Commission on Human Rights (Cultural Survival report vol 29, Cultural Survival 1988).

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Dulitzky A, ‘Los pueblos indígenas: Jurisprudencia del sistema interamericano de protección de los derechos humanos’ (1998) 26 Revista del Instituto Interamericano de Derechos Humanos 137–​188. Dulitzky A, ‘The Relationship between the African Commission and the African Court: Lessons from the Inter-​American System’ (2005) 15 Interights Bulletin 10. Dunshee de Abranches, Carlos Alberto, ‘The Inter-​American Court of Human Rights’ (1980) 30 The American University Law Review 79. Errico S, ‘The American Declaration on the Rights of Indigenous Peoples’ (2017) accessed 16 April 2019. Ferrer Mac-​Gregor E and Pelayo Möller CM, ‘Capítulo I –​Enumeración de deberes’ in Christian Steiner and Patricia Uribe (eds), Convención Americana sobre Derechos Humanos: Comentario (Fundación Konrad Adenauer Stiftung 2014). Glendon MA, ‘The Forgotten Crucible: The Latin American Influence on the Universal Human Rights Era’ (2003) 16 Harvard Human Rights Law Journal 27–​39. Goldman RK, ‘History and Action: the Inter-​American Human Rights System and the Role of the Inter-​American Commission on Human Rights’ (2009) 31 Human Rights Quarterly 856. González F, ‘The Experience of the Inter-​American Human Rights System’ (2009) 40(1) Victoria University of Wellington Law Review 103–​125. Gros Espiell H, ‘La declaración americana: Raíces conceptuales y políticas en la historia, la filosofía y el derecho americano’ (1989) Número especial en conmemoración del 40 aniversario de la DADDH Revista del Instituto Interamericano de Derechos Humanos 41–​64. Huneeus A and Madsen MR, ‘Between Universalism and Regional Law and Politics: A Comparative History of the American, European and African Human Rights Systems’ (29 May 2017). iCourts Working Paper Series 96 accessed 23 October 2018. Inter-​American Commission on Human Rights, ‘Annotations on the Draft Inter-​ American Convention on Protection of Human Rights’ (1969). Inter-​American Court of Human Rights, Cuadernillo de Jurisprudencia de la Corte Interamericana de Derechos Humanos No 11: Pueblos Indígenas y Tribales [2018] 1. Inter-​American Court of Human Rights, ‘Court History’ (2018) accessed 23 October 2018. Medina Quiroga C, The American Convention on Human Rights: Crucial Rights and their Theory and Practice (2nd rev. ed. Intersentia 2016). Neuman GL, ‘American Convention on Human Rights (1969)’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018).

34 Chapter 2 Nuno A, ‘Artículos 61, 62, 66–​69:  Competencia, funciones y procedimiento ante la Corte IDH’ in Christian Steiner and Patricia Uribe (eds), Convención Americana sobre Derechos Humanos: Comentario (Fundación Konrad Adenauer Stiftung 2014). Organization of the American States, ‘Member States’ accessed 3 April 2019. Organization of the American States, ‘Political Dialogue’ (2018) accessed 23 October 2018. Organization of the American States, ‘Rapporteurship on the Rights of Indigenous Peoples: About the Rapporteurship Mandate’ (2018) accessed 23 October 2018. Organization of the American States, ‘American Convention on Human Rights –​Signatories and Ratifications’ (2019) accessed 29 March 2019. Pasqualucci JM, ‘Advisory Practice of the Inter-​American Court of Human Rights: Contributing to the Evolution of International Human Rights Law’ (2002) 38 Stanford Journal of International Law 241–​288. Pasqualucci JM, The practice and procedure of the Inter-​American Court of Human Rights (2. ed. Cambridge University Press 2013). Paúl Á, Los trabajos preparatorios de la declaración americana de los derechos y deberes del hombre y el origen remoto de la Corte Interamericana (Serie doctrina jurídica vol 810, Primera edición, Universidad Nacional Autónoma de México 2017). Paúl Díaz Á, ‘La Revisión Inicial de Peticiones por la Comisión Interamericana y la Subsidiaridad del Sistema de Derechos Humanos’ [2014] Revista de Derecho de la Pontificia Universidad Católica de Valparaíso 609. Pauw M de, ‘The Inter-​American Court of Human Rights and the Interpretative Method of External Referencing’ in Yves Haeck, Oswaldo Ruiz-​Chiriboga and Clara Burbano-​Herrera (eds), The Inter-​American Court of Human Rights:  Theory and Practice, Present and Future (Intersentia 2015). Seifert K, Das interamerikanische System zum Schutz der Menschenrechte und seine Reformierung (Schriften zum internationalen und zum öffentlichen Recht Bd. 75, Peter Lang 2008). Shelton D, ‘The Inter-​American Human Rights Law of Indigenous Peoples’ (2013) 35 University of Hawai’i Law Review 937. Shelton D, ‘Human Rights, Individual Communications/​Complaints’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018). Shelton D and Carozza PG, Regional Protection of Human Rights (Oxford University Press 2013). Steiner C and Uribe P (eds), Convención Americana sobre Derechos Humanos: Comentario (Fundación Konrad Adenauer Stiftung 2014).

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Toro Utillano L, ‘La Organización de los Estados Americanos y su Trabajo con los Pueblos Indígenas’ in Department of International Law (ed), Los derechos de los pueblos indígenas en el sistema interamericano: Principios básicos (Organization of American States 2013). Toro Utillano L, ‘La participación de los Pueblos Indígenas en la OEA’ in Department of International Law (ed), Los derechos de los pueblos indígenas en el sistema interamericano: Principios básicos (Organization of American States 2013). Venezuela, ‘Derechos Humanos y la Protección Internacional que Ofrecen la Corte Interamericana de Derechos Humanos y la Comisión’ (2019) accessed 4 September 2019. Wolfrum R (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018).

chapter 3

First Wave: Individual Indigenous Persons as Holders of Land Rights, 2001–​2006 This chapter fleshes out the early development of individual and collective dimensions of property rights of tribal and indigenous peoples and its members.1 The first part of this chapter focuses on the first case concerning tribal and indigenous communities in the iahrs. The case of Aloetoeboe and others v. Suriname demonstrates the beginning of the struggle with group complaints. Section two digs into the leading case regarding the recognition of land rights, Mayagna (Sumo) Awas Tingni Community v. Nicaragua. This case received an in-​depth analysis because it is representative of the first wave of jurisprudential developments. Section three addresses further developments of individual and collective dimensions of property following the path of Awas Tingni. Finally, section four presents interim conclusions. 1

An Important Precedent: the Aloeboetoe Case, 1993

At the beginning of the iahrs, the Inter-​American organs faced complex issues that challenged their capacity to deal with human rights violations affecting collective entities.2 One of these issues was the matter Aloeboetoe et al. v. Suriname.3 This case is the first one in the case law addressing indigenous and tribal communities. The decision’s importance, however, does not lie in its timing. Rather, it refers to the emergence of the problem on the individualization of victims in cases regarding tribal and indigenous communities. 1 In this chapter, in accordance with the IACtHR’s judgments, the terms tribal and indigenous peoples and tribal and indigenous communities will be used as synonymous. 2 For example see Velásquez Rodríguez v.  Honduras [1988] Series C No. 4, [1988] 1 (Inter-​ American Court of Human Rights); White Van (Paniagua Morales et al.) v. Guatemala [1998] Series C No. 37, [1998] 1 (Inter-​American Court of Human Rights); Caracazo v.  Venezuela (1999) Series C No. 58 1 (Inter-​American Court of Human Rights); Caso de los Niños de la Calle (Villagrán Morales y otros) v. Guatemala. Fondo [1999] Series C No. 63, [1999] 1 (Inter-​ American Court of Human Rights). 3 Aloeboetoe et al. v. Suriname [1991] Series C No. 11, [1991] 1 (Inter-​American Court of Human Rights); Aloeboetoe et al. v. Suriname [1993] Series C No. 15, [1993] (Inter-​American Court of Human Rights). Free translation by the author from the original decision in Spanish.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004411272_004

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To begin with, it is important to understand the factual background of the Aloeboetoe case. In August 1990, the IACtHR submitted the complaint to the Court against Suriname and in favor of Mr. Daison Aloeboetoe, Mr. Dedemanu Aloeboetoe, Mr. Mikuwendje Aloeboetoe, Mr. John Amoida, Mr. Richenel Voola, Mr. Martin Indisie Banai, and Mr. Beri Tiopo.4 According to the Commission’s petition, the victims were all male members of a Saramaka tribe in a Maroon community. They went to buy food supplies in the capital and on their way back to their villages soldiers of the Army detained them under the suspicion that they were members of a paramilitary group, the Jungle Commando. All the victims denied that they belonged to the Jungle Commando. Yet, soldiers beat and wounded them and forced them to lay face-​down on the ground. After offending the victims, the soldiers blindfolded them and dragged them into a military vehicle, and then drove towards Paramaribo. Finally, the soldiers killed six of the victims and left one seriously wounded, who died a few days after the incident. The Government of Suriname has acknowledged before the Court its responsibility regarding these incidents. The Court’s decision focused on setting the appropriate reparations. The controversial issue here concerned the type of reparations, their scope, and beneficiaries. In this regard, the Commission argued that the IACtHR should take into account the customs of the Saramaka tribe in order to set the redress measures. Accordingly, this tribe had a matrilineal structure, in which polygamy was common. The polygamous marriages were unofficial due to the inexistence of state registry offices in the Saramaka’s region. The iachr claimed that reparations were due to all the relatives and spouses of the unregistered marriages. Conversely, Suriname argued that its civil law should be applied to establish reparations. By deciding this issue, the Court applied the Commission’s approach. As redress measure, the IACtHR ordered the state to reopen the local school. In addition, it ordered Suriname to pay an amount of money to benefit the victims’ family members. This payment would occur through specially created funds. To help the victims’ family members manage the money, the state would create a special foundation. For that matter, Suriname had to make a contribution for the foundation’s operation and it should not restrict or tax the foundation’s activities. For the sake of this book, it is important to carefully assess the way in which the Court individualized the beneficiaries of reparations. Interestingly, the IACtHR recognized how difficult it was to individualize the members of the

4 Report No. 03/​90 –​Suriname [1990] 10.150, [1990] 1 (Inter-​American Commission on Human Rights).

38 Chapter 3 tribal community. This difficulty was a result of the characteristics of the tribal community’s way of life. The Court’s consideration was as it follows (emphasis added): It has proved extremely difficult to identify the children, spouses, and, in some cases, the ascendants of the victims in this case. These are all members of a tribe that lives in the jungle, in the interior of Suriname, and speaks only its own native tongue. Marriages and births have in many cases not been registered. In those cases where they have, sufficient data have not been provided to fully document the relationship between persons. The matter of identification becomes even more complex in a community which practices polygamy.5 Such a statement is rare in the Court’s case law. Usually, the IACtHR does not acknowledge in its sentences the difficulties associated with the individualization of community members. Yet, it is essential to bear in mind that these difficulties are always present in cases regarding tribal and indigenous communities. Tribal and indigenous lifestyles such as Saramaka’s one are different from the rest of the society due to their focus on the group. In addition, basic state services such as registration offices are often absent in the regions where tribal and indigenous communities live. Even when there are registration offices, sometimes these organs refuse, due to discriminatory reasons, to issue birth certificates with the indigenous names of indigenous persons.6 As a result, members of tribal and indigenous communities do not have birth certificates and therefore they do not officially exist. In view of that, if their rights are violated, they may not raise a claim before courts. Thus, they are marginalized from the rest of the society, without access to citizenship and fundamental rights. Put differently, tribal and indigenous communities are the subject of institutional structural discrimination. To tackle this problem of the individualization of victims and deal with the complaints filed by tribal and indigenous communities, this analysis indicates two basic solutions. The first one is to determine the reversal of the burden of proof. As a general rule in the iahrs, it is up to the petitioners to identify themselves and submit proof in this regard. However, on an exceptional basis, 5 Aloeboetoe et al. v. Suriname [1993] Series C No. 15, [1993] (Inter-​American Court of Human Rights) para 63. 6 Johny F Giffoni, ‘A aplicação das 100 regras de Brasília como fundamento da interpretação para a proteção dos direitos indígenas: A defensoria pública e a Convenção 169 da OIT’ (Curitiba, Paraná, Brazil) 152.

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39

the Court may determine that the petitioners identify themselves without submitting the related evidence. For instance, it may order in the case of tribal and indigenous communities that they identify themselves according to their customary laws. In this case, if the state disagrees with the identification of the petitioners, it would have to prove the falsity of such identification. In other words, the Court may shift the burden of proof from the victims to the accused state. This solution might be workable, but it is still problematic. The identification of individual members of indigenous communities is burdensome for the communities. In addition, in case the state contradicts the identification provided, the communities would probably not have the financial means to provide evidence proving the opposite. Procuring such evidence imposes a high cost on indigenous communities who are among the poorest peoples in the world. As a second type of solution, the Court could accept collective complaints submitted by these communities through the Commission. This way, tribal and indigenous communities would not have to identify their individual members. They would be identified as a collective based on a certain criteria that should include self-​identification. While ideal, it was very difficult to arrive at this second type of solution in the iahrs. The problem with the acceptance of collective complaints has its roots in the Court’s competences ratione materiae and personae. In its advisory opinion 14/​94, the Court dealt with the issue of whether its competence in contentious cases reached complaints concerning domestic laws, which had not been yet applied to concrete cases. By answering this question in a negative way, the Court explained that the iahrs only admitted petitions alleging a concrete violation of the Convention’s rights of a specific individual.7 Accordingly, this was a requirement set forth in Article 46 of the American Convention. Such requirement found its way into both the Commission’s and the Court’s rules of procedure. It constituted the so-​called victim requirement and restricted the Court’s competence ratione personae to individual persons.8 7 Advisory Opinion 14/​94 [1994] [1994] (Inter-​American Court of Human Rights) paras 45–​46. 8 There is no universal definition of the victim requirement. However, legal scholarship defines it often as a procedural requirement that implies that the applicant must be personally affected by the alleged violation of rights. Cf. Kersten Rogge, ‘The “victim” requirement in Article 25 of the European Convention on Human Rights’ in Franz Matscher and Herbert Petzold (eds), Protecting Human Rights: The European Dimension: Studies in Honour of Gérard J. Wiarda (Carl Heymanns Verlag KG 1988) 539; Anne van Aaken, ‘Making International Human Rights Protection More Effective: A Rational-​Choice Approach to the Effectiveness of Ius Standi Provisions’ (2005) 16 Preprints of the Max Planck Institute for Research on Collective Goods 1 12  accessed 23 October 2018.

40 Chapter 3 The iahrs has struggled for decades with the problem of the individualization of victims and its solutions. This problem went so far that it produced important changes in the iahrs as a whole. This is explained in-​depth in the following sections. 2

The Beginning of Communal Indigenous Property

Initially, the iahrs established itself by dealing with gross violations of human rights in non-​democratic states. Progressively, these states have transitioned to democracies and displayed high levels of inequality that caught the attention (and the agenda) of the iahrs.9 Inequality has a strong connection with historical patterns of territorial conflicts over indigenous lands.10 It came then without surprise that the iahrs started to vigorously examine complaints against violations of property rights of tribal and indigenous communities. The first judgment came in the case of Mayagna (Sumo) Awas Tingni indigenous community v. Nicaragua (2001).11 It concerned the lack of recognition of indigenous communities’ land rights in Nicaragua whose burning issues were well-​known by the Inter-​American Commission. Since the 1980s, the Inter-​American Commission has dealt with the complex and bloody conflict over indigenous peoples’ lands in the territorial region that corresponds to the state of Nicaragua. This conflict dates back to colonial times. There were significant new developments in 1979 when the

9

Victor Abramovich, ‘From Massive Violations to Structural Patterns: New Approaches and Classic Tensions in the Inter-​American Human Rights System’ (2009) 6(11) Sur –​International Journal on Human Rights 7 16–​18; Cecilia Medina Quiroga, The American Convention on Human Rights: Crucial Rights and their Theory and Practice (2nd rev. ed. Intersentia 2016) 7–​10. 10 On the relationship between inequality and indigenous lands see:  Erika I  Daes, ‘Indigenous Peoples and Their Relationship to Land’ (Final Working Paper Prepared by the Special Rapporteur, 11 June 2001)  UN Doc. E/​CN.4/​Sub.2/​2001/​21; Eduardo Viveiros de Castro, ‘Os involuntários da pátria: Elogio do subdesenvolvimento’ (2017) 65 Caderno de Leituras/​Série Intempestiva 1  accessed 23 October 2018. 11 According to the petitioners of this case, the members of the community refer to themselves as “Mayagna” whereas outsiders use the term “Sumo.” The original petition to the Inter-​American Commission refers only to the Mayagna Indian Community of Awas Tingni. The Inter-​American Commission added the term “Sumo” when submitting the case to the Court. For the original petition see Mayagna Indian Community of Awas Tingni, ‘Petition to the Inter-​American Commission on Human Rights against Nicaragua’ (1995) accessed 23 October 2018.

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Sandinista Government took power in Nicaragua. Indigenous peoples’ organizations began to blame the Nicaraguan state for an alleged ethnocide against local indigenous communities.12 Such a situation was a consequence of military and paramilitary activities in Nicaragua that brought increased attention of the international community to Central America’s brutal violent context.13 By this time, the Inter-​American Commission received a complaint brought by the indigenous organization Misurasata alleging violations of rights set down in the American Convention. After an unsuccessful attempt of a friendly settlement between the parties, the Commission published its report about the situation of the Miskito indigenous people (1983 report). Notably, the iachr produced this report in November 1983 whereas its publication occurred only in May 1984 without further submission of the case to the Court. The 1983 report represented a fresh start for the Commission in dealing with indigenous complaints. To produce this report, the Commission engaged with the interpretation of rights of the American Convention, property rights included, as applied to the situation of indigenous communities. Finally, the iachr concluded that international law offered legal protection only towards the preservation of indigenous culture, religion, and language. In other words, the Commission excluded the protection of indigenous lands from the realm of international law. The iachr recommended to Nicaragua 12

13

Inter-​American Commission on Human Rights, ‘Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin’ (29 November 1983) OEA/​ Ser.L./​V.II.62  accessed 23 October 2018. For an indigenous account of the conflict see the testimony of Mr. Armstrong Wiggins before the iachr. In his words:  “As we meet here today, we must keep in mind that the Indian crisis in Nicaragua has been ongoing for over three years. Widespread human rights violations have caused an unprecedented disruption of Indian life on the Atlantic Coast of Nicaragua. Never before in our history have the Miskito, Sumo and Rama Indians experienced such suffering.” Inter-​American Commission on Human Rights, ‘Testimony of Armstrong Wiggins before the oas Inter-​American Commission on Human Rights on the Violation of the Human Rights of Indian Peoples in the Atlantic Coast Region of Nicaragua’ (1984) 2. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] icj Reports 14–​150 (International Court of Justice). Human Rights Watch (former Americas Watch Committee) produced in the 1980s a series of comprehensive reports addressing the situation of human rights in Central America. Some of them were especially focused on Nicaragua and are available at the Hathi Trust Digital Library: Americas Watch Committee, ‘Human Rights in Nicaragua’ accessed 23 October 2018.

42 Chapter 3 the adoption of broad measures for preserving indigenous culture, religion, and language. It urged Nicaragua to guarantee the participation of ethnic groups in national decisions concerning their interests, and in the administration of the Atlantic coast region. Notably, the Commission highlighted the need of undertaking a study on the solution to the problem of indigenous ancestral lands. One decade later, the Commission built on its experience with the drafting of the 1983 report for advancing the case of the Nicaraguan indigenous community of Awas Tingni. The Commission recalled the main findings of the 1983 report to substantiate the arguments for the case of the Awas Tingni community before the Court. Additionally, the iachr requested the Court to take the affidavit of Mr. Brooklyn Rivera who filed the petition that was the basis for the 1983 report. Thus, there is a factual and personal connection, a continuum between the 1983 report and the Awas Tingni case. For the present research, the Awas Tingni case acquires special importance. It represents the first development on collective dimensions of property rights of tribal and indigenous communities. Beyond that, it exemplifies the Commission’s and Court’s interpretations that characterized the first line of pertinent jurisprudential cases in the iahrs. This section dedicates itself to the analysis of the Awas Tingni case. It aims to elucidate this case and its normative significance. Part one gives an overview on the Awas Tingni case under the complaint procedure. Part two develops the critical analysis of the case. Part three provides a preliminary assessment of the main findings. 2.1 Awas Tingni Case, 2001 This part presents a detailed summary of the Awas Tingni case in order to provide a deeper understanding of the issues at hand. This summary includes reference to all written parts of the proceedings in the Inter-​American complaint mechanism. Part one offers a summary of the factual background. Part two summarizes the content of the complaint by the Commission presented before the Inter-​American Court, which contains procedural and substantive aspects of the Awas Tingni case. Part three explains the final written arguments forwarded by the Commission to the Court. Finally, part four grasps the content of the binding decision issued by the Court. 2.1.1 Summary of the Factual Background in Nicaragua The Awas Tingni community (“the community” or “the indigenous community”) is a Mayagna indigenous community located on the Atlantic coast

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of Nicaragua.14 The term “Mayagna” refers to the larger indigenous ethno-​ linguistic group that includes Awas Tingni and its members. The community’s principal village is on the Wawa River, within the municipality of Waspam, in the Northern Atlantic Autonomous Region. Regarding its social institutions, the indigenous community has its own traditional organization under a customary leadership structure. A governing council answers to the communal leadership whose members the community elects and monitors. Indeed, there are regular assemblies open to all adult members of the community. Domestic laws recognize this singular communal social structure of the Awas Tingni community. Familiar agriculture, hunting, fishing, fruits, and medicinal plants gathering are the major source of subsistence. The community carries out these activities in its ancestral territory for the sake of guaranteeing its survival. Communal lands are thus essential to collective existence and development as a group. For several years the Government of Nicaragua had been granting concessions that affect the communal ancestral territory without consulting the indigenous community. The first round of concessions was awarded between 1993 and 1994. The Nicaraguan Natural Resources Ministry (“MARENA”) granted a concession to Maderas y Derivados de Nicaragua S.A, a joint Nicaraguan-​ Dominican company, for exploiting an area within the claimed communal lands. Shortly after, due to active opposition against the concession led by the community and ngo s, MARENA suspended it. MARENA decided then to negotiate with the community to enable the project affecting indigenous lands. Such negotiation resulted in a trilateral agreement signed by the community, the Nicaraguan-​Dominican Company, and MARENA. This agreement contained provisions regarding environmental safeguards and the participation of the community in the project. Shortly after the first concession MARENA began to negotiate, without the community, another concession with a timber company that would affect Awas Tingni’s lands. In 1995, MARENA began arranging a concession with Sol de Caribe S.A. (“SOLCARSA”), a subsidiary of the Korean conglomerate Kumkyung

14

The summary of facts is based on: (1) Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [1998] 11.577, [1998] (Inter-​American Commission on Human Rights); (2) Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [2001] Series C No. 79, [2001] 1 (Inter-​American Court of Human Rights). Free translation by the author from the original documents written in Spanish. For an alternative version of the facts see:  S. J Anaya and Claudio Grossman, ‘The Case of Awas Tingni v.  Nicaragua:  A New Step in the International Law of Indigenous Peoples’ (2002) 19(1) Arizona Journal of International & Comparative Law 1 2–​11.

44 Chapter 3 Co. Ltd., to cut timber in an area of approximately 61,000 hectares, with an impact on Awas Tingni communal lands. The Awas Tingni community used administrative remedies to protest against MARENA’s negotiations with SOLCARSA without the participation of the community. The indigenous community through its legal representative wrote a letter to the Minister of MARENA. This letter complained against the granting of an eventual concession to SOLCARSA because MARENA did not involve the community in the negotiations, despite the risk of the concession’s impact on communal lands. By the same token, the leaders of the community through their legal representatives filed a petition for “amparo” claiming the suspension of MARENA’s concession. The first instance of the domestic court denied the admissibility of this petition. The tribunal stated that the petitioners tacitly consented to the concession at issue because they failed to complain within the legal timeframe, i.e. thirty days of acknowledgement of the contested government action. As evidence for this argument, the tribunal referred to the letter from the community to the Minister of MARENA. This letter proved that the community knew about the negotiations between MARENA and SOLCARSA before July 11, 1995, and that it submitted the petition more than thirty days later. The Supreme Court of Justice upheld the decision of the first instance and dismissed the community’s appeal. On March 13, 1996, MARENA authorized a concession in favor of SOLCARSA for thirty years. Following a community’s request, MARENA explained to the legal representatives of the community the reasons behind this concession. According to MARENA’s statement, indigenous communities of the Atlantic Coast did not have legal personality. The official representative of these communities was the Regional Council of the Autonomous Region of the North Atlantic (“Regional Council”). Pursuant to Article 181 of the Nicaraguan Constitution, the Regional Council had allegedly approved the concession under a resolution issued by the board of directors. Thus, the government’s concession to SOLCARSA was in accordance with domestic laws. The community and its legal representatives demanded explanations from the Regional Council. The Regional Council stated that it did not give consent to the concession as the state had alleged. The approval by the Regional Council’s plenary was still pending. This was the reason why members of the Regional Council filed an amparo action against the Minister of MARENA and asked for both the suspension and nullification of the concession to SOLCARSA. The Supreme Court of Nicaragua recognized the illegality of MARENA’s concession to SOLCARSA. In response to the amparo action filed by the Regional Council, the Supreme Court ruled that the present concession was illegal due

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to the lack of approval by the Regional Council’s plenary. Yet, even after this decision, the Nicaraguan state did not suspend the concession, thus violating the Supreme Court’s judgment. MARENA complied with this judgment only two years later. The legal representatives of the Awas Tingni Community filed a second amparo action. This lawsuit requested the suspension of MARENA’s concession. The domestic court admitted the petition whereas it denied the request in it because allegedly the contested state’s act had already been carried out. The Supreme Court did not rule on the decision’s appeal because supposedly the amparo action was time-​barred. 2.1.2 The Commission’s Report to the Court Against this factual background, through its leader, Mr. Jaime Castillo Felipe, the Mayagna indigenous community of Awas Tingni filed a petition before the Inter-​American Commission.15 He complained against the violations of the American Convention due to Nicaragua’s alleged failure to secure land rights of local indigenous communities. Following the iahrs complaint procedure, the Inter-​American Commission adopted the Report 27/​98 on March 3, 1998. This report comprised several recommendations to Nicaragua. The Commission forwarded them to Nicaragua and requested a response. According to the Commission, the state’s response constituted recognition of its responsibility for the violation of Awas Tingni rights. Nicaragua had not officially recognized the indigenous peoples’ land rights and redressed the Awas Tingni community for damages following the concession. Unsatisfied with Nicaragua’s response, the iachr decided to forward the case to the Court. The Commission’s report stated that the case fulfilled the admissibility criteria. Regarding the requirement of exhaustion of domestic remedies pursuant to Article 46 of the American Convention, the Commission stated that domestic legal remedies were ineffective. In accordance with the Court’s jurisprudence, the ineffectiveness of legal remedies constitutes a violation of the achr. Likewise, alleged violations of the ineffectiveness of legal remedies are a matter to be considered in the merits of the Court’s decision. Moreover, the Commission asserted that the state’s response to its recommendations constituted recognition of international responsibility. Consequently, the state cannot act in a way that contradicts such recognition, for instance, by arguing the 15

This section is based on the report of the Inter-​American Commission in the case of Awas Tingni. See Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [1998] 11.577, [1998] (Inter-​American Commission on Human Rights).

46 Chapter 3 lack of exhaustion of domestic remedies. Therefore, any preliminary objection regarding the lack of exhaustion of domestic remedies should be dismissed by the Court. With respect to Article 21 of the achr, the Commission’s report accused Nicaragua of violating the right to property due to the failure to adopt measures securing communal rights to lands and natural resources therein. In the present case, the state ignored Awas Tingni land rights. It did not contradict the evidence of historical land tenure of indigenous communities. In fact, Nicaragua ignored communal land rights by not issuing an official property title. Nicaragua acted as if Awas Tingni lands were part of state property. In its report, the Commission claimed that the American Convention protects the relationship between indigenous communities and their lands. Article 21 of the achr read in conjunction with Article 1(1) thereof protects traditional indigenous forms of land tenure. In addition, Article 21 of the achr read in conjunction with Articles 1(1), 2 thereof establishes the state’s obligation to adopt measures for protecting indigenous peoples’ lands. Such measures should guarantee the physical and cultural survival of indigenous peoples, including through the demarcation of their lands. In addition, these measures would prevent the exploitation of natural resources by third parties in indigenous lands without indigenous communities’ consent. This state obligation to adopt measures for protecting indigenous lands exists also in view of Article 24 of the achr and the ilo Convention 169. Beyond that, the Commission affirmed that indigenous lands are protected both under Nicaraguan domestic laws and international human rights law. Among the sources of this protection, it pointed out to Article 39 of the Inter-​ American charter of Social Guarantees, Article 11 of the ilo Convention 107, Article 14.1 of the ilo Convention 169, Article xviii of the Draft adrip, and Article 26 of the Draft undrip. According to the Commission, a state’s failure to secure communal land rights constitutes racial discrimination and puts indigenous communities in a vulnerable position. Indigenous communities may not protect their lands and invoke their rights. A  state’s concession affecting Awas Tingni lands demonstrates such vulnerability. This is a result of historical discrimination against indigenous communities as affirmed by Inter-​American organs and the ­u ncerd. Moreover, the Commission’s report argued that the protection of indigenous lands finds a legal basis in the relationship between indigenous communities and the environment. The right to property is linked to the right to protect the environment. Article 22 of the Rio Declaration on Environment and Development illustrates the important role of indigenous peoples in this regard. The

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right of indigenous peoples to their environment is also in accordance with the draft adrip and the draft undrip. Furthermore, the Commission contended that Article 29 of the achr supports the protection of indigenous peoples and their lands. This provision set forth the prohibition to interpret the American Convention in a way that limits the exercise of rights recognized in domestic laws or in conventions, of which the state is a party. Nicaragua is party to many international conventions (iccpr, icrc, and cerd) that guarantee the protection of racial and ethnic groups such as indigenous communities. Lastly, the Commission held that the state actively violated the community’s rights by authorizing the exploitation of communal lands without consulting the community. This authorization jeopardized the very survival and cultural integrity of the Awas Tingni community. Accordingly, such situation contradicts Nicaragua’s obligations pursuant to Article 27 of the iccpr, which protects the right of community members to develop their cultural activities. In addition, it counteracts domestic laws. State officers who authorized the concession were neither investigated nor judged. Finally, the Commission requested in its report that the Court order reparations to the benefit of the Awas Tingni community. These reparations are as follows: First, Nicaragua must establish a legal procedure in accordance with international and domestic law that achieves the demarcation and official recognition of communal rights, including natural resources within indigenous lands. Second, Nicaragua must abstain from granting concessions to third parties in indigenous lands until issues related to the land rights of the community have been solved or until there is an agreement between the state and the community. Third, Nicaragua must pay reparations to the community due to the lack of recognition of land rights and to the impact of the concession to SOLCARSA. Fourth, Nicaragua needs to pay the costs for the defense of the community in domestic and international proceedings. Lastly, the Commission stated that it would present a separate request for reparations and costs before the Court in a different stage of the proceedings. 2.1.3 The Commission’s Final Written Arguments After the case’s public hearing, the parties submitted final documents, including new evidence and arguments.16 Accordingly, the Commission argued for an autonomous interpretation of Article 21 of the American Convention. 16

This part summarizes the final written arguments of the Inter-​American Commission before the Inter-​American Court. For further reference see Final Written Arguments in the Case of Awas Tingni v. Nicaragua (2001) (Inter-​American Commission on Human Rights).

48 Chapter 3 Likewise, it stated that the meaning of property goes beyond the ordinary meaning of the domestic legal systems. In the context of indigenous communities, property is akin to indigenous traditional land use and possession. Notably, the Commission sustained that traditional indigenous land tenure finds recognition in a number of international legal instruments, in decisions of international courts, and in domestic laws of Latin American countries. Such widespread recognition of traditional indigenous land tenure offers evidence of the existence of a rule of customary international law in this regard or at least a very advanced process in the creation of such a norm.17 Indeed, the Commission added that the hrc and the cerd have been interpreting international legal instruments as protecting traditional indigenous land tenure. The Commission claimed that the absence of official property title does not eliminate the right to communal property. This right has its origins in the traditional land tenure of indigenous communities. Hence, it exists regardless of official state recognition. In a like manner, the Nicaraguan Supreme Court has applied a similar interpretation. According to decisions of domestic courts quoted by the Commission, the existence of traditional land tenure implies the protection of possession as property. This interpretation should be applied in the case of the Awas Tingni community. Yet, international law does not and should not establish a definition, a specific delineation of property rights of indigenous communities. From the Commission’s perspective, the Court should not consider the state’s arguments because this consideration would go against the principle of estoppel. During the proceedings, Nicaragua accepted the Commission’s recommendations and declared its intention to establish an official domestic procedure of demarcation and recognition of Awas Tingni lands. Accordingly, the state cannot act in a way that goes against this recognition. Moreover, the Commission recognized the existence of claims of different indigenous communities within the alleged Awas Tingni lands. For the iachr, the different claims indicate the existence of a unique property rights system, in which the Awas Tingni community shares part of its lands with other indigenous communities. Experts before the Commission confirmed the existence of this property rights system. The Commission also brought the argument that the relationship between the community and its lands is under the protection of other rights set forth in the achr. They referred i.a. to the right to life (Article 4 of the American 17

ibid, basing itself, in footnote 80, on the analysis of Siegfried Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harvard Human Rights Law Journal 57.

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Convention), right to honor and dignity (Article 11 of the American Convention), right to freedom of conscience and religion (Article 12 of the American Convention). In the case of Awas Tingni, the state has violated these rights by granting the concession. 2.1.4 The Court’s Decision On August 31, 2001, the Inter-​American Court issued the decision in the case of Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua.18 One of the crucial proven facts for this decision related to the special characteristics of the community of Awas Tingni. The IACtHR established that the Awas Tingni was an indigenous community living in Nicaragua. This community had its own socio-​political organization that included a board of directors elected by all adult members of the community. The members of the Awas Tingni community have developed an economy consisting of family farming, communal agriculture, fruit gathering, hunting, and fishing. They have carried out these activities within a territorial space according to their traditional communal organization. The community lacked property title to the claimed territory. With respect to the merits, the Court began its analysis with Article 21 of the American Convention. It stated that this provision recognizes the right to private property. To recognize the protection of communal property, the IACtHR used different interpretative tools. First, it interpreted Article 21 of the American Convention in a historical and autonomous way. While the original draft of Article 21 of the American Convention protected the use and enjoyment of private property, the approved text of Article 21 of the American Convention does not include the word “private.” Following an autonomous interpretation of international human rights law, the IACtHR interpreted this provision in accordance with current living conditions of indigenous communities. Second, the tribunal referred to Article 29(b) of the American Convention that precludes a restrictive interpretation of the achr. Since the Constitution of Nicaragua protects the framework of indigenous communal property, the Court cannot interpret the achr in a more restrictive way than the Constitution of Nicaragua. The IACtHR recognized the right of members of the indigenous 18

This part refers to Court’s decision on the case of Awas Tingni. See Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [2001] Series C No. 79, [2001] 1 (Inter-​ American Court of Human Rights). For a compact summary of the decision see: Richard J Wilson and Jan Perlin, ‘The Inter-​American Human Rights System: Activities from Late 2000 through October 2002’ (2002–​2003) 18 American University International Law Review 651 683–​686.

50 Chapter 3 communities within the framework of communal property pursuant to Article 21 of the American Convention. The Inter-​American Court proceeded with remarks on the special characteristics of indigenous property in order to interpret the content of Article 21 of the American Convention. The tribunal recognized the relationship between indigenous communities and their lands, understanding it as the fundamental basis of their cultures, spiritual life, and their economic survival. Moreover, the Court highlighted that the ownership of indigenous land is not centered on an individual, but rather on the group or its community. Nicaraguan domestic laws also protect communal property, but fail to provide a specific procedure to entitle indigenous communities. In addition, the interpretation by the IACtHR referred to indigenous customary laws. Indigenous land possession should result in the official recognition by the state with the issuance of a property title to the benefit of the community. Regarding the overlapping of territorial claims between Awas Tingni and other indigenous communities, the IACtHR confirmed the communal property rights in favor of the Awas Tingni community. In addition, it stated that these rights exist notwithstanding the existence of rights of other indigenous communities. Thus, the Inter-​American Court concluded that the state violated Article 21 of the achr in connection with Articles 1(1) and 2 thereof to the detriment of the members of the Awas Tingni community. In doing so, it emphasized the application of Article 29 of the American Convention. The tribunal attributed the violation to the state due to the failure in delimitating, demarcating, and titling the territory belonging to the indigenous community, and in granting concessions to third parties to exploit the claimed land and the resources therein. Regarding reparations, the Inter-​American Court considered the position of the parties. On the one hand, the Nicaraguan state denied any claim to compensation, alleging that it was ill-​founded. On the other hand, the Commission required in its initial petition a few reparation measures and mentioned that it would present a separate request for reparations and costs. According to the Inter-​American Court, the iachr extemporaneously presented this separate request and thus it was time-​barred.19 19

For an alternative detailed view on the Court’s rejection of the Commission’s request for reparations see: S. J Anaya and Claudio Grossman, ‘The Case of Awas Tingni v. Nicaragua: A New Step in the International Law of Indigenous Peoples’ (2002) 19(1) Arizona Journal of International & Comparative Law 1 13–​14.

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The Inter-​American Court ordered the reparations as follows: First, the state had to adopt the legislative, administrative, and any other measures required to create an effective procedure for the delimitation, demarcation, and titling of property of indigenous communities, in accordance with their customary law, values, and customs. Second, the state had to carry out the delimitation, demarcation, and titling of the lands of the members of the Awas Tingni community, within a maximum term of fifteen months, with the participation of the Awas Tingni community and considering its customary laws, values, and customs. Third, until the delimitation, demarcation, and titling was completed, the state had to abstain from acting and allowing third parties to act in a way that affected the existence, value, use, and enjoyment of lands by the Awas Tingni community. Moreover, the Inter-​American Court held that the state had to invest as reparation for non-​material damages, in the course of twelve months, the total sum of US$ 50,000 in works or services to the benefit of the Awas Tingni community, in common agreement with the community and under the Commission’s supervision. For expenses and costs of domestic and international proceedings, the IACtHR granted US$ 30,000, within a term of six months, to the members of the Awas Tingni community through the iachr. 2.2 Case Analysis The Awas Tingni case presents new developments concerning the individual and collective aspects of indigenous property. This part aims to show these aspects in light of the work of the iahrs organs. In order to enable a comprehensive understanding of the case, this section has two parts. Part one explores the Commission’s written arguments. Part two deals with the Court’s decision on the merits, reparations, and costs. 2.2.1

The Commission’s Work: The Rationale Behind It and International Law This section uncovers the rationale behind the Commission’s approach in the Awas Tingni case. It is the basis for understanding the application of the right to property to the situation of indigenous communities. It explains that the Commission’s petition relied on both transformative concepts of “discrimination” and “vulnerability”, international law, and the Convention’s autonomous interpretation.20 This last one is explained in the following subsection. 20

Cf. Laurence Burgorgue-​Larsen, ‘El contexto, las técnicas y las consecuencias de la interpretación de la Convención Americana de los Derechos Humanos’ (2014) 12(1) Estudos Constitucionales 105 129–​131.

52 Chapter 3 The doctrine of historical racial discrimination against indigenous communities has been underlying the exercise of the Commission’s mandate for a long time. The situation of indigenous communities in Nicaragua as marginalized social groups is a result of large-​scale discrimination. In 1983, the Commission exposed this problem in its report on the situation of human rights of the Nicaraguan population of Miskito origin.21 Two decades later, in the present case, the iachr persisted with this argument. The Commission supported it by quoting the practice of the oas. It alleged that the situation of indigenous communities had not changed over the years. In view of this statement, it is compelling to observe that the exercise of the Commission’s mandate in preparing thematic reports influenced the analysis of cases under the complaint procedure. The Commission argued correctly that the factual basis on the historical discrimination against indigenous peoples and its doctrinal classification as discrimination has its roots attached to the United Nations. The Commission quoted a UN report that affirmed that for centuries indigenous communities have been discriminated against on the grounds of being regarded as “primitive” and “inferior.” Likewise, the inexistence of an effective protection of indigenous lands and resources therein in Nicaragua reflects such discrimination. The general recommendations of the uncerd address also this issue. Furthermore, it must be observed that the second doctrinal basis for the Commission’s interpretation related to the situation of vulnerability of indigenous communities. Here the iachr used a dual approach. On the one hand, the initial petition defined vulnerability in terms of lack of legal recognition.22 Accordingly, the lack of recognition of land rights has left the indigenous community in a vulnerable position to defend its property rights against third parties. On the other hand, the final written arguments conceptualized vulnerability only in terms of poor social conditions.23 Likewise, vulnerability based itself on historical reasons that caused poor social conditions to the indigenous community. Due to the dual approach, the concept of vulnerability in this case is unclear and so are the necessary remedies to solve this situation. Therefore, in the Awas Tingni case, this lack of clarity constrains the doctrinal potential of “vulnerability” to support the legal claims. 21 See Mayagna (Sumo) Indigenous Community of Awas Tingni v.  Nicaragua [1998] 11.577, [1998] (Inter-​American Commission on Human Rights) para 106. 22 See ibid para 129. 23 See Final Written Arguments in the Case of Awas Tingni v. Nicaragua (2001) (Inter-​American Commission on Human Rights) para 95.

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The doctrinal basis of the Commission’s interpretation exposes a solid background for the recognition of different aspects of property. The transformative concepts explained above have a theoretical setting grounded in legal scholarship. Vulnerability and historical racial discrimination highlight aspects of general legal theory such as equality and historical justice. Both concepts engage in a dialogue with each other and with other human rights instruments. Hence, they can be applied indirectly in accordance with Article 29(b) of the American Convention.24 Remarkably, general international human rights law has played a key role in the Commission’s petition. Pursuant to Article 29(b) of the American Convention, the achr shall not be interpreted in a way that restricts the enjoyment or exercise of any right or freedom recognized by virtue of any convention, to which a state is a party. Nicaragua has ratified, among others, the ilo Convention 169, which recognizes the rights of indigenous peoples. Additionally, it has ratified the iccpr, the icrc, and the cerd that have been interpreted as protecting indigenous land rights. The Commission shaped its argument in connection with such international legal instruments. Thus, it demonstrated the far-​reaching protection of land rights of indigenous peoples under international human rights law and how they relate to the iahrs.25 The interpretation of the right to property pursuant to the American Convention was in accordance with international human rights law. The iachr demonstrated the widespread recognition of land rights of indigenous communities. Such recognition was stated in Article 39 of the Inter-​ American Charter of Social Guarantees,26 Article 14(2) of the ilo Convention 24

Benedict Kingsbury, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples´ Claims in International and Comparative Law’ [2001–​2002] New York University Journal of International Law and Politics 189, 193–​202; Romina I Sijniensky, ‘From the Non-​ Discrimination Clause to the Concept of Vulnerability in International Human Rights Law: Advancing on the Need for Special Protection of Certain Groups and Individuals.’ in Yves Haeck and others (eds), The Realisation of Human Rights:  When Theory Meets Practice: Studies in Honour of Leo Zwaak (Intersentia 2013). 25 See Mayagna (Sumo) Indigenous Community of Awas Tingni v.  Nicaragua [1998] 11.577, [1998] (Inter-​American Commission on Human Rights) paras 104–​112. 26 Article 39 of the Inter-​American Charter of Social Guarantees (1948): “En los países en donde exista el problema de la población aborigen se adoptarán las medidas necesarias para prestar al indio protección y asistencia, amparándole la vida, la libertad y la propiedad, defendiéndolo del exterminio, resguardándolo de la opresión y la explotación, protegiéndolo de la miseria y suministrándole adecuada educación. El Estado ejercerá su tutela para preservar, mantener y desarrollar el patrimonio de los indios o de sus tribus, y promoverá la explotación de las riquezas naturales, industriales extractivas o cualesquiera otras fuentes de rendimiento, procedentes de dicho patrimonio o relacionadas con éste, en el sentido de asegurar, cuando sea oportuna, la emancipación económica de las agrupaciones

54 Chapter 3 169,27 Article 18 of the Draft adrip, and Article 26 of the Draft undrip.28 In light of these legal developments, the Commission argued the existence of a rule of customary international law regarding the right of indigenous communities to safeguard their traditional tenure over land and natural resources therein, or at least a very advanced process in the creation of such a norm.29 The right of indigenous communities to their lands and natural resources as customary international law was controversial in legal scholarship. At the time of the Awas Tingni decision, there was not a consensus among legal scholars on land rights of indigenous peoples.30 In the aftermath of Awas Tingni, especially after the adoption of the undrip (2007), such controversy has ended. The legal literature indicates now a common position recognizing the right of indigenous peoples to their lands and resources therein as customary international law.31 This becomes evident in view of paragraph seven of the International Law Association Resolution No. 5/​2012.32 Eminent scholars from all around the world adopted this resolution after carefully examining the state of art of the rights of indigenous peoples.33 As a result, such resolution autóctonas. Deben crearse instituciones o servicios para la protección de los indios, y en particular para hacer respetar sus tierras, legalizar su posesión por los mismos y evitar la invasión de tales tierras por parte de extraños.” (Emphasis added). 27 Article 14(2) of the ilo Convention 169: “Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.” 28 By the time of the decision in Awas Tingni, neither the undrip nor the adrip were approved. 29 See Final Written Arguments in the Case of Awas Tingni v. Nicaragua (2001) (Inter-​American Commission on Human Rights) para 64. 30 Nigel Bankes, ‘International Human Rights Law and Natural Resources Projects Within the Traditional Territories of Indigenous Peoples’ (2010) 47(2) Alberta Law Review 457; Siegfried Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harvard Human Rights Law Journal 57 109–​110. 31 See among others: Stefania Errico, ‘Control Over Natural Resources and Protection of the Environment of Indigenous Territories: Articles 29, 30, and 32’ in Jessie Hohmann and Marc Weller (eds), The UN Declaration on the Rights of Indigenous Peoples: A Commentary (Oxford commentaries on international law, 1st. ed. Oxford University Press 2018) 456; Martin Scheinin and Mattias Ahren, ‘Relationship to Human Rights, and Related International Instruments’ in Jessie Hohmann and Marc Weller (eds), The UN Declaration on the Rights of Indigenous Peoples:  A Commentary (Oxford commentaries on international law, 1st. ed. Oxford University Press 2018) 63. 32 Resolution No. 5/​2012 –​Rights of Indigenous Peoples [2012] (International Law Association). 33 Siegfried Wiessner, ‘The State and Indigenous Peoples: The Historic Significance of ILA Resolution No. 5/​2012’ in Marten Breuer and others (eds), Der Staat im Recht: Festschrift für Eckart Klein zum 70. Geburtstag (Schriften zum öffentlichen Recht vol 1232. Duncker & Humblot 2013) 1363–​1368.

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constitutes an important source for the development and interpretation of law in both domestic courts and international adjudicatory bodies.34 According to the American Law Institute, such a resolution is to be regarded as evidence of international law pursuant to Article 38(1)(d) of the Statute of the International Court of Justice.35 Moreover, the Commission’s petition was in line with the iccpr and the hrc’s jurisprudence. Similar to the achr, the iccpr lacks any provision addressing indigenous peoples or their rights. Yet, the hrc addressed complaints related to indigenous lands by applying the right of members of minority groups to enjoy their own culture pursuant to Article 27 of the iccpr.36 According to the hrc, culture may relate to the development of a particular way of life and traditional economic activities as in the case of indigenous peoples. The hrc’s case law deals with indigenous communities and their lands through the interpretation canon of culture. The Commission used such a legal

34

35

36

Grand River Enterprises Six Nations, LTD, et  al. v.  United States of America [2011] [2011] (International Centre for Settlement of Investment Disputes) para 210; Federico Lenzerini, ‘The Safeguarding of Collective Cultural Rights through the Evolutionary Interpretation of Human Rights Treaties and Their Translation into Principles of Customary International Law’ in Andrzej Jakubowski (ed), Cultural Rights as Collective Rights:  An International Law Perspective (Studies in intercultural human rights vol 7. Martinus Nijhoff Publishers 2016) 151; Torsten Stein, ‘International Law Association (ILA)’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018) paras 9–​10. The American Law Institute, Restatement of the Law, Third, Foreign Relations Law of the United States (The American Law Institute 1987), Reporters Notes 1; Risa Schwartz, ‘Realizing Indigenous Rights in International Environmental Law:  A Canadian Perspective’ (2016) 109 CIGI Papers 1 4  accessed 29 April 2019; Siegfried Wiessner, ‘The Cultural Dimension of the Rights of Indigenous Peoples’ in Federico Lenzerini and Ana F Vrdoljak (eds), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Studies in international law Volume 50. Hart Publishing 2014,) 182. See in this regard: General Comment No. 23: The Rights of Minorities (Art. 27) [1994] CCPR/​ C/​21/​Rev.1/​Add.5, [1994] (Human Rights Committee). For the legal scholarship on the hrc and indigenous peoples see: Mariana Monteiro de Matos, ‘Cultural Identity and Self-​ determination as Key Concepts in Concurring Legal Frameworks for the International Protection of the Rights of Indigenous Peoples’ in Evelyne Lagrange, Stefan Oeter and Robert Uerpmann-​Wittzack (eds), Cultural Heritage and International Law:  Objects, Means and Ends of International Protection (Springer 2018); Martin Scheinin, ‘Indigenous Peoples´ Rights under the International Covenant on Civil and Political Rights’ in Joshua Castellino and Niamh Walsh (eds), International Law and Indigenous Peoples (Martinus Nijhoff 2005)  9–​15; Patrick Thornberry, Indigenous peoples and human rights (Melland Schill studies in international law, Manchester University Press 2002) 124–​129.

56 Chapter 3 reasoning to argue for the case of the Awas Tingni community. It stated that state concessions on Awas Tingni’s lands threatened the survival and cultural integrity of the community. Therefore, the interrelationship between culture, property, and lands was well-​founded in the Commission’s petition. Interestingly, the right of self-​determination pursuant to Article 1 of the i­ ccpr played a role in the Commission’s interpretation. The Commission argued that indigenous communities were entitled to the right set down in Article 1 of the iccpr (right of self-​determination). Such an interpretation goes beyond the jurisprudence of the hrc that does not admit, in the individual complaint procedure, indigenous peoples’ claims based on the right of self-​determination.37 As a final legal argument, the Commission’s petition drew attention to international environmental law. There was a special emphasis on the right to a healthy and productive life in harmony with nature as set down in the Rio Declaration on Environment and Development, and in the Agenda 21. The Commission’s references reflected the general trend of that time to address the situation of indigenous peoples through the umbrella of international environmental law.38 The Rio Declaration highlights the role of indigenous communities as guardians of nature and the state duty to support indigenous communities in order to achieve sustainable development. According to the Commission, the recognition of indigenous land tenure arises from this state duty. 2.2.1.1 Substantive Issues 2.2.1.1.1 Rule

The Awas Tingni case is a landmark decision about indigenous peoples’ land rights. The Commission explored in this case specific property rights of 37

38

Between 1990 and 2016, the hrc decided five communications brought by indigenous peoples alleging violations of Article 1 of the iccpr (the right to self-​determination). By analyzing these communications, the hrc dismissed all the claims drawing on Article 1 of the iccpr. See in this regard: Ivan Kitok v. Sweden (1987) CCPR/​C/​33/​D/​197/​1985 (Human Rights Committee); Chief Bernard Ominayak and the Lubicon Lake Band v. Canada [1990] CCPR/​C/​38/​D/​167/​1984, [1990] (Human Rights Committee); J.G.A. Diergaardt et  al. v. Namibia (2000) CCPR/​C/​69/​D/​760/​1997 (Human Rights Committee); Apirana Mahuika et al. v. New Zealand [2000] CCPR/​C/​70/​D/​547/​1993, [2000] (Human Rights Committee); Ángela Poma Poma v.  Peru [2009] CCPR/​C/​95/​D/​1457/​2006, [2009] 1 (Human Rights Committee). For an overview on the protection of indigenous peoples under international environmental law:  Peter-​Tobias Stoll and Anja von Hahn, ‘Indigenous Peoples, Indigenous Knowledge and Indigenos Resources in International Law’ in Silke v Lewinski (ed), Indigenous heritage and intellectual property: Genetic resources, traditional knowledge, and folklore (2nd ed. Kluwer Law International 2008) 30–​34.

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indigenous communities. This analysis demonstrates that the Commission delimitated well the source and collective aspects of property rights. An important hermeneutical tool for the Commission’s petition was the so-​ called autonomous interpretation of the American Convention. Such interpretation is similar to the one used by the ECtHR.39 This type of interpretation was combined with the doctrinal basis explained in the previous section. Such combined interpretation defined the scope of the right to property through the focus on both external and internal interpretative sources, and state obligations raised by the American Convention. With respect to the source of the right to property, it is important to point out the external elements, i.e. international human rights law. The right to property pursuant to the achr may have a different scope compared to the one of domestic laws. Pursuant to Article 29(b) of the American Convention, the right to property may be expanded in light of international human rights instruments. For instance, while Article 21 of the American Convention does not explicitly mention indigenous property, Article 14 of the ilo Convention 169 does so. Nicaragua ratified the ilo Convention 169. Consequently, in the case of Nicaragua, the interpretation of the Convention’s right to property includes the protection of indigenous lands. Article 29(b) of the achr enables a wider scope in establishing property protection. This provision is a strong basis for the recognition of indigenous land rights provided that the state has ratified international agreements. Concerning internal interpretative sources, the Commission’s application of indigenous customary law is innovative and controversial. According to the Commission, a legitimate claim to the right to property by indigenous communities exists even if there is a lack of state recognition in this regard.40 The Commission’s argument goes so far as to establish that collective traditional patterns of indigenous land tenure demonstrate the legitimate existence of property. For the Commission, the legal basis of such argument is Article 21 of the achr read in conjunction with Article 1(1) thereof. This is problematic because the achr does not make any reference to the use of customary law as an interpretative source. In fact, Article 1(1) of the achr refers to the principle

39

40

Aida Grgic and others, The Right to Property under the European Convention on Human Rights: A Guide to the Implementation of the European Convention on Human Rights and its Protocols (Council of Europe 2007) 7; Bernadette Rainey, Elizabeth Wicks and Clare Ovey, Jacobs, White, and Ovey The European Convention on Human Rights (Seventh edition, Oxford University Press 2017) 551. Final Written Arguments in the Case of Awas Tingni v. Nicaragua (2001) 18 (Inter-​American Commission on Human Rights).

58 Chapter 3 of non-​discrimination and the state obligation to respect and guarantee the Convention’s rights. Therefore, the direct application of indigenous customary law to interpret the American Convention should not be as straightforward as the Commission claimed. In this regard, a solid path for the use of indigenous customary law as an interpretative source is found in Article 29(b) of the achr. The iachr observed correctly that Nicaraguan domestic laws recognized indigenous customary rights. Such recognition is a common point in Latin American countries. For example, in Brazil, there is a similar treatment to indigenous property under the concept of indigenato. Article 231 of the Brazilian Constitution establishes that indigenous communities are the original land owners. In view of the Nicaraguan domestic laws recognizing indigenous rights, the Commission argued that these rights constituted a minimum basis for the Convention’s interpretation. This claim is in line with the achr pursuant to Article 29(b) of the achr. Thus, indigenous customary rights are adequate to be used as source for the interpretation of Article 21 of the achr. In view of the internal sources of the right to property, this analysis exposes that the state has a margin of discretion regarding the definition of property rights of indigenous communities. According to the Commission, the state may define these rights under domestic law subject to the respect of indigenous customary norms. Yet, the state’s discretion is not unlimited. Likewise, the state must engage actively in defining property rights for domestic laws. The Commission’s interpretation is in accordance with Nicaragua’s commitment under international human rights law. In this context, it is important to emphasize that the state’s margin of discretion in the Awas Tingni case is not related to the margin of appreciation doctrine of the ECtHR.41 Problematic with the state’s margin of discretion is that this interpretation leaves the victims with a high degree of legal uncertainty. At the end of the procedure based only on the Commission’s argument, the Awas Tingni community and its members would not know exactly the extent of their property rights. They would have to wait for the state to define their rights. In case that the community feels that the state has failed to properly recognize their property rights, a judicial review of the state’s decision under the complaint procedure would not be possible. Hence, this analysis suggests the need of reducing the state’s margin of discretion to a minimum.

41

On the margin of appreciation of the ECtHR see: Case of Handyside v. the United Kingdom [1976] 5493/​72, [1976] 1 (European Court of Human Rights) 17.

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Furthermore, the evaluation of the Commission’s work exposes the dual nature of the right to property pursuant to the American Convention as a civil and socio-​economic right. The socio-​economic aspect is evident in light of the state positive obligations associated with Article 21 of the achr. Article 1 of the American Convention and Article 2 thereof establish that states have to adopt measures to give effect to the American rights and freedoms. In view of Article 21 of the achr, these measures relate to the state obligation to recognize the right to property in light of traditional patterns of indigenous land tenure. Such an obligation is a singular aspect of the human right to indigenous communal property. The individual right to private property does not contain such an obligation. Moreover, the state’s obligation to recognize the right of indigenous communities to property encompasses substantive collective aspects. In contrast to civil property, the use of property by indigenous communities occurs in a collective way. Even in case those indigenous communities do not have the land title, states must comply with the obligation to protect their collective land tenure. An individual protection of property is not sufficient to meet the threshold of the state obligation enshrined in Article 21 of the American ­Convention. In the present case, the right to property included individual and communal rights. During the proceedings, the Commission stated that the indigenous community uses and occupies its territory in accordance with customary law of indigenous communities in the lowlands of America.42 For further clarification of this customary law, the Commission made a footnote reference to the witness statements during the audience. These statements clarified the relationship between individual and communal rights in the Awas Tingni community.43 Accordingly, Awas Tingni possessed its territory in a communal or collective form whereas individual and families enjoyed subsidiary rights. Yet, in the present case, despite the footnote reference, the Commission’s written statements do not uphold a clear distinction between individual and communal rights.44 42 See Final Written Arguments in the Case of Awas Tingni v. Nicaragua (2001) (Inter-​American Commission on Human Rights) para 20. 43 See especially in the hearings before the Inter-​American Court the answers of Mr. Jaime Castillo Felipe, Mr. Charlie Mclean, Mr. Theodore Macdonald and Mr. Rodolfo Stavenhagen to the questions of Judge Garcia Ramirez:  University of Arizona, ‘IPLP Outreach  –​Awas Tingni’ (2018) accessed 23 October 2018. 44 For a critical view in this regard: Doris Farget, ‘Le droit collectif de propriété sur les territoires ancestraux: Un collectif abstrait; des entités intermédiaires effacées’ (2016) 29(1) Int J Semiot Law 135 142–​143.

60 Chapter 3 Finally, it is compelling to conclude that indigenous property rights are determined on a case-​by-​case basis depending on domestic and international laws. The social context also plays a key role, especially in the case where domestic laws recognize indigenous customary rights. Indigenous practices and norms are not uniform among indigenous communities. 2.2.1.1.2 Object

The case of Awas Tingni created the concept of indigenous property in the iahrs jurisprudence. To that end, the Commission elaborated upon two issues: the definition of property pursuant to the American Convention, and the special features of indigenous property. The Inter-​American Commission provided a definition of “property.” Such a definition is a unique aspect of the Inter-​American System. It distinguishes itself from the European Human Rights System, which does not comprise a definition of property.45 The Commission asserted regarding Article 21 of the American Convention that: The concept of property includes a great variety of interests that people can have over tangible and intangible goods according to applicable norms or understandings from various sources. With regard to land and natural resources, property is not limited to what is possessed under a formal title of exclusive domain. Within state legal systems, property rights exist, for example, through prescription and limited usufruct rights.46 Likewise, the definition of property comprises three main aspects. First, property encompasses tangible and intangible goods. It may include shares of stock, intellectual property rights, claims to money or to social security benefits. Second, property comprises lands without formal titles of exclusive domain. It covers properties with informal property titles of shared domain such as indigenous lands. Third, the Commission’s open definition enables the consideration of various sources of law for interpreting the meaning of property.

45

Ursula Kriebaum and August Reinisch, ‘International Protection of the Right to Property’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018)  para 35; Bernadette Rainey, Elizabeth Wicks and Clare Ovey, Jacobs, White, and Ovey The European Convention on Human Rights (Seventh edition, Oxford University Press 2017) 551. 46 See Final Written Arguments in the Case of Awas Tingni v. Nicaragua (2001) (Inter-​American Commission on Human Rights) para 61.

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The concept of property includes goods such as the collective spiritual relationship of indigenous communities with their lands. This is a crucial difference compared to the European human rights system in which the non-​physical property aspects are protected only if they have an economic value.47 In the case of Awas Tingni, several documents attached to the petition explained and evidenced traditional patterns of communal land tenure, including religious and cultural aspects. Likewise, indigenous property refers to the specific geographical area that the community is attached to. Awas Tingni had farming, hunting, fishing, and the gathering of fruits and medicinal plants as main economic activities. These economic activities belonged to the communal culture and constituted the relationship between the indigenous community and its lands. Many other indigenous communities have been living in a similar way, having their economic activities based on land resources management. Thus, the protection of the relationship of indigenous communities to their lands under the concept of indigenous property is of crucial importance. Moreover, property is a flexible concept that adapts to the special features of indigenous communal lifestyle. These features do not exist in the concept of traditional civil property. In the case of Awas Tingni, the Commission alluded to the community’s regular territorial relocation as a characteristic of its special land tenure. With the mobile lifestyle of the Awas Tingni, there is a nexus between current and ancestral lands, which is preserved mainly through the identification of sacred places in the different portions of the territory. Furthermore, the concept of indigenous property may include an overlap between the territories of different indigenous communities within the same land. For instance, on the Atlantic Coast of Nicaragua it is a common pattern to have land shared among different indigenous communities. Likewise, the Commission understood that the existence of two or more claims by indigenous communities over the same area indicates the existence of a unique concept of property. This concept contrasts with the traditional concept of property, in which ownership is characterized by the exclusive use of a thing without the interference of others. Hence, it is compelling to conclude that an indigenous land may comprise different small properties owned by distinguished indigenous communities. 47

Paeffgen Gmbh v.  Germany [2007] 25379/​ 04; 21688/​ 05; 21722/​ 05; 21770/​ 05, [2007] (European Court of Human Rights) 8. On the literature see: Bernadette Rainey, Elizabeth Wicks and Clare Ovey, Jacobs, White, and Ovey The European Convention on Human Rights (Seventh edition, Oxford University Press 2017)  551; William Schabas, The European Convention on Human Rights: A commentary (Oxford commentaries on international law, Oxford University Press 2017) 971.

62 Chapter 3 The recognition of these special characteristics of indigenous property is of great importance due to its disregard by domestic laws. As it happens in the Awas Tingni case, states often use the characteristics of indigenous property to dismiss indigenous communities’ claims. The concept of indigenous property is different from the definition of private property under domestic laws.48 For instance, in the case of Awas Tingni, the state claimed that the issuance of land titles in favor of the community was extremely complex (and almost impossible) because the extension of lands claimed by the community was not proportional to the number of its individual members.49 To argue against such an argument, it is necessary to recognize the special features of the concept of indigenous property. Communal value of indigenous lands cannot be compared to the individual property recognized by the state. A major shortcoming in the Commission’s argument was the absence of an explanation about the type of natural resources protected under the concept of indigenous property. The iachr demonstrated a cutting-​edge interpretation of property by referring to indigenous land and natural resources tenure. Yet, the Commission failed to specify the type of natural resources (minerals, waters, coastal seas) entailed in this concept of property. Since natural resources in indigenous lands are a controversial issue between states and indigenous peoples, the Commission’s definition severely constrains the protection of indigenous property.50 2.2.1.2 Procedural Issues: Legal Capacity The Awas Tingni case inaugurates the participation of indigenous communities and its members in the Inter-​American complaint mechanism. This part explores the community’s legal capacity as victim and petitioner before the 48 See Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [2001] Series C No. 79, [2001] 1 (Inter-​American Court of Human Rights) para 141; S. J Anaya and Claudio Grossman, ‘The Case of Awas Tingni v. Nicaragua: A New Step in the International Law of Indigenous Peoples’ (2002) 19(1) Arizona Journal of International & Comparative Law 1 10; S.  J Anaya and Maia S Campbell, ‘Gaining Legal Recognition of Indigenous Land Rights: The Story of the Awas Tingni Case in Nicaragua’ in Deena R Hurwitz, Margaret L Satterthwaite and Doug Ford (eds), Human Rights Advocacy Stories (Foundation Press 2009) 133. 49 See Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [2001] Series C No. 79, [2001] 1 (Inter-​American Court of Human Rights) para 141. 50 Jérémie Gilbert, Indigenous peoples’ land rights under international law:  From victims to actors (Transnational Publishers 2006)  1–​84; Nico Schrijver, Sovereignty over natural resources: Balancing rights and duties (Cambridge studies in international and comparative law, Cambridge University Press 1997).

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Commission. It is important to highlight that the Commission’s rules of procedure are the basis for understanding the legal capacity of indigenous communities.51 These rules do not mention indigenous communities. As a preliminary remark, it is crucial to remember that the notion of “victim” is not intertwined with the one of “petitioner.” This is a particular aspect of the iahrs that contrasts with the European Human Rights System. Pursuant to Article 44 of the American Convention, any person, group of persons or any non-​governmental entity may lodge petitions with the Commission. Accordingly, the petitioners do not need to be victims or have any connection with the victims. Hence, “petitioners” and “victims” are independent concepts in the iahrs. The main obstacle for the participation of the Awas Tingni community in the proceedings related to language issues. Article 22 of the Commission’s Rules of Procedure (1980) set down the Commission’s official languages to be Spanish, French, English, and Portuguese. The participation of a translator during the proceedings was not stipulated. As a consequence, officially, members of the indigenous community could not express themselves in their own languages before the Commission. Such Commission’s practice contrasted with the Court’s practice that included the presence of a translator if the victims did not speak the official language used in the proceedings. According to the Court, this was as an element of the due process of law.52 In view of this language requirement, legal representatives of the indigenous community should have a solid legal background and advanced skills on the Commission’s working languages. This follows from the necessity of submitting written statements to the Commission pursuant to Article 31(7) of the Rules of Procedure (1980). To cope with it, the petition in the case of the Awas Tingni community was submitted by Nicaraguan and US attorneys. Indigenous communities would have had a hard time if they have chosen to litigate by themselves. Moreover, petitioners must sign the original petition pursuant to Article 29 of the Rules of Procedure (1980). This requirement may seem irrelevant, but for indigenous communities whose members are illiterate, it is a very complex issue. Article 23(1) of the Rules of Procedure (1980) and Article 44 of the American Convention comprise a good solution for this issue because these provisions allow any person, group of persons or ngo s to file a petition. Hence, anyone may submit a case to the Inter-​American Commission on behalf of the 51 52

Rules of Procedure 8 April 1980 (Inter-​American Commission on Human Rights). Opinión Consultiva 16/​99 [1999] OC-​16/​99, [1999] 1 (Inter-​American Court of Human Rights) para 120.

64 Chapter 3 group. In the present case, the petition was signed by legal representatives of the community. Generally, the Commission’s Rules of Procedure (1980) prevented the active participation of members of indigenous communities during the proceedings. They did not have a significant role to play in it. Dulitzky and Zafiris explain that these Rules of Procedure have presented difficulties for individual complaints, leading to the adoption of a new set of rules in 2000.53 Furthermore, the Inter-​American Commission regarded the indigenous community of Awas Tingni as the victim. Notably, it differentiated between the subjectivity of the community and of its individual members. It identified in its petition violations of Article 21 of the achr against the Mayagna community of Awas Tingni and other indigenous communities of the Nicaraguan Atlantic Coast. In contrast, following the rules of procedure, the Commission attached to the complaint a list with the names of the 142 individuals who were the heads of the families belonging to the community.54 Thus, the victim was an individualized group of persons. The recognition of the community as a victim relates to the controversial issue of individualization of members of tribal and indigenous communities.55 The Commission’s consolidated interpretation of Article 1(2) of the American Convention is that only individuals can be victims of violations.56 Nevertheless, the iachr did not follow this interpretation in the Awas Tingni case. It 53 Ariel Dulitzky and Ismene N Zafiris, ‘Facing the Challenge:  The Inter-​ American Commission on Human Rights’ Adoption of New Rules of Procedure and its impact on the Inter-​American System of Human Rights’ (2003) 21 Nordic Journal of Human Rights 257 262. See also in this regard: Robert K Goldman, ‘History and Action: the Inter-​American Human Rights System and the Role of the Inter-​American Commission on Human Rights’ (2009) 31 Human Rights Quarterly 856 874–​882. 54 Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [1998] 11.577, [1998] (Inter-​American Commission on Human Rights), Annex. 55 See above in this chapter, “1. An Important Precedent: The Aloeboetoe Case.” 56 Report No. 51 –​Janet Espinoza Feria et al. (Peru) (2002) 12.404 (Inter-​American Commission on Human Rights) paras 34–​36; MEVOPAL, S.A. –​Argentina [1999] [1999] (Inter-​American Commission on Human Rights) paras 13–​17; Report No. 28/​98 –​Maria Eugenia Morales de Sierra (Guatemala) (1998) 11.625 (Inter-​American Commission on Human Rights) paras 30–​31; Tabacalera Boquerón S.A.  –​Paraguay (1997) OEA/​Ser.L/​V/​II.98 (Inter-​American Commission on Human Rights) paras 24–​25; Report No. 48/​96  –​Emérita Montoya González (Costa Rica) (1996) 11.553 (Inter-​American Commission on Human Rights) paras 27–​31; Banco de Lima –​Peru [1991] 10.169, [1991] (Inter-​American Commission on Human Rights) paras 1–​3. See also:  Eduardo Ferrer Mac-​Gregor and Carlos M Pelayo Möller, ‘Capítulo I  –​Enumeración de deberes’ in Christian Steiner and Patricia Uribe (eds), Convención Americana sobre Derechos Humanos: Comentario (Fundación Konrad Adenauer 2014) 61–​62.

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took as granted that both individuals and groups were subjects of the rights enshrined in the American Convention. The reason behind the Commission’s recognition of indigenous communities as rights holders may have been related to the American Declaration. The adhr does not contain a similar provision to Article 1(2) of the American Convention that restricts the application of its provisions to individual human beings. Indeed, the Commission has developed a case law regarding the violation of rights of collective subjects.57 Article 29(d) of the American Convention establishes that the Convention should not be interpreted in a way that limits the effects of the American Declaration. Thus, by interpreting the Convention in accordance with the Declaration, collective subjects may be regarded as rights holders.58 Such an understanding is implicit in the Commission’s work in the present case. An important aspect of the Awas Tingni case concerns the definition of the indigenous community. For the first time, the Commission exposed the criteria behind this definition. The iachr considered six objective aspects:  (1) geographical location, (2) native language of community members, (3) sociopolitical structure, (4)  economy, (5)  relationship with communal lands, and (6) local culture. Subjective aspects such as self-​identification could also have been considered, but the Commission did not mention them. The criteria of self-​identification of indigenous peoples are widely established in international law as Article 1(2) of the ilo Convention 169 demonstrates. Moreover, the Commission used a special terminology to refer to the community. It interchanged the terms indigenous communities and indigenous peoples without expressing any reason for that. An explanation is important due to different normative consequences that each of the concepts (“peoples” and “communities”) have in public international law. “Community” does not comprise any specific consequence whereas “people” relates to the right of self-​determination.59 57 58

59

Jehovah’s Witnesses  –​ Argentina (1978) 2137 (Inter-​American Commission on Human Rights); ABC Color  –​Paraguay [1984] 9250, [1984] (Inter-​American Commission on Human Rights). Diego Rodríguez Pinzón, ‘The “victim” requirement, the fourth instance formula and the notion of “person” in the individual complaint procedure of the Inter-​American Human Rights System’ (2000–​2001) 7 ILSA Journal of International & Comparative Law 369 380–​382. Advisory Opinion  –​Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] [2004] ICJ Reports 136 (International Court of Justice) para 88. Gudmundur Alfredsson, ‘Peoples’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018), paras 18–​22. For a historical perspective on the use of the concept of “peoples” to indigenous groups: Russel

66 Chapter 3 The alternate use of “communities” and “people” leads to the conclusion that both concepts have the same meaning in the work of the Inter-​American Commission. The reason behind it seems to be the influence of distinguished legal sources. The prominent “Cobo’s study of the problem of discrimination” uses as synonyms the terms “indigenous communities”, “peoples” and “nations”.60 Besides, Nicaraguan domestic laws refer to both indigenous peoples and communities of the Atlantic Coast.61 It is not clear whether in Nicaragua indigenous peoples and indigenous communities are equivalent legal ­categories.62 In this context, it is important to highlight that the Commission recognized the role of indigenous communities as minority groups. The definition of indigenous communities as minorities is a very controversial issue.63 Yet, the iachr used the protection provided to members of minority groups set down in Article 27 of the iccpr to substantiate its argument. Accordingly, indigenous communities fall under the category of racial and ethnic groups.64 L Barsh, ‘Indigenous Peoples in the 1990s: From Object to Subject of International Law’ (1994) 7(33) Harvard Human Rights Law Journal 33; Asbjorn Eide, ‘Rights of indigenous peoples –​achievements in international law during the last quarter of a century’ (2006) 37 Netherlands Yearbook of International Law 155 198–​199. For a discussion on the concept of peoples related to the UNDRIP: John B Henriksen, ‘The UN Declaration on the Rights of Indigenous Peoples: Some Key Issues and Events in the Process’ in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration work: The United Nations Declaration on the Rights of Indigenous Peoples (Document/​IWGIA no. 127. IWGIA 2009) 80. 60 un ecosoc, ‘Study on the Problem of Discrimination against Indigenous Populations, Final report by José Martínez R. Cobo’ (September 30, 1983) UN Doc E/​CN.4/​Sub.2/​1983/​ 21/​Add.8 para 379. 61 See Mayagna (Sumo) Indigenous Community of Awas Tingni v.  Nicaragua [1998] 11.577, [1998] (Inter-​American Commission on Human Rights) paras 93–​95. 62 For instance, in Argentina, indigenous communities are a subcategory under the concept of indigenous peoples. See Natalia P Copello Barone, ‘Igualdad y no Discriminación: Análisis de su aplicación al caso de las comunidade originarias’ [Julio –​Deciembre 2015] Revista del Instituto Interamericano de Derechos Humanos 31, 32–​33. 63 On this issue see:  Kristin Henrard, ‘International Protection of Minorities’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018) paras 17–​18; Will Kymlicka, ‘Minority Rights in Political Philosophy and International Law’ in Samantha Besson and John Tasioulas (eds), The philosophy of international law (Oxford University Press 2010); United Nations Commission on Human Rights, Economic and Social Council, ‘Working Paper on the Relationship and Distinction Between the Rights of Persons Belonging to Minorities and those of Indigenous Peoples by Erika Irene Daes and Asbjorn Eide’ (July 19, 2000) UN Doc E/​CN.4/​Sub.2/​2000/​10. 64 See Mayagna (Sumo) Indigenous Community of Awas Tingni v.  Nicaragua [1998] 11.577, [1998] (Inter-​American Commission on Human Rights) para 114.

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In the Inter-​American System, the role of indigenous communities as minorities has been previously recognized. The Commission’s decision in the case of the Yanomami v. Brazil recognized the Yanomami as an ethnic group entitled to minority protection.65 The Commission applied a similar understanding to cases addressing indigenous communities in the following years.66 Yet, the Commission stated 2000 that this approach was insufficient to deal with indigenous issues.67 Accordingly, the nature of indigenous communities is more complex than suggested in the concept of minority. In view of that, it is compelling to conclude that the Commission avoids using the concept of “minority” when writing thematic reports. Yet, mainly for strategical reasons, the iachr continues to use it in contentious cases such as Awas Tingni. In its initial complaint, the iachr flagged the role of indigenous communities as environmental stewards. This role consists in the development of environmentally sound land management by indigenous communities in accordance with the right to a healthy and productive life in harmony with nature pursuant to Principles 1, 22 of the Rio Declaration. The conceptualization of indigenous communities as guardians of the nature is very controversial because of its inherent utilitarian or functional approach.68 Indeed, it can be argued that this conceptualization might jeopardize the protection of indigenous communities because it raises the controversy of whether indigenous

65 66

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Resolution 12/​ 85  –​Yanomami Indians (Brazil) [1985] 7615, [1985] (Inter-​ American Commission on Human Rights) para 7. Inter-​American Commission on Human Rights, ‘Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin’ (29 November 1983) OEA/​ Ser.L./​V.II.62  accessed 23 October 2018. Claudio Nash Rojas, ‘Los derechos indígenas en el sistema interamericano de derechos humanos’ (2008) 1(1) Inter-​American and European Human Rights Journal 61 64–​65; Luis R Pinero Royo, ‘El sistema interamericano de derechos humanos y los pueblos indígenas’ in Mikel Berraondo (ed), Pueblos indígenas y derechos humanos (Serie Derechos humanos vol 14. Universidad de Deusto 2006) 161–​162; Elizabeth Salmón, Los pueblos indígenas en la jurisprudencia de la corte interamericana de derechos humanos: Estándares en torno a su protección y promoción (Cooperación Alemana al Desarrollo (gIz) 2010) 35–​40. Inter-​American Commission on Human Rights (ed), The Human Rights Situation of the Indigenous People in the Americas (2000), Introduction. Dinah Shelton, ‘Indigenous Peoples and Sustainable Development’ in Jorge E Viñuales (ed), The Rio Declaration on Environment and Development: A commentary (Oxford commentaries on international law, 1.  ed. Oxford Univ. Press 2015)  544. For a critical perspective on the protection of indigenous peoples through international law:  Maria V Cabrera Ormaza, ‘Re-​thinking the Role of Indigenous Peoples in International Law: New Developments in International Environmental Law and Development Cooperation’ (2012) 4(1) Goettingen Journal of International Law 263 281–​289.

68 Chapter 3 groups may pursue modern economic activities in their lands.69 The Commission does not clarify these issues. In view of the above explanation, this analysis concludes that the role of indigenous communities as rights holders was a developing concept. The Commission’s distinguished perspectives towards the role of these subjects ranged from environmental stewards to minorities to peoples entitled to self-​ determination. From the perspective of legal scholarship, the Commission’s line of argumentation seems inconsistent. In accordance with international law, an entity is either a minority or a people. An indigenous group cannot be both at the same time. 2.2.1

The Court’s Decision: the Rationale Behind It and International Law The Court’s interpretation in the case of Awas Tingni had multiple sources. Following its consolidated jurisprudence, the IACtHR made a combination of different interpretative tools. In this respect, four different aspects deserve special attention. As in prior judgments, the evolutive interpretation, the pro homine principle, and international human rights law played a key role. In addition, indigenous customary law represented a particular source for this case –​and for all the cases on indigenous property rights. This section explains the main tools of the Court’s interpretation. The pro homine principle is the north and south of the Court’s jurisprudence.70 This principle follows from Article 29(b) of the American Convention. This provision prohibits an interpretation of any right established in the iahrs in a way that restricts the standards set down in other international or national legal instruments. The American Convention stands as a minimum level of protection whose scope can be enhanced by reference to other legal instruments.71 Article 29(b) of the American Convention has a similar wording 69

Cf. José P Kastrup, ‘The Internationalization of Indigenous Rights from the Environmental and Human Rights Perspective’ (1997) 32(1) Texas International Law Journal 97 118. The hrc has dealt with the protection of modern economic activities regarding the right of indigenous peoples. See Länsman et al. v. Finland [1994] UN Doc CCPR/​C/​52/​D/​511/​ 1992, [1994] (Human Rights Committee); Patrick Thornberry, Indigenous peoples and human rights (Melland Schill studies in international law, Manchester University Press 2002) 168–​169. 70 The pro homine principle has a longstanding history in the iahrs. See in this respect Opinión Consultiva 16/​99 [1999] OC-​16/​99, [1999] 1 (Inter-​American Court of Human Rights) paras 110–​124. 71 Laurence Burgorgue-​Larsen, ‘El contexto, las técnicas y las consecuencias de la interpretación de la Convención Americana de los Derechos Humanos’ (2014) 12(1) Estudos Constitucionales 105 119–​ 121; Jo M Pasqualucci, The practice and procedure of the

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to the provisions of other human rights instruments such as Article 53 of the ECoHR and Article 5 of the iccpr. Legal scholarship calls this type of provision as the “more favorable clause” towards individuals.72 Besides the pro homine principle, crucial for the Court’s interpretation was the doctrine of the autonomous meaning of human rights treaties. Such a doctrine is part of the so-​called evolutive interpretation.73 According to the Court’s consolidated jurisprudence, this interpretation follows the rule of Article 31(1) of the vclt.74 It consists in interpreting the provisions of the American Convention in light of a context and in view of the American Convention’s object and purpose. In his concurring opinion to the Awas Tingni case, Judge García Ramírez grasped the object and purpose of the American Convention: In this regard, the object and purpose are to uphold human dignity and recognize the demands that the protection and fulfillment of the human person pose, to articulate attendant obligations, and to provide juridical instruments that preserve that human dignity and meet those demands.75 Hence, the Court established with clarity the cornerstones of its autonomous interpretation. It is teleological in the sense of protecting the dignity of each human being. Such an aim together with the context of indigenous communities constitutes key elements in the rationale behind the application of Article 21 of the American Convention.

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Inter-​American Court of Human Rights (2. ed. Cambridge University Press 2013)  12–​14; Gabriela Rodríguez, ‘Normas de Interpretación’ in Christian Steiner and Patricia Uribe (eds), Convención Americana sobre Derechos Humanos: Comentario (Fundación Konrad Adenauer 2014). Yota Negishi, ‘The Pro Homine Principle´s Role in Regulating the Relationship Between Conventionality Control and Constitutionality Control’ (2016) 13 MPIL Research Paper Series 1 12–​18. On the evolutive interpretation see Laurence Burgorgue-​Larsen, ‘El contexto, las técnicas y las consecuencias de la interpretación de la Convención Americana de los Derechos Humanos’ (2014) 12(1) Estudos Constitucionales 105 119–​131. There is a wide range of decisions and advisory opinions that explain in detail the evolutive interpretation. Among them see Opinión Consultiva 16/​99 [1999] OC-​16/​99, [1999] 1 (Inter-​American Court of Human Rights) paras 112–​115; Caso de los Niños de la Calle (Villagrán Morales y otros) v.  Guatemala. Fondo [1999] Series C No. 63, [1999] 1 (Inter-​ American Court of Human Rights) paras 192–​198. Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [2001] Series C No. 79, [2001] 1 (Inter-​American Court of Human Rights), Concurring Opinion of Judge García Ramírez para 4.

70 Chapter 3 Moreover, indigenous customary law influenced the interpretation of the American Convention. This source was an innovative aspect of the Court’s decision. The IACtHR gave particular importance to indigenous customary law in analyzing the relationship between individual and community rights. The concurring opinion of Judge García Ramírez grasped it vividly (emphasis added): It must be recalled that individual subjective rights flow from and are protected by these community rights, which are an essential part of the juridical culture of many indigenous peoples and, by extension, of their members. In short, there is an intimate and inextricable link between individual and collective rights, a linkage that is a condition sine qua non for genuine protection of persons belonging to indigenous ethnic groups.76 The Court’s interpretation is unique because it contradicts mainstream scholarship that interprets group protection on the basis of individual rights. Most human rights bodies start their decisions by interpreting a specific human rights provision, which is individually framed, and then apply it to the context of a certain group.77 Only during the application of the rule does a collective aspect emerge. Conversely, according to Judge García Ramírez, the IACtHR considered first the communal rights of the indigenous community, and then looked at the American Convention. Hence, the individual character of a treaty provision deserved less attention in the Court’s practice than in the practice of other human rights bodies. The Court’s understanding of the relationship between individual and community rights has a contentious point. In case of a conflict between an individual and a community right, the Court’s understanding could lead to the disregard of individual rights. This consequence would be inconsistent with international human rights law that upholds the primacy of individuals over groups.78 Still, it is too soon to engage in such discussion here since the Awas Tingni case represents only the first decision concerning indigenous ­communities.

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ibid para 14. See on this issue:  General Comment No. 23:  The Rights of Minorities (Art. 27) [1994] CCPR/​C/​21/​Rev.1/​Add.5, [1994] (Human Rights Committee) para 1; Nicola Wenzel, Das Spannungsverhältnis zwischen Gruppenschutz und Individualschutz im Völkerrecht (Univ. Diss. Heidelberg, 2006. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht vol 191, Max-​ Planck-​ Institut für ausländisches öffentliches Recht und Völkerrecht Heidelberg 2008) 69. ibid 16–​24.

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General international human rights law played a small role in the Court’s arguments. There were only a few references to international legal instruments. This may be a result of the Court’s effort to build a regional doctrine on the right to property related to indigenous communities. Yet, implicitly, international legal instruments supported the Court’s interpretation. They were an essential piece for the doctrinal basis behind the tribunal’s interpretation. Article 29(b) of the American Convention enables this dialogue, which becomes particularly clear in light of Judge García Ramírez’s concurring opinion. He quotes the ilo Convention 169, the draft declaration on discrimination against indigenous peoples, and the proposed ADRIP. All these legal instruments protect the relationship of indigenous communities with their lands and t­ erritories. The Court’s recognition of the relationship between indigenous communities and their lands is very similar to the hrc’s interpretation. The iccpr does not entail any provision concerning this relationship of indigenous communities with their lands. Conversely, the hrc interprets Article 27 of the iccpr in a way so as to protect this relationship.79 The hrc’s interpretation may have been a source of influence to the IACtHR. Yet, the Awas Tingni judgment did not make any explicit reference to the iccpr or to the hrc. 2.2.1.1 Substantive Issues 2.2.1.1.1 Rule

Article 21 of the American Convention recognizes the right to use and enjoy property. In the decision concerning Awas Tingni, this provision acquired new shades in face of the context of the indigenous community. Article 21 of the ACHR protected the right of members of an indigenous community to communal property. This section explains the individual and collective aspects related to the right to property. It explains those aspects in light of the Court’s dual-​dimension approach, the emergence of “new” property rights, and related state obligations. The Court enhanced the scope of the right to property in applying a dual-​ dimension approach. Concisely, it created a new collective dimension of the right to property in parallel to the individual dimension. The Court’s jurisprudence prior to Awas Tingni interpreted Article 21 of the American Convention in a rather individualistic way. Accordingly, it focused on the protection of

79 See General Comment No. 23: The Rights of Minorities (Art. 27) [1994] CCPR/​C/​21/​Rev.1/​ Add.5, [1994] (Human Rights Committee) para 7.

72 Chapter 3 individual property and the limits for state intervention.80 Such approach was similar to the one of the ECtHR, which had a limited jurisprudence on the positive obligations associated with the right to property.81 The landmark cases of the European case law are the ones on issues regarding the reunification of Germany and post-​communist states in Europe.82 In the Awas Tingni case, the tribunal recognized for the first time state duties concerning the guarantee of collective property rights according to Article 21 of the achr. This innovative interpretation gave the right to property another nature associated with social, economic, and cultural rights. As Judge García Ramírez explained:  “The topic of this judgment, and by extension the judgment itself, is at that point where civil laws and economic, social and cultural laws converge. In other words, it stands at that junction where civil law and social law meet.”83 Thus, the right to property emerged with a dual dimension composed by individual and collective aspects.84 The right to property contains several state obligations to protect indigenous lands. The American Convention does not contain such obligations de lege lata. Yet, the Court used Articles 1(1), 2 of the American Convention to establish state obligations in its jurisprudence.85 First, the state must adopt domestic laws containing the necessary measures to create a mechanism for delimitation, demarcation, and entitling of indigenous lands according to indigenous customary laws. Second, the state must delimitate, demarcate, and entitle indigenous territories. Third, in case the state does not comply with the

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Cesti-​Hurtado v.  Peru [1999] 56, [1999] (Inter-​American Court of Human Rights) para 179–​183; Ivcher-​Bronstein v. Peru [2001] Series C No. 74, [2001] 1 (Inter-​American Court of Human Rights) paras 119–​131. Bernadette Rainey, Elizabeth Wicks and Clare Ovey, Jacobs, White, and Ovey The European Convention on Human Rights (Seventh edition, Oxford University Press 2017) 549–​551. For a good summary in this regard see: Kopecký v. Slovakia [09/​28//​2004] 44912/​98, [2004] (European Court of Human Rights) para 35. Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [2001] Series C No. 79, [2001] 1 (Inter-​American Court of Human Rights), Concurring Opinion of Judge Sergio García Ramírez para 17. The dual dimension approach has appeared before in the Court’s case law related to other rights of the American Convention. In this regard see Laurence Burgorgue-​Larsen, ‘El contexto, las técnicas y las consecuencias de la interpretación de la Convención Americana de los Derechos Humanos’ (2014) 12(1) Estudos Constitucionales 105 122–​123; Laurence Burgorgue-​Larsen and others, The Inter-​American Court of Human Rights: Case law and commentary (Oxford University Press 2013) 536–​537. For a deep analysis on the elaboration of state obligations in the Court’s case law see Laurens Lavrysen, ‘Positive Obligations in the Jurisprudence of the Inter-​American Court of Human Rights’ (2014) 7 Inter-​American and European Human Rights Journal 94.

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first and second obligations, it must pay a due compensation to indigenous communities. The breakthrough of the Awas Tingni decision refers to the development of a legal protection for indigenous possession under the concept of property. In the judgment of Awas Tingni, the Court included indigenous possession in the threshold of Article 21 of the American Convention.86 Briefly, the right to use and enjoy property includes the right to unofficially possess collective lands. As mentioned above, in accordance with the Court, the state has the obligation to enact domestic laws recognizing such possession. The IACtHR’s understanding does not find similarities with the ECtHR’s approach that is based on the concepts of “existing possessions”, “assets”, and “legitimate expectations.”87 Nevertheless, the use of multiple interpretative sources by the Court brings normative uncertainty to its decision. The present judgment left unclear the specific legal provision used by the IACtHR to protect indigenous possession. The decision in Awas Tingni referred to different legal instruments to substantiate the legal protection of indigenous possession. Likewise, one interpretation of the Court’s decision is that the legal source of this protection relies on the joint interpretation of the American Convention together with other human rights instruments. In this case, indigenous possession would be protected only in countries that have officially recognized indigenous communal property under domestic laws or that have ratified other international legal instruments such as the ilo Convention 169.88 It remained for the upcoming decisions the clarification of the legal source of the protection of indigenous possession. Following the autonomous interpretation, the Inter-​American Court created “new” rights under the “right to use and enjoyment of property” pursuant to Article 21 of the achr. In the case of indigenous communities, the Court specified that the right to indigenous communal property includes the right to 86 Cf. Case of Dogan and Others v. Turkey [2004] Applications nos. 8803–​8811/​02, 8813/​02 and 8815–​8819/​02, [2004] (European Court of Human Rights) paras 135–​139. 87 See among others Saghinadze and Others v. Georgia [2010] 18768/​05, [2010] (European Court of Human Rights) para 103; Pressos Compania Naviera S.A. and Others v. Belgium [1995] 17849/​91, [1995] (European Court of Human Rights) para 31. Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights –​Protection of Property [2018] [2019] (European Court of Human Rights) 7. 88 Cf. Thomas M Antkowiak, ‘Rights, resources and rhetoric:  Indigenous Peoples and the Inter-​American Court’ (2013) 35 University of Pennsylvania Journal of International Law 113 144. For an opposition to this argument: S. J Anaya and Claudio Grossman, ‘The Case of Awas Tingni v. Nicaragua: A New Step in the International Law of Indigenous Peoples’ (2002) 19(1) Arizona Journal of International & Comparative Law 1 15.

74 Chapter 3 live freely in indigenous lands. Additionally, the IACtHR entitled members of indigenous communities to the right to enjoy the material and spiritual relationship between them and their lands. 2.2.1.1.2 Object

This section elucidates the concept of communal indigenous property in two parts. In a first step, it elucidates individual and collective aspects of property that follows from the preparatory work of Article 21 of the American Convention. In doing so, it helps to understand the justification behind the recognition of communal indigenous property pursuant to Article 21 of the achr. In a second step, it focuses on the unique aspects of communal indigenous property as underscored in the judgment of Awas Tingni. In the decision of Awas Tingni v. Nicaragua, the Inter-​American Court reiterated its definition of property. The Court’s definition contrasts with the absence of definition of property in the European Human Rights System.89 By quoting its jurisprudence on the topic, the Inter-​American Court stated that: Property is defined as those material things which can be possessed, as well as any right which may be part of a person’s patrimony; that concept includes all movables and immovable, corporeal and incorporeal elements and any other intangible object capable of having value.90 The breakthrough of the Awas Tingni decision was the inclusion of indigenous communal property under the concept of property. The consideration of the drafting history of the American Convention played a key role for that matter. According to the tribunal, the right to property was a highly controversial issue during the travaux préparatoires of the American Convention. Likewise, Article 21 of the American Convention entails the “right of use and enjoyment of property,” which replaced the original text that recognized the “right of use and enjoyment of private property” (emphasis added). The tribunal argued that the deletion of the adjective “private” called for the expansion of the concept of property. It gave primacy to the protection of use and enjoyment of property over private property. As Judge García Ramírez explained: The language in which this right is framed was meant to accommodate all subjects protected by the Convention. Obviously, there is no single 89 90

See above in this chapter footnote n 45. Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [2001] Series C No. 79, [2001] 1 (Inter-​American Court of Human Rights) para 144.

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model for the use and enjoyment of property. Every people, according to its culture, interests, aspirations, customs, characteristics and beliefs, can institute its own distinctive formula for the use and enjoyment of property. In short, these traditional concepts have to be examined and understood from the same perspective.91 The Court’s interpretation on property has received criticism in legal scholarship. Similar to the Court’s argument, legal scholars claimed that “property” without the word “private” includes cooperative as well as private property.92 They explained further that the heading of Article 21 of the American Convention in all official languages other than English remained “Right to Private Property.”93 According to those scholars, the Court did not mention this translation inconsistency because it would weaken the Court’s argument. Yet, legal scholarship fell short before fully explaining this argument. This analysis accomplishes the task here. As legal scholarship claims, the translation inconsistency of the heading of Article 21 of the American Convention may substantiate a restrictive interpretation. According to this line of reasoning, “private property” could be used as a vital concept to interpret “property.” The consequence of such interpretation would be the exclusion of communal indigenous property from the protection of Article 21 of the American Convention. This consequence is however not straightforward. To tackle translation inconsistencies, the vclt applies. Pursuant to Article 33 of the vclt, all the versions in different languages of an authentic treaty text have the same value. In order to interpret the difference of meanings among authentic texts, Articles 31 of the vclt establishes the consideration of the 91 92

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ibid, Concurring Opinion of Judge Sergio García Ramírez para 11. See Thomas M Antkowiak, ‘Rights, resources and rhetoric: Indigenous Peoples and the Inter-​American Court’ (2013) 35 University of Pennsylvania Journal of International Law 113 142; Thomas M Antkowiak and Alejandra Gonza, The American Convention on Human Rights: Essential Rights (Oxford University Press 2017) 267–​268; Jo M Pasqualucci, ‘International Indigenous Land Rights:  A Critique of the Jurisprudence of the Inter-​ American Court of Human Rights in Light of the United Nation Declaration on the Rights of Indigenous Peoples’ (2009) 27(1) Wisconsin International Law Journal 51 65; Jo M Pasqualucci, ‘The Evolution of International Indigenous Rights in the Inter-​American Human Rights System’ (2006) 6(2) Human Rights Law Review 281 296; Christian Steiner and Patricia Uribe (eds), Convención Americana sobre Derechos Humanos:  Comentario (Fundación Konrad Adenauer Stiftung 2014) 506. Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [2001] Series C No. 79, [2001] 1 (Inter-​American Court of Human Rights), Concurring Opinion of Judge Sergio García Ramírez para 44.

76 Chapter 3 context, object, and purpose of the treaty. In the Awas Tingni case, the Court successfully used this consideration. The context is an important element for updating the meaning of property and including communal indigenous ­property. Additionally, Article 32 of the vclt sets down the consideration of the preparatory work of a treaty in order to confirm the meaning resulting from the application of Article 31 of the vclt. According to this provision, an in-​depth evaluation of the drafting history of the right to property is necessary. Neither the IACtHR nor legal scholarship has done so yet. By analyzing the preparatory work of the achr, this research argues that Article 21 of the American Convention comprises unclear issues regarding its heading.94 The draft text of the achr did not include any heading to its provisions. After some debate, states approved Article 21 of the American Convention with the Spanish heading “right to use and enjoyment of property.”95 However, they signed the final text of the American Convention with its Article 21 displaying the Spanish heading “Right to Private Property.” There was no explanation in the official proceedings for this change of headings between the approved and the final text. This discrepancy of headings in the preparatory work of the achr raises the issue of the authentic version of the Convention’s text. Was it the approved draft text or the signed draft text? Pursuant to Article 10 of the vclt, the authentic and definitive text of a treaty is the one resulting from its adoption by states as established in the text or agreed upon during the drafting. In the present case, Article 41 of the Rules of Procedure of the Inter-​American Specialized Conference on Human Rights (1969) set down that states should sign the official document of the American Convention in the final session of the Conference. The signed document comprised the Spanish title “Right to Private Property.” Consequently, the signed draft text is the authentic and definitive version of the Convention’s text. A consistent analysis on the preparatory work of Article 21 of the achr should go beyond the debate about its heading. Interestingly, it is important to observe that the heading of the achr provisions did not play a role in the discussions. Following a suggestion by Brazil, the debate on the heading of the provisions of the first part of the achr was left to a different moment after the approval of the Convention’s contents.96 Nevertheless, there is no record 94

Organization of the American States, ‘Conferencia Especializada Interamericana sobre Derechos Humanos’ (1969) accessed 23 October 2018. 95 ibid 446–​447. 96 ibid 142.

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that any discussion in this regard actually happened. The official document points out to substantial debate only on the content of the provisions of the first part.97 Indeed, the assessment of the drafting process of the achr demonstrates that the normative content of the right to property consumed a substantial part of the debates.98 The reasons behind it were the different state ideologies towards this right. For instance, some states considered this right to belong to the category of economic, social, and cultural rights, whereas other states regarded it as part of civil and political rights. Notably, communal indigenous property was not mentioned. Some states remarked that the achr should be considered a minimum standard to human development whose contents may be expanded within time. This research observes that the preparatory work on the right to property reveals the states’ intention to focus Article 21 of the achr on the collective aspects of property. States wanted to give primacy to the social interest of property over individual interests. Accordingly, in the context of the drafting of Article 21 of the achr, the representative of Venezuela stated: “In other words, we are attaching property to the social interest and in order to avoid debates, we used the expression ‘use and enjoy property’.”99 In this regard, it is important to remark that, generally, “social interest” relates to the use and enjoyment of individual property according to social values. It imposes limits to the exercise of the individual right to property. These limits are laid down in domestic laws and traditionally include environmental protection. They may also include the respect for the traditional rights of indigenous peoples over their lands.100 Concisely, this analysis concludes that collective property of indigenous communities is a key piece for interpreting Article 21 of the American Convention. The drafting process of the achr shows that the states’ intention was to focus on the social interest of property that includes respect for indigenous lands. The consideration of the states’ intention is crucial in light of the translation inconsistency concerning the different languages of the authentic texts of Article 21 of the achr. This way of interpreting the right to property is in accordance with Article 31, 32 of the vclt. The vclt is the main legal source for interpreting treaties of international law. 97 ibid 235–​242. 98 ibid 301. 99 ibid 447. Free translation by the author from the original text in Spanish. 100 Juliana Santilli, Socioambientalismo e novos direitos:  Proteção Jurídica à Diversidade Biológica e Cultural (Peiropólis 2005) 60–​65.

78 Chapter 3 Indigenous communal property has unique characteristics that differ from traditional (civil) property. First, indigenous property belongs to the group, and not to the individual members of the group. Second, property refers to both the geographical location and to the spiritual relationship between the indigenous community and its territory. The Court declared that states must protect the relationship between indigenous communities and their lands. Third, communal indigenous property includes shared lands between different indigenous communities. An indigenous territory may belong to several indigenous groups –​collective ownership. The Court’s definition of indigenous property left unclear whether displaced indigenous communities are entitled to the right to property. The Court’s decision explained that the right to property protects indigenous lands that have a spiritual relationship with the indigenous community. Indigenous communities who were forcibly removed from their original lands are often not able to exercise this relationship. It is thus uncertain whether those communities could successfully claim the protection of Article 21 of the American Convention. To clarify this issue, further decisions were expected after the Awas ­Tingni case. Furthermore, the inclusion of the relationship between indigenous communities and their lands under “property” left several issues unaddressed. The first issue relates to the burden of proof. Since the relationship of indigenous communities with the land is intangible, the question of the evidence needed to prove such a relationship demands clarification.101 In the present case, the IACtHR considered the material relationship with the land as proven based on different testimonies before the Court, a legal study by the University of Iowa, and the Awas Tingni Territorial Demarcation Project.102 Still, the Court did not set a general criterion on the necessary evidence to demonstrate the intangible relationship. Second, the decision on Awas Tingni left as debatable whether the concept of indigenous communal property includes the development of modern economic activities. The IACtHR established the protection of communal property as a means of preserving indigenous cultural heritage. In case indigenous communities want to develop modern economic activities in their lands, states 101 The burden of proof can be a very controversial issues in indigenous land claims. In this regard see:  Case of Handölsdalen Sami Village and Others v. Sweden [2010] Application no.  39013/​04, [2010] (European Court of Human Rights), Dissenting Opinion of Judge Ziemele. 102 Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [2001] Series C No. 79, [2001] 1 (Inter-​American Court of Human Rights) para 103(e).

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could argue that those activities are illegal because they go against the preservation of indigenous culture.103 Such activities could include, for instance, the development of projects in indigenous lands related to the negotiation of carbon credits. The exclusion of those activities from the concept of property could limit the autonomy of indigenous communities. A major shortcoming of the Court’s decision is the absence of natural resources under the concept of property. The use of natural resources by indigenous communities is crucial to their survival. However, it is not clear whether Article 21 of the achr protects such use by indigenous communities. 2.2.1.2 Procedural Issues: Legal Capacity The Awas Tingni case inaugurated the participation of indigenous communities and their members in the complaint mechanism. To understand their legal capacity, this section explores the different roles of the Awas Tingni community –​as petitioner, as victim, and as beneficiary of reparations. The capacity of the right holder to legally act is a major issue for the subject of a right. In the present context, this meant the capacity of the Awas Tingni community, its members, and legal representatives to claim their case before the IACtHR. Such capacity follows the procedural rules established in the Court’s resolution of September 16, 1996.104 The Awas Tingni community could not independently sustain its claim before the Court. To begin with, it could not even file its case before the IACtHR. Pursuant to Article 51 of the American Convention, it is up to the Commission to decide whether to submit a case to the Court. The Court has explained in this regard that the Commission’s decision should not be discretionary. Rather, the Commission must decide about forwarding the case in view of the most favorable protection for the Convention’s rights.105 Moreover, the petitioners could not argue autonomously before the judges. Article 57 of the American Convention establishes that the Commission shall appear in all cases before the Court. The Convention does not give a role to the petitioners. However, legal representatives of the Awas Tingni community played a small role during the proceedings. According to the rules of procedure, the Commission was represented by delegates. These delegates could choose as assistants the original petitioners, representatives of the victims, or 1 03 For more information on this issue see above n 69. 104 Rules of Procedure of the Inter-​American Court of Human Rights 1996 (Inter-​American Court of Human Rights). 105 Advisory Opinion 13/​93 –​Certain Attributes of the Inter-​American Commission of Human Rights [1993] Series A No. 13, [1993] (Inter-​American Court of Human Rights) para 50.

80 Chapter 3 the next of their kin pursuant to Article 22(1) of the Rules of Procedure. This provision enabled a more consistent defense since petitioners and their representatives could support the Commission before the Court. In the Awas Tingni case, the delegates of the Commission nominated the legal representatives of the victims as assistants. In addition, the legal representatives of the Awas Tingni community had an active role during the audiences. Pursuant to Article 22(2) of the Rules of Procedure, the assistants could have a prominent role during the discussions with the Court’s authorization. In the case of Awas Tingni, Mr. James Anaya participated in the first day of audiences by asking questions to the witnesses. The representative of the community spoke autonomously only during its testimony. During the proceedings, persons could express themselves in their mother tongue with the authorization of the IACtHR, who had to ensure the presence of an interpreter (Article 20(4) of the Rules of Procedure). This provision was of utmost importance in cases dealing with indigenous issues. Members of indigenous communities often do not speak any of the working languages of the Inter-​American Court. At the same time, they are of crucial importance for advancing the case. Indigenous communities have a strong oral tradition and much information about the community is only transmitted orally. In the Awas Tingni case, Mr. Jaime Felipe Castillo issued his testimony in his mother tongue and then an interpreter translated it. Moreover, the original petitioners and representatives of the victims may autonomously argue at the reparations stage. This follows from the rules of procedure.106 In the present case, the legal representatives of the community presented a statement on reparations. Yet, the Court did not consider it because it was time-​barred. There was not a separate stage on reparations. Instead, the IACtHR merged in an innovative way the considerations on reparations with the merits of the decision.107 To summarize, victims and their legal representatives did not have legal standing during the proceedings before the Court. As explained above, the leader of the community and its legal representatives had a limited participation in 106 The autonomous role of the representatives of the victims at the reparations stage has a long history in the iahrs. It began in the praxis even before its regulation in the Court’s rule of procedure. In this regard see: Carla Osmo and Kathia Martin-​Chenut, ‘A participação das vítimas no sistema interamericano:  fundamento e significado do direito de participar’ (2017) 8(2) Revista Direito & Práxis 1455 1475–​1478. 107 For details on this innovative Court’s practice, see S. J Anaya and Claudio Grossman, ‘The Case of Awas Tingni v.  Nicaragua:  A New Step in the International Law of Indigenous Peoples’ (2002) 19(1) Arizona Journal of International & Comparative Law 1 14.

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the Court’s proceedings. The Commission was mainly responsible for defending the case before the Court. Furthermore, the decision of Awas Tingni discloses a strong individual aspect concerning the victims of violations. The Inter-​American Court recognized the members of the Awas Tingni community as rights holders. By the same token, it asserted the violations of Articles 21, 25 of the American Convention to the detriment of the members of the indigenous community. The concurring opinion of Judge Sergio García Ramírez explained the strong individual aspect of the legal capacity of indigenous communities.108 Likewise, it is the individual member of the community who may claim the right, not the community as such. The Court’s definition of indigenous communities was unclear. The IACtHR declared the identification of Awas Tingni as an indigenous community as a proven fact. There was no explanation about the criteria for defining the community as indigenous. In addition, the Court did not explain the necessary evidence to prove indigeneity. The tribunal referred as evidence to the documents prepared by research institutions, official Nicaraguan administrative and judicial institutions, and the testimony of Mr. Mclean Cornelio. Still, it is not possible to conclude from the judgment what the necessary items of evidence for demonstrating indigeneity are. Moreover, the Inter-​American Court declared indigenous communities as environmental stewards. To support this argument, the Court did not refer to any legal instrument. Instead, it developed a more conceptual reasoning. It referred to indigenous lands as essential to preserve, to practice, and to transmit culture.109 Accordingly, some Judges argued that indigenous communities are expected to be protectors of the environment.110 It is controversial whether the recognition of indigenous communities as environmental stewards creates additional duties to them. Based on the decision, it is possible to argue that indigenous communities must act in an environmentally sound manner in order to achieve the protection of their lands. Such an argument finds partial support in the concurring opinion of Judge Salgado-​Pesantes.111 He made reference to the moral, political, and social

108 Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [2001] Series C No. 79, [2001] 1 (Inter-​American Court of Human Rights), Concurring Opinion of Judge García Ramírez in the Court’s decision in Awas Tingni, para 14. 109 ibid para 149. 110 ibid, Joint Separate Opinions of Judges A.A. Cançado Trindade, M. Pacheco Gomez and A. Abreu Burelli. 111 ibid, Concurring Opinion of Judge Hernan Salgado Pesantes para 5.

82 Chapter 3 duties arising from the assertion of the right to property. Still, the Court refrained from analyzing this point at the present decision. Besides that, the decision of Awas Tingni created new perspectives concerning reparations to indigenous communities. Notably, individual and collective aspects of reparations are intertwined. Not only the community, but also its members play a role as injured parties. The Court decided that Nicaragua should delimitate, demarcate and title the claimed lands with the participation of the Awas Tingni community to the benefit of its members. This went against the Commission’s request that asked for the official land titling to the benefit of the Awas Tingni community. The Court’s decision remarked the dual character of reparations oscillating between individual and collective aspects. The individual members of the community were the land owners, whereas the geographical land limits was a communal decision. Additionally, the Inter-​American Court established that through the Commission Nicaragua had to pay the amount of US$ 30,000 to the members of the indigenous community for costs and expenses. The IACtHR did not specify the amount due each member. This implies a collective aspect of reparations. The community as such was considered as beneficiary of reparations. In addition, the Awas Tingni decision contrasts with the Court’s prior decision on Aloeboetoe, in which the tribunal individualized the amounts to the members of the tribal community.112 Interestingly, the Inter-​American Court explicitly considered the Awas Tingni community as beneficiary of some measures of reparations. On the one hand, the tribunal recognized only individuals as victims. On the other hand, it determined compensation to the community. The reason for such an apparent contradiction between victims and beneficiaries of reparations lies in the collective dimension of rights of indigenous communities. This dimension cannot be reduced to individual terms when it comes to reparations. There is a need to redress the community as such. As will be demonstrated in the following chapters, this need lies in the heart of each decision regarding indigenous claims. The first collective reparation measure concerns the adoption of a property framework for the recognition of indigenous communal property. This should be done by the state according to indigenous customary laws, values, and customs. Such a redress measure is an answer to the claims by the legal representatives of the community. 112 See above in this chapter, 1. An Important Precedent: The Aloeboetoe Case.

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Additionally, Nicaragua must invest a total of US$ 50,000 in works of collective interest for paying non-​pecuniary damages. The type of payment in works is an innovation of this judgment. The Awas Tingni community must agree with these works and services, and the Commission must supervise them. The reason for the necessity of the Commission’s supervision was not explained. In any case, the Commission oversees the compliance with the Court’s decision through the issuance of country reports. Thus, it seems irrelevant to point out to the Commission’s supervision of the decision in the Awas Tingni case. A major shortcoming concerning reparations was the failure to recognize material damages suffered by the Awas Tingni community. The Court concluded that the iachr failed to prove these damages. This conclusion seems very doubtful. It was a proven fact that the state issued a fine to SOLCARSA in view of environmental damages caused to the indigenous land of the Awas Tingni. At least two testimonies during the audiences confirmed this governmental act. Despite that, the Court considered the evidence insufficient for issuing material damages. Thus, one could ask which types of evidence is needed in order to prove material damages. Finally, the Court attended to almost all the requests made by the Commission and to some made by the representatives of the victims. In fact, the tribunal demonstrated a cautious approach towards the request of reparations by the victims. The reparations issued correlate with only three of nine reparations asked by the Awas Tingni community, excluding monetary damages. Other victims’ requests such as the establishment of a communal framework to solve land claims of other indigenous communities besides the Awas Tingni were left aside. 2.3 Preliminary Assessment The case of Mayagna (Sumo) Awas Tingni Community v. Nicaragua (2001) is a landmark decision in the iahrs jurisprudence. Without any doubt, it deserves a place among the leading cases such as Street Children (Villagrán Morales et al.) v. Guatemala (1999), and Barrios Altos v. Peru (2001).113 The foregoing analysis has focused so far on explaining the different individual and collective aspects associated with the interpretation of Article 21 of the American Convention. It explained the Commission’s and the Court’s view in this regard. Besides enabling precision, such an explanation filled the gap in the literature concerning the assessment of the Commission’s work. Yet, this 113 Caso de los Niños de la Calle (Villagrán Morales y otros) v. Guatemala. Fondo [1999] Series C No. 63, [1999] 1 (Inter-​American Court of Human Rights); Barrios Altos v. Peru [2001] Series C No. 83, [2001] 1 (Inter-​American Court of Human Rights).

84 Chapter 3 explanation would be incomplete without a final synthesis, putting the Commission’s and the Court’s work side by side. This is the scope of this section. This section evaluates the Commission’s and the Court’s work in the Awas Tingni case. Part one analyzes the underlying doctrines of interpretation and the role of international law. Part two considers substantive issues that relate to the scope and legal object of the rule. Part three relates to the procedural issues associated with the legal capacity of the indigenous community and its members. 2.3.1 Rationale Behind It and International Law The Inter-​American Commission and the Inter-​American Court considered different starting points for interpreting the rights of indigenous communities. The iachr based itself on the key concepts of historical racial discrimination and vulnerability,114 and the IACtHR referred to the pro homine principle and indigenous customary law.115 Conversely, the Commission and the Court applied the same hermeneutical tool to the case –​the evolutive interpretation. Despite using this common interpretative method, they had different focuses. The Commission’s interpretation focused on external legal instruments to the iahrs –​international human rights law –​to interpret the American Convention and the Nicaraguan context. The Court’s evolutive interpretation relied on the Nicaraguan context, and both the object and purpose of the American Convention. Furthermore, the Commission and the Court interpreted the local context in different ways. On the one hand, the relevant context for the Inter-​American Commission referred to the social conditions of indigenous communities. Since the 1980s, the iachr has been monitoring the indigenous communities’ situation on the American continent.116 The Commission’s ongoing monitoring has led to the conclusion in the present case that there has been a persistent 114 For a detailed explanation of those concepts see above in this chapter “2.2.1 The Commission’s Work: The Rationale Behind It & International Law.” 115 For a detailed explanation of those concepts see above in this chapter “The Court’s Decision: The Rationale Behind It & International Law.” 116 The first works of the Commission refer to: Inter-​American Commission on Human Rights, ‘Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin’ (29 November 1983)  OEA/​Ser.L./​V.II.62  accessed 23 October 2018; Resolution 12/​85 –​Yanomami Indians (Brazil) [1985] 7615, [1985] (Inter-​American Commission on Human Rights); Aché People (Paraguay) [1997] 1.802, [1997] (Inter-​American Commission on Human Rights). For a historical account see:  Shelton H Davis, Land rights and indigenous peoples:  The role of the Inter-​American Commission on Human Rights (Cultural Survival report vol 29, Cultural Survival 1988).

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situation of vulnerability and historical discrimination against these communities. On the other hand, the relevant context for the Inter-​American Court related to the juridical context of indigenous communities. The IACtHR focused on the existence of indigenous communal and individual rights in interpreting the American Convention. The Court considered the diversity of legal systems of indigenous communities as a means to expand the scope of interpretation. In a comparison, the Commission’s and the Court’s approach do not contradict each other. Rather, they are complementary. For both organs, the context is an utmost important aspect that, to a certain extent, precedes the interpretation of the provisions of the American Convention. The Inter-​American organs prioritize the understanding of the context, in which indigenous communities live before they apply the American Convention. This is a unique aspect of the iahrs. Finally, it is compelling to highlight that the Awas Tingni case is in accordance with general international human rights law. This built the rationale behind it. As explained above, the application of Article 29(d) American Convention enabled the Commission and the Court to rely on general international human rights law in order to substantiate their arguments. For instance, both organs made reference to the ilo Convention 169 to interpret Article 21 American Convention. Notably, the iachr made several references to human rights legal instruments whereas the Inter-​American Court did not often refer to it. 2.3.2 Substantive Issues 2.3.2.1 Rule In the case of Awas Tingni, the Commission and the Court had a very similar approach regarding the interpretation of the rule’s scope. For both organs, there are individual and collective aspects emerging from the right to property. The emergence of collective aspects of property in the Awas Tingni case constitutes a turning point in the jurisprudence of the iahrs. There were small but important differences between the perspective of the Commission and that of the Court. Notably, the Commission recognized that the community possessed the territory in a communal way whereas individual and families enjoyed subsidiary rights. It worked with the notion of the communal right to property. Yet, the Court did not use such understanding.117 It did not refer to subsidiary rights. Additionally, it used the wording “right to 117 For a critical view in this regard Doris Farget, ‘Le droit collectif de propriété sur les territoires ancestraux: Un collectif abstrait; des entités intermédiaires effacées’ (2016) 29(1) Int J Semiot Law 135 141–​144.

86 Chapter 3 communal property” that emphasizes the collectiveness of the object and not of the rule. This small difference implies that, for the Court, the rights holders of land rights are individuals. The remarkable feature among the collective aspects of the right to property relates to the recognition of state obligations. When applied to individual property, Article 21 of the American Convention does not create positive state measures. Basically, the state must abstain from interfering in the private property. The situation is different with respect to collective cases dealing with indigenous communities. Both organs stated for the first time that the state has the obligation to guarantee the collective land use by indigenous communities. The Court went much further than the Commission and specified that this obligation must be fulfilled through the delimitation, demarcation, and entitlement of indigenous territories. As this book demonstrates in the upcoming chapters, state obligations related to the right to property increased progressively in the jurisprudence on land rights. Another distinguished feature of this case concerned the recognition of specific rights under Article 21 of the achr. Following the notion that property rights are composed by different rights, the Commission and the Court felt the need to specify them. On the one hand, the iachr stated that the concrete property rights of indigenous communities should be defined in a case-​by-​case basis. On the other hand, the IACtHR decided that Article 21 of the American Convention protects the right to collective possession, the right to live freely on indigenous lands, and the right to enjoy the material and spiritual relationship to the lands. Those rights fall under the umbrella of indigenous land rights. As this analysis demonstrates below, the specific property rights of tribal and indigenous communities have evolved in the iahrs case law. The iahrs recognition of indigenous land rights is unique in international human rights law. The ECtHR does not recognize state obligations associated with land rights. In fact, it does not recognize indigenous land rights. 2.3.2.2 Object Regarding the definition of property, this assessment observes that the Commission and the Court almost have a consensus. Still, in a comparison with higher accuracy, the Commission’s definition of property is broader than the Court’s one. While the Court used its general definition of property as starting point, the iachr provided a definition in light of the context of indigenous communities. The Commission’s definition of property included explicit reference to indigenous possession. The Court included indigenous possession not as an element of definition of property, but rather under the threshold of Article 21 of the American Convention.

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Moreover, both organs recognized the specific characteristics of indigenous property composed by individual and collective aspects. Remarkably, the Commission and the Court referred to the following characteristics as key elements of indigenous property: (1) collective ownership by the group; (2) collective intangible relationship between indigenous communities and their lands; (3) shared common land among different indigenous communities; (4) territorial relocation of indigenous communities within a large geographical area. The major shortcoming of both definitions was the restricted scope of protection given to natural resources within indigenous lands. The Inter-​American Court does not mention it. The Commission referred to such a protection, yet it failed to define which types of natural resources are included. This is important due to the frequent conflicts of interests between states and indigenous communities regarding the use and exploitation of natural resources within indigenous lands. For instance, in some cases, indigenous lands are located in the regions with oil or gold, subsoil resources, over which states claim ownership. Hence, the absence of an explanation of the type of natural resources included in the concept of indigenous communal property constitutes a critical omission of the Inter-​American organs. 2.3.3 Procedural Issues: Legal Capacity The legal capacity of both tribal and indigenous communities and their members is a key issue to understand the iahrs jurisprudence. This section demonstrates the three main dimensions of this legal capacity related to the role of the Awas Tingni community and its members as petitioners, victims, and beneficiaries of reparations. As petitioners, the indigenous community and its members did not play an express role. The procedural rules of the Commission and of the Court are very different. Still, in the Awas Tingni case, these rules coincided in curbing the role of the Awas Tingni community and its members. The legal capacity of the indigenous community and its members as victims comprised a strong individual character. On the one hand, the Commission defined the Awas Tingni indigenous community as victim and right holder. It referred to the community as a group. On the other, due to procedural rules, the Commission had to individualize the members of the community. Here it became obvious that the essentia of the legal capacity had an individualistic character. Likewise, the Inter-​American Court confirmed the individual-​based character of indigenous communities. It recognized only the individual members of the indigenous community as victims. According to the Court’s consolidated jurisprudence, the American Convention had recognized only rights to individuals and not to groups.

88 Chapter 3 As explained above in the Aloeboetoe case, the individualistic character of the legal capacity of indigenous peoples is problematic. When there is a need for individualization, indigenous peoples have to provide official documents of identification. Due to the indigenous special lifestyle, they often do not have such documents. Basic state services such as registration offices are absent in the regions, where tribal and indigenous communities live. Even when there are registration offices, sometimes these organs refuse, due to discriminatory reasons, to issue birth certificates with the indigenous names of indigenous individuals. On a conceptual level, the Inter-​American organs classified indigenous communities as environmental stewards. They did it through the emphasis on the relationship between indigenous communities and their lands. As explained above in this chapter, the classification of indigenous communities as environmental stewards raises expectations about their role as protectors and guardians of the environment. Such classification should bring no surprise since the topic of environmental rights in the iahrs is focused on indigenous rights.118 One main problem behind such classification of indigenous peoples as environmental stewards is that it may justify restrictions on the land use by indigenous communities.119 Such an argument could find a legal basis in the second sentence of Article 21(1) of the American Convention. Based on this provision, the state could restrict indigenous use of natural resources by claiming priority of the role of indigenous communities as environmental stewards over the development of their cultural practices. Such a restriction has been operating on a regular basis for the creation of protected natural reserves to the detriment of land use by indigenous peoples.120 The iahrs 118 On this topic see:  Mario G Aguilera Bravo, ‘Umweltschutz nach der Amerikanischen Menschenrechtskonvention und deren Auslegung durch das Interamerikanische System zum Schutz der Menschenrechte’ (Master’s Thesis, Georg-​August Universität Göttingen 18 February 2015) 26–​36; Rodrigo Durango Cordero, ‘Los derechos de los pueblos indígenas y la protección al medio ambiente dentro del sistema interamericano de protección de los derechos humanos’ (2008) 24(7) American University International Law Review 7; Valerio de Oliveira Mazzuoli and de Faria Moreira Teixeira, Gustavo, ‘Protección Jurídica del medio ambiente en la jurisprudencia de la Corte Interamerica de Derechos Humanos’ (2015) v(5) Revista Internacional de Derechos Humanos 19. 119 Karen Engle, The elusive promise of indigenous development: Rights, culture, strategy (Duke University Press 2010) 168; Ezra Rosser, ‘A Historical Indians and Reservation Resources’ (2010) 40 Environmental Law 437-​545 464-​468. 120 On conflicts between environmental protection and the rights of tribal and indigenous communities see also: Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) [2009] [2009] 1 (African Commission on

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addressed these controversial issues in the third wave of its jurisprudence as explained in chapter five. As beneficiaries of reparations, the legal capacity of the indigenous community and its members presented a dual character. The Court set down reparation measures addressed to the indigenous community and its individual members. Here individual and collective aspects are extremely hard to separate from each other. For instance, the Court determined that the individual members of the community should be the land owners whereas the geographical land limits of their lands should be a result of a communal decision. The dual character of the legal capacity as beneficiaries of reparations started a new precedent in the Court’s jurisprudence concerning indigenous communities. The Court awarded the community of Awas Tingni non-​ pecuniary damages. In doing so, it settled a new understanding concerning the essential role of the community in the life of indigenous individuals. Previously, in the Aloeboetoe case, the Court considered that all persons are members of their own families and intermediate communities. It stated then that this fact does not substantiate the obligation to pay compensation in favor of these communities. Clearly, in the Awas Tingni case, the IACtHR changed this position. The role of the Awas Tingni community as beneficiary of reparations contrasted with its role as victim. Only the individual members of the community were regarded as victims and not the community as a whole, according to the Inter-​American Court. The reason for such a contrast lies in the collective dimension of indigenous rights. This dimension is hard to reduce to individual terms when it comes to reparations. There is a need to redress the community as such.121 To sum up, the three-​layered legal capacity of indigenous communities and their members has many individual and collective aspects in the Awas Tingni case. First, the capacity as petitioners is very limited. Second, the capacity as victims has a strong individualistically framed character. Third, the capacity as beneficiaries of reparations has a dual character divided between individual and collective aspects. Human and Peoples’ Rights); African Commission on Human and Peoples’ Rights v. Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights). 121 For a critical view in this regard see Doris Farget, ‘Le droit collectif de propriété sur les territoires ancestraux: Un collectif abstrait; des entités intermédiaires effacées’ (2016) 29(1) Int J Semiot Law 135 141–​144.

90 Chapter 3 3

Afterawastingni.com

After the decision in the Awas Tingni v. Nicaragua (2001) case, the IACtHR issued a range of judgments in the same vein. The decisions up to 2006 had a similar pattern to the Awas Tingni case. Thus, this book conceptualizes them under the first wave of jurisprudential developments concerning indigenous communities. They refer to the following cases: Moiwana Community v. Suriname (2005), Indigenous Community Yakye Axa v. Paraguay (2005), and Indigenous Community Sawhoyamaxa v. Paraguay (2006). This section explains these cases in a chronological order. 3.1 Moiwana Case, 2005 The first decision on land rights after the Awas Tingni case refers to the Moiwana community v.  Suriname.122 In this section, it is of great importance to examine the new individual and collective facets concerning land rights of indigenous communities. Such aspects did not appear in the analyzed case of Awas Tingni. Special attention goes to the aspects that relate to the underlying doctrine of interpretation (part one of this section), the legal capacity (part two of this section), and the legal object (part three of this section) associated with Article 21 of the American Convention. Before starting with the analysis of the case, a short summary follows below. The decision at stake refers to an N’djuka maroon community based in Suriname who were the victims of a massacre. According to the Commission, in 1986 members of the Surinamese army attacked the Moiwana community. In this occasion, soldiers killed forty people –​men, women and children –​and destroyed the entire village. The survivors of this massacre ran away to the forests and never came back. Following state orders, other members of the Moiwana community went into exile. Many years later, the non-​governmental human rights organization Moiwana ’86 submitted a petition to the Commission alleging violations of human rights based on these facts. The Commission contended before the Court that the state did not conduct any proper investigation to punish those responsible for the massacre. Even many years after the massacre, many survivors continue to be displaced persons. 122 The summary of the facts refers to:  Comunidad Moiwana v.  Suriname [2005] Series C No. 124, [2005] (Inter-​American Court of Human Rights). Free translation by the author from the original document in Spanish. The original application by the Inter-​American Commission to the Inter-​American Court has the following reference: Stefano Ajintoena et  al. v.  the Republic of Suriname [2002] 11.821, [2002] (Inter-​American Commission on Human Rights).

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For the first time in a case concerning communal lands, the legal representatives before the IACtHR alleged a violation that the Commission did not claim. This violation referred to the continuous factual violation of Article 21 of the American Convention. The IACtHR gave the Commission and the state the opportunity to comment on this alleged violation. By doing so, the Court aimed to comply with the principle of the due process of law. The Surinamese state contested the petitioners’ allegations. Allegedly, pursuant to Article 61 of the American Convention, only the Commission and the state shall appear in the cases before the Court.123 The state claimed then that the American Convention shall prevail over internal regulations adopted by Inter-​American organs that enable the locus standi of the alleged victims. The Court contested the state’s arguments. It supported the autonomous locus standi in judicio of the alleged victims during the proceedings. To justify its understanding, the tribunal referred to its consolidated jurisprudence that recognizes individuals as subjects of law. At the end, the Court accepted the petitioner’s allegation as it referred to the factual background provided by the Commission.124 Unlike the Awas Tingni case, the Court settled identification criteria for the community. As criteria for such identification, it referred to the following aspects of the community: (1) geographical location, (2) history, (3) sociopolitical organization, (4) mother tongue, (5) culture, (6) religion, and (7) relationship with the land. As evidence for complying with these criteria, the Court accepted the declarations of expert witnesses received during internal proceedings. The Court and the Commission stated similar criteria regarding the community’s definition. The IACtHR recognized the members of tribal communities as rights holders of Article 21 of the American Convention. The Inter-​American Court dealt with the issue whether the claimed Moiwana lands were under the ownership of community members. The parties have agreed that the members of the Moiwana community did not have title over the claimed lands. The tribunal referred then to its jurisprudence on the right to property that protects indigenous possession. The Court remarked that the Moiwana community is not indigenous to the region. Yet, it recognized based on the evidence that the Moiwana community had an all-​encompassing relationship with the land. By the same token, it considered that such a relationship was similar to the one that 123 Moiwana Community v. Suriname [2006] Series C No. 145, [2006] (Inter-​American Court of Human Rights) para 5. 124 Comunidad Moiwana v. Suriname [2005] Series C No. 124, [2005] (Inter-​American Court of Human Rights) para 125.

92 Chapter 3 indigenous communities have with their lands. Hence, it decided that tribal lands deserve the same protection as indigenous lands.125 In the Court’s words (emphasis added): In this way, the Moiwana community members, an N’djuka tribal people, possess an “all-​encompassing relationship” to their traditional lands, and their concept of ownership regarding that territory is not centered on the individual, but rather on the community as a whole. Thus, this Court’s holding with regard to indigenous communities and their communal rights to property under Article 21 of the Convention must also apply to the tribal Moiwana community members: their traditional occupancy of Moiwana Village and its surrounding lands –​which has been recognized and respected by neighboring N’djuka clans and indigenous communities over the years (supra paragraph 86(4)  –​should suffice to obtain State recognition of their ownership. The precise boundaries of that territory, however, may only be determined after due consultation with said neighboring communities (infra paragraph 210).126 For issuing reparations, the tribunal demanded the individualization of each of the victims.127 Likewise, the Court divided the victims in two categories: the survivors of the massacre and the relatives of the massacre’s victims. In the request for reparations, the Commission emphasized that it was extremely difficult to identify the individual beneficiaries of reparations.128 Due to the

125 The more recent jurisprudence of the iahrs interchanges the use of the concepts “tribal peoples” and “afro-​descendant communities.” In this regard see:  Afro-​descendant communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia [2013] Series C No. 270, [2013] (Inter-​American Court of Human Rights). The Inter-​American Commission explained the concepts of “tribal peoples” and “afro-​descendant communities” in its report: Inter-​American Commission on Human Rights (ed), Pueblos Indígenas, comunidades afrodescendientes y recursos naturales: Protección de derechos humanos en el contexto de actividades de extracción, explotación y desarrollo (2015). For a critical assessment on the terminology “tribal peoples” see:  Ariel Dulitzky, ‘When Afro-​descendants Became “Tribal Peoples”:  The Inter-​American Human Rights System and Rural Black Communities’ [2010] UCLA Journal of International Law and Foreign Affairs 29, 77. 126 Comunidad Moiwana v. Suriname [2005] Series C No. 124, [2005] (Inter-​American Court of Human Rights) para 133. 127 ibid paras 86.16–​86.17. 128 Final Written Arguments of the Inter-​American Commission on Human Rights in the Case of Moiwana Village [2004] 11.821, [2004] (Inter-​American Commission on Human Rights) 43; Stefano Ajintoena et al. v. the Republic of Suriname [2002] 11.821, [2002] (Inter-​American Commission on Human Rights) 31.

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case’s complexity, it asked the Court to complement the list of beneficiaries with the names of additional victims after the judgment. The Court denied this request.129 It explained that the identity of injured parties must be known before the issuance of the sentence. As a result, the Court’s decision left some victims without full compensation. The Commission could not individualize all of them until the submission of its final written arguments. As a way to avoid the lack of compensation to such victims, the Court issued collective reparation measures to the entire community.130 It recognized the collective nature of the damages suffered.131 While denying the Commission’s request for the individualization of victims after the judgment, the Court authorized alternative ways of identifying the victims in order to pay monetary compensation. As “adequate identification” it considered the identification of the victims before a state official through statements by a community’s leader and by two additional persons who could attest to the individual’s identity.132 This analysis points out that this type of identification is special to cases concerning indigenous communities, being a midway between complying with Inter-​American procedural rules and adapting them to indigenous lifestyles. 3.1.1 Cultural Identity and Land Rights To some extent, the case of the Moiwana community continues the path started by the decision in the Awas Tingni case. The Commission and the Court used the evolutive interpretation and external sources to the American Convention in order to guarantee communal property rights. However, the Moiwana case contains some innovations in terms of indigenous land rights. In this context, an important innovation of the present case refers to the elaboration on the justification for the protection of indigenous lands. Judge Cançado Trindade explained that the very survival of indigenous cultural identity depends on the protection of these lands.133 Since the Moiwana case, such understanding constitutes the core of the rationale of all decisions of the Inter-​American Court concerning tribal and indigenous communities. In other

129 Comunidad Moiwana v. Suriname [2005] Series C No. 124, [2005] (Inter-​American Court of Human Rights) paras 176–​177. 130 Cf. Masacre Plan de Sánchez v. Guatemala [2004] Series C No. 105, [2004] (Inter-​American Court of Human Rights) para 62. 131 Comunidad Moiwana v. Suriname [2005] Series C No. 124, [2005] (Inter-​American Court of Human Rights) paras 201–​218. 132 ibid para 178. 133 ibid, Separate Opinion of Judge Cançado Trindade paras 17–​24.

94 Chapter 3 words, by protecting indigenous lands, the Court aims to protect the cultural identity of tribal and indigenous communities. Thus, the right to property pursuant to Article 21 of the achr is associated with cultural rights. Likewise, it is clear that the Court elevated cultural identity to a value worth protecting under the achr. The reason behind it points out the influence of general international human rights law to the iahrs, especially of the triad of the unesco Conventions: the 1972 Convention on the Protection of the World Cultural and Natural Heritage, the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Other sources of influence might have been the case law of both the hrc and the ECtHR. The hrc interprets that the protection of indigenous lands falls under the state obligations pursuant to Article 27 of the iccpr.134 This provision laid down the right of members of minorities to enjoy their own culture. Similarly, the case law of the ECtHR protects indirectly the right to cultural identity through the right to respect for private and family life and home pursuant to Article 8 of the ecohr.135 The European case law addresses the right of individual members of Roma minorities to keep their gypsy lifestyle.136 The protection of indigenous lands based on cultural identity is not absent of criticism. Indeed, it contrasts with the more advanced protection of indigenous lands based on self-​determination in accordance with the adrip and the undrip.137 The change of the conceptual basis from cultural identity to self-​ determination in international law was a result of claims by indigenous peoples. These claims affected legal scholarship that demonstrated critical views regarding the protection of cultural identity grounded in land. Concisely, by focusing on cultural identity, the IACtHR might indirectly compel indigenous communities to follow a “cultural script” and therefore limit their autonomy.138 134 General Comment No. 23: The Rights of Minorities (Art. 27) [1994] CCPR/​C/​21/​Rev.1/​Add.5, [1994] (Human Rights Committee) para 7. 135 Chapman v.  the United Kingdom [2001] 27238/​95, [2001] (European Court of Human Rights) para 73. 136 Cultural rights in the case-​law of the European Court of Human Rights [2017] [2017] (European Court of Human Rights) 14–​18. 137 For a detailed explanation on self-​determination and cultural identity see Mariana Monteiro de Matos, ‘Cultural Identity and Self-​ determination as Key Concepts in Concurring Legal Frameworks for the International Protection of the Rights of Indigenous Peoples’ in Evelyne Lagrange, Stefan Oeter and Robert Uerpmann-​Wittzack (eds), Cultural Heritage and International Law: Objects, Means and Ends of International Protection (Springer 2018). 138 Thomas M Antkowiak and Alejandra Gonza, The American Convention on Human Rights: Essential Rights (Oxford University Press 2017) 27; Karen Engle, The elusive promise of indigenous development: Rights, culture, strategy (Duke University Press 2010) 162–​182;

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Nowadays, this is still very controversial among legal scholars, but it is undoubtedly the consolidated approach of the iahrs. 3.1.2 The Legal Capacity of Tribal Communities This part analyzes the three different elements that composed the legal capacity of the Moiwana community. It starts with the analysis of the role of the petitioners –​the Moiwana tribal community and its members. Compared to the Awas Tingni case, this analysis does not indicate a change in the community’s role before the Commission. Conversely, tribal and indigenous communities started to play a role before the Court. The IACtHR recognized their locus standi in judicio. This recognition was important because it articulates procedural and substantive rights. As previously explained, procedural rights are crucial for the efficacy of human rights norms. It is necessary to give people legal means in order to enable them to fight for their rights before courts. Otherwise, states cannot be hold accountable for human rights violations. In the words of von Jhering: “The sword without the scale is brute force, the scales without the sword is the impotence of law.”139 An important innovation refers to the petitioners’ role in referring the case to the Court. In 2000 the Commission adopted new rules of procedure.140 Accordingly, the Moiwana community could present its position concerning the submission (or not) of its case to the Court. Indeed, pursuant to Article 44(2) of the Commission’s Rules of Procedure (2000), the Commission had to consider the petitioners’ position when deciding about the submission of the case to the Court. With respect to the Court, there were major developments concerning the legal capacity of petitioners. Such change was a direct result of demands by state members who recommended the direct participation of the victims in the proceedings before the Court.141 Consequently, the Court had to adopt new Ariel Dulitzky, ‘When Afro-​descendants Became “Tribal Peoples”:  The Inter-​American Human Rights System and Rural Black Communities’ [2010] UCLA Journal of International Law and Foreign Affairs 29, 42–​59. 139 Rudolf von Jhering, The Struggle for Law (2nd, Callaghan and Company 1915) 2. From the original in German: “Das Schwert ohne die Waage ist die nackte Gewalt, die Waage ohne das Schwert die Ohnmacht des Rechts.” Rudolf von Jhering, Der Kampf um’s Recht (Manzsche k. u. k. Hof-​Verlags-​und Universitäts-​Buchhandlung 1913) 61. 1 40 On the changes in the 2000 Commission’s Rules of Procedure: Ariel Dulitzky and Ismene N Zafiris, ‘Facing the Challenge:  The Inter-​American Commission on Human Rights’ Adoption of New Rules of Procedure and its impact on the Inter-​American System of Human Rights’ (2003) 21 Nordic Journal of Human Rights 257. 141 Claudia Martin and Diego Rodríguez Pinzón, ‘Strengthening or Straining the Inter-​ American Human Rights System’ in Yves Haeck, Oswaldo Ruiz-​Chiriboga and Clara

96 Chapter 3 rules of procedure that (for the first time) considered the victims as parties to the case.142 Article 23 of the Court’s Rules of Procedure (2000) came up with an innovative provision enabling the participation of the alleged victims in an autonomous way, i.e. without the Commission’s interference. As it happened in the case of Moiwana, the legal representatives of the victims began to independently present their requests, arguments and evidence before the Court.143 In this context, it is important to recognize that the Moiwana community acquired legal standing. Pursuant to Article 61 of the American Convention, only the Commission and states parties to the Convention may submit a case to the Court. This provision could lead to the conclusion that the victims lack legal standing before the Court. Evidently, this is not the case in the iahrs since 2000. The Court’s Rules of Procedure (2000) enable victims and their legal representatives to play a role before the Court, whereas the Commission has the competence of submitting the case to the Court. Yet, the petitioner’s legal standing before the IACtHR is limited. One important limit refers to the factual substance of the Commission’s application to the Court. Only this application comprises the facts, which may be the basis for additional claims by the petitioners –​as it happened in the Moiwana case. The legal representatives of the victims may invoke additional violations connected to the facts as defined by the Commission. In other words, the factual background cannot be changed before the Court. This requirement is unproblematic because the petitioners have direct access to the Commission in the first stage of the complaint mechanism. Therefore, the petitioners have influence on the framing of the facts. Notably, the only exception to this rule refers to supervening facts. In this case, the Court may accept supervening facts at all times before the final judgment. The recognition of the victims’ locus standi in judicio started with the case Five Pensioners v.  Peru (2003).144 This was the first case to be entirely processed under the 2000 Court’s rules of procedure. In this Peruvian case, the IACtHR explained that in light of the iura novit curia principle, it must apply Burbano-​Herrera (eds), The Inter-​American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015) 803; Carla Osmo and Kathia Martin-​Chenut, ‘A participação das vítimas no sistema interamericano: fundamento e significado do direito de participar’ (2017) 8(2) Revista Direito & Práxis 1455 1479. 142 Resolución de la Corte Interamericana de Direitos Humanos 24 September 2000 (Inter-​ American Court of Human Rights). 1 43 Comunidad Moiwana v. Suriname [2005] Series C No. 124, [2005] (Inter-​American Court of Human Rights) paras 30, 36, 86.44, 122. 144 Five Pensioners v. Peru [2003] Series C No. 98, [2003] (Inter-​American Court of Human Rights).

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the pertinent legal provisions to a case, even if not invoked by the Commission.145 The reason behind it is that the victims are the subjects of the rights set down in the achr. To dismiss the victims’ arguments without proper analysis would imply an undue restriction of their condition as subjects of international law. More than a decade later, such understanding of individuals as subjects of international law would be consolidated in international law.146 In the Moiwana case, Judge Cançado Trindade emphasized that it is the individual human being, a member of a group, who is the subject of rights.147 His explanation grasped the idea behind the first wave of jurisprudence concerning tribal and indigenous lands, which displays a strong individual character concerning the legal capacity (emphasis added): Thus, more than two centuries before Suriname attained statehood, its Maroon peoples celebrated peace agreements with the colonial authorities, subsequently renewed, and thus obtained their freedom from slavery. And the Maroons, –​the N’djuka in particular –​regard these treaties as still valid and authoritative in the relations with the successor State, Suriname. This means that those peoples exercised their attributes of legal persons in international law, well before the territory where they lived acquired statehood. This reinforces the thesis which I have always supported, namely, that the States are not, and have never been, the sole and exclusive subjects of international law.148 In light of this statement, it is impossible to draw a different conclusion: The Moiwana case consolidated the Court’s understanding of regarding members of tribal and indigenous communities as victims.149 In this regard, it is important to highlight that the equivalence between the concepts of indigenous and tribal communities followed implicitly the influence of ilo Convention 169. The ilo Convention 169 is the only international treaty to deal with tribal and 1 45 ibid paras 152–​156. 146 For a comprehensive analysis on individuals as subjects of international law see Anne Peters, Jenseits der Menschenrechte: Die Rechtsstellung des Individuums im Völkerrecht (Jus Internationale et Europaeum vol 88, Mohr Siebeck 2014). 147 Comunidad Moiwana v. Suriname [2005] Series C No. 124, [2005] (Inter-​American Court of Human Rights), Separate Opinion of Judge Cançado Trindade para 10. 148 ibid, Separate Opinion of Judge Cançado Trindade para 6. 149 Similarly see Claudia Martin, ‘The Moiwana Village Case: A New Trend in Approaching the Rights of Ethnic Groups in the Inter-​American System’ (2006) 19 Leiden Journal of International Law 491 502.

98 Chapter 3 indigenous communities under the same umbrella. Article 1 of the ilo Convention 169 guarantees equal rights to them. This present Court’s decision happened in the aftermath of a substantial setback regarding the individualization of victims in the iahrs. Such setback refers to the decisions in the cases Juvenile Reeducation Institute (2004) and Plan de Sánchez (2004).150 In contrast to previous judgments, the IACtHR was quite strict in those cases. Accordingly, the IACtHR stated that in the context of a contentious case the interested party must indicate the beneficiaries of reparations. Such requirement follows Article 63(1) of the American Convention, which the Court interprets as establishing that injured parties must be individual persons. A missing argument in the Court’s analysis of procedural requirements is the context of the Maroon community and their precarious living conditions. Even if considering the Court’s argument that injured parties must be individual persons, this does not mean that the injured parties have the obligation to identify themselves. Such a provision does not exist in the achr. This book argues that procedural requirements should be examined in light of the context of the affected communities and with the aim of protecting the victims of human rights violations. In other words, the Court should consider the context of the application of the achr. In applying an evolutive interpretation to procedural rules, the Court would be compelled to accept the Commission’s request and soften the requirement of the individualization of victims. This would afford more protection to victims of human rights violations. Such an interpretation of procedural requirements would not be unusual. Rather, it finds a parallel with the one regarding the procedural rule of the exhaustion of domestic remedies.151 To interpret this requirement, human rights bodies take into account the domestic context. Finally, this analysis points out that the requirement of the identification of victims is unequal during the different stages of the complaint procedure. When parties are claiming provisional measures, the Court is flexible concerning the fulfillment of this requirement. In the case of the Community of San José de Apartadó, the tribunal expanded the scope of protection

150 Masacre Plan de Sánchez v. Guatemala [2004] Series C No. 105, [2004] (Inter-​American Court of Human Rights); Juvenile Reeducation Institute v. Paraguay [2004] Series C No. 112, [2004] (Inter-​American Court of Human Rights) paras 268–​278. 151 Cf. Antônio A  Cançado Trindade, ‘A Regra do Esgotamento dos Recursos Internos Revisitada: Desenvolvimentos Jurisprudenciais Recentes no Ambito da Proteção Internacional dos Direitos Humanos’ in Corte Interamericana de Derechos Humanos. Secretaria (ed), Liber Amicorum Hector Fix –​Zamudio (La Secretaria 1998) 17–​28.

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ratione personae of provisional measures to embrace undetermined individuals of a community.152 The concurring opinion of Judges Abreu Burelli and García Ramírez explained that the issuance of provisional measures in a “non-​individualized” way is based on the doctrine of diffuse legal interests. These interests require legal protection and produce a subjective right that is attributable to an undetermined group.153 In the case of the Community Jiguamiandó and Curbaradó, the Court went further and indicated the criteria used to define the community –​without individualizing its members.154 It considered four criteria to order the state to protect a number of persons who had not been named in the request for provisional measures: that the members of the community may be individually identifiable; that the community is organized; that the community has a specific geographical location; and that the members of the community are in the common situation of risking suffering acts of aggression.155 To sum up, the decision in the Moiwana case reinforces the individual character of the first wave of jurisprudential developments  –​as this book conceptualizes it. It substantiates that the legal capacity of tribal and indigenous communities and their members has a strong individual component. This was remarkable in relation to the beneficiaries of reparations in the Moiwana case. Additionally, this analysis concludes that, even when the Commission deals with the case of a community who faces difficulties in identifying its members, the Court does not show willingness to soften the procedural requirement of individualization of injured parties.

152 Asunto de la Comunidad de Paz de San José de Apartadó Respecto Colombia [2000] Resolución de la Corte Interamericana de Derechos Humanos, [2000] 1 (Inter-​American Court of Human Rights); Asunto de la Comunidad de Paz de San José de Apartadó Respecto Colombia [2002] Resolución de la Corte Interamericana de Derechos Humanos, [2002] (Inter-​American Court of Human Rights). 153 Asunto de la Comunidad de Paz de San José de Apartadó Respecto Colombia [2000] Resolución de la Corte Interamericana de Derechos Humanos, [2000] 1 (Inter-​American Court of Human Rights), Voto Razonado Concurrente de los jueces Alirio Abreu Burelli y Sergio García Ramírez, para 4. Free translation by the author from the original decision in Spanish. 154 Matter of the Communities of Jiguamiandó and Curvadaró regarding Colombia [2003] Order of the Inter-​American Court of Human Rights, [2003] (Inter-​American Court of Human Rights) para 9. 155 Juana I Acosta Lopez, ‘La protección de víctimas indeterminadas en el sistema interamericano de derechos humanos’ (Graduation, Pontificia Universidad Javeriana 2005)  21. Since October 2004, the Commission has been considering the three first requirements of such criteria to admit petitions in case of tribal and indigenous communities. This issue is explored below in the third wave of jurisprudence.

100 Chapter 3 3.1.3 The Requirement of Possession An important element of this case is the creation of a new collective dimension related to the legal object. The Moiwana case developed the scope of property protection beyond present possession. In the Awas Tingni case, the indigenous community was living in the claimed territory. In contrast, the Moiwana community had not been physically present in the claimed territory for almost twenty years. In upholding the right to property in favor of the tribal community, the Court underscored the threshold of Article 21 of the American Convention. It explained that the community’s physical absence from its lands is not a decisive factor that excludes the recognition of property rights over a territory. Instead, the important issue to consider in property claims is whether the community maintains a special relationship with the territory. In the present case, the Court gave an affirmative answer in its judgment. The focus on the special relationship between the community and the land is of great significance for tribal and indigenous communities. In many countries they were forcibly removed and evicted from their original lands without compensation. After several years, when they tried to return, states alleged that their rights were time-​barred. Before the Moiwana case, this issue was unsettled in the Inter-​American system. From now on, it is correct to conclude that tribal and indigenous communities may claim their property rights concerning ancestral lands with the territory as long as they maintain their relationship to them. As a consequence, it is compelling to observe that in the iahrs there is no prescription regarding property rights in the case of tribal and indigenous lands. 3.2 Yakye Axa Case, 2005 The Inter-​American Court issued the decision in the case of Yakye Axa two days after the judgment was passed down in the Moiwana case. Consequently, both cases have many common aspects. This section focuses on the innovative aspects of the Yakye Axa case, which refer to the legal object and the legal capacity of the indigenous community. Before analyzing those aspects, a short summary of the case follows in the next paragraphs. Since the 19th century, the indigenous community of Yakye Axa has been occupying the region of the Paraguayan Chaco.156 In 1986, running away from poor living conditions they moved from the estancia Lomo Verde to estancia el 156 The summary of facts refers to Comunidad Indígena Yakye Axa v. Paraguay [2005] Series C No. 125, [2005] (Inter-​American Court of Human Rights). Free translation by the author from the original document in Spanish. The original application of the Inter-​American Commission to the Inter-​American Court has the following reference:  Comunidad Indígena Yakye Axa del Pueblo Enxet [2003] 12.313, [2003] (Inter-​American Commission on Human Rights).

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Estribo. When they arrived, they realized that the living conditions there were even worse than in the estancia Lomo Verde. Because of this, they started a claim before the state to return to their original lands. Likewise, in 1993, members of the Yakye Axa community decided to reclaim their former lands that were located in estancia Lomo Verde before domestic courts. First, they filed a request to recognize the legal status of the community, which was accepted by the state. Next, the community leader started an administrative procedure before the responsible organs. These organs recognized that the indigenous community had the right to the claimed land prior to the existence of the Paraguayan state. In addition, pursuant to the Constitution, the rights of indigenous communities prevail over third parties. Following this advice, the state attempted to buy the claimed lands from third parties –​who were the legal owners –​in order to return the lands to the indigenous community. Yet, the land owners refused to sell. To solve this issue and expropriate the lands in favor of the Yakye Axa, the Paraguayan Congress would have to adopt an expropriation law. After internal proceedings, the Congress decided not to expropriate the lands in favor of the Yakye Axa community. According to the state, the reason behind the Congress’ decision was the alleged economic utilization of property by the land owners. As a result, at the date of the Inter-​American Court’s judgment, the Yakye Axa community had 319 members divided into 90 families. Half of these families lived in different villages in the Paraguayan Chaco. The other half settled alongside a route, facing the barbed wire fence of their claimed lands. The Yakye Axa case presented a situation of collision of collective interests between the indigenous community and third parties. According to the Court, both private and communal properties deserve the protection of Article 21 of the American Convention. Yet, the tribunal remarked that the communal property protects a broader spectrum of rights than the private property, i.e. the right to cultural identity and the right of indigenous communities and their members to survive. Hence, in some cases, restrictions to private property would be necessary in order to achieve the goal of preserving the cultural identity of indigenous communities. However, the IACtHR explained that the individual property may in some cases prevail over communal property. According to the IACtHR, the protection of the right to cultural identity is not absolute. The Court elaborated on the legal restrictions to property rights pursuant to Article 21 of the American Convention. This provision establishes that limitations to property rights should be in accordance with legality and public utility or social interest. Accordingly, when deciding conflicts between individual and communal property, the state may restrict property rights. To do so, it must issue measures

102 Chapter 3 complying with the following requirements: (1) they must be established by law; (2) they must be necessary; (3) they must be proportional; and (4) they must be done for the sake of achieving a legitimate goal in a democratic society.157 In acting so, the state complies with the requirements of Article 21 of the achr, including by limiting property rights of tribal and indigenous communities in favor of private individuals. Here the Court remarked the need of issuing compensation for expropriated indigenous lands. Reparation measures to tribal and indigenous communities should have a collective character. As appropriate measures, the Court referred to Article 16.4 of the ilo Convention 169, which was the only legal instrument in force at that time applicable to the situation of the Yakye Axa community. This provision establishes that compensation may follow through substitutive lands or in kind. In its judgment, the IACtHR concluded that Paraguay had violated Article 21 of the achr. It pointed out that the state had failed to adopt measures to guarantee the exercise of property rights of the Yakye Axa community. Hence, it ordered reparations in this regard. In view of this decision, this analysis indicates that the IACtHR enhanced the collective dimensions of the protected legal object. The judgment stated that the concept of indigenous property refers not only to the land itself, but also to the natural resources therein.158 On the one hand, it is noteworthy that the inclusion of natural resources in the concept of indigenous property is in accordance with the Commission’s position since the Awas Tingni case. On the other hand, such inclusion has never appeared before in the Court’s jurisprudence. It constitutes therefore an important breakthrough that unifies the interpretation of the achr by the Inter-​American organs. Accordingly, since the decision in the Yakye Axa case the concept of indigenous property includes tribal and indigenous lands and natural resources therein. The enhancement of the scope of protection of indigenous property aims towards a better protection of indigenous cultural identity. As explained in the previous section, the protection of lands through cultural identity started to develop in the Moiwana case.159 In the Yakye Axa case, the Court elaborated on the reasoning behind it. As Judge Abreu Burelli explained, the American Convention does not contain the right to cultural identity, so its recognition is de lege ferenda through the Court’s evolutive interpretation of the achr. To that end, the Court considered among others instruments Article 23 of the 157 Comunidad Indígena Yakye Axa v.  Paraguay [2005] Series C No. 125, [2005] (Inter-​ American Court of Human Rights) para 144. 158 ibid para 137. 159 See above in this chapter, “3.1.1 Cultural Identity.”

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adhr and Article 14 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights (Protocol of San Salvador).160 One important highlight of the present decision is the use of the right to cultural identity as an interpretative tool in case of conflicts of interests between individuals and groups. These conflicts represent hard cases, for which there is no universal solution. Tribunals have to decide on a case-​by-​case basis, to which side justice shall bend. Likewise, it is important for judges to keep in mind that the protection of indigenous lands is not an end in itself. Rather, the protection of indigenous lands aims to protect in parallel local cultures. This dual protection approach contrasts with the scope of protection of civil property that relates only to individual freedom. The test of requirements elaborated by the IACtHR in the Yakye Axa case constitutes a crucial innovation for property protection. This initiated a new trend in the case law on property, which draws upon previous advisory opinions issued by the Court.161 To scrutinize alleged restrictions to property rights, the Court started to evaluate the legality, necessity, proportionality, and legitimacy of the state measure. The IACtHR’s criteria are similar to those of the ECtHR.162 Yet, different from its European counterpart, the Inter-​American Court does not emphasize a distinction between deprivation and other types of interference to property.163 Moreover, it is important to recognize the increasing role of the beneficiaries of reparations based on the protection of cultural identity. In an innovative way, the Court confirmed the dual character  –​individual and collective –​of beneficiaries of reparations. Remarkably, the Court stated its shared understanding with the Commission that in case of indigenous communities, there is a special collective aspect behind the reparations. Put succinctly, the 160 Comunidad Indígena Yakye Axa v.  Paraguay [2005] Series C No. 125, [2005] (Inter-​ American Court of Human Rights), Partially Dissenting Vote of Judge A. Abreu Burelli, para 24. 161 Advisory Opinion 06/​86  –​The Word “Laws” in Article 30 of the American Convention on Human Rights [1986] Series A No. 6, [1986] (Inter-​American Court of Human Rights) paras 12–​37; Advisory Opinion 05/​85 –​Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism [1985] Series A No. 5, [1985] (Inter-​American Court of Human Rights) paras 53–​77. 162 Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights –​Protection of Property [2018] [2019] (European Court of Human Rights) para 63. 163 Thomas M Antkowiak and Alejandra Gonza, The American Convention on Human Rights: Essential Rights (Oxford University Press 2017) 274; Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights –​Protection of Property [2018] [2019] (European Court of Human Rights) para 64.

104 Chapter 3 community’s culture should be considered in establishing reparations. This is in accordance with the current international standards on reparations for indigenous peoples –​Article 10 of the undrip and Article 25 of the adrip read in conjunction with Article 33 thereof, both which recognize higher standards than the ilo Convention 169. In the case of tribal and indigenous communities, reparations should be set in consultation with the affected communities. As part of reparation measures, the Court demanded that Paraguay create a development fund to be administrated by the Yakye Axa indigenous community. Such autonomy to administrate the fund contrasts with the Awas Tingni case, in which the state and the Inter-​American Commission played a key role in administrating the development fund.164 Finally, by examining the reparations ordered, the strong individual aspect that characterizes the first wave of jurisprudence becomes evident. Despite all those collective aspects of reparations, the Court recognized only the members of the indigenous community as beneficiaries of reparations. Such recognition contrasted with the Commission’s petition that recognized the community and its members as injured parties. 3.3 Sawhoyamaxa Case, 2006 As a preliminary matter, it is compelling to recognize that the observations of the Inter-​American organs in the case of Yakye Axa were very similar to the ones in the Sawhoyamaxa case. There is not much innovation concerning the individual and collective dimensions of the right to property. Nevertheless, it is worth analyzing this case due to the comprehensive elucidations on the concept of property. In the Sawhoyamaxa case, the Inter-​American organs elaborated much more on the theoretical background behind their assessment. Consequently, this case shines as a substantial cornerstone to the iahrs jurisprudence. In this section, three issues deserve special attention: the expansion of the legal basis concerning the right to property, the requirement of land possession by indigenous communities, and the time limit regarding the submission of property claims. To begin, here is a brief summary of the case. The Sawhoyamaxa community was an indigenous group living in the Paraguayan Chaco.165 By the time of 164 Cf. Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [2001] Series C No. 79, [2001] 1 (Inter-​American Court of Human Rights) para 167. 165 The summary of facts refers to Comunidad Indígena Sawhoyamaxa v. Paraguay [2006] Series C No. 146, [2006] (Inter-​American Court of Human Rights). Free translation by the author from the original document in Spanish. The original application by the Inter-​American Commission to the Inter-​American Court has the following reference:

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the Court’s judgment, the Sawhoyamaxa community had 407 members and located itself in the settlements known as “Santa Elisa” and “Km 16.” The community’s location with poor living conditions was a result of a forced removal of the community from its ancestral lands. The Inter-​American Commission and the legal representatives of the community argued that the state did not guarantee the right to indigenous communal property. In 1991, the leaders of the community started an administrative procedure before the responsible organs to claim back their lands. Similar to the Yakye Axa case, the responsible organs argued that they did not have the competence to return the lands to the indigenous community. Likewise, the competence was with the Congress that would need to adopt a decision expropriating the lands in favor of the community. In the year 2000, without any reasonable explanation, the Congress decided against such expropriation. As a response to the claims, the decision of the IACtHR upheld the consolidated jurisprudence on indigenous land rights. Among others, it declared a violation of Article 21 of the achr read in conjunction with Articles 1(1) and 2 thereof, and of Article 4(1) of the achr read in conjunction with Articles 1(1) and 19 thereof. Regarding the theoretical background, it is important to recognize a doctrinal innovation through the new connection between the rights to life and to cultural identity. The Court underscored such connection through the evolutive interpretation of Article 4(1) of the American Convention in relation to Articles 1(1) and 19 thereof. Judge Cançado Trindade explained the relationship between these provisions concerning the rights to life and to cultural identity.166 Accordingly, such a relationship builds on the concept of vida digna. The Court had previously used this concept in its jurisprudence to establish state obligations concerning the guarantee of the right to life pursuant to Article 4 of the achr. In other words, the state should guarantee conditions of a dignified existence to its citizens. In the case of indigenous communities, a dignified existence includes the preservation of their cultural identity. Before this case, the Court’s jurisprudence referred to cultural identity only in relation to the right to property. The connection between the right to cultural identity and the right to life is a unique aspect of the present decision. Legal scholarship highly appreciated Comunidad Indígena Sawhoyamaxa del Pueblo Enxet y Sus Miembros [2005] 12.419, [2005] (Inter-​American Commission on Human Rights). 166 Comunidad Indígena Sawhoyamaxa v. Paraguay [2006] Series C No. 146, [2006] (Inter-​ American Court of Human Rights), Concurring opinion of Judge Cançado Trindade paras 2–​7.

106 Chapter 3 such attempt due to the broader scope of protection to indigenous communities, which could be achieved in this way.167 Yet, the connection between the rights to cultural identity and to life did not develop further in the case law. This underscores an important difference between the Inter-​American and the European human rights system, which has an established jurisprudence on minorities, cultural identity, and the right to life.168 The collective dimensions of indigenous communal property reached a solid standard in the judgment. The separate opinion of Judge García Ramírez explained the very limits of the language in dealing with indigenous issues.169 Accordingly, to deal with indigenous issues under the concept of “property” requires caution. Indigenous property is a different type of property that is not comparable to private or civil property. Only with this idea in mind is possible to correctly understand the concept of property. In Judge García Ramírez’s words (emphasis added): 16. I am forced not to object to the use of the term ‘property’ to describe the rights of the indigenous peoples rights over the lands they have owned and over those the currently own, provided it be understood that, in the instant case, the property rights are “qualified”, that is to sxay (sic) it has unique characteristics, which correspond in some aspects to ordinary ownership, but differ radically from it in others. The idea of putting the indigenous form of ownership –​i.e., the indigenous landholding under their particular customary law –​on the same footing as that of the civil law also preserved under Article 21 of the Convention may prove extremely disadvantageous to the legitimate interests and lawful rights of the indigenous people. None of this would go on under a rigorous interpretation of the Pact of San José, which the Court has already established in the Case of the Mayagna Community.170 Furthermore, the Sawhoyamaxa case reinforced that the possession of the claimed land is not a requirement to obtain the respective property title. Judge Cançado Trindade considered that the requirement of possession would be 167 Thomas M Antkowiak, ‘Rights, resources and rhetoric: Indigenous Peoples and the Inter-​ American Court’ (2013) 35 University of Pennsylvania Journal of International Law 113 159–​185. 168 Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights –​Protection of Property [2018] [2019] (European Court of Human Rights) paras 32–​44. 169 Comunidad Indígena Sawhoyamaxa v. Paraguay [2006] Series C No. 146, [2006] (Inter-​ American Court of Human Rights), Concurring Opinion of Judge García Ramírez. 170 ibid, Concurring Opinion of Judge García Ramírez, para 16.

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too burdensome to the victims and it would imply a probatio diabolica.171 Moreover, Judge García Ramírez explained that the dismissal of this requirement was a result of the inclusion of the concept of indigenous property under Article 21 of the American Convention. Possession is a standard requirement for the qualification of civil law property. Communal indigenous property does not entail such a requirement. It bases itself on a different concept that deserves the protection of the American Convention. Judge García Ramírez’s words grasped the concept of indigenous property and contrasted it to individual property (emphasis added): 13. When property is mentioned in connection with the rights vested in the members of the indigenous communities or the communities as such over certain lands –​to which they furthermore attach traditions and beliefs, spiritual relations that transcend the mere possession and economic enjoyment  –​the meaning labeled should not necessarily be confused with the absolute ownership that is characteristic of ordinary civil law. The property rights of the indigenous people are different –​and so it must be recognized and protected –​from this other form of ownership created by the European law rooted in liberal ideology. Moreover, the forced introduction of the notions of property rights stemming from Roman law and received, albeit with variations, by the nineteenth-​ century law that took root in America involved an extensive process that plundered and dispersed the communities, the consequences of which can still be seen. (…) 15. Thus, from the conquest on, the original population of America –​ who had formerly held sway over their territories and played the leading role in their own history –​exited both their history and their rights over them; they roamed their old lands, now turned over to new lords, and fruitlessly claimed on their ancestral titles before new powers. Finally they became exiles, and as such watched the centuries go by, almost offhandedly. The damage caused to the groups and individuals was extremely severe and deep. At the heart of the cases filed before the Inter-​ American Court lies this phenomenon excluding the old forms of landholding and replacing them with new types of ownership, under the aegis of the Western concept of private property.172

1 71 ibid, Concurring Opinion of Judge Cançado Trindade, paras 20–​23. 172 ibid, Concurring Opinion of Judge García Ramírez, paras 13, 15.

108 Chapter 3 In the iahrs, the requirement for claiming indigenous property is the existence of a community’s collective relationship to the land. The IACtHR explained that the right to indigenous communal property does not prescribe and as long as indigenous communities preserve a relationship with the land, there is a right to claim it. Building on the Moiwana case, the tribunal emphasized that this relationship must be possible.173 This means that in case an indigenous community finds itself unable to further develop this relationship due to reasons caused by external sources, the right to property remains. As in the present case, the Sawhoyamaxa community did not have regular access to the land because third parties prevented it. Consequently, it could not fully develop its relationship to the claimed lands. Still, due to the existence of a collective relationship to the land, the right of the members of the community to property was preserved. Moreover, in case of conflict of interests, the economic exploitation of claimed indigenous lands by third parties is not a sufficient reason to dismiss indigenous claims. The argument that third parties use indigenous lands in a productive way does not comply with the requirements of Article 21 of the achr. The state must evaluate the concrete situation in light of the criteria set down in the Yakye Axa case.174 The Court demonstrated therefore that the protection of property goes beyond the economic aspect. Domestic courts should consider other issues such as the cultural identity of indigenous communities in balancing interests. Such issues have the same relevance as the economic aspect. Finally, this case demonstrated the complementary relationship between individual and collective aspects of the right to property. It demonstrated that the American Convention enables the protection of groups through its provisions. This protection is indeed the best way of ensuring the effectiveness of individual rights.175 Rather than a relationship of exclusion, there is a relationship of addition between individual and group rights. 4

Interim Conclusions: Protecting Indigenous Property through Individuals

This chapter demonstrated the first wave of jurisprudential developments concerning property rights of members of tribal and indigenous communities. 1 73 See above in this chapter, “3.1.3 The Requirement of Possession.” 174 See above in this chapter, “3.2 Yakye Axa Case, 2005.” 175 ibid, Concurring Opinion of Judge García Ramírez para 11.

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It contained three analytical sections, which this part summarizes and then analyzes. Part one concerned the Aloeboetoe et al. v. Suriname case , which was the first case in the Court’s case law concerning a tribal community.176 This case does not elaborate on property rights. Its importance to this analysis is related to the procedural issues involved, i.e. the problem with the individualization of injured parties, which this chapter explained above in detail. This procedural issue was problematic for more than a decade in a range of cases concerning tribal and indigenous issues. The analysis of the Aloeboetoe et al case showed that the Inter-​American organs struggled to comply with the procedural requirements of the complaint procedure. The identification of individual members of the tribal community was deemed necessary by the Court to set reparations. The Commission was opposed to this view. The difficulties of identification were associated with the tribal way of life, which included living in remote geographical areas without state support. Consequently, the members of the community did not have identification documents. This situation is shared by many tribal and indigenous communities in the Americas. In view of that, this analysis suggested alternative ways of applying the procedural requirement of identification to the situation of tribal and indigenous communities. Part two referred to the leading case dealing with property rights of indigenous communities, Mayagna (Sumo) Awas Tingni Community v. Nicaragua.177 This is the landmark decision of the first wave of jurisprudential developments. In the case of the Awas Tingni community, the assessment above demonstrated that the Commission and the Court had different views regarding individual and collective aspects of property rights. For instance, both organs relied on the evolutive interpretation in order to analyze the case. Yet, the Commission focused on the concept of historical racial discrimination against indigenous communities whereas the Court focused on the pro homine principle. Despite being slightly different, their interpretations were also complementary. Another example relates to the role of general international human rights law in this case. The Commission was very explicit in making references to international legal instruments besides the Inter-​American Convention. Conversely, the Court made almost no reference to them. Furthermore, there were many common aspects between the Commission’s and the Court’s interpretation. Accordingly, both organs established that the

1 76 See above in this chapter, “1. An Important Precedent: The Aloeboetoe Case.” 177 See above in this chapter, “2. The Beginning of Communal Indigenous Property.”

110 Chapter 3 right to property pursuant to Article 21 of the American Convention contains specific property rights, i.e. the right to possession and the right to the spiritual relationship to the lands. Indeed, these rights generate positive obligations of the state. Likewise, the Inter-​American organs created the concept of communal indigenous property. The analysis above emphasized the significant differences between communal and civil property. In the Global North, civil property has an economic connotation associated with the exclusive rights of property use, enjoyment, and disposal –​uti, frui, fui.178 Indigenous property does not relate with the absolute rights to use, enjoy, and dispose of property. Rather, it concerns shared land using and land-​based cultural practices, which date back to pre-​colonial times. Therefore, civil property rights and indigenous property rights have different natures and scopes. Due to its complexity, the legal capacity of the Awas Tingni community and its members deserved special attention. The evaluation above explained this capacity in three parts. First, as petitioners, the members of the indigenous community and their legal representatives did not play a significant role. Second, as victims, only the individual members of the community deserved the recognition as injured parties. Third, as beneficiaries of reparations, both the indigenous community and its members were subject to compensation. Part three of this chapter elucidated three other cases that followed the pattern of the Awas Tingni case.179 In those cases, besides some controversies, there was a common agreement between the Inter-​American organs regarding two important issues. First, the American Convention protects implicitly the right to cultural identity. This right associated with the right to property is the basis for protecting the collective use and enjoyment of lands by tribal and indigenous communities. Second, the concept of communal tribal and indigenous property includes lands, natural resources therein, and the intangible relationship of these communities to their lands. Remarkably, in the decisions after the Awas Tingni case, there were some striking developments regarding the legal capacity of tribal and indigenous communities and their members. First, as petitioners, they acquired some autonomy in the proceedings before the Court. Second, the Commission and the Court enhanced the category of victims with the inclusion of tribal communities as a concept analogous to indigenous communities. The Inter-​American organs defined both communities based on a bundle of objective aspects: (1) geographical location; (2) history and relationship to the land; (3) sociopolitical 178 Similarly see Lenzerini F, ‘Land Rights’, Sofia Conference (2012) –​ILA Final Report –​Rights of Indigenous Peoples (2012). 179 See above in this chapter, “3. Afterawastingni.com.”

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communal organization; (4) native language; (5) local culture; and (6) religion. Neither the Court nor the Commission referred to subjective aspects such as self-​identification. Due to this, combined with the absence of reference to the colonial past of tribal and indigenous communities, the Inter-​American identification criteria does not exactly match the requirements set down in Article 1 of the ilo Convention 169. Indeed, it differs from the criteria established in the African Human Rights System, inter alia in view of the absence of the criterion of self-​identification.180 As evidence regarding the community’s identification, the iahrs organs referred to the affidavits by witnesses and expert witnesses, and to ethnographies submitted by research institutions. Third, as beneficiaries of reparations, communities achieved a more prominent role through, for example, the administration of reparation funds. However, similar to the situation in the Aloeboetoe case, the Commission and the Court kept struggling to identify the individual members of groups. Based on the foregoing analysis, it is possible to conclude that the Awas Tingni case initiated a trend in the iahrs jurisprudence. Such trend concerned the cases from Awas Tingni (2001) up to Sawhoyamaxa (2006). These cases characterized themselves for exposing controversies between the Inter-​American organs. The Commission was more outspoken than the Court regarding advancing collective dimensions of property rights. Additionally, these cases followed a common thematic line. They referred either to the absence of recognition of land rights of tribal and indigenous communities under domestic laws or to the state failure to guarantee these rights. This first wave of jurisprudence demonstrated the inherent connection between individual and group rights. This topic has been highly controversial in legal scholarship. The Inter-​American legal practice demonstrates the necessity of protecting groups in order to protect the values of human rights such as human dignity. Individual rights are not sufficient for such a goal. As Wiessner brilliantly explained: 180 On the African Human Rights System see:  African Commission on Human and Peoples’ Rights v. Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights) para 107; Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Peoples [2007] [2007] 1 (African Commission on Human and Peoples’ Rights) 4; African Commission on Human and Peoples’ Rights, Indigenous Peoples in Africa: The Forgotten Peoples? (African Commission on Human and Peoples’ Rights; International Work Group for Indigenous Affairs 2006) 9–​11; Report of the African Commission’s Working Group on Indigenous Populations/​ Communities [2003] [2003] 1 (African Commission on Human and Peoples’ Rights) 58–​61; African Commission on Human and Peoples’ Rights, Extractive Industries, Land Rights and Indigenous Populations’/​Communities’ Rights (2017) 23–​28.

112 Chapter 3 In order to respond holistically to human needs and aspirations, we need to endeavor to protect both individuals and the groups relevant to them. Vulnerability of individuals created the need for individual human rights; the vulnerability of groups –​particularly of cultures –​creates the need for their protection. The critical question of relevance to the human rights project is: what deprivations of values targeting individuals as members of groups have taken place in recent history, and in order to achieve a world public order of human dignity, how might these deprivations be remedied? To answer this question, we need to understand exactly what the claims are that arise in the essential interaction between individuals and the groups relevant to them.181 Finally, the unique characteristic of the first jurisprudential wave refers to the legal capacity of tribal and indigenous communities, which is individually based. The Commission and the Court individualized members of tribal and indigenous communities to recognize them as victims and as beneficiaries of reparations. Such individualization followed procedural requirements of the iahrs complaint mechanism. Despite all the collective aspects related to the right to property, its rights holders were only individual members of communities. For instance, there was a communal possession grounding the right to communal property, which could be invoked only by members of the community –​and not by the community as such. This contrast between individual and collective aspects caused a growing tension in the iahrs. As a result, it caused a transitional period with new jurisprudential developments that the next chapter explores.

Cases and Reports

Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria [2001] 155/​96, [2001] (African Commission on Human and Peoples’ Rights). Report of the African Commission’s Working Group on Indigenous Populations/​Communities [2003] [2003] 1 (African Commission on Human and Peoples’ Rights). Indigenous Peoples in Africa: The Forgotten Peoples? (African Commission on Human and Peoples’ Rights; International Work Group for Indigenous Affairs 2006). 181 Siegfried Wiessner, ‘Re-​Enchanting the World:  Indigenous Peoples’ Rights as Essential Parts of a Holistic Human Rights Regime’ (2010) 15 UCLA Journal of International Law and Foreign Affairs 239 262.

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Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Peoples [2007] [2007] 1 (African Commission on Human and Peoples’ Rights). Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) [2009] [2009] 1 (African Commission on Human and Peoples’ Rights). Extractive Industries, Land Rights and Indigenous Populations’/​Communities’ Rights [2017] African Commission on Human and Peoples’ Rights. African Commission on Human and Peoples’ Rights v. Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights). Handyside v. the United Kingdom [1976] 5493/​72, [1976] 1 (European Court of Human Rights). Pressos Compania Naviera S.A. and Others v. Belgium [1995] 17849/​91, [1995] (European Court of Human Rights). Chapman v. the United Kingdom [2001] 27238/​95, [2001] (European Court of Human Rights). Kopecký v. Slovakia [09/​28//​2004] 44912/​98, [2004] (European Court of Human Rights). Dogan and Others v. Turkey [2004] Applications nos. 8803–​8811/​02, 8813/​02 and 8815–​ 8819/​02, [2004] (European Court of Human Rights). Paeffgen Gmbh v.  Germany [2007] 25379/​04; 21688/​05; 21722/​05; 21770/​05, [2007] (­European Court of Human Rights). Handölsdalen Sami Village and Others v.  Sweden [2010] Application no.  39013/​04, [2010] (European Court of Human Rights). Saghinadze and Others v. Georgia [2010] 18768/​05, [2010] (European Court of Human Rights). Cultural rights in the case-​law of the European Court of Human Rights [2017] [2017] (European Court of Human Rights). Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights –​Protection of Property [2018] [2019] (European Court of Human Rights). Ivan Kitok v. Sweden (1987) CCPR/​C/​33/​D/​197/​1985 (Human Rights Committee). Chief Bernard Ominayak and the Lubicon Lake Band v. Canada [1990] CCPR/​C/​38/​D/​ 167/​1984, [1990] (Human Rights Committee). General Comment No. 23:  The Rights of Minorities (Art. 27) [1994] CCPR/​C/​21/​Rev.1/​ Add.5, [1994] (Human Rights Committee). Länsman et al. v. Finland [1994] UN Doc CCPR/​C/​52/​D/​511/​1992, [1994] (Human Rights Committee). J.G.A. Diergaardt et  al. v.  Namibia (2000) CCPR/​C/​69/​D/​760/​1997 (Human Rights ­Committee). Apirana Mahuika et al. v. New Zealand [2000] CCPR/​C/​70/​D/​547/​1993, [2000] (Human Rights Committee).

114 Chapter 3 Ángela Poma Poma v. Peru [2009] CCPR/​C/​95/​D/​1457/​2006, [2009] 1 (Human Rights Committee). Jehovah’s Witnesses –​ Argentina (1978) 2137 (Inter-​American Commission on Human Rights). Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin (29 November 1983) OEA/​Ser.L./​V.II.62  accessed 23 October 2018. (Inter-​American Commission on Human Rights). ABC Color  –​Paraguay [1984] 9250, [1984] (Inter-​American Commission on Human Rights). Resolution 12/​85 –​Yanomami Indians (Brazil) [1985] 7615, [1985] (Inter-​American Commission on Human Rights). Report No. 03/​90 –​Suriname [1990] 10.150, [1990] 1 (Inter-​American Commission on Human Rights). Banco de Lima  –​Peru [1991] 10.169, [1991] (Inter-​American Commission on Human Rights). Report No. 48/​96 –​Emérita Montoya González (Costa Rica) (1996) 11.553 (Inter-​American Commission on Human Rights). Aché People (Paraguay) [1997] 1.802, [1997] (Inter-​American Commission on Human Rights). Tabacalera Boquerón S.A. –​Paraguay (1997) OEA/​Ser.L/​V/​II.98 (Inter-​American Commission on Human Rights). Report No. 28/​98 –​Maria Eugenia Morales de Sierra (Guatemala) (1998) 11.625 (Inter-​ American Commission on Human Rights). Mayagna (Sumo) Indigenous Community of Awas Tingni v.  Nicaragua [1998] 11.577, [1998] (Inter-​American Commission on Human Rights). MEVOPAL, S.A.  –​Argentina [1999] [1999] (Inter-​American Commission on Human Rights). The Human Rights Situation of the Indigenous People in the Americas (2000) Inter-​ American Commission on Human Rights. Final Written Arguments in the Case of Awas Tingni v. Nicaragua (2001) (Inter-​American Commission on Human Rights). Report No. 51 –​Janet Espinoza Feria et al. (Peru) (2002) 12.404 (Inter-​American Commission on Human Rights). Stefano Ajintoena et al. v. the Republic of Suriname [2002] 11.821, [2002] (Inter-​American Commission on Human Rights). Comunidad Indígena Yakye Axa del Pueblo Enxet [2003] 12.313, [2003] (Inter-​American Commission on Human Rights). Final Written Arguments of the Inter-​American Commission on Human Rights in the Case of Moiwana Village [2004] 11.821, [2004] (Inter-​American Commission on Human Rights).

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Comunidad Indígena Sawhoyamaxa del Pueblo Enxet y Sus Miembros [2005] 12.419, [2005] (Inter-​American Commission on Human Rights). Pueblos Indígenas, comunidades afrodescendientes y recursos naturales: Protección de derechos humanos en el contexto de actividades de extracción, explotación y desarrollo (2015) Inter-​American Commission on Human Rights (ed). Advisory Opinion 05/​85 –​Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism [1985] Series A No. 5, [1985] (Inter-​American Court of Human Rights). Advisory Opinion 06/​86 –​The Word “Laws” in Article 30 of the American Convention on Human Rights [1986] Series A No. 6, [1986] (Inter-​American Court of Human Rights). Velásquez Rodríguez v. Honduras [1988] Series C No. 4, [1988] 1 (Inter-​American Court of Human Rights). Aloeboetoe et al. v. Suriname [1991] Series C No. 11, [1991] 1 (Inter-​American Court of Human Rights). Advisory Opinion 13/​93 –​Certain Attributes of the Inter-​American Commission of Human Rights [1993] Series A No. 13, [1993] (Inter-​American Court of Human Rights). Aloeboetoe et  al. v.  Suriname [1993] Series C No. 15, [1993] (Inter-​American Court of Human Rights). Advisory Opinion 14/​94 [1994] [1994] (Inter-​American Court of Human Rights). White Van (Paniagua Morales et al.) v. Guatemala [1998] Series C No. 37, [1998] 1 (Inter-​ American Court of Human Rights). Cesti-​Hurtado v. Peru [1999] 56, [1999] (Inter-​American Court of Human Rights). Opinión Consultiva 16/​99 [1999] OC-​16/​99, [1999] 1 (Inter-​American Court of Human Rights). Caracazo v. Venezuela (1999) Series C No. 58 1 (Inter-​American Court of Human Rights). Caso de los Niños de la Calle (Villagrán Morales y otros) v.  Guatemala. Fondo [1999] Series C No. 63, [1999] 1 (Inter-​American Court of Human Rights). Resolución de la Corte Interamericana de Direitos Humanos 24 September 2000 (Inter-​American Court of Human Rights). Asunto de la Comunidad de Paz de San José de Apartadó Respecto Colombia [2000] Resolución de la Corte Interamericana de Derechos Humanos, [2000] 1 (Inter-​American Court of Human Rights). Ivcher-​Bronstein v. Peru [2001] Series C No. 74, [2001] 1 (Inter-​American Court of Human Rights). Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [2001] Series C No. 79, [2001] 1 (Inter-​American Court of Human Rights). Barrios Altos v. Peru [2001] Series C No. 83, [2001] 1 (Inter-​American Court of Human Rights). Asunto de la Comunidad de Paz de San José de Apartadó Respecto Colombia [2002] Resolución de la Corte Interamericana de Derechos Humanos, [2002] (Inter-​American Court of Human Rights).

116 Chapter 3 Five Pensioners v. Peru [2003] Series C No. 98, [2003] (Inter-​American Court of Human Rights). Matter of the Communities of Jiguamiandó and Curvadaró regarding Colombia [2003] Order of the Inter-​American Court of Human Rights, [2003] (Inter-​American Court of Human Rights). Masacre Plan de Sánchez v. Guatemala [2004] Series C No. 105, [2004] (Inter-​American Court of Human Rights). Juvenile Reeducation Institute v.  Paraguay [2004] Series C No. 112, [2004] (Inter-​ American Court of Human Rights). Comunidad Moiwana v.  Suriname [2005] Series C No. 124, [2005] (Inter-​American Court of Human Rights). Comunidad Indígena Yakye Axa v.  Paraguay [2005] Series C No. 125, [2005] (Inter-​ American Court of Human Rights). Moiwana Community v.  Suriname [2006] Series C No. 145, [2006] (Inter-​American Court of Human Rights). Comunidad Indígena Sawhoyamaxa v. Paraguay [2006] Series C No. 146, [2006] (Inter-​ American Court of Human Rights). Afro-​descendant communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia [2013] Series C No. 270, [2013] (Inter-​American Court of Human Rights). Grand River Enterprises Six Nations, LTD, et al. v. United States of America [2011] [2011] (International Centre for Settlement of Investment Disputes). Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] ICJ Reports 14–​150 (International Court of Justice). Advisory Opinion –​Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] [2004] ICJ Reports 136 (International Court of Justice).



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Grgic A and others, The Right to Property under the European Convention on Human Rights: A Guide to the Implementation of the European Convention on Human Rights and its Protocols (Council of Europe 2007). Haeck Y and others (eds), The Realisation of Human Rights: When Theory Meets Practice: Studies in Honour of Leo Zwaak (Intersentia 2013). Henrard K, ‘International Protection of Minorities’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018). Henriksen JB, ‘The UN Declaration on the Rights of Indigenous Peoples:  Some Key Issues and Events in the Process’ in Claire Charters and Rodolfo Stavenhagen (eds), Making the Declaration work: The United Nations Declaration on the Rights of Indigenous Peoples (Document/​IWGIA no. 127. IWGIA 2009). Hohmann J and Weller M (eds), The UN Declaration on the Rights of Indigenous Peoples:  A Commentary (Oxford commentaries on international law, 1st. ed. Oxford University Press 2018). Inter-​American Commission on Human Rights, ‘Testimony of Armstrong Wiggins before the OAS Inter-​American Commission on Human Rights on the Violation of the Human Rights of Indian Peoples in the Atlantic Coast Region of Nicaragua’ (1984). International Law Association, Resolution No. 5/​2012  –​Rights of Indigenous Peoples (2012). International Law Association, Sofia Conference (2012) –​ILA Final Report –​Rights of Indigenous Peoples (2012). Jakubowski A (ed), Cultural Rights as Collective Rights: An International Law Perspective (Studies in intercultural human rights 7, Martinus Nijhoff Publishers 2016). Jhering R von, Der Kampf um’s Recht (Manzsche k. u. k. Hof-​Verlags-​und Universitäts-​ Buchhandlung 1913). Jhering R von, The Struggle for Law (2nd, Callaghan and Company 1915). Kastrup JP, ‘The Internationalization of Indigenous Rights from the Environmental and Human Rights Perspective’ (1997) 32(1) Texas International Law Journal 97. Kingsbury B, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples´ Claims in International and Comparative Law’ [2001–​2002] New York University Journal of International Law and Politics 189. Kriebaum U and Reinisch A, ‘International Protection of the Right to Property’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018). Kymlicka W, ‘Minority Rights in Political Philosophy and International Law’ in Samantha Besson and John Tasioulas (eds), The philosophy of international law (Oxford University Press 2010). Lavrysen L, ‘Positive Obligations in the Jurisprudence of the Inter-​American Court of Human Rights’ (2014) 7 Inter-​American and European Human Rights Journal 94.

120 Chapter 3 Lenzerini F, ‘Land Rights’, Sofia Conference (2012) –​ILA Final Report –​Rights of Indigenous Peoples (2012). Lenzerini F, ‘The Safeguarding of Collective Cultural Rights through the Evolutionary Interpretation of Human Rights Treaties and Their Translation into Principles of Customary International Law’ in Andrzej Jakubowski (ed), Cultural Rights as Collective Rights: An International Law Perspective (Studies in intercultural human rights vol 7. Martinus Nijhoff Publishers 2016). Lenzerini F and Vrdoljak AF (eds), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Studies in international law Volume 50, Hart Publishing 2014). Martin C, ‘The Moiwana Village Case: A New Trend in Approaching the Rights of Ethnic Groups in the Inter-​American System’ (2006) 19 Leiden Journal of International Law 491. Martin C and Rodríguez Pinzón D, ‘Strengthening or Straining the Inter-​American Human Rights System’ in Yves Haeck, Oswaldo Ruiz-​Chiriboga and Clara Burbano-​ Herrera (eds), The Inter-​American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015). Matscher F and Petzold H (eds), Protecting Human Rights:  The European Dimension: Studies in Honour of Gérard J. Wiarda (Carl Heymanns Verlag KG 1988). Mayagna Indian Community of Awas Tingni, ‘Petition to the Inter-​American Commission on Human Rights against Nicaragua’ (1995) accessed 23 October 2018. Medina Quiroga C, The American Convention on Human Rights: Crucial Rights and their Theory and Practice (2nd rev. ed. Intersentia 2016). Monteiro de Matos M, ‘Cultural Identity and Self-​determination as Key Concepts in Concurring Legal Frameworks for the International Protection of the Rights of Indigenous Peoples’ in Evelyne Lagrange, Stefan Oeter and Robert Uerpmann-​ Wittzack (eds), Cultural Heritage and International Law: Objects, Means and Ends of International Protection (Springer 2018). Nash Rojas C, ‘Los derechos indígenas en el sistema interamericano de derechos humanos’ (2008) 1(1) Inter-​American and European Human Rights Journal 61. Negishi Y, ‘The Pro Homine Principle´s Role in Regulating the Relationship Between Conventionality Control and Constituionality Control’ (2016) 13 MPIL Research Paper Series 1. Oliveira Mazzuoli V de and de Faria Moreira Teixeira, Gustavo, ‘Protección Jurídica del medio ambiente en la jurisprudencia de la Corte Interamerica de Derechos Humanos’ (2015) v(5) Revista Internacional de Derechos Humanos 19. Organization of the American States, ‘Conferencia Especializada Interamericana sobre Derechos Humanos’ (1969) accessed 23 October 2018.

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Osmo C and Martin-​Chenut K, ‘A participação das vítimas no sistema interamericano: fundamento e significado do direito de participar’ (2017) 8(2) Revista Direito & Práxis 1455. Pasqualucci JM, ‘The Evolution of International Indigenous Rights in the Inter-​ American Human Rights System’ (2006) 6(2) Human Rights Law Review 281. Pasqualucci JM, ‘International Indigenous Land Rights:  A Critique of the Jurisprudence of the Inter-​American Court of Human Rights in Light of the United Nation Declaration on the Rights of Indigenous Peoples’ (2009) 27(1) Wiscosin International Law Journal 51. Pasqualucci JM, The practice and procedure of the Inter-​American Court of Human Rights (2. ed. Cambridge University Press 2013). Peters A, Jenseits der Menschenrechte:  Die Rechtsstellung des Individuums im Völkerrecht (Jus Internationale et Europaeum vol 88, Mohr Siebeck 2014). Pinero Royo LR, ‘El sistema interamericano de derechos humanos y los pueblos indígenas’ in Mikel Berraondo (ed), Pueblos indígenas y derechos humanos (Serie Derechos humanos vol 14. Universidad de Deusto 2006). Rainey B, Wicks E and Ovey C, Jacobs, White, and Ovey The European Convention on Human Rights (Seventh edition, Oxford University Press 2017). Rodríguez G, ‘Normas de Interpretación’ in Christian Steiner and Patricia Uribe (eds), Convención Americana sobre Derechos Humanos:  Comentario (Fundación Konrad Adenauer Stiftung 2014). Rodríguez Pinzón D, ‘The “victim” requirement, the fourth instance formula and the notion of “person” in the individual complaint procedure of the Inter-​American Human Rights System’ (2000–​2001) 7 ILSA Journal of International & Comparative Law 369. Rogge K, ‘The “victim” requirement in Article 25 of the European Convention on Human Rights’ in Franz Matscher and Herbert Petzold (eds), Protecting Human Rights: The European Dimension: Studies in Honour of Gérard J. Wiarda (Carl Heymanns Verlag KG 1988). Rosser E, ‘A Historical Indians and Reservation Resources’ (2010) 40 Environmental Law 437–​545. Salmón E, Los pueblos indígenas en la jurisprudencia de la corte interamericana de derechos humanos: Estándares en torno a su protección y promoción (Cooperación Alemana al Desarrollo (gIz) 2010). Santilli J, Socioambientalismo e novos direitos: Proteção Jurídica à Diversidade Biológica e Cultural (Peiropólis 2005). Schabas W, The European Convention on Human Rights: A commentary (Oxford commentaries on international law, Oxford University Press 2017). Scheinin M, ‘Indigenous Peoples´ Rights under the International Covenant on Civil and Political Rights’ in Joshua Castellino and Niamh Walsh (eds), International Law and Indigenous Peoples (Martinus Nijhoff 2005).

122 Chapter 3 Scheinin M and Ahren M, ‘Relationship to Human Rights, and Related International Instruments’ in Jessie Hohmann and Marc Weller (eds), The UN Declaration on the Rights of Indigenous Peoples: A Commentary (Oxford commentaries on international law, 1st. ed. Oxford University Press 2018). Schrijver N, Sovereignty over natural resources: Balancing rights and duties (Cambridge studies in international and comparative law, Cambridge University Press 1997). Schwartz R, ‘Realizing Indigenous Rights in International Environmental Law: A Canadian Perspective’ (2016) 109 CIGI Papers 1. Shelton D, ‘Indigenous Peoples and Sustainable Development’ in Jorge E Viñuales (ed), The Rio Declaration on Environment and Development: A commentary (Oxford commentaries on international law, 1. ed. Oxford Univ. Press 2015). Sijniensky RI, ‘From the Non-​Discrimination Clause to the Concept of Vulnerability in International Human Rights Law: Advancing on the Need for Special Protection of Certain Groups and Individuals.’ in Yves Haeck and others (eds), The Realisation of Human Rights: When Theory Meets Practice: Studies in Honour of Leo Zwaak (Intersentia 2013). Stein T, ‘International Law Association (ILA)’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018). Steiner C and Uribe P (eds), Convención Americana sobre Derechos Humanos: Comentario (Fundación Konrad Adenauer Stiftung 2014). Stoll P-​T and Hahn A von, ‘Indigenous Peoples, Indigenous Knowledge and Indigenos Resources in International Law’ in Silke v Lewinski (ed), Indigenous heritage and intellectual property: Genetic resources, traditional knowledge, and folklore (2nd ed. Kluwer Law International 2008). The American Law Institute, Restatement of the Law, Third, Foreign Relations Law of the United States (The American Law Institute 1987). Thornberry P, Indigenous peoples and human rights (Melland Schill studies in international law, Manchester University Press 2002). van Aaken A, ‘Making International Human Rights Protection More Effective:  A Rational-​Choice Approach to the Effectiveness of Ius Standi Provisions’ (2005) 16 Preprints of the Max Planck Institute for Research on Collective Goods 1. Viñuales JE (ed), The Rio Declaration on Environment and Development: A commentary (Oxford commentaries on international law, 1. ed. Oxford Univ. Press 2015). Viveiros de Castro E, ‘Os involuntários da pátria: Elogio do subdesenvolvimento’ (2017) 65 Caderno de Leituras/​Série Intempestiva 1. Wenzel N, Das Spannungsverhältnis zwischen Gruppenschutz und Individualschutz im Völkerrecht (Univ. Diss. Heidelberg, 2006. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht vol 191, Max-​Planck-​Institut für ausländisches öffentliches Recht und Völkerrecht Heidelberg 2008).

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Wiessner S, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harvard Human Rights Law Journal 57. Wiessner S, ‘Re-​Enchanting the World: Indigenous Peoples’ Rights as Essential Parts of a Holistic Human Rights Regime’ (2010) 15 UCLA Journal of International Law and Foreign Affairs 239. Wiessner S, ‘The State and Indigenous Peoples: The Historic Significance of ILA Resolution No. 5/​2012’ in Marten Breuer and others (eds), Der Staat im Recht: Festschrift für Eckart Klein zum 70. Geburtstag (Schriften zum öffentlichen Recht vol 1232. Duncker & Humblot 2013). Wiessner S, ‘The Cultural Dimension of the Rights of Indigenous Peoples’ in Federico Lenzerini and Ana F Vrdoljak (eds), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Studies in international law Volume 50. Hart Publishing 2014,). Wilson RJ and Perlin J, ‘The Inter-​American Human Rights System: Activities from Late 2000 through October 2002’ (2002–​2003) 18 American University International Law Review 651. Wolfrum R (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018).

chapter 4

Second Wave: Transition toward Indigenous Peoples as Holders of Land Rights, 2007–​2011 In the previous chapter, this research conceptualized the first wave of the jurisprudence of land rights in the iahrs. It demonstrated that the Inter-​American organs issued a range of decisions that protected the land rights of individual indigenous persons under the right to property –​Article 21 of the achr. Such decisions represented a breakthrough in international human rights law that previously had not had any example of the adjudication of indigenous land rights before human rights courts. In addition, chapter three indicated that due to procedural reasons, the Inter-​American organs have struggled to deal with indigenous complaints. The requirement of the individualization of victims and beneficiaries of reparations under the iahrs complaint procedure was difficult to fulfill in cases concerning indigenous peoples. A modification of this requirement was much needed. This started to happen in the second wave of the jurisprudence of land rights in the iahrs, which this chapter explores in detail. The Saramaka and Xákmok Kásek cases represent the transition between the first and the third wave of jurisprudence in the iahrs. Accordingly, the decisions in Saramaka and Xákmok Kásek are the objects of study in sections one and two of this chapter, respectively. To wrap up, interim conclusions are presented in section three of this chapter. 1

Between Individual and Collective Subjects of Rights

This section relates to the case Saramaka People v. Suriname (2007). This case represents the first step in the transitional jurisprudential wave of the iahrs. In view of its importance, this case deserves a comprehensive analysis. To that end, this analysis follows a similar structure to the one used in the prior case of Awas Tingni v. Nicaragua case (chapter three). The first part of this section summarizes all the different parts of the Saramaka case, i.e. the Commission’s decision on admissibility, its petition to the Court, the Court’s judgment, and the Court’s decision on the interpretation of the sentence. The second part of this section provides a critical assessment of this case in light of the Commission’s

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and the Court’s work. Finally, the third part of this section offers a preliminary assessment on the Saramaka case. 1.1 Saramaka Case, 2007 The Saramaka case originated from a petition presented by the Association of Saramaka Authorities (“asa”) and twelve Saramaka captains on their own behalf and on behalf of the Saramaka people.1 The Saramaka people are a maroon community living in the upper Surinamese River region. The community was created by African descendants who escaped from slavery and hid in the rainforest areas of Suriname’s national territory. The Saramaka considered themselves different from the rest of the Surinamese society. They had their own laws, customs, and social structure. A complex network of relations between spirits, land, and kinship structures built the Saramaka’s communal identity. Through economic activities related to the territory, the Saramaka people had been traditionally occupying large portions of land. There was a connection between the Saramaka culture and the land in which they inhabited. During the 1960s, due to the construction of a hydroelectric dam, the state had removed many Saramaka individuals from the original Saramaka territory. It relocated these persons to other regions where they built “transmigration villages.” Since then the Saramaka people had been occupying and using lands owned by the state which issued an official authorization in this regard. According to Saramaka law, the matrilineal clans collectively possessed Saramaka territory, whereby individuals and extended family units in the clans enjoyed subsidiary rights to use it. In accordance with Surinamese domestic laws, the state owned almost all the lands in inland provinces where the Saramaka lived. Likewise, the state was able to issue legal concessions to anyone in the claimed Saramaka lands for periods between 15 to 40  years. Due to the absence of a collective legal status, indigenous and tribal communities as such were not eligible to receive concessions. Indeed, they did not have a right to a collective property title. Among the most controversial issues was that the state had granted mining concessions to third parties that affected the claimed Saramaka territory. The 1 The summary of the facts is based on the complaint of the Inter-​American Commission in the case of 12 Saramaka Clans:  Twelve Saramaka Clans v. the Republic of Suriname [2006] 12.338, [2006] (Inter-​American Commission on Human Rights). Contrasting with other decisions of the Inter-​American Court, the present judgment does not have a separate section regarding proven facts. Thus, the Commission’s complaint is the only reliable source for summarizing the factual background.

126 Chapter 4 state had not consulted with the Saramaka people to issue this concession. The mining activities approved by the concession had not taken place to the date of the case’s judgment, but illegal mining activities were an ongoing problem in Saramaka territory. Against those allegedly illegal concessions, the Saramaka people had filed internal complaints against the President of Suriname. To the date of the Commission’s petition to the Court, they had not received an answer from the President’s office. After due internal procedures, the Commission submitted the case to the Court. The Commission alleged violations to the detriment of the Saramaka and its members against the following provisions of the American Convention:  Articles 21 and 25 of the achr read in conjunction with Article 1.1, 2 thereof. The Commission’s petition built on the need of special protection to indigenous peoples. In this regard, the iachr argued for the violation of several state obligations. First, there was the state’s obligation to respect the collective rights of indigenous peoples to enjoy property and possession. Second, in case of exploitation of indigenous lands by the state or by third parties, there was alleged a state’s obligation to develop an effective and informed consultation with the affected indigenous community in accordance with its customary law, values, habits, and customs. According to the Commission, such obligation may require obtaining indigenous peoples’ consent before issuing concessions. Third, after issuing a concession on indigenous lands, the state had the obligation to supervise the activities of natural resources exploitation. Notably, the Surinamese state did not contest the traditional land use by the Saramaka people. The Inter-​American Commission alleged that the state recognized that the Saramaka people have inhabited the claimed region, and that they had a privilege to use and occupy lands. The problem for the Commission was that, in face of state’s interest, the Saramaka may lose this privilege. Thus, the Commission contended that it was not clear whether the necessary balance between the Saramaka’s privilege to use the lands and state’s interest in this respect existed. In its final written arguments, the Commission summarized concisely its arguments.2 It alleged that the violation of Article 21 of the American Convention occurred because domestic laws did not recognize the Saramaka people or their land rights. Likewise, allegedly, the Saramaka people were not able to claim the protection of their lands before domestic courts. 2 Wazen Eduards et al. (Twelve Saramaka Clans) [2007] 12.338, [2007] 1 (Inter-​American Commission on Human Rights).

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According to the Commission, the existing situation of de facto recognition of the use and occupation of the territory by the Saramaka people had a fragile legal basis. The Saramaka people could be removed from their territory in case the state decides to issue a property title to third parties over Saramaka lands or to issue concessions claiming general interest with respect to Saramaka territory. On November 28, 2007, the Inter-​American Court issued the judgment in the case containing preliminary objections, merits, reparations, and costs.3 The judgment began with a preliminary consideration. Here, the Court considered the separate claim made by the petitioners about a violation resulting from the continuous effects related to the construction of the hydroelectric dam in the 1960s. The tribunal considered that such allegation did not make reference to the facts claimed by the Commission. Therefore, the petitioner’s allegation was beyond the Court’s jurisdiction. Against the admissibility of the case by the Court, the state raised several arguments. Among these arguments, there were the objections concerning the victims’ legal standing. The Surinamese state contested the victims’ locus standi in judicio before the Commission and the Court. By dismissing this preliminary objection, the Court referred to Article 44 of the American Convention and to the role of individuals as subjects of international law. To begin with the merits of the judgment, the Court dedicated itself to the question of whether the Saramaka people are a tribal people subject to special measures pursuant to Article 1(1) of the American Convention. In this respect, it gave an affirmative answer. For that matter, it analyzed the Saramaka’s history and relationship with the claimed territory, its economy, and sociopolitical structure. The Court clarified relevant aspects of Article 21 of the American Convention. It stated that in the case of tribal and indigenous peoples the right to property had its source in the longstanding use and occupation. Such traditional land tenure created an obligation by the state concerning the property entitlement of the specific land to its legitimate owners, i.e. members of tribal and indigenous peoples. Accordingly, the property title deed should comprise the right to use and to enjoy lands and natural resources therein, including subsoil natural resources. The Inter-​American Court recognized that the right to property was not absolute. In case of a conflict of interests, property rights may be restricted by the state. Such restrictions should be previously established by law, 3 Saramaka People v. Suriname [2007] Series C No. 172, [2007] 1 (Inter-​American Court of Human Rights).

128 Chapter 4 necessary, proportional, and with the aim of achieving a legitimate objective in a democratic society. Additionally, they should not implicate the denial of the survival of tribal and indigenous peoples. In this regard, the Court elaborated safeguards based on the practice of the hrc and Article 32 of the undrip. Consequently, the IACtHR declared the following violations to the detriment of the members of the Saramaka people: Article 21 of the American Convention in relation with Articles 1.1, 2 thereof; Article 3 of the American Convention in relation with Articles 21, 25, 1.1, 2 thereof; Article 25 of the American Convention in conjunction with Articles 21, 1.1 thereof. As a consequence of the violations, the Court ordered reparation measures to the benefit of the members of the Saramaka people without individualizing its members. Likewise, it remarked that members of the Saramaka people could be identified in accordance with Saramaka customary law. Among the ordered redress measures, the state should recognize the collective juridical capacity of the members of the Saramaka people. After the judgment, the Surinamese state asked the Court for a clarification of some points in the Court’s sentence.4 Pursuant to Article 67 of the American Convention, the state inquired to the IACtHR among other issues as to who the members of the Saramaka people were, with whom the state should consult with, and whether the state should give compensation to the individuals directly affected by the state concessions or to the Saramaka people as a whole. In response, the IACtHR clarified that the Saramaka people should decide which person or group would be their representative in the consultation with the state, and who would receive the reparations. In case of internal conflict, the community itself should solve it without state interference. 1.2 Case Analysis The case of Saramaka People v. Suriname is a unique example of the transition toward the recognition of collective subjects in the iahrs. To demonstrate this, the analysis digs separately into the Commission’s and the Court’s work in the Saramaka case. This section contains two subparts. Each of them begins with the analysis of the rationale behind the interpretation of the Commission and the Court, respectively, and the role that international law played in this regard. Next, subsection one proceeds by exploring individual and collective aspects of property related to substantive issues –​the rule and the legal object. Then, the 4 Pueblo Saramaka v. Suriname [2008] Series C No. 185, [2008] 1 (Inter-​American Court of Human Rights).

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subsection two deals with procedural issues associated with the legal capacity of the rights holders. 1.2.1

The Commission’s Work: the Rationale behind It and International Law In view of the Commission’s work in the case of the Saramaka people, there are crucial aspects that built the rationale behind it. Notably, before beginning with the analysis of the law applicable to the case, the Commission elaborated on the doctrines that built its interpretation. In this regard, it grasped three topics:  the historical racial discrimination suffered by indigenous and tribal peoples, the special measures of protection needed towards them, and the recognition of tribal and indigenous peoples’ interests. Departing from its work in the Awas Tingni case , the Commission did not draw on the doctrine of vulnerability to assert the rights of tribal peoples. Instead, it focused on the issue of historical racial discrimination, which tribal and indigenous peoples have allegedly suffered. Such issue constituted a common point with the Awas Tingni case. Likewise, the ongoing absence of legal recognition regarding customary indigenous forms of land possession is a consequence of such historical discrimination. Moreover, the Inter-​American Commission connected the doctrine of historical racial discrimination with its second doctrinal basis. The iachr claimed that it is necessary to issue special measures of protection in favor of tribal and indigenous peoples. Accordingly, special measures are important in order to allow an equal exercise of rights by tribal and indigenous peoples compared to the rest of the population. Additionally, special measures are a guarantee for the protection of the physical and cultural survival of tribal and indigenous peoples. The Commission’s argument regarding the need of special protection for indigenous peoples had support in international law. In accordance with the iachr, international law supported this argument by sustaining the need to adopt specific state measures directed to improve the lives and conditions of tribal peoples. Likewise, international human rights law –​the hrc, the uncerd and the ilo bodies –​recognized such a need in their case law. Furthermore, the Commission’s third legal basis of interpretation related to the recognition of individual and collective interests of indigenous and tribal peoples. Based on such interests, the Commission derived from Article 21 of the American Convention individual and collective rights concerning indigenous and tribal peoples. Likewise, the Inter-​American Commission submitted that international human rights law recognizes the collective exercise of rights and freedoms by tribal and indigenous peoples. It contended that rights and freedoms can only be guaranteed to the indigenous community as such, which

130 Chapter 4 contrast with the individual rights of its members. However, the references in this regard are scarce. The Commission’s petition did not quote any international legal instrument or legal scholars. It referred only to the Commission’s reports in individual cases and thematic issues. As a result, the Commission’s petition lacks substance. Still, it is necessary to observe that the Commission’s argument is correct. The recognition of the collective exercise of rights by indigenous peoples is established in the preamble of the undrip and some provisions of the ilo Convention 169, i.e. Articles 3, 6 and 7 thereof. International law influenced very fundamental issues of interpretation in the Saramaka case such as the scope of the right to property. According to the Commission, traditional land tenure of indigenous peoples is protected under international human rights law. It referred to the ilo Convention 169, the Draft of the adrip, the Draft undrip, and the caricom Charter of Civil Society. It is notable that among the references, there is only one international legally binding instrument –​ ilo Convention 169. The caricom Charter may be considered soft law and the other documents were at the time only draft instruments. Hence, only in view of the references provided by the Commission, it is inconsistent to claim that international human rights laws protects traditional land tenure of indigenous peoples. Perhaps in an attempt to overcome such inconsistency, the Inter-​American Commission referred to the practice of international human rights bodies regarding the protection of traditional land tenure. First, it referred to the hrc’s General Comment no. 23, which explicitly identifies the protection of indigenous land tenure. Second, it quoted an ECtHR’s judgment that speaks in favor of the recognition of possession as property even in light of the absence of official property title. These references provided by the Commission show great value for supporting the protection of traditional land tenure of tribal and indigenous peoples. Yet, by the time of the Saramaka case, it was not correct to assume a general agreement on this matter in international law.5 Furthermore, it is remarkable that the Commission engaged in a dialogue with the African Human Rights System. The iachr referred to the Ogoni case in different parts of its claims.6 Most importantly, the Commission used the 5 In the same sense see: Nigel Bankes, ‘International Human Rights Law and Natural Resources Projects Within the Traditional Territories of Indigenous Peoples’ (2010) 47(2) Alberta Law Review 457; Jérémie Gilbert, Indigenous peoples’ land rights under international law:  From victims to actors (Transnational Publishers 2006) 85–​140; Gaetano Pentassuglia, ‘Towards a Jurisprudential Articulation of Indigenous Land Rights’ (2011) 22(1) European Journal of International Law 165. 6 Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria [2001] 155/​96, [2001] (African Commission on Human and Peoples’ Rights).

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achpr’s interpretation as inspiration to enhance the scope of protection of communal indigenous property. As a result, it claimed the firm establishment of the inclusion of natural resources within the scope of Article 21 of the achr. Against this background, it is compelling to conclude that international law played a major role in the Commission’s interpretation. In different parts of its statements, the iachr referred to several international legal instruments and international monitoring bodies. 1.2.1.1 Substantive Issues 1.2.1.1.1 Rule

Compared to the first wave, the Inter-​American Commission expanded its interpretation in the case at hand. The IACHR included the collective rights of tribal and indigenous peoples to their properties and possessions. In accordance with its autonomous interpretation of the American Convention, the Commission changed the concept of “communal right to property” –​as applied in the Awas Tingni case  –​to “collective right to property.” Despite the different wording, it is important to note that in the Commission’s work both concepts are equivalent. The source of the collective right to property lies in the land use and occupation by indigenous and tribal peoples. In the present case, these rights refer to the right of the Saramaka people to communal ownership of the lands where they live in the Upper Surinamese River Region. The Saramaka case underscored the meaning of the requirement of longstanding occupation included in Article 21 of the achr. The historical occupation of the Saramaka claimed land was a controversial issue during the proceedings. The reason behind it was the fact that due to the construction of a hydroelectric dam the state removed the Saramaka people from its original territory to another territory, i.e. the “transmigration villages.” Likewise, the state contested the victims’ argument concerning the longstanding occupation since the occupation of the Saramaka in the claimed area dated back to the 1960s. In this regard, the Commission explained that the dates on which the Saramaka people had settled in the transmigration villages do not determine the existence of their property rights. Rather, it is necessary to consider the Saramaka’s occupation in the region where the villages were located. The Saramaka people had been in the region for a long time. Based on such a broad interpretation concerning the geographical location of “longstanding occupation”, the Commission recognized the property rights of the Saramaka people. Notably, such an interpretation is favorable to the situation of tribal and indigenous peoples who were displaced against their will from their original territories.

132 Chapter 4 An innovative aspect in the case of Saramaka is the inclusion of the development of modern economic activities by tribal and indigenous peoples with the scope of property rights. The Inter-​American Commission considered as a proven fact that felling timber was a traditional activity developed by the Saramaka people. It stated that felling timber related to the subsistence, economy, and transmission of cultural knowledge of the community. As evidence in this regard, it referred to the statement of an expert witness during the public hearing.7 The Commission did not analyze the protection of other economic activities developed on Saramaka land because it was deemed not necessary. Yet, it is compelling to note that the interpretation applied by the Commission to classify felling timber as a traditional activity may be applied to other cases, i.e. to other modern economic activities. Tribal and indigenous peoples develop many modern economic activities related to the land to ensure their subsistence, economy and transmission of cultural knowledge. By judging a similar case to the one of Saramaka, the ACtHPR explained that:8 (…) In this vein, the Court stresses that stagnation or the existence of a static way of life is not a defining element of culture or cultural distinctiveness. It is natural that some aspects of indigenous populations’ culture such as a certain way of dressing or group symbols could change over time. Yet, the values, mostly, the invisible traditional values embedded in their self-​identification and shared mentality often remain unchanged. Remarkably, the Commission was innovative in the case of Saramaka People by explaining the limits of property rights. The Inter-​American Commission highlighted that Article 21 of the American Convention protects indigenous territories. Yet, such protection has limits. For instance, the exploitation of natural resources by the state in indigenous lands is admissible. To pursue it, the state has to comply with several obligations, which were developed de lege ferenda by the Commission.9 According to its autonomous interpretation of Article 21 of the American Convention, the Commission elaborated new state obligations. This was an innovation in the iahrs jurisprudence. The Commission argued that that the state has the obligation to regulate and to supervise 7 Wazen Eduards et al. (Twelve Saramaka Clans) [2007] 12.338, [2007] 1 (Inter-​American Commission on Human Rights) 10–​11. 8 African Commission on Human and Peoples’ Rights v. Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights) para 185. 9 Twelve Saramaka Clans v.  the Republic of Suriname [2006] 12.338, [2006] (Inter-​American Commission on Human Rights) 22–​26.

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activities related to the exploitation of natural resources by third parties in indigenous lands. Moreover, the Commission claimed that the state has the obligation to ensure the participation of affected tribal peoples in state decisions impacting on their territories. Such participation includes the state’s duty to obtain free and informed consent by the affected peoples.10 Yet, the Commission did not clarify the extent of the consent required and whether it includes the controversial right to veto.11 In any case, the state has the obligation to guarantee legal remedies concerning the participation of tribal and indigenous peoples. The Commission stated that the affected peoples should be able to claim before domestic courts the participation in state decisions and, as appropriate, to obtain compensation in this regard. Representatives or authorized persons on behalf of the affected people should be able to raise such claim. 1.2.1.1.2 Object

The Saramaka case has not brought major new developments concerning individual and collective dimensions of the object of tribal property. The Inter-​ American Commission used in the Saramaka case its legal analysis applied in the first jurisprudential wave and specified some unclear aspects related. Accordingly, the iachr referred to the special relationship between tribal peoples and their lands as protected under Article 21 of the achr. Likewise, the people as a whole may use and enjoy the land and its natural resources, which are necessary for their physical and cultural survival. Land use by tribal and indigenous peoples is a necessary condition for the fulfillment of human rights. In an innovative step, the Commission specified which natural resources are included in the concept of communal property. In the present case, it observed that Article 21 of the American Convention protects the use and enjoyment 10 11

ibid paras 154–​159. Such issue was a burning issue during the proceedings of the Saramaka case, especially due to the drafting of the undrip. Among others see:  Mauro Barelli, ‘Free, Prior and Informed Consent in the Aftermath of the UN Declaration on the Rights of Indigenous Peoples:  Developments and Challenges Ahead’ (2012) 16(1) The International Journal of Human Rights 1 11; Charters CWN, ‘Land Rights’ in Siegfried Wiessner and Federico Lenzerini (eds), The Hague Conference (2010): Rights of Indigenous Peoples (2010); Cathal Doyle and Jérémie Gilbert, ‘Indigenous Peoples and Globalization: From “Development Aggression” to “Self-​Determined Development” ’ (2009) 8 European Yearbook of Minority Issues 219 245–​252; Karen Engle, ‘On Fragile Architecture:  The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights’ (2011) 22(1) The European Journal of International Law 141 157; Gaetano Pentassuglia, ‘Towards a Jurisprudential Articulation of Indigenous Land Rights’ (2011) 22(1) European Journal of International Law 165 179–​182.

134 Chapter 4 of natural resources, which are essential for the development of traditional economic activities connected at least with subsistence and traditional knowledge.12 The state did not contest this argument. As a consequence, this analysis concludes that the specification of the type of natural resources included in the protection of Article 21 of the achr occurs on an individual basis. There is no exhaustive list. In addition, the use of mineral resources by tribal and indigenous peoples that is crucial for their subsistence is protected. To substantiate this, the iachr referred to different international and national legal sources. The achpr and domestic courts of some countries have previously ruled that indigenous peoples’ land rights include mineral resources. 1.2.1.2 Procedural Issues: Legal Capacity Following the methodology used in this book, this section analyzes the legal capacity of the Saramaka People in three steps. First, as petitioners before the Commission. Second, as victims of violations related to the right to property. Third, as beneficiaries of reparations in view of the violations alleged by the Commission. The proceedings of the Saramaka case before the Inter-​American Commission have taken six years. During this period, the Commission’s rules of procedure have changed three times.13 Such changes were a result of the process of strengthening the iahrs.14 A consequence of these changes for the present analysis is that it is not possible to determine the role of the petitioners based only on the Commission’s rules of procedure. Instead, it is necessary to look at the Commission’s written statements. The first relevant aspect is the submission of the petition by the group. Pursuant to Article 44 of the American Convention and Article 23 of the Commission’s Rules of Procedure (2000–​2003), a group of persons may submit a case to the Commission. In the present case, the Association of Saramaka Authorities and the twelve Saramaka captains on behalf of the Saramaka people of 12 13

14

Wazen Eduards et  al. (Twelve Saramaka Clans) [2007] 12.338, [2007] 1 (Inter-​American Commission on Human Rights) 10–​11. Reglamento de la Comisión Interamericana de Direitos Humanos 12/​2000 (Inter-​American Commission on Human Rights); Reglamento de la Comisión Interamericana de Derechos Humanos 10/​2002 (Inter-​American Commission on Human Rights); Reglamento de la Comisión Interamericana de Derechos Humanos 10/​2003 (Inter-​American Commission on Human Rights). On this process see:  Claudia Martin and Diego Rodríguez Pinzón, ‘Strengthening or Straining the Inter-​American Human Rights System’ in Yves Haeck, Oswaldo Ruiz-​ Chiriboga and Clara Burbano-​ Herrera (eds), The Inter-​ American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015).

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the Upper Suriname River have lodged the complaint according to Article 28 of the Commission’s Rules of Procedure (2000–​2003). In contrast to the requirements of the European Human Rights System, the Inter-​American system does not require any specific structure of group organization for admitting ­petitions.15 The submission of the petition to the Commission on behalf of the Saramaka people raised a controversy surrounding the case’s admissibility. Suriname argued that the petitioners did not represent a legal recognized body and that they did not have a “valid status” to petition before the Commission. According to the state, to act on behalf of the Saramaka people would require the authorization of the highest Saramaka authority, the Gaaman.16 In the jurisprudence concerning tribal and indigenous peoples, the Saramaka case represents the first time where a state has challenged the petitioners’ legitimacy. Nevertheless, the argument brought by the Surinamese state is applicable to a wide range of cases on the grounds that tribal and indigenous peoples have a communal structure, but not an officially recognized authority.17 This argument raises a broader question of who is the legitimate person to speak on behalf of a group. Such question has a broad theoretical controversy.18 The Commission solved the controversy regarding the legitimacy of the petitioners in a pragmatic manner. It focused on procedural aspects. Pursuant to Article 44 of the American Convention, it is not necessary that the petitioners are victims of violations. Anyone may file a petition before the Commission even without personal interest in the finding of the petition. Therefore, the alleged absence of authorization of the highest authority of 15

16 17

18

Nicola Wenzel, Das Spannungsverhältnis zwischen Gruppenschutz und Individualschutz im Völkerrecht (Univ. Diss. Heidelberg, 2006. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht vol 191, Max-​Planck-​Institut für ausländisches öffentliches Recht und Völkerrecht Heidelberg 2008) 48–​49. Report No. 09/​06  –​The Twelve Saramaka Clans (Los) v.  Suriname [2006] 12.338, [2006] (Inter-​American Commission on Human Rights) para 119. For similar cases in the iahrs see: Comunidad Indígena Xákmok Kásek v. Paraguay [2010] Series C No. 214, [2010] 1 (Inter-​American Court of Human Rights); Pueblo Indígena Kichwa de Sarayaku v. Ecuador [2012] Series C No. 245, [2012] 1 (Inter-​American Court of Human Rights). For a similar case in the African System of Human Rights see: African Commission on Human and Peoples’ Rights v. Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights). For a comprehensive debate on this issue in international law see: Corsin Bisaz, The concept of group rights in international law:  Groups as contested right-​holders, subjects and legal persons (The Raoul Wallenberg Institute human rights library v. 41, Martinus Nijhoff Publishers 2012).

136 Chapter 4 the Saramaka people was not considered as a relevant issue for admitting this case. Despite not being a crucial issue for the admissibility, it is crucial to point out that a hierarchical structure of groups is important. The Commission’s petitions highlighted the different social structure of tribal and indigenous groups compared to the rest of the society. This aspect seems to be important for the definition of tribal and indigenous communities. In the present case, it remarked the existence of the captains as community leaders among the Saramaka people. In the process before the Commission, tribal peoples and their legal representatives may have a prominent role. In case they fear the threat of irreparable damage to their life, they may request precautionary measures (Article 25 of the Commission’s Rule of Procedure 2000–​2003). Moreover, they may request hearings to be held during a regular session of the Commission (Title ii, Chapter vi of the Commission’s Rule of Procedures 2000–​2003). At the hearing, all the involved parties may participate and they may present and produce evidence such as affidavits by expert witnesses. Furthermore, the petitioners may engage in a friendly settlement with the state if they wish to do so (Article 41 of the Commission’s Rules of Procedure 2000–​2003). In the Saramaka case, after some negotiations with the state, the Saramaka people stated that they no longer had an intention to take part in a friendly settlement because the probability of reaching a mutually acceptable agreement was remote. The iachr respected the victims’ position and proceeded with the regular complaint procedure. In submitting the case to the Court, the participation of tribal and indigenous peoples through their representatives is crucial. Pursuant to Articles 43–​ 44 of the Commission’s Rules of Procedure (2000–​2003), by considering the victims’ interest in this regard, the Commission decides whether to submit the case for the Court’s appreciation. In case the Commission decides to submit it, the iachr has to send all the necessary documents to the petitioners so that they may prepare the claim to be forwarded to the Court (Article 71 of the Commission’s Rules of Procedure 2003). In addition, pursuant to Article 69 of the Commission’s Rules of Procedure (2002–​2003), the Commission has to incorporate a petitioner as delegate before the Court if the petitioner requests so. In the case of the Saramaka people, the legal representatives of the victims did not participate as delegates.19 In accordance with Articles 72, 73 of the

19

Twelve Saramaka Clans v. the Republic of Suriname [2006] 12.338, [2006] (Inter-​American Commission on Human Rights) para 8.

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Commission’s Rules of Procedure (2002–​2003), the Commission and its delegates may submit copies of the documents presented during the proceedings before the Commission attached to the petition to the Court. It is important to remark on the increasing role of the petitioners before the Commission. In contrast to the first case of Awas Tingni, the role of the victims in the proceedings is notable.20 Still, there are obstacles in this regard. For instance, Article 22 of the Commission’s Rules of Procedure (2002–​2003) limits the Commission’s working languages to Spanish, French, English, and Portuguese. As a consequence, members of tribal and indigenous peoples are unable to use their native languages before the Commission. Similar to the first wave of jurisprudential developments, the role of the Saramaka people and its members before the Commission presented individual and collective dimensions. The Commission recognized the twelve matrilineal Saramaka clans (lö) as subjects of the rights lay down in the American Convention. The iachr pronounced in its petition violations to the detriment of the Saramaka people.21 Conversely, the Commission stated its jurisdiction ratione personae only in relation to the individual members of the 12 Saramaka clans.22 In addition, it submitted a list to the Court with the names of the original petitioners, the alleged victims, and their next of kin.23 The Commission characterized the Saramaka people as a tribal people. To substantiate this characterization, it referred to facts proven in prior cases before the Inter-​American Court such as the decision on Moiwana Community v. Suriname.24 The Commission highlighted historical and cultural aspects, social structure, and the relationship of the Saramaka people with their lands. Differently from the first wave of jurisprudential developments, the Commission mentioned the self-​identification of the Saramaka people as a tribal ­people.25 Thus, the definition of tribal people in the present case embraced objective and subjective aspects. 20 Cf. Chapter 3, 2.2.1.2 Procedural Issues: Legal Capacity. 21 Report No. 09/​06  –​The Twelve Saramaka Clans (Los) v.  Suriname [2006] 12.338, [2006] (Inter-​American Commission on Human Rights) paras 1–​4; Twelve Saramaka Clans v. the Republic of Suriname [2006] 12.338, [2006] (Inter-​American Commission on Human Rights) para 147. 22 Report No. 09/​06  –​The Twelve Saramaka Clans (Los) v.  Suriname [2006] 12.338, [2006] (Inter-​American Commission on Human Rights) para 119. 23 Twelve Saramaka Clans v. the Republic of Suriname [2006] 12.338, [2006] (Inter-​American Commission on Human Rights) paras 228–​230. 24 See above Chapter 3, 3.1 Moiwana Case, 2005. 25 Twelve Saramaka Clans v. the Republic of Suriname [2006] 12.338, [2006] (Inter-​American Commission on Human Rights) para 121.

138 Chapter 4 Of great importance is that the Commission’s work in the case of the Saramaka people reflects the consistent development of a case law related to indigenous and tribal peoples. The few innovative aspects presented in this case do not contradict the previous work by the Commission. Remarkably, the petition in the Saramaka case constituted a turning point in the Inter-​American system due to the reparations claimed by the Commission. The iachr raised its voice for the collective aspects of property rights. Remarkably, the IACHR highlighted the collective nature of reparations in cases concerning tribal and indigenous peoples. Such reparations follow the collective nature of the violations against Article 21 of the American Convention. Accordingly, in those cases, redress measures in an individual way are inadequate. In the Commission’s own words (emphasis added): In the instant application, the question of making amends acquires a special dimension on account of the collective nature of the rights infringed by the State to the detriment of the Saramaka people. Compensation cannot be seen from an individual perspective, since the victims are members of a community and the Community itself has been affected.26 The Commission claimed that the Saramaka people as a group should be considered the beneficiary of reparation. It sustained such claim consistently, without individualizing the injured party. Indeed, it stated that all the redress measures should be implemented by the state in consultation with the Saramaka people. By going beyond its prior jurisprudence, the Commission alleged that it was not necessary to identify each member of the Saramaka people. Rather, the crucial need was to identify the community as such in accordance with the criteria established in the case of the communities of Jiguamiandó and Curvaradó.27 Likewise, the Commission considered the following four requirements: that the members of the community may be individually identifiable; the internal communal organization; the geographical location of the community; and the common situation of risking or suffering acts of aggression. Communal lifestyle of tribal and indigenous peoples was a crucial aspect that should be considered in setting collective reparations. In light of the fact that these peoples are attached to specific territories, the Commission restated the need of adequate redress measures. The Court should pay due attention to 26 27

ibid para 194. ibid paras 203–​205; Wazen Eduards et al. (Twelve Saramaka Clans) [2007] 12.338, [2007] 1 (Inter-​American Commission on Human Rights) paras 90–​91.

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the communal relationship among the community’s members by establishing reparations. Finally, the Commission concluded its pleadings with general criteria for issuing reparations. It highlighted that the Saramaka people had the right to claim the appropriate redress measures. Yet, in any case, it requested the Court to order the legal protection of the territory, in which the Saramaka people exercises its right to communal property and the reparation of the environmental damage by the state. The Commission’s claims concerning redress comprised only measures with a collective nature.28 1.2.2

The Court’s Decision and Its Interpretation of Sentence: the Rationale behind It and International Law The Court’s interpretation of tribal and indigenous issues has a progressive development that relates to very specific considerations. As main interpretative tools, the Court uses the evolutive interpretation and the pro homine principle.29 Beyond it, in cases of tribal and indigenous peoples, the Court applies additional interpretative tools. This section underscores these tools in the case of the Saramaka people. In this case, they refer to the doctrine of vulnerability, the need of granting autonomy to tribal and indigenous peoples, and of issuing special measures to protect them. Due to didactic reasons, this last aspect is explored below.30 The first doctrinal basis refers to the situation of vulnerability of tribal and indigenous peoples. Similar to its reasoning in the Yakye Axa case, the Inter-​ American Court pointed to the situation of vulnerability of the Saramaka people.31 Accordingly, the situation of vulnerability is characterized by the absence of collective legal capacity that constrains the enjoyment of the right to property and the access to legal remedies under domestic laws. The IACtHR attributes the main cause of this situation to discriminatory domestic laws and policies. Thus, “vulnerability” is associated in the Court’s analysis with the fragile legal situation of tribal peoples in Suriname. The second doctrinal basis referred to the need of giving more autonomy to tribal and indigenous peoples. In several parts of its statements, the Court

28 29 30 31

Twelve Saramaka Clans v. the Republic of Suriname [2006] 12.338, [2006] (Inter-​American Commission on Human Rights) para 222. For a detailed explanation of those tools see chapter three, 2.2.1 The Court’s Decision: The Rationale Behind It & International Law. See in this chapter, 1.2.2.1.1 Rule. Saramaka People v. Suriname [2007] Series C No. 172, [2007] 1 (Inter-​American Court of Human Rights) para 63.

140 Chapter 4 approached the internal issues of the indigenous community in a sensitive way and it recommended to the state to do so. The IACtHR’s approach was that it is necessary to guarantee a high degree of autonomy to the Saramaka people regarding its internal affairs. For instance, the Court stated that the issue of the representation of the community is an internal matter. Likewise, the tribunal clarified that the capacity of an individual to act on the behalf of the group is a matter to be decided by the Saramaka people. It is neither up to the Court nor to the state to determine the Saramaka’s representative. Instead, this representative must be chosen according to the Saramaka people’s traditional customs and norms. Hence, autonomy built an interpretative canon in the Court’s ­decision. The Court’s doctrinal basis of autonomy of tribal and indigenous peoples has far-​reaching consequences. By doing so, the Court avoided dealing with controversial issues such as the rights of individuals within the group.32 Consequently, the tribunal left the interests of Saramaka individuals uncertain since it requested the state to abstain from interfering in the community. Moreover, by taking this approach, the Court abstained from analyzing problems related to land conflicts between different tribal and indigenous peoples. The decision in the Saramaka case substantiates the conclusion that disputes of territory between indigenous peoples are an internal affair that should be resolved among themselves. Moreover, it is undeniable that for the present decision the Inter-​American Court drew on legal instruments and related jurisprudence falling beyond the scope of the iahrs. According to Article 29 of the American Convention, the Court may establish this link between the achr and general international law. By the time of the Saramaka decision, Suriname had not ratified the ilo Convention 169, which is the main instrument for the specific rights of indigenous peoples. The IACtHR focused on both the iccpr and the icescr and their relationship with the achr. Martin Scheinin, a former member of the hrc, gave his statement as an expert witness on such a topic before the Court.33 The Court bolstered the rights of tribal and indigenous peoples through interpreting

32

33

For a theoretical discussion on this issue see: Corsin Bisaz, The concept of group rights in international law: Groups as contested right-​holders, subjects and legal persons (The Raoul Wallenberg Institute human rights library v. 41, Martinus Nijhoff Publishers 2012) 143–​158; Juan Cianciardo, ‘The Right of the Indigenous Peoples to Their Own Law’ (2012) 98(1) Archiv für Rechts-​und Sozialphilosophie 112–​120. Twelve Saramaka Clans v.  Suriname (2007) Affidavit of Expert Witness  –​Professor Dr. Martin Scheinin 1 (Inter-​American Court of Human Rights).

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Article 21 of the American Convention in light of Articles 1 and 27 of the iccpr.34 For instance, the Court’s elaboration on the state’s obligation to guarantee the survival of the people in the face of the state’s intervention in its lands is similar to the concept used by the hrc.35 Such requirement contrasts with the threshold found in the jurisprudence of the echr.36 The iahrs requirement of effective participation of tribal and indigenous peoples in the state’s decision draws on the notable influence of several human rights bodies and instruments. Besides the hrc’s practice, such a safeguard appears in Article 32 of the undrip, Article 15 of the ilo Convention 169, in the uncerd’s practice, and in the work of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples.37 The many references to the iccpr in the interpretation of the achr engender inconsistencies in the Court’s decision. The decision in the Saramaka case made unclear whether communal property is protected by virtue of the (Article 21) American Convention or by virtue of the American Convention read in light of other international legal instruments (Article 21 read in conjunction with Article 29 thereof).38 In this last case, it would be necessary that the state 34

Saramaka People v. Suriname [2007] Series C No. 172, [2007] 1 (Inter-​American Court of Human Rights) paras 92–​96. 35 See the Court’s concept:  Pueblo Saramaka v.  Suriname [2008] Series C No. 185, [2008] 1 (Inter-​American Court of Human Rights) para 37. On the HRC’s practice concerning indigenous peoples: Martin Scheinin, ‘Indigenous Peoples´ Rights under the International Covenant on Civil and Political Rights’ in Joshua Castellino and Niamh Walsh (eds), International Law and Indigenous Peoples (Martinus Nijhoff 2005)  9–​ 15; Patrick Thornberry, Indigenous peoples and human rights (Melland Schill studies in international law, Manchester University Press 2002) 151–​181. 36 G.  and E.  v. Norway [1983] Application 9278/​81  & 9415/​81, [1983] 30–​38 (European Commission of Human Rights) 36. For a critical assessment see:  Timo Koivurova, ‘Jurisprudence of the European Court of Human Rights Regarding Indigenous Peoples: Retrospect and Prospects’ (2011) 18 International Journal on Minority and Group Rights 1 25–​28. 37 Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, James Anaya [2009] [2009] 1 (Human Rights Council); General Recommendation XXIII on the Rights of Indigenous Peoples [1997] UN Doc. A/​ 52/​18, Annex V, [1997] (Committee on the Elimination of Racial Discrimination). On the practice of the uncerd:  Patrick Thornberry, ‘The Convention on the Elimination of Racial Discrimination, Indigenous Peoples and Caste/​Descent-​Based Discrimination’ in Joshua Castellino and Niamh Walsh (eds), International Law and Indigenous Peoples (Martinus Nijhoff 2005) 33–​34; Patrick Thornberry, Indigenous peoples and human rights (Melland Schill studies in international law, Manchester University Press 2002) 199–​224. 38 Similarly see Thomas M Antkowiak, ‘Rights, resources and rhetoric:  Indigenous Peoples and the Inter-​American Court’ (2013) 35 University of Pennsylvania Journal of International Law 113 113–​159.

142 Chapter 4 at issue had ratified both the achr and other international legal instruments such as the iccpr in order to substantiate the Court’s interpretation of Article 21 of the achr. Such absence of clarity is visible in the Court’s words (emphasis added): Thus, in the present case, the right to property protected under Article 21 of the American Convention, interpreted in light of the rights recognized under common Article 1 and Article 27 of the iccpr, which may not be restricted when interpreting the American Convention, grants to the members of the Saramaka community the right to enjoy property in accordance with their communal tradition.39 The recognition of the legal personality of members of tribal and indigenous peoples is a distinct feature of the iahrs. With the present decision, the IACtHR elaborated on this point. In view of the state’s opposition due to alleged lack of ethnicity of the Saramaka people, the IACtHR remarked the crucial value of legal personality for the protection of communal property rights. The specialized instruments on the rights of indigenous peoples, i.e. the ilo Convention 169 and the undrip, do not entail any provision on legal personality. The Court’s recognition of legal personality might be a result of the influence of Article iv of the draft adrip (February 1997) to the decision in the Saramaka case.40 The IACtHR did not go so far as to make such a reference, though. 1.2.2.1 Substantive Issues 1.2.2.1.1 Rule

The Saramaka case is a landmark decision in the jurisprudence of the Inter-​ American Court. It contains important developments regarding individual and collective aspects of property rights. This subsection elucidates such aspects in two different parts: the essential features of property rights and the legitimate restrictions to property rights. 1.2.2.1.1.1

Scope of Property Rights

Following its jurisprudence, the Inter-​American Court restated the idea behind the property rights of indigenous peoples and then applied it to the situation 39 40

Saramaka People v. Suriname [2007] Series C No. 172, [2007] 1 (Inter-​American Court of Human Rights) para 95. Organization of the American States, ‘Draft American Declaration’ (2017) accessed 23 October 2018.

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of a tribal people –​the Saramaka. The IACtHR recognized the communal longstanding use and occupation of a territory as the source of the right of members of tribal peoples to property. In order to fulfill the criteria of Article 21 of the achr, it is necessary that the members of tribal and indigenous peoples have a special relationship to the land. According to the Court, the protection of such relationship aims towards the guarantee of the very survival of tribal and indigenous peoples. In advancing its case law, the Inter-​American Court established a threshold of protection for communal property pursuant to Article 21 of the achr. This provision comprises a minimum standard regarding property protection, which concerns the guarantee of the survival of tribal and indigenous peoples. In the Court’s judgment, “survival” exceeds the very physical survival. Rather, it includes the preservation of cultural, social, and economic aspects of the lifestyle of tribal and indigenous peoples. Such threshold implies that tribal and indigenous peoples are entitled to natural resources within their lands that they traditionally use in a manner inextricably related to their survival. The scope of Article 21 of the achr is determined on an individual basis. There is no exhaustive list of natural resources included in Article 21 of the achr. Based on the recognition of “survival” as a threshold of Article 21 of the American Convention, the Court created state obligations. First, the state must delimit and demarcate tribal and indigenous lands in consultation with the affected peoples and other neighboring communities. Second, it must officially recognize tribal and indigenous possession by issuing real property titles. Third, the state must respect, guarantee and protect tribal and indigenous peoples’ cultural identity, social structure, economic system, customs, beliefs, and traditions. Fourth, it must recognize the legal personality of tribal and indigenous peoples. According to the Court, the absence of such recognition jeopardizes property rights since tribal and indigenous peoples would not be able to seek judicial protection in case of eventual violations. The Inter-​American Court challenged domestic laws in the Americas with its interpretation of the ACHR requiring the official recognition of tribal and indigenous possession. Similar to Suriname, many American states regulate the traditional land use by tribal and indigenous peoples without entitling them with an ownership title over their territories. Instead, tribal and indigenous peoples have a privilege to use the land. Such regulation engenders permanent insecurity to indigenous peoples since the state or third parties with official property titles over their possessed lands may remove them from there at any time. The IACtHR aimed to reverse this situation by establishing the

144 Chapter 4 state obligation to grant property title deeds in favor of tribal and indigenous peoples possessing a piece of land. 1.2.2.1.1.2

Restrictions to Property Rights

The judgment in the case of Saramaka People v. Suriname is a landmark decision due to its elaboration on legal restrictions to property rights pursuant to Article 21 of the achr. In case a state has an interest in exploiting natural resources within lands possessed by tribal and indigenous peoples, it may establish legal restrictions to land use to the detriment of such peoples. Such property restrictions are similar to the ones elaborated in the Yakye Axa case whereas they contrast with the ones of cases concerning individuals under criminal investigation.41 In the Saramaka case, the IACtHR established that limitations to property rights by the state should comply with four requirements: be previously established by law, be necessary, be proportional, and with the aim of achieving a legitimate objective in a democratic society.42 The first requirement concerns the principle of legality, which was continuously applied in the jurisprudence of the iahrs.43 In accordance with it, a state fulfills the first requirement only in case that: (1) there is a law in a formal and substantive sense; (2)  the law enumerates the reasons for restrictions prior to the state’s decision; (3) such reasons must be necessary to achieve a legitimate goal; (4) these restrictions shall not constitute a limitation beyond necessary for property rights. Unfortunately, due to unknown reasons, the Court did not analyze in the merits the Suriname’s compliance with those four requirements. Additionally, the legal restrictions to property rights in cases concerning tribal and indigenous peoples must respect the threshold of Article 21 of the American Convention. In other words, the state has the obligation to guarantee

41 Cf. Chaparro Álvarez and Lapo Íniguez v. Ecuador [2007] Series C No. 170, [2007] (Inter-​ American Court of Human Rights) paras 183–​189. 42 It is important to keep in mind that the restrictions to property rights of indigenous peoples in the Inter-​American jurisprudence work in a different way than in the European Human Rights System. On the European System see: Ali R Coban, Protection of property rights within the European Convention on human rights (Ashgate 2004)  171–​216; Timo Koivurova, ‘Jurisprudence of the European Court of Human Rights Regarding Indigenous Peoples: Retrospect and Prospects’ (2011) 18 International Journal on Minority and Group Rights 1 25–​28. 43 There is a wide jurisprudence in the iahrs in this regard. For a compact overview see: Alejandra Gonza, ‘Artículo 21 –​Derecho a la propiedad privada’ in Christian Steiner and Patricia Uribe (eds), Convención Americana sobre Derechos Humanos:  Comentario (Fundación Konrad Adenauer Stiftung 2014) 509–​510.

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the survival of the tribal or indigenous community as a group.44 This requirement is not laid down in any legal instrument of the iahrs or its related jurisprudence. It constituted a genuine innovation created in light of the concept of communal property. The Court’s source of inspiration for this interpretation was the hrc’s practice.45 In this context, the Inter-​American Court narrowed down the meaning of the additional state’s obligation regarding the survival of tribal and indigenous peoples. The Court set three safeguards that the state shall comply with to guarantee such survival. First, the state must supervise the development of an environmental and social assessment done by an independent and technically capable entity prior to granting any concession on indigenous lands. Second, the state must guarantee that tribal and indigenous peoples receive a reasonable benefit in case of the development of any plan affecting their territory. Accordingly, benefit-​sharing is a type of compensation pursuant to Article 21(2) of the American Convention. Although this provision concerns deprivation of property the IACtHR applied it to the Saramaka case, which involved only a limitation of property. It explained that the deprivation of the regular use and enjoyment of property amounts to a form of compensation. In the case of tribal and indigenous lands, this compensation relates to benefit sharing. Thus, the Court established a broad interpretation concerning the deprivation of property. Such interpretation finds echo in international law.46 Third, the state must guarantee the effective participation of the affected peoples in its decisions affecting their lands. In any plan concerning development, investment, exploration or extraction within their communal territory, tribal and indigenous peoples must participate in the state’s decision. To grasp the way, in which the state should comply with this requirement, the Court ­explained the following (emphasis added): First, the Court has stated that in ensuring the effective participation of members of the Saramaka people in development or investment plans within their territory, the State has a duty to actively consult with said community according to their customs and traditions (supra para. 129).

44 45 46

For the meaning of the concept of survival in the present decision, see above in this section, “Scope of Property Rights.” Länsman et al. v. Finland [1994] UN Doc CCPR/​C/​52/​D/​511/​1992, [1994] (Human Rights Committee). Ursula Kriebaum and August Reinisch, ‘International Protection of the Right to Property’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018) paras 10–​16.

146 Chapter 4 This duty requires the State to both accept and disseminate information, and entails constant communication between the parties. These consultations must be in good faith, through culturally appropriate procedures and with the objective of reaching an agreement. Furthermore, the Saramaka must be consulted, in accordance with their own traditions, at the early stages of a development or investment plan, not only when the need arises to obtain approval from the community, if such is the case. Early notice provides time for internal discussion within communities and for proper feedback to the State. The State must also ensure that members of the Saramaka people are aware of possible risks, including environmental and health risks, in order that the proposed development or investment plan is accepted knowingly and voluntarily. Finally, consultation should take account of the Saramaka people’s traditional methods of decision-​ making .47 In addition, the IACtHR highlighted that the state must obtain the consent of tribal and indigenous peoples in case of large-​scale projects that would have a major impact on their territory. The tribal or indigenous people affected should decide whether it gives its free, prior and informed consent to the state in accordance with its traditions and customs. The Court defined large-​scale development projects as the ones that raise profound social and economic changes in the community. The Court’s definition followed from the report of the UN Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples.48 Nevertheless, the judgment in the Saramaka case left the state a duty to obtain free, prior, and informed consent with a somewhat unclear meaning. Concisely, it is unclear whether this duty amounts to a veto right by tribal and indigenous peoples. This veto right would imply that without the approval of the affected people, the state would not be allowed to develop any plan in the tribal or indigenous territory. The veto right was a highly controversial issue existing at the time of the Saramaka judgment.49 To conclude, this analysis highlights that the elaboration of legal restrictions regarding property rights of members of tribal and indigenous peoples demonstrates the unique collective character of these rights. Pursuant to Article 21 of the American Convention, the law may subordinate the right to 47 48 49

Saramaka People v. Suriname [2007] Series C No. 172, [2007] 1 (Inter-​American Court of Human Rights) para 133. ibid paras 134–​135. See above in this chapter footnote no. 11.

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property to the interest of society. In the case of tribal and indigenous peoples, the Court interpreted very strictly such requirement towards the protection of peoples. To that end, the IACtHR focused on the protection of the communal territory against any type of outside interference as a way to protect the group as such and not only its individual members. The elaboration of safeguards in this regard contrasts with the Court’s jurisprudence on property rights of individuals, in which those safeguards do not exist.50 1.2.2.1.2 Object

The judgment in the Saramaka case began by confirming the Court’s case law on the concept of communal property. This concept includes not only the physical space where tribal and indigenous peoples live, but also the special relationship of their members to the lands under the scope of protection of Article 21 of the achr. In addition, “communal property” comprises the natural resources found in tribal and indigenous territory. The inclusion of natural resources under the concept of communal property is an important confirmation of the Court’s interpretation in the case of Yakye Axa v. Paraguay.51 In advancing the Court’s jurisprudence, the present judgment acknowledged a wide range of natural resources included in the concept of communal property. Likewise, there are two criteria to decide on the inclusion of a specific type of natural resources under the protection of Article 21 of the achr: (1) the traditional use of this resource by the community, and (2) the need of this resource for the very survival, development, and continuation of community’s life. The criteria used by the Court are similar to the standards set by the hrc.52 In light of such criteria, this analysis notes that the concept of communal property is open for determination on a case-​by-​case basis. In the Saramaka case, the Court analyzed whether there was a connection between the environmentally sound use of a specific natural resource within the 50 Cf. Palamara-​Iribarne v. Chile [2005] Series C No. 135, [2005] (Inter-​American Court of Human Rights) para 108; Ivcher-​Bronstein v. Peru [2001] Series C No. 74, [2001] 1 (Inter-​ American Court of Human Rights) para 128. 51 On this case see above ­chapter 3, 3.2 Yakye Axa Case, 2005. 52 Ángela Poma Poma v.  Peru [2009] CCPR/​C/​95/​D/​1457/​2006, [2009] 1 (Human Rights Committee) para 7.2; General Comment No. 23: The Rights of Minorities (Art. 27) [1994] CCPR/​C/​21/​Rev.1/​Add.5, [1994] (Human Rights Committee) para 7.  In this regard, see also: Martin Scheinin, ‘Indigenous Peoples´ Rights under the International Covenant on Civil and Political Rights’ in Joshua Castellino and Niamh Walsh (eds), International Law and Indigenous Peoples (Martinus Nijhoff 2005) 9–​15; Patrick Thornberry, Indigenous peoples and human rights (Melland Schill studies in international law, Manchester University Press 2002) 159–​160.

148 Chapter 4 claimed lands and communal (cultural and economic) aspects. As evidence in this regard, the Court relied on studies elaborated by experts and affidavits by expert witnesses. The criteria elaborated by the Court puts an end to a longstanding controversy about the inclusion of mineral resources in the concept of communal property. As in the case of the Saramaka People, many American countries have a legislation that vest ownership rights of natural resources in the state. Such legislations contradict customary laws of tribal and indigenous peoples that usually recognize a right over natural resources within and subjacent to their territory. For instance, in the case at hand, a Saramaka captain stated that the Saramaka people have a right to “own everything, from the very top of the trees to the very deepest place that you could go under the ground.”53 The Court opted to elaborate criteria in order to balance the interests of states and indigenous peoples. By establishing criteria to determine the content of communal property, the Inter-​American Court demonstrated its own concept of tribal and indigenous peoples and their property. In the Court’s concept, natural resources are a means to develop economic activities and cultural practices, and to preserve the environment. Consequently, this concept raises the conclusion that the preservation of natural resources without use by tribal and indigenous peoples lacks any property value. Natural resources within tribal and indigenous lands deserve a protection against state interference only if it is regularly used. The Court’s concept of communal property contrasts with tribal and indigenous peoples’ views in this respect. Although each indigenous community has its own conception of property, it is generally accepted that they see natural resources in a different way.54 Nature is an end as such, sometimes even being regarded as human. Tribal and indigenous peoples do not preserve the nature to achieve a healthy environment, but because of their cosmology. The decision to use or not a specific natural resource might have cultural or religious implications. The Court did not take such implications into consideration. Hence, the Court’s concept failed to protect natural resources within territories, which tribal and indigenous peoples do not intentionally use. To tackle this issue, this analysis suggests that the Court should use an expansive interpretation. Instead of interpreting the criteria concerning the 53 54

Saramaka People v. Suriname [2007] Series C No. 172, [2007] 1 (Inter-​American Court of Human Rights) para 119. Philippe Descola, In the society of nature: A Native Ecology in Amazonia (Cambridge studies in social and cultural anthropology vol 93, Digital printing, Cambridge University Press 2000); Eduardo Viveiros de Castro, A Inconstância da Alma Selvagem (Cosac Naify 2011).

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inclusion of a specific natural resource under “property” as cumulative, the Court should interpret them as alternative. Accordingly, the concept of communal property could include natural resources which:  (1) are traditionally used by the community or (2) are essential for their survival, development or continuation of communal life. Natural resources preserved by tribal and indigenous peoples due to religious and cultural grounds would fall into this second category. Therefore, an expansive interpretation of Article 21 of the achr would include non-​traditionally-​used natural resources in communal lands due to their essential value for the continuation of communal life. 1.2.2.2 Procedural Issues: Legal Capacity Following the methodology used in this book, this section assesses the legal capacity of the Saramaka people in three steps. The first part concerns the role of the Saramaka people, its members, and legal representatives in the proceedings before the Court. The second part relates to their role as victims of violations of the right to property. The third part analyzes their role as beneficiaries of reparations. The participation of the Saramaka people and its members in the litigation through their legal representatives followed the Court’s rules of procedure approved in 2000 and partially reformed in 2003.55 These rules are very explicit regarding the participation of the alleged victims in the proceedings. The 2003 reform of the rules of procedure expanded such participation in comparison with the Awas Tingni case and continued the path initiated in the Moiwana case.56 The victims and their representatives had a prominent role in the Saramaka case. Pursuant to Article 23 of the Court’s Rules of Procedure (2003), the legal representatives of the Saramaka people have presented a written brief before the Court containing pleadings, motions, and evidence. In addition, they have submitted observations to the affidavits by expert witnesses. Finally, they have alleged autonomously violations to the American Convention, which were not mentioned in the Commission’s petition. This analysis observes that the prominent role of the victims during the proceedings is a further development of the recognition of individuals as subjects of law. Such recognition engendered a procedural innovation in the iahrs 55 56

Resolución de la Corte Interamericana de Derechos Humanos 24 September 2000 (Inter-​ American Court of Human Rights); Rules of Procedure of the Inter-​American Court of Human Rights 12/​2003 (Inter-​American Court of Human Rights). Cf. with chapter three, 2.2.1.2 Procedural Issues: Legal Capacity; 3.1.2 The Legal Capacity of Tribal Communities.

150 Chapter 4 complaint mechanism through the advancement of the victims’ locus standi in judicio. The IACtHR clarified that the condition of individuals as the subject of rights raises the capacity to judicially claim the violation of their rights. Thus, legal subjectivity and (active) legal standing walk together in the iahrs fora. In the Saramaka case, the state raised a preliminary objection concerning the lack of legal standing of the petitioners before the Court. In this regard, Suriname’s arguments related to the socio-​cultural aspects of the Saramaka people. Allegedly, the petitioners had no authorization from the chief leader of the Saramaka people to submit the petition. The IACtHR asserted that such an authorization did not constitute a requirement in the iahrs. The petitioners were authorized to complain according to the concept of “group of persons” pursuant to Article 44 of the American Convention. Hence, the Court dismissed this preliminary objection. Against this background, it is compelling to observe that the Saramaka judgment bolstered the legal standing of tribal and indigenous peoples. The differentiation between the categories of “petitioners” and “victims” became even stronger. Even in cases where the petitioners claim to act on behalf of a group, there is no need to present evidence in this regard. Consequently, it is also possible to argue that a petition brought by a subgroup of a tribal people might be accepted by the Court. In this case, if dissent emerges among the members of the people, a number of them may allege a violation of the American Convention before the Commission and the Court. As of August 2019, no such situation has appeared in the IAHRS case law. Also of great significance is the fact that the victims and their representatives played a key role in claiming reparations. In the present case, the petitioners have submitted essential additional evidence to the Court for defining reparations. The Court took the evidence into consideration due to its crucial appeal concerning the costs incurred by the petitioners. In parallel, the judgment in the Saramaka case established a precedent regarding the limits to the locus standi in judicio of the victims and their representatives. The victims and their representatives may not expand the factual scope provided by the Commission’s initial petition. They may only clarify, reject, and allege violations not mentioned by the Commission related to the facts stated in the initial petition. Yet, they cannot bring new factual assertions not related to the subject matter of the controversy. According to the Court, such limitation follows the definition of “case” pursuant to Article 61 of the American Convention. Accordingly, this provision sets down that only the Commission and the state may submit a case to the Court. In this regard, the Court’s understanding is that the statement of facts is an essential attribute of the case itself. Due to that, it is compelling to note the necessity of a

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cooperative work between the Commission, the victims, and their representatives in order to establish correctly the factual background. Furthermore, this analysis argues that the judgment in the Saramaka case consolidated the equal status between the categories of tribal and indigenous peoples, which started in the Moiwana case.57 The Inter-​American Court ratified the application of the interpretation of the rights of indigenous peoples to issues concerning tribal peoples. Rather than incorporating tribal peoples into the category of indigenous peoples, the Court elaborated criteria to define the concept of tribal peoples. The concept of tribal peoples in the IAHRS is similar to that of indigenous peoples. Accordingly, the following are the main characteristics of tribal peoples: (1) different social, cultural, religious, and economic traditions compared to the rest of the society; (2) self-​identification with their ancestral territories; (3) autonomous regulation of norms, customs, and traditions.58 In contrast to indigenous peoples, tribal peoples are not original to the region where they live.59 The Court did not disclose the source of its concept of tribal peoples, but it should be assumed that it was ilo Convention 169. The Court’s concept entailed all the characteristics of tribal peoples according to Article 1 of the ilo Convention 169, including self-​identification. ilo Conventions 107 and 169 are the only international legal instruments that recognize the existence of tribal peoples. Other instruments related to the rights of indigenous peoples, including the undrip, do not mention tribal peoples. A critical point against the recognition of tribal and indigenous peoples as victims refers to their ethnicity. A regular argument claimed by states to dismiss complaints against them is that the victims are not indigenous or tribal peoples, but rather regular local communities;60 Or, alternatively, that the victims were tribal or indigenous communities, but have lost their status as such due to their incorporation to modern society (assimilation). The bottom line 57 58 59 60

On the Moiwana case see above in chapter three, 3.1.2 The Legal Capacity of Tribal Communities. Saramaka People v. Suriname [2007] Series C No. 172, [2007] 1 (Inter-​American Court of Human Rights) paras 80–​84. On the definition of indigenous peoples see above in ­chapter 3, 4. Interim Conclusions. Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) [2009] [2009] 1 (African Commission on Human and Peoples’ Rights) paras 144–​162; African Commission on Human and Peoples’ Rights v. Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights) paras 102–​113; Comunidad Indígena Xákmok Kásek v. Paraguay [2010] Series C No. 214, [2010] 1 (Inter-​ American Court of Human Rights) paras 33–​43.

152 Chapter 4 of this argument raised by states is that the access to modernity eliminates peoples’ cultural identity. Suriname claimed that the voluntary inclusion of some Saramaka members into the Surinamese society affected their cultural distinctiveness to the extent that it would be difficult to recognize them as a separate group. The Saramaka decision specified the definition of tribal and indigenous peoples based on the communal aspect of a continuous culture. The Court declared that the existence of Saramaka individuals living outside the traditional territory with an individual lifestyle did not affect the distinctiveness of the Saramaka people. Notably, the Court’s interpretation supported the argument that an indigenous or tribal people may suffer changes in communal life and keep its legitimate claims to property rights. Such interpretation implies also that not every tribal individual has the right to communal property, but rather only the ones living on traditional lands. Thus, the legal subjectivity of tribal and indigenous peoples is consistently attached to the development of a communal culture within a specific territory. Furthermore, the Court’s definition of tribal and indigenous peoples enables more autonomy for them with regards to their identification. It reinforced the self-​identification requirement as set down in Article 1(2) of the ilo Convention 169. Despite the state’s arguments, the Court refrained from scrutinizing the ethnicity of the Saramaka beyond the criteria already established in its jurisprudence. In addition, the Court declared that the tribal people must have autonomy to choose its own representatives. Such choice is not within the power of the state or of the Court to analyze. A highlight of this judgment is related to the legal personality of the Saramaka people and its members. In the present case, a central issue was whether the absence of recognition of the Saramaka’s legal personality amounted to the ineligibility to receive the land title as a tribal community, and to have equal access to judicial protection. In light of this issue, the Court remembered that tribal and indigenous peoples exercise their rights in a collective manner. As a consequence, there is a need to recognize their legal personality. Interestingly, the Inter-​American Court distinguished between the juridical personality of the Saramaka people and its individual members. In this respect, the IACtHR stated that (emphasis added): The Court observes that any individual member of the Saramaka people may seek judicial protection against violations of his or her individual property rights, and that a judgment in his or her favor may also have a favorable effect on the community as a whole. In a juridical sense, such individual members do not represent the community as a whole. The decisions

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pertaining to the use of such individual property are up to the individual and not to the Saramaka people in accordance with their traditions. Consequently, a recognition of the right to juridical personality of the Saramaka people as a whole would help prevent such situations, as the true representatives of the juridical personality would be chosen in accordance with their own traditions, and the decisions affecting the Saramaka territory will be the responsibility of those representatives, not of the individual members.61 This statement highlights the individual and collective aspects of legal personality, especially concerning its constitution and function within a tribal people. Following its interpretation towards more autonomy of tribal and indigenous peoples, the Court stated the need to recognize a collective legal personality of the Saramaka people. Such a statement is unprecedented in the Court’s jurisprudence. Still, in issuing reparations, the Court ordered the recognition of legal personality concerning only the individual members of the Saramaka people. This order contradicted the Court’s interpretation expressed in the merits. The Saramaka judgment constitutes the first time that the Inter-​American Court denominated a tribal or indigenous group as “people.” Prior decisions have always referred to “tribal or indigenous communities.” The Court did not explain the change of denomination, which comprises important consequences in international law. The most important one being the application of the right to self-​determination to peoples. Communities are not entitled to the right to self-​determination. In the Saramaka case, the Court interpreted Article 21 of the American Convention in light of the right to self-​determination as enshrined in the common Article 1 of the iccpr and icescr.62 Against this background, it is important to remark the emerging collective nature of the legal subjectivity of tribal and indigenous peoples as victims. In contrast to the first wave of jurisprudential developments, at this transitional stage, the Court demonstrated a willingness to recognize tribal and indigenous peoples as a group entitled to rights. Yet, the Court stopped short before making this recognition. The Saramaka case represents a landmark decision in terms of the recognition of collective beneficiaries of reparations. In contrast to its previous decisions, the Court dismissed the requirement of naming the individual members 61 62

Saramaka People v. Suriname [2007] Series C No. 172, [2007] 1 (Inter-​American Court of Human Rights) para 169. ibid para 93.

154 Chapter 4 of the Saramaka people.63 The IACtHR explained that the injured parties were members of the Saramaka people who were identifiable according to local customary law. This analysis highlights that the Court’s new interpretation regarding the identification of beneficiaries of reparations reflects its progressive understanding of tribal and indigenous issues. The IACtHR stated that the reasons to dismiss the requirement of individual nomination were based on the difficult living conditions of the Saramaka people, and the collective nature of the reparations needed. It is important to observe that these reasons have appeared before in the iahrs jurisprudence. For example, at the reparations stage of the Aloeboetoe case, the Court recognized the difficult living conditions of the community and ordered the Commission to provide information on the identification of the members of the community.64 Based on this information, the Court elaborated a list with the individual beneficiaries of reparations. In the case concerning the Saramaka people, it could have done the same. This is reinforced by the fact that the Court asserted the collective nature of reparations in cases concerning tribal and indigenous lands since the Moiwana case.65 It is possible to observe that the Saramaka case is not much different from the Aloeboetoe or Moiwana cases. However, prior to the Saramaka case, the Court had not dismissed the requirement of identification by name of beneficiaries of reparations. Therefore, it is not possible to explain the Court’s new interpretation without noting that there was a growing development in the Court’s rationale that paved the way for the breakthrough in the Saramaka case. Dulitzky correctly notes that if individualized reparations are never ordered in cases dealing with land rights, there is no point in individualizing the beneficiaries of reparations.66 Finally, the dual character of the beneficiaries of reparations was an essential aspect of the Saramaka case. The reparations issued were divided between the members of the Saramaka people and the group as such. Notably, the Court entitled the group as a whole –​the Saramaka people –​with the reparation measure concerning the right to be effectively consulted.

63 64 65 66

Saramaka People v. Suriname [2007] Series C No. 172, [2007] 1 (Inter-​American Court of Human Rights) para 188. See above in chapter three, 1. An Important Precedent: The Aloeboetoe Case. See above in chapter three, 3.1.2 The Legal Capacity of Tribal Communities. Ariel Dulitzky, ‘When Afro-​descendants Became “Tribal Peoples”:  The Inter-​American Human Rights System and Rural Black Communities’ [2010] UCLA Journal of International Law and Foreign Affairs 29, 57–​58.

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1.3 Preliminary Assessment The foregoing analysis has assessed the Commission’s and the Court’s work in the case of Saramaka People v. Suriname. It scrutinized the individual and collective aspects of property rights in this regard. This part focuses on putting the work made by the iahrs organs side by side. By doing so, it provides a consistent explanation on the iahrs jurisprudence on land rights. The doctrinal basis used by the Commission and the Court grounded a constructive dialogue between the Inter-​American organs. Besides the traditional canons of evolutive or autonomous interpretation of the achr and the pro homine principle, the Inter-​American organs explored other interpretative tools. In view of the marginalized situation of the Saramaka people in the Surinamese society, the Commission considered the historical discrimination of tribal and indigenous peoples to interpret Article 21 of the American Convention. Conversely, the Court focused on Saramaka’s legal vulnerability. “Vulnerability” and “historical discrimination” are related concepts as the Commission exposed in the case of Awas Tingni.67 Yet, in the Saramaka case, the iachr did not mention them explicitly. The evidence of a common dialogue is appreciated in light of the need of implementing special measures to guarantee the use and enjoyment of property rights by tribal and indigenous peoples. Both the Commission and the Court mention such need in accordance with Article 21 American Convention. The causes for this need are the doctrines of vulnerability and historical discrimination. Besides a common doctrinal basis, this analysis demonstrates that the Inter-​American organs shared a similar understanding regarding individual and collective aspects of the right to property. They both restated the foundational basis of the right of (members of) tribal and indigenous peoples to the traditional land use and occupation. By going beyond that, they established criteria to protect this right in face of state’s intervention in indigenous lands. Such criteria constituted an innovative aspect of the Saramaka case due to the joint recognition by the Inter-​American organs. Notably, for the first time, the Court fully accepted a Commission’s allegation. Accordingly, the Inter-​ American organs established that when the state develops or authorizes the development by third parties of projects impacting on tribal and indigenous lands, i.e. restricts the property rights of tribal and indigenous peoples, it must comply with the following obligations: (1) to supervise the development of an environmental and social assessment done by an independent and technically

67

See above in chapter three, 2.2.1 The Commission’s Work:  The Rationale Behind It & International Law.

156 Chapter 4 capable entity prior to granting any concession; (2) to guarantee that tribal and indigenous peoples receive a reasonable benefit; (3) to guarantee the effective participation of the members of tribal and indigenous peoples in the state’s decision. Thus, it is clear that the Inter-​American organs expanded the collective aspects of the right to property through the establishment of the state’s obligations. This underscores the uniqueness of the iahrs. With respect to the right to property, the ECtHR has not created de lege ferenda similar obligations to the ones existing in the iahrs.68 Against this background, it is compelling to observe the dual nature of the right to property as a civil and a socio-​cultural right. Different from cases concerning individual property, in cases concerning tribal and indigenous lands, states have an active role to play for the sake of guaranteeing the effectiveness of Article 21 of the achr. This applies even when tribal and indigenous peoples do not have an official property title. Tribal and indigenous possession raises state obligations of not intervening in communal lands without consulting the affected peoples, and of issuing reparations following the limitation of their land rights (benefit sharing). In other terms, the right to property as applied to tribal and indigenous lands acquires a different essentia that combines environmental rights, state obligations, and redress measures to the benefit of tribal and indigenous peoples. According to this analysis, the Commission’s and the Court’s approaches regarding the object of communal property were also very similar. In this regard, the Inter-​American organs upheld the protection of the unique spiritual relationship between tribal and indigenous peoples and their territories. In an innovative step, they clarified which types of natural resources are included in the concept of communal property. Both agreed that natural resources, which are traditionally used and essential for the communal “subsistence” or “survival” should be protected. Such interpretation raised the question whether the iahrs is limiting beyond necessary the rights of tribal and indigenous peoples. For instance, natural resources that could not be exploited in the past due to the absence of enough technology fall beyond the scope of communal property. In other words, property protection for the development of modern economic activities by tribal and indigenous peoples might not lie within the scope of Article 21 of the achr. The Saramaka decision is not entirely clear on this issue. This book evidentiated that the Inter-​American Court incorporated the Commission’s approach to general international human rights law in the 68

Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights –​Protection of Property [2018] [2019] (European Court of Human Rights) 29.

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present decision. Since the Awas Tingni case, the Commission’s work had been giving in its written statements a prominent role to legal instruments and legal practice outside the iahrs.69 This was in accordance with Article 29 of the American Convention. In the Saramaka decision, the IACtHR embraced the Commission’s approach and interpreted Article 21 of the American Convention in light of legal instruments of international human rights law. Thus, the iccpr, the icescr, and the ilo Convention 169 have played a key role in the Court’s interpretation. The controversial point of the Saramaka case referred to the legal capacity of tribal and indigenous peoples. Legal scholarship has left so far this issue almost unaddressed. Instead, it has focused on the case’s innovations in terms of protection of natural resources and participatory rights of tribal peoples.70 The present analysis demonstrated how complex the legal capacity of the Saramaka people related to the right to property was. Both the Commission and the Court had to argue substantively for advancing the locus standi in judicio of the Saramaka people. In addition, they had to define criteria for identifying tribal peoples in face of the state’s arguments contesting the group’s ethnicity. Finally, they both agreed to dismiss the procedural requirement of individualizing the members of the Saramaka people as the beneficiaries of reparations. This issue was an ongoing controversy between the Commission and the Court since the Aloeboetoe case.71 To conclude, the Saramaka case left some unsettled issues regarding the legal capacity of tribal and indigenous peoples. First, the Court did not recognize the Saramaka people as an injured party. The dismissal of the requirement of individualizing the beneficiaries of reparations and the collective nature of reparations should have led to the conclusion that the group was the beneficiary of reparations. Second, the Court did not recognize the Saramaka people as a collective subject. The Court reasoned for the recognition 69 70

71

See above in chapter three, 2.2.1 The Commission’s Work:  The Rationale Behind It & International Law. Lisl Brunner, ‘The Rise of Peoples’ Rights in the Americas:  The Saramaka People Decision of the Inter-​American Court of Human Rights’ (2008) 7(3) Chinese Journal of International Law 699; Jo M Pasqualucci, ‘International Indigenous Land Rights:  A Critique of the Jurisprudence of the Inter-​American Court of Human Rights in Light of the United Nation Declaration on the Rights of Indigenous Peoples’ (2009) 27(1) Wisconsin International Law Journal 51; Gaetano Pentassuglia, ‘Towards a Jurisprudential Articulation of Indigenous Land Rights’ (2011) 22(1) European Journal of International Law 165. On this controversy see above in chapter three, 1. An Important Precedent:  The Aloeboetoe Case.

158 Chapter 4 of the legal personality of the Saramaka people in domestic laws. Accordingly, such recognition would be a necessary step to protect property rights. Still, the Court stopped short before doing such recognition on the iahrs level. This is inconsistent with the Court’s reasoning. Thus, those unfinished issues reveal a tension in the iahrs: the existence of procedural limitations and the need to recognize collective subjects of law. As demonstrated below, this tension increased in the case of Xákmok Kásek Indigenous Community v. Paraguay. 2

Toward Collective Legal Subjects: Xákmok Kásek Case, 2010

Justifying the Collective Legal Capacity of Tribal and Indigenous Peoples? The case of Xákmok Kásek Indigenous Community v.  Paraguay originated from the petition submitted by the ngo Tierraviva a los Pueblos Indígenas del Chaco on behalf of the Xákmok Kásek and its members.72 It related to the state’s failure to guarantee property rights of the indigenous community. The factual background of this case is similar to the one in previous judgments on indigenous communities in Paraguay as described in chapter three.73 This is why Antkowiak refers to the Xákmok Kásek case as the last case of the Paraguayan trilogy.74 The connection between the Paraguayan cases was reinforced through the attachment of evidence to the present case from statements by expert witnesses in the Yakye Axa case.75 Due to the similarity with previous cases, this section does not summarize the facts of the Xákmok Kásek case. For the sake of this analysis, the importance of the Xákmok Kásek case refers to the attached concurring opinion by the Chilean Judge Eduardo Vio Grossi. Pursuant to Article 66 of the achr, the separate opinions of judges in the Inter-​ American system are attached to the judgment when there is a disagreement among the judges. Legal scholarship points out that those separate opinions 2.1

72 73 74 75

Xákmok Kásek Indigenous Community of the Enxet-​Lengua People and Its Members v. the Republic of Paraguay [2009] 12.420, [2009] 1 (Inter-​American Commission on Human Rights) para 10. See in ­chapter 3, 3.2 Yakye Axa Case, 2005; 3.3 Sawhoyamaxa Case, 2006. Thomas M Antkowiak, ‘Rights, resources and rhetoric: Indigenous Peoples and the Inter-​ American Court’ (2013) 35 University of Pennsylvania Journal of International Law 113 146–​151. Comunidad Indígena Xákmok Kásek v. Paraguay [2010] Series C No. 214, [2010] 1 (Inter-​ American Court of Human Rights) para 6.

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in the iahrs have some influence in the IACtHR’s ratio decidendi, and that they might be considered a relevant source of international legal doctrine.76 By analyzing the Court’s jurisprudence on land rights, it becomes clear that Judge Vio Grossi’s opinion had an effect on the judgments after the Xákmok Kásek case. Due to its importance, it is crucial to analyze Judge Vio Grossi’s concurring opinion. In this regard, this analysis indicates two major inconsistencies. They refer to the sources of international law used to interpret the achr and the legal capacity of tribal and indigenous peoples in international law. Those issues are explained in the following paragraphs. Judge Vio Grossi’s opinion proposed a new interpretation of Article 1(2) of the American Convention that aimed to include groups as victims of violations.77 It started with an overview of the IACtHR’s approach in the cases prior to Xákmok Kásek and then it proceeded to suggest the new interpretation. Accordingly, this interpretation would enable the recognition of tribal and indigenous peoples as legal persons, i.e. as subjects of rights with their own collective legal personality. According to the Judge, tribal and indigenous peoples’ rights refer to specific rights of the American Convention. Likewise, such rights have a collective nature, which contrasts to the individual nature of the Convention’s rights. It is crucial to note that as consequence, Judge Vio Grossi’s concurring opinion advocates implicitly the expansion of the Court’s jurisdiction ratione personae, which by that time was restricted to individuals.78 The legal basis behind Judge Vio Grossi’s opinion referred to international human rights law. According to the Judge, the recognition of the legal capacity of tribal and indigenous peoples would strengthen the relationship between the Court’s interpretation and contemporary developments in public international law. Judge Vio Grossi referred to different legal sources to justify his idea 76 77

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Ranieri L Resende, ‘Deliberation and Decision-​Making Process in the Inter-​American Court of Human Rights:  Do Individual Opinions Matter?’ (2019) 17(1) Northwestern Journal of Human Rights 25 49. For the traditional interpretation of Article 1 of the American Convention in cases of tribal and indigenous peoples see: Comunidad Moiwana v. Suriname [2005] Series C No. 124, [2005] (Inter-​American Court of Human Rights), Separate Opinion of Judge Cançado Trindade paras 5–​12. Case of Cantos v.  Argentina [2001] Series C No. 85, [2001] 1 (Inter-​American Court of Human Rights) paras 22–​31; Advisory Opinion 14/​94 [1994] [1994] (Inter-​American Court of Human Rights) para 46. For a concise overview on the claims of collectives entities in the iahrs until 2010 see: Camille C Aponte-​Rossini and Carlos J Zelada, ‘Algunas consideraciones en torno al tratamiento de los sujetos colectivos en el Sistema Interamericano de Protección de los Derechos Humanos’ in Beatriz Londoño Toro and Arturo J Carrillo (eds), Acciones de grupo y de clase en casos de graves vulneraciones a derechos humanos (Universidad del Rosario 2010).

160 Chapter 4 in accordance with Article 29(b) and Article 29(d) of the achr. He quoted Article 3(1) of the ilo Convention 169, Article 1 of the undrip, the interpretation of the Committee on Economic, Social, and Cultural Rights on Article 15 of the icescr, and some provisions of the AChHPR. In addition, he explained the emerging development in the Americas of the legal capacity of tribal and indigenous peoples with reference to the draft adrip. By doing so, Judge Vio Grossi’s opinion differentiated between autonomous (i.a. treaties) and auxiliary sources of international law (i.a. resolutions of international organizations).79 Thus, he concluded that there is a trend in international law toward the recognition of the collective legal capacity and specific group rights to the benefit of indigenous peoples. In this context, this analysis highlights that the sources of law used in Judge Vio Grossi’s concurring opinion are inconsistent. The only legally binding instrument recognizing specific rights to tribal and indigenous peoples is the ilo Convention 169. As explained before, not all states parties to the achr have ratified the ilo Convention 169.80 Consequently, pursuant to Article 29(b) of the achr, an interpretation of the American Convention through the ilo Convention 169 would not be able to substantiate the recognition of specific group rights to indigenous peoples. To avoid such inconsistency, Judge Vio Grossi referred to instruments such as the undrip that has a soft law nature.81 This is 79

80

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Comunidad Indígena Xákmok Kásek v. Paraguay [2010] Series C No. 214, [2010] 1 (Inter-​ American Court of Human Rights), Concurring Opinion of Judge Eduardo Vio Grossi para 25. Notably, Judge Vio Grossi’s typology of the sources of international law is not in accordance with public international law. Articles 31–​32 of the vclt do not contain an explicit mention to soft law instruments as means for treaty interpretation. Article 38(1) of the icj Statute does not enumerate soft law instruments among the formal sources of international law. Despite not being a formal source, the icj attributes some normative value to resolutions of international organizations. In this regard see: Legality of the Threat or Use of Nuclear Weapons [1996] [1996] icj Reports 226 (International Court of Justice) para 70. As of 2019, the following States have ratified the achr and not the ilo Convention 169: Barbados, Dominican Republic, El Salvador, Grenada, Jamaica, Panama, Suriname, and Uruguay. For more information see: International Labour Organization, ‘Ratifications of C169’ (2019) accessed 29 March 2019; Organization of the American States, ‘American Convention on Human Rights –​Signatories and Ratifications’ (2019) accessed 6 August 2019. On the normative value of the undrip see: Clive Baldwin and Cynthia Morel, ‘Using the United Nations Declaration on the Rights of Indigenous Peoples in Litigation’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart Publishing 2011)  123–​126; (n 278)  23; Rights of Indigenous Peoples under Customary International Law (2010) 43; Siegfried Wiessner, ‘Indigenous Sovereignty:  A Reassessment in the Light of the UN Declaration on the Rights of

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in accordance with Article 29(d) of the achr. For the issue at hand –​the recognition of the collective legal capacity of indigenous peoples –​the undrip is yet irrelevant. This analysis observes that the undrip does not recognize the legal capacity of indigenous peoples. In addition, it observes that the existence of collective rights in the undrip de lege lata is controversial.82 In fact, during the unga session for the adoption of the undrip, some state members of the UN clearly stated their votes in favor of the adoption of the undrip, whereas remarking that the undrip should not be interpreted in such a way as recognizing collective rights in international law.83 Moreover, in contrast to Judge Vio Grossi’s opinion, the use of other soft law instruments such as the draft adrip and the General Comments of the UN Committee on Economic, Social, and Cultural Rights to interpret the Convention are not laid down in Article 29 of the achr. According to a literal interpretation of Article 29(d) of the achr, only international declarations by states may be used as a means to interpret the achr. In order to understand the use of general soft law instruments in Judge Vio Grossi’s interpretation of the achr, it is necessary to keep in mind that the interpretation of human rights treaties follows a specific interpretation canon. As the IACtHR stated previously, human rights is lex specialis to general international law.84 The pro homine principle is applicable. Therefore, Article 29(d) of the achr can be understood as enabling the use of legal instruments other than declarations for interpreting the achr. As a result, the legal content articulated through non-​binding

82 83

84

Indigenous Peoples’ (2008) 41 Vanderbilt Journal of Transnational Law 1141 1162; Maia S Campbell and S. J Anaya, ‘The Case of the Maya Villages of Belize: Reversing the Trend of Government Neglect to Secure Indigenous Land Rights’ (2008) 8 Human Rights Law Review 377 398; Benedict Kingsbury, ‘Indigenous Peoples’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018), para 15. On this issue see Jessie Hohmann and Marc Weller (eds), The UN Declaration on the Rights of Indigenous Peoples: A Commentary (Oxford commentaries on international law, 1st. ed. Oxford University Press 2018) 123; 161; 186–​187. This does not preclude the existence of such rights under customary international law. See especially the statements by United Kingdom and Sweden: United Nations General Assembly, ‘General Assembly Adopts the Declaration on the Rights of Indigenous Peoples’ (3 September 2007)  accessed 23 October 2018. On this issue see also: Karen Engle, ‘On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights’ (2011) 22(1) The European Journal of International Law 141 148–​150. Mapiripán Massacre v. Colombia (2005) Series C No. 134 (Inter-​American Court of Human Rights) para 107; Lucas Lixinski, ‘Treaty Interpretation by the Inter-​American Court of Human Rights:  Expansionism at the Service of the Unity of International Law’ (2010) 21(3) European Journal of International Law 585 590.

162 Chapter 4 instruments became binding by being applied to interpret the provisions of the American Convention. Put succintly, Judge Vio Grossi’s opinion lies in converting global soft law into Inter-​American hard law. The transformation of global soft law into regional hard law should not be taken as granted. Similar to Judge Vio Grossi’s concurring opinion, the iahrs jurisprudence contains some decisions, which demonstrate the Convention’s interpretation through soft law instruments.85 This approach has of course positive effects such as advancing a universal interpretation of human rights law.86 Conversely, legal scholarship has criticized the incautious use of such interpretative method.87 An important criticism in this regard is the threat to the Court’s legitimation and effectiveness. Neuman pointed out to the Court’s interpretative trend that dissociates itself from the Inter-​American consensual basis.88 Furthermore, Judge Vio Grossi’s analysis on contemporary developments in general international law concerning the legal capacity of tribal and indigenous peoples is incomplete. By the time of the Xákmok Kásek judgment (2010), rather than a clear trend, there were ongoing controversial discussions in this regard. In 2009, the hrc adopted the decision in the case of Ángela Poma Poma v. Peru, in which it did not admit self-​determination claims by an indigenous woman on behalf of her community.89 Concisely, the hrc did not 85

86

87

88 89

Ituango Massacres v. Colombia (2006) Series C No. 148 (Inter-​American Court of Human Rights), para 209; Claude Reyes et al. v. Chile (2006) Series C No. 151 (Inter-​American Court of Human Rights) paras 77–​83; OC 17/​02 –​Juridical Condition and Human Rights of the Child [2002] Series A No. 17, [2002] (Inter-​American Court of Human Rights) paras 84–​86. Marijke de Pauw, ‘The Inter-​American Court of Human Rights and the Interpretative Method of External Referencing’ in Yves Haeck, Oswaldo Ruiz-​Chiriboga and Clara Burbano-​Herrera (eds), The Inter-​American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015) 4; 23; Lucas Lixinski, ‘Treaty Interpretation by the Inter-​American Court of Human Rights:  Expansionism at the Service of the Unity of International Law’ (2010) 21(3) European Journal of International Law 585 602–​604. Ezequiel Malarino, ‘Judicial Activism, Punitivism and Supranationalisation:  Illiberal and Antidemocratic Tendencies of the Inter-​American Court of Human Rights’ (2012) 12 International Criminal Law Review 665; Gerald L Neuman, ‘Import, Export, and Regional Consent in the Inter-​American Court of Human Rights’ (2008) 19(1) The European Journal of International Law 101 123; Marijke de Pauw, ‘The Inter-​American Court of Human Rights and the Interpretative Method of External Referencing’ in Yves Haeck, Oswaldo Ruiz-​Chiriboga and Clara Burbano-​Herrera (eds), The Inter-​American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015) 23–​24. Gerald L Neuman, ‘Import, Export, and Regional Consent in the Inter-​American Court of Human Rights’ (2008) 19(1) The European Journal of International Law 101 123. Ángela Poma Poma v.  Peru [2009] CCPR/​C/​95/​D/​1457/​2006, [2009] 1 (Human Rights Committee) para 6.3.

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apply collective rights to the benefit of indigenous peoples. Besides that, in 2010, American states failed to achieve a consensus on indigenous issues and to adopt the adrip, which had been negotiated since 1997.90 The draft adrip contained a provision recognizing the legal personality of indigenous peoples. To sum up, Judge Vio Grossi’s concurring opinion was extremely progressive. Conversely, as this analysis demonstrated, it was selective and looked away from relevant arguments against the recognition of the collective legal capacity of tribal and indigenous peoples. Advancing the Recognition of the Collective Legal Capacity of Tribal and Indigenous Peoples: the adrip As the previous section demonstrated, Judge Vio Grossi’s concurring opinion was to some extent inconsistent. To solve this inconsistency, this research suggests two arguments in accordance with Article 29(d) of the achr that offer a solid legal basis for the recognition of the collective legal capacity of tribal and indigenous peoples in the iahrs. First, Judge Vio Grossi’s arguments could have been enhanced by reference to the adhr pursuant to Article 29(d) of the achr.91 This provision establishes that the Court should not interpret the achr in a way that excludes or limits the effects of the adhr.92 Legal scholarship explains that this provision establishes the achr as a minimum standard, whose interpretation should be enhanced by the provisions of other international legal instruments. This type of interpretation is widespread in international human rights law as the jurisprudence of the ECtHR demonstrates.93 Yet, it remains controversial whether the IACtHR may directly apply the adhr in contentious cases.94 So far, the 2.2

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92 93 94

Toro Utillano L, ‘Normas de Derecho Internacional aplicables a la Temática Indígena’ in Department of International Law (ed), Democracia y Participación Política de los Pueblos Indígenas (2013). Similarly see Elard R Bolanos-​Salazar, ‘Las personas jurídicas como titulares de derechos humanos: Descartando el supuesto oximoron y analizando las posibilidades en el sistema interamericano de derechos humanos’ (2015) 6(2) EAFIT Journal of International Law 91; Diego Rodríguez Pinzón, ‘The “victim” requirement, the fourth instance formula and the notion of “person” in the individual complaint procedure of the Inter-​American Human Rights System’ (2000–​2001) 7 ILSA Journal of International & Comparative Law 369 380–​382. On the Court’s competence to interpret the American Declaration see also:  Opinión Consultiva 10/​89 [1989] Series A No. 10, [1989] 1 (Inter-​American Court of Human Rights) paras 29–​48. Laurence Burgorgue-​Larsen and others, The Inter-​American Court of Human Rights: Case law and commentary (Oxford University Press 2013) 62–​64. Cecilia Medina Quiroga and Claudio Nash Rojas, Sistema Interamericano de Derechos Humanos: Introducción a sus Mecanismos de Protección (Centro de Derechos Humanos

164 Chapter 4 IACtHR restricted the use of the adhr to interpret the achr.95 For the sake of this analysis, it is important to keep in mind that this use is allowed explicitly de lege lata. By interpreting the achr in light of the adhr, the Court’s jurisdiction ratione personae could have been expanded. In contrast to the achr, the adhr does not contain a provision similar to Article 1(2) of the American Convention, which defines “person.” Therefore, it is possible to interpret the American Declaration in a way that recognizes rights to individual and collective persons as subjects of rights.96 The iachr has already built a jurisprudence confirming such interpretation.97 By analogy, pursuant to Article 29(d) of the American Convention, the Court could interpret the American Convention as establishing rights to individual and collective persons. The adoption of such interpretation is yet unrealistic. The IACtHR has been very cautious by using the adhr to interpret the achr. Indeed, mainly due to historical reasons, the Court does not engage in a direct dialogue with the case law of the iachr.98 All those controversies surrounding the legal reasoning of the collective legal capacity of tribal and indigenous peoples could have been avoided if Judge Vio Grossi had waited a few more years. In 2016, the American states approved the adrip, in which they recognized collective rights and the collective legal personality of tribal and indigenous peoples. Article 38 of the adrip set forth that the oas, its organs, agencies, and entities, such as the IACtHR, shall

95 96

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2011)  46–​47; Álvaro Paúl, Los trabajos preparatorios de la declaración americana de los derechos y deberes del hombre y el origen remoto de la Corte Interamericana (Serie doctrina jurídica vol 810, Primera edición, Universidad Nacional Autónoma de México 2017) 16–​20; Gabriela Rodríguez, ‘Normas de Interpretación’ in Christian Steiner and Patricia Uribe (eds), Convención Americana sobre Derechos Humanos: Comentario (Fundación Konrad Adenauer Stiftung 2014) 712. See above in this chapter footnote no 19. In the same sense see:  Diego Rodríguez Pinzón, ‘The “victim” requirement, the fourth instance formula and the notion of “person” in the individual complaint procedure of the Inter-​American Human Rights System’ (2000–​2001) 7 ILSA Journal of International & Comparative Law 369 380–​382. ABC Color  –​Paraguay [1984] 9250, [1984] (Inter-​American Commission on Human Rights); Jehovah’s Witnesses  –​ Argentina (1978) 2137 (Inter-​American Commission on Human Rights). Ariel Dulitzky, ‘The Relationship between the African Commission and the African Court: Lessons from the Inter-​American System’ (2005) 15 Interights Bulletin 10; Felipe González, ‘The Experience of the Inter-​American Human Rights System’ (2009) 40(1) Victoria University of Wellington Law Review 103-​125 111; Carla Osmo and Kathia Martin-​ Chenut, ‘A participação das vítimas no sistema interamericano: fundamento e significado do direito de participar’ (2017) 8(2) Revista Direito & Práxis 1455 1488.

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adopt all necessary measures to promote the full observance, protection, and application of its provisions. In addition, Article 41 of the adrip highlights that the rights recognized in the adrip and undrip constitute the minimum standards for the survival, dignity, and well-​being of the indigenous peoples in the Americas. As noted above, Article 29(d) of the American Convention enables the interpretation of the American Convention through other legal instruments such as declarations. The adrip represents an acclamation by oas member states of the rights of indigenous peoples. Thus, it constitutes a solid vehicle for interpreting the American Convention that does not put at risk the Court’s legitimacy. 3

Interim Conclusions

This section assesses the results of the two foregoing parts of this chapter in view of Inter-​American and general international human rights law. Additionally, it contrasts this assessment with the results of the previous chapter. By doing so, it demonstrates how the different waves of jurisprudential developments are complementary to each other. The structure of this part is as follows:  Part one explores this chapter as whole and underscores similarities and differences with the previous chapter. Part two digs into the procedural issue that connects both chapters, i.e. the problem with the individualization of collectiveness. Part three shows that this problem reveals itself not only in the iahrs, but also in other complaint mechanisms under international human rights law. 3.1 Summary of Chapter 4 and Its Relationship with Chapter 3 This chapter demonstrated the transitional wave of jurisprudence concerning land rights of members of tribal and indigenous peoples. It contained two analytical sections, which this part summarizes and then analyzes. The first section referred to the analysis of the Saramaka People v. Suriname case.99 This was the third time that the IACtHR handed down a decision against Suriname on tribal issues. In this regard, the analysis above demonstrated individual and collective aspects of property rights in the Commission’s and the Court’s work. These aspects related to Article 21 of the American Convention, its related rights holders, and the concept of communal tribal-​indigenous 99

See above in this chapter, 1. Between Individual and Collective Subjects of Rights.

166 Chapter 4 property. In addition, the first section explained the influence of general international law to the Saramaka case and the rationale behind it. The second section referred to the case of Xákmok Kásek Indigenous Community v. Paraguay.100 After seven years of iahrs proceedings, this case ended up in 2010 with the Court’s decision against Paraguay. It entailed substantial similarities with three previous Paraguayan cases of the iahrs jurisprudence.101 The analysis above focused on the concurring opinion issued by Judge Eduardo Vio Grossi that was attached to the Court’s judgment on the merits. The eight pages of Judge Vio Grossi’s opinion argued vigorously in favor of a new interpretation of “person” pursuant to Article 1(2) of the American Convention. Indeed, this interpretation fostered the recognition of the collective legal capacity of tribal and indigenous peoples. To that end, Judge Vio Grossi used the evolutive interpretation to expand the meaning of Article 1(2) of the American Convention. Accordingly, he interpreted this provision with reference to international legal instruments with legally binding and non-​binding nature. The analysis above in section two presented a critical assessment in this regard. In this context, it is essential to recognize the continuity between the first wave and the second wave of jurisprudence. Despite the fact that the cases of the second jurisprudential wave presented some innovations in legal terms, those cases connected with jurisprudence of the first wave. For instance, the Court built its decision in the Saramaka case on the concept of vulnerability, which was used previously by the Commission in the Awas Tingni case . Additionally, the Inter-​American organs agreed to include the protection of the spiritual relationship between indigenous peoples and their territories in the concept of communal property. Such protection started to be developed in the Awas Tingni case . Lastly, the Inter-​American organs elaborated on the definition criteria of “tribal and indigenous peoples.” At this transitional stage or second wave, the case docket related to the guarantee of property rights of tribal and indigenous peoples. In contrast, the first wave was concerned mostly with cases dealing with the absence of state’s recognition of land rights of tribal and indigenous peoples. Such contrast shows the change of situation in the American countries. By the time of the transitional wave, domestic laws did not ignore the existence of land rights of tribal and indigenous peoples. Rather, the problem was that states did not guarantee 1 00 See above in this chapter, 2. Towards Collective Legal Subjects: Xákmok Kásek Case, 2010. 101 Saramaka People v.  Suriname [2007] Series C No. 172, [2007] 1 (Inter-​American Court of Human Rights); Comunidad Indígena Yakye Axa v. Paraguay [2005] Series C No. 125, [2005] (Inter-​American Court of Human Rights); Comunidad Indígena Sawhoyamaxa v. Paraguay [2006] Series C No. 146, [2006] (Inter-​American Court of Human Rights).

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these rights in accordance with the standards established under the iahrs. As a result, the iahrs organs have changed their focus of analysis towards the elaboration of criteria to guarantee the effectiveness of tribal-​indigenous land rights. A remarkable feature of the transitional wave is the close work between the Inter-​American organs. In the cases of the second wave, the Commission and the Court had almost a consensual approach towards tribal and indigenous issues related to Article 21 of the achr. Notably in this regard was the major role played by general international human rights law in the interpretation of the achr. In addition, the iahrs organs jointly established the criteria to protect the right of members of tribal and indigenous peoples to property in face of state’s intervention in their lands. Tribal and indigenous peoples’ participatory rights are important elements within such criteria. Furthermore, the doctrinal advancement for the recognition of the collective legal capacity of tribal and indigenous peoples is a main feature of the second jurisprudential wave. In the two cases contained in this wave, states contested the ethnicity of the victims, members of tribal and indigenous peoples.102 In response, both the Commission and the Court had to explain in detail the criteria behind the definition of “tribal and indigenous peoples.” In an innovative step, both organs agreed to dismiss the procedural requirement of individualizing the members of the Saramaka people as injured parties. The dismissal of this requirement was due to the difficulties associated with identifying the members of the tribal people. Similar difficulties had arisen previously in cases concerning tribal and indigenous peoples.103 However, before the Saramaka case, the Court did not consider that such difficulties justified dismissing the requirement of identification of victims. Hence, the dismissal of this procedural requirement represented a breakthrough in the Court’s case law. The transitional jurisprudential wave demonstrates the emerging collective legal capacity of tribal and indigenous peoples in contrast to the individual capacity of their members. In the first wave, only members of tribal and 102 Saramaka People v. Suriname [2007] Series C No. 172, [2007] 1 (Inter-​American Court of Human Rights) paras 18–​29; Comunidad Indígena Xákmok Kásek v. Paraguay [2010] Series C No. 214, [2010] 1 (Inter-​American Court of Human Rights) paras 33–​50. 103 See above in ­chapter 3, 1. An Important Precedent: The Aloeboetoe Case. The difficulties associated with the individualization of victims are present in cases other than the ones concerning tribal and indigenous peoples as well. For a comprehensive summary in this regard see: Juana I Acosta Lopez, ‘La protección de víctimas indeterminadas en el sistema interamericano de derechos humanos’ (Graduation, Pontificia Universidad Javeriana 2005) 7–​24.

168 Chapter 4 indigenous communities were regarded as victims. In contrast, in the second wave, the iahrs organs attempt to recognize as victims both tribal and indigenous peoples and their respective members. An abstract collective entity gradually emerges as victim in the Inter-​American substantive and procedural law.104 3.2 The Inter-​American Backdoor Approach Remarkably, the IACtHR has progressively recognized the collective legal capacity of tribal and indigenous peoples by using a so called “backdoor approach.” This means that the Court did not recognize such collective capacity in the merits of its decision. Instead, as it occurred in the Saramaka judgment, the IACtHR supported implicitly this capacity in the last section of its judgments –​at the reparations stage. By doing so, it did not individualize the victims. Rather, the Court issued collective reparations to the benefit of the whole group. This backdoor approach might have been a result of the influence of US class action proceedings in the Inter-​American complaint procedure.105 In addition, Lixinski indicated that the reason behind it might be that the reparations stage raises less controversy so that the Court can more easily advance its jurisprudence.106 Lixinski’s explanation underscores the IACtHR’s political strategy for adopting decisions. In a complementary manner to Lixinski’s explanation, the present analysis demonstrates in the following paragraphs the procedural reasons behind the Court’s backdoor approach. The IACtHR’s backdoor approach is a result of the unsuitability of the iahrs complaint procedure to deal with collective complaints. At the initial stage of the complaint procedure before the Court, tribal and indigenous peoples as a collective plaintiff do not represent a problem. Pursuant to the rules of procedure, the Commission must identify the victims by name only if it is possible.107 Then, the complaint proceeds until the final stages of reparations. 104 Similarly see Lucas Lixinski, ‘Treaty Interpretation by the Inter-​American Court of Human Rights:  Expansionism at the Service of the Unity of International Law’ (2010) 21(3) European Journal of International Law 585 602. 105 For the US class action proceedings see: Siegfried Wiessner, ‘Democratizing International Arbitration?:  Mass Claims Proceedings in Abaclat v.  Argentina’ (2014) 1 Journal of International and Comparative Law 55 64–​66. 106 Lucas Lixinski, ‘Treaty Interpretation by the Inter-​ American Court of Human Rights:  Expansionism at the Service of the Unity of International Law’ (2010) 21(3) European Journal of International Law 585 602. 107 Article 33(1) of the Court’s Rules of Procedure (2003), Article 34 Court’s Rules of Procedure (2009a), Article 35 of the Court’s Rules of Procedure (2009).

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In accordance with the established procedure, at the reparations stage, the Commission must individualize the collective entity. Such individualization is not found de lege lata in the American Convention. Instead, it is a requirement found de lege ferenda in the iahrs procedure.108 Therefore, at the reparations stage, the Commission and the Court arrive at a crossroads. On the one hand, they must individualize the injured parties to comply with the complaint procedure. On the other hand, they recognize severe difficulties associated with the identification of all the members of tribal and indigenous peoples.109 They know that the only way to properly redress these peoples is by issuing collective reparations.110 Also, they must decide between (1) upholding the procedural requirements of the iahrs complaint procedure or (2) properly redressing the victims and dismissing their identification by names. Put succinctly, the impropriety of individualization of groups becomes irreversible when exposed at the reparations stage. To give a permanent solution to this issue associated with the procedural requirement of individualization of victims in cases of tribal and indigenous peoples, it is necessary to engage with issues of substantive law –​namely, the IACtHR’s competences ratione materiae and personae. In its Advisory Opinion 14/​94, the Court dealt with the issue of whether its competence in contentious cases reached complaints with respect to domestic laws, which had not been yet applied to concrete cases. By giving a negative answer to this question, the Court explained that the iahrs complaint procedure admits only petitions alleging a concrete violation of the human rights of a specific individual.111 An actio popularis is inadmissible in the iahrs complaint procedure. According to the Court, the procedural requirement of the affectation of an individual was implicitly contained in Article 46(b) of the American Convention. Later on, such requirement was reflected in the Commission’s and the Court’s rules of procedure. It constituted the so-​called victim requirement and limited the Court’s competence ratione personae. By analyzing the Court’s justification of its jurisdiction ratione materiae and personae, this analysis has found a significant inconsistency. The tribunal reads Article 46(b) of the achr as entailing the word “individual”, which exists only in the French version of the American Convention (“l’individu”). All other official versions of the American Convention mention different words: “party” 1 08 Advisory Opinion 14/​94 [1994] [1994] (Inter-​American Court of Human Rights) paras 45–​46. 109 For example see above in ­chapter 3, 1. An Important Precedent: The Aloeboetoe Case, 1993. 110 Among others see Twelve Saramaka Clans v. the Republic of Suriname [2006] 12.338, [2006] (Inter-​American Commission on Human Rights) para 194. 111 Advisory Opinion 14/​94 [1994] [1994] (Inter-​American Court of Human Rights).

170 Chapter 4 (English), “presunto lesionado” (Spanish) and “presumido prejudicado” (Portuguese). All these words may be interpreted in a collective or individual way. Put differently, the words “party” or “partie lésée” may include collective persons. Pursuant to Article 33 of the vclt, all the versions in different languages of an authentic treaty text have the same value. Thus, the most basic and literal interpretation of the achr is not able to sustain the Court’s interpretation of Article 46(b) of the achr. By looking more closely at Article 46(b) of the achr, the Court’s position with respect to its jurisdiction has even more inconsistency. In order to interpret the difference of meanings among authentic texts regarding Article 46(b) of the achr  –​“party” or “individual”, Article 31 of the vclt establishes the consideration of the context, object, and purpose of the treaty. The Court has to consider first the context of structural discrimination suffered by tribal and indigenous peoples. As explained before, tribal and indigenous lifestyles are different from those of the rest of the society due to their focus on the group.112 In addition, basic state services such as registration offices are often absent in the regions where tribal and indigenous communities live. Even when there are registration offices, these organs sometimes refuse due to discriminatory reasons to issue birth certificates with the indigenous names of indigenous persons.113 As a result, members of tribal and indigenous communities do not have birth certificates and so they do not officially exist. In view of that, if their rights are violated, they may be unable to claim before courts. In this way, they are marginalized from the rest of the society, without access to citizenship and fundamental rights. Put differently, tribal and indigenous communities are on the spot of institutional structural discrimination. It is why is so difficult for tribal and indigenous peoples to fulfill the iahrs requirement of the individualization of victims. Moreover, pursuant to Article 31 of the vclt, the IACtHR has to consider the object and purpose of the achr. As Judge García Ramírez explained, the object and purpose of the achr are to uphold human dignity and recognize the demands that the protection and fulfillment of the human rights pose.114 In light of the situation of structural discrimination against tribal and indigenous

1 12 See in ­chapter 3, 1. An Important Precedent: The Aloeboetoe Case, 1993. 113 Johny F Giffoni, ‘A aplicação das 100 regras de Brasília como fundamento da interpretação para a proteção dos direitos indígenas: A defensoria pública e a Convenção 169 da OIT’ (Curitiba, Paraná, Brazil) 152. 114 Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [2001] Series C No. 79, [2001] 1 (Inter-​American Court of Human Rights), Concurring Opinion of Judge Sergio García Ramírez para 4.

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peoples, the fulfillment of human rights raises the need of protecting these peoples as individuals and groups. As Wiessner explained with vivid words:115 Human beings are not atomistic individuals; they are existentially dependent on others to survive and to flourish. Their families and larger communities are social phenomena that they influence and by which they are influenced. Those communities live by their own rules to maintain and develop their distinct identity. The mission of the law should be to answer responsibly to the totality of human aspirations in the crucible between individual self-​realization and the need for belonging to groups, entities larger than self. Likewise, by applying the interpretation rule of Article 31 of the vclt, the Court should interpret Article 46(b) of the achr in the sense of “party” –​as including individuals and collectives. In a prior decision containing a translation inconsistency, the Court has interpreted the achr in a broad way in order to enable a comprehensive scope of the protection of the achr.116 To confirm the meaning resulting from the application of Article 31 of the vclt, Article 32 of the vclt sets down the consideration of the preparatory work of the treaty. In the case of the achr, it is compelling to observe that the drafting history of Article 46 of the achr (Article 35 of the draft achr) does not mention the word “individual.”117 By following the interpretation suggested in the present analysis in accordance with the vclt, the Court would be able to justify its broader competence and dismiss the requirement of individualization of victims in the cases concerning tribal and indigenous peoples. A similar interpretation to the one suggested here has been previously advocated. For example, Judge Cançado Trindade was a strong voice in supporting an expanded competence of Article 46 of the American Convention.118 115 Siegfried Wiessner, ‘Re-​Enchanting the World:  Indigenous Peoples’ Rights as Essential Parts of a Holistic Human Rights Regime’ (2010) 15 UCLA Journal of International Law and Foreign Affairs 239 240. 116 See above in ­chapter 3, 2.2.1.1.2 Object. 117 Organization of the American States, ‘Conferencia Especializada Interamericana sobre Derechos Humanos’ (1969) 26  accessed 23 October 2018. 118 See Judge Cançado Trindade’s dissenting opinion in the following cases:  El Amparo v.  Venezuela [1997] Series C No.46, [1997] 1 (Inter-​American Court of Human Rights); Caballero Delgado y Santana v. Colombia [1997] Series C No. 31, [1997] (Inter-​American Court of Human Rights); El Amparo v.  Venezuela [1996] Series C No. 46, [1996] (Inter-​ American Court of Human Rights).

172 Chapter 4 Indeed, the dismissal of the fulfillment of the requirement of the individualization of victims in cases regarding tribal and indigenous peoples is arguable based on an evolutive interpretation to procedural law. Such interpretation has been already applied by the Court with respect to the procedural requirement of exhaustion of domestic remedies.119 In the Advisory Opinion 11/​90, the IACtHR dealt with the issue of whether the indigence of the applicant may justify the failure to fulfill the requirement of exhaustion of domestic remedies. In this regard, the Court had a progressive understanding based on the interpretation of Article 46(2) of the achr in light of Articles 1(1), 24, and 8 thereof. It decided that in some cases an indigent may appeal directly to the Commission in order to protect a right guaranteed in the Convention without first exhausting the applicable domestic remedies. It explained cum grano salis that:120 The final section of Article 1(1) prohibits a state from discriminating on a variety of grounds, among them economic status the meaning of the term discrimination employed by Article 24 must, then, be interpreted by reference to the list enumerated in Article 1(1). If a person who is seeking the protection of the law in order to assert rights which the Convention guarantees finds that his economic status (in this case, his indigence), prevents him from so doing because he cannot afford either the necessary legal counsel or the costs of the proceedings, that person is being discriminated against by reason of his economic status and, hence, is not receiving equal protection before the law. Such interpretation should also be applied to complaints relating to tribal and indigenous peoples. These peoples are often in a similar situation to indigents, i.e. being discriminated by the state. Due to their vulnerable status, they have a difficult time in accessing domestic justice. They cannot identify themselves as citizens of the state where they were born and grew up in. Due to that, by using an evolutive interpretation and interpreting Article 46(b) of the achr in conjunction with Articles 1(1), 24, and 8 thereof, the IACtHR would come to the conclusion that it is necessary to soften the procedural requirement of the individualization of victims and beneficiaries of reparations. In case the Court does not want to dismiss this requirement in complaints concerning tribal and indigenous peoples, it should at least reduce the burden of proof by requiring 119 Advisory Opinion 11/​90 [1990] Series A No. 11, [1990] 1 (Inter-​American Court of Human Rights). 120 ibid para 22.

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the state to identify the victims or enabling alternative means of identifying the individual victims.121 In cases concerning large-​scale human rights violations such as the ones involving indigenous peoples, to ensure the effet utile of the achr, there is a need to soften the admissibility requirements. This is evident in the Court’s jurisprudence with respect to cases concerning non-​democratic regimes and enforced disappearances. As the IACtHR stated in the Velásquez-​Rodríguez case : “However, it must also be borne in mind that the international protection of human rights is founded on the need to protect the victim from the arbitrary exercise of governmental authority.”122 The dismissal of the requirement of individualization of victims and beneficiaries of reparations in complaints concerning tribal and indigenous peoples does not imply a total absence of identification. This analysis suggests that the Court should accept collective complaints submitted by tribal and indigenous peoples through the Commission. Those peoples would not have to identify their individual members. They would be identified as a collective based on a certain criteria that should include self-​identification and be compatible with the adrip. For cases dealing with large-​scale human rights violations, the IACtHR’s jurisprudence has already working criteria.123 Still, it seems that the real reason behind the Court’s reluctance to expand its competence and dismiss the requirement of the individualization of victims lies in the concern about heavily increasing its caseload, especially with collective complaints.124 As demonstrated here, such argument does not have a solid legal basis or legally sound evidence in accordance with the achr. By acting based only on administrative reasons, the Court is effectively failing to fulfill its role of protector of rights and freedoms in the Americas. 121 Cf. Comunidad Moiwana v.  Suriname [2005] Series C No. 124, [2005] (Inter-​American Court of Human Rights) para 178. 122 Velásquez Rodríguez v. Honduras [1987] Series C No. 1, [1987] (Inter-​American Court of Human Rights) para 93. 123 See above in this chapter, 1.2.1.2 Procedural Issues: Legal Capacity. 124 Such argument is common in the criticism against collective complaints in international human rights law. See in this regard:  Anne van Aaken, ‘Making International Human Rights Protection More Effective:  A Rational-​Choice Approach to the Effectiveness of Ius Standi Provisions’ (2005) 16 Preprints of the Max Planck Institute for Research on Collective Goods 1 48  accessed 23 October 2018. The Inter-​American Court would clearly state this concern many years later. In this respect see the concurring opinion of Judge Roberto F. Caldas in: Opinión Consultiva (OC) 22/​16  –​Titularidad de Derechos de las Personas Jurídicas en el Sistema Interamericano de Derechos Humanos [2016] Series A  No. 22, [2016] (Inter-​American Court of Human Rights).

174 Chapter 4 To sum up, it is necessary to point out that the failure to deal with collective complaints comes from a restrictive interpretation of the procedural requirements established in the achr. The iahrs has used an evolutive interpretation of the American Convention to analyze alleged violations of the Convention’s rights. As a consequence, it expanded the normative content of individualistically framed rights and applied them to the situation of groups. Nevertheless, the Court failed to use the same interpretation for procedural requirements. Instead, it used a restrictive interpretation of the achr that constrained collective complaints. The analysis above suggested ways to overcome this issue. It is important to understand that the inadequacy of the iahrs complaint procedure is not inherent. Rather, it is a matter of interpretation by the Inter-​American organs that turn the protection of the Convention’s rights into reality through the development of procedural law. An International Faux Pas: the Requirement of Individualization of Groups The impropriety of procedural rules of complaint mechanisms to deal with collective claims is not exclusive to the iahrs. Rather, it is a general issue in international human rights law, the only exception in this regard being the African System of Human Rights, which was collectively conceived.125 The complaint mechanism of the optional protocol to the iccpr has struggled to deal with collective complaints by indigenous communities. In fact, according to the hrc, the complaint procedure established in the Optional Protocol to the iccpr allows only complaints submitted by individuals.126 In the case of tribal and indigenous communities, their individual members have been submitting complaints on behalf of the group.127 This has been critically evaluated in legal scholarship. Legal scholars criticized the hrc’s restricted interpretation of Article 2 of the Optional Protocol to the iccpr regarding the competence ratione materiae excluding collective claims such as 3.3

125 Patrick Thornberry, Indigenous peoples and human rights (Melland Schill studies in international law, Manchester University Press 2002) 249–​251; Anne van Aaken, ‘Making International Human Rights Protection More Effective: A Rational-​Choice Approach to the Effectiveness of Ius Standi Provisions’ (2005) 16 Preprints of the Max Planck Institute for Research on Collective Goods 1 42–​45  accessed 23 October 2018. 126 Chief Bernard Ominayak and the Lubicon Lake Band v. Canada [1990] CCPR/​C/​38/​D/​167/​ 1984, [1990] (Human Rights Committee) para 32.1. 127 For example see ibid paras 32.1–​32.2.

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self-​determination.128 In addition, the requirement of evidence concerning the individual impact of the collective violation on the victim’s life was considered problematic.129 Without the evidence, petitioners do not have legal standing to complain. In the case of Ángela Poma Poma, the proceedings have taken more than five years because the members of the hrc insisted on having evidence that a specific environmental issue, which affected the whole community, had a direct effect on the complainant’s life.130 Such high burden of proof is inadequate to complaints concerning indigenous peoples. Indigenous communities have a focus on communal life and proving the impact of environmental harm on the life of their individual members is not an easy task, especially for people lacking financial means. With respect to the European Human Rights System, procedural issues are the main obstacles constraining the development of a case law on indigenous issues.131 The terminated echr and the ECtHR have been dealing with controversies similar to those faced by the Inter-​American organs and the hrc. Those issues referred to the legal standing of indigenous communities and their efforts to exhaust domestic remedies.132 Notably, similar to the Inter-​American 128 On the jurisprudence see:  Ángela Poma Poma v.  Peru [2009] CCPR/​C/​95/​D/​1457/​2006, [2009] 1 (Human Rights Committee); Apirana Mahuika et  al. v.  New Zealand [2000] CCPR/​C/​70/​D/​547/​1993, [2000] (Human Rights Committee); Chief Bernard Ominayak and the Lubicon Lake Band v.  Canada [1990] CCPR/​C/​38/​D/​167/​1984, [1990] (Human Rights Committee). For the criticism in legal scholarship see: Manfred Nowak (ed), U.N. Covenant on Civil and Political Rights:  CCPR Commentary (N.P. Engel 2005)  19; Yogesh Tyagi, The UN Human Rights Committee: Practice and Procedure (Cambridge University Press 2011) 598–​599. 129 Katja Göcke, ‘The Case of Ángela Poma Poma v.  Peru before the Human Rights Committee: The Concept of Free Prior and Informed Consent and the Application of the International Covenant on Civil and Political Rights to the Protection and Promotion of Indigenous Peoples’ Rights’ (2010) 14 Max Planck Yearbook of United Nations Law 337 356. 130 ibid. 131 Katja Göcke, Indigene Landrechte im internationalen Vergleich: Eine rechtsvergleichende Studie der Anerkennung indigener Landrechte in Kanada, den Vereinigten Staaten von Amerika, Neuseeland, Australien, Russland und Dänemark/​Grönland  =  Indigenous land rights in international comparison: a comparative study on the recognition of indigenous land rights in Canada, the United States of America, New Zealand, Australia, Russia and Denmark/​Greenland (Beiträge zum ausländischen öffentlichen Recht und Völkerrecht vol 253, Springer 2016) 595; Timo Koivurova, ‘Jurisprudence of the European Court of Human Rights Regarding Indigenous Peoples: Retrospect and Prospects’ (2011) 18 International Journal on Minority and Group Rights 1 36–​37; Péter Kovács, ‘Indigenous Issues Under the European Convention on Human Rights, Reflected in an Inter-​American Mirror’ (2016) 48 The George Washington International Law Review 781-​806 805. 132 Chagos Islanders v. the United Kingdom [2012] Application no. 35622/​04, [2012] 1 (European Court of Human Rights) paras 77–​83; Johtti Sapmelaccat Ry and Others v. Finland [2005]

176 Chapter 4 system, the ECtHR has also softened admissibility requirements in case of members of vulnerable groups.133 For that matter, the ECtHR has created the concept of “potential victims.”134 In this context, the victim requirement appears as a common controversial issue in complaint mechanisms of international human rights bodies. Such requirement implies that the petitioner must be personally affected by the alleged violation.135 As a general rule, monitoring bodies evaluate the fulfillment of this requirement at the admissibility stage. Consequently, such requirement has a gate-​keeping function. At first sight, the iahrs does not comprise such requirement in accordance with Article 44 of the American Convention. However, the victim requirement is upheld in the Commission’s and Court’s rules of procedure concerning the requirements for the consideration of petitions. In the case of tribal and indigenous peoples, such requirement produced the necessity for the submission of a list of their individual members by the petitioners.136 This list was essential in order for the Commission to comply with the Court’s requirement of individualization of injured parties at the reparations stage. The victim requirement is a heavy burden for the victims in collective complaints before international judicial and quasi-​judicial bodies.137

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Application No. 42969/​98, [2005] 1 (European Court of Human Rights) 12; Könkämä and 38 Other Saami Villages v.  Sweden [1996] Application No. 27033/​95, [1996] 1 (European Commission of Human Rights) 7. Centre for Legal Resources on Behalf of Valentin Campeanu v. Romania [2014] Application No. 47848/​08, [2014] (European Court of Human Rights) paras 104–​114; Dudgeon v. the United Kingdom (1981) Application No. 7525/​76 (European Court of Human Rights) paras 37–​41. Practical Guide on Admissibility Criteria (2019) (European Court of Human Rights) para 30. Kersten Rogge, ‘The “victim” requirement in Article 25 of the European Convention on Human Rights’ in Franz Matscher and Herbert Petzold (eds), Protecting Human Rights: The European Dimension: Studies in Honour of Gérard J. Wiarda (Carl Heymanns Verlag KG 1988) 539. Report No. 09/​06 –​The Twelve Saramaka Clans (Los) v. Suriname [2006] 12.338, [2006] (Inter-​ American Commission on Human Rights); Report No. 12/​03 –​Sawhoyamaxa Indigenous Community of the Enxet People v. Paraguay [2003] Petition 322/​01, [2003] (Inter-​American Commission on Human Rights); Report No. 11/​03 –​Xákmok Kásek Indigenous Community v.  Paraguay (2003) Petition 0326/​01 (Inter-​American Commission on Human Rights); Report No. 2/​02 –​Yakye Axa Indigenous Community of the Enxet-​Lengua People v. Paraguay (2002) Petititon 12.313 (Inter-​American Commission on Human Rights). For a critical assessment in this regard see:  Anne van Aaken, ‘Making International Human Rights Protection More Effective:  A Rational-​ Choice Approach to the Effectiveness of Ius Standi Provisions’ (2005) 16 Preprints of the Max Planck Institute for Research on Collective Goods 1  accessed 23 October 2018.

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Notably, this analysis shows that human rights monitoring bodies deal with common procedural problems in their complaint procedures. Pentassuglia points out to the articulation of the normative content of rights of indigenous peoples through these bodies.138 Accordingly, these bodies have a complementary relationship. In dealing with indigenous complaints, they interpret general human rights treaties in light of specialized standards on indigenous rights. In this way, they fulfill an important gap left by such standards, which lack accountability mechanisms.139 As a consequence, monitoring bodies have been building an integrated international corpus iuris on indigenous issues. The present research corroborates Pentassuglia’s argument. Also, in an innovative step, it reveals that the iachr, the IACtHR, the echr, the ECtHR, and the hrc face similar procedural obstacles.140 The procedural problems faced by judicial and quasi-​judicial human rights bodies when dealing with collective indigenous complaints have been barely addressed in legal scholarship. Instead, the debate so far has focused on substantive rights and the dichotomy between the specific canon of indigenous rights and general human rights applicable to the situation of tribal and indigenous peoples.141 In this way, procedural issues were set aside, deemed to 138 Gaetano Pentassuglia, ‘Towards a Jurisprudential Articulation of Indigenous Land Rights’ (2011) 22(1) European Journal of International Law 165; Gaetano Pentassuglia, Minority groups and Judicial Discourse in International Law:  A Comparative Perspective (International studies in human rights vol 102, Martinus Nijhoff Publishers 2009). 139 Neither undrip nor ilo Convention 169 have monitoring bodies to receive complaints concerning the violation of their provisions in individual cases. A  monitoring body is responsible for supervising the implementation of the ilo Conventions. Yet, this body does not have the mandate to receive complaints by indigenous peoples and their organizations. For more information see:  S.J Anaya, Indigenous peoples in international law (2. ed. Oxford University Press 2004) 226–​228; International Labour Organization, ‘ILO Supervisory System/​Mechanism’ (2017) accessed 23 October 2018. 140 At the beginning of the 2000s, Thornberry pointed out that the hrc and the European Human Rights System faced a common procedural struggle regarding the victim requirement. In this regard see:  Patrick Thornberry, Indigenous peoples and human rights (Melland Schill studies in international law, Manchester University Press 2002) 121–​122. The possibility that other United Nations monitoring bodies rather than the hrc face this same problem is elucidated here: Anne van Aaken, ‘Making International Human Rights Protection More Effective:  A Rational-​Choice Approach to the Effectiveness of Ius Standi Provisions’ (2005) 16 Preprints of the Max Planck Institute for Research on Collective Goods 1 45  accessed 23 October 2018. 141 Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart Publishing 2011); S. J Anaya, International human rights

178 Chapter 4 be accessories. This analysis demonstrates the need of a deep engagement in legal scholarship with procedural issues in human rights complaints. The Inter-​American organs have easily developed in their jurisprudence substantial collective aspects of property rights. In this regard, ilo Convention 169 and undrip were extremely helpful, but not enough. The real problem were related to the locus standi in judicio of tribal and indigenous peoples and the requirement of individualization of their members. Who should exhaust domestic legal remedies? The community or its members? Who should represent tribal and indigenous peoples before human rights bodies? How can the legitimacy of this representation be proved in a cultural sensitive way? How can communal damage be proved in individual claims? International legal instruments offer no guidance to these questions and so international human rights bodies struggle to respond to them. Procedural issues are also crucial. They constrain the capacity of complaint mechanisms to engage in a dialogue with tribal and indigenous peoples’ collective complaints. As Thornberry ­explains: The significance of locus standi in the human rights canon for indigenous groups goes beyond the particular case. The ability of human rights and international law to accommodate the indigenous is a forerunner of the bigger battles about what kind of human rights are appropriate for a world integrating and diversifying at the same time, and how nations address and respect the ‘others’ of their imagination.142 The iahrs has been considered to be very progressive in dealing with tribal and indigenous complaints. Still, its approach was not enough to effectively answer to such complaints until 2010. The iahrs has struggled for more than a decade with procedural issues in collective complaints. Until the Xákmok Kásek case these issues were a burning potato in the hands of the Inter-​American organs. This was the ultimate cause that provoked the third wave of jurisprudential developments, which is the topic of the following chapter. and indigenous peoples (Elective series, Wolters Kluwer Law & Business 2009); Jérémie Gilbert, Indigenous peoples’ land rights under international law:  From victims to actors (Transnational Publishers 2006). 142 Patrick Thornberry, Indigenous peoples and human rights (Melland Schill studies in international law, Manchester University Press 2002)  428–​429. Similarly see:  Hersch Lauterpacht, International Law and Human Rights (Stevens & Sons Limited 1950) 54.

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Cases and Reports

Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria [2001] 155/​96, [2001] (African Commission on Human and Peoples’ Rights). Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) [2009] [2009] 1 (African Commission on Human and Peoples’ Rights). African Commission on Human and Peoples’ Rights v. Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights). G. and E. v. Norway [1983] Application 9278/​81 & 9415/​81, [1983] 30–​38 (European Commission of Human Rights). Könkämä and 38 Other Saami Villages v. Sweden [1996] Application No. 27033/​95, [1996] 1 (European Commission of Human Rights). Dudgeon v. the United Kingdom [1981] Application No. 7525/​76 (European Court of Human Rights). Johtti Sapmelaccat Ry and Others v. Finland [2005] Application No. 42969/​98, [2005] 1 (European Court of Human Rights). Chagos Islanders v. the United Kingdom [2012] Application no. 35622/​04, [2012] 1 (European Court of Human Rights). Centre for Legal Resources on Behalf of Valentin Campeanu v. Romania [2014] Application No. 47848/​08, [2014] (European Court of Human Rights). Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights –​Protection of Property [2018] [2019] (European Court of Human Rights). Practical Guide on Admissibility Criteria (2019) (European Court of Human Rights). Chief Bernard Ominayak and the Lubicon Lake Band v. Canada [1990] CCPR/​C/​38/​D/​ 167/​1984, [1990] (Human Rights Committee). General Comment No. 23:  The Rights of Minorities (Art. 27) [1994] CCPR/​C/​21/​Rev.1/​ Add.5, [1994] (Human Rights Committee). Länsman et al. v. Finland [1994] UN Doc CCPR/​C/​52/​D/​511/​1992, [1994] (Human Rights Committee). Apirana Mahuika et al. v. New Zealand [2000] CCPR/​C/​70/​D/​547/​1993, [2000] (Human Rights Committee). Ángela Poma Poma v. Peru [2009] CCPR/​C/​95/​D/​1457/​2006, [2009] 1 (Human Rights Committee). Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, James Anaya [2009] [2009] 1 (Human Rights Council). Jehovah’s Witnesses –​ Argentina (1978) 2137 (Inter-​American Commission on Human Rights).

180 Chapter 4 ABC Color –​Paraguay [1984] 9250, [1984] (Inter-​American Commission on Human Rights). Report No. 2/​02 –​Yakye Axa Indigenous Community of the Enxet-​Lengua People v. Paraguay (2002) Petition 12.313 (Inter-​American Commission on Human Rights). Report No. 11/​03  –​Xákmok Kásek Indigenous Community v.  Paraguay (2003) Petition 0326/​01 (Inter-​American Commission on Human Rights). Report No. 12/​03 –​Sawhoyamaxa Indigenous Community of the Enxet People v. Paraguay [2003] Petition 322/​01, [2003] (Inter-​American Commission on Human Rights). Report No. 09/​06 –​The Twelve Saramaka Clans (Los) v. Suriname [2006] 12.338, [2006] (Inter-​American Commission on Human Rights). Twelve Saramaka Clans v.  the Republic of Suriname [2006] 12.338, [2006] (Inter-​ American Commission on Human Rights). Wazen Eduards et al. (Twelve Saramaka Clans) [2007] 12.338, [2007] 1 (Inter-​American Commission on Human Rights). Xákmok Kásek Indigenous Community of the Enxet-​Lengua People and Its Members v. the Republic of Paraguay [2009] 12.420, [2009] 1 (Inter-​American Commission on Human Rights). Velásquez Rodríguez v. Honduras [1987] Series C No. 1, [1987] (Inter-​American Court of Human Rights). Opinión Consultiva 10/​89 [1989] Series A No. 10, [1989] 1 (Inter-​American Court of Human Rights). Advisory Opinion 11/​90 [1990] Series A No. 11, [1990] 1 (Inter-​American Court of Human Rights). Advisory Opinion 14/​94 [1994] [1994] (Inter-​American Court of Human Rights). El Amparo v. Venezuela [1996] Series C No. 46, [1996] (Inter-​American Court of Human Rights). Caballero Delgado y Santana v. Colombia [1997] Series C No. 31, [1997] (Inter-​American Court of Human Rights). El Amparo v. Venezuela [1997] Series C No.46, [1997] 1 (Inter-​American Court of Human Rights). Ivcher-​Bronstein v. Peru [2001] Series C No. 74, [2001] 1 (Inter-​American Court of Human Rights). Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua [2001] Series C No. 79, [2001] 1 (Inter-​American Court of Human Rights). Cantos v. Argentina [2001] Series C No. 85, [2001] 1 (Inter-​American Court of Human Rights). Opinión Consultiva 17/​02  –​Juridical Condition and Human Rights of the Child [2002] Series A No. 17, [2002] (Inter-​American Court of Human Rights). Comunidad Moiwana v.  Suriname [2005] Series C No. 124, [2005] (Inter-​American Court of Human Rights).

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Comunidad Indígena Yakye Axa v.  Paraguay [2005] Series C No. 125, [2005] (Inter-​ American Court of Human Rights). Mapiripán Massacre v. Colombia (2005) Series C No. 134 (Inter-​American Court of Human Rights). Palamara-​Iribarne v. Chile [2005] Series C No. 135, [2005] (Inter-​American Court of Human Rights). Comunidad Indígena Sawhoyamaxa v. Paraguay [2006] Series C No. 146, [2006] (Inter-​ American Court of Human Rights). Ituango Massacres v. Colombia (2006) Series C No. 148 (Inter-​American Court of Human Rights). Claude Reyes et al. v. Chile (2006) Series C No. 151 (Inter-​American Court of Human Rights). Twelve Saramaka Clans v.  Suriname (2007) Affidavit of Expert Witness  –​Professor Dr. Martin Scheinin 1 (Inter-​American Court of Human Rights). Chaparro Álvarez and Lapo Íniguez v. Ecuador [2007] Series C No. 170, [2007] (Inter-​ American Court of Human Rights). Saramaka People v. Suriname [2007] Series C No. 172, [2007] 1 (Inter-​American Court of Human Rights). Pueblo Saramaka v. Suriname [2008] Series C No. 185, [2008] 1 (Inter-​American Court of Human Rights). Comunidad Indígena Xákmok Kásek v. Paraguay [2010] Series C No. 214, [2010] 1 (Inter-​ American Court of Human Rights). Pueblo Indígena Kichwa de Sarayaku v. Ecuador [2012] Series C No. 245, [2012] 1 (Inter-​ American Court of Human Rights). Opinión Consultiva 22/​16  –​Titularidad de Derechos de las Personas Jurídicas en el Sistema Interamericano de Derechos Humanos [2016] Series A No. 22, [2016] (Inter-​ American Court of Human Rights). Legality of the Threat or Use of Nuclear Weapons [1996] [1996] ICJ Reports 226 (International Court of Justice).



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Descola P, In the society of nature: A Native Ecology in Amazonia (Cambridge studies in social and cultural anthropology vol 93, Digital printing, Cambridge University Press 2000). Doyle C and Gilbert J, ‘Indigenous Peoples and Globalization:  From “Development Agression” to “Self-​Determined Development” ’ (2009) 8 European Yearbook of Minority Issues 219. Dulitzky A, ‘The Relationship between the African Commission and the African Court: Lessons from the Inter-​American System’ (2005) 15 Interights Bulletin 10. Dulitzky A, ‘When Afro-​Descendants Became “Tribal Peoples”:  The Inter-​American Human Rights System and Rural Black Communities’ [2010] UCLA Journal of International Law and Foreign Affairs 29. Engle K, ‘On Fragile Architecture:  The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights’ (2011) 22(1) The European Journal of International Law 141. Giffoni JF, ‘A aplicação das 100 regras de Brasília como fundamento da interpretação para a proteção dos direitos indígenas:  A defensoria pública e a Convenção 169 da OIT’ (Curitiba, Paraná, Brazil). accessed 10 June 2020. Gilbert J, Indigenous peoples’ land rights under international law: From victims to actors (Transnational Publishers 2006). Göcke K, ‘The Case of Ángela Poma Poma v. Peru before the Human Rights Committee: The Concept of Free Prior and Informed Consent and the Application of the International Covenant on Civil and Political Rights to the Protection and Promotion of Indigenous Peoples’ Rights’ (2010) 14 Max Planck Yearbook of United Nations Law 337. Göcke K, Indigene Landrechte im internationalen Vergleich:  Eine rechtsvergleichende Studie der Anerkennung indigener Landrechte in Kanada, den Vereinigten Staaten von Amerika, Neuseeland, Australien, Russland und Dänemark/​Grönland  =  Indigenous land rights in international comparison: a comparative study on the recognition of indigenous land rights in Canada, the United States of America, New Zealand, Australia, Russia and Denmark/​Greenland (Beiträge zum ausländischen öffentlichen Recht und Völkerrecht vol 253, Springer 2016). Gonza A, ‘Artículo 21 –​Derecho a la propiedad privada’ in Christian Steiner and Patricia Uribe (eds), Convención Americana sobre Derechos Humanos: Comentario (Fundación Konrad Adenauer Stiftung 2014). González F, ‘The Experience of the Inter-​American Human Rights System’ (2009) 40(1) Victoria University of Wellington Law Review 103–​125. Haeck Y, Ruiz-​Chiriboga O and Burbano-​Herrera C (eds), The Inter-​American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015).

184 Chapter 4 Hohmann J and Weller M (eds), The UN Declaration on the Rights of Indigenous Peoples:  A Commentary (Oxford commentaries on international law, 1st. ed. Oxford University Press 2018). International Labour Organization, ‘ILO Supervisory System/​ Mechanism’ (2017) accessed 23 October 2018. International Law Association, The Hague Conference (2010): Rights of Indigenous Peoples (2010). Kingsbury B, ‘Indigenous Peoples’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018). Koivurova T, ‘Jurisprudence of the European Court of Human Rights Regarding Indigenous Peoples: Retrospect and Prospects’ (2011) 18 International Journal on Minority and Group Rights 1. Kovács P, ‘Indigenous Issues Under the European Convention on Human Rights, Reflected in an Inter-​American Mirror’ (2016) 48 The George Washington International Law Review 781–​806. Kriebaum U and Reinisch A, ‘International Protection of the Right to Property’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018). Lauterpacht H, International Law and Human Rights (Stevens & Sons Limited 1950). Lixinski L, ‘Treaty Interpretation by the Inter-​American Court of Human Rights: Expansionism at the Service of the Unity of International Law’ (2010) 21(3) European Journal of International Law 585. Londoño Toro B and Carrillo AJ (eds), Acciones de grupo y de clase en casos de graves vulneraciones a derechos humanos (Universidad del Rosario 2010). Malarino E, ‘Judicial Activism, Punitivism and Supranationalisation: Illiberal and Antidemocratic Tendencies of the Inter-​American Court of Human Rights’ (2012) 12 International Criminal Law Review 665. Martin C and Rodríguez Pinzón D, ‘Strengthening or Straining the Inter-​American Human Rights System’ in Yves Haeck, Oswaldo Ruiz-​Chiriboga and Clara Burbano-​ Herrera (eds), The Inter-​American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015). Matscher F and Petzold H (eds), Protecting Human Rights:  The European Dimension: Studies in Honour of Gérard J. Wiarda (Carl Heymanns Verlag KG 1988). Medina Quiroga C and Nash Rojas C, Sistema Interamericano de Derechos Humanos:  Introducción a sus Mecanismos de Protección (Centro de Derechos Humanos 2011). Neuman GL, ‘Import, Export, and Regional Consent in the Inter-​American Court of Human Rights’ (2008) 19(1) The European Journal of International Law 101.

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Wiessner S, ‘Democratizing International Arbitration?:  Mass Claims Proceedings in Abaclat v. Argentina’ (2014) 1 Journal of International and Comparative Law 55. Wolfrum R (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018).

chapter 5

Third Wave: Indigenous Peoples as Holders of Land Rights, 2012–​2019 In the previous chapters, this book demonstrated that the legal capacity under the iahrs complaint procedure was restricted to individuals. In chapter three, the analysis of the Awas Tingni case elucidated this argument. In chapter four, in light of the evaluation of the case law, it become evident the consolidated legal standing of individuals. Conversely, it was obvious that tribal and indigenous groups were progressively acquiring a more prominent role. This development culminated in the decision of Kichwa Indigenous People of Sarayaku v.  Ecuador, which is the main judgment for this chapter. This chapter elucidates the third wave of jurisprudence in the iahrs. In this wave, tribal and indigenous peoples acquired a collective legal capacity. In parallel, following the first and second waves, the individual legal capacity of members of tribal and indigenous peoples continued to develop. As a result, the third wave characterizes itself by the dual dimension –​individual and collective –​of the legal capacity of tribal and indigenous peoples. In order to explain this argument, this chapter is divided into three sections. Section one evaluates the case of Kichwa Indigenous People of Sarayaku v. Ecuador (2012). Next, section two assesses the decisions after this case that followed a similar path: Afro-​Descendant Communities Displaced from the Cacarica River Basin (Operation Genesis) v. Colombia (2013), Kuna of Madungandí and Emberá of Bayano v. Panama (2014), Garífuna Community of Punta Piedra v. Honduras (2015), Garífuna Community of Triunfo de la Cruz v. Honduras (2015), Kaliña and Lokono Peoples v. Suriname (2015), and Xucuru Indigenous People and its Members v. Brazil (2018). To conclude, section three presents interim conclusions that summarize the findings of this chapter and their relationship with the previous chapters. 1

Recognizing Collective Rights Holders

This section relates to the summary and evaluation of the case Kichwa Indigenous People of Sarayaku v. Ecuador (2012). The first part of this section explores all the different parts of this case, i.e. the Commission’s admissibility decision,

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the petition to the Court, the Commission’s final written arguments, and the Court’s judgment. The second part of this section comprises a critical assessment of this case in light of the Commission’s and the Court’s work. 1.1 Kichwa of Sarayaku Case, 2012 This section summarizes the procedural and substantive aspects of the case Kichwa Indigenous Peoples of Sarayaku v. Ecuador (2012). It includes reference to all written parts of the proceedings in this regard. Subsection one presents a summary of the facts. Next, subsection two concerns the complaint by the Commission to the Court with a focus on the alleged violations to Article 21 achr. Then, subsection three exposes the final written arguments of the Commission. Finally, subsection four displays the main aspects of the Court’s decision in this case, especially regarding property claims. 1.1.1 Summary of the Factual Background in Ecuador In Ecuador, indigenous peoples define themselves as indigenous nationalities.1 The Napo-​Kichwa People and the Kichwa People of Pastaza constitute the Kichwa nationality. Among the most heavily populated Kichwa communities, there is the Sarayaku who has a population of 1,235 inhabitants. Five communities compose the Kichwa of Sarayaku People: Sarayaku Center, Cali Cali, Sarayakillo, Shiwacocha, and Chontayacu. These communities are not independent. Rather, they are part of the Canelos-​Kichwa cultural group, to which the Kichwa People of Sarayaku belongs. The ethnic identification of the Kichwa Indigenous People of Sarayaku was not a controversial issue. The Inter-​American organs relied on the legal-​ anthropological report by flacso to define the victims in communal terms. They highlighted the self-​identification of the Sarayaku people as an indigenous group that lives in the tropical forest of the Ecuadorian Amazon Basin. In addition, they defined the community in terms of economic, socio-​political, and religious aspects. Accordingly, the community’s economy follows family-​ based subsistence agriculture, hunting, gathering, and fishing. Imported food products are responsible for only 10% of their subsistence supplies. Besides providing them with means of subsistence, the land has also a spiritual meaning for the Sarayaku people. 1 The summary of the facts is based on:  (1) Pueblo Indígena Kichwa de Sarayaku v. Ecuador [2012] Series C No. 245, [2012] 1 (Inter-​American Court of Human Rights) and (2)  Kichwa People of Sarayaku and its members v. Ecuador [2010] 12.465, [2010] (Inter-​American Commission on Human Rights). Both documents agree on the proven facts with exception of one episode, which is explicitly referred to below.

190 Chapter 5 The socio-​political aspects of the Sarayaku people are unique. It has an own traditional community assembly in charge of deciding internal issues of special importance. The social structure of the community contrasts with the organization of the rest of the society. The Organization of Kichwa People of Sarayaku (hereinafter referred to as “okps”) represents the community in matters concerning external affairs. The okps has a statute registered with the Ministry of Social Welfare. The Sarayaku territory is considered one of the oldest settlements in the Amazonian province of Pastaza. It locates itself 400 meters above sea level. In 1992, the Institute of Agrarian Reform and Settlement (hereinafter referred to as “ierac”) partially recognized Sarayaku land rights together with the rights of other different indigenous communities living along the banks of the Bobonaza River. The state identified this area of around 222ha as Block no. 9 and issued the respective property title. Accordingly, the Sarayaku people shall take care of its territory and may not sell it. Subsoil natural resources remain as state property. On July 26, 1996, the Empresa Estatal de Petróleos del Ecuador (PETROECUADOR), and the consortium formed by the Compania General de Combustibles S.A. (cgc) and the Petrolera Argentina San Jorge S.A. (Oil Company) signed a contract with the state for oil exploration and exploitation concerning Block no. 23. By that time, oil production and exportation was a key economic activity in Ecuador. Almost forty percent of Ecuadorian’s national budget depended on it. Sixty-​five percent of the oil exploitation area in the signed contract referred to the claimed Sarayaku ancestral territory. This contract was valid for four years. It contained several obligations to the oil company and to the state. Among the most important ones, there was the obligation that the oil company had to prepare an environmental impact assessment (henceforth eia), and that it had to obtain any permit needed to access the area. The contract set down also that the eia had to be specific and address social, economic, and cultural aspects of affected communities. Lastly, for both parties, there was an obligation to apply to the respective Ministry for necessary expropriation of any kind as needed to perform the contract. Ecuador’s legal framework had been significantly evolved during the Sarayaku case. It was of great significance when in 1998 Ecuador ratified ilo Convention 169 and adopted a new Constitution that recognized the collective rights of indigenous and Afro-​Ecuadorian Peoples. In 2000 and 2001 the state adopted several domestic laws concerning citizen participation in environmental matters. The oil company has attempted several times to obtain the Sarayaku’s consent to use the indigenous territory. The oil company tried to obtain the

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indigenous peoples’ consent by using many strategies such as:  (1) offering money compensation to both individuals and group; (2) bringing a medical team to take care of a number of communities that are part of the Sarayaku people (however, in order to receive medical care the patients had to sign a list, which the oil company used later on to claim the community’s support regarding the continuation of oil exploitation); (3) it contacted members of the community, circumventing proper indigenous organizational levels. However, all these strategies did not work. At its General Assembly, the Sarayaku people collectively decided to decline permission for oil exploitation in its territory. Despite the absence of consent by the Sarayaku people, seismic prospecting activities started in the indigenous territory. A consulting company did the eia, which the Ministry of Energy and Mines approved of in 1997. Shortly after, in April 1999, the state suspended prospecting activities due to the protests by indigenous organizations. In November 2002, the oil company was about to reenter Sarayaku territory to resume the seismic prospecting phase. The Sarayaku people had sent a communication expressing its opposition to the entry of the oil company onto its ancestral territory. Still, the Ministry of Energy and Mines gave its approval to the documentation presented by the oil company. Among the documents, the oil company submitted five agreements with indigenous communities of the Sarayaku people that referred to financial contributions for the development of community projects. The exploration and exploitation activities were about to proceed. As a consequence, the askp declared a state of emergency to the community. It suspended all economic, administrative, and school activities for several months to defend the territory and prevent the oil company from entering in it. In response, the state ordered a military occupation on Sarayaku territory to guarantee the recommencement of activities by the oil company. In October 2002, the oil company reinitiated its activities. With the continuation of the seismic activities, the hostilities among the Sarayaku members, the employees of the oil company, and other indigenous communities increased. Since some indigenous communities within the Sarayaku territory were in favor of the oil exploitation, hostilities between them and the rest of the Sarayaku people continued. These hostilities became a major conflict that resulted in a number of injured members of the Kichwa People of Sarayaku. The victims claimed also that some members of the Sarayaku people suffered from arbitrary detention. Within time, the impact of the oil company’s activities became even stronger on the Sarayaku’s territory. The oil company destroyed water resources needed to provide drinking water for the community, cut down the forest that

192 Chapter 5 had a cultural and environmental value, and laid seismic lines that passed near to sacred sites. The Organization of Indigenous Peoples of Pastaza ( “opip”) and the okps raised objections to the methods used by the oil company to obtain their consent. They filed a petition in this regard before the Office of the Ombudsman for the Province of Pastaza. The Office of the Ombudsman acknowledged that the Minister of Energy and Mines and the oil company had violated domestic and international laws. Besides that, the Human Rights Committee of the Ecuadorian Congress visited the area and concluded that both the Ministries of the Environment and of Energy and Mines violated the Ecuadorian Constitution by failing to consult with the community. This Committee condemned also the oil company’s strategy concerning the obtainment of consent. Furthermore, the opip lodged an amparo action with the First Civil Court of Pastaza against the oil company. Allegedly, the oil company’s negotiations with the communities of the Sarayaku people to obtain consent had generated a number of internal disputes. It deteriorated the indigenous communal organization. In response, the Judge issued precautionary measures suspending any activity by the oil company that would affect or threaten the rights of indigenous peoples. As a consequence of the indigenous protests, the oil company’s activities were suspended. On this issue, there are controversial versions by the Commission about the subject and reason for this suspension. On the one hand, the Commission’s complaint states that the oil company declared bankruptcy and suspended the activities once and for all.2 On the other hand, the Commission claims that the Management Board of PETROECUADOR issued a suspension of the activities in Blocks 23 and 24.3 Put together, these statements of facts in the Commission’s complaint are contradictory. For the Inter-​American Court, it was a proven fact that in February 2003 the oil company declared a situation of “force majeure” and suspended seismic activities. According to the Inter-​American organs, this suspension was in place until May 2009. By that time, PETROECUADOR began negotiations with the cgc to terminate the contract in question. On November 19, 2010, PETROECUADOR and the cgc terminated the contract for the exploration and exploitation of crude oil in Block no. 23. Despite its request, the Sarayaku people were not informed of the terms of the contract’s termination. 2 Kichwa People of Sarayaku and its members v. Ecuador [2010] 12.465, [2010] (Inter-​American Commission on Human Rights) para 78. 3 ibid para 98.

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By the time of the IACtHR’s judgment, dangerous environmental damages remained on Sarayaku territory. The state removed some of the pentolite in the territory, however some explosives left by cgc still remained. The state claimed that these explosives did not pose a danger to the community. 1.1.2 The Commission’s Complaint to the Court As a preliminary remark, it is important to remember that the Commission submitted a complaint to the Court with allegations concerning the violation of several provisions of the American Convention.4 Due to the scope of the present analysis, the summary of claimed violations concerns only the right to property. In its petition, the Commission claimed that the Ecuadorian legal framework protects the collective rights of Afro-​Ecuadorians and indigenous peoples, including the right to property. Accordingly, the Sarayaku people possessed its ancestral territory since time immemorial. The state has acknowledged this fact with the 1992 land grant to the benefit of the Sarayaku people. The Commission contended that Ecuador had an obligation to adopt special measures to guarantee the effective enjoyment of indigenous peoples’ human rights and fundamental freedoms by indigenous peoples. In case of conflict between indigenous communal property and individual property, the Commission referred to the jurisprudence of the Court that established criteria to strike a balance between interests of the community and of individuals. In this context, the Commission recalled the state’s obligation to obtain consent in case of large-​scale projects impacting on tribal and indigenous lands. The Commission contended that the state violated Article 21 of the American Convention to the detriment of the indigenous people of Sarayaku and its members. The imposed restrictions by the state of the Sarayaku’s property rights were not in accordance with the Court’s established jurisprudence. The Commission drew on the jurisprudence of the iahrs regarding consultation. It argued that the iahrs jurisprudence establishes the state’s obligation to prior consultation with indigenous peoples in state decisions that affect their territory. Accordingly, the Commission stated some measures that the state had to implement to comply with its obligations:  (1) to guarantee that the communities affected by state decisions have information about the activities that may affect them; (2) to guarantee that the affected peoples may participate in 4 This part refers to the complaint by the Inter-​American Commission in the case Kichwa Indigenous Peoples of Sarayaku v. Ecuador. Free translation by the author from the original complaint in Spanish. In this regard see: Pueblo Indígena Kichwa de Sarayaku y sus miembros v. Ecuador [2010] 12.465, [2010] 1 (Inter-​American Commission on Human Rights).

194 Chapter 5 the adoption of the decisions in this regard; (3) to guarantee legal remedies to the affected communities in this regard. Thus, by the time of signing the contract with the oil company, the state had to comply with such obligations. The Commission alleged that it had been applying these requirements concerning property rights over time in several cases, including in cases related to the grant of concessions for exploiting natural resources within indigenous lands. During its 1995 country visit, the iachr informed Ecuador about such obligations. The state had to guarantee indigenous participation in all steps of the project impacting on indigenous lands from the project’s design until its evaluation. As an alternative claim, the Commission asserted that Ecuador had at the very least an obligation to consult with indigenous peoples before 2002 when the oil company resumed its activities on Sarayaku territory. Domestic and international laws ratified by Ecuador that support the right of indigenous peoples to be consulted entered into force in 1998. In 2002, by the time of the approval of the eia, Ecuador had the obligation to obtain the free, prior, and informed consent by the Sarayaku people. The Inter-​American Commission defined in detail the scope and content of prior consultation. The Commission distinguished the obligation to consult from the right of indigenous peoples to access information. This right is related to the state’s obligation to provide individuals with access to information. In other words, this duty referred to the obligation of providing transparency concerning public administration, and of providing ex officio information required by the public. In addition, the Commission sustained that the state had the obligation to provide information to indigenous peoples about all possible affectations of their territories. According to the iachr, in cases concerning tribal and indigenous peoples, the state’s obligation to provide information relates to its obligation to consult. The state should provide information regarding: (1) the nature and impact of external intervention on goods and resources belonging to the communal property; (2) the process of consultation that it is going to conduct and the related justification. Only with this information, the community’s will is regarded as free and informed, complying thus with the requirements of Article 21 of the achr. Besides that, the Commission argued that the means of providing information must fulfill several requirements. First, it has to be clear and accessible. Depending on the concrete case, the state must provide a translator to translate the information into indigenous languages. Second, the information has to be proper and complete so that the community may build its will. This information should refer to the project that the state aims to develop on indigenous

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lands. Third, the state has to provide the information in a timely manner in view of the indigenous decision-​making process. The legal basis for such requirements regarding the state’s obligation to consult is found in different legal instruments of international and domestic law. Furthermore, the state must provide the community with information about the reasons why its arguments against the project were eventually overridden and about the reparations that would be offered in case of damages. In this regard, the burden of proof lies with the state. According to the Commission in the Sarayaku case, the state should have complied with the requirements related to consultation. In the present case, the Ecuadorian state failed. It did not comply with the requirements by the time of signing the contract nor by the time of approving the eia. Moreover, the Commission’s petition advocates that the right of indigenous peoples to take part in the decisions affecting them also relates to Article 23 of the American Convention. The consultation is a way to develop the political relationship between the state and indigenous peoples in accordance with ilo Convention 169 and the undrip. The specific consultation procedure depends on the customs of each community. In the present case, the institution in charge of the political participation of the Sarayaku within the national society was the community assembly. Thus, by negotiating with individual members of the Sarayaku people, the state had violated its obligation to consult with this people in accordance with its communal structure. Allegedly, the state has also violated the right of the Sarayaku people to conserve, practice, and spread their beliefs pursuant to Article 13 of the American Convention. This violation is a result of the deforestation and destruction of the sacred areas of Sarayaku territory. Finally, the Commission claimed the violation of Article 21 of the achr to the detriment of the Indigenous People of Sarayaku and its members. In this regard, there is a small inconsistency in the Commission’s report. In the report’s heading, the Commission referred to the violation of Articles 21, 13, 23 in relation to Article 1(1) of the achr. At the end of its analysis concerning violations of Article 21 of the American Convention, the Commission stated the violation of Article 21 in relation to Articles 13, 23 and Article 1(1) of the American Convention. The Commission did not provide an explanation regarding the difference between these allegations. At the last part of its complaint, the Commission alluded to the reparations owed by the state in favor of the Sarayaku People. It highlighted that the claimed reparations should only be used as a general guideline for the Court. The victims and their representatives should be the true entities responsible for defining the specific reparations.

196 Chapter 5 Regarding the identification of the victims, the Commission claimed that the Court should recognize the violations to the detriment of the Sarayaku people and its members. The Court should also consider issuing the reparations in a collective way and in accordance with the cosmology, spiritual elements, and social structure of the community. The Commission argued for reparations as restitution in integrum. If that was not possible, it required the payment of reparations as a compensation for the damages. It divided the reparation measures into four: restitution, reparation, rehabilitation, and satisfaction and measures of non-​repetition. Of great importance are the reparations regarding the measures of cessation, satisfaction, and guarantee of non-​repetition. The Commission considered necessary the adoption by the state of the following measures: (1) to guarantee and protect property rights of the Kichwa of Sarayaku Peoples; (2) the effective and significant participation of the representatives of indigenous peoples in procedures regarding the adoption of decisions related to their territories; (3) to consult with indigenous peoples for the effectiveness of the right of indigenous peoples to free, prior, and informed consultation according to the principle of good faith; (4)  to avoid similar situations in accordance with the duty to prevent and guarantee fundamental rights recognized in the American Convention. Additionally, the Commission requested the Court to order the state to do some symbolic acts to guarantee the non-​repetition of the contested acts. Furthermore, the Commission asked the Court for measures of compensation concerning material and non-​pecuniary damages to the detriment of the individual members of the Sarayaku people. To specify material damages, the Commission argued that the Court should consider (1)  the cosmology of the Sarayaku People and (2) the damages as a result of the limitations to use, enjoy, and dispose of its territory. Regarding non-​pecuniary damages, the Court should take into consideration the emotional suffering of the members of the Sarayaku people. In this respect, the due compensation should be a monetary payment. Finally, the Commission contended that the state should be condemned to pay the costs and expenses incurred by the Sarayaku people to access the iahrs. These costs are included in the concept of reparations according to Article 63(1) of the American Convention. 1.1.3 The Final Written Arguments of the Inter-​American Commission In its final written arguments, the Commission restated the arguments presented in the initial application to the Court.5 The difference between the 5 This section refers to the final written arguments of the Inter-​American Commission in the case Kichwa Indigenous Peoples of Sarayaku v. Ecuador. In this regard see Pueblo Indígena

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initial complaint and the final written arguments is that the Commission focused on the most controversial arguments and grasped more precisely their normative content. Of special relevance was the focus on the right of tribal and indigenous peoples to consult. The Commission highlighted the intrinsic connection between the right to consult and the right to cultural identity. It remarked that the American Convention is the source of the state’s obligation to consult with indigenous peoples. The iachr went further with this argument by stating that Ecuador had an obligation to consult with the Kichwa of Sarayaku People since 1977, when the state ratified the American Convention. In case the Court dismisses this argument and recognizes that the obligation to consult is a result of the state’s ratification of the ilo Convention 169, the Commission sustained that the state had the obligation to consult since 1999. Accordingly, the ilo Convention 169 entered into force in Ecuador in that year, which was prior to the approval of the eia. Yet, the Commission contended that the state did not do any consultation. The alleged consultation carried out by the private company should not be regarded as a proper consultation. Moreover, the Commission canvassed the meaning of consultation. It asserted that the aim of the consultation should be to obtain the informed consent by indigenous peoples. The obtainment of the consent should be regarded as a safeguard to the rights of indigenous peoples. The Commission enumerated some situations in accordance with international law in that the state should not only seek for the consent, but have the obligation to obtain it. For instance, the disposal of pentolite in an indigenous territory raised the need to obtain the free, prior, and informed consent by indigenous peoples. Furthermore, the Commission highlighted its understanding of the right to prior consultation as a dimension of political rights of indigenous peoples. The state should respect the special procedure of each indigenous community concerning the communal adoption of a decision. Accordingly, this is a way of exercising indigenous peoples’ political rights. What is notable is the way that the Commission proposed to solve inter-​ ethnic conflicts between different indigenous communities. In the present case, the state claimed that some indigenous communities within the Sarayaku people were in favor of the implementation of the project and others were against it. The Commission referred to the affidavit of the Special Rapporteur Kichwa de Sarayaku v. Ecuador: Observaciones Finales [2011] 12.465, [2011] 1 (Inter-​American Commission on Human Rights). Free translation by the author from the original complaint in Spanish. The author thanks the library’s staff of the Inter-​American Court for making this document available.

198 Chapter 5 on the Rights and Freedoms of Indigenous Peoples, Mr. James Anaya, to argue that indigenous communities should solve these inter-​ethnic conflicts without the interference of third parties. In addition, the Commission put emphasis on the consequences of the absence of consent by indigenous peoples. By quoting Mr. Anaya, the Commission supported the position that in the case where the state consults the communities in an adequate way and prior to the existence of the project, and that when some communities do not give their consent, the state has to modify the project in accordance with the demands of the communities who have consented. Finally, the Commission specified the substantial content of the state’s obligation to consult with indigenous peoples. It affirmed that it is not enough that the state has a legal framework concerning consultation in this regard. The state must adopt the necessary measures to implement its international obligations so that consultation works in an effective way at the domestic level. 1.1.4 The Court’s Decision The main aspect of this judgment related to the right of indigenous peoples to be consulted.6 The state of Ecuador had recognized property rights of indigenous peoples in domestic laws. Yet, it contested that it had the obligation to consult with the affected communities. After a short summary on the arguments brought by the parties, the Court began the consideration of the merits. In this respect, it is important to highlight that the Court also considered the arguments brought only by the legal representatives of the victims (without the Commission’s support). Notably, the representatives alleged the violation of economic, social, and cultural rights of the Sarayaku People pursuant to Article 26 of the American Convention in connection with Article 1(1) thereof. Accordingly, when the state granted permission to the oil company to enter the Sarayaku territory without consulting them, it violated the right of indigenous peoples to their culture. First, the tribunal analyzed the obligation to guarantee the right to consultation in relation to the rights of indigenous communal property and cultural identity. Following its consolidated jurisprudence on the topic, the Court restated the protection of communal indigenous property under Article 21 of the American Convention. Likewise, it recognized the protection of natural resources within indigenous territory as a result of the right of use and 6 This part refers to the Court’s decision. In this regard see Pueblo Indígena Kichwa de Sarayaku v. Ecuador [2012] Series C No. 245, [2012] 1 (Inter-​American Court of Human Rights). Free translation by the author from the original decision in Spanish.

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enjoyment of property. Additionally, the Court restated the protection of the relationship between indigenous communities with their lands. In the present case, the existence of property rights of the Sarayaku People was not at stake. The state had officially recognized it. Yet, the Court deemed it necessary to explain substantial aspects of the relationship between the indigenous people and its territory. As in other decisions, the tribunal highlighted the economic, cultural, and spiritual dimensions of this relationship. To that end, it relied on the affidavit of testimonies during the public hearing before the Court. In a next step, the Court recalled the requirements that the state must fulfill to comply with its obligations regarding the right to communal property. The tribunal had previously established these requirements in the case of the Saramaka People v. Suriname. It concluded that in the present case there was a lack of allegations concerning the admissibility of the restrictions on communal property and the requirement of benefit sharing. The Court decided not to analyze these topics. Instead, it put the right to consultation on the spot. Through an evolutive interpretation, the tribunal highlighted the degree of general acceptance of the state’s obligation to consult with indigenous peoples. In this regard, it analyzed the provisions of ilo Convention 169 and domestic laws of several countries. Hence, it concluded that the state’s obligation to consult is not only a norm pursuant to the achr, it is a general principle of international law. This principle refers to the state’s obligation to consult with tribal and indigenous peoples in view of measures that may have impact on them. It relates to Article 1(1) of the American Convention. The Inter-​American Court elaborated on the content of consultation. It stated that the search for an agreement with the community should begin with the first steps of the project’s development. In this way, indigenous peoples may truly participate in the adoption of the decision according to international standards. Indeed, the Court stated that it is the state that has to conduct the supervision and control of consultation. The IACtHR emphasized that the oil company initiated the activities in July 2002. These activities had impact on the economic activities necessary for the subsistence of the Sarayaku People. The indigenous people knew about the negative impacts and clearly opposed to the exploitation of its territory by the oil company. In view of the factual background, the Court concluded that the state had the obligation to consult with the Sarayaku People since at least May 1999. In 1998 Ecuador ratified the ilo Convention 169. The Court followed the understanding of the ilo Committee of Experts that the ilo Convention 169 is applicable to impacts and decisions of projects even if they were signed before

200 Chapter 5 the ilo Convention 169 entered into force. The Court supported this conclusion by referring also to Article 18 of the vclt. The Court then analyzed in which way and sense the state had the obligation to guarantee the right of the Sarayaku People to be consulted, and whether the consultation done by the private company complied with the requirements of consultation. The Court used the provisions of ilo Convention 169 as guidelines and it focused on the following criteria: a) the prior character of the consultation; b) the good faith and the aim of achieving an agreement; c) an adequate and accessible consultation; d) the eia; and e) the informed consultation. Accordingly, the Court decided that it was up to the state to demonstrate the fulfillment of these guarantees. Regarding the prior character of consultation, the Court restated its consolidated jurisprudence on the topic. It recalled that the obligation to consult implies the consultation with indigenous peoples in accordance with their traditions since the beginning of the project. Accordingly, early notice allows for an adequate time period for the community to have internal discussions. In the present case, the Court established that the state failed to comply with this obligation concerning the impacts originating from the contract of oil exploitation since at least 1998. With respect to the requirement of good faith and the aim of achieving an agreement, the Court articulated many considerations in this regard. It stated that the state must be responsible for building an atmosphere of mutual trust. The absence of any type of coercion by the state or authorized third parties is also a crucial aspect. Additionally, the internal cohesion of the community should not be disrupted. Negotiations with individual members of the community who do not have proper authority are not in accordance with international standards. The state presented different lines of arguments to justify its actions in the present case. First, it contended that the oil company had conducted an eia and some activities with the indigenous community, which are akin to consultation. In this regard, the Court answered that the oil company had the goal of exploiting oil on Sarayaku territory. Therefore, the oil company’s activities with the community had the sole purpose of arranging the company’s access to Sarayaku territory. Such purpose is not compatible with consultation requirements. Second, according to the Court, the state had recognized its international responsibility and the lack of a due process of prior consultation. In addition, regarding the requirement of good faith and the aim of achieving an agreement, the Court elaborated upon further considerations. First, it stated that the Ecuadorian state supported the oil company’s activities by providing them with security by members of the army. The tribunal understood

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that such a measure did not help with the development of an atmosphere of trust and mutual respect. Consequently, this measure went against the principle of good faith and the obligation to guarantee the community’s effective participation. Second, the tribunal asserted that the oil company through its consultation activities did not respect the internal and external structures of authority and representation of the community. These activities went against the principle of consultation in good faith. Concerning the requirement of an adequate and accessible consultation, the Court established its understanding with reference to ilo Convention 169. According to the Court, consultations must be conducted in accordance with cultural adequate procedures. These procedures should be understood with reference to the aim of the consultation. They should be developed on an individual basis in view of local circumstances. In addition, they should take into consideration the amount of time needed for the adoption of a decision by the indigenous community. In the present case, the state did not comply with its obligation to conduct the consultation by itself. Additionally, the oil company attempted to negotiate with those individual members of the indigenous community who lacked the proper authority. In view of those facts, the Court concluded that there was a lack of adequate and accessible consultation. Moreover, the IACtHR dedicated a separated part of its judgment to analyze the development of the eia in the case at hand. It stated that the eia constitutes a safeguard to guarantee the subsistence of indigenous peoples. The Court explained the necessary content of the eia in light of its case law on the topic. The state should develop the eia in accordance with international standards and good practices. In doing so, the state should respect the traditions and culture of indigenous peoples. The eia’s timely conclusion is another requirement that needs to be fulfilled no later than by the time of the concession’s granting. In view of the circumstances of the present case, the Court concluded that the Ecuadorian state did not fulfill these requirements. The last topic related to the requirement of consultation referred to the necessary information. The state must inform indigenous peoples about the risks of the development plans, including environmental and health damages. The Ecuadorian state also violated this requirement in the case of the Sarayaku people. To summarize, the tribunal concluded that the state did not guarantee the right of the Sarayaku people to be consulted. Indeed, the activities conducted by the oil company did not comply with the iahrs standard of prior ­consultation. The relationship between the right to consultation and communal property and the right to cultural identity was a main point in the judgment. The

202 Chapter 5 IACtHR emphasized it in view of the connection between territory and the identity of indigenous peoples. ilo Convention 169 and the undrip recognize the right of indigenous peoples to cultural identity. Likewise, the right of cultural identity is a fundamental right of indigenous peoples. In the present case, the Court considered as proven the deep bond between the elements of nature-​culture and the individual members of the Sarayaku People. As an additional proven fact, the Court referred to the activities of the oil company that resulted in the destruction of indigenous cultural heritage. Thus, the absence of consultation by the state had a negative impact on the cultural identity of the Sarayaku. Finally, the Court concluded with the recognition of the Sarayaku People as a collective subject of international law. It remarked that this recognition is in accordance with international law. Also, it emphasized that the Court’s decision should be interpreted from a collective perspective. Thus, the tribunal decided for the violation of the right of the Sarayaku People to communal property pursuant to Article 21 of the achr in relation to the right of cultural identity in accordance with Articles 1(1), 2 of the achr. In the last part of its decision, the Court remarked that reparations are a principle of international law concerning the state’s responsibility. The reparation of a damage resulting from a violation of an international obligation may generate a duty of restitutio in integrum. The redress measures need to have a causal nexus with the facts of each case, the violations, damages, and the parties’ requests concerning appropriate redress. In the present case, the tribunal considered the Kichwa Indigenous People of Sarayaku as a group beneficiary of reparations. Regarding restitution, the Court ordered different measures to the state for neutralizing the danger of the pentolite explosives that remained on Sarayaku territory. Notably, some of those measures must be taken only after a free and informed consultation with the Sarayaku People. With respect to the guarantees of non-​repetition, the IACtHR ordered that in case the state wants to develop activities that affect the territory of the Sarayaku People, Ecuador must conduct a free, adequate, and effective consultation. Additionally, the state should conduct an eia prior to the beginning of the activities. Besides that, the Court demanded that the state adopts necessary measures to grant effectiveness to the right of tribal and indigenous peoples to be consulted. Finally, the Court demanded that the state develop programs and courses for its official staff regarding the human rights of tribal and indigenous peoples. Concerning measures of satisfaction, the Court ordered that the state perform a public ceremony to acknowledge its international responsibility for the

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violations stated in the merits of the sentence. Additionally, the state must publish the Court’s decision in social media in different languages, including indigenous languages. Moreover, the Court resolved the issue regarding material and non-​material damages. After establishing the criteria to quantify the reparations in the present case, the Court ordered the state to pay US$ 90,000 to the Association of the Sarayaku People. This way, the Sarayaku People may invest the money in accordance with its own decisions. Concerning non-​material damages, the Court ordered the payment of US$ 1.25 million to the Association of the Sarayaku People. Finally, the Court addressed the last point of costs and expenses related to domestic and international proceedings. The Court ordered the payment of US$ 58,000. From this amount, the state should pay US$ 18,000 to cejil and the rest should be given to the Association of the Sarayaku People. 1.2 Case Analysis This section presents a critical assessment of the Kichwa Indigenous People of Sarayaku v.  Ecuador case. In contrast to previous chapters, it develops in parallel the analysis of the Commission’s and the Court’s work. This structural change aims to demonstrate with more clarity that both organs have similar interpretations of this case. Therefore, there is no longer any reason to separately analyze the work of the Inter-​American organs as the previous chapters did. Additionally, in comparison to chapter three and four, this analysis does not evaluate the communal property as a legal object. This is due to the fact that the Kichwa of Sarayaku case did not bring up new aspects regarding the communal indigenous property. This section is divided into three parts. Part one assesses the doctrinal basis behind the case and its relationship with international law. Part two engages with the substantive issues with respect to property rights. Lastly, part three evaluates the procedural law associated with the legal capacity of tribal and indigenous peoples. 1.2.1 The Rationale Behind It and International Law Following its established jurisprudence, the Inter-​American organs have elaborated interpretative tools to analyze the Sarayaku case. This section addresses the most relevant tools that refer to external sources of international law, the concept of cultural identity, and the doctrine of vulnerability. As legal basis, the Inter-​American organs used Article 29 of the achr to support their evolutive interpretation. Accordingly, the Court explained that in interpreting the provisions of the achr in light of the case at issue, it took

204 Chapter 5 into account not only the instruments of international law related to the achr, but also the international corpus iuris as a whole pursuant to Article 31(3) of the vclt. In addition, the IACtHR emphasized the context, in which the American Convention and other American instruments lie. “Context” has a broad sense and it goes beyond the situational reality. “Context” relates also to the legal context of domestic laws and international legal instruments. Taken together, those different legal and social contexts build the reality where the American Convention inserts itself. Thus, the Court’s approach underscored the intertwinement between general international law and international human rights law. Of great relevance was the application of the evolutive interpretation to interpret the right to property. The Sarayaku case emphasized the Convention’s nature of the rights of indigenous peoples. The Inter-​American organs pointed several times to Article 6 ilo of the Convention 169, which recognizes the state’s obligation to consult. In addition, they quoted the practice of the ilo Committee of Experts concerning the interpretation of the ilo Convention 169. Yet, they remarked that the source of the rights of indigenous peoples and the related state’s obligations was the American Convention.7 To establish it beyond any doubt, the iachr summarized its longstanding practice regarding the state’s obligation to consult that has its roots in the American Convention.8 Such a remark was necessary because until the present case the source of the state’s obligation to consult with indigenous peoples was unclear. This analysis points out that the merits of the Court’s judgment does not refer to the undrip or the iccpr. The IACtHR opted to include the references to the undrip, the main legal instrument on the rights of indigenous peoples, in the footnotes. Indeed, in contrast to its consolidated jurisprudence, the Court did not mention the iccpr in the text body of the Sarayaku decision. Rather, it made a short reference to the ICCPR in the footnotes. Likewise, the Sarayaku case reveals a singularity concerning the application of international law outside the iahrs. This case demonstrated that the iahrs absorbed the influence of general international law in its own jurisprudence. Conversely, the IAHRS reduced explicit references to it. By doing so, the Inter-​ American organs expressed their intention to consolidate an Inter-​American 7 The Commission grasped such understanding in details in the following thematic report: Inter-​American Commission on Human Rights, Indigenous and Tribal Peoples´ Rights Over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-​American Human Rights System (OEA/​Ser.L/​V/​II, Organization of American States 2010) 2–​3. 8 Kichwa People of Sarayaku and its members v. Ecuador [2010] 12.465, [2010] (Inter-​American Commission on Human Rights) paras 121–​126.

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law that is protective of tribal and indigenous peoples without being dependent on the sources of external international law. Yet, as explained below, such intention has not been yet consistently developed.9 Moreover, the guarantee of the right of indigenous peoples to cultural identity was the compass of the Court’s interpretation. Following its consolidated jurisprudence, the Sarayaku decision focused on the right to cultural identity as the basis for guaranteeing other rights of indigenous peoples.10 The right to cultural identity does not appear explicitly in the American Convention. Yet, this right is set down in several international instruments including the ilo Convention 169, the undrip, and some unesco instruments such as the unesco Universal Declaration on Cultural Diversity. In addition, the practice of both the African and European System of Human Rights refers to the right to cultural identity.11 Besides that, in the iahrs, the protection of cultural identity results from the application of the principle of non-​discrimination pursuant to Article 1(1) of the American Convention. Hence, “cultural identity” is a means to inform the justiciability of substantive rights.12 Specifically, it supports the understanding of property rights from a collective perspective. For the Inter-​American Court, the relationship between indigenous peoples and their lands constitutes their very cultural identity. Through indigenous traditions, rituals and languages, indigenous territory is where cultural identity flourishes. Each indigenous people expresses this identity in a particular way depending on the context, which may enable or constrain the relationship to the land.13 Furthermore, the main doctrine for the interpretation of the Sarayaku case related to the concept of vulnerability. The Inter-​American Commission has been arguing on vulnerability in several cases before the Court.14 This argument 9 10 11 12

13 14

See below in this chapter, 1.2.2.2 The Source of the State’s Obligation to Consult with Tribal and Indigenous Peoples. Such jurisprudence started in the Moiwana case. See above ­chapter  3, 3.1.1 Cultural Identity and Land Rights. African Commission on Human and Peoples’ Rights v.  Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights) para 185; Chapman v. the United Kingdom [2001] 27238/​95, [2001] (European Court of Human Rights) para 93. For a deeper analysis of the role of cultural identity in the present case see: Geneviève Säuberli, ‘The Case of the Kichwa Peoples of the Sarayaku v.  Ecuador:  Constructing a Right to Consultation and to Cultural Identity?’ in Yves Haeck, Oswaldo Ruiz-​Chiriboga and Clara Burbano-​Herrera (eds), The Inter-​American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015) 582–​586. On this issue see above in ­chapter 3, 3.1.3 The Requirement of Possession. See above in ­chapter  3, 2.2.1 The Commission’s Work:  The Rationale Behind It & International Law.

206 Chapter 5 “pro vulnerability” persisted in the case of the Kichwa Indigenous Peoples of Sarayaku, in which the Court clearly agreed with the Commission. The condition of vulnerability of the Sarayaku people referred to their social and cultural characteristics that differentiated them from the rest of the society. In the iahrs, the situation of vulnerability raises the state obligation of adopting special measures in favor of indigenous peoples. This point is consolidated in the iahrs jurisprudence. Interestingly, to classify indigenous peoples as vulnerable subjects does not mean that they should be under the guardianship of the state. It is not contradictory to address indigenous peoples as vulnerable and autonomous subjects. The Court has done so in its prior decisions.15 In the present case, the Commission claimed for external and internal autonomy to indigenous peoples. By quoting the affidavit of the former UN Rapporteur on the Rights and Freedoms of Indigenous Peoples, the Commission supported that inter-​ ethnic conflicts between indigenous communities should be solved by themselves without the interference of third parties, even in case these conflicts have consequences to the state or third parties. The Court’s understanding expressed in the Saramaka case indicates a general support in the iahrs for such position.16 To sum up, the interpretation of the Inter-​American organs used “vulnerability” as a transformative concept. Such interpretation is not particular to the Sarayaku case. Rather, it has been developing in the jurisprudence on tribal and indigenous issues since the Awas Tingni case.17 This subsection demonstrated the particularities of the application of this concept of vulnerability to the situation of the Sarayaku people.18 1.2.2 Substantive Issues: Rule Article 21 of the achr protects the use and enjoyment of property by tribal and indigenous peoples. This provision includes several state obligations,

15 16 17 18

See above in ­chapter 4, 1.2.2 The Court’s Decision and its Interpretation of Sentence: The Rationale Behind It & International Law. See above in ­chapter 4, 1.2.2.2 Procedural Issues: Legal Capacity. See above in ­chapter  3, 2.2.1 The Commission’s Work:  The Rationale Behind It & International Law. For a comprehensive overview on this topic see:  Romina I  Sijniensky, ‘From the Non-​ Discrimination Clause to the Concept of Vulnerability in International Human Rights Law: Advancing on the Need for Special Protection of Certain Groups and Individuals.’ in Yves Haeck and others (eds), The Realisation of Human Rights:  When Theory Meets Practice: Studies in Honour of Leo Zwaak (Intersentia 2013).

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which the Inter-​American organs have been progressively consolidating in their jurisprudence. In the present case, the iachr and the IACtHR focused on the state’s obligation to guarantee the participation of tribal and indigenous peoples in decisions affecting their territories. In this context, it is essential to do two preliminary remarks. First, this analysis notes that the Inter-​American organs refer to “consultation” either as a state’s obligation or as a right of indigenous peoples. This analysis follows such interchangeable use of words. However, it should be borne in mind that violations of the “right to consultation” cannot raise an independent complaint in the iahrs because this right is not explicitly recognized in the achr. Rather, the “right to consultation” falls under the scope of protection of Article 21 of the achr. Second, an exhaustive assessment of the normative content of “consultation” is beyond of the scope of this book. As previously demonstrated, the main problem in the complaints of tribal and indigenous peoples related to procedural law and the absence of collective legal capacity.19 Substantive issues related to property played a secondary role and this has been already explored in the literature.20 Due to those reasons, there is no need for this book to fully dig into “consultation.” The aim of this section is to elucidate the main elements related to consultation, which are essential to conceptualize collective property. Regarding its structure, this section is divided into three subsections. Part one elaborates a critical assessment on the legal restrictions to property rights in the Sarayaku case. Part two concerns the source of state’s obligation to consult with tribal and indigenous peoples. Part three explains the legal requirements arising from this obligation.

19 20

See above ­chapter 4, 3.2 The Inter-​American Backdoor Approach. Thomas M Antkowiak, ‘Rights, resources and rhetoric: Indigenous Peoples and the Inter-​ American Court’ (2013) 35 University of Pennsylvania Journal of International Law 113 157–​159; Lisl Brunner and Karla Quintana, ‘The Duty to Consult in the Inter-​American System:  Legal Standards after Sarayaku’ (35) 16 American Society of International Law –​Insights; Efrén C Olivares Alanís, ‘Indigenous Peoples’ Rights and the Extractive Industry:  Jurisprudence from the Inter-​American System of Human Rights’ (2013) 5(1) Goettingen Journal of International Law 187 209–​213; Geneviève Säuberli, ‘The Case of the Kichwa Peoples of the Sarayaku v.  Ecuador:  Constructing a Right to Consultation and to Cultural Identity?’ in Yves Haeck, Oswaldo Ruiz-​Chiriboga and Clara Burbano-​ Herrera (eds), The Inter-​American Court of Human Rights:  Theory and Practice, Present and Future (Intersentia 2015)  578–​581. For a comprehensive analysis in this regard see: Maria V Cabrera Ormaza, The requirement of consultation with indigenous peoples in the ILO: Between normative flexibility and institutional rigidity (Brill Nijhoff 2018).

208 Chapter 5 1.2.2.1 Restrictions to Property Rights Pursuant to Article 21(2) of the achr, the state may restrict the enjoyment of property, including through deprivation of property. The Inter-​American Court has been elaborating on the requirements concerning legal restrictions of property rights since the Ivcher-​Bronstein case .21 The case of the Kichwa Indigenous People of Sarayaku represents a new step in this regard. According to the Court’s consolidated jurisprudence, measures aiming towards the restriction of property rights must comply with four requirements:  be previously established by law, be necessary, be proportional, and have the aim of achieving a legitimate objective in a democratic society.22 Nevertheless, the IACtHR did not analyze in the Yakye Axa case whether the state had complied with its general obligations regarding property rights’ restrictions. In the Saramaka case, the IACtHR did the same.23 In the Sarayaku decision, the IACtHR explained that the lack of analysis concerning the state’s compliance with its general obligations was because the parties did not make any specific claims in this regard. The Court’s argument seems very doubtful. Based on the iura novit cura principle, the IACtHR has full autonomy to assess possible violations of Convention’s rights, independently from the allegations of the parties. Indeed, the Court’s jurisprudence recognizes the Court’s duty to apply all appropriate standards even when not expressly invoked by the parties.24 Hence, in the Sarayaku’s decision, the IACtHR could and should have assessed the state’s compliance with its general obligations concerning property rights’ restrictions. The Court’s absence of analysis concerning the state’s compliance with the requirements of limitations of property rights is indeed critical. The Court issued the decision in the Kichwa of Sarayaku case in the aftermath of the judgment on reparations and costs in the case of Salvador Chiriboga v. Ecuador.25 This last case concerned the expropriation of individual property and its judgment represented a setback regarding property protection. In this judgment, the IACtHR presented a restricted interpretation of the principle of legality that lies in the heart of the requirements concerning property restrictions. 21 22 23 24 25

Ivcher-​Bronstein v. Peru [2001] Series C No. 74, [2001] 1 (Inter-​American Court of Human Rights) paras 119–​131. See above ­chapter 3, 3.2 Yakye Axa Case, 2005. Saramaka People v. Suriname [2007] Series C No. 172, [2007] 1 (Inter-​American Court of Human Rights) paras 127–​128. Comunidad Moiwana v. Suriname [2005] Series C No. 124, [2005] (Inter-​American Court of Human Rights) para 107. Salvador Chiriboga v.  Ecuador [2011] Series C No. 222, [2011] (Inter-​American Court of Human Rights).

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Accordingly, the Court considered that it was not necessary that every cause for restriction of property rights be established by law.26 In addition, similar to the decision in the Sarayaku case, in the Chiriboga case the Court avoided analyzing whether state measures complied with the requirement of aiming public utility or social interest.27 Gonza and Antkowiak argue that the decision in the Chiriboga case raises a trend of an extensive state power regarding restrictions of property rights.28 The decision in Sarayaku confirms the understanding of these legal scholars. This book offers a different perspective on this issue compared to those scholars. Before presenting it, the assessment of other cases concerning tribal and indigenous lands is crucial and therefore this topic is analyzed only at the end of this chapter.29 Besides the general requirements for establishing restrictive measures regarding property rights, in the case of tribal and indigenous peoples, states have to fulfill an additional requirement. This requirement relates to the guarantee of the subsistence of the indigenous people. In other words, states may not deny the survival of the indigenous people as such.30 Such additional requirement has been developing in the Court’s case law since the Saramaka case.31 Based on the requirement of subsistence of tribal and indigenous peoples, the iahrs elaborated in its case law the safeguards to protect their property rights. Accordingly, the state has to: (1) develop an environmental and social 26 27 28

29 30

31

Salvador Chiriboga v. Ecuador [2008] Series C No. 179, [2008] (Inter-​American Court of Human Rights) para 65. ibid paras 67–​76. Thomas M Antkowiak, ‘Rights, resources and rhetoric: Indigenous Peoples and the Inter-​ American Court’ (2013) 35 University of Pennsylvania Journal of International Law 113 162–​ 164; Alejandra Gonza, ‘Artículo 21 –​Derecho a la propiedad privada’ in Christian Steiner and Patricia Uribe (eds), Convención Americana sobre Derechos Humanos:  Comentario (Fundación Konrad Adenauer Stiftung 2014) 518. See below in this chapter, 3.2.1 Individual v. Collective Property. The English version of the decision in the case of the Kichwa of Sarayaku People uses the word “survival of indigenous peoples” while the Spanish version uses the word “subsistence of indigenous peoples.” The regular meaning of both words is very similar, however, in international law, they raise very different consequences. The word “survival” can be understood as referring to the “jurisprudence” of the hrc and cultural identity whereas the word “subsistence” connects with the right to self-​determination (Article 1 of the iccpr). Such a controversial use of the concepts “survival” and “subsistence” appears also in other decisions of the Court such as Saramaka People v. Suriname. The Court’s intention behind the use of different concepts can only be understood according to a systematic reading of the decision. In the present decision, the word “survival” seems more suitable since the Court emphasizes the topic of cultural identity of indigenous peoples. See above in ­chapter 4, 1.2.2.1.1.2 Restrictions to Property Rights.

210 Chapter 5 impact assessment; (2) guarantee that tribal and indigenous peoples receive a reasonable benefit in case of development of any plan within their territory; (3) guarantee the effective participation of the members of the indigenous peoples in the decision affecting their territory. Those safeguards established by the Court are in accordance with the Commission’s claims in the Sarayaku case. In contrast to the Court, the Commission set requirements for legal restrictions of property rights of tribal and indigenous peoples. Accordingly, when the state has an interest in developing activities in indigenous territories, it has to guarantee that: (1) the affected peoples receive information about the activities that might affect them; (2) they have the opportunity to take part in the different stages of the process of adopting decisions in this regard; (3) they have access to judicial remedies in case they consider that their rights have not been respected. Without explanation, the Court did not elaborate in the Sarayaku case on this last requirement proposed by the Commission, which is in accordance with international standards concerning property protection.32 In the Sarayaku case, the Inter-​American organs fully grasped the sense of the safeguards concerning the protection of indigenous peoples’ survival. Yet, before doing so, they had to substantiate the source of those safeguards, which represent state obligations pursuant to Article 21 of the achr. 1.2.2.2

The Source of the State’s Obligation to Consult with Tribal and Indigenous Peoples The violation of the state’s obligation to consult with indigenous peoples was a central claim in the Sarayaku case. This case differs from others because domestic laws in Ecuador recognize property rights of indigenous peoples. Still, Ecuador contended that property rights of indigenous peoples did not include a state obligation to consult with them. It is important to highlight that the state’s obligation to consult with indigenous peoples is not enshrined in the achr. It dates back to the Saramaka case, in which consultation was understood as a key element for the protection of property rights of indigenous peoples.33 Yet, the Saramaka case left unsettled issues in this regard. To uphold the requirement of consultation while answering the state’s arguments against it, the Inter-​American organs had to dig into the very source of the state’s obligation to consult. Notably, the right of indigenous peoples to consultation is an evolving concept in the Commission’s case 32 33

Ursula Kriebaum and August Reinisch, ‘International Protection of the Right to Property’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018) paras 19–​23. See above ­chapter 4, 1.2.2.1.1.2 Restrictions to Property Rights.

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law. Since 1993 at the least, the Commission has recognized in its report the state’s obligation to guarantee indigenous effective participation in state decisions that may affect their territories.34 Regarding the source of the right to consultation, the Commission and the Court presented slightly different ideas in this regard. According to an alternative argument presented by the Commission, the right to consultation originates from the right to political participation pursuant to Article 23 of the American Convention. Likewise, the Commission asserted that the consultation is a way of interaction between the indigenous community and the society that requires the respect of the state toward the political organization of the indigenous community. The Court did not agree to support the right to consultation on the basis of Article 23 of the achr.35 Moreover, the Inter-​American organs agreed that the right to property pursuant to Article 21 of the American Convention is the source of the state’s obligation to consult. The Commission stated that the right of indigenous peoples to be consulted resulted from a combination of the right to property with the right to cultural identity. Accordingly, such a relationship is established because state decisions impacting on indigenous lands might affect the cultural identity of indigenous peoples. Drawing on this basis, the Court decided that consultation emerges from Article 21 of the achr read in conjunction with Articles 1(1) and 2 thereof. In advancing a step further, the Court recognized for the first time the state’s obligation to consult with indigenous peoples as a general principle of international law in the sense of Article 38(1) of the icj Statute. To establish this argument, it analyzed domestic laws of some American countries concerning consultation. In this way, the Court presented its understanding of principles of international law as a derivation of a comparison between different systems of domestic laws.36 The tribunal referred to ilo Convention 169 as an accessory tool. 34

35 36

Inter-​American Commission on Human Rights, ‘Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin’ (29 November 1983) OEA/​ Ser.L./​V.II.62  accessed 23 October 2018, part three, conclusions and recommendations. Pueblo Indígena Kichwa de Sarayaku v. Ecuador [2012] Series C No. 245, [2012] 1 (Inter-​ American Court of Human Rights) para 230. H. W A Thirlway, The sources of international law (Foundations of public international law, First edition, Oxford University Press 2014)  95. Similarly see:  Geneviève Säuberli, ‘The Case of the Kichwa Peoples of the Sarayaku v.  Ecuador:  Constructing a Right to Consultation and to Cultural Identity?’ in Yves Haeck, Oswaldo Ruiz-​Chiriboga and Clara Burbano-​Herrera (eds), The Inter-​American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015) 579.

212 Chapter 5 This analysis finds the Court’s legal argumentation behind the recognition of consultation as a general principle of international law to be highly controversial. First, it notes that the Court quoted domestic laws or decisions by domestic courts, which do not explicitly mention “consultation with indigenous peoples.” Rather, those domestic laws and decisions concerned “communal indigenous property.”37 Second, the tribunal invoked decisions by first and second instances of domestic courts that thus had no significant precedential value.38 Third, the IACtHR analyzed domestic laws of only 11 American countries, which were states parties to the American Convention. By the time of the Sarayaku decision, 24 countries had ratified the achr.39 Against this background, this analysis observes that the Court’s legal reasoning indicated only an evolving legal development concerning consultation with indigenous peoples in the Americas. The IACtHR’s understanding was in line with United Nations standards.40 However, it is compelling to conclude that the Court’s analysis was restricted to the position of a few states parties to the achr. Thus, the Court’s interpretation failed short before grounding the existence of consultation as a principle of international law in a legally sound manner. In the decision concerning the Sarayaku people, the scope of the general principle of international law regarding consultation was very problematic. In which cases does the state have an obligation to consult with indigenous peoples? According to the Court’s interpretation of Article 1(1) of the American Convention, this obligation exists in relation to each administrative or legislative measure that affects the rights of tribal and indigenous peoples recognized under domestic or international law. Such interpretation is in accordance with Article 6(1) of the ilo Convention 169. Nevertheless, many American states do not recognize such a broad scope of the right to consultation. The Court’s analysis of domestic laws demonstrated that many states parties to the achr recognize such obligation only regarding administrative measures that could impact on tribal and indigenous lands. Legislative measures remained beyond 37

See the footnotes referring to Paraguay and Belice: Pueblo Indígena Kichwa de Sarayaku v.  Ecuador [2012] Series C No. 245, [2012] 1 (Inter-​American Court of Human Rights) 46–​47-​47. 38 See the footnotes referring to Brazil and Chile:  Pueblo Indígena Kichwa de Sarayaku v. Ecuador [2012] Series C No. 245, [2012] 1 (Inter-​American Court of Human Rights) 47. 39 Organization of the American States, ‘American Convention on Human Rights  –​ Signatories and Ratifications’ (2019) accessed 6 August 2019. 40 Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, James Anaya [2009] [2009] 1 (Human Rights Council).

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the scope of the obligation to consult. Thus, there is a contradiction between the Court’s understanding and domestic laws of American states regarding the scope of consultation. Regardless of this issue concerning general principles of international law, the Sarayaku case upholds the state obligation to consult with indigenous peoples through evolutive interpretation. By doing so, the Inter-​American organs established an autonomous meaning of the state’s obligation to consult with indigenous peoples pursuant to Article 21 of the American Convention. In this regard, it is important to note that the state’s obligation to consult has its source in the achr. It is independent of domestic laws. Therefore, states parties have the obligation to consult with tribal and indigenous peoples since the ratification of the achr. Nevertheless, in an inconsistent manner, the Court’s decision did not completely base itself on the Convention’s nature of the state’s obligation to consult. There is no clear justification for this inconsistency. The Court determined the ratification of the ilo Convention 169 as the point of time, in which Ecuador’s obligation to consult with indigenous peoples started.41 Likewise, the state had the obligation to consult with indigenous peoples since May 1999, before the beginning of the exploitation activities on the Sarayaku’s territory. 1.2.2.3 Consultation’s Requirements: Developing Inter-​American Standards As a preliminary remark, it is important to note that the Commission uses the terms “effective participation” and “effective consultation” in an interchangeable manner. However, a deeper analysis shows that “effective participation” is the broad category, in which the right of indigenous peoples to access information and the right to be consulted lie. This distinction between category and subcategories is used in this section. Remarkably, the Inter-​American Court grasped that the state is the duty bearer of the obligation to consult. Unless the state conducts this obligation by itself, it fails to comply with the iahrs standards. In other words, by contracting a private company to conduct consultation with indigenous peoples, a state does not comply with the requirements of Article 21 read in conjunction with Article 1(1), 2 of the American Convention. This situation related to the case of the Sarayaku People, in which the state claimed that it had complied with the obligation by delegating the consultation process to a private ­company. 41

Pueblo Indígena Kichwa de Sarayaku v. Ecuador [2012] Series C No. 245, [2012] 1 (Inter-​ American Court of Human Rights) paras 172.

214 Chapter 5 Of great significance is also the Court’s elaboration on the requirements of consultation. For the first time, the Court explained the procedural dimension associated with the states’ obligation to consult with indigenous peoples that is: (1) prior to the development of the activity, (2) in good faith, (3) with the aim of achieving an agreement, (4) to be adequate and accessible, (5) informed, and (6) in light of an eia. Remarkably, the IACtHR innovated by elucidating the burden of proof with respect to consultation. In shifting the onus probandi, the Court stated that it is up to the state (and not the Commission or representative of the victims) to prove the fulfillment of these requirements. The iahrs requirements concerning consultation are in accordance with international law. Remarkably, they go beyond the ones established in Article 32 of the undrip, which does not mention the eia. They are, however, very similar to the ones established in Article 6 of the ilo Convention 169. The practice of the ilo supervisory bodies can therefore be a very good support for comprehending the requirements set by the IACtHR.42 As a consequence of the establishment of the consultation’s requirements, the iahrs standard concerning the obligation to consult was clarified. This state obligation requires complex steps to its implementation. The state should start to consult with indigenous peoples during the early stages of the project’s development so that the group has a sufficient amount of time for internal discussion and decision making. As the Commission emphasized, the state should act in accordance with the internal decision mechanisms of indigenous communities. It should respect communal structures of authority and representation. In case the indigenous people do not speak the state’s official language, a translator should be arranged. Furthermore, the principle of good faith implies that the opinion issued by indigenous peoples should be seriously taken into account by the state. The principle of good faith has a long-​standing tradition in international law connected to the concept of “bona fides” pursuant to Article 31(1) of the vclt.43 Based on this principle, the state should at least attempt to establish an atmosphere of mutual trust. Additionally, it should respect the social cohesion of

42 43

For a comprehensive work on the practice of the ilo supervisory bodies on consultation see Maria V Cabrera Ormaza, The requirement of consultation with indigenous peoples in the ILO: Between normative flexibility and institutional rigidity (Brill Nijhoff 2018) 106–​146. Mariana Monteiro de Matos, ‘Das Recht indigener Völker auf natürliche Ressourcen und die entsprechenden Teilnahmerechte:  Eine Analyse der VN-​Erklärung über die Rechte indigener Völker sowie der Rechtsprechungen des VN-​Menschenrechtsausschlusses und des Interamerikanischen Gerichtshofes für Menschenrechte’ (Master Thesis, Georg-​ August Universität Göttingen 2013) 29–​30.

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the group. It should not bribe community leaders or split communal patterns of attachment. Drawing on the principle of good faith, the iahrs established that the aim to obtain consent is a necessary condition of consultation. In this regard, the Commission’s complaint gave a definitive answer to the issue of inter-​ethnic conflicts within indigenous communities. In case the process of consultation concerns different communities and some of them decide to support the state’s development project whereas others do not, the state has to adapt its project in accordance with the will of those communities that have consented. After doing it, this analysis observes that the state may proceed with its project.44 It also notes that the right to be consulted does not include a veto power by indigenous peoples. Besides that, the state should inform tribal and indigenous peoples about the possible risks of the intended project affecting their territories. The Commission explained that the state should provide prior, clear, and sufficient information so that indigenous peoples may be aware of external interferences in their territory. The state should issue the information prior to granting any authorization, and in consideration of the time frame needed by indigenous communities to adopt their own decisions. Likewise, this analysis notes that such a requirement implies a dynamic communication process between the parties. The state needs to provide updated information about environmental and health risks to the affected peoples. In addition, the iahrs requirement of “sufficient” information refers at least to the information concerning the intended project of exploitation and the intended process of consultation. In the iahrs, the state’s obligation to provide prior, clear, and sufficient information relates to the right to access to information. This right refers to the accessibility of state’s information by the general public. Specifically, it consists in the positive obligation that the state should give ex officio all the necessary information so that individuals and groups may exercise their rights. In the iahrs jurisprudence, the right to access to information relates to Article 13 of the achr.45 Finally, it is important to observe the procedural dimensions related to the eia. Those dimensions are an innovation in international human rights law. According to the Court, the state should develop by itself or supervise an eia that:  (1) respects the tradition and culture of indigenous peoples; (2)  is 44 45

Pueblo Indígena Kichwa de Sarayaku v. Ecuador: Observaciones Finales [2011] 12.465, [2011] 1 (Inter-​American Commission on Human Rights) para 38. Claude Reyes et al. v. Chile (2006) Series C No. 151 (Inter-​American Court of Human Rights) paras 75–​87.

216 Chapter 5 concluded before granting the concession; (3)  respects international standards; (4) analyzes the cumulative impacts of the different projects proposed. 1.1.1 Procedural Issues: Legal Capacity The legal capacity of the Sarayaku people is a double-​edged sword. On the one hand, it breaks up with the iahrs consolidated jurisprudence, which previously focused only on individuals. The Sarayaku case represents a watershed because it demonstrates the first recognition of an indigenous people as a collective victim and injured party. On the other hand it entails a continuum with the prior jurisprudence, as it was in the Sarayaku case that the Inter-​American organs once and for all solved the problem with the individualization of collective entities. This issue started in the very first case of Aloetoeboe and others v. Suriname.46 Thus, the iahrs jurisprudence cannot be fully understood without taking note of the Sarayaku case. This section digs into the legal capacity of the Sarayaku People in three steps. The first part concerns the role of the Sarayaku people and its members in the proceedings of the complaint procedure. The second part relates to their role as victims of violations of the right to property. The third part analyzes their role as beneficiaries of reparations. 1.1.1.1

The Autonomous Legal Standing of the Sarayaku People and Its Members The Court and the Commission had a common approach concerning many issues in the case of Kichwa Indigenous Peoples of Sarayaku v.  Ecuador. Likewise, the previous sections assessed in parallel the work of the Inter-​ American organs. Yet, with respect to legal capacity, a parallel assessment of the Commission’s and Court’s work is impossible. Articles 51 and 61 of the American Convention establish a two-​level complaint procedure. The first part of the procedure finishes with the submission of the case by the Commission to the Court. The second part ends up with the Court’s binding decision. Each level follows a specific set of rules. As a consequence, indigenous peoples, their members, and legal representatives play a different role on each level. This section is divided into three sub-​sections. The first part elaborates on the role of the petitioners before the Commission. The second part explains the role of the Sarayaku people and its members before the Court. The third part makes a general assessment of their role in the iahrs complaint p ­ rocedure. 46

See above ­chapter 3, 1. An Important Precedent: The Aloeboetoe Case.

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The Sarayaku People and Its Members before the Commission

The proceedings of the Sarayaku case before the Inter-​American Commission lasted from March 2003 to April 2010. During this period, the rules of procedure of the Commission changed four times.47 Such changes were a result of the process of strengthening the iahrs.48 While the rules of procedure approved from 2000 have suffered small modifications up until 2008, in 2009 the Commission approved a complete new set of rules. In view of these changes, it is not possible to determine the role that the Sarayaku people and its members have played only in accordance with the Commission’s rules of procedure. Rather, it is necessary to grasp the petitioners’ role in light of the written statements of the iachr about the proceedings. At the start of the proceedings, the Sarayaku people and its members played a key role before the Commission. Pursuant to Article 25(1) of the Commission’s Rules of Procedure (2002), they requested the adoption of precautionary measures by the Commission in their favor, specifying a few of their members. The Commission accepted this request. The adopted precautionary measures had a unique collective dimension. Notably, the Commission requested the state to protect the special relationship between the Sarayaku people and its territory. In addition, it requested the Ecuadorian state to apply these measures in favor of the members of the Sarayaku people without identifying them by name. This praxis has influenced a change in the Commission’s rules of procedure. In the Commission’s rules of procedures approved in 2009 and after the Sarayaku case, it was specified the existence of precautionary measures of a collective nature. After the petition’s admission, the Sarayaku people and its legal representatives continued to take action. For instance, they requested hearings to present testimonies and submitted their observations in view of state’s communications. Pursuant to Article 41(4) of the Commission’s Rules of Procedure (2003), they informed the iachr about the community’s decision not to enter into a friendly settlement process. 47

48

Reglamento de la Comisión Interamericana de Derechos Humanos 10/​2003 (Inter-​ American Commission on Human Rights); Reglamento de la Comisión Interamericana de Derechos Humanos 10/​ 2006 (Inter-​ American Commission on Human Rights); Reglamento de la Comisión Interamericana de Derechos Humanos 07/​2008 (Inter-​ American Commission on Human Rights); Reglamento de la Comisión Interamericana de Derechos Humanos 10/​2009 (Inter-​American Commission on Human Rights). On this process see:  Claudia Martin and Diego Rodríguez Pinzón, ‘Strengthening or Straining the Inter-​American Human Rights System’ in Yves Haeck, Oswaldo Ruiz-​ Chiriboga and Clara Burbano-​Herrera (eds), The Inter-​American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015).

218 Chapter 5 The Commission has accepted an increasing role of the petitioners concerning its decision to submit a case to the Court. Pursuant to Article 61(1) of the American Convention, only states parties and the Commission may submit a case to the Court. In other words, indigenous peoples and their legal representatives may not autonomously submit a case to the Court. Despite that, it is important to bear in mind that the petitioners have a strong influence over the Commission’s decision to submit a case. Pursuant to Article 45(2) of the Commission’s Rules of Procedure (2009), the position of the petitioners concerning the submission of a case to the Court is a main issue to consider by adopting the decision of submission. The petitioners’ position is not binding to the Commission and it must be substantiated. Pursuant to Article 44 of the Commission’s Rules of Procedure (2009), in case the petitioner has interest in submitting the case to the Court, he or she must inform the Commission about the legal basis for such submission, among others. In this regard up until 2009, the Commission’s Rules of Procedure set the requirement that the petitioners had to submit evidence if it was available. Naturally, such requirement was burdensome for the petitioners because the production of legal evidence entailed a high financial cost. In the present case, since the Commission approved its report to the Court in 2009, the Sarayaku people and their legal representatives did not have to submit evidence. The petitioners’ influence over the Commission’s decision to submit a case to the Court may also be seen in the Commission’s application. In the Sarayaku case, the Commission’s application to the Court alleged violations regarding ten provisions of the American Convention. All the alleged violations were contained in the petition submitted by the petitioners. The Commission left out only seven claimed violations by the petitioners in its petition to the Court. To sum up, this analysis concludes that the Commission showed an increased recognition of the role of the petitioners in the complaint procedure. In light of the Commission’s rules of procedure, they have clearly a locus standi in judicio. 1.2.3.1.2

The Legal Standing of the Sarayaku People and Its Members before the Court

In the present case, the proceedings before the Court have taken at least eight years. During this time, the Court modified its rules of procedure two times, both in 2009.49 Such changes were a result of the process of strengthening 49

Rules of Procedure of the Inter-​American Court of Human Rights 16 November 2009 (Inter-​American Court of Human Rights); Reglamento de la Corte Interamericana de Derechos Humanos 2009 (Inter-​American Court of Human Rights).

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the iahrs that turned the iahrs complaint procedure around.50 As of August 2019, the rules approved in November 2009 still remain in force. The goal of the modified rules of procedure adopted in 2009 was to give more prominence for the participation of the alleged victims in the proceedings before the Court. To that end, the Inter-​American Commission acquired a new role.51 Since the entry into force of the current rules in late 2009, the Commission is no longer considered a party to the process. It may not act on behalf of the victims and it has limited functions. As a consequence, the IACtHR enhanced the locus standi in judicio of the victims during the ligation against the state. The Commission’s new role is limited to the guarantee of procedural equality between the parties.52 Articles 34, 35 of the Court’s Rules of Procedure (November 2009) brought substantive changes to the process of submission of a case to the Court. Since the submission of the Sarayaku case by the Commission to the Court on April 2010, such changes must have been applied to this case. Among the most important changes is that the Commission no longer has to elaborate a separate application. Instead, it may submit to the Court the report to which Article 50 of the achr refers. Additionally, the Commission must indicate which factual background as contained in its report it submits for the Court’s appreciation. The submitted facts are of crucial importance for the alleged victims because they limit additional claims concerning violations or request provisional measures pursuant to Article 27 of the Court’s Rules of Procedure (November 2009).53 In the present case, the victims and their legal representatives have played an autonomous role throughout the proceedings before the Court. Pursuant to Article 25 of the Court’s Rules of Procedure (November 2009), they should act autonomously throughout the proceedings and may submit pleadings, motions, and evidence. The legal representatives of the Sarayaku people presented these documents containing alleged violations additional to the 50

51 52 53

On this process see:  Claudia Martin and Diego Rodríguez Pinzón, ‘Strengthening or Straining the Inter-​American Human Rights System’ in Yves Haeck, Oswaldo Ruiz-​ Chiriboga and Clara Burbano-​ Herrera (eds), The Inter-​ American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015). Exposición de los Motivos de la Reforma Reglamentaria 2009 (Inter-​American Court of Human Rights) 2. In the same sense see Carla Osmo and Kathia Martin-​Chenut, ‘A participação das vítimas no sistema interamericano: fundamento e significado do direito de participar’ (2017) 8(2) Revista Direito & Práxis 1455 1485–​1486. On the importance of the Commission’s determination of the factual background see above in ­chapter 4, 1.2.2.2 Procedural Issues: Legal Capacity.

220 Chapter 5 Commission’s allegations. Additionally, Article 51 of the Court’s Rules of Procedure (November 2009) established that the victims must not take an oath. They may give their statements as declarations, which entail special characteristics to be considered by the Court in accordance with Article 47 of the Court’s Rules of Procedure (November 2009).54 Besides that, Article 53 of the Court’s Rules of Procedure establishes negative obligations of the state with the scope of protecting alleged victims from external pressure. Moreover, the Inter-​American Court established effective means to support the legal standing of victims and their representatives. In accordance with Article 37 of the Court’s Rules of Procedure (2009), the Court may appoint an Inter-​American defender to support alleged victims who are acting without duly accredited legal representation. To fully implement this provision, the Court signed an agreement with the Inter-​American Association of Public Defenders.55 Moreover, after the creation of the victims’ legal assistance fund by the oas, the Court adopted the rules necessary to its implementation. Such fund aims to facilitate the access to the iahrs. It provides financial support to persons who do not have the means to take their case to the iahrs.56 The Kichwa of Sarayaku People and its members have used the support of this fund for producing evidence before the Court. To access this fund, the legal representatives of the Sarayaku people have requested financial support to the Court, specified the needed evidence and proved the victims’ lack of resources to cover these costs.57 1.2.3.1.3

Preliminary Assessment on Legal Standing before the Commission and the Court

The 2009 procedural reforms issued by the Commission and the Court have had a significant impact on the locus standi of petitioners and victims in the iahrs complaint procedure. Such changes were a result of the process of strengthening the iahrs.58 Petitioners and victims have acquired more autonomy before 54 55 56 57 58

Statement of Reasons to Modify the Rules of Procedure 2009 (Inter-​American Court of Human Rights) 3–​4. For more information in this respect see: Carla Osmo and Kathia Martin-​Chenut, ‘A participação das vítimas no sistema interamericano: fundamento e significado do direito de participar’ (2017) 8(2) Revista Direito & Práxis 1455 1486–​1487. Miguel Castro Castro Prison v. Peru [2010] Victims’ Legal Assistance Fund, [2010] (Inter-​ American Court of Human Rights) paras 4–​5. Pueblo Indígena Kichwa de Sarayaku v. Ecuador [2012] Series C No. 245, [2012] 1 (Inter-​ American Court of Human Rights) paras 7–​8. On this process see:  Claudia Martin and Diego Rodríguez Pinzón, ‘Strengthening or Straining the Inter-​American Human Rights System’ in Yves Haeck, Oswaldo Ruiz-​Chiriboga

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the Commission and the Court. More autonomy also means more responsibility. The victims and their legal representatives became the persons responsible for their defense before the Inter-​American organs. To effectively guarantee the autonomy of petitioners and victims, the Inter-​American organs have adopted significant measures of support. They recognized that more autonomy may bring a burden on petitioners and victims who lack sufficient financial resources to access the complaint procedure. The Inter-​American defender and the victims’ legal assistance fund were designed to tackle this issue.59 However, these institutions cannot function well without the financial support of the states parties. The insufficient financial means in the iahrs is a current problem that has lead among others to the cancelation of two scheduled hearing sessions of the iachr in 2016.60 Furthermore, the financial crisis of the iahrs is an important factor in curbing the autonomous role of the victims and petitioners. Legal scholars have pointed out that the participation of the victims and petitioners in the proceedings generated more complexity to the Court’s work.61 Likewise, similar to the ECtHR, the iahrs has been receiving an increasing number of complaints in recent years. In contrast, there was an absence of incremental financial resources in the last years that would be necessary to deal with the growing workload.62 Rather than normative solutions, this problem requires a stronger financial commitment of oas state members to the iahrs. 1.2.3.2 The Recognition of Collective Rights Holders The case dealing with the Kichwa Indigenous People of Sarayaku is a landmark in the iahrs jurisprudence. Among the innovations of this case, there is the recognition of an indigenous people as a collective victim of violation of Article 21 of the achr. To better explain this topic, this section is divided into three

59 60 61 62

and Clara Burbano-​Herrera (eds), The Inter-​American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015). For other measures see: ibid 807. Inter-​American Commission on Human Rights, Severe Financial Crisis of the IACHR Leads to the Suspension and Imminent Layoff of Nearly Half its Staff (María Isabel Rivero tr). James L Cavallaro and Stephanie E Brewer, ‘Reevaluating Regional Human Rights Litigation in the Twenty-​First Century:  The Case of the Inter-​American Court’ (2008) 102(4) The American Journal of International Law 768 779–​784. Claudia Martin and Diego Rodríguez Pinzón, ‘Strengthening or Straining the Inter-​ American Human Rights System’ in Yves Haeck, Oswaldo Ruiz-​Chiriboga and Clara Burbano-​Herrera (eds), The Inter-​American Court of Human Rights: Theory and Practice, Present and Future (Intersentia 2015) 805–​806; Carla Osmo and Kathia Martin-​Chenut, ‘A participação das vítimas no sistema interamericano: fundamento e significado do direito de participar’ (2017) 8(2) Revista Direito & Práxis 1455 1490–​1491.

222 Chapter 5 two parts. Part one focuses on the Commission’s admissibility decision. Part two explores the Commission’s and Court’s written statements in the merits. Part three analyzes the recognition of collective rights holders at the reparations stage. 1.2.3.2.1 Admissibility Stage

Article 44 of the American Convention enables any person, group of persons or non-​governmental organizations to lodge a petition with the iachr. The Commission’s decision on admissibility contains a section, in which the Commission analyzes whether the facts of a case are under its competence. The Commission had been recognizing in its jurisprudence that it has competence ratione personae only in relation to individuals.63 In doing so, it considers the list with the individual names of the victims submitted by the petitioners in the initial petition to the Commission. According to the Commission’s Rules of Procedure, such list constitutes a requirement for the consideration of initial petitions. To admit any petition, including the ones concerning indigenous peoples, the Commission has analyzed in every case at the admissibility stage whether the victims were the persons whose rights were allegedly infringed. Such criterion is known in legal scholarship as the victim requirement.64 In the Sarayaku case, the Commission slightly changed its considerations on the admissibility criteria. In previous cases, the Commission analyzed its competence ratione personae with reference only to the individual members of tribal and indigenous communities. The Commission’s admissibility decisions referred to lists with the names of tribal or indigenous individuals considered as victims.65 In the Sarayaku case, the Commission admitted for the first time a petition, in which it recognized the indigenous people and its members as victims.66 Likewise, the Commission did not refer to a list with the names of indigenous individuals. Instead, the Commission identified the Kichwa People of Sarayaku as victims in light of their communal sociopolitical organization and their geographical location.

63 64

65 66

See above n 56. Anne van Aaken, ‘Making International Human Rights Protection More Effective:  A Rational-​Choice Approach to the Effectiveness of Ius Standi Provisions’ (2005) 16 Preprints of the Max Planck Institute for Research on Collective Goods 1 40  accessed 23 October 2018. See above in ­chapter 4, 3.3 An International Faux Pas: The Requirement of Individualization of Groups. The Kichwa Peoples of the Sarayaku Community and its Members v. Ecuador [2004] Report 64/​04, [2004] Petition 167/​03 1 (Inter-​American Commission on Human Rights) para 47.

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This small change in the Commission’s admissibility criteria demonstrates the softening of the interpretation on the victim requirement. As explained before, the submission of a list with the names of individual members of a tribal or indigenous community was very burdensome for the victims.67 Since the Sarayaku case, the Commission started to accept complaints by tribal and indigenous peoples without demanding an individualization of their members. Such change is in accordance with Article 28 of the Commission’s Rules of Procedure. This provision establishes that victims should be named if possible. Prior to the present case, the Commission had interpreted this provision in a strict way. Thus, the victims evolved from individualized victims to collective entities. It is important to highlight that the collective victim was an identifiable entity. The group was not an abstract or undeterminable entity. In this regard, the Commission’ statement was striking (emphasis added):  “The Kichwa People of Sarayaku are an organized community, situated in a specific geographical area, whose members can be individually identified.”68 This statement leads to the conclusion that the identification of the individual members of the indigenous people is feasible. In its petition to the Court, the Commission stated that the Sarayaku people had 1,235 members.69 Hence, the Sarayaku people were a determined but not individualized victim. The reason behind the change concerning the Commission’s admissibility criteria was not explicit. Yet, a deeper analysis indicates that the Court’s decisions on provisional measures might have been a strong influence. The Commission’s admissibility decision in the Sarayaku case was taken in the aftermath of the adoption of several provisional measures by the Court.70 These measures were in favor of communities. To determine these communities, the Court analyzed the fulfillment of the following requirements: (1) that the

67 68 69 70

See above in ­chapter 4, 3.2 The Inter-​American Backdoor Approach. The Kichwa Peoples of the Sarayaku Community and its Members v.  Ecuador [2004] Report 64/​04, [2004] Petition 167/​03 1 (Inter-​American Commission on Human Rights) footnote 12. Kichwa People of Sarayaku and its members v.  Ecuador [2010] 12.465, [2010] (Inter-​ American Commission on Human Rights) para 49. Matter of the Communities of Jiguamiandó and Curvadaró regarding Colombia [2003] Order of the Inter-​American Court of Human Rights, [2003] (Inter-​American Court of Human Rights); Asunto de la Comunidad de Paz de San José de Apartadó Respecto Colombia [2002] Resolución de la Corte Interamericana de Derechos Humanos, [2002] (Inter-​American Court of Human Rights); Asunto de la Comunidad de Paz de San José de Apartadó Respecto Colombia [2000] Resolución de la Corte Interamericana de Derechos Humanos, [2000] 1 (Inter-​American Court of Human Rights).

224 Chapter 5 members of the community may be individually identifiable; (2)  the internal communal organization; (3) the geographical location of the community; (4) the common situation of risking suffering acts of aggression.71 In the admissibility’s decision concerning the Sarayaku case, the Commission referred to the Court’s precedents and mentioned in the merits the first three requirements for the identification of the Kichwa of Sarayaku people. To change the admissibility criteria of petitions by tribal and indigenous peoples was a very progressive decision by the Commission. As pointed out above, the Court had been issuing provisional measures to the benefit of groups. However, such trend did not reflect on the judgments in the merits and reparations phase. The Court emphasized in the judgments that the injured parties should be individualized.72 Therefore, by admitting a case in favor of a group, the Commission went against the Court’s understanding. It took the risk that at the reparations stage, following an eventual Court’s order, it would have to identify through a list the members of the Sarayaku people. Moreover, there are two important consequences emerging from the change of the Commission’s admissibility criteria. First, it enhances the accessibility of the complaint procedure to victims of large-​scale human rights violations. The identification of individuals belonging to a group had been a problem in the iahrs since the very first case concerning tribal and indigenous peoples.73 These peoples often do not have a register with the names of their members. The submission of a petition to the Commission brought a heavy burden to the petitioners who had to spend costly resources in order to identify the community’s members. The new requirement established in the Sarayaku case does not seem too difficult to comply with because states usually have a register with the geographical location of the indigenous groups within their territory.74 The geographical location was established as the main aspect of the Commission’s new admissibility criteria. The Commission enhanced the access to the complaint procedure through the softening of admissibility requirements. Second, the Commission’s change of admissibility requirements opened the door to the so-​called group complaints, i.e. complaints submitted by a group as 71 72 73 74

Juana I Acosta Lopez, ‘La protección de víctimas indeterminadas en el sistema interamericano de derechos humanos’ (Graduation, Pontificia Universidad Javeriana 2005) 21. Juvenile Reeducation Institute v. Paraguay [2004] Series C No. 112, [2004] (Inter-​American Court of Human Rights) paras 268–​278; Masacre Plan de Sánchez v. Guatemala [2004] Series C No. 105, [2004] (Inter-​American Court of Human Rights) para 62. See above in ­chapter 3, 1. An Important Precedent: The Aloeboetoe Case. Gonzalo Monge Nunez and Victor Rodriguez Rescia, Acceso a la Justicia de Grupos de Situación de Vulnerabilidad: Manual General de Litigio en el Sistema Interamericano con Enfoque Diferenciado (Instituto Interamericano de Derechos Humanos 2014) 138.

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such. The Commission had always strictly interpreted the victim requirement. The Commission’s admissibility decision in the Sarayaku case demonstrated a more open interpretation in this regard. It remains to be seen whether the Commission will apply this requirement to cases concerning collective violations of rights of non-​indigenous groups. Finally, it is important to remark that the Commission’s new interpretation regarding the victim requirement found support in the Court’s rules of procedure. Remarkably, the Court’s Rules of Procedure (November 2009) improved the criteria for the determination of victims of collective violations. Prior rules of procedure for initiating written proceedings before the Court required the identification of victims if it was possible. Since November 2009, pursuant to Article 35 of the Court’s Rules of Procedure, the Commission must indicate the identity of the alleged victims. In view of the above explained Commission’s new admissibility criteria, the Court’s new requirement would have been a setback. Concisely, it would mean that after the proceedings within the Commission and before the submission of the case to the Court, the petitioners would have to nominate the individual members of tribal and indigenous peoples. Consequently, the Commission’s new interpretation would have had a lack of impact concerning a better accessibility of collective victims to the complaint procedure. However, to prevent it, in case of collective violations, Article 35 of the Court’s Rules of Procedure (November 2009) establishes that if the Commission justifies the impossibility of identifying the victims, the tribunal will decide whether to consider them so. Consistently, Article 38 of the Court’s Rules of Procedure (November 2009) sets down that if the Presidency finds that the basic requirements of the initial petition have not been met, he or she may request the petition’s amendment. Thus, it became a discretionary act of the tribunal to decide about the determination of the victims of collective violations. To conclude, the Sarayaku case demonstrates the emergence of collective entities as victims. In this landmark case, the Commission’s new interpretation on admissibility requirements supported this conclusion. As a result, the members of the Sarayaku people were considered as individual victims whereas the people were regarded as a collective victim. 1.2.3.2.2 Merits Stage

The previous section demonstrated that the Commission regarded the Sarayaku people and its members as collective and individual victims at the admissibility stage. This section elaborates on the status of the indigenous people and its members at the merits stage. First, it elucidates the criteria used by the Inter-​American organs for identifying the Sarayaku people as indigenous.

226 Chapter 5 Second, it elaborates on the Court’s recognition of the Sarayaku people as collective legal subjects. These issues did not raise much controversy because in the present case Ecuador recognized its responsibility. Following their consolidated jurisprudence, the Inter-​American organs defined the Sarayaku people as indigenous. As evidence in this regard, they referred to the anthropological-​legal report by flacso, the Latin American Faculty of Social Sciences.75 Both the Commission and the Court started by emphasizing the self-​identification of the indigenous people. In a 2010 report, the Commission explained that self-​identification is the main criterion to identify indigenous peoples.76 In addition, they highlighted the Sarayaku’s social and political structure, which has a decision-​making body called Tayja Saruta-​ Sarayaku. Moreover, they explored the unique economic, social, and religious aspects of the Sarayaku people. Those criteria elaborated by the Commission contrast with the definitions found in the African System of Human Rights.77 Conversely, such criteria match with the one found in the ilo Convention 169. As the Commission explained in the 2010 thematic report: In the Convention No. 169 Application Guide, the ilo explains that the elements that define an indigenous people are both objective and subjective; objective elements include: (i) historical continuity, i.e. they are societies that descend from groups that preceded conquest or colonization; (ii) territorial connection, in the sense that their ancestors inhabited that country or region; and (iii) distinctive and specific social, economic, cultural and political institutions, which are their own and are totally or partially retained. The subjective element corresponds to collective self‐ identification as an indigenous people.78

75

76

77 78

Gina Chávez, Rommel Lara and María Moreno, Sarayaku: El pueblo del Cenit, identidad y construcción étnica -​informe antropológico-​jurídico sobre los impactos sociales y culturales de la presencia de la Companñía CGC en Sarayaku (Amazonía contemporanéa vol 2, Facultad Latinoamericana de Ciencias Sociales (flacso); Centro de Derechos Econoþmicos y Sociales (cdes) 2005). Inter-​American Commission on Human Rights, Indigenous and Tribal Peoples´ Rights Over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-​ American Human Rights System (OEA/​ Ser.L/​ V/​ II, Organization of American States 2010) 10. See above in ­chapter 4, 3.1 Summary of Chapter 4 And its Relationship with Chapter 3. Inter-​American Commission on Human Rights, Indigenous and Tribal Peoples´ Rights Over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-​ American Human Rights System (OEA/​ Ser.L/​ V/​ II, Organization of American States 2010) 10.

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Of great significance is to observe that the Inter-​American concept of “indigenous” is connected to the lands. The tribunal highlighted that indigenous lands are the place where the development of indigenous identity takes place through indigenous traditions, customs, languages, arts, and rituals. It is clear that the Court considers the existence of different forms of relationship between territory and indigenous peoples. Conversely, the tribunal makes this relationship a main point for the identification of tribal and indigenous peoples and their rights. In other words, the Court attaches the concept of indigenous peoples to a certain territory in order to establish their identity. Consequently, it becomes possible to include or exclude persons from the category of “indigenous” based on an objective criterion –​the territorial space. Behind the identification of tribal and indigenous peoples as attached to the lands, there is also their image as environmental and cultural stewards. Prior to this decision, the Court had made the connection between environmental protection and indigenous peoples in accordance with Principle 22 of the Rio Declaration on Environment and Development. In this regard, the current criticism of legal scholarship was explored above.79 In an innovative step, it remarked on the role of tribal and indigenous peoples as cultural stewards. Likewise, indigenous groups transmit through generations their own non-​material cultural heritage. The Court’s emphasis on culture confirms the doctrinal basis behind the Sarayaku case, which focuses on the right to cultural identity.80 Furthermore, the highlight of the Sarayaku case is the recognition of indigenous peoples as subjects of international law. Initially, the Court recognized only individual members of indigenous peoples as victims of violations.81 In the Saramaka case, the Court came short before recognizing an indigenous collective entity as a victim.82 Here, in the Sarayaku case, the Court declared for the first time an indigenous people as victims of violations. Consequently, de lege ferenda, the Court entitled tribal and indigenous peoples to the rights of the American Convention. The recognition of tribal and indigenous peoples as collective victims of violations continued in the subsequent decisions. Hence, the Court’s jurisprudence demonstrates that tribal and indigenous peoples and their members have evolved from individual to collective victims. According to this analysis, the Court’s short justification for this remarkable jurisprudential change hides the theoretical underpinning behind it. In the Sarayaku decision, the Court asserted only that indigenous peoples exercise 79 See above in ­chapter 3, 2.2.1.2 Procedural Issues: Legal Capacity. 80 See above in this chapter, 1.2.1 The Rationale Behind. 81 See ­chapter 3, 4. Interim Conclusions: Protecting Indigenous Property through Individuals. 82 See ­chapter 4, 1.3 Preliminary Assessment.

228 Chapter 5 some rights of the achr in a collective way. Nevertheless, a deeper analysis shows that the Commission has recognized tribal and indigenous peoples as victims of violations for a long time.83 In addition, the concurring opinion of Judge Vio Grossi in the decision prior to the Sarayaku case substantiated the Court’s understanding concerning indigenous peoples as collective victims.84 In contrast to the Court, the Commission differentiated between individual and collective subjects in the Sarayaku case. The Commission explained that the victims of violations are part of a group with their own cultural identity. The state’s acts have affected not only individual members, but also the existence of the people as such. In other words, a collective violation is a result of damages on the indigenous peoples’ cultural identity. To conclude, the Court’s recognition of indigenous peoples as collective victims is groundbreaking. Yet, it should not be seen as definitive. The Commission’s report in the Sarayaku case points to a trend of differentiating between individual and collective victims. 1.2.3.2.3 Reparations Stage

The determination of the beneficiaries of reparations in the Sarayaku case was a difficult issue to the Court. The tribunal had to decide at the reparations stage between requiring the Commission to identify the individual members of the Sarayaku people and considering the injured parties in a collective way. To choose the first option would mean a strong disagreement with the Commission. Indeed, the first option would implicate a step backwards regarding the protection of collective entities in the iahrs. To choose the second option would imply a definitive break-​up with the Court’s consolidated case law that requires the individualization of the beneficiaries of reparations.85 As explained above, this jurisprudence relates to the Court’s competence ratione personae and materiae.86 In a very progressive manner, the Court considered the victims in a collective way. For the first time the Court recognized an indigenous collective entity, 83 See ­chapter 3, 2.2.1.2 Procedural Issues: Legal Capacity. 84 See above in ­chapter  4, 2. Toward Collective Legal Subjects:  Xákmok Kásek Case, 2010. Similarly see: Gajardo Falcón, Jaime Eduardo, ‘Nuevas perspectivas de los derechos de los grupos a partir del análisis de la jurisprudencia de la Corte Interamericana de Derechos Humanos sobre los derechos de los pueblos indígenas’ (2014) 3(5) Revista Tribuna Internacional 43 63. 85 For a short summary on the Court’s recent jurisprudence in this regard see:  Barbani Duarte et al. v. Uruguay [2011] Series C No. 234, [2011] (Inter-​American Court of Human Rights) para 42. 86 See above in ­chapter 4, 3.2 The Inter-​American Backdoor Approach.

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the Kichwa Indigenous People of Sarayaku, as an injured party and beneficiary of reparations. By doing so, this analysis notes that the Court implicitly agreed with the Commission’s new admissibility criteria that soften the victim requirement.87 Legal scholarship explains that the adoption of more flexible criteria for the identification of injured parties may affect the Court’s legitimacy.88 Yet, such a flexible approach might be needed in cases that the state is unable to individualize the victims of gross human rights violations. In a prior case dealing with a tribal community, the Court asserted that the absence of identification of the injured parties was a result of the state’s failure to provide sufficient civil registers in the region where the community lived.89 Accordingly, the state could not demand a proper identification of victims. In the present case, the state admitted responsibility concerning the Sarayaku people. The Court did not mention any concern about its legitimacy when softening the requirements for the identification of victims. In the Sarayaku judgment, the IACtHR failed to explain the doctrinal basis behind the recognition of the Sarayaku people as a collective injured party. This analysis indicates the following reasons behind such shortcoming. First, the Court’s new understanding regarding the legal capacity of indigenous peoples as collective subjects of international law. The precedent subsection in this chapter explained this issue.90 To recognize the group as an injured party is a consistent consequence of regarding it as a collective victim. Second, the doctrine of cultural identity as an interpretative tool in the case at issue.91 The Court considered among others elements the impact of state activities on the cultural identity of indigenous peoples to calculate due reparations. The iachr agreed with the Court’s perspective and explained that (emphasis added):92 In the instant case, reparations cannot be considered from the purely individual perspective; they have a special dimension because of the collective nature of the rights Ecuador violated to the detriment of the 87 88 89 90 91 92

In this regard, see above in this chapter, 1.2.3.2.1 Admissibility Stage. Cristián Correa, ‘Reparaciones y Medidas Provisionales’ in Christian Steiner and Patricia Uribe (eds), Convención Americana sobre Derechos Humanos:  Comentario (Fundación Konrad Adenauer Stiftung 2014) 876–​877. Aloeboetoe et al. v. Suriname [1993] Series C No. 15, [1993] (Inter-​American Court of Human Rights) para 64. See above in this chapter, 1.2.3.2.2 Merits Stage. See above in this section, 1.2.1 The Rationale Behind. Pueblo Indígena Kichwa de Sarayaku y sus miembros v.  Ecuador [2010] 12.465, [2010] 1 (Inter-​American Commission on Human Rights) para 238.

230 Chapter 5 Community and its members. In the instant case, the aggrieved parties belong to a group with its own cultural identity; they are members of an indigenous community where State violations of international law affect not just the individual victim, but the very existence of the community. Hence, the reparation must also take into account the collective dimension and be based on an understanding of the socio-​cultural elements characteristic of the Kichwa People of Sarayaku, including their cosmovision, spirituality and communitarian social structure. This factor was considered in the cases of the Sawhoyamaxa and Yakye-​Axa Indigenous Communities, where the Court reaffirmed its case law to the effect that cases involving indigenous people have a collective component. In this context, the Court required the submission of evidence by the Sarayaku people and its legal representatives. Pursuant to Article 40 of the Court’s Rules of Procedure (November 2009), the victims and their legal representatives must submit to the Court a brief containing pleadings, motions, and evidence. Also, this brief must include claims relating to reparations and costs. In the Sarayaku case, the Court interpreted this provision very strictly (emphasis added):93 In this regard, the Court reiterates that the claims of the victims or their representatives in relation to costs and expenses, and any supporting evidence, must be submitted at the first procedural opportunity granted to them, namely, in the pleadings and motions brief, even though such claims may be subsequently updated, in accordance with the new costs and expenses incurred in connection with these proceedings. In addition, it is not sufficient merely to submit probative documents; the parties must also present arguments that relate the evidence to the fact that it is supposed to prove and, in the case of alleged financial disbursements, the items and their justification must be clearly described. In light of this interpretation, it is possible to conclude that the Court’s requirements on evidence mightily constrain the accessibility of tribal and indigenous peoples to the complaint procedure. However, the Court remained sensitive in this regard and recognized the difficulties associated with producing evidence due to the location of indigenous lands and their way of life.94 Due to 93 94

Pueblo Indígena Kichwa de Sarayaku v. Ecuador [2012] Series C No. 245, [2012] 1 (Inter-​ American Court of Human Rights) para 329. ibid para 315.

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this reason, the Court referred to the principle of equity in order to set reparations for damages that it deemed reasonable. The Inter-​American organs agreed that the restitutio in integrum was the ideal type of reparation. Their understanding was that redress measures should aim to reestablish the situation that existed prior to the violation. They differentiated between the following types of reparation: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-​repetition. In the Sarayaku case, the reparation measures have individual and collective aspects. The Court ordered measures with an erga omnes character such as implementing mandatory training programs on human rights of indigenous peoples to military, police, and judicial officials. In considering the environmental damages to Sarayaku territory and the cultural damage caused to the Sarayaku people, the Court issued reparations for pecuniary and non-​ pecuniary damages. Notably, the Court did not assign individual amounts of reparations. Instead, the state should pay the established amount to the Association of Sarayaku People who should decide about the allocation of the money. The Court’s order regarding the payment to the Association of the Sarayaku People is a consequence of the autonomous role of tribal and indigenous peoples under the iahrs complaint procedure. Such an order represents a clear evolution on the Court’s understanding. In the Awas Tingni case, the Court curbed the autonomy of the Awas Tingni community by ordering the supervision of the Inter-​American Commission over the implementation of non-​ pecuniary damages.95 Another consequence of the autonomous role of tribal and indigenous peoples relates to the implementation and supervision of reparation measures. The Inter-​American organs agreed that the state should implement the redress measures in mutual agreement with the Kichwa Indigenous People of Sarayaku and its members. The joint implementation of reparation measures has been argued by the Commission since the Yakye Axa case.96 In addition, the Court ordered the participation of indigenous peoples in the supervision of the implementation of some reparation measures. Likewise, the Sarayaku People together with the state are responsible for informing the Court about the implementation of some specific reparation measures.97

95 96 97

On this issue see above in ­chapter 3, 2.2.1.2 Procedural Issues: Legal Capacity. See above in ­chapter 3, 3.2 Yakye Axa Case, 2005. Pueblo Indígena Kichwa de Sarayaku v. Ecuador [2012] Series C No. 245, [2012] 1 (Inter-​ American Court of Human Rights) para 295.

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Afterkichwaofsarayaku.com

After the decision in the Kichwa Indigenous People of Sarayaku v. Ecuador case, a range of judgments followed in the same vein. Consequently, they were included in the third wave of jurisprudence. This wave refers to the following cases: Afro-​Descendant Communities Displaced from the Cacarica River Basin (Operation Genesis) v. Colombia (2013), Indigenous Peoples of Kuna of Madungandí and Emberá of Bayano and their Members v. Panama (2014), Garífuna Community of Punta Piedra and its Members v. Honduras (2015), Garífuna Community of Triunfo de la Cruz v. Honduras (2015), Kaliña and Lokono Peoples v. Suriname (2015), and Xucuru Indigenous People v. Brazil (2018). The following subsections explain the individual and collective aspects related to Article 21 of the achr in each of these cases. 2.1

Afro-​Descendant Communities Displaced from the Cacarica River Basin Case, 2013 After the decision in the Sarayaku case, the IACtHR delivered in 2013 the first judgment on land rights.98 In the case Afro-​Descendant Communities Displaced from the Cacarica River Basin (Operation Genesis) v. Colombia, the IACtHR applied its jurisprudence concerning indigenous land rights to protect the property rights of afro-​descendant communities of the Cacarica river basin in Colombia. This section contains a summary of the case’s factual background and the evaluation of its main aspects related to Article 21 of the achr.99 According to the Court’s sentence, the facts of the case concerned the region of Urabá Chocoano in Colombia. In 1997, the region was the stage for two different military-​based operations against the paramilitary group Revolutionary Armed Forces of Colombia (in Spanish abbreviated as farc), which affected local communities. The Colombian army carried out Operation Genesis to eliminate the members of the farc. Simultaneously, a paramilitary group fought alongside the national army through their Operation Cacarica. By doing so, paramilitary soldiers killed and dismembered the body of Mr. Marino López. In the aftermath of the two operations, members of the afro-​descendant communities had to relocate to Turbo, Bocas de Atrato, and Panama, where they lived in camps for four years. Upon return to Colombia, the formerly displaced persons were subject to threats and violence carried out by paramilitary groups. The forced displacement of the afro-​descendant communities 98 99

Afro-​Descendant communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia [2013] Series C No. 270, [2013] (Inter-​American Court of Human Rights). The case’s factual background is based on the Court’s decision.

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also resulted in the destruction of individual and collective property. The state accepted or authorized the illegal exploitation of the communal territory by logging companies. Against this background, the IACtHR noted that the state acknowledged partial responsibility for the facts that implied violations of Articles 8, 25 of the achr read in conjunction with Article 1(1) thereof. Moreover, it ruled that the illegal dispossession of the territory of the afro-​descendant communities coupled with the territory’s illegal exploitation by logging companies amounted to a violation of the right to collective property pursuant to Article 21 of the achr read in conjunction with Article 1(1) thereof. Finally, it considered the state responsible for violating Articles 4, 5, 19, 22, 25 of the achr. As reparation measures for the violations, the IACtHR ordered the restitution of communal lands to the afro-​descendant communities that were members of the Communal Council of the Communities from the Cacarica River Basin. Regarding the judgment, one of its innovations is the use of the concept of “afro-​descendant communities.” Previously, the IACtHR’s jurisprudence referred to “tribal peoples.” Without much explanation, the Court shifted its approach to include afro-​descendant communities as a category of tribal peoples.100 The iachr has followed the Court’s approach.101 The inclusion of the category of “afro-​descendant communities” under tribal peoples is in line with international law, especially Article 1 of the ilo Convention 169.102 Furthermore, this analysis observes that the merits of the decision in the case Operation Genesis v. Colombia upheld the Court’s new approach as established in the Sarayaku case. The Court’s judgment dismisses the requirement of the individualization of the victims due to the specific circumstances of the case.103 These circumstances included “the socio-​economic situation and vulnerability of the presumed victims, the harm caused to their property may

1 00 ibid para 346. 101 Inter-​American Commission on Human Rights (ed), Pueblos Indígenas, comunidades afrodescendientes y recursos naturales: Protección de derechos humanos en el contexto de actividades de extracción, explotación y desarrollo (2015) 11. 102 Similarly see Elisabeth Dittrich and Janina Rühl, ‘Derecho, identidad y territorio:  El caso de las comunidades afrodescendientes desplazadas del Cacarica (Colombia) ante la Corte Interamericana de Derechos Humanos’ in Manuel Góngora-​Mera, Sérgio Costa and Guilherme Leite Goncalves (eds), Derecho en América Latina: Corrector o reproductor de desigualdades? (Working Paper Series vol 81. International Research Network in Interdependent Inequalities in Latin America 2015) 106. 103 Afro-​Descendant communities displaced from the Cacarica River Basin (Operation Genesis) v.  Colombia [2013] Series C No. 270, [2013] (Inter-​American Court of Human Rights) para 353.

234 Chapter 5 have a greater effect and scope than it would have had for other persons or groups in other conditions.”104 Yet, the IACtHR’s judgment individualized the beneficiaries of reparations. Would the individualization mean a step back compared to the Sarayaku case, in which the Court dismissed the fulfillment of the requirement of individualization of members of indigenous peoples? This study gives a negative answer to this question.105 The explanation for the individualization of beneficiaries of reparations in the Operation Genesis case lies in the context of the case. In accordance with the Court’s established jurisprudence, complaints concerning large-​scale killing, such as the Operation Genesis case, require the individualization of victims.106 These complaints have a different nature when compared to cases regarding indigenous or tribal land rights. A highlight in the judgment of the Operation Genesis was the order of implementation of reparation measures. After establishing redress measures for the violation of Article 21 of the achr,107 the Court established that such measures should be implemented according to a domestic law on assistance, attention, integral reparation, and land restitution to the victims of Afro-​Colombian communities.108 For this analysis, the order of implementation via domestic laws implies a successful dialogue between the Inter-​American and domestic legal systems.109 Interestingly, the IACtHR highlighted the special role of Inter-​ American law by stating that the judgment should be implemented within one year, regardless of the time frames that domestic laws set. Finally, this analysis notes that the Operation Genesis case has not received much attention in legal scholarship regarding land rights.110 One of the reasons 1 04 ibid para 350. 105 For an alternative view see S.S López Escarcena, ‘Operación Génesis: Reflexiones en torno a la propiedad colectiva indígena y tribal’ (2016) 18(1) Estudios Socio-​Jurídicos 137 151. 106 For example see Comunidad Moiwana v. Suriname [2005] Series C No. 124, [2005] (Inter-​ American Court of Human Rights) paras 180–​181. 107 Afro-​Descendant communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia [2013] Series C No. 270, [2013] (Inter-​American Court of Human Rights) paras 469-​460. 108 ibid paras 473–​475. 109 For an alternative view see Elisabeth Dittrich and Janina Rühl, ‘Derecho, identidad y territorio: El caso de las comunidades afrodescendientes desplazadas del Cacarica (Colombia) ante la Corte Interamericana de Derechos Humanos’ in Manuel Góngora-​Mera, Sérgio Costa and Guilherme Leite Goncalves (eds), Derecho en América Latina: Corrector o reproductor de desigualdades? (Working Paper Series vol 81. International Research Network in Interdependent Inequalities in Latin America 2015) 112. 110 Notable exceptions are: Elisabeth Dittrich and Janina Rühl, ‘Derecho, identidad y territorio: El caso de las comunidades afrodescendientes desplazadas del Cacarica (Colombia) ante la Corte Interamericana de Derechos Humanos’ in Manuel Góngora-​Mera, Sérgio

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behind it is certainly the context of the case. Forced displacement is a major issue in Colombia, which has one of the highest number of displaced persons in the world.111 The judgment in the present case, therefore, has a great importance for clarifying human rights obligations in the context of forced displacement. Land issues played a secondary role. 2.2 Kuna and Emberá Case, 2014 The first judgment on indigenous peoples after the decision in the Sarayaku case related to a joint complaint filed by two indigenous peoples, the Kuna and the Emberá indigenous peoples.112 Following the thematic third wave, this case concerned indigenous peoples for whom the state recognized property rights, but failed to guarantee them. This case did not comprise significant new developments related to the object of property and related rights. Its importance lies in the promotion of the collective legal capacity of indigenous peoples. This section explores this issue together with some considerations on the iahrs competence. Before that, a short summary of the case is provided in the following paragraphs. The case’s historical background dates back to 1972.113 At this time, the state of Panama had initiated the construction of a hydroelectric dam in the region of Alto Bayano. In order to do this the state had to flood an indigenous territory and relocate the peoples living there. By doing so, Panama issued an administrative measure that established a compensation fund to support the indigenous peoples who needed to be relocated. The state relocated the Kuna and Emberá indigenous peoples to a territory called Bayano where they have been living up until the days of the IACtHR’s judgment. Since the 1990s, there have been increasing territorial conflicts between the alleged victims and local peasant communities in the Bayano region of Costa and Guilherme Leite Goncalves (eds), Derecho en América Latina: Corrector o reproductor de desigualdades? (Working Paper Series vol 81. International Research Network in Interdependent Inequalities in Latin America 2015); López Escarcena (n 513). 111 Elisabeth Dittrich and Janina Rühl, ‘Derecho, identidad y territorio:  El caso de las comunidades afrodescendientes desplazadas del Cacarica (Colombia) ante la Corte Interamericana de Derechos Humanos’ in Manuel Góngora-​Mera, Sérgio Costa and Guilherme Leite Goncalves (eds), Derecho en América Latina:  Corrector o reproductor de desigualdades? (Working Paper Series vol 81. International Research Network in Interdependent Inequalities in Latin America 2015) 93. 1 12 Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Miembros v. Panamá [2014] Series C No. 284, [2014] 1 (Inter-​American Court of Human Rights). 113 The case’s factual background is based on the Court’s decision. In this regard see Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Miembros v.  Panamá [2014] Series C No. 284, [2014] 1 (Inter-​American Court of Human Rights) paras 19–​37.

236 Chapter 5 Panama. Some of these communities were already in the Bayano region at the time of the construction of the hydroelectric dam. Some came after the construction and their relocation expanded conflicts. In this context, in 1996 the government approved Law 24 that recognized a geographical area in favor of the Kuna people. Indeed, the state demarcated this area. Regarding the Emberá people, to the date of the Court’s judgment, there was an ongoing process aiming the collective land entitlement to their benefit. Nevertheless, the effective guarantee of collective ownership is still missing to both peoples. Third parties have been partially occupying the claimed indigenous lands for more than a decade. After an unsuccessful friendly settlement, indigenous peoples and their legal representatives have asked the Commission to submit their case to the Court. By submitting the case, the Commission considered the position of the alleged victims and the necessity to develop the iahrs jurisprudence on land rights. Pursuant to Article 51 of the achr and Article 44 of the Commission’s Rules of Procedure (2008), the Commission grasped this necessity in a concise manner. In doing so, the Commission established that there was a need for the Court’s elaboration on the obligation to redress indigenous peoples in case the restitution of their original lands is impossible. Accordingly, such obligation has been already recognized in the Court’s jurisprudence.114 The Commission framed this obligation as a consequence of a continuous violation of Article 21 of the achr.115 The facts concerning the majority of the alleged violations have occurred prior to the state’s acceptance of the Court’s jurisdiction. In the merits of its decision, the IACtHR dismissed the analysis of the allegations concerning the state’s obligation to redress.116 According to the Court, there is a profound relationship between the state’s international responsibility for damages arising from violations of the Convention’s rights and the obligation to repair the victims. In this context, the Court explained that the alleged continuous violation related to the criteria of reparation measures established by the state. Such criteria were set down prior to the state’s recognition of the Court’s competence. Likewise, the Court affirmed that it did not have competence ratione temporis regarding the facts that originated the damages. Hence, it could not address the state’s obligation to repair as alleged by the Commission. Nevertheless, the IACtHR decided that Panama had violated Article 21 of the achr read in conjunction with Article 1(1) thereof due to other 114 Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Miembros v. Panamá [2012] 12.354, [2012] 1 (Inter-​American Commission on Human Rights) para 197. 115 ibid, Escrito de Sometimiento del Caso 4. 116 For the allegations of the Commission see ibid para 191.

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reasons such as the failure to limit and demarcate the territory of the indigenous peoples Kuna of Madungandí and Emberá of Bayano for several years. The partially dissenting opinion of Judge Mac-​Gregor Poisot criticized the admission of the preliminary exception ratione temporis argued by the state. The Judge mentioned that if the Court would not have dismissed this preliminary exception, it would have been the first time that the Court would have addressed the state’s non-​compliance with the obligation to redress in accordance with Article 21 of the achr.117 Judge Mac-​Gregor’s opinion explained the content of the right to property. To grasp the content of the right to receive a fair reparation in case of expropriation, Judge Mac-​Gregor Poisot started by analyzing the issue of continuous violations of rights in international law, i.a. the interpretation of the ECtHR in this regard. He then analyzed the proven facts of the present case. He explained that this factual background referred to a continuous violation constituted by multiple situations, which the Court did not address. Accordingly, he criticized the Court for taking as granted that the proven facts did not amount to a continuous violation. Against this background, this analysis notes that the IACtHR has been reluctant to address the topic of expropriation in its jurisprudence. Expropriation is a legitimate act under state’s discretion pursuant to Article 21(2) of the achr. Yet, it took more than ten years for the Court since the first judgment finding a violation of the right to property to issue a sentence on reparations as a consequence of expropriation.118 The reason behind such reluctance may be related to sensitive political issues that surrounded the topic of expropriation. In view of that, the IACtHR’s approach to expropriation contrasts with that of its European counterpart. The ECtHR has developed a solid jurisprudence concerning the deprivation of property, including expropriation.119 Remarkably, in the case of Loizidou, the ECtHR decided that the continuous denial of access to property in northern Cyprus amounted to a violation of the right to property.120 Notably, this book observes that this is the first joinder case in the iahrs with respect to indigenous peoples. A  joinder case is a type of collective 117 Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Miembros v. Panamá [2014] Series C No. 284, [2014] 1 (Inter-​American Court of Human Rights), Partial Dissenting Opinion of Judge Eduardo Ferrer Mac-​Gregor Poisot para 4. 118 Salvador Chiriboga v.  Ecuador [2011] Series C No. 222, [2011] (Inter-​American Court of Human Rights). 119 Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights –​Protection of Property [2018] [2019] (European Court of Human Rights) paras 77–​83. 120 Loizidou v.  Turkey [1996] Application no.  15318/​89, [1996] (European Court of Human Rights) para 57.

238 Chapter 5 complaint that concerns an alleged violation of a right claimed simultaneously by different individuals or groups. This type of collective complaint addresses the different claims together, but the related legal consequences are set individually.121 The iahrs jurisprudence prior to this case concerned only complaints by an indigenous people composed of different communities. In the case at issue, there were two different indigenous peoples who did not share many common features. The iachr described them in different sections of its report.122 Indeed, during the proceedings of the complaint mechanism, the indigenous peoples of Kuna and Emberá had different legal representatives.123 Yet, in view of their common land struggles, the legal representatives of these indigenous peoples filed a single petition to the Commission.124 Likewise, the Commission admitted the case in a single decision. Moreover, the Inter-​American organs disagreed on the topic of the participatory rights of tribal and indigenous peoples pursuant to Article 21 of the achr. According to the iahrs’ consolidated jurisprudence, in case the state plans to develop a project impacting on tribal or indigenous lands, the state has to conduct a process of consultation with the affected peoples. In the case at issue, the Inter-​American Commission attempted to expand the scope of protection of the right to property. It urged that the state should not only consult with indigenous peoples, but also that the state should obtain their free, prior, and informed consent.125 For unknown reasons, the Court did not touch on the point of consent. Rather, in upholding its established jurisprudence, the Court referred only to “consultation.”126 Of great significance was the restrictive approach of the Inter-​American’s organs concerning conflicts over indigenous lands between indigenous peoples and third parties. In light of this conflict, the Commission indicated that 121 Anne van Aaken, ‘Making International Human Rights Protection More Effective:  A Rational-​Choice Approach to the Effectiveness of Ius Standi Provisions’ (2005) 16 Preprints of the Max Planck Institute for Research on Collective Goods 1 12; 47  accessed 23 October 2018. 122 Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Miembros v. Panamá [2012] 12.354, [2012] 1 (Inter-​American Commission on Human Rights) paras 56–​69. 123 ibid para 1. 124 Report 58/​09 –​Kuna of Madungandí and Emberá of Bayano Indigenous Peoples and Their Members (Panama) [2009] 12.354, [2009] (Inter-​American Commission on Human Rights) 1. 125 Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Miembros v. Panamá [2014] Series C No. 284, [2014] 1 (Inter-​American Court of Human Rights) para 227. 126 For the Court’s established jurisprudence see above in ­chapter 4, 1.2.2.1.1.2 Restrictions to Property Rights.

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the state has the obligation to provide an exclusive indigenous territory that is officially recognized, demarcated, delimited, and effectively protected.127 Accordingly, an exclusive indigenous territory implicates the state’s obligation to provide an indigenous land without the presence of third parties or non-​indigenous persons. Following the Commission’s approach, the Court declared that it may not rule over such a conflict because it does not constitute a domestic court in charge of solving conflicts between private parties.128 Likewise, it explained that the solution of this conflict is up to the state. According to the IACtHR, the iahrs competence ratione materiae concerns only the analysis of the guarantee of the rights of tribal and indigenous peoples. Besides that, this analysis claims that this case included substantive new developments concerning the individual and collective aspects of the legal capacity of the victims. In a sense, this case demonstrated continuity with the jurisprudence started in the Sarayaku case. First, the Commission upheld the softening of the victim requirement and did not require a list with the names of the individual members of the indigenous peoples involved. Second, the Court considered the complainants’ indigenous peoples as collective beneficiaries of reparations. In doing so, the Court set different types of reparations to the two indigenous peoples involved. Conversely, this case included changes compared to the jurisprudence started in the Sarayaku case. Accordingly, the Inter-​American organs regarded both the indigenous peoples and their members as victims, i.e. in an individual and collective sense. In the Sarayaku case, only the Commission had drawn such differentiation. However, both organs failed to elaborate further on the reasons and consequences behind such differentiation. Finally, an important issue discussed in the case against Panama was about the exhaustion of remedies under domestic laws by indigenous peoples. Such issue is connected to the victim requirement. The Commission’s jurisprudence has been upholding in admissibility decisions that the victims must exhaust domestic remedies on their own behalf or justify the impossibility of exhaustion.129 In case the victims fail to do so, the Commission dismisses the ­complaint. 127 Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Miembros v. Panamá [2012] 12.354, [2012] 1 (Inter-​American Commission on Human Rights) para 189. 128 Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Miembros v. Panamá [2014] Series C No. 284, [2014] 1 (Inter-​American Court of Human Rights) para 144. 129 Observaciones de la Comisión Interamericana de Derechos Humanos –​Solicitud de Opinión presentada por el Estado de Panamá [2015] [2015] 1 (Inter-​American Commission on Human Rights) para 51.

240 Chapter 5 During the oral proceedings before the Court, the issue of exhaustion of local remedies caused an interesting discussion. Judge Ferrer Mac-​Gregor Poisot asked the victims whether they had presented legal remedies before domestic courts. In this regard, they answered that the only remedy available was of an administrative nature, and that it had been used. In light of those statements, Judge Vio Grossi demonstrated a unique understanding. In his view, the fulfillment of the requirement of exhaustion of local remedies is directly related to the nature of the victims involved. In case the victims –​i.e. indigenous peoples –​are regarded as international legal subjects, they do not have to exhaust domestic remedies. In other words, Judge Vio Grossi admitted the possibility that agreements between states and indigenous peoples had a value for the complaint procedure. Accordingly, these agreements were not justiciable according to domestic laws. Consequently, in such case, the impossibility of exhausting domestic remedies would be justified. In Judge Vio Grossi’s words:130 Who are the subjects of the agreement? State and Indigenous Peoples? Or state and individuals? Because in case it is the individual person, it is clear that it refers to the domestic law. But if the answer is indigenous peoples, we must refer to, I claim from the point of view of international law and of the American Convention, legal subjectivities. Hence, we probably escape a bit of the consideration that every agreement must be complained before the domestic courts. Mainstream legal scholarship supports Judge Vio Grossi’s understanding about indigenous peoples as original subjects of international law. Judge Vio Grossi’s statement exposes that indigenous peoples have acted as sovereign states in concluding historical agreements with states. Crawford argues that at least some indigenous communities had the original legal status of sovereign 130 Inter-​American Court of Human Rights, Audiencia Pública –​Caso Pueblos Indígenas Kuna de Madugandí y Emberá de Bayano y sus Miembros v. Panamá (2014). Free transcription and translation by the author of the public hearing in the case of Kuna Indigenous People of Madungandí and Emberá Indigenous People of Bayano and its Members v.  Panama. The original text in Spanish is as it follows: “¿Quiénes son los sujetos del acuerdo? ¿Es el Estado y el pueblo indígena? ¿ O es el Estado y el individuo? Porque si es el Estado y el individuo, claro, está el ordenamiento interno, pero si es el pueblo indígena ya entramos, yo estoy vendo desde el punto de vista del derecho internacional y de la Convención, entramos a hablar de subjetividades jurídicas. Y, por lo tanto, escapamos un poquito, creo yo, a lo mejor probablemente, de la consideración de que todo acuerdo incumplido en el orden interno tienen que recurrirse a los tribunales.”

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states.131 Legal scholarship focused on indigenous issues claims that indigenous peoples have progressively lost their status between the 16th and 20th centuries.132 Such discussion raises controversial issues regarding the sovereignty of modern states.133 Due to this reason, it has been an argument almost absent in complaints before international human rights bodies. Judge Vio Grossi’s statement represents a rare exception. Irrespective of this discussion, the Court dismissed the preliminary exception concerning the lack of exhaustion of domestic remedies. The Court ruled in favor of the victims in the merits. It declared that the state failed to present the preliminary exceptions in due time.134 The merits of the judgment did not explicitly consider Judge Vio Grossi’s statement. Nevertheless, this analysis remarks that this statement encouraged the recognition of indigenous peoples as fully autonomous subjects of international law. Additionally, it promoted the softening of admissibility requirements based on such recognition. Such attempt is unprecedented in international human rights law. 2.3 Garífuna of Punta Piedra Case, 2015 In the first case against Honduras, the Inter-​American organs had the opportunity to elaborate on the definition of tribal and indigenous peoples. In addition, they could address the state’s obligation to implement sanitation measures in 131 James Crawford, The creation of states in international law (2nd ed. Clarendon Press; Oxford University Press 2007) 260. 132 S.J Anaya, Indigenous peoples in international law (2. ed. Oxford University Press 2004)  15–​ 48; Katja Göcke, ‘Völkerrechtssubjektivität indigener Völker:  Historische Grundlage und neue Tendezen in der völkerrechtlichen Praxis’ in Jelena Bäumler and others (eds), Akteure in Krieg und Frieden (Jus [ius] internationale et Europaeum vol 43. Mohr Siebeck 2010); Pablo Gutierrez Vega, ‘The Municipalization of the Legal Status of Indigenous Nations by Modern (European) International Law’ in Richard Potz and others (eds), Law & Anthropology –​International Yearbook for Legal Anthropology: Indigenous Peoples, Constitutional States and Treaties or Other Constructive Arrangements Between Indigenous Peoples and States (International Yearbook for Legal Anthropology Ser vol 12. Brill Academic Publishers 2004). For a comprehensive analysis related to land rights see: Jérémie Gilbert, Indigenous peoples’ land rights under international law: From victims to actors (Transnational Publishers 2006) 1–​85. For a historical perspective see: Thomas Duve, ‘Indigenous Rights in Latin America: A Legal Historical Perspective’ [2017] Research Paper Series of the Max Planck Institute for European Legal History. 133 Benedict Kingsbury, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples´ Claims in International and Comparative Law’ [2001–​2002] New York University Journal of International Law and Politics 189, 234–​237. 134 Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Miembros v. Panamá [2014] Series C No. 284, [2014] 1 (Inter-​American Court of Human Rights) para 23.

242 Chapter 5 indigenous lands pursuant to Article 21 of the achr. After a short summary on the factual background of the case, this section explains both issues. The facts of the case at issue related to the violent conflicts produced as a consequence of the use and enjoyment of lands by the community of Punta Piedra. This Garífuna community lived in its territory, which was located in the village of Iriona, close to the Caribbean Sea. The state had been progressively entitling the community to a territory comprising 2,314 ha. Such legal entitlement comprised a partial area that third parties legally owned. To solve this situation, the state made an agreement with third parties and the Garífuna community in 2001. Accordingly, the involved parties agreed that the state should expropriate the third parties’ lands to the benefit of the Garífuna community. In doing so, Honduras agreed to redress the legal owners of these lands. Until the issuance of the Court’s judgment, the state had not complied with this agreement. Disputes over the Garífuna’s community territory increased over time. Mr. Felix Ordonez Suazo, a member of the Punta Piedra community, had filed a complaint against a third party occupant of communal lands due to land encroachment. Later on, he was murdered. By the time of the Court’s judgment, this murder case was on the spot of an ongoing investigation by the state. Additionally, the community filed complaints against third parties due to land encroachment amongst others. Besides that, the state issued a concession to a private company for exploring natural resources in an area that is part of the Garífuna’s lands. After analyzing those issues, the IACtHR came to the decision that Honduras had violated Article 21 of the achr. The state’s violation related to the use and enjoyment of collective property by the Garífuna community and the absence of consultation in view of a project regarding the exploitation of the Garífuna territory. Contrary to the argument of the victims, the Court did not find a violation on the basis of an alleged absence of regulation over property in Honduras pursuant to Article 2 of the achr read in conjunction with Articles 1(1) and 21 thereof. Against this background, this analysis points out that the Organización Fraternal Negra Hondurena submitted a single petition to the iachr against Honduras for alleged violations to the detriment of three different Garífuna communities and their members. Yet, in contrast to the case of the Kuna and Emberá indigenous peoples, the iachr decided to separately analyze the cases of these communities.135 The reason for separating the claims was not explicit. 135 See above in this chapter, Kuna and Emberá Case, 2014.

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It might have as its cause the different factual background related to the communities or the different nature of the alleged violations. These reasons are sufficient to justify splitting a case pursuant to Article 29(1)(c) of the Commission’s Rules of Procedure (2009). Of tremendous significance in this Garífuna community’s case was the consolidation of the criteria for identifying tribal and indigenous peoples. As evidence for the identification, the Inter-​American Commission referred to among others the affidavit of Ms. Flores Martinez given at the public hearing before the Court during the case of Alfredo Lopez against Honduras, and a report by the Inter-​American Development Bank.136 The iachr considered as a proven fact that the Garífuna Community was a group composed of the influences of indigenous and African cultures. The members of this community identified themselves as part of an indigenous people of African culture.137 To identify the group more precisely, the Commission used almost the same criteria as when identifying indigenous or tribal groups. It referred to the group’s self-​identification, self-​ organization, socio-​cultural institutions that differ from the rest of the society, and the Garífuna’s special relationship with the land. In contrast to prior cases concerning tribal and indigenous peoples, the iachr did not refer to the political organization of the community. Still, it remarked at the Garífuna’s own identity by referring to the existence of the Garífuna language, dance, and music. With a complementary approach to the iachr, the Court drew a concise definition of the Garífuna community. As evidence in this respect, the Court quoted a report by the World Bank Inspection Panel, which was submitted by the parties.138 It remembered the criteria set down in Article 1(2) of the ilo Convention 169 and emphasized the criterion of self-​identification as indigenous people. In addition, the tribunal stated that indigenous peoples exist regardless of the recognition by the state. Similar to the Commission, the tribunal understood the existence of the Garífuna’s own language, dances, and music as a symbol of the group’s identity. The unesco recognized such symbol as Masterpieces of the Oral and Intangible Heritage of Humanity in 2001.139 136 Garífuna Community of Punta Piedra and its Members v. Honduras [2013] 12.761, [2013] 1 (Inter-​American Commission on Human Rights) 6. 137 ibid paras 29–​30. 138 Garífuna Punta Piedra Community and its Members v. Honduras [2015] Series C No. 304, [2015] (Inter-​American Court of Human Rights) 23. 139 Garífuna Punta Piedra Community and its Members v. Honduras [2015] Series C No. 304, [2015] (Inter-​American Court of Human Rights) paras 82–​91. In this regard, see more on the unesco website: United Nations Educational, Scientific and Cultural Organization, ‘Language, dance and music of the Garifuna’ (2017) accessed 23 October 2018.

244 Chapter 5 To support its concise definition, the Court quoted the opinion of an expert witness. Mr. Anaya, former UN Rapporteur on the Rights of Indigenous Peoples, supported the application of the standards concerning the rights of tribal and indigenous peoples to the situation of the Garífuna community. He used two arguments. First, he understood that the Garífuna community had similar characteristics compared to indigenous peoples. Second, even in case the Garífuna community could not be considered as an original people of Honduras, the Court should regard it at least as a tribal people. Therefore, according to Mr. Anaya, the main difference between tribal and indigenous peoples is that the first people cannot be seen as the first inhabitants of the claimed region. The IACtHR followed the understanding of Mr. Anaya as an expert witness. Likewise, the Court avoided defining the Garífuna community as indigenous or tribal. It declared only that the community had an indigenous or tribal nature. This analysis observes that the Court’s narrow definition of the Garífuna community was not by chance. Its hidden intention was to boost the legitimation of the Court’s decision. During the public audience, the state contested for the first time the identity of the Garífuna community. It alleged that the territory claimed by the Garífuna Community of Punta Piedra was actually owned by a Misquita indigenous community. Likewise, according to the state, the Garífuna community was neither original to Honduras nor indigenous to the claimed territory and therefore it could not claim it as such.140 In other words, the Garífuna community of Punta Piedra did not have legal standing. In the preliminary exceptions, the Court dismissed this argument based on the principle of estoppel.141 Accordingly, since the state had not argued against the community’s identity before the audience, it could no longer claim that before the Court. Yet, the Court’s detailed explanation on the Garífuna community’s definition demonstrated its will to dismiss any doubt in this regard. This kind of detailed explanation has not appeared before in the Court’s jurisprudence. As a consequence, the Court’s detailed explanation created a solid precedent in the iahrs for the identification of tribal and indigenous peoples. Following its jurisprudence, the iahrs focused the community’s identification on the relationship between the indigenous people and its lands. In addition, the Inter-​American organs respected the singular self-​identification of the group as an indigenous people of African culture. At the end, they highlighted the 140 Inter-​American Court of Human Rights, Audiencia Pública –​Caso Comunidad Garífuna Punta Piedra y sus Miembros v. Honduras (2014). 141 Garífuna Punta Piedra Community and its Members v. Honduras [2015] Series C No. 304, [2015] (Inter-​American Court of Human Rights) para 56.

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distinct culture of the Garífuna community as a main requirement. The criticism of legal scholarship towards the connection between land rights and cultural identity has been analyzed elsewhere in this book.142 Notably, the Garífuna case highlights that the requirement concerning a connection between indigenous peoples and a historical continuity with a pre-​invasion society is absent in the iahrs. Such requirement is set down in Article 1 of the ilo Convention 169 and in the jurisprudence of the ACtHPR.143 In contrast, the iahrs recognized the possible application of the concept of “indigenous” to the Garífuna community who did not have a communal native status. Due to that, the iahrs differentiates itself from ilo Convention 169 and the jurisprudence of the ACtHPR. In doing so, the iahrs shows a flexible definition of indigenous peoples. Such flexibility answers the criticism in legal scholarship that was concerned about a possible strict definition of tribal and indigenous peoples.144 Furthermore, a main issue of the case at issue related to the elaboration on the state’s obligation to implement sanitation measures in tribal and indigenous territories. Honduras recognized property rights of the Garífuna communities. The controversial point was the extent of state’s obligation regarding sanitation measures, i.e. the guarantee of property rights. In this regard, the Inter-​American organs explained two important issues that engendered two additional state obligations pursuant to Article 21 of the achr. First, the state must implement sanitation measures at the latest by the time of the issuance of communal property title.145 Second, the state must guarantee an exclusive indigenous territory. On this subject, the Court explained that (emphasis ­added):146 1 42 See above in ­chapter 3, 3.1.1 Cultural Identity and Land Rights. 143 African Commission on Human and Peoples’ Rights v.  Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights) para 107. 144 Giovana F Teodoro and Garcia, Ana Paula N.L. ‘A Step Further on Traditional Peoples Human Rights: Unveiling the Key-​Factor for the Protection of Communal Property’ (2013) 5(1) Goettingen Journal of International Law 155 181. 145 Garífuna Punta Piedra Community and its Members v. Honduras [2015] Series C No. 304, [2015] (Inter-​American Court of Human Rights) para 186. 146 ibid para 181. Free translation by the author from the original in Spanish: “(…) En este sentido, para efectos del presente caso, el Tribunal entiende que el saneamiento consiste en un proceso que deriva en la obligación del Estado de remover cualquier tipo de interferencia sobre el territorio en cuestión. En particular, se realizará a través de la posesión plena del legítimo propietario y, de ser procedente y según lo acordado, mediante el pago de mejoras y la reubicación de los terceros ocupantes, a fin de que la Comunidad de Punta Piedra pueda hacer uso y goce pacífico y efectivo de su dominio pleno de la propiedad colectiva.”

246 Chapter 5 (…) Likewise, in the present case, the tribunal understands that the land rehabilitation consists in a process that produces the state obligation to remove any type of outside interference from the territory in question. Consistently, this process occurs through the full land possession of the legitimate owner. In addition, depending on the circumstances, the state will redress and relocate third parties. This process aims to guarantee that the Punta Piedra community may use and enjoy the full control of its collective property in a peaceful and effective way. 2.4 Garífuna of Triunfo de la Cruz Case, 2015 On the same day of the adoption of the decision concerning the Garífuna community of Punta Piedra, the Court adopted one regarding the Garífuna community of Triunfo de la Cruz.147 Despite this temporal similarity, both cases have many differences. The case of the Garífuna community of Triunfo de la Cruz may be regarded as a summary of the third wave of the iahrs jurisprudence regarding land rights. This case concerns all the issues, which are usually included in the cases concerning violations of property rights of tribal and indigenous peoples. This section offers a short summary of the case’s factual background. It then analyzes the main issues on which the Inter-​American organs elaborated. According to the Court’s decision, similar to other Garífuna communities, the members of the Triunfo de la Cruz community identified themselves as indigenous with Caribbean heritage. Accordingly, they claimed that they were descendants of Indian populations who intermarried with enslaved Africans. The IACtHR recognized that the Triunfo de la Cruz community had its own culture and constituted a differentiated ethnic group from the rest of the society. In addition, it highlighted that they had their own language and expressed it through dance rituals and music. Finally, the Court mentioned that the social structure of the community entailed political bodies, which organize all aspects of communal life. With respect to the lands, the Court’s decision stated that the Garífuna community of Triunfo de la Cruz lived in the village of Atlantida, close to the Caribbean Sea. Accordingly, this community developed a special relationship with its land and the natural resources therein, including forest, beaches, and coastal areas. The IACtHR mentioned that the community undertook economic 147 Comunidad Garífuna Triunfo de la Cruz y sus Miembros v. Honduras [2015] Series C No. 305, [2015] (Inter-​American Court of Human Rights).

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activities, which were essential for the subsistence and the preservation of its culture. Honduras had not fully recognized the communal territory of the Triunfo de la Cruz community. Indeed, the state raised controversies regarding the exact geographical location of the communal territory. Several territorial controversies were under analysis of the IACtHR in the complaint submitted by the community of Triunfo de la Cruz. In the complaint, the following issues were included: between 1993 and 1995 the state sold approximately 44 ha of lands, which it had previously granted to the community; the state created a national protected area within the territory claimed by the community; the state allowed the development of touristic projects in areas affecting alleged communal lands. In the merits of the decision, a central discussion was about the inclusion of water and maritime areas in the scope of indigenous lands.148 The Commission and the representatives of the victims argued that the indigenous territory included a beach and a coastal sea area. In response, the state contended that beaches and coastal sea areas were public goods and therefore it could not issue a title of property over those areas for exclusive use and possession by indigenous peoples. In the case at issue, the IACtHR considered as a proven fact that the Garífuna ethnic identity related to the beach and the sea. At the same time, the tribunal stated that it did not have sufficient evidence to rule on the extension of the Garífuna territory and therefore on whether the Garífuna territory included maritime areas or not. As a result, the Court’s binding judgment declared that the factual background implied the violation of state’s obligations pursuant to Article 21 of the achr. Concisely, it found a violation of the right of indigenous peoples and their members to use and enjoy property and their right to be consulted. Against this background, this analysis observes that an important aspect of the decision at issue was the elaboration on the difference between individual and communal property. Such difference was only implicit in prior judgments. In this regard, the most significant difference is that the individual property provides a space for housing. Conversely, the territory of a communal indigenous property is a place where members of tribal and indigenous peoples have their houses and develop their religious, economic, and cultural life. Likewise, the Inter-​American Commission differentiates between the concepts of functional habitat (as for communal property) and permanent residence (as for

148 Comunidad Garífuna Triunfo de la Cruz y sus Miembros v. Honduras [2015] Series C No. 305, [2015] (Inter-​American Court of Human Rights) paras 131–​137.

248 Chapter 5 civil property).149 Thus, the object of property differs in individual and collective cases. In the judgment at issue, the IACtHR avoided dealing with the controversy related to property rights over water portions of the Caribbean Sea. This analysis observes that it is evident that the IACtHR could have easily dismissed the state’s argument. By following its consolidated jurisprudence, the Inter-​ American Court could have affirmed that the state cannot justify the failure to fulfill its obligations laid down in the achr on the grounds of domestic laws –​ as Honduras did in the present case. The IACtHR decided not to take this argument into account. Rather, it limited its competence ratione materiae to claims regarding the territory of the Garífuna community that the state had already officially recognized. Such territory did not entail the claimed maritime areas and related beaches. In this context, this analysis remarks that the iahrs jurisprudence has recognized previously state’s obligations related to water and maritime areas located in tribal and indigenous lands. This follows implicitly the iahrs jurisprudence on Article 21 of the achr. The use and enjoyment of water and maritime areas by indigenous peoples is beyond controversy. For instance, the name of the Caribbean Sea derives from the Caribs, the dominant indigenous Native American occupants of the main islands at the time of Columbus’ first voyage in 1492.150 Indigenous peoples have a unique relationship with water and sea. Due to that, pursuant to the achr, the state must guarantee the use and enjoyment of traditionally used resources by tribal and indigenous peoples in accordance with their customs. These resources may include lakes, rivers, beaches, and coastal seas. Second, the state must consult with tribal and indigenous peoples when adopting decisions affecting their territories. By issuing concessions for the exploitation of maritime resources in tribal or indigenous lands to the benefit of third parties, the state must consult with the affected peoples. Those state obligations fall under the threshold of Article 21 of the achr read in conjunction with Article 1(1) thereof. In the case of complaints concerning indigenous territories including maritime zones, the states’ obligations pursuant to the achr should be read in

149 On this issue see the public hearing before the Inter-​American Court and especially the questions of the Inter-​American Commission to the expert witness Mr. José Aylwin: Inter-​ American Court of Human Rights, Audiencia Pública –​Caso Comunidad Garífuna Triunfo de la Cruz y sus Miembros v. Honduras (2014). 150 David Freestone and Clive Schofield, ‘The Caribbean Sea and Gulf of Mexico’ in Donald Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press 2015) 673.

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light of international legal instruments related to maritime regulation and enforcement. As the ECtHR demonstrated, it is important to interpret obligations arising from the international law of the sea in light of human rights law.151 Notably, almost all states parties to the achr are also parties to the unclos.152 In the iahrs, this type of interpretation finds a legal basis in Article 21(1) of the achr that subordinates the use and enjoyment of property to the interest of the society.153 Likewise, on a case-​by-​case basis, the fulfillment of international obligations according to treaties other than the achr may be understood as an interest of society. In fulfilling its obligations pursuant to the unclos, it might be necessary that the state consult with tribal and indigenous peoples. For instance, in accordance with the unclos, states parties must complete the process of delimitation of maritime areas.154 In case those areas include economic zones, it seems that tribal and indigenous peoples who have traditionally used maritime resources should be consulted. The jurisprudence of the hrc is an important source for the substantiation of this argument.155 Furthermore, in the case of the Triunfo de la Cruz community, the Inter-​ American organs specified the state’s obligation to entitle the community with its territory. In prior cases, the Court asserted that rather than it be a privilege to use the land, tribal and indigenous peoples and their members should receive the official title deed of their territory. Likewise, the threshold of Article 21 of the achr requires legal certainty about the use and enjoyment of property. Prior to the case under analysis, the nature of property title was not straightforward. Since then it became clear that a tribal and indigenous title deed must have an inalienable nature, i.e. it cannot be transferred or sold. Consequently, Article 21 of the achr does not comprise full ownership of tribal and indigenous peoples over their lands. The inalienable nature of 151 Women on Waves e outros c.  Portugal [2009] Application 31276/​05, [2009] (European Court of Human Rights) para 32. 152 United Nations Division for Ocean Affairs and the Law of the Sea, ‘Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements’ (4 August 2019)  accessed 27 August 2019. 153 For a comprehensive overview see Alejandra Gonza, ‘Artículo 21 –​Derecho a la propiedad privada’ in Christian Steiner and Patricia Uribe (eds), Convención Americana sobre Derechos Humanos: Comentario (Fundación Konrad Adenauer Stiftung 2014) 509–​510. 154 Tullio Treves, ‘Law of the Sea’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018) para 83. 155 Apirana Mahuika et al. v. New Zealand [2000] CCPR/​C/​70/​D/​547/​1993, [2000] (Human Rights Committee) paras 9.3–​9.4.

250 Chapter 5 an indigenous title deed makes illegal the sell, transfer or rent of communal lands. In other words, tribal and indigenous peoples have the rights to full use and enjoyment of their property whereas they do not have interest in property disposal. Therefore, this analysis concludes that tribal and indigenous peoples have property rights associated with the jus utendi and jus fruendi. The absence of full ownership of tribal and indigenous peoples over their lands is not exempt from criticism. Some scholars argue that it constitutes a restriction to property rights of tribal and indigenous peoples.156 From this point of view, the inalienable nature of tribal and indigenous property title constitutes an obstacle to the exercise of their autonomy. However, this analysis does not agree with such criticism. It is necessary to look at the context of tribal and indigenous peoples in order to understand the importance of an inalienable property title. In the case at hand, the Commission explained that this inalienable nature of property title is necessary to secure the legal stability of tribal and indigenous lands.157 In the same sense, the legal representatives of the victims stated that without an inalienable title, the state could take measures and these could affect tribal and indigenous peoples in a negative way.158 Therefore, due to the similar realities faced by tribal and indigenous peoples, the restriction of the disposal of their property imposed through an inalienable title deed is understood as a necessary measure of protection. Moreover, of great significance in the case under analysis was the solution of the controversy concerning environment protection and peoples’ rights. In this respect, a major controversy referred to the establishment of natural protected areas by the state in the claimed Garífuna territory. The Court’s decision confirmed the Commission’s interpretation that Article 21 of the achr required the state to comply with several obligations in order to create the natural protected area. Hence, this Garífuna case demonstrated that environment protection cannot be achieved at any cost. Importantly, it has to be achieved in light of the guarantee of tribal and indigenous peoples’ rights. Such balance between environment protection and group related rights is a current controversy in international human rights law. The African Court has judged a similar 156 Thomas M Antkowiak, ‘Rights, resources and rhetoric: Indigenous Peoples and the Inter-​ American Court’ (2013) 35 University of Pennsylvania Journal of International Law 113 160–​162. 157 Comunidad Garífuna Triunfo de la Cruz y sus Miembros v. Honduras [2015] Series C No. 305, [2015] (Inter-​American Court of Human Rights) para 183. 158 ibid para 184.

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case to the one of the Triunfo de la Cruz community.159 By doing so, the ACtHR decided in a similar way to the IACtHR.160 In this regard, it is fundamental to note that the Court has put more flexibility in the interpretation concerning the requirements of the state’s decisions impacting on tribal and indigenous lands. This evolving flexibility has been observed since the case of Kichwa People of Sarayaku v. Ecuador.161 In the Saramaka case, the Court’s decision referred to the state’s obligation to guarantee the sharing of benefits with the affected people that had originated from the exploitation of natural resources in tribal and indigenous lands. In the present Garífuna case, the Court declared that the state must only do the sharing of benefits with the community “as appropriate.”162 Consequently, in some cases, this analysis points out that the state may refrain from sharing benefits with the community affected by projects developed within the communal territory. The reason behind this change of interpretation concerning the requirement of benefit sharing is unclear. Still, in any case, it represents a step backwards regarding the threshold of Article 21 of the achr. Finally, a special feature of the Court’s decision in the case of the Triunfo de la Cruz community related to the concurrent opinion of Judge Sierra Porto.163 To a certain extent, it crystallized recent jurisprudential developments in contrast to the Court’s former decisions. Importantly, the Judge remarked the Court’s recognition of indigenous peoples as rights holders. Accordingly, such recognition enabled a link of continuity between the victims, i.e. subjects of the right to collective property, and the beneficiaries of reparations. Besides that, the second part of the Judge’s concurring opinion referring to collective reparations exposed a concise summary of the iahrs jurisprudence. Judge Sierra Porto explained the shortcomings of issuing individual reparations in cases concerning tribal and indigenous peoples (emphasis added):164

159 For instance see: African Commission on Human and Peoples’ Rights v. Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights). 160 ibid para 145. 161 Pueblo Indígena Kichwa de Sarayaku v. Ecuador [2012] Series C No. 245, [2012] 1 (Inter-​ American Court of Human Rights) para 157. 162 Cf. Saramaka People v. Suriname [2007] Series C No. 172, [2007] 1 (Inter-​American Court of Human Rights) para 129 and Comunidad Garífuna Triunfo de la Cruz y sus Miembros v. Honduras [2015] Series C No. 305, [2015] (Inter-​American Court of Human Rights) para 156. 163 Comunidad Garífuna Triunfo de la Cruz y sus Miembros v. Honduras [2015] Series C No. 305, [2015] (Inter-​American Court of Human Rights), Voto Concurrente del Juez Humberto Antonio Sierra Porto. 164 Comunidad Garífuna Triunfo de la Cruz y sus Miembros v.  Honduras [2015] Series C No. 305, [2015] (Inter-​American Court of Human Rights), Voto Concurrente del Juez

252 Chapter 5 Beyond that, to issue only individual reparations in cases dealing with tribal or indigenous peoples is inconsistent with their cosmologies and ways of life. In addition, this might negatively affect socio-​cultural communal aspects. For instance, individual reparations might create divergences among community members in case that individual reparation measures contradict communal customs and traditions. Due to that, measures of collective compensation such as ordered in this case through the communal development fund should be the general rule in cases concerning tribal and indigenous peoples; instead of the payment of individual reparations to members of the community. Obviously, there are some exceptions. The most prominent is the one related to a case, which concerns specific damages to some individual members of the community. 2.5 Kaliña and Lokono Case, 2015 The case of Kaliña and Lokono Peoples v. Suriname comprises a lot of similarities with the case of Saramaka People v. Suriname as analyzed in the previous chapter.165 The petitioners are different, whereas the topic is common: the absence of recognition by the Surinamese state of property rights of tribal and indigenous peoples. In this regard, a relevant fact is that Suriname had not ratified the ilo Convention 169. This section provides a short summary about the case combined with an analysis on the new developments related to Article 21 of the achr. According to the Court’s judgment, the Kaliña and Lokono peoples are two of the largest indigenous peoples of Suriname. They are known as the “Lower Marowijne River Peoples.” The source of the cultural identity and traditions of these peoples is the Marowijne River. They organize themselves in small communities comprising around 2,026 persons. Each community is supervised by a chief who is entitled to have two assistants. Those chiefs are responsible Humberto Antonio Sierra Porto para 55. Free translation by the author from the original decision in Spanish: “Es más, solo otorgar reparaciones individuales en casos de pueblos indígenas o tribales, además de ser inconsistente con su cosmovisón y modo colectivo de vivir, puede perjudicar el tejido social y cultural de las comunidades y generar división entre sus miembros por ir en contra de sus costumbres y tradiciones. Por tanto, la medida de compensación colectiva, ordenada en este caso a través de un Fondo de desarrollo comuntario, debe ser la regla general en casos que se tratan de pueblos indígenas y tribales y no el pago de reparaciones individuales a miembros de las mismas. La excepción más obvia a esta regla general serían los casos que tratan de daños específicos generados en perjuicio de ciertos individuos, miembros de una Comunidad.” 165 Pueblos Kaliña y Lokono v. Surinam [2015] Series C No. 309, [2015] 1 (Inter-​American Court of Human Rights).

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for organizing communal life and establishing diplomatic relations with the government and third parties. The state remunerates these assistants for their work with the chiefs. The Court’s decision proceeded by stating the proven facts. Among them, there was that the traditional territory of the Kaliña and Lokono peoples located itself in the Surinamese territory. It comprised an area of around 133,945 ha, with a geographical limit facing the territory of French Guiana. This territory was shared among the Kaliña and Lokono peoples and some N’djuka maroon peoples. In accordance with the Court, the Kaliña and Lokono peoples had a special relationship with their territory, which is also the source of their subsistence. Their main subsistence activities included agriculture, fishing, hunting, and gathering non-​timber forest products. The religious beliefs of those peoples related to the natural environment where subsistence activities took place. The IACtHR recognized that these beliefs produced restrictions to the exercise of some economic activities. For instance, due to religious reasons, the Kaliña and Lokono peoples did not hunt animals such as manatees, dolphins, and turtles. In view of increasing land conflicts, the Kaliña and Lokono peoples decided to file a complaint with the iahrs. In the factual background, the complainants mentioned the creation by the state of three natural protected areas within the Kaliña and Lokono’s territory. Additionally, they informed that the state granted property titles to non-​indigenous parties concerning a land that was contiguous to the claimed territory. Accordingly, this had a negative impact on indigenous lands. In the proceedings, the state raised preliminary objections that contested the group’s identity of the Kaliña and Lokono Peoples as indigenous. First, it claimed that some members of these peoples had been integrated to a non-​ indigenous population. Second, it alleged that the Kaliña and Lokono Peoples were not a homogenous group because of the irregular nature, scope and intensity of their relationship with the land. In response, the Commission contended that according to the iahrs jurisprudence, self-​identification is the most important aspect for identifying a group as indigenous. In a similar manner, the Inter-​American Court disregarded this state’s argument about the identity of the Kaliña and Lokono peoples. The IACtHR took it as a proven fact. Moreover, in the merits of the decision, the alleged possession by indigenous peoples over the lands was controversial. The Surinamese state brought the argument in its final written pleadings that the claimed indigenous lands were not in the possession of local communities.166 In this regard, the Court 166 Pueblos Kaliña y Lokono v. Surinam [2015] Series C No. 309, [2015] 1 (Inter-​American Court of Human Rights) para 40.

254 Chapter 5 concluded that it did not have sufficient information to decide on this matter. Yet, it remembered that when delimiting the territory of the Kaliña and Lokono peoples, Suriname should respect the rights of tribal and indigenous peoples. The IACtHR explained that the state together with maroon and indigenous peoples should develop rules aiming towards a peaceful and harmonic coexistence of these different peoples, living on common territory. The IACtHR recognized a continuous violation of Article 21 of the achr. In 1987 Suriname recognized the Court’s jurisdiction. Prior to this recognition, Suriname created the following natural protected areas within the claimed indigenous lands: Wia Wia Reserve (1966), Galibi Reserve (1969), and Wane Kreek Reserve (1986). In view of these facts, the Court declared that it was beyond its competence to analyze the alleged absence of participation of indigenous peoples in the state decisions concerning the creation of these protected areas.167 Yet, the IACtHR decided to assess facts, which have ongoing effects to the Kaliña and Lokono peoples, despite being originated prior to the state’s acceptance of the Court’s jurisdiction. Likewise, it examined the maintenance of the protected areas with alleged restrictions imposed by the state to the use of natural resources by indigenous peoples. At the end, the Court recognized a violation of Article 21 of the achr. In this regard, the Court explained that:168 The Court considers it important to refer to the need to ensure the compatibility of the safeguard of protected areas with the adequate use and enjoyment of the traditional territories of indigenous peoples. In this regard, the Court finds that a protected area consists not only of its biological dimension, but also of its socio-​cultural dimension and that, therefore, it requires an interdisciplinary, participatory approach. Thus, in general, the indigenous peoples may play an important role in nature conservation, since certain traditional uses entail sustainable practices and are considered essential for the effectiveness of conservation strategies. Consequently, respect for the rights of the indigenous peoples may have a positive impact on environmental conservation. Hence, the rights of the indigenous peoples and international environmental laws should be understood as complementary, rather than exclusionary rights. Likewise, to conciliate environmental protection with the protection of indigenous peoples’ rights, the Court articulated a compatibility test. In the case 167 Pueblos Kaliña y Lokono v. Surinam [2015] Series C No. 309, [2015] 1 (Inter-​American Court of Human Rights) paras 161–​162. 168 ibid para 173.

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at issue, the Commission alleged that the state had restricted unlawfully the rights of indigenous peoples for the sake of environmental protection. The Court decided that when a state creates and maintains natural protected areas affecting indigenous lands, it should guarantee that: (1) tribal and indigenous peoples participate in the adoption of decisions in this regard; (2) they access and use their traditional territories located in protected areas; (3) they receive eventual benefits originating from nature conservation. Those requirements constitute the compatibility test. According to the Court, the compatibility test has its basis in the American Convention interpreted in light of international law, especially the cbd.169 The right of tribal and indigenous peoples to have their collective legal personality has deserved a separate section in the Court’s judgment. The Commission and the legal representatives of the Kaliña and Lokono peoples alleged the violation of Article 3 of the achr read in conjunction with Articles 1, 2 thereof. In response, the state recognized that under international and Inter-​ American law indigenous peoples have the right to the recognition of their collective legal personality. Accordingly, Suriname contended that domestic laws set down rights and duties to the members of indigenous peoples without entitling them to legal personality. In light of those allegations, the IACtHR acknowledged that the absence of collective legal personality of the Kaliña and Lokono peoples constrained their legal capacity to obtain collective property titles. Therefore, the tribunal stated the violation of Article 3 of the achr read in conjunction with Article 2 thereof to the detriment of the Kaliña and Lokono peoples. In the last part of the decision, the IACtHR specified different types of reparations. Among others, the representatives of the victims asked the Court to order the establishment of a fund for community development that should be directly managed by the community. However, without explanation, in corroboration with state’s claims on reparations, the Court determined that the fund should be commonly managed by the community and the state.170 Additionally, the Court ordered that the state recognize all tribal and indigenous peoples with collective legal personality. In light of the Court’s decision, this analysis underscores the consolidation of the role of tribal and indigenous peoples as environmental stewards. This role consists in the development of environmentally sound land management by indigenous communities in accordance with international environmental 169 Pueblos Kaliña y Lokono v. Surinam [2015] Series C No. 309, [2015] 1 (Inter-​American Court of Human Rights) paras 174–​181. 170 ibid paras 292–​299.

256 Chapter 5 law. The iachr recognized for the first time such a role in the case of the Awas Tingni community. As examined previously, the role of tribal and indigenous peoples as guardians of nature was a focus of concern in legal scholarship.171 Yet, it is compelling to observe that this role is crystallized in the iahrs jurisprudence. The iahrs organs emphasized that tribal and indigenous peoples can contribute in a substantial way through their activities for environmental protection. Moreover, one of the innovations of this decision relates to the recognition of the continuous violation of Article 21 of the achr. As noted before, this matter was a sensitive issue for the IACtHR in cases concerning property rights.172 The judgment in the Kaliña and Lokono case inaugurated in the iahrs jurisprudence the notion of continuous violations related to Article 21 of the achr. By doing so, the IACtHR has adopted a similar approach to the one used by the ECtHR that has recognized continuous violations of property rights.173 Based on the Court’s decision, it is possible to infer that the concept of indigenous territory may include tribal peoples living within it. In its jurisprudence, the Inter-​American organs recognized the state’s obligation to guarantee an exclusive indigenous territory without the presence of third parties or non-​ indigenous persons.174 In the case under analysis, the IACtHR established the state’s obligations regarding tribal peoples living in indigenous territories. In doing so, the Court admitted implicitly that “an exclusive indigenous territory” may include the presence of tribal peoples. In other words, a shared territory among different groups fits into the concept of tribal and indigenous property. This contrasts with the concept of civil property that relates to the exclusive use of a certain geographical area. Interestingly, the Court supported the participation of tribal and indigenous peoples in the state’s decisions concerning the establishment and management of natural protected areas on the basis of Article 23 of the achr. This is very important to remark that environmental rights and the rights of indigenous peoples are compatible. The Court’s compatibility test elaborated in the decision at issue is a great legal tool for ensuring the compatibility of rights.

1 71 See above in ­chapter 3, 2.2.1.2 Procedural Issues: Legal Capacity. 172 See above in this chapter, Kuna and Emberá Case, 2014. The Court has a longstanding jurisprudence related to continuous violations in cases of gross violations of human rights such as enforced disappearances. In this regard see:  Velásquez Rodríguez v.  Honduras [1988] Series C No. 4, [1988] 1 (Inter-​American Court of Human Rights) para 155. 173 Loizidou v.  Turkey [1996] Application no.  15318/​89, [1996] (European Court of Human Rights) para 57. 174 See above in this chapter, 2.4 Garífuna Community of Triunfo de la Cruz Case, 2015.

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In the context of the jurisprudence on land rights, the decision in the case of Kaliña and Lokono peoples is the first one that established the link between participatory rights of indigenous peoples and Article 23 of the achr –​ the individual right to participate in state affairs. In prior cases, the Commission has tried to make this link without success.175 The reasons behind the Court’s new interpretation of Article 23 of the achr were controversial among the judges. The judgment under analysis did not explicitly address the rationale behind it. The concurring opinion to this judgment issued by Judges Sierra Porto and Ferrer Mac-​Gregor Poisot mentioned only that the interpretation of Article 23 of the American Convention was done in light of international standards.176 The partially dissenting opinion of Judge Pérez Pérez pointed to the unclear reasoning behind such an interpretation.177 He asserted that the proven facts amounted to a violation of Article 21 of the achr rather than of Article 23 of the achr. Thus, the recognition of participatory rights of indigenous peoples based on Article 23 of the achr remained controversial among the judges. Against this background, it must be noted that political rights of members of indigenous peoples pursuant to Article 23 of the achr are a sensitive topic for the IACtHR. As of August 2019, despite the many judgments on land rights, the Court has issued only a few decisions on the topic of political rights and indigenous peoples.178 Moreover, the striking feature of the decision at hand is the recognition of the collective legal personality of tribal and indigenous peoples. This enhances the level of recognition of collective human rights in international adjudication. The Court’s jurisprudence started with the recognition of the legal personality of members of tribal and indigenous communities, i.e. individual legal personality. After some time, in the case of the Kichwa Indigenous People of Sarayaku, the Court recognized tribal and indigenous peoples as collective subjects of international law. The case of the Kaliña and Lokono peoples may be understood as a consolidation of this evolution by recognizing pursuant 175 Pueblo Indígena Kichwa de Sarayaku v. Ecuador: Observaciones Finales [2011] 12.465, [2011] 1 (Inter-​American Commission on Human Rights) para 30. 176 Pueblos Kaliña y Lokono v. Surinam [2015] Series C No. 309, [2015] 1 (Inter-​American Court of Human Rights), Voto Concurrente Conjunto de los Jueces Humberto Antonio Sierra Porto y Eduardo Ferrer Mac-​Gregor Poisot para 11. 177 Pueblos Kaliña y Lokono v. Surinam [2015] Series C No. 309, [2015] 1 (Inter-​American Court of Human Rights), Voto Parcialmente Disidente del Juez Alberto Pérez Pérez paras 6–​9. 178 For example see Yatama v.  Nicaragua [2005] Series C No. 127, [2005] (Inter-​American Court of Human Rights); Norín Catrimán y otros (Dirigentes, Miembros y Activista del Pueblo Indígena Mapuche) v. Chile [2014] Series C No. 279, [2014] (Inter-​American Court of Human Rights).

258 Chapter 5 to Article 3 of the achr the right to a collective legal personality of tribal and indigenous peoples. However, it is important to observe that this recognition of the collective legal personality of tribal and indigenous peoples was not a result of consensus among the Judges. The partially dissenting opinion of Judge Pérez Pérez to the judgment under analysis argued that the recognition of the violation of Article 3 of the American Convention was not in accordance with a systematic interpretation of the American Convention.179 Indeed, the Judge supported a more conservative approach on this matter as the one expressed by the IACtHR in the decision Saramaka People v.  Suriname  –​individual legal personality instead of collective legal personality. Likewise, he contended that the correct legal basis for the recognition of the legal personality should be Article 21 of the achr. Importantly, such recognition should be to the benefit of individual members of tribal and indigenous peoples (and not a collective entity). Despite the absence of consensus among the Judges, this analysis points out that the collective legal personality of tribal and indigenous peoples is consolidated under the iahrs. The Commission’s approach supports this argument. In addition, an advisory opinion subsequent to the decision concerning the Kaliña and Lokono peoples declared that tribal and indigenous peoples are subjects of the rights set down in the American Convention.180 In a partially dissenting opinion to this advisory opinion, Judge Pérez Pérez repeated his understanding as expressed in the case of Kaliña and Lokono peoples. These opinions have clearly demonstrated that the other Judges of the IACtHR have overruled the view of Judge Pérez Pérez two times. Thus, Judge Pérez Pérez’s view represents only a minority position in the iahrs.181 2.6 Xucuru Case, 2018 After three years without issuing any decision on indigenous land rights, in 2018 the IACtHR delivered the first decision against Brazil on this topic.182 This section offers a brief summary of the case, followed by the respective examination of the case’s aspects related to Article 21 of the achr. 179 Pueblos Kaliña y Lokono v. Surinam [2015] Series C No. 309, [2015] 1 (Inter-​American Court of Human Rights), Voto Parcialmente Disidente del Juez Alberto Pérez Pérez 1–​5. 180 Opinión Consultiva 22/​16 –​Titularidad de Derechos de las Personas Jurídicas en el Sistema Interamericano de Derechos Humanos [2016] Series A  No. 22, [2016] (Inter-​American Court of Human Rights) 47. 181 Against this understanding:  Lucas Lixinski, ‘Case of the Kalina and Lokono Peoples v. Suriname’ (2017) 111(1) The American Journal of International Law 147-​154 152. 182 Pueblo Indígena Xucuru y Sus Miembros v.  Brasil [2018] Series C No. 346, [2018] (Inter-​ American Court of Human Rights).

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The case of the Xucuru people has proceeded in accordance with the iahrs procedural rules. The iachr admitted the case in 2009.183 After internal proceedings, it adopted the report on merits, which it forwarded to the state and then to the IACtHR.184 In 2017, the IACtHR held the public hearing of the case and published the decision one year later. The Court’s sentence started with the analysis of the five preliminary objections raised by the Brazilian state and the evidence presented by the parties. A concise examination dismissed the preliminary objections. By dismissing it, the Court remarked that its competence related to the facts occurred after the state’s acceptance of the tribunal’s jurisdiction. Likewise, it declared that the events associated with the demarcation of the Xucuru indigenous land that occurred from 1989 until 10 December 1998 were out of the scope of the Court’s competence. In addition, the IACtHR admitted among others the affidavits of Ms. Victoria Tauli-​Corpuz, United Nations Special Rapporteur on the Rights of Indigenous Peoples since 2014, and Mr. Christian Teófilo da Silva, professor at the University of Brasilia (Brazil). Also, it accepted the expert witness statement received by Mr. Christian Teófilo da Silva and the witness Mr. José Sérgio de Souza, staff member of the Brazilian National Indian Foundation (funai). In their preliminary considerations, the Judges remarked that the representatives of the victims did not submit evidence or initial written statements. Thus, the analysis of the final written statements submitted by the representatives of the victims would be relevant only in the parts compatible with the Commission’s allegations. With respect to the factual background, the IACtHR recognized the Xucuru Indigenous Peoples of Ororubá as a historical indigenous people based in Brazil. It remarked the political organization of the Xucuru community and stated that some of its members had been living outside the indigenous territory in the city of Pesqueira. In addition, the tribunal declared under its competence the examination of the harassment against the leaders of the Xucuru people that had emerged as a consequence of the land conflict. The IACtHR began the analysis of the merits with reference to Articles 21, 25 and 8 of the achr. In this regard, the representatives of the victims alleged that the Xucuru people had been waiting for 27 years to have the peaceful and exclusive use and enjoyment of its territory. The Brazilian state contested this argument by stating that the Xucuru indigenous land had been demarcated for 183 Informe No. 98/​09  –​Pueblo Indígena Xucuru (Brasil) [2009] Petición 4355-​02, [2009] (Inter-​American Commission on Human Rights). 184 Report No. 44/​15 –​Xucuru Indigenous People (Brazil) [2015] 12.728, [2018] (Inter-​American Commission on Human Rights).

260 Chapter 5 more than ten years. Accordingly, the presence of third parties in the indigenous land was accepted by the Xucuru people. In light of those arguments, the IACtHR recalled its established jurisprudence that protects tribal and indigenous lands through the evolutive interpretation of Article 21 of the achr. It explained the relationship between the principle of legal certainty (principio de seguridad juridica) and the protection of communal property. According to the Court, the failure to remove non-​indigenous individuals from the territory of indigenous peoples reflects on the failure to guarantee legal certainty regarding the use and enjoyment of the land by the indigenous people. The demarcation of the indigenous land was not sufficient to comply with the requirements of Article 21 of the achr. Combined with the demonstrated partial ineffectiveness of the process for guaranteeing indigenous land tenure, the state’s acts have caused a violation of Articles 21 and 25 of the achr read in conjunction with Article 1(1) thereof. Due to the absence of sufficient evidence, the IACtHR rejected the allegations of the victims’ representatives with respect to a violation of Article 2 of the achr read in conjunction with Article 21 thereof. According to the complainants, the domestic legal procedure for the recognition of indigenous land tenure was flawed and therefore violated the provisions of the achr. At the final part of its judgment, the Court established reparations. As a measure of restitution, the Court ordered the state to remove non-​indigenous persons from the Xucuru land within a time period of up to eighteen months. In case this is not possible due to objective and justified reasons, Brazil should, in agreement with the Xucuru people, provide them with alternative lands within a one year period. In addition, the IACtHR set the establishment of a development fund by the state to the benefit of the indigenous people as a matter of redress for collective moral damage. The state should implement this measure in a period no longer than eighteen months after the issuance of the Court’s sentence. In addition, the IACtHR requested that the state pay the costs and expenses of the complainants. In view of this decision, it is compelling to note the many links of connection between this decision and the previous ones of the third wave of jurisprudence. Similar to the judgment in the Kichwa of Sarayaku case, the Inter-​American Court recognized the indigenous peoples as a group entitled to collective legal capacity.185 Additionally, similar to the Kaliña and Lokono case, it recognized implicitly the continuous violation of Article 21 of the achr.186 In the Xucuru case, the demarcation of the indigenous lands was initiated before 1 85 See above in this chapter, 1.2.3.2 The Recognition of Collective Rights Holders. 186 See above in this chapter, 2.5 Kaliña and Lokono Peoples Case, 2015.

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the state’s acceptance of the Court’s jurisdiction. Therefore, the tribunal could not analyze the beginning of the demarcation process. Yet, it decided that the ongoing effects of the demarcation process were under its competence and they amounted to a violation of Article 21 of the achr. Remarkably, the IACtHR expanded the concept of indigenous persons. A  key feature of indigenous lifestyles refers to the use of extensive land and natural resources by indigenous peoples. As a consequence, the concept of indigeneity is attached to lands. The Inter-​American organs have demonstrated this understanding in several decisions. In the case at issue, the IACtHR goes beyond its established jurisprudence by recognizing the existence of indigenous individuals living outside the indigenous territory. Despite being innovative, the Court’s understanding is in accordance with its prior established jurisprudence. The Court considers “self-​identification as indigenous people” a main criterion for the definition of indigenous peoples.187 It has been consistent by not scrutinizing the reasons behind alleged self-​identification. Against this background, it must be noted that the Court’s approach enables a better protection of indigenous peoples. The Court’s approach stands against state arguments that claim the assimilation of indigenous peoples as a reason for justifying the loss of land rights. This type of argument is usual in complaints concerning indigenous land rights. In accordance with the iahrs jurisprudence, indigenous persons living in cities outside the indigenous territory that identify themselves as indigenous and are recognized by an indigenous people as such should be regarded as indigenous. The notable features of the decision in the Xucuru case relate to the development of procedural dimensions of the right to property. With the decision in the matter of Xucuru, the Inter-​American Court raised the standard associated with Article 21 of the achr. It became clear that this provision raises the state obligation to develop an administrative procedure to protect indigenous lands. This procedure should include the delimitation, demarcation, entitlement, and removal by the state from non-​indigenous persons living in the indigenous territory. The state must guarantee the peaceful enjoyment of the land by indigenous peoples, including through the removal of any civil obligation of indigenous peoples concerning the land toward third persons. In addition, based on the decision in the Xucuru case, the administrative procedure for protecting indigenous lands must occur within a reasonable time frame. To examine the fulfillment of the requirement of a reasonable time frame, the IACtHR has developed a test with four requirements: the complexity of the issue, the 187 See in ­chapter 4, 1.2.2.2 Procedural Issues: Legal Capacity.

262 Chapter 5 procedural activity of the plaintiff, the performance of the judicial authorities, and the degree of impact of the issue on the involved person.188 With the development of procedural dimensions to land rights, the Inter-​ American organs have consolidated a comprehensive framework of protection for tribal and indigenous lands. This framework goes beyond domestic laws of many Inter-​American states and the standards of international human rights law. Neither undrip nor ilo Convention 169 set forth with so many details the procedural aspects of indigenous land rights, especially in case of conflict with the rights of third parties or environmental law.189 This constitutes an innovation of the iahrs. Notably, in the cases with respect to tribal and indigenous peoples, the Inter-​American organs have created a dual dimension to the right to property. Accordingly, they created de lege ferenda negative and positive obligations to states that transformed the very nature of Article 21 of the achr. This provision is an example of an individual and collective right that entails social and environmental aspects. Indeed, in the Inter-​American system, the right to property has a dual nature resulting from the intertwinement between civil and political rights, on the one side, and economic, social, and cultural rights, on the other side. 3

Interim Conclusions

This section assesses this chapter’s findings in light of the Inter-​American jurisprudence and general international human rights law. It conceptualizes the third wave of jurisprudential developments. Additionally, it contrasts this assessment with the results of previous chapters. By doing so, this section comes close to the final conclusions. Yet, the proper final conclusions, which relate to the responses to the research inquiries, are left to the next chapter. The structure of this section is as follows. Subsection one summarizes this chapter and compares it with previous chapters. It summarizes all the waves of jurisprudential developments. Subsection two assesses the general impact of the case law concerning tribal and indigenous lands on the iahrs. Subsection three analyzes the contribution of the iahrs jurisprudence to general international human rights law. This contribution concerns procedural corollaries 188 Pueblo Indígena Xucuru y Sus Miembros v.  Brasil [2018] Series C No. 346, [2018] (Inter-​ American Court of Human Rights) para 135. 189 For a similar argument see Gaetano Pentassuglia, ‘Towards a Jurisprudential Articulation of Indigenous Land Rights’ (2011) 22(1) European Journal of International Law 165 202.

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to complaint mechanisms of judicial and quasi-​judicial international human rights bodies. 3.1 Summary of Chapter 5 and Its Relationship with the Chapters 3–​4 Chapter five conceptualized the third wave of jurisprudential developments concerning land rights of tribal and indigenous peoples and their members. It contained two analytical sections, which this part summarizes and then ­analyzes. The first part of this chapter concerned the landmark case Kichwa Indigenous People of Sarayaku v. Ecuador.190 The essential aspects of this case characterized the third wave of jurisprudence. The doctrinal basis behind this wave refers to the transformative concepts of cultural identity and vulnerability. These concepts have been developing in iahrs jurisprudence since the case of the indigenous community of Awas Tingni.191 Accordingly, the preservation of indigenous peoples’ cultural identity is the main reason for the protection of indigenous territories. Moreover, the situation of vulnerability, which differentiates tribal and indigenous peoples from the rest of the society, has legal consequences, raising obligations to states parties to the achr. In contrast to the previous jurisprudence, the case of the Kichwa Indigenous People of Sarayaku developed new aspects related to Article 21 of the achr. In this case, there was a focus on participatory rights of tribal and indigenous peoples as they relate to property rights. As explained in details above in this chapter, both the Commission and the Court elaborated on this matter. Notably, the Inter-​American organs remarked that the source of the state’s obligation to consult was the American Convention. Conversely, in analyzing state’s compliance with this obligation, the Court used the benchmark of international law. Likewise, it decided that the entry into force of this obligation to Ecuador referred to the date of the ratification of the ilo Convention 169. In view of that, this analysis notes the following inconsistency. Considering that the achr is the source of the state’s obligation to consult, the date of the ratification of the achr should have been considered by the IACtHR as the start date of this obligation to Ecuador. Through the analysis of the Sarayaku case, part one explored major developments concerning the collective legal capacity of tribal and indigenous peoples. Concerning the role of the Kichwa People of Sarayaku as petitioners, this analysis demonstrated the achievement of an autonomous role in the

1 90 See above in this chapter, 1. Recognizing Collective Rights Holders. 191 See in ­chapter 3, 2.3.1 Rationale Behind It & International Law.

264 Chapter 5 complaint procedure. Significantly, for the first time, both the Commission and the Court recognized an indigenous people as right holders of Article 21 of the achr.192 As a consequence, indigenous peoples acquired the status of collective victims. In this context, the Commission softened individually framed requirements of admissibility. Since the admissibility decision in the Sarayaku case, the Commission has no longer required a list of the individual members of the indigenous people considered as victims in the complaint. Instead, it has analyzed the fulfillment of admissibility requirements by analyzing three criteria: (1) that the members of the community may be individually identifiable; (2) that the community has an internal communal organization; (3) that the community is attached to a geographical location. Thus, collective entities, which could be determined, were regarded as proper victims and beneficiaries of reparations. Concerning the collective legal capacity of indigenous peoples as victims, the Sarayaku case reinforced the identification criteria of indigenous peoples as established in the iahrs case law. Building on their consolidated jurisprudence, the Inter-​American organs restated the subjective and objective elements of the definition of indigenous peoples. In this regard, the key features are self-​identification and spiritual relationship of the people to its land. The second part of this chapter concerned other decisions that followed the path started by the Sarayaku case.193 These cases crystallized the third wave. They underscored the consolidation of the concept of tribal and indigenous collective property. As demonstrated above, this concept comprises both material goods such as lands and natural resources thereof (including lakes, rivers, beaches, and coastal seas) and intangible goods such as the spiritual relationship between indigenous peoples and their lands. The protection of such collective property raises several state obligations that have been evolving in the iahrs jurisprudence. In this regard, a notable example is the state obligation to guarantee an exclusive indigenous territory, which is inalienable, imprescriptible, without the presence of third parties and non-​indigenous persons. Such obligation associated with Article 21 of the achr did not exist prior to the third wave of jurisprudence. Moreover, the second section of this chapter clarified the content of land rights of tribal and indigenous peoples pursuant to Article 21 of the achr. First, the right to property does not include full ownership by tribal and indigenous peoples. Accordingly, these peoples have the right to use and enjoy 192 In prior cases, the IACtHR considered only individual members of indigenous communities as victims. 193 See in this chapter, 2. Afterkichwaofsarayaku.com.

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their property whereas disposal is limited. In light of the inalienable nature of tribal and indigenous property deeds, the property may not be sold or rented. In other words, indigenous land rights concern the jus utendi and jus fruendi or uti, frui.194 Second, the nature of the right to property enables the recognition of continuous violations of Article 21 of the achr. This is the case, for instance, when the state maintains environmentally protected areas on indigenous lands without consultation with the indigenous people affected about the management of such areas. To assert this type of continuous violation in environmental cases, the Court has elaborated a compatibility test. Notably, the second section of this chapter indicated that the Inter-​ American organs consolidated the legal capacity of tribal and indigenous peoples. Both the Commission and the Court agreed that tribal and indigenous peoples and their members may be considered victims of violations of Article 21 of the achr. In other words, they were victims in an individual and collective sense. In answering the state’s allegations on the absence of the indigeneity of certain indigenous peoples, the Inter-​American organs highlighted that self-​identification was the key feature for identifying a people. The prior occupation in time of a certain geographical area was dismissed as identification criterion for tribal and indigenous peoples. Of great importance was that the recognition of the collective legal capacity of tribal and indigenous peoples was combined with procedural measures. Tribal and indigenous peoples acquired an active locus standi in judicio under the iahrs complaint mechanism. These developments characterize the third wave as a double-​edged sword in view of prior waves. On the one hand, there is a certain continuity between the prior case law and the cases of the third wave. Prior jurisprudential developments were not ignored, but rather complemented by the third wave. For instance, the whole iahrs jurisprudence on tribal and indigenous lands has been building on the transformative concepts of vulnerability and cultural identity. Additionally, the thematic focus of the case docket of the third wave is similar to the one of the second wave. Likewise, the third wave elaborates on the concept of communal tribal and indigenous property that started in the first wave. Thus, there is not a contradiction between this wave and the prior ones. On the other hand, the third wave contains certain unique features related to property rights. Through this perspective, the third wave is a singular new development in the iahrs. First, there is a close connection between the interpretation of the Commission and the 194 Lenzerini F, ‘Land Rights’, Sofia Conference (2012) –​ILA Final Report –​Rights of Indigenous Peoples (2012). See also African Commission on Human and Peoples’ Rights v. Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights) para 124.

266 Chapter 5 Court. Second, the legal capacity of tribal and indigenous peoples has a dual character comprising an individual and collective nature. Such character is a result of a historical development. In the first wave, only members of tribal and indigenous communities were considered as victims and beneficiaries of reparations. In the transitional wave, members of tribal and indigenous communities were regarded as victims whereas these communities were seen as injured parties. In the third wave, all three categories of legal capacity –​i.e. capacity as petitioner, as victim, as beneficiary of reparations –​acquired a collective legal character. In parallel, the individual capacity of members of tribal and indigenous peoples remained. Third, the legal nature of Article 21 of the achr is individual and collective. The cases of the third wave demonstrated that the right to property aims to protect the cultural identity of tribal and indigenous peoples. In addition, such peoples have an internal communal organization that enables them to be rights holders of the right to property. It is compelling to recognize that Article 21 of the achr contains both an individual and a group right.195 Notably, it was the third wave of jurisprudential developments that solved the problem with the requirement of the individualization of groups.196 Such problem was a substantial constraint on collective complaints in the iahrs complaint mechanism. As explained above, this issue had started at the reparations stage of the case Aloboetoe et al. v. Suriname.197 The origins of this issue related to the established iahrs competence ratione materiae and ratione personae. By solving this long-​standing problem, the Inter-​American organs expanded their competence. As a consequence, the third wave of jurisprudence consolidated the normative basis for the protection of tribal and indigenous lands in the iahrs. Article 21 of the achr does not make any mention of tribal or indigenous peoples. Through the jurisprudential developments over the years, the Inter-​ American organs filled a gap that worked against a proper solution for land conflicts affecting tribal and indigenous peoples. The concrete result is the elaboration of a normative framework that contains material and procedural tools that are essential for protecting tribal and indigenous lands. While this 195 Group rights do not have a universal definition in international law. The concept used in this analysis refer to: Nicola Wenzel, Das Spannungsverhältnis zwischen Gruppenschutz und Individualschutz im Völkerrecht (Univ. Diss. Heidelberg, 2006. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht vol 191, Max-​Planck-​Institut für ausländisches öffentliches Recht und Völkerrecht Heidelberg 2008) 27. 196 For a detailed analysis on this issue see above ­chapter 4, 3.2 The Inter-​American Backdoor Approach. 197 See above in ­chapter 3, 1. An Important Precedent: The Aloeboetoe Case.

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framework is not exempt from criticism or improvement, its content constitutes a solid basis for the adjudication of complaints by tribal and indigenous peoples. Finally, this book highlights that the conceptualization of Article 21 of the achr through waves of jurisprudence is innovative in legal scholarship. So far only the Spanish-​written literature had differentiated between the approaches of the iachr to tribal and indigenous peoples.198 Other Spanish-​writing scholars have highlighted the emerging trend in the iahrs concerning the recognition of group rights.199 Yet, they have not examined the consequences of such recognition. Thus, this book represents a truly innovative contribution to legal scholarship, especially to the English-​language literature on the iahrs. 3.2 General Effect of the Third Wave on the Inter-​American System The third wave of jurisprudence consolidates the iahrs normative framework concerning the land rights of tribal and indigenous peoples that includes substantive and procedural law. The third wave of jurisprudence has had a general impact on the iahrs that goes beyond the complaints on land rights. This section elucidates such general impact on other cases in the Inter-​American system. The structure of this section is as follows. Subsection one differentiates individual from collective property. Subsection two examines the expansion of the iahrs jurisdiction. 3.2.1 Individual v. Collective Property The third wave has consolidated a normative basis for the protection of tribal and indigenous lands. Such consolidation has made the differences between individual and collective property even more explicit. Those differences are not de lege lata. Rather, the Inter-​American organs have built them by interpreting 198 Claudio Nash Rojas, ‘Los derechos indígenas en el sistema interamericano de derechos humanos’ (2008) 1(1) Inter-​American and European Human Rights Journal 61 63–​67; Luis R Pinero Royo, ‘El sistema interamericano de derechos humanos y los pueblos indígenas’ in Mikel Berraondo (ed), Pueblos indígenas y derechos humanos (Serie Derechos humanos vol 14. Universidad de Deusto 2006) 159–​164; Elizabeth Salmón, Los pueblos indígenas en la jurisprudencia de la corte interamericana de derechos humanos: Estándares en torno a su protección y promoción (Cooperación Alemana al Desarrollo (gtz) 2010) 35–​40. 199 Gajardo Falcón, Jaime Eduardo, ‘Nuevas perspectivas de los derechos de los grupos a partir del análisis de la jurisprudencia de la Corte Interamericana de Derechos Humanos sobre los derechos de los pueblos indígenas’ (2014) 3(5) Revista Tribuna Internacional 43 60–​64; José M Sauca and Isabel Wences, ‘Derechos colectivos (en la doctrina de la Corte Interamericana de Derechos Humanos)’ (2015 –​2016) 9 Eunomía Revista en Cultura de la Legalidad 195 201.

268 Chapter 5 Article 21 of the achr. This analysis explores such differences. It indicates five differences between individual and collective property. Beyond these distinctions, it is important to keep in mind that the rights holders of individual and collective property rights are different. First, there is a difference regarding the object of property. The object of individual property relates to material goods. Usually, it concerns smaller portions of lands compared to tribal and indigenous lands. This small size of individual property reveals another difference –​the distinct use of territory by individual and collective owners. Individual owners usually use their territorial space for housing whereas tribal and indigenous peoples develop different aspects of their communal life.200 Consequently, different from individual property, collective property relates to both material goods (lands and natural resources therein) and intangible goods (the special relationship of tribal and indigenous peoples to their lands). Notable exceptions in this regard are copyrights and rights related to social benefits. In those cases, the IACtHR has recognized the non-​material feature of the object of property.201 Second, there is a distinction regarding the nature of reparations in cases dealing with individual property and communal property. In decisions regarding individual property, redress measures have mainly an inter partes effect. In other words, they aim to solve a situation resulting from a violation of a Convention’s right to the benefit of the victim. In individual cases, the Commission and the representatives of the victims have asked for reparations with an impact beyond the case at hand.202 For instance, they have requested the adoption and implementation by the state of a mechanism to ensure compliance with judicial decisions issued by domestic courts. In response, the Court has been demonstrating its unwillingness to order to redress measures with an effect beyond inter partes. In fact, the Court has issued reparation measures with a general impact only in a few cases on individual property rights.203 In 200 As explained above in this chapter, 2.4 Garífuna Community of Triunfo de la Cruz Case, 2015. 201 Five Pensioners v. Peru [2003] Series C No. 98, [2003] (Inter-​American Court of Human Rights) para 102; Palamara-​Iribarne v. Chile [2005] Series C No. 135, [2005] (Inter-​American Court of Human Rights) para 103. 202 Salvador Chiriboga v.  Ecuador [2011] Series C No. 222, [2011] (Inter-​American Court of Human Rights) paras 130–​131; Acevedo Buendía et al. (Discharged and Retired Employees of the Comptroller) v. Peru (2009) Series C No. 198 (Inter-​American Court of Human Rights) para 140; Five Pensioners v.  Peru [2003] Series C No. 98, [2003] (Inter-​American Court of Human Rights) paras 169–​171; Ivcher-​Bronstein v. Peru [2001] Series C No. 74, [2001] 1 (Inter-​American Court of Human Rights) para 161. 203 Chaparro Álvarez and Lapo Íniguez v.  Ecuador [2007] Series C No. 170, [2007] (Inter-​ American Court of Human Rights) paras 266–​269; Ituango Massacres v. Colombia (2006)

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contrast, in cases dealing with tribal and indigenous peoples, the Court has been focusing on reparations with an erga omnes effect. These measures aim to solve land-​related problems of an undetermined number of tribal and indigenous peoples of the country where the violations of the Convention’s rights have occurred, i.e. large-​scale human rights violations. Of special importance in this regard are the reparation orders concerning the creation by the state of a communal development fund to the benefit of the victims, and the establishment of a domestic mechanism to guarantee tribal and indigenous peoples’ land rights.204 Only in a few cases concerning tribal and indigenous peoples has the Court not issued reparations with an erga omnes nature.205 Third, there is a difference regarding the property rights and related restrictions associated with Article 21 of the achr. Individual property generates full ownership of property –​jus utendi, jus fruendi and jus disponendi or uti, frui, fui.206 Conversely, communal property raises limited ownership rights because tribal and indigenous peoples cannot dispose of their lands.207 Moreover, the Inter-​American organs have interpreted restrictions to property rights of tribal and indigenous peoples more strictly in comparison to individual owners. In case of restrictions to property rights of individuals, the Court has elaborated a proportionality test in order to verify alleged violations of the American Convention.208 In contrast, in case of any interference affecting tribal

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Series C No. 148 (Inter-​American Court of Human Rights) para 409; Palamara-​Iribarne v. Chile [2005] Series C No. 135, [2005] (Inter-​American Court of Human Rights) paras 254–​258. For a comprehensive review on the topic of reparations to tribal and indigenous peoples in the iahrs see: Thomas M Antkowiak, ‘A Dark Side of Virtue: The Inter-​American Court and Reparations for Indigenous Peoples’ (2014) 25(1) Duke Journal of Comparative & International Law 1; Diana Contreras-​Garduño and Sebastian. Rombouts, ‘Collective Reparations for Indigenous Communities Before the Inter-​American Court of Human Rights’ (2010) 27(72) Merkourios 4; Ángel Salvador Ferrer, ‘El fondo de desarrollo comunitario como reparación colectiva para las comunidades indígenas’ (2015) 62 Revista del Instituto Interamericano de Derechos Humanos 57. Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Miembros v. Panamá [2014] Series C No. 284, [2014] 1 (Inter-​American Court of Human Rights), Puntos resolutivos, paras 9–​17; Comunidad Moiwana v. Suriname [2005] Series C No. 124, [2005] (Inter-​ American Court of Human Rights), Puntos resolutivos, paras 1–​11. Lenzerini F, ‘Land Rights’, Sofia Conference (2012) –​ILA Final Report –​Rights of Indigenous Peoples (2012). See also African Commission on Human and Peoples’ Rights v. Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights) para 124. See above in this chapter, 2.4 Garífuna Community of Triunfo de la Cruz Case, 2015. Salvador Chiriboga v. Ecuador [2008] Series C No. 179, [2008] (Inter-​American Court of Human Rights) paras 67–​76; Chaparro Álvarez and Lapo Íniguez v. Ecuador [2007] Series C No. 170, [2007] (Inter-​American Court of Human Rights) para 174; Palamara-​Iribarne v. Chile [2005] Series C No. 135, [2005] (Inter-​American Court of Human Rights) para 108;

270 Chapter 5 and indigenous lands, the state has to comply with its obligations as they refer to the proportionality and compatibility tests.209 Additionally, the Inter-​ American organs require the fulfillment of additional obligations by the state that aim to protect the cultural identity of tribal and indigenous peoples.210 These additional obligations are called in the case law as “safeguards.” In its decisions regarding tribal and indigenous lands, the Court has disregarded the state’s compliance with the proportionality test. The Court’s analysis in many decisions lies in the state’s compliance with the safeguards. The Court’s inconsistent application of the proportionality test has been the focus of criticism in legal scholarship. Antkowiak claimed that the Court’s decisions have accepted a wide range of restrictions to indigenous land rights.211 According to him, the Court’s jurisprudence indicated an increasing deference to states that erodes the protection of communal property pursuant to Article 21 of the achr. As evidence in this regard, Antkowiak referred to the judgments in Salvador Chiriboga and Kichwa Indigenous People of Sarayaku v. Ecuador. To tackle this problem, he suggested that the Court change the structural basis of indigenous rights to Article 4 of the achr.212 This analysis does not corroborate such criticism. Based on the jurisprudential analysis, this book shows that there is a solid framework protecting tribal and indigenous property. Since 2001, the Inter-​American organs have elaborated on state obligations related to Article 21 of the achr in order to protect communal property. In doing so, these organs have established progressively the state’s obligations to guarantee the protection of tribal and indigenous lands. It is true that the Inter-​American organs could have achieved a higher degree of protection by consistently applying the proportionality test. Yet, a substantial degradation of the protection of communal property in the iahrs jurisprudence is not a recognizable trend. Moreover, against Antkowiak’s argument, this analysis observes that Article 21 of the achr offers a better structural basis for the protection of tribal

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Five Pensioners v. Peru [2003] Series C No. 98, [2003] (Inter-​American Court of Human Rights) para 116; Ivcher-​Bronstein v. Peru [2001] Series C No. 74, [2001] 1 (Inter-​American Court of Human Rights) para 128. Saramaka People v. Suriname [2007] Series C No. 172, [2007] 1 (Inter-​American Court of Human Rights) para 139; Pueblos Kaliña y Lokono v. Surinam [2015] Series C No. 309, [2015] 1 (Inter-​American Court of Human Rights) para 181. See above in ­chapter 3, 3.2 Yakye Axa Case, 2005. Thomas M Antkowiak, ‘Rights, resources and rhetoric: Indigenous Peoples and the Inter-​ American Court’ (2013) 35 University of Pennsylvania Journal of International Law 113 164. See similarly Thomas M Antkowiak and Alejandra Gonza, The American Convention on Human Rights: Essential Rights (Oxford University Press 2017) 282–​283.

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and indigenous lands than Article 4 of the achr. The fundamental value of life protected under Article 4 of the achr engenders the consequence that this right is absolute. Likewise, the right to life prevails in a conflict with other rights and it does not accept any restriction.213 Conversely, the structure of Article 21 of the achr enables de lege lata restrictions. These restrictions are crucial to resolve land conflicts between states and tribal and indigenous peoples. The elaboration of an adequate framework for a fair solution of such conflicts has been the focus of the iahrs jurisprudence. If the Court changes the legal basis of indigenous rights to Article 4 of the achr, it cannot continue to rely on this framework. Indeed, no restrictions to the use and enjoyment of communal lands by tribal and indigenous peoples would be admissible. Consequently, the right of (innocent) third parties would be jeopardized in a non-​proportional way and because of this, Antkowiak’s arguments do not find support by this research. Fourth, there are different rationales behind the development of the jurisprudences on individual and collective property pursuant to Article 21 of the achr. In cases concerning individual members of legal persons, the Court analyzed violations on the basis of Article 21 of the achr.214 It aimed to protect only individual property. In contrast, decisions concerning tribal and indigenous lands asserted violations by referring to the application of Article 21 of the achr read in conjunction with Article 1(1) thereof. This last provision establishes the principle of non-​discrimination that guides the jurisprudence regarding tribal and indigenous peoples. It is this principle, which substantiates the protection of communal property with the scope of preserving tribal and indigenous peoples’ cultural identity.215 Consequently, the jurisprudence concerning tribal and indigenous lands aims to protect both collective property and cultural identity. Lastly, the iachr demonstrated a more flexible interpretation of procedural requirements in complaints concerning collective property compared to complaints regarding individual property. In this regard, the observation by the Inter-​American Commission on the request for Advisory Opinion 22/​16 is

213 Carlos Ayala Corao and Maria D Rivero, ‘Artículo 4. Derecho a la Vida’ in Christian Steiner and Patricia Uribe (eds), Convención Americana sobre Derechos Humanos:  Comentario (Fundación Konrad Adenauer Stiftung 2014) 113. 214 Granier et al. (Radio Caracas Televisión) v. Venezuela [2015] Series C No. 293, [2015] 1 (Inter-​ American Court of Human Rights) para 359; Perozo et al. v. Venezuela [2009] Series C No. 195, [2009] (Inter-​American Court of Human Rights) para 403; Ivcher-​Bronstein v. Peru [2001] Series C No. 74, [2001] 1 (Inter-​American Court of Human Rights) para 131. 215 See above in this chapter, 1.2.1 The Rationale Behind It & International Law.

272 Chapter 5 of tremendous relevance.216 It explains the historical evolution of the iahrs approach to violations of the rights of members of legal persons. Accordingly, legal persons may not be victims of violations of the Convention’s rights. Yet, the individual members of legal persons may complain before the Commission when they fear the violations of their rights. The Commission stated that there is not a formal obstacle for the submission of a petition by a legal person in favor of natural persons. Such understanding followed the interpretation of Article 44 of the achr. The crucial problem has a procedural nature. It relates to the identification of the members of legal persons as victims. Pursuant to Article 46 of the achr, the victim must be directly affected by the violation and it must exhaust domestic remedies before accessing the iahrs. Very often, in cases concerning members of legal persons, these persons are the ones to exhaust domestic remedies. In addition, in such cases, there is an absence of explanation by the legal representatives of the victims about the connection between the alleged violations and their impact on the private sphere of members of legal persons (victim requirement). To tackle this procedural problem, the Commission developed criteria to analyze cases concerning alleged violations of the rights of members of legal persons. Such development was consolidated in 2011. Since then, the Commission has been recognizing violations of rights of legal persons implied violations of rights of individual persons.217 To admit these cases, the iachr analyzed a set of requirements to establish a connection between the violations concerning the rights of legal persons and natural persons. Likewise, it considered that there are cases, in which the exhaustion of local remedies by legal persons may fulfill the requirements established in the achr. In contrast to the treatment of individual property, in complaints concerning tribal and indigenous peoples, the Commission was flexible with admissibility requirements.218 It did not explicitly verify the impact of the violations 216 Observaciones de la Comisión Interamericana de Derechos Humanos –​Solicitud de Opinión presentada por el Estado de Panamá [2015] [2015] 1 (Inter-​American Commission on Human Rights). 217 Observaciones de la Comisión Interamericana de Derechos Humanos –​Solicitud de Opinión presentada por el Estado de Panamá [2015] [2015] 1 (Inter-​American Commission on Human Rights) paras 43–​61; Marcel Graniet et al. v. Venezuela [2012] 12.828, [2012] (Inter-​ American Commission on Human Rights) paras 127–​132; Report No. 72/​11 –​William Gomez Vargas v. Costa Rica [2011] Petition 1164-​05, [2011] (Inter-​American Commission on Human Rights) paras 28–​40. 218 Similarly see Voltaire Freitas Michel and Antoni Deitos, ‘A admissibilidade de demandas territorias indígenas na Comissão Interamericana de Direitos Humanos’ (2017) 14(28) Veredas do Direito 73 89.

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on the life of each individual member of these peoples (victim requirement). Additionally, it did not consider as a problem that in many cases only the individual leader of the community exhausted domestic remedies.219 It is compelling to conclude that the Inter-​American organs have dealt with collective complaints by members of legal persons and by members of tribal and indigenous communities in completely different ways. These organs were much stricter in analyzing procedural requirements in complaints filed by members of legal persons. Thus, the more flexible treatment of procedural requirements in complaints concerning tribal and indigenous communities compared to complaints regarding members of legal persons established a distinction between individual and collective property. 3.2.2 Expansion of Jurisdiction Ratione Personae As explained above, the third wave of jurisprudence on land rights solved the problem of the individualization of collectiveness.220 By solving this long-​ standing problem, the Inter-​American organs have indirectly expanded their jurisdiction. This section assesses the exact extent of this expansion. First, it is compelling to recognize that there was not an extension of the iahrs competence ratione materiae. The Court’s established jurisprudence differentiates with respect to domestic laws between self-​executing and non-​ self-​executing laws.221 Accordingly, the Court admits only complaints related to self-​executing laws. In the cases of the third wave, the Court did not analyze matters related to non-​self-​executing domestic laws. Instead, the disputes related to self-​executing property laws. Therefore, there was an absence of expansion of the Court’s jurisdiction ratione materiae. Nevertheless, there was an enhancement of the iahrs competence ratione personae. In prior cases, the Inter-​American organs have recognized their competence only with regards to individuals. Since the Sarayaku case, tribal and indigenous peoples have emerged as collective victims.222 In doing so, the Inter-​American organs recognized for the first time that the provisions of the American Convention are applicable to complaints submitted by groups. The 219 Pueblo Indígena Kichwa de Sarayaku v. Ecuador [2012] Series C No. 245, [2012] 1 (Inter-​ American Court of Human Rights) paras 87–​91; Comunidad Indígena Sawhoyamaxa v.  Paraguay [2006] Series C No. 146, [2006] (Inter-​American Court of Human Rights) paras 73(17)-​73(47); Comunidad Indígena Yakye Axa v. Paraguay [2005] Series C No. 125, [2005] (Inter-​American Court of Human Rights) paras 50(23)-​50(61). 220 For a detailed explanation of this problem see above in ­chapter 4, 3.2 The Inter-​American Backdoor Approach. 221 Advisory Opinion 14/​94 [1994] [1994] (Inter-​American Court of Human Rights) paras 41–​46. 222 See above in this chapter, 1.2.3.2 The Recognition of Collective Rights Holders.

274 Chapter 5 iahrs organs recognized implicitly that groups are entitled to at least some of the rights set down in the American Convention. Thus, the third wave demonstrated a shift from an individual-​based competence to a collective-​based competence ratione personae. In light of this expansion, it is logical to wonder whether the Inter-​American organs have opened the gate of the iahrs to collective complaints. Accordingly, it could be argued that from now on corporations and trade unions would be able to file a collective complaint on their own behalf before the iachr just as tribal and indigenous peoples do. This issue was the object of Advisory Opinion 22/​16 (AO 22/​16) issued by the Inter-​American Court following the request by Panama.223 The topic of this 2016 advisory opinion concerned the recognition of the rights of legal persons in accordance with the achr. The Court’s AO 22/​16 closed the gate to collective complaints. The Court has decided unanimously that the American Convention does not protect the rights of legal persons. Such decision reinforced the opinions of the states parties of Argentina, Colombia, and Guatemala.224 The only exception concerned trade unions that may use the iahrs complaint procedure. As of August 2019, in the only case concerning trade unions after the issuance of AO 22/​16, the IACtHR has made its judgment on the basis of a list of the alleged victims’ names.225 Similarly, the iachr has admitted the case only with reference to individual employees and not the group as such.226 In addition, in the AO 22/​16, the Court reiterated that indigenous and tribal peoples are the only collective subjects of rights pursuant to the American Convention. A  separate section of AO 22/​16 provided the reasoning in this regard.227 Such analysis concluded that in view of (1) developments in international law, (2) the domestic laws of some American countries, and (3) the 223 Opinión Consultiva OC 22/​16  –​Titularidad de Derechos de las Personas Jurídicas en el Sistema Interamericano de Derechos Humanos [2016] Series A  No. 22, [2016] (Inter-​ American Court of Human Rights). 224 A summary of the arguments is available here: Solicitud de Opinión Consultiva sobre la Interpretación y Alcance del Artículo 1.2 (Artículo 1, Párrafo Segundo) de la Convención (Personas Jurídicas) Realizada el 28 de Marzo de 2014 (Inter-​American Court of Human Rights) 5–​10. 225 Trabajadores Cesados de Petroperú y Otros v. Perú (2017) Series C No. 344 (Inter-​American Court of Human Rights), Annex i. 226 Informe No. 14/​15  –​Trabajadores Cesados (PETROPERÚ, MEF, ENAPU, MINEDU) [2015] 11.602, 12.385, 12.665, 12.666, [2015] (Inter-​American Commission on Human Rights) para 23. 227 Opinión Consultiva OC 22/​16  –​Titularidad de Derechos de las Personas Jurídicas en el Sistema Interamericano de Derechos Humanos [2016] Series A  No. 22, [2016] (Inter-​ American Court of Human Rights) paras 72–​84.

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collective way that tribal and indigenous peoples exercise their rights. These peoples are subjects of the rights set down in the American Convention228 and therefore they may access the iahrs. To sum up, the iahrs protects only one type of collective property: communal lands of tribal and indigenous peoples. According to the Inter-​American organs, the protection of the collective property of legal persons lies beyond the scope of the achr. As explained above, individual members of legal persons may complain before the Commission when they fear for the violations of their property rights.229 The same applies to individual members of trade unions. Contribution to International Human Rights Law: Procedural Corollaries The impropriety of procedural rules of complaint mechanisms to deal with collective claims was not an exclusive issue of the iahrs.230 In fact, the victim requirement is a common problem in complaint mechanisms of international human rights bodies. In this regard, this book explains in chapter three to chapter five the progressive emergence of a solution in the iahrs system on procedural challenges. This analysis is the main innovation of this research. As a consequence, this book contributes to the discussion in international legal scholarship on individual and group rights. It is beneficial for advancing the adjudication of group rights in international human rights law. The iahrs has struggled to adopt a procedural framework for dealing with complaints by tribal and indigenous peoples and as a final result, it recognized tribal and indigenous peoples as collective victims and beneficiaries of reparations. Due to that, tribal and indigenous peoples no longer have the burdensome requirement of submitting a list with the names of their members in order to have their complaint admitted. Additionally, tribal and indigenous peoples have acquired an active locus standi in judicio. This book suggests that the procedural approach adopted in the iahrs should be considered as a source of inspiration to other international human rights bodies. There is ongoing cross-​fertilization between international judicial and quasi-​judicial human rights bodies. The Inter-​American jurisprudence on the rights of tribal and indigenous peoples has been relevant for the 3.3

2 28 ibid para 82–​83. 229 See above in this chapter, 3.2.1 Individual v. Collective Property. 230 See above c­ hapter 4, 3.3 An International Faux Pas: The Requirement of Individualization of Groups.

276 Chapter 5 development of the international corpus juris on tribal and indigenous land rights.231 Such development has been focused on the substantive law related to the right to property as articulated by the Inter-​American bodies in the judgments. This book’s analysis suggests the use of the Inter-​American approach for the advancement of procedural law associated with land rights. Based on the iahrs experience, it is compelling to note the necessity of developing a body of procedural law for handling the complaints submitted by tribal and indigenous peoples. For that sake, in some cases, the adoption of new procedural rules by international human rights bodies might be necessary. In other cases, an update of the interpretation of procedural rules by those bodies would be sufficient. The situation of structural discrimination against indigenous peoples combined with their socio-​cultural specificities justifies the necessity of adjusting the complaint procedure of international human rights bodies. This is the only way to accommodate the collective land claims of tribal and indigenous peoples. In fact, this is the correct path for giving meaning to the rights set down in international human rights instruments. Otherwise, as it has happened previously, land claims will be judged as inadmissible, without having a proper analysis of the merits or redressing the victims of massive human rights violations.232 As Reisman brilliantly explained with reference to the issue of the legal standing of indigenous peoples (emphasis added):233 Modern computer software programs can make appropriate changes through an entire universe with a single keystroke. Would that the corpus of international law could be updated as quickly and efficiently. Changes in international law, alas, are registered much more slowly, deliberately and unevenly. Even though the international human rights program has recognized the need to protect indigenous peoples and certain critical indigenous rights have been established in a number of authoritative documents, adjustments taking account of these changes have not been carried over into other parts of international law. No automatic program can accomplish this. In every case in which an indigenous claim could have been lodged but for the standing impediment, the judges involved should 231 Gerald L Neuman, ‘The External Reception of Inter-​American Human Rights Law’ [2011] Quebec Journal of International Law 100, 114. 232 For example see Handölsdalen Sami Village and Others v. Sweden [2009] Application No. 39013/​04, [2009] (European Court of Human Rights) paras 45–​56. 233 W. M Reisman, ‘Protecting Indigenous Rights in International Adjudication’ (1995) 89(2) The American Journal of International Law 350 362.

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raise the issue, so that the international corpus juris will advance, case by case, until the international legal system provides justice for all. Based on the foregoing analysis, this book suggests the adoption of procedural corollaries by international judicial and quasi-​judicial human rights organs for the sake of dealing with collective petitions under their respective complaint mechanisms. The analysis of the iahrs jurisprudence indicates the need of adoption of three procedural corollaries: 1) availability of precautionary measures with a collective nature; 2)  flexible interpretation of admissibility requirements; 3)  guarantee of active and autonomous legal standing of tribal and indigenous peoples. The first procedural corollary is straightforward –​the availability of precautionary measures with a collective nature. This implies the possibility of requesting precautionary measures of protection for the victims before human rights organs with the scope of preserving their physical integrity during the examination of the merits of their claims. This is necessary because land conflicts usually raise risks to life of tribal and indigenous peoples and their members. By filing a complaint before international human rights bodies, tribal and indigenous peoples are potentially putting their lives in danger. The second procedural corollary  –​the flexible interpretation of admissibility requirements  –​entails five different points. First, there should not be a requirement for the victims to sign the original petition. The legal representatives of the victims may do it. The reason behind such flexibility is that members of tribal and indigenous peoples are often illiterate. The signing of a petition would be in many cases a difficult requirement to meet. Second, the submission of a complaint by a group without a formal structure or register under domestic laws as a non-​governmental organization should be authorized. In defining the group, the criteria of self-​identification and continuous culture should be sufficient. This aims to guarantee indigenous autonomy with respect to the choice of the group’s organization in accordance with Article 5 of the undrip. Third, the victim requirement should be interpreted by international human rights bodies in a flexible way. There should be no need to submit evidence of individual damages for suffered human rights violations by members of tribal and indigenous peoples. Evidence of collective damage to the community should be regarded as adequate. Fourth, there should be a flexible interpretation of the requirement of exhaustion of domestic remedies. For tribal and indigenous peoples it is usually difficult to gain access to the courts and domestic legal remedies are often unavailable. To give effect to human rights instruments and to guarantee their effet utile, international human rights bodies should interpret the requirement of exhaustion of domestic remedies

278 Chapter 5 in a flexible way. Fifth, in land complaints, there should be no need for the submission of a list with the names of the members of tribal and indigenous peoples before judicial and quasi-​judicial organs. The tribal and indigenous people should be identifiable by international human rights organs according to a specific criteria based on self-​identification. Additional criteria could be but are not limited to the following: 1) that the members of the community may be individually identifiable; 2) the internal communal organization; 3) the geographical location of the community; 4) the common situation of risking suffering acts of aggression. Moreover, the third procedural corollary –​guarantee of active and autonomous legal standing of tribal and indigenous peoples –​includes six different features. First, tribal and indigenous peoples should decide about their group representation before judicial and quasi-​judicial organs. In case of a conflict of who will speak on behalf of the group, there should be an opportunity for everyone to express themselves. Second, peoples and their legal representatives should have the available the means for submitting in an autonomous manner the pleadings, motions, evidence, and observations to the affidavits by expert witnesses. Third, peoples and their legal representatives should be able to make inquiries to witnesses and expert witnesses during the hearing of the case before the international human rights organ. Tribal and indigenous peoples should be able to express themselves in their own language and therefore the presence of interpreters during the legal proceedings is required. Fourth, the human rights bodies should order negative obligations to states during the legal proceedings with the scope of protecting alleged victims from external pressure. Concisely, international human rights bodies should make clear to states that they are not allowed to institute proceedings against the witnesses, expert witnesses, or alleged victims, or their representatives, and that states may not exert pressure on those persons on account of their participation in the legal proceedings. Fifth, victims who are in a vulnerable position should receive legal assistance. This assistance includes financial support for the expenses incurred by the victims that are associated with legal representation and production of evidence. Sixth, the submission of expert-​based evidence for land claims should be considered as obligatory for judging the cases. Such evidence is necessary to ensure a fair judgment. Beyond the procedural corollaries, the jurisprudence of the iahrs is able to influence the recognition of tribal and indigenous peoples as subjects of international law.234 As explained above, the recognition of tribal and indigenous 234 The concept of subject of international law has no formal definition in international law or a consensus among scholars about its meaning. In this regard see: James Crawford and

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peoples as subjects of rights is a settled issue in the iahrs. This issue is still controversial in international law, for which the recognition of non-​state actors as subjects has been very restricted. On the UN level, it is notable the increasing role of indigenous peoples, their representatives, and institutions in meetings of relevant United Nations bodies on issues affecting them.235 Remarkably, the Fund for the Development of the Indigenous Peoples of Latin America and the Caribbean has acquired observer status in the unga.236 The jurisprudence of the iahrs, as an example of international legal practice, may foster the evolving recognition of the legal status of tribal and indigenous peoples before the international community. This recognition raises controversial issues such as whether tribal and indigenous peoples are subjects not only of rights, but also of duties. Responses to such issue are beyond the scope of this book. Still, it should be borne in mind that in the iahrs, individuals and groups, including tribal and indigenous peoples, have duties pursuant to ­chapter two of the adhr.

Cases and Reports

African Commission on Human and Peoples’ Rights v. Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights). Loizidou v. Turkey [1996] Application no. 15318/​89, [1996] (European Court of Human Rights). Chapman v. the United Kingdom [2001] 27238/​95, [2001] (European Court of Human Rights). Ian Brownlie, Brownlie’s Principles of Public International Law (8th ed. impr.:  5, Oxford University Press 2012)  115; Matthias Herdegen, Völkerrecht (Grundrisse des Rechts, 13. überarb. und erw. Auflage, Beck 2014) 68; Emmanuelle Jouannet, A short introduction to international law (Christopher Sutcliffe tr, Cambridge University Press 2013) 36. As Ipsen suggests the concepts of legal subjectivity and legal personality are often used as synonyms. In this regard see: Knut Ipsen, Völkerrecht (5. völlig neu bearbeitete Auflage, C.H. Beck 2004) 55. A concise definition of legal personality refers to the capacity of a certain subject to have rights and duties in international law, see Anne Peters, Jenseits der Menschenrechte: Die Rechtsstellung des Individuums im Völkerrecht (Jus Internationale et Europaeum vol 88, Mohr Siebeck 2014) 2. 235 Resolution 71/​321 –​Enhancing the participation of indigenous peoples’ representatives and institutions in meetings of relevant United Nations bodies on issues affecting them (2017) A/​ RES/​71/​321 (United Nations General Assembly). 2 36 Resolution 72/​128  –​Observer status for the Fund for the Development of the Indigenous Peoples of Latin America and the Caribbean in the General Assembly [2017] A/​RES/​72/​128, [2017] (United Nations General Assembly).

280 Chapter 5 Women on Waves e outros c. Portugal [2009] Application 31276/​05, [2009] (European Court of Human Rights). Handölsdalen Sami Village and Others v.  Sweden [2009] Application No. 39013/​04, [2009] (European Court of Human Rights). Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights –​Protection of Property [2018] [2019] (European Court of Human Rights). Apirana Mahuika et al. v. New Zealand [2000] CCPR/​C/​70/​D/​547/​1993, [2000] (Human Rights Committee). Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, James Anaya [2009] [2009] 1 (Human Rights Council). Severe Financial Crisis of the IACHR Leads to the Suspension and Imminent Layoff of Nearly Half its Staff (María Isabel Rivero tr). (Inter-​American Commission on Human Rights). ‘Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin’ (29 November 1983). (Inter-​American Commission on Human Rights. Report 58/​09  –​Kuna of Madungandí and Emberá of Bayano Indigenous Peoples and Their Members (Panama) [2009] 12.354, [2009] (Inter-​American Commission on Human Rights). Indigenous and Tribal Peoples´ Rights Over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-​American Human Rights System (2010). (Inter-​American Commission on Human Rights). Kichwa People of Sarayaku and its members v.  Ecuador [2010] 12.465, [2010] (Inter-​ American Commission on Human Rights). Report No. 72/​11 –​William Gomez Vargas v. Costa Rica [2011] Petition 1164-​05, [2011] (Inter-​American Commission on Human Rights). Pueblo Indígena Kichwa de Sarayaku v.  Ecuador:  Observaciones Finales [2011] 12.465, [2011] 1 (Inter-​American Commission on Human Rights). Marcel Graniet et al. v. Venezuela [2012] 12.828, [2012] (Inter-​American Commission on Human Rights). Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Miembros v. Panamá [2012] 12.354, [2012] 1 (Inter-​American Commission on Human Rights). Garífuna Community of Punta Piedra and its Members v. Honduras [2013] 12.761, [2013] 1 (Inter-​American Commission on Human Rights). Informe No. 14/​15 –​Trabajadores Cesados (PETROPERÚ, MEF, ENAPU, MINEDU) [2015] 11.602, 12.385, 12.665, 12.666, [2015] (Inter-​American Commission on Human Rights). Observaciones de la Comisión Interamericana de Derechos Humanos –​Solicitud de Opinión presentada por el Estado de Panamá [2015] [2015] 1 (Inter-​American Commission on Human Rights).

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Pueblos Indígenas, comunidades afrodescendientes y recursos naturales: Protección de derechos humanos en el contexto de actividades de extracción, explotación y desarrollo (2015). (Inter-​American Commission on Human Rights). Report No. 44/​15  –​Xucuru Indigenous People (Brazil) [2015] 12.728, [2018] (Inter-​ American Commission on Human Rights). Solicitud de Opinión Consultiva sobre la Interpretación y Alcance del Artículo 1.2 (Artículo 1, Párrafo Segundo) de la Convención (Personas Jurídicas) Realizada el 28 de Marzo de 2014 (Inter-​American Court of Human Rights). Velásquez Rodríguez v. Honduras [1988] Series C No. 4, [1988] 1 (Inter-​American Court of Human Rights). Aloeboetoe et  al. v.  Suriname [1993] Series C No. 15, [1993] (Inter-​American Court of Human Rights). Advisory Opinion 14/​94 [1994] [1994] (Inter-​American Court of Human Rights). Asunto de la Comunidad de Paz de San José de Apartadó Respecto Colombia [2000] Resolución de la Corte Interamericana de Derechos Humanos, [2000] 1 (Inter-​American Court of Human Rights). Ivcher-​Bronstein v. Peru [2001] Series C No. 74, [2001] 1 (Inter-​American Court of Human Rights). Asunto de la Comunidad de Paz de San José de Apartadó Respecto Colombia [2002] Resolución de la Corte Interamericana de Derechos Humanos, [2002] (Inter-​American Court of Human Rights). Five Pensioners v. Peru [2003] Series C No. 98, [2003] (Inter-​American Court of Human Rights). Matter of the Communities of Jiguamiandó and Curvadaró regarding Colombia [2003] Order of the Inter-​American Court of Human Rights, [2003] (Inter-​American Court of Human Rights). Masacre Plan de Sánchez v. Guatemala [2004] Series C No. 105, [2004] (Inter-​American Court of Human Rights). Juvenile Reeducation Institute v.  Paraguay [2004] Series C No. 112, [2004] (Inter-​ American Court of Human Rights). Comunidad Moiwana v.  Suriname [2005] Series C No. 124, [2005] (Inter-​American Court of Human Rights). Comunidad Indígena Yakye Axa v.  Paraguay [2005] Series C No. 125, [2005] (Inter-​ American Court of Human Rights). Yatama v. Nicaragua [2005] Series C No. 127, [2005] (Inter-​American Court of Human Rights). Palamara-​Iribarne v. Chile [2005] Series C No. 135, [2005] (Inter-​American Court of Human Rights). Comunidad Indígena Sawhoyamaxa v. Paraguay [2006] Series C No. 146, [2006] (Inter-​ American Court of Human Rights).

282 Chapter 5 Ituango Massacres v. Colombia (2006) Series C No. 148 (Inter-​American Court of Human Rights). Claude Reyes et al. v. Chile (2006) Series C No. 151 (Inter-​American Court of Human Rights). Chaparro Álvarez and Lapo Íniguez v. Ecuador [2007] Series C No. 170, [2007] (Inter-​ American Court of Human Rights). Saramaka People v. Suriname [2007] Series C No. 172, [2007] 1 (Inter-​American Court of Human Rights). Salvador Chiriboga v. Ecuador [2008] Series C No. 179, [2008] (Inter-​American Court of Human Rights). Perozo et al. v. Venezuela [2009] Series C No. 195, [2009] (Inter-​American Court of Human Rights). Acevedo Buendía et al. (Discharged and Retired Employees of the Comptroller) v. Peru (2009) Series C No. 198 (Inter-​American Court of Human Rights). Miguel Castro Castro Prison v. Peru [2010] Victims’ Legal Assistance Fund, [2010] (Inter-​ American Court of Human Rights). Salvador Chiriboga v. Ecuador [2011] Series C No. 222, [2011] (Inter-​American Court of Human Rights). Barbani Duarte et al. v. Uruguay [2011] Series C No. 234, [2011] (Inter-​American Court of Human Rights). Pueblo Indígena Kichwa de Sarayaku v. Ecuador [2012] Series C No. 245, [2012] 1 (Inter-​ American Court of Human Rights). Afro-​Descendant communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia [2013] Series C No. 270, [2013] (Inter-​American Court of Human Rights). Audiencia Pública –​Caso Comunidad Garífuna Punta Piedra y sus Miembros v. Honduras (2014). (Inter-​American Court of Human Rights). Audiencia Pública –​Caso Comunidad Garífuna Triunfo de la Cruz y sus Miembros v. Honduras (2014). (Inter-​American Court of Human Rights). Audiencia Pública –​Caso Pueblos Indígenas Kuna de Madugandí y Emberá de Bayano y sus Miembros v.. Panamá (2014). (Inter-​American Court of Human Rights). Norín Catrimán y otros (Dirigentes, Miembros y Activista del Pueblo Indígena Mapuche) v. Chile [2014] Series C No. 279, [2014] (Inter-​American Court of Human Rights). Pueblos Indígenas Kuna de Madungandí y Emberá de Bayano y sus Miembros v. Panamá [2014] Series C No. 284, [2014] 1 (Inter-​American Court of Human Rights). Granier et al. (Radio Caracas Televisión) v. Venezuela [2015] Series C No. 293, [2015] 1 (Inter-​American Court of Human Rights). Comunidad Garífuna Triunfo de la Cruz y sus Miembros v. Honduras [2015] Series C No. 305, [2015] (Inter-​American Court of Human Rights). Garífuna Punta Piedra Community and its Members v. Honduras [2015] Series C No. 304, [2015] (Inter-​American Court of Human Rights).

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Pueblos Kaliña y Lokono v. Surinam [2015] Series C No. 309, [2015] 1 (Inter-​American Court of Human Rights). Opinión Consultiva (OC) 22/​16 –​Titularidad de Derechos de las Personas Jurídicas en el Sistema Interamericano de Derechos Humanos [2016] Series A No. 22, [2016] (Inter-​ American Court of Human Rights). Trabajadores de la hacienda Brasil Verde v. Brasil [2016] Series C No. 318, [2016] (Inter-​ American Court of Human Rights). Trabajadores Cesados de Petroperú y Otros v.  Perú (2017) Series C No. 344 (Inter-​ American Court of Human Rights). Pueblo Indígena Xucuru y Sus Miembros v. Brasil [2018] Series C No. 346, [2018] (Inter-​ American Court of Human Rights).



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Sauca JM and Wences I, ‘Derechos colectivos (en la doctrina de la Corte Interamericana de Derechos Humanos)’ (2015 –​2016) 9 Eunomía Revista en Cultura de la Legalidad 195. Sijniensky RI, ‘From the Non-​Discrimination Clause to the Concept of Vulnerability in International Human Rights Law: Advancing on the Need for Special Protection of Certain Groups and Individuals.’ in Yves Haeck and others (eds), The Realisation of Human Rights: When Theory Meets Practice: Studies in Honour of Leo Zwaak (Intersentia 2013). Steiner C and Uribe P (eds), Convención Americana sobre Derechos Humanos: Comentario (Fundación Konrad Adenauer Stiftung 2014). Teodoro GF and Garcia, Ana Paula N. L. ‘A Step Further on Traditional Peoples Human Rights: Unveiling the Key-​Factor for the Protection of Communal Property’ (2013) 5(1) Goettingen Journal of International Law 155. Thirlway HWA, The sources of international law (Foundations of public international law, First edition, Oxford University Press 2014). Treves T, ‘Law of the Sea’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018). United Nations Division for Ocean Affairs and the Law of the Sea, ‘Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements’ (4 August 2019) accessed 27 August 2019. United Nations Educational, Scientific and Cultural Organization, ‘Language, dance and music of the Garífuna’ (2017) accessed 23 October 2018. Resolution 71/​321  –​Enhancing the participation of indigenous peoples’ representatives and institutions in meetings of relevant United Nations bodies on issues affecting them (2017) A/​RES/​71/​321 (United Nations General Assembly). Resolution 72/​128 –​Observer status for the Fund for the Development of the Indigenous Peoples of Latin America and the Caribbean in the General Assembly [2017] A/​RES/​ 72/​128, [2017] (United Nations General Assembly). van Aaken A, ‘Making International Human Rights Protection More Effective:  A Rational-​Choice Approach to the Effectiveness of Ius Standi Provisions’ (2005) 16 Preprints of the Max Planck Institute for Research on Collective Goods 1. Wenzel N, Das Spannungsverhältnis zwischen Gruppenschutz und Individualschutz im Völkerrecht (Univ. Diss. Heidelberg, 2006. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht vol 191, Max-​Planck-​Institut für ausländisches öffentliches Recht und Völkerrecht Heidelberg 2008). Wolfrum R (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law 2018).

chapter 6

Conclusion The main objective of this book was to grasp in light of iahrs jurisprudence the normative content of the right to property as applied to tribal and indigenous lands. With this scope, this analysis addressed the general question of how to conceptualize individual and collective aspects of the right to property pursuant to Article 21 of the American Convention on Human Rights in the case law concerning tribal and indigenous lands. This main research question engendered three related subquestions: 1) What kind of goods may be an object of ownership or possession? 2) Which are the rights associated with collective property or possession? 3) Who are the rights holders of Article 21 of the achr, to what extent may they claim their rights, and receive compensation for recognized violations? In other terms, this last subquestion connects with the issues of whether indigenous peoples are holders of rights, who speaks for them before court, and who gets the benefits resulting from recognized violations.1 As a result, this book demonstrated that the research inquiries had multiple responses, evolving in accordance with the case law of the iahrs. Such responses were systematized in three waves of jurisprudence that corresponded to ­chapters 3, 4, and 5. The first wave referred to the decisions on land rights between 2001 up to 2006, for which the landmark case was Mayagna (Sumo) indigenous community of Awas Tingni v. Nicaragua.2 The unique characteristic of the first jurisprudential wave was the concept of the individual legal capacity of tribal and indigenous communities. With respect to research subquestion one, this analysis showed that the first wave of jurisprudence protected the communal indigenous property as an object of property. The communal indigenous property was a different concept compared to the civil property and it included material and intangible aspects such as: 1) collective ownership or possession by the group; 2) collective intangible relationship between tribal or indigenous communities and their lands; 3)  shared land among different tribal or indigenous communities; 4) territorial relocation of tribal or indigenous communities within a large geographical area. With respect to research 1 For a detailed explanation of the research subquestions see above in ­chapter 1, 2. Research Objective and Questions. 2 See above Chapter 3. First Wave: Individual Indigenous Persons as Holders of Land Rights, 2001–​2006.

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subquestion two, this analysis underscored that the right to property pursuant to Article 21 of the achr contained specific property rights, i.a. the right to possession and the right to the intangible relationship with the lands. Notably, there was not a right to exclusive use of property. The right to property raised a range of state obligations that should guarantee the use and enjoyment of property by tribal and indigenous communities. Therefore, the right to property had an individual nature and a dual dimension, being at the same time a civil right and a socio-​economic-​cultural right. In the complaints concerning tribal and indigenous peoples, the scope of this right was to protect cultural diversity and tackle structural discrimination against those peoples. Finally, regarding the third subquestion, the rights holders and beneficiaries of reparations associated with violations of the right to property were the individual members of tribal or indigenous communities. Those subjects had a limited legal standing in the cases that composed the first wave of jurisprudence in the iahrs. After conceptualizing the first wave of jurisprudence, this book pinpointed a second wave of jurisprudence, which lasted from 2007 to 2011.3 This analysis elucidated that the second wave upheld some aspects of the jurisprudence that started in the first wave, ensuring thus continuity. With respect to the first research subquestion, the object of property concerned tribal and indigenous communal property, including their material and non-​pecuniary aspects. Regarding the material aspects of property, it became clear in the second wave that the concept of communal property included the natural resources within tribal and indigenous lands, which were traditionally used and essential for the communal subsistence or survival. With regard to the second research subquestion, the right to property pursuant to Article 21 of the achr encompassed rights related to the use and enjoyment of property. Restrictions to property rights were judged as compatible with Article 21 of the achr if they complied with the requirements elaborated by the IACtHR in the Saramaka case. Among those requirements, there was the state’s obligation to consult with tribal and indigenous peoples before undertaking projects affecting their communal lands. Moreover, the third research subquestion was on the focus of the second wave of jurisprudence. This second wave had as a main characteristic the emerging concept of collective legal capacity of tribal and indigenous peoples. In the first wave, only members of tribal and indigenous communities were regarded as rights holders. In contrast, in the second wave,

3 See above Chapter 4. Second Wave: Transition Toward Indigenous Peoples as Holders of Land Rights, 2007–​2011.

290 Chapter 6 the Inter-​American organs attempted to recognize both tribal and indigenous peoples and their respective members as rights holders. The Commission and the Court asserted the need of recognizing tribal and indigenous communities as collective legal subjects. Yet, such recognition was not made due to the established jurisprudence of the Inter-​American System on its jurisdiction ratione personae that was restricted to individual human beings. Collective entities could not be subjects of rights in the iahrs. The analysis above on the second wave elucidated this issue in detail and it demonstrated the relevance of this problem in international human rights law.4 Next, after the transitional jurisprudential stage, this book identified the third wave of jurisprudence.5 In 2012 the third wave emerged with the judgment on Kichwa Indigenous Peoples of Sarayaku v. Ecuador, and this still continues today. The third wave of jurisprudence upheld previous aspects of property developed in the first and second waves. Regarding the first research subquestion, in the third wave, the concept of communal property included both material goods such as lands and natural resources thereof –​including lakes, rivers, beaches, and coastal seas if traditionally used and deemed essential for the communal subsistence or survival; and intangible goods such as the spiritual relationship between indigenous peoples and their lands. With respect to the second research subquestion, property rights encompassed the right to use and enjoy property however disposal was limited. In light of the inalienable nature of tribal and indigenous property title, communal property may not be sold or rented. In other words, tribal and indigenous land rights concern the jus utendi and jus fruendi or uti, frui.6 In addition, following the established case law, the right to property may be restricted by states. However, in the third wave, the Inter-​American organs explained that undue restrictions to property rights may be regarded as a continuous violation of Article 21 of the achr. Finally, concerning the third research subquestion, the third wave of jurisprudence demonstrated the dual dimension  –​individual and collective –​of the concept of legal capacity of tribal and indigenous peoples. Different from the first and second waves, in the third wave, the Inter-​American organs regarded tribal and indigenous peoples and their members as individual and collective rights holders. Likewise, tribal and indigenous peoples and their members were regarded as collective and individual beneficiaries 4 See above in ­chapter 4, 3. Interim Conclusions. 5 See above Chapter 5. Third Wave: Indigenous Peoples as Holders of Land Rights, 2012–​2019. 6 Lenzerini F, ‘Land Rights’, Sofia Conference (2012) –​ILA Final Report –​Rights of Indigenous Peoples (2012). See also African Commission on Human and Peoples’ Rights v. Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights) para 124.

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of reparations. Additionally, they acquired an autonomous legal standing in the Inter-​American complaint procedure. Thus, the legal capacity of tribal and indigenous peoples acquired a dual character containing collective and individual aspects. As ultimate consequence, the iahrs included groups of peoples under its jurisdiction ratione personae and changed its procedural law to better accommodate collective complaints.7 Thus, the iahrs elaborated a comprehensive legal framework for the protection of tribal and indigenous lands, including substantive and procedural law. This book suggested that the framework adopted in the iahrs should be regarded as inspirational source for international judicial and quasi-​judicial organs.8 For that sake, this analysis conceptualized procedural corollaries for collective complaints based on the iahrs jurisprudence. To sum up, this book conceptualized the evolving expansion of tribal and indigenous land rights in accordance with three waves of jurisprudence focused on the concept of legal capacity. In this regard, this book demonstrated through the analysis of the complaints on land rights a continuous jurisprudential development beginning with the concept of individual legal capacity toward the collective legal capacity. This development was summarized below in the table (see table 1). As a final remark, it is important to highlight that a central issue for this book related to the definition of tribal and indigenous peoples. As explained in the introductory chapter, the iahrs does not have a binding definition of tribal and indigenous peoples.9 By analyzing the judgments concerning those peoples, this analysis underscored that the actual criteria for their definition included a subjective aspect –​self-​identification as indigenous or tribal people –​and objective aspects. Such objective aspects concerned (1) autonomous organization –​ i.a. internal political institutions, (2) socio-​cultural institutions that differ from the rest of the society, (3) and the special relationship between the people and its territory. Remarkably, the concept of tribal and indigenous peoples is a broad concept that may include individual members living outside the communal lands.10 Additionally, the concept of tribal or indigenous people is applicable to a group regardless of its official recognition by the state.11 This analysis notes that the iahrs definition of tribal and indigenous peoples 7 8 9 10 11

See above in ­chapter 5, 3.2 General Effect of the Third Wave on the Inter-​American System. See above in ­chapter 5, 3.3 Contribution to International Human Rights Law: Procedural Corollaries. See above in ­chapter 1, 3. Preliminary Matters: On the Concept of Indigenous Peoples. See above in ­chapter 5, 2.6 Xucuru Case, 2018. See above in ­chapter 5, 2.3 Garífuna Community of Punta Piedra Case, 2015.

292 Chapter 6 contrasted to the ones contained in Article 1 of the ilo Convention 169 and in the case law of the ACtHPR.12 Different from other definitions, the iahrs does not require a connection between tribal or indigenous peoples and a historical continuity of the people with a pre-​invasion society. As evidence for demonstrating the existence of tribal or indigenous peoples, the Inter-​American organs have accepted reports elaborated by research institutions and judicial declarations given by expert witnesses. table 1

Development of the concept of legal capacity in the iahrs

Research Questions/​ Waves

First Wave (2001–​2006)

Second Wave (2007–​2011)

Third Wave (2012–​2019)

Who are the rights holders of the right to property pursuant to Article 21 of the achr? To what extent they may claim their property rights? May they receive compensation for recognized violations of property rights?

Individual Members of Tribal or Indigenous Communities

Individual Members of Tribal or Indigenous Communities Limited Legal Standing as Individuals

Tribal and Indigenous Peoples and Their Individual Members Autonomous Legal Standing as a Group and Individuals Compensation for Tribal and Indigenous Peoples and Their Individual Members



Limited Legal Standing as Individuals Compensation for the Individual Members of Tribal and Indigenous Communities

Compensation for Tribal or Indigenous Communities

Cases and Reports

African Commission on Human and Peoples’ Rights v. Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights).

12

African Commission on Human and Peoples’ Rights v.  Republic of Kenya [2017] [2017] 1 (African Court on Human and Peoples’ Rights) para 107.

Conclusion



293

References

International Law Association, Sofia Conference (2012) –​ILA Final Report –​Rights of Indigenous Peoples (2012). Lenzerini F, ‘Land Rights’, Sofia Conference (2012) –​ILA Final Report –​Rights of Indigenous Peoples (2012).

chapter 7

Summaries With the scope of facilitating the understanding of this research, this chapter provides in different languages a summary of the main findings. These languages refer to the oas official languages and to German, which is the language responsible for conceiving this research. 1

Portuguese Summary: Resumo em Português

Esta pesquisa analisa a questão de como conceituar os aspectos individuais e coletivos do direito à propriedade, segundo o artigo 21 da Convenção Americana de Direitos Humanos, na jurisprudência relacionada a terras tribais e indígenas. Esta indagação geral dividiu-​se em três perguntas específicas:  (1) Quem são os sujeitos dos direitos associados à propriedade; em que medida eles podem reivindicar seus direitos e receber indenizações por reconhecidas violações a esses direitos? (2) Que tipos de bens podem ser objeto de propriedade ou posse? (3) Quais os diferentes tipos de direito oriundos da posse ou propriedade coletiva? Com o escopo de responder a tais indagações, esta tese utilizou uma metodologia indutiva ou positivista do direito, em cotejo com uma análise doutrinária. Destarte, este estudo sistematizou a jurisprudência do sistema interamericano de direitos humanos em relação aos direitos à propriedade em casos envolvendo territórios indígenas e tribais e identificou os casos paradigmáticos. Adicionalmente, demonstrou-​se as diferentes funções exercidas pelos órgãos interamericanos na elaboração dessa jurisprudência. Em vista de crassas inconsistências jurisprudenciais encontradas, esta análise buscou desenvolver um criticismo construtivo baseado na dogmática jurídica. No que concerne aos resultados finais, esta pesquisa conceituou três fases de desenvolvimento da jurisprudência do sistema interamericano de direitos humanos. A primeira fase refere-​se às sentenças prolatadas entre os anos de 2001 e 2006 entre as quais se destaca a do caso da comunidade indígena Mayagna (Sumo) de Awas Tingni contra a Nicarágua. Nesta primeira fase, os casos sub judice tematizavam a falta de reconhecimento estatal legislativo dos direitos de propriedade de comunidades tribais e indígenas ou a falta de garantia efetiva desses direitos por parte do Estado. A capacidade jurídica individual dos titulares de direitos de propriedade apresentou-​se como aspecto

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axiomático desta primeira fase. Cum grano salis as decisões da Comissão e da Corte sobrelevaram este aspecto. Nesse sentido, para o julgamento de admissibilidade dos casos deste período, os referidos órgãos interamericanos exigiam dos representantes legais de comunidades tribais e indígenas a apresentação de uma lista nominal de integrantes da comunidade. Outrossim, a Corte reconhecia como partes lesionadas apenas membros individuais de comunidades indígenas e tribais. Não obstante, a primeira fase de desenvolvimento continha ínfimos e notáveis aspectos coletivos de propriedade no que tange à regra jurídica e ao objeto legal. Os órgãos interamericanos definiram a proteção da identidade cultural coletiva como parte do escopo do direito à propriedade. Para além disso, eles expuseram que o artigo 21 da Convenção Americana açambarca a relação espiritual especial das comunidades indígenas e tribais com suas ­terras. Por conseguinte, esta tese comprovou a existência da segunda fase de desenvolvimento da jurisprudência cuja natureza transicional é caracterizada pela tensão inerente a aspectos individuais e coletivos de propriedade. Esta fase refere-​se ao período decorrido entre os anos de 2007 e 2011 no qual o sistema interamericano almejava a expansão das dimensões coletivas relacionadas à propriedade. Nesta fase transicional, as decisões emitidas problematizavam a falta de efetividade dos direitos de propriedade. Assim, os órgãos interamericanos reconheceram a existência da obrigação dos Estados de consultar as comunidades tribais e indígenas antes do desenvolvimento de projetos que afetem suas terras tradicionais. Ademais, tendo em vista o conceito indígena de propriedade coletiva, tais órgãos fixaram os limites da propriedade coletiva protegida sob a égide do artigo 21 da Convenção Americana. Faz-​se imperativo ressaltar que a Comissão e a Corte demonstraram explicitamente a necessidade do reconhecimento de comunidades tribais e indígenas como sujeitos coletivos de direitos. Sem embargo, a concretização dessa necessidade enfrentava como obstáculo a tradicional jurisprudência interamericana em matéria ratione personae a qual abrangia somente sujeitos individuais de direito. Entidades coletivas não podiam ser titulares de direitos. Para solucionar este impasse, fazia-​se necessário um giro ontológico na jurisprudência interamericana. Nesse sentido, esta tese identificou a terceira fase de desenvolvimento da jurisprudência interamericana. A terceira fase surgiu em 2012 com a sentença no caso do povo indígena Kichwa de Sarayaku contra o Equador e continua ininterruptamente até a presente data (2019). Esta fase refere-​se a casos relacionados à proteção de territórios tribais e indígenas contra utilização indevida por parte do Estado ou terceiros. Como aspecto paradigmático, esta terceira fase de desenvolvimento apresenta uma natureza dual no que se refere à capacidade jurídica de povos tribais e indígenas. Durante esta fase, a Comissão

296 Chapter 7 e a Corte concentraram-​se no aprofundamento dos aspectos tangentes à regra jurídica e à capacidade legal. Os órgãos interamericanos especificaram a obrigação do Estado de consultar os povos indígenas e tribais em relação a projetos que impactam seus territórios. De maneira claramente oposta à primeira fase de desenvolvimento jurisprudencial, nesta segunda fase, os órgãos interamericanos reconheceram tanto os povos tribais e indígenas, quanto seus membros, como titulares de direitos coletivos e individuais. Este reconhecimento foi baseado em uma fundamentação jurídica bastante frágil, que teve um impacto profundo no sistema interamericano de direitos humanos. A repercussão geral desta fase consistiu em que o sistema interamericano passou a incluir tutelas coletivas sob sua jurisdição ratione personae e modificou suas regras processuais com o intuito de melhor lidar com ações propostas por ­grupos. De maneira sucinta, pode-​se concluir que esta tese conceituou o progressivo desenvolvimento dos aspectos individuais e coletivos do direito à propriedade de acordo com fases jurisprudenciais relacionadas ao conceito de capacidade jurídica. Nesse sentido, o desenvolvimento jurisprudencial observado começa com a capacidade jurídica individual que avança até a capacidade jurídica coletiva. Como aspectos problemáticos desta progressão conceitual destaca-​se os requisitos processuais de caráter individual no sistema interamericano de denúncias e a restrita interpretação da jurisdição interamericana, que excluía sujeitos de direito coletivos. Ao cabo, verifica-​se que as três fases de desenvolvimento jurisprudencial podem ser entendidas como contínuas e, paradoxalmente, descontínuas. Estas fases possuem semelhanças e diferenças. As conclusões preliminares apresentadas nos capítulos anteriores explicam, de maneira detalhada e progressiva, tais aspectos. Desse modo, esta tese demonstrou contundentemente que as três fases de desenvolvimento jurisprudencial formam uma onda periódica com movimentos de formação e deformação. 2

Spanish Summary: Resumen en Español

Esta investigación abordó el tema de cómo conceptualizar los aspectos individuales y colectivos del derecho a la propiedad de las tierras tribales e indígenas, en conformidad con el artículo 21 de la Convención Americana sobre Derechos Humanos y la jurisprudencia de la Corte Interamericana. Este tema fue la principal pregunta de investigación; a su vez, esta pregunta suscitó tres asuntos colaterales relacionados con el argumento central: (1) ¿quiénes son los titulares de los derechos de propiedad, en qué medida pueden reclamar esos

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derechos y recibir una compensación en caso de infracciones constatadas a este derecho? (2) ¿Qué tipo de bienes pueden ser objeto de propiedad o posesión? (3) ¿Qué tipo de derechos están asociados con la propiedad o posesión colectiva? Para responder a las preguntas de investigación, esta investigación utilizó una metodología inductiva o positivista combinada con aspectos de doctrina jurídica. Al utilizar esta metodología, este trabajo sistematizó la jurisprudencia sobre el derecho de propiedad en casos relacionados con tierras tribales e indígenas e identificó los casos más emblemáticos. Además, demostró los diferentes roles de los órganos interamericanos al construir esta jurisprudencia. Finalmente, al encontrar inconsistencias jurisprudenciales, este análisis elaboró críticas constructivas a la luz de la doctrina jurídica. Como resultado, este estudio reveló tres tipos de casos en la jurisprudencia del Sistema Interamericano de Derechos Humanos. La primera categoría de sentencias se refería a las denuncias entre el año 2001 y 2006, cuya principal sentencia se refería a la comunidad indígena Mayagna (Sumo) de Awas Tingni contra Nicaragua. Esta primera categoría contemplaba decisiones que abordaban la falta de reconocimiento de los derechos de propiedad (tierra) de las comunidades tribales e indígenas en virtud de la legislación nacional, o la ausencia de la garantía estatal de estos derechos. Como característica especial, esta primera clase de casos tuvo un fuerte carácter individualista en relación a la capacidad legal de los titulares de derechos. En consecuencia, para la admisibilidad de una petición, exigieron a los representantes legales tribales e indígenas la presentación de una lista con los nombres de todos los miembros de la comunidad. En efecto, el Tribunal reconoció sólo como partes lesionadas a los miembros individuales de comunidades tribales e indígenas. Sin embargo, en las sentencias se consideraron aspectos colectivos accidentales del dominio pero relevantes que se relacionaban con las normas y el objeto normativo. Efectivamente, los órganos interamericanos establecieron la protección de la identidad cultural colectiva así como el alcance comunitario del derecho de propiedad. De hecho, identificaron la relación especial de las comunidades tribales e indígenas con sus tierras, atributo protegido por el artículo 21 de la Convención Americana. Después de la primera categoría de sentencias, esta investigación identificó una segunda clase de casos, de naturaleza intermedia, que se caracterizaba por la tensión entre los aspectos individuales y colectivos de la propiedad. Entre el 2007 y 2011, el sidh buscó la expansión de las dimensiones colectivas de la propiedad. Esta etapa de transición contienía casos centrados en la ausencia de garantía estatal de los derechos de propiedad. En ese sentido, los órganos interamericanos afirmaron el deber del Estado de consultar con las comunidades

298 Chapter 7 tribales e indígenas antes de emprender proyectos que afectaran sus tierras. Además, estos órganos sitúan en el centro de la discusión a las comunidades indígenas al determinar el alcance de la propiedad colectiva. Es importante destacar que la Comisión y la Corte afirmaron la necesidad de reconocer a las comunidades tribales e indígenas como sujetos jurídicos colectivos. Sin embargo, tal reconocimiento fue difícil debido a la jurisprudencia ya establecida por del Sistema Interamericano sobre su jurisdicción ratione personae, que se extendía sólo sobre seres humanos, individualmente considerados. Consecuencialmente, las entidades colectivas no podían ser sujetos de derechos. Por lo tanto, era necesario un avance jurisprudencial para resolver el controvertido tema de las comunidades tribales e indígenas como sujetos colectivos. Después de esta etapa intermedia de jurisprudencia, esta investigación identificó una tercera categoría casos. Surgió en 2012 con el juicio de los Pueblos Indígenas Kichwa de Sarayaku contra Ecuador y continúa hasta nuestros días (2019). Esta tercera clase se refiere a casos sobre la protección de tierras tribales e indígenas contra la intervención ilegal por parte del Estado o terceros. Como característica única, esta tercera categoría de casos abarcaba un doble carácter de la capacidad jurídica de los pueblos indígenas y tribales. Tanto la Comisión y la Corte se enfocaron en el desarrollo de aspectos del derecho de propiedad relacionados con las normas Convencionales y la capacidad legal de las comunidades. Ambos órganos propugnaron un enfoque estricto de la obligación del Estado de consultar con los pueblos indígenas y tribales en proyectos que afectaban sus territorios. En esta tercera categoría, a diferencia de la primera, los órganos interamericanos consideran a los pueblos indígenas y tribales y sus miembros como titulares de derechos individuales y también colectivos. Tal interpretación tenía una justificación legal sensible. Como consecuencia última, el sidh incluyó grupos de personas bajo su jurisdicción ratione personae y cambió su interpretación de las normas procesales para acomodar mejor las peticiones colectivas. En resumen, esta investigación conceptualizó la expansión y la evolución de los aspectos individuales y colectivos del derecho de propiedad de acuerdo con categorías de casos centrados en el concepto de capacidad legal. En este sentido, este análisis demostró un desarrollo jurisprudencial continuo que comienza con la capacidad jurídica individual hacia la capacidad jurídica colectiva. Entre los temas controvertidos, detrás de dicha evolución, se encuentran aspectos individualistas enmarcados del procedimiento y una interpretación restrictiva de la jurisdicción del sidh, que excluyó a los sujetos colectivos. Esas tres categorías jurisprudenciales representan continuidad y también interrupción en la jurisprudencia. Tienen similitudes y diferencias y han provocado un enorme impacto en el procedimiento de quejas del sidh. Las

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conclusiones provisionales de los capítulos anteriores explicaron de manera profunda y progresiva dichos aspectos. Esos capítulos demostraron cómo las diferentes oleadas de evoluciones jurisprudenciales expresan un solo movimiento de formación y deformación. Por lo tanto, la jurisprudencia del Sistema Interamericano de Derechos Humanos comprende tres categorías diferentes de casos que se unen en el mismo continuo. 3

German Summary: Deutsche Zusammenfassung

Diese Analyse befasste sich mit der Frage, inwieweit die individuellen und kollektiven Aspekte des Rechts auf Eigentum aus Artikel 21 der Amerikanischen Menschenrechtskonvention durch die Rechtsprechung zu Stammesgebieten (tribal lands) und indigenem Land in Begriffe gefasst werden können. Hierzu ergaben sich drei untergeordnete Fragen:  (1) Wer sind die Rechtsinhaber, in welchem Umfang können sie ihre Rechte geltend machen und Schadensersatz für Rechtsgutsverletzungen verlangen? (2) Welche Güter sind eigentumsfähig? (3) Welche Rechtstypen werden mit kollektivem Eigentum in Verbindung ­gebracht? Die Beantwortung dieser Fragen erfolgte anhand einer induktiven Herangehensweise auf der Grundlage einschlägiger Rechtsdogmatik. Dazu wurde die Rechtsprechung zu Eigentum bezüglich Stammesgebiete und indigenem Land systematisiert sowie die Präzedenzfälle herausgearbeitet. Ferner wurde die Bedeutung verschiedener interamerikanischer Organe für den Ausgang dieser Urteile dargestellt. Im Zuge rechtswissenschaftlicher Ungereimtheiten übt diese Analyse, unter Zugrundelegung von Rechtsdogmatik, konstruktive ­Kritik aus. Als Ergebnis offenbaren sich drei Stränge in der Rechtsprechung des interamerikanischen Menschenrechtsschutzsystems. Der erste Strang bezieht sich auf Klagen, die zwischen 2001 und 2006 eingereicht wurden. Dabei steht die Klage der indigenen Gemeinschaft der Mayagna (Sumo) aus Awas Tingni gegen Nicaragua im Mittelpunkt. Dieser erste Strang umfasst Fälle der unterlassenen Anerkennung (Grund-​) Eigentums gegenüber Stammesgemeinschaften (tribal communities) und indigener Gemeinschaften aus inländischem Recht oder aufgrund fehlender Eigentumsgarantie seitens des Staates. Gekennzeichnet sind diese Fälle durch die ausgeprägte individualistische Anforderung an den Rechtsinhaber. Sowohl die Kommission als auch das Gericht erforderten einen solchen individuellen Anknüpfungspunkt. Dementsprechend war es für die Zulässigkeit der Klage erforderlich, dass die Stammesvertreter und Vertreter der einzelnen indigenen Völker eine umfassende Liste

300 Chapter 7 aller Gemeinschaftsmitglieder einreichen. Außerdem erkannte das Gericht als Geschädigte lediglich natürliche Personen einer Stammesgemeinschaft oder eines indigenen Volks an. Nichtsdestotrotz gab es bereits zwar wenige, aber bedeutsame kollektive Aspekte hinsichtlich des Konzeptes von Eigentum, die sich auf das Rechtsobjekt und die Rechtsnorm bezogen. Die interamerikanischen Organe gliederten den Schutz kollektiver kultureller Identität in den Schutzbereich des Rechts auf Eigentum. Sie erkannten so den besonderen Bezug der Stammesgemeinschaft und indigenen Gemeinschaften zu ihren Gebieten an, und erklärten diesen Bezug als von Artikel 21 der Amerikanischen Menschenrechtskonvention geschützt. Im Anschluss an die Fälle des ersten Strangs, weist diese Untersuchung eine zweite Phase des Übergangs auf, die durch ein Spannungsverhältnis zwischen individueller und kollektiver Aspekten des Eigentums gekennzeichnet ist. Zwischen 2007 und 2011 verfolgte das interamerikanische Menschenrechtsschutzsystem die Ausweitung der kollektiven Dimension von Eigentum. Diese Übergangsphase umfasste Fälle, die sich auf die fehlende Eigentumsgarantie des Staates bezogen. Damit machten die interamerikanischen Organe die Pflichten des Staates geltend, die Stammesvölker (tribal peoples) und indigenen Völker zu konsultieren bevor Projekte, die deren Grundeigentum berühren, umgesetzt werden. Außerdem stützten sich die Organe bei der Bestimmung des Umfangs von kollektivem Eigentum auf das Verständnis der indigenen Völker. Bedeutsam ist die Haltung der Kommission und des Gerichts, Stammesvölker und indigene Völker als kollektives Rechtssubjekt anzuerkennen. Allerdings war diese Anerkennung aufgrund der bisherigen Rechtsprechung des interamerikanischen Menschenrechtsschutzsystems bezüglich des persönlichen Schutzbereichs erschwert, das ausschließlich natürliche Personen vorsah. Danach konnten kollektive Einheiten keine Träger von Rechten sein. Daher war, um die umstrittene Angelegenheit der Anerkennung Stammesvölker und indigener Völker als kollektives Rechtsubjekt zu klären, ein rechtswissenschaftlicher Durchbruch notwendig. Im Anschluss an die rechtswissenschaftliche Übergangsphase identifiziert diese Untersuchung einen dritten Fallstrang. Dieser trat 2012 mit der Gerichtsentscheidung in der Sache Kichwa Indigenous People of Sarayaku gegen Ecuador in Erscheinung und besteht bis heute (2019) fort. Dieser dritte Fallstrang beschäftigt sich mit dem Schutz von Stammesgebieten oder indigenen Gebieten vor freiheitsverkürzenden Maßnahmen durch den Staat oder durch Dritte. Einzigartigerweise umfasst dieser dritte Strang einen binären Charakter der Rechtsfähigkeit von Stammesvölkern und indigenen Völkern. Die Kommission und das Gericht entwickelten hier weitere kollektive Aspekte, die an das Recht auf Eigentum und die Rechtsfähigkeit von Stammesvölkern

Summaries

301

und indigenen Völkern angeknüpft sind. Ebenso legten beide Organe dem Staat eine mit geringem Ermessen ausgestaltete Pflicht auf, Stammesvölker oder indigene Völker vor Projekten zu konsultieren. Im Gegensatz zum ersten Fallstrang, sprachen die interamerikanischen Organe den Stammesvölkern und indigenen Völkern und deren Mitgliedern sowohl die individuelle als auch kollektive Rechtssubjektfähigkeit zu. Eine solche Auslegung bedurfte jedoch einer feinfühligen Rechtfertigung. Konsequenterweise bezog das interamerikanische Menschenrechtschutzsystem auch Personenmehrheiten in den persönlichen Schutzbereich mit ein. Zusätzlich modifizierte es das einkleidende Prozessrecht, um Kollektivbeschwerden zu ermöglichen. Zusammenfassend konzeptualisiert diese Untersuchung, entsprechend der Fallstränge, die sich auf die Rechtsfähigkeit beziehen, die sich entwickelnde Ausweitung individueller und kollektiver Aspekte des Rechts auf Eigentums. Damit hat die Analyse eine fortlaufende rechtswissenschaftliche Entwicklung aufgezeigt, die mit dem Verständnis der Rechtsfähigkeit nur natürlicher Personen begann und sich hin zu einem Verständnis eines kollektiven Rechtssubjekts entwickelt hat. Inmitten der umstrittenen Angelegenheiten, die sich aus dieser Entwicklung ergeben, stehen ebenfalls die individualistische Einrahmung im Prozessrecht sowie die bis dahin eingeschränkte Auslegung des interamerikanischen Menschenrechtsschutzsystems, welche kollektive Rechtssubjekte ausschlossen. Diese drei Fallstränge verkörpern zugleich Fortbestand und Zerrüttung. Sie weisen Ähnlichkeiten und Unterschiede auf und wirken sich immens auf das Beschwerdeverfahren aus. Die Zwischenergebnisse der vorstehenden Kapitel beschreiben diese Aspekte ausführlich und stufenweise. Diese Kapitel legen dar, wie die unterschiedlichen Wellen rechtswissenschaftlicher Entwicklung letztlich eine einzige Bewegung der Formung und Verformung darstellt. Somit umfasst das interamerikanische Menschenrechtsschutzsystem drei verschiedene Fallstränge, die in einem Kontinuum vereint sind.

Table of International Legal Instruments African Charter on Human and Peoples’ Rights Arab Charter on Human Rights Convention on Biological Diversity Convention for the Protection of Human Rights and Fundamental Freedoms International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Convention on the Rights of the Child International Convention on the Elimination of All Forms of Racial Discrimination International Labour Organization Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-​ Tribal Populations in Independent Countries No. 107 International Labour Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries No. 189 Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms Rio Declaration on Environment and Development Statute of the International Court of Justice United Nations Convention on the Law of the Sea Universal Declaration of Human Rights United Nations Declaration on the Rights of Indigenous Peoples United Nations Educational, Scientific and Cultural Organization Convention Concerning the Protection of the World Cultural and Natural Heritage United Nations Educational, Scientific and Cultural Organization Convention for the Safeguarding of the Intangible Cultural Heritage United Nations Educational, Scientific and Cultural Organization Convention on the Protection and Promotion of the Diversity of Cultural Expressions United Nations Educational, Scientific and Cultural Organization Universal Declaration on Cultural Diversity Vienna Convention on the Law of Treaties

1981 2004 1992 1950 1966 1966 1989 1965 1957 1989 1952 1992 1945 1982 1948 2007 1972 2003 2005 2001 1969

Table of Inter-​American Legal Instruments Inter-​American Commission of Human Rights (IACHR) Statute Rules of Procedure Rules of Procedure Rules of Procedure Rules of Procedure Rules of Procedure Rules of Procedure Rules of Procedure Rules of Procedure Rules of Procedure

October 1979 April 8, 1980 December 4-​8, 2000 October 7-​25, 2002 October 6-​24, 2003 October 16-​27, 2006 July 17-​25, 2008 October 28-​November 13, 2009 September 2, 2011 March 8-​22, 2013

Inter-​American Court of Human Rights (IACtHR) Statute Rules of Procedure Rules of Procedure Rules of Procedure Rules of Procedure Exposición de Motivos de la Reforma Reglamentaria Rules of Procedure

January 1, 1980 September 9-20, 1996 November 16-25, 2000 November 20-​December 4, 2003 January 19-​31, 2009 2009 November 16-​28, 2009

Organization of American States (OAS) Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) American Convention on Human Rights (Pact of San José) American Declaration on the Rights and Duties of Man American Declaration on the Rights of Indigenous Peoples Charter of the Organization of the American States Inter-​American Charter of Social Guarantees Inter-​American Democratic Charter

1988 1969 1948 2016 1948 1948 2001

Table of Cases and Reports African Commission on Human and Peoples’ Rights (achpr) Social and Economic Rights Action Center (serac) and Center for Economic and Social Rights (cesr) v. Nigeria Report of the African Commission’s Working Group on Indigenous Populations/​ Communities Indigenous Peoples in Africa: The Forgotten Peoples? Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Peoples Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya

Case Number 155/​96 October 13–​27, 2001 DOC/​OS(XXXIV)/​345 May 14, 2003 2006 May 16–​30, 2007

Case Number 276/​03 November 25, 2009

African Court on Human and Peoples’ Rights (ACtHPR) African Commission on Human and Peoples’ Rights v. Kenya (Ogiek Case)

Application No. 006/​2012 May 26, 2017

Canada Supreme Court of Canada

Delgamuukw v. British Columbia June 16, 1997

Committee on the Elimination of Racial Discrimination (cerd) General Recommendation xxiii on the Rights of Indigenous Peoples

UN Doc. A/​52/​18, Annex v August 18, 1997

306 

Table of Cases and Reports

European Commission of Human Rights (echr) G. and E. v. Norway Könkämä and 38 other Saami Villages v. Sweden

Application No. 9278/​81 & 9415/​81 October 3, 1983 Application No. 27033/​95 November 25, 1996

European Court of Human Rights (ECtHR) Handyside v. the United Kingdom

Application No. 5493/​72 December 7, 1976 Dudgeon v. the United Kingdom Application No. 7525/​76 October 22, 1981 Pressos Compania Naviera S.A. and Application No. 17849/​91 Others v. Belgium November 20, 1995 Loizidou v. Turkey Application No. 15318/​89 December 18, 1996 Chapman v. the United Kingdom Application No. 27238/​95 January 18, 2001 Dogan and Others v. Turkey Application No. 8803–​8811/​02, 8813/​02, 8815–​8819/​02 June 29, 2004 Kopecký v. Slovakia Application No. 44912/​98 September 28, 2004 Johtti Sapmelaccat Ry and Others Application No. 42969/​98 v. Finland January 18, 2005 Paeffgen Gmbh v. Germany Application No. 25379/​04, 21688/​05, 21722/​05, 21770/​05 September 18, 2007 Women on Waves e outros v. Portugal Application No. 31276/​05 February 3, 2009 Handölsdalen Sami Village and Application No. 39013/​04 Others v. Sweden February 17, 2009 Handölsdalen Sami Village and Application No. 39013/​04 Others v. Sweden March 30, 2010 Saghinadze and Others v. Georgia Application No. 18768/​05 August 27, 2010

307

Table of Cases and Reports

Chagos Islanders v. the United Kingdom Centre for Legal Resources on Behalf of Valentin Campeanu v. Romania Cultural rights in the Case-​law of the European Court of Human Rights Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights –​Protection of Property Practical Guide on Admissibility Criteria

Application No. 35622/​04 December 11, 2012 Application No. 47848/​08 July 17, 2014 January 17, 2017 August 31, 2018 April 30, 2019

Human Rights Committee (hrc) Communication No. 197/​1985, Ivan Kitok UN Doc CCPR/​C/​33/​D/​197/​1985 v. Sweden August 10, 1988 Communication No. 167/​1984, Chief UN Doc CCPR/​C/​38/​D/​167/​1984 Bernard Ominayak and the Lubicon Lake May 10, 1990 Band v. Canada General Comment No. 23: The Rights of UN Doc CCPR/​C/​21/​Rev.1/​Add.5 Minorities (Art. 27) April 8, 1994 Communication No. 511/​1992, Länsman UN Doc CCPR/​C/​52/​D/​511/​1992 et al. v. Finland November 8, 1994 Communication No. 760/​1997, J.G.A. UN Doc CCPR/​C/​69/​D/​760/​1997 Diergaardt et al. v. Namibia September 6, 2000 Communication No. 547/​1993, Apirana UN Doc CCPR/​C/​70/​D/​547/​1993 Mahuika et al. v. New Zealand November 16, 2000 Communication No. 1457/​2006, Ángela UN Doc CCPR/​C/​95/​D/​1457/​2006 Poma Poma v. Peru April 24, 2009 Human Rights Council Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, James Anaya

A/​64/​338 September 4, 2009

308 

Table of Cases and Reports

International Centre for Settlement of Investment Disputes (icsid) Grand River Enterprises Six Nations, ltd, et al. v. United States of America

Award January 12, 2011

International Court of Justice (icj) Military and Paralimitary Activities in and against Nicaragua (Nicaragua v. United States) Legality of the Threat or Use of Nuclear Weapons Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Judgment icj Reports 1986 Advisory Opinion icj Reports 1996 Advisory Opinion icj Reports 2004

Inter-​American Commission of Human Rights (iachr) Jehovah’s Witnesses (Argentina) Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin abc Color (Paraguay) Resolution 12/​85 -​Report on the Yanomami Indians (Brazil) Report no. 03/​90 –​ Suriname Report no. 10/​91 –​Banco de Lima (Peru) Report no. 48/​96 –​Emérita Montoya González (Costa Rica) Resolution on the Aché people (Paraguay) Report no. 47/​97 –​Inadmissibility Report Tabacalera Boquerón S.A. (Paraguay) Report no. 28/​98 –​Maria Eugenia Morales de Sierra (Guatemala)

Case 2.137 November 18, 1978 OEA/​Ser.L./​V.II.62 November 29, 1983 Case 9.250 May 17, 1984 Case 7.615 March 5, 1985 Case 10.150 May 15, 1990 Case 10.169 February 22, 1991 Case 11.553 October 16, 1996 Case 1.802 May 27, 1997 October 16, 1997 Case 11.625 March 06, 1998

309

Table of Cases and Reports

Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua, Complaint Report no. 39/​99 –​Inadmissibility Report MEVOPAL S.A. (Argentina) The Human Rights Situation of the Indigenous People in the Americas Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua, Final Written Arguments Report no. 02/​02 –​Yakye Axa Indigenous Community of the Enxet-​Lengua People v. Paraguay Report no. 51 –​Janet Espinoza Feria et al. (Peru) Stefano Ajintoena et al. v. Suriname (Moiwana Case) Report no. 75/​02 –​Mary and Carrie Dann (United States) Report no. 11/​03 –​Xákmok Kásek Indigenous Community v. Paraguay Report no. 12/​03 –​Sawhoyamaxa Indigenous Community of the Enxet People v. Paraguay Comunidad Indígena Yakye Axa del Pueblo Enxet, Application to the Court Moiwana Village, Final Written Arguments Report no. 64/​04 –​The Kichwa Peoples of the Sarayaku Community and its Members v. Ecuador Comunidad Indígena Sawhoyamaxa del Pueblo Enxet y Sus Miembros Report no. 09/​06 –​The Twelve Saramaka Clans (Los) v. Suriname, Admissibility and Merits Twelve Saramaka Clans, Application to the Court Wazen Eduards et al. (Twelve Saramaka Clans Case), Final Written Arguments Report no. 58/​09 –​Kuna of Madugandí and Emberá of Bayano Indigenous Peoples and their Members v. Panama

Case 11.577 June 4, 1998 March 11, 1999 OEA/​Ser.L/​V/​II.108 October 20, 2000 Case 11.577 August 10, 2001 Petition 12.313 February 27, 2002 Case 12.404 October 10, 2002 Case 11.821 December 20, 2002 Case 11.140 December 27, 2002 Petition 326/​01 February 20, 2003 Petition 322/​01 February 20, 2003 Case 12.313 March 17, 2003 Case 11.821 October 11, 2004 Petition 167/​03 October 13, 2004 Case 12.419 February 2, 2005 Case 12.338 March 2, 2006 Case 12.338 June 23, 2006 Case 12.338 July 9, 2007 Petition 12.354 April 21, 2009

310 

Table of Cases and Reports

Xákmok Kásek Indigenous Community of the Enxet-​Lengua People and its Members v. the Republic of Paraguay Report No. 98/​09 –​Pueblo Indígena Xucuru (Brasil) Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-​American Human Rights System Pueblo Indígena Kichwa de Sarayaku y sus Miembros v. Ecuador Report no. 72/​11 –​William Gomez Vargas v. Costa Rica Pueblo Indígena Kichwa de Sarayaku v. Ecuador, Observaciones Finales Garífuna Community of Triunfo de la Cruz and its Members v. Honduras Marcel Granier et al. v. Venezuela Pueblos Indígenas Kuna de Madugandí y Emberá de Bayano y sus Miembros v. Panama, Escrito de sometimiento del caso e informe de fondo Garífuna Community of Punta Piedra and its Members v. Honduras Informe No. 14/​15 –​Trabajadores Cesados (petroperú, mef, enapu, minedu) Observaciones de la Comisión Interamericana de Derechos Humanos –​Solicitud de Opinión Presentada por el Estado de Panamá Report No. 44/​15 –​Xucuru Indigenous People (Brazil) Pueblos indígenas, comunidades afrodescendientes y recursos naturales: protección de derechos humanos en el contexto de actividades de extracción, explotación y desarrollo

Case 12.420 July 3, 2009 Petition 4355-​02 October 29, 2009 OEA/​Ser.L/​V/​II December 30, 2009 Case 12.465 April 26, 2010 Petition 1164/​05 March 31, 2011 Case 12.465 August 8, 2011 Case 12.548 November 7, 2012 Case 12.828 November 9, 2012 Case 12.354 November 13, 2012 Case 12.761 March 21, 2013 Cases 11.602, 12.385, 12.665, 12.666 March 23, 2015 March 30, 2015 Case 12.728 July 28, 2018 OEA/​Ser.L/​V/​II.Doc. 47/​15 December 31, 2015

311

Table of Cases and Reports

Inter-​American Court of Human Rights (IACtHR) Opinión Consultiva (OC) 03/​83, Restricciones a la pena de muerte (Arts. 4.2 y 4.4 de la Convención Americana sobre Derechos Humanos) Advisory Opinion 04/​84, Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica Advisory Opinion 05/​85, Compulsory Membership in an Association Prescribed by the Law for the Practice of Journalism Advisory Opinion 06/​86, The Word “Laws” in Article 30 of the American Convention on Human Rights Velásquez Rodríguez v. Honduras, Preliminary Objections Velásquez Rodríguez v. Honduras, Merits Opinión Consultiva (OC) 10/​89, Interpretación de la Declaración Americana de los Derechos y Deberes del Hombre en el Marco del Artículo 64 de la Convención Americana sobre Derechos Humanos Advisory Opinion (AO) 11/​90, Exceptions to the Exhaustion of Domestic Remedies (Art. 46(1), 46(2)(a) and 46(2)(b) American Convention on Human Rights Aloeboetoe y otros v. Suriname, Merits Advisory Opinion (AO) 13/​93, Certain Attributes of the Inter-​American Commission on Human Rights Aloeboetoe y otros v. Suriname, Reparation and Costs Advisory Opinion (AO) 14/​94, International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention

Series A No. 3 September 8, 1983 Series A No. 4 January 19, 1984 Series A No. 5 November 13, 1985 Series A No. 6 May 9, 1986 Series C No. 1 June 26, 1987 Series C No. 4 July 29, 1988 Series A No. 10 July 14, 1989

Series C No. 11 August 10, 1990 Series C No. 11 December 4, 1991 Series A No. 13 July 16, 1993 Series C No. 15 September 10, 1993 Series A No. 14 December 9, 1994

312 

Table of Cases and Reports

El Amparo v. Venezuela, Reparations and Costs Caballero Delgado y Santana v. Colombia, Reparations and Costs El Amparo v. Venezuela, Interpretation of the Sentence on Reparations and Costs Paniagua Morales et al. (White Van Case) v. Guatemala, Merits Cesti-​Hurtado v. Peru, Merits Advisory Opinion (AO) 16/​99, El derecho a la información sobre la asistencia consular en el marco de las garantías del debido proceso legal Caracazo v. Venezuela, Merits Villagrán Morales et al. (Street Children Case) v. Guatemala, Merits Comunidad de Paz de San José de Apartadó, Provisional Measures Bámaca Velásquez v. Guatemala, Merits Ivcher-​Bronstein v. Peru, Merits, Reparations and Costs Comunidad Mayagna (Sumo) Awas Tingni v. Nicaragua, Merits, Reparations and Costs Barrios Altos v. Peru, Merits Cantos v. Argentina, Preliminary objections Comunidad de Paz de San José de Apartadó, Provisional Measures Advisory Opinion (AO) 17/​02, Juridical Condition and Human Rights of the Child Five Pensioners v. Peru, Merits, Reparations and Costs

Series C No. 46 September 14, 1996 Series C No. 31 January 29, 1997 Series C No. 46 April 16, 1997 Series C No. 37 March 8, 1998 Series C No. 56 September 29, 1999 Series A No. 16 October 1, 1999 Series C No. 58 November 11, 1999 Series C No. 63 November 19, 1999 November 24, 2000 Series C No. 70 November 25, 2000 Series C No. 74 February 6, 2001 Series C No. 79 August 31, 2001 Series C No. 83 September 3, 2001 Series C No. 85 July 9th, 2001 June 18, 2002 Series A No. 17 August 28, 2002 Series C No. 98 February 28, 2003

313

Table of Cases and Reports

Communities of Jiguamiandó and Curvadaró, Provisional Measures Masacre Plan de Sánchez v. Guatemala, Merits Juvenile Reeducation Institute v. Paraguay, Preliminary Objections, Merits, Reparations and Costs Comunidad Moiwana v. Suriname, Preliminary Exceptions, Merits, Reparations and Costs Comunidad Indígena Yakye Axa v. Paraguay, Merits, Reparations and Costs Yatama v. Nicaragua, Preliminary Exceptions, Merits, Reparations and Costs Mapiripán Massacre v. Colombia, Merits, Reparations and Costs Palamara-​Iribarne v. Chile, Merits, Reparations and Costs Comunidad Moiwana v. Suriname, Interpretation of the Judgment of Merits, Reparations, and Costs Comunidad Indígena Sawhoyamaxa v. Paraguay, Merits, Reparations and Costs Ituango Massacres v. Colombia, Preliminary Objections, Merits, Reparations and Costs Claude Reyes et al. v. Chile, Merits, Reparations and Costs Chaparro Álvarez and Lapo Íniguez v. Ecuador, Preliminary Objections, Merits, Reparations and Costs Pueblo Saramaka v. Suriname, Preliminary Objections, Merits, Reparations and Costs Salvador Chiriboga v. Ecuador, Preliminary Objections and Merits Pueblo Saramaka v. Suriname, Interpretation of the Judgment Perozo et al. v. Venezuela, Preliminary Objections, Merits, Reparations and Costs

March 6, 2003 Series C No. 105 April 29, 2004 Series C No. 112 September 2, 2004 Series C No. 124 June 15, 2005 Series C No. 125 June 17, 2005 Series C No. 127 June 23, 2005 Series C No. 134 September 15, 2005 Series C No. 135 November 11, 2005 Series C No. 145 February 8, 2006 Series C No. 146 March 29, 2006 Series C No. 148 July 1, 2006 Series C No. 151 September 19, 2006 Series C No. 170 November 21, 2007 Series C No. 172 November 28, 2007 Series C No. 179 May 6, 2008 Series C No. 185 August 12, 2008 Series C No. 195 January 28, 2009

314 

Table of Cases and Reports

Acevedo Buendía et al. (Discharged and Retired Employees of the Comptroller Case) v. Peru, Preliminary Objection, Merits, Reparations and Costs Comunidad Indígena Xákmok Kásek v. Paraguay, Merits, Reparations and Costs Miguel Castro Castro Prison v. Peru, Victims’ Legal Assistance Fund Salvador Chiriboga v. Ecuador, Reparations and Costs Barbani Duarte et al. v. Uruguay, Merits, Reparations and Costs Kichwa Indigenous Peoples of Sarayaku v. Ecuador, Merits and Reparations Afro-​descendant Communities Displaced From the Cacarica River Basin (Operation Genesis Case) v. Colombia, Preliminary Objections, Merits, Reparations and Costs Pueblos Indígenas Kuna de Madugandí y Emberá de Bayano v. Panama, Preliminary Exceptions, Merits, Reparations and Costs Norín Catrimán y otros (Dirigentes, Miembros y Activista del Pueblo Indígena Mapuche) v. Chile Granier et al. (Radio Caracas Television Case) v. Venezuela, Preliminary Objections, Merits, Reparations and Costs Garífuna Punta Piedra Community and its Members v. Honduras, Preliminary Objections, Merits, Reparations and Costs Comunidad Garífuna Triunfo de la Cruz y sus Miembros v. Honduras, Fondo, Reparaciones y Costas Pueblos Kaliña y Lokono v. Surinam, Fondo, Reparaciones y Costas

Series C No. 198 July 1, 2009 Series C No. 214 August 24, 2010 September 2, 2010 Series C No. 222 March 3, 2011 Series C No. 234 October 13, 2011 Series C No. 245 June 27, 2012 Series C No. 270 November 20, 2013

Series C No. 284 October 14, 2014 Series C No. 279 May 29, 2014 Series C No. 293 June 22, 2015 Series C No. 304 October 8, 2015 Series C No. 305 October 8, 2015 Series C No. 309 November 25, 2015

315

Table of Cases and Reports

Opinión Consultiva (OC) 22/​16, Titularidad de Derechos de las Personas Jurídicas en el Sistema Interamericano de Derechos Humanos Trabajadores de la hacienda Brasil Verde v. Brasil, Excepciones preliminares, fondo, reparaciones y costas Opinión Consultiva (OC) 23/​17, Medio Ambiente y Derechos Humanos Trabajadores Cesados de Petroperú y Otros v. Perú, Excepciones Preliminares, Fondos, Reparaciones y Costas Pueblo Indígena Xucuru y sus Miembros v. Brasil, Excepciones preliminares, Fondo, Reparaciones y Costas Cuadernillo de la Jurisprudencia de la Corte Interamericana de Derechos Humanos no. 11: Pueblos Indígenas y Tribales

Series A No. 22 February 26, 2016 Series C No. 318 October 20, 2016 Series A No. 23 November 15, 2017 Series C No. 344 November 23, 2017 Series C No. 346 February 5, 2018 2018

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Index achpr (African Commission on Human and Peoples’ Rights) 130–​131, 133–​134 AChHPR (African Charter on Human and Peoples’ Rights) 22, 159–​160 ACtHPR (African Court on Human and Peoples’ Rights) 28–​29, 132, 245, 250–​251, 291–​292 actio popularis 169 adhr (American Declaration on the Rights and Duties of Man) 16 admissibility requirements 173, 224–​225, 241, 263–​264, 272–​273, 277–​278 adrip (American Declaration on the Rights of Indigenous Peoples) 7, 24–​25 African Charter on Human and Peoples’ Rights. See AChHPR African Commission on Human and Peoples’ Rights. See achpr African Court on Human and Peoples’ Rights. See ACtHPR African System of Human Rights 6–​7, 21, 110–​111, 130–​131, 174, 226 Afro-​Colombian communities 234 Afro-​Descendants communities 9, 232–​233 Aloeboetoe 10–​11, 37, 82, 88–​89, 109–​111, 154, 157 amparo action 44–​45, 192 ancestral territory 43, 151, 190–​191, 193 Arabic basic human rights 22 beaches 246–​248, 264, 290–​291 benefit  sharing 251 social security 6, 60 bona fides 214–​215 Brazil 16–​17, 21, 58, 67, 76–​77, 258 capacity  individual 27–​28, 167–​168, 265–​266 individual legal 188, 288–​291 personal 27 Chiriboga, Salvador 208–​209, 270 collective  entities 1, 29, 36, 168–​169, 216, 223, 225, 227–​229, 258, 263–​264, 289–​290 property titles 125, 255

communal  decision 82, 89 lands 43–​44, 65, 148–​149, 156, 233, 242, 249–​250, 270–​271, 275, 289–​292 land tenure 56–​59, 130, 259–​260 ownership 249–​250 possession 112 property 4–​5, 48–​50, 71, 101–​112, 133–​134, 147–​149, 194, 247–​248, 268–​269, 289–​291 tradition 142 community  Awas Tingni 40, 83, 288–​289 maroon 37, 90, 98, 125 assembly 195 Garífuna 241, 246 Moiwana 9, 90, 149, 151, 154 Sawhoyamaxa 104 Xákmok Kásek 158 Yakye Axa 100 compatibility test 254–​255, 264–​265, 269–​270 conflicts  inter-​ethnic 190, 197–​198, 206 consent 44, 46, 126, 132–​133, 146, 190–​193, 215, 238 consultation  accessible 200–​201 effective 202, 213 prior 193–​194, 197, 200–​201 right to 207 continuity, historical 226, 245, 291–​292 continuous  effects 127 violations 237, 256, 264–​265 competence  ratione personae 29, 39, 159, 164, 169, 228, 273 ratione materiae 39, 169–​170, 228, 266, 273 corporations 274 cultural  diversity 205, 288–​289 heritage 78–​79, 202, 227 identity 1, 23, 93–​95, 101–​106, 110, 143, 151–​152, 197–​199, 205, 265–​266 rights 72, 77, 93–​94, 102–​103, 159–​162, 198, 262

334 Index customary  international law 48, 53–​55 laws 38–​39, 50–​51, 57–​59, 68, 70, 84, 126, 148 rights 58, 60 damages  collective 93, 277–​278 cultural 231 individual 277–​278 non-​material 51, 203 decisions, landmark 56–​57, 71–​72, 83, 109, 142, 225 delimitation 51, 72–​73, 86, 248–​249, 261–​262 demarcation process 260–​261 dignity, human 3, 69, 111–​112, 170–​171 disappearances, enforced 173 discrimination 2, 23, 51–​52, 66, 71 historical 46, 52, 84–​85, 129, 155 displaced  indigenous communities 78 persons 90, 232–​235, 242 distinctiveness, cultural 132, 151–​152 diversity 84–​85, 94 domain, exclusive 60 domestic remedies, lack of exhaustion of 45–​46, 241 echr (European Commission of Human Rights) 140–​141, 175–​177 ECoHR (European Convention for the Protection of Human Rights and Fundamental Freedoms) 17–​18, 20–​22, 30, 68–​69 economic activities 61, 125, 132, 148, 190, 199, 246–​247, 253 ECtHR (European Court of Human Rights) 4–​5, 28–​29, 57, 71–​72, 86, 94, 155–​156, 163–​164, 175–​176, 221, 237, 248, 256 Emberá. See peoples, Kuna and Emberá environment 46–​47, 56, 81, 88, 148, 192, 227 environmental  rights 88, 156, 256–​257 stewards 25, 67–​68, 81–​82, 88–​89, 255–​256 ethnicity 142, 151–​152, 167 European Commission of Human Rights. See echr

European Court of Human Rights. See ECtHR evidence 5, 38–​39, 46, 48, 78, 83, 95–​96, 136, 174–​175, 218, 220, 278, 291–​292 evolutive interpretation 68–​69, 84, 93, 98, 102–​103, 109, 139, 172, 174, 199, 203–​204, 213, 259–​260 expert witnesses 91, 110–​111, 132, 136, 140–​141, 147–​149, 158, 243–​244, 291–​292 exploitation, illegal 232–​233 explosives 193 expropriation 101, 105, 190, 208–​209, 237 facts, supervening 96 farc 232–​233 Finland 2 fishing rights 5 forced displacement 232–​235 fund, legal assistance 220 Garífuna.  See community, Garífuna good faith 145–​146, 200–​201, 214 principle of 196, 200–​201, 214–​215 requirement of 200–​201 goods 6, 7, 61, 194, 288 intangible 6, 60, 264, 268, 290–​291 public 247 group  protection 70 representation 278 rights 108, 111–​112, 159–​161, 267, 275 groups  cultural 189 individualized 64 minority 9–​10, 55–​56, 66 non-​indigenous 224–​225 paramilitary 37, 232–​233 undetermined 98–​99 vulnerable 2, 175–​176 Honduras 241, 246 Human Rights, regional protection of 17 human rights bodies, quasi-​judicial  177–​178, 274 hrc (Human Rights Committee) 56n37, 71n79, 162–​163, 174–​175 human rights violations  large-​scale 173, 224–​225, 268–​269 massive 276–​277 hydroelectric dam 125, 127, 131, 235–​236

335

Index iccpr (International Covenant on Civil and Political Rights) 20–​22, 47, 53, 55–​56, 66, 68–​69, 71, 94, 140–​142, 153, 156–​157, 174–​175, 204 identification documents 109 identity  community’s 244 group’s 243–​244, 253 ila (International Law Association)  54–​55, 264–​265n194, 269–​270n206, 290–​291n6, ilo (International Labour Organization) Convention 7, 16, 24–​25, 28, 53, 57, 65, 71, 73, 85, 97–​98, 101–​102, 110–​111, 129–​130, 151, 156–​157, 195, 201–​202, 226, 291–​292 inconsistency, translation 75–​77, 171, Indian 16, 40–​41n11, 67n65, 85n116, 246 indigeneity 81, 261, 265 indigenous  communal property. See communal, property displaced 78 culture 41–​42, 78–​79 groups 67–​68, 78, 104–​105, 136, 153, 178, 188–​189 individuals 88–​89, 222, 261 land tenure 56–​59, 130, 259–​260 languages 2, 194–​195, 202–​203 lifestyles 38, 93, 170, 261 nationalities 189 normativities 25 persons 38, 170, 261 possession 73, 86, 91–​92, 143–​144, 156 religions 1 woman 162–​163 indigenous lands  expropriated 101–​102 protecting 46, 93–​94, 261–​262 indigenous peoples  definition of 7, 24–​25, 66, 81, 91, 136, 146, 167, 243–​245, 261, 291–​292 fundamental freedoms of 141, 146 members of 255, 257 participation of 24, 62–​63, 79, 231, 254 protection of 47, 261 recognition of 11, 227, 241 indigenous property  deeds 264–​265

characteristics of 62, 87 protection of 62, 102–​103 indigenous territories, exclusive 238–​239, 245–​246, 256, 264 indigents 172 individualization 38, 64–​65, 88, 92–​93, 99, 109, 112, 165, 168, 174, 223, 228, 233–​234, 266, 273 requirement of 177–​178, 234 victims of 10–​11, 36, 38–​40, 93, 98, 170, 234 inequality 40 Intangible Cultural Heritage 94 Inter-​American Charter of Social Guarantees 53–​54 Inter-​American Democratic Charter 24 interests  collective 83, 101, 129–​130 diffuse legal 98–​99 international corpus juris 275–​277 international law  collective subjects of 202, 229–​230, 256 general principle of 199, 211–​213 subjects of 96–​97, 127, 227, 278–​279 interpretation  expansive 148–​149 restrictive 49–​50, 75, 174 juridical personality 152–​153 jurisdiction, advisory 10, 19, 28–​29 ratione personae. See competence, ratione personae ratione materiae. See competence, ratione materiae Kaliña and Lokono peoples. See peoples, Kaliña and Lokono Kichwa indigenous people of Sarayaku. See peoples, Kichwa Kuna and Emberá people. See peoples, Kuna and Emberá land encroachment 242 lands  ancestral 61, 100, 104–​105 shared 78, 109–​110, 288–​289 tribal 91–​92, 299 use and enjoyment of 110, 242 land tenure 48, 127, 130

336 Index land use 6, 88–​89, 131, 144 languages  native 22, 65, 110–​111, 137 official 63, 75, 214, 294 Latin America 63, 75, 214, 226, 294 Legal capacity, collective 11, 139, 159–​161, 188, 207, 235, 260–​261, 264, 289–​291 legal personality 7, 44, 142–​143, 152–​153, 157–​158, 162–​165, 255, 257–​258 legal persons  individual members of 271–​272, 275 rights of 272, 274 legal restrictions of property rights 208–​210 legal standing 80–​81, 96, 127, 149–​150, 174–​176, 220, 229–​230, 276–​277 limited 288–​289 legal subjects, collective 158, 225–​226, 289–​290 lifestyles  gypsy 94 indigenous communal 61 mobile 61 limited ownership rights 269–​270 limited usufruct rights 60 local peasant communities 235–​236 locus standi 91, 95–​97, 127, 149–​151, 157, 177–​178, 218–​221 logging companies 232–​233 maritime areas 247–​249 maritime zones 248–​249 material goods 264, 268, 290–​291 minorities 9–​10, 66–​68, 94, 105–​106 Miskito indigenous people.  See people, Miskito Moiwana. See community, Moiwana natural resources  exploiting 144, 194 inclusion of 102, 130–​131, 147 nature conservation 254–​255 N’djuka maroon community 90, 253 Nicaragua 40 non-​discrimination 16–​17, 23, 57–​58, 205, 271 non-​repetition 196, 202, 231 non-​state actors 278–​279 obligation  negative 23, 219–​220, 278 positive 23, 59, 71–​72, 109–​110, 215, 262

occupation 126–​127, 131, 142–​143, 155–​156 historical 131 prior 258 Operation Genesis 188, 232–​234 Organization  internal communal 138, 223–​224, 263–​264, 277–​278 political 211, 243, 259 socio-​political 49 ownership 5–​6, 50, 61, 91–​92, 106–​107, 264–​265, 288 absolute 107 collective 78, 87, 235–​236, 288–​289 Pact of San José 20 Panama 16, 188, 232–​233, 235 Paraguay 100, 104, 158 participation 62–​63, 79, 141, 145–​146, 155–​156, 200–​201, 209–​211, 213 participatory rights 256–​257 parties, non-​indigenous 253 peoples  indigenous and tribal 129–​131, 138, 274–​275 Kaliña and Lokono 252 Kichwa of Sarayaku 11, 189, 263, 270, 290–​291 Kuna and Emberá 11, 234, 235, 237–​239 Miskito 9–​10n22, 40–​41, 67, 84–​85, 210–​211n34 Saramaka 11, 125, 210–​211, 227, 252, 289–​290 survival of tribal and indigenous 127–​128, 142–​143, 145–​146 Xucuru 258 political rights 77, 197, 257, 262 polygamous marriages 37 polyversity 1, 25 possession 3–​6, 47–​48, 73, 106–​107, 109–​110, 126, 130–​131, 247, 253–​254, 288–​289 collective 86 requirement of 100 principle  iura novit cura 96–​97, 208 pro homine 68–​69, 84, 109, 139, 155, 161–​162 private company 197, 200, 213, 242 private property 18, 49–​50, 59, 62, 74–​75, 86, 101, 107 procedural corollaries 5, 262–​263, 275

Index procedural law 5, 167–​168, 172, 174, 203, 206–​207, 267, 290–​291 procedural requirements 98–​99, 109, 167–​169, 172–​174, 271–​273 procedural rules 79, 87, 98, 174, 259, 275–​276 projects  large-​scale 146 state’s development 215 touristic 247 property  civil 59, 103, 106–​107, 109–​110, 247–​248, 256, 288–​289 communal rights to 92, 131 definition of property 60, 74, 86 deprivation of 22, 145–​146, 208, 237 individual 267 intellectual 6, 60 social interest of 77 use and enjoyment of 49–​50, 74–​75 property claims 6, 100, 104 property disposal 249–​250 property entitlement 127 property goods 6 property rights  collective 27, 72, 267–​268 communal 50, 142 individual 152–​153, 267–​269 intellectual 6, 60 restriction of 208–​209 property title 250, 255 property use 109–​110 proportionality test 269–​270 protected areas, natural 246, 252 Protocol of San Salvador 102–​103 racial discrimination 27, 46 ratione materiae. See competence ratione personae. See competence relationship, all-​encompassing 91–​92 reparations  collective nature of 138, 154, 157–​158 individual 154, 251–​252 individualization of victims and beneficiaries of 124, 172–​173 requirements  consultation’s 214 language 63 resources 25, 50, 52, 54–​55, 147–​148, 194, 220, 248

337 lands and natural 1, 3, 25, 46, 53–​55, 60, 127, 264, 268, 290–​291 maritime 248 mineral 133–​134, 148 subsoil 87 restitution 196, 231, 233, 236, 260 restrictions  legal 101–​102, 144–​147, 207–​210 legitimate 142 Rio Declaration 25, 46–​47, 56, 67–​68, 227 Roma minorities 94 Saami (Sámi) Villages 175–​176n132 safeguards 53–​54, 141, 145–​147, 197, 201, 209–​210, 254, 269–​270 Saramaka.  See people Sarayaku.  See people Sawhoyamaxa.  See people self-​determination 9–​10, 24–​25, 56, 65, 68, 94–​95, 153, 174–​175 self-​identification 7, 39, 65, 110–​111, 132, 137, 151, 173, 189, 226, 253, 261, 264–​265, 277–​278, 291–​292 Simon Bolivar 16–​17 slavery 97, 125 soft law instruments 161–​162 special measures 127, 129, 139, 193, 205–​206 spiritual relationship 25, 73–​74, 78, 86, 109–​110, 166, 264, 290–​291 state, sovereign 240–​241 state concessions 55–​56, 128 state interference 128, 148 state measures 103, 129, 208–​209 state obligations 22, 25, 46, 57–​59, 71, 72, 86, 94, 105, 126, 143–​144, 205–​206, 261–​262, 270, 288–​289 state practice 9 state’s obligation to consult 194–​195, 197–​199, 204, 207, 210, 289–​290 structural discrimination 2, 170–​171, 276–​277, 288–​289 institutional 38, 170 structure  customary leadership 43 hierarchical 136 matrilineal 37 political 226 social 43, 125, 136–​137, 143, 190, 196, 229–​230, 246 sociopolitical 65, 127

338 Index subjectivity, legal 7, 149–​150, 240 subjects, collective 65, 124, 128, 157–​158, 202, 231, 274–​275 subsidiary rights 59, 85–​86, 125 subsistence 43, 132–​134, 156, 189, 199, 201, 209–​210, 246–​247, 253 subsoil.  See resources Suriname 36, 90, 252 survival 3–​4, 43, 47, 55–​56, 79, 93–​94, 140–​141, 143–​149, 156, 164–​165, 209–​210, 289–​291 cultural 46, 129, 133 economic 50 physical 143 territorial relocation 87, 288–​289 title  inalienable 250 informal property 60 real property 143 trade unions 273 traditional knowledge 4n9, 8–​9n19, 56n38, 132–​134 traditional land tenure 48, 127, 130 transformative concepts 51, 53, 206, 263, 265–​266 tribal peoples 9, 92, 127, 129–​131, 133, 136–​137, 139, 142–​143, 150–​152, 167, 233, 243–​244, 256, 291–​292, 300 udhr (Universal Declaration of Human Rights) 17–​18

undrip (United Nations Declaration on the Rights of Indigenous Peoples) 2, 8–​9, 24–​25, 46, 53–​54, 94–​95, 103–​104, 127–​130, 132–​133, 141–​142, 151, 159–​161, 164–​165, 177–​178, 195, 201–​202, 204, 262, 277–​278 unesco (United Nations Educational, Scientific and Cultural Organization) 94, 205, 243–​244 unidroit Convention 8–​9n19 veto power 215 victim requirement 39, 169, 176, 222–​225, 228–​229, 239, 271–​273, 275, 277–​278 vida digna 105 villages, transmigration 125, 131 vulnerability 46, 51–​52, 84–​85, 112, 139, 155, 166, 205–​206, 233–​234, 263, 265–​266 doctrine of 129, 139, 155, 203 situation of 52, 139, 205–​206, 263 Xákmok Kásek Indigenous Community. See community, Xákmok Kásek Xucuru Indigenous People.  See people, Xucuru Yakye Axa Indigenous Community. See community, Yakye Axa Yanomami 9–​10n22, 67, 84–​85n116