Monday, May 28, 2012
Review of Inter American System's Jurisprudence on Indigenous Peoples Rights
A SCHEMATIC APPRAISAL OF JURISPRUDENCE OF INTER
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CASE
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FACTS
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JUDGEMENT
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ANALYSIS OF DECISION
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COMPARATIVE
JURISPRUDENCE & INTL INSTR. CITED
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Awas Tingni v.
(Judgment of 31.8. 2001)
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Awas Tingni is indigenous to
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Right to judicial protection (art. 25 read together
with art. 1(1) and 2); right to property (art.21) violated. IACtHR refused to
find violation of right to life (4), privacy (11), conscience and religion
(12), association (16), family (17), movement and residency (22) and right to
participate in govt. (23). IACtHR ordered for delimitation demarcation and
titling of Awas Tingni territory, legal reform, reparation (US$ 50,000),
Costs (US$ 30,000)
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-IACtHR uses “an evolutionary interpretation of
international instruments for the protection of human rights, and takes into account
norms of interpretation including article 29(b) of the Convention -which
precludes a restrictive interpretation of rights to find that article 21 of
the Convention protects the right to property “in a sense which includes,
among others, the rights of members of the indigenous communities within the
framework of communal property” (¶ 148).
-Court
defines property 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” (¶ 144).
-Court
recognizes that property notions founded on individual ownership must be
adjusted to accommodate the unique property forms espoused by indigenous
people, which includes collective ownership, right to freely live in their
territory-these being justified because the “ close ties of indigenous people with
the land [being] the fundamental basis of their cultures, their spiritual
life, their integrity” ( ¶ 149).
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Court considers
customary law of the community and proposes that “possession of the land
should suffice for indigenous communities lacking real title to property of
the land to obtain official recognition of that property and for consequent
registration”. (¶ 151).
-Court
also looks at trevaux preperetoires
of the American Convention on Human Rights to determine the meaning of
property in article 21. See concurring judgement of Sergio Garcia Ramirez J: “The
language in which this right (property) is framed was meant to accommodate
all subjects protected by the Convention. Obviously, there is no single model
for the use and enjoyment of property”. (¶ 11).
-Court
proposes that terms used in international human rights standards have
autonomous meaning beyond those ascribed to them by national legislation. It
looks at ILO Convention 169
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ICJ/PCIJ
1. Reparation
for Injuries Suffered in the Service of the United Nations (1949)
2. Factory at
Chorzow (1928) [both for the proposition that obligation to provide
adequate reparation for violations is a principle of international law.]
European CtHR
Kenmache v
International Instruments and
standards
ILO Convention 169 art. 14(1)
UN Draft Declaration on Indigenous Peoples (then)
Geneva Convention on Law of Treaties (art 31(1))
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Moiwana v
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On
Almost
ten years later, on
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Court found violation of right to judicial
protection in article 25, right to property in article 21, freedom of
movement in article 22, right to fair trial in article 8 -all read within the
penumbra of obligations set out in articles 1(1) and 2 of the Convention.
IACtHR ordered for adoption of legislation to give effect to Moiwana property
rights; establishment of community development fund for US$ 1,200,000 being
compensation; awarded US$ 45,000 as costs
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-The
Court asserted jurisdiction by holding that
-Failure
to investigate and punish massacre against an indigenous/tribal group will
constitute a “continuing violation” for the purposes of determining the
culpability of a state, even if the act complained against took place before
the state had ratified a given treaty.
-Court
infers that if a tribal or indigenous/tribal community cannot access its
ancestral land by virtue of failure on part of state to visit just deserts
upon perpetrators of a massacre, right to property of such community will
have been violated. This is notwithstanding the fact that such a community
may not have legally recognised title to the land and their claim is only
anchored upon possession and historical occupation. (¶ 131).
-Ct
found that an indigenous community’s claim to ancestral land was not defeated
merely by the fact that they were no longer in possession, if it can be shown
that they lost possession and continue so to do, through the instrumentality
of state violence (¶ 134).
-Court
declined to find that right to life in article 4 had been breached since the
specific events, as opposed to their effects, which gave rise to lose of
life, took place before the ratification of the Convention by
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Human Rights Committee
Communication 859/1999
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Yakye Axa v.
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The
Yakye Axa community consists of indigenous people that historically engaged
in hunting and gathering. Their ancestral land had been sold to foreign
investors at the
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-IACtHR
found that the right to judicial protection in articles 8 and 25 in
combination with state obligation in articles 1(1) and 2 require that for a
judicial recourse availed to claimants to be effective, formal recognition in
the constitution or statute was not sufficient. Effectiveness of recourse
will be a function of the appropriateness and capability of an established
mechanism to secure remedy for a violation. (¶ 61). For indigenous people,
-In
determining the existence of an effective procedure for indigenous land claim
court will: i. examine formal existence of recourse mechanisms; ii. Examine
the effectiveness of these mechanisms, which involves examining a. weighing
the time taken to respond to the issue against the complexity thereof, b.
procedural requirements to be met by the Claimant, and c. conduct of judicial
authorities. (¶ 65). The net effect of this examination is to establish the
existence of procedures that can provide real opportunity for the resolution
of an indigenous peoples land claim (¶ 102).
-Legal
recognition of the political leadership of an indigenous group for purposes
of acquiring property or other rights is a mere formality the non procurement
of which does not defeat their inherent claim. (¶¶ 82-84).
-The
principle of rational use of property by third party cannot be used to trump
an indigenous community’s historical claim, unless it can be shown that the
state has done all within its facility to secure the interests of the
indigenous vulnerable group. (¶ 97).
-Ct.
took as its starting point its decision in Awas Tingni v Nicaragua to interpret article 21 as encompassing
collective ancestral land rights of indigenous communities ¶ 124) on the
basis of cultural and spiritual connectedness of indigenous people with their
ancestral territory. It assessed the scope of property rights by looking at
the Convention as a live instrument the interpretation of which must take
into account the changing contexts (¶ 125). It also interpreted the
Convention on basis of article 31 of Vienna Law of Treaties and Article 29
(b) of the Convention itself (¶¶ 126 & 129).
-The
limitation of property rights in article 21(1) is permissible on the grounds
of proportionality, namely, if the restriction is closely adjusted to the
attainment of legitimate objective, interfering as little as possible with
the exercise of the restricted right (¶ 145). The restriction must also not
defeat the collective aspirations of the Convention (¶ 145).
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To comply with the article 21(1), State must show that it has assessed clash
between ancestral property rights and private property rights and the
proportionate impacts of permitting one to prevail over the other considered.
The importance of indigenous land rights to their very survival as a cultural
group should be taken into account in this balancing process (¶ 146).
-Alternatives
to restitution of ancestral land to indigenous people must be pursued in
consultation and with consent of indigenous group taking into consideration
their institutions, values, customs and laws (¶ 151).
-Failure
to guarantee collective property rights to an indigenous community violates
right to life of the community to the extent that access to traditional means
of subsistence as well as use and enjoyment of natural resources are
constrained (¶ ¶167 & 168).
-Court
declines to find violation of right to life with respect to the death of 16
members of the community on the grounds of lack of causal connection (¶¶ 177
& 178).
-In
finding that state is obliged to delimit and demarcate ancestral land of the
Yakye Axa, Ct. stated that it was also upon the state to define the scope of
such a territory: “…it is the state’s duty to identify the community’s
territory and subsequently, delimit, demarcate, title and transfer the lands,
inasmuch as it is the state that has the technical and scientific means to
carry out these tasks” (¶ 23 of Yakye
Axa v Paraguay Interpretation Judgement of February 6, 2006). Such
identification of territory must factor in the historical memory of
indigenous group with respect to the territorial scope.
-In
dismissing state contention that restitution of ancestral land to the
Sawhoyamaxa would prejudice investment treaty between Germany and Paraguay,
the court was explicit that “the enforcement of bilateral commercial
treaties…should always be compatible with the American Convention, which is a
multilateral treaty on human rights that stands on its own…and does not
depend entirely on reciprocity among states” (¶ 140).
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ECtHR
Tyrer v United Kingdom, 5856/72 Judgment of
International human rights
instruments and Standards
-ILO Convention 169
-UN Covenant on Economic Social and Cultural Rights
-UN Committee on Economic Social and Cultural
Rights, General Comment No 14.
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Yatama v
(Judgement of
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Pursuant
to a new law in Nicaragua which required only political parties to
participate in the electoral process, YATAMA, a regional political party was
excluded from participating in the 2000 Mayoral elections for not meeting the
threshold conditions of fielding candidates in 80% of the electoral areas in
the RAAN & RAAS regions; a decision of the supreme electoral body that
was not subject to judicial review. This was notwithstanding an accommodative
provision in the Nicaraguan law that for indigenous organizations, their own
natural form of organization and participation will be respected so that they
may form regional parties [¶ 124(21)]. This resulted in non- participation of
indigenous communities of the Atlantic Coast in the political processes and a
four year exclusion from decision making process, hence increasing the
vulnerability of indigenous communities in the regions.
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Right
to fair hearing in article 8, right to judicial remedies in article 25,
article 23 on political participation of citizens and article 24 on equality
before the law, read together with the obligations in article 1(1) and 2 of
the Convention had been violated.
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-In
indicting the decision of the Supreme Electoral Council to exclude Yatama
from the 2000 elections,
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Ct. held explicitly that lack of judicial review of decision of an electoral
body would offend article 25 of the Convention: “Irrespective of the
regulations that each state establishes for its Supreme Electoral Body, the
latter must be subject to some form of jurisdictional control that allows it
to be determined whether its acts have been adopted respecting minimum
guarantees and rights established by the American Convention, and those
established in its own laws…” (¶ 175).
-Ct.
held that while the regulation of political participation is permissible,
under article 23 and 24, it must respect the principle of legality, necessity
and proportionality in a democratic society: “Legality requires that state to
define precisely by law, the requirement for voters to be able to take part
in an election and stipulate clearly the electoral procedures prior to the
elections…The restriction should be established by law, non- discriminatory,
based on reasonable criteria, respond to a useful and opportune purpose… necessary
to an urgent public interest, and be proportionate to this purpose.” The
least restrictive option should be pursued (¶ 206).
-Ct
confirmed that a statute that required the signatures of 3% of voters before
one is deemed qualified to contest an election was an impermissible intrusion
on the right to political participation (¶ 213).
-Ct
found that any requirement for political participation that would render
groups with different form of political organization unable to participate
offends article 23 and 24 to the extent that it limits the enjoyment of
political rights more than is strictly necessary and is an impediment to
political participation (¶ 220).
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The Ct.
established that the requirement that all political parties present
candidates in at least 80% of the municipalities is a disproportionate
restriction that unduly limited the political participation of the candidates
postulated by YATAMA for the municipal elections of November 2000: “It does
not take into account that the indigenous and ethnic population is a
minority, nor that there would be municipalities in which there would be no
support for candidates, or that there would be no interest to seek this
support”(¶223).
-In
its analysis, the Court understood that the obligation of the State to
guarantee political rights implied that regulations for its exercise and
application be carried out according to the principles of equality and
non-discrimination. In the case of people who belong to indigenous or ethnic
communities, the regulation must also take into account specifications such
as their languages, customs and forms of organization, which may be different
from the majority of the population (¶¶ 218 & 219).
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Thus, the Court
held that
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The decision extensively relied on comparative
jurisprudence from the ECtHR, and Human Rights Committee. It also analyses
and applies various legal standards emerging from treaty bodies etc. See e.g.
footnote to ¶ 184 and 192.
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Sawhoyamaxa v
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The
Sawhoyamaxa lost their land in 19th century when it was sold at London Stock
Exchange to repay sovereign dates owing to
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IACtHR
ruled in favour of Sawhoyamaxa community and found violation of articles 3
(juridical personality); 4 (right to life); 8 (fair hearing) ; 25 (effective
remedy) ,and 21 (property)
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-The
Ct. established that the lack of legal framework to support compulsory
acquisition of land under rational use by third parties and ensure its
restitution to indigenous community renders the provision of the Paraguayan
Constitution and Agrarian Legislation which provide possibility for land
claims by indigenous peoples in the country incapable of satisfying the
requirements of articles 8 and 25 of the Convention (¶¶ 102-108).
Congressional economic justifications for rejecting request to condemn land
and transfer it to an indigenous group, likewise fails to satisfy articles 8
and 25 (¶ 105).
-Ct
made it clear that the foundation for collective property in favour of
indigenous people is based on its aspiration not to discriminate between two
systems of property ownership. The court observed that “This notion of
ownership and possession of land does not necessarily conform to the
classical concept of property, but deserves equal protection under article 21
of the American Convention. Disregard for this specific version of use and enjoyment of property,
springing from the culture, uses, customs and beliefs of each people, would
be tantamount to holding that there is only one way of using and disposing of
property, which in turn would render the protection under article 21
…illusory for millions of persons” (¶ 120).
-Ct.
reaffirmed the principles established in Awas
Tingi v Nicaragua and set out
substantive norms on the nature and scope of indigenous land rights thus: 1)
their traditional possession of lands is equivalent to fee simple property/free hold title; 2) their
traditional possession gives rise to a legitimate demand for official
recognition and registration of property title; 3) forced displacement of
indigenous people from ancestral territory does not divest them of title to
their property even though they lack legal title, unless the lands have been
lawfully transferred to third parties in good faith, in which event; 4) they
are entitled to restitution thereof or to obtain other lands of equal
extension and quality. (¶ 128).
-Indigenous
community’s right to restitution of ancestral land from which they were
displaced will subsist as long as their cultural connection to the land
survives. The court found that such close relationship with ancestral land is
“ expressed in different ways, depending on the particular indigenous people
involved and the specific circumstances surrounding it, and it may include
the traditional use or presence, be it through spiritual or ceremonial ties;
settlements or sporadic cultivation; seasonal or nomadic gathering, hunting
and fishing; the use of natural resources associated with their customs and
any other element characterizing their culture” (¶ 131). The rights of
indigenous people whom the state prevents from manifesting their cultural
connectedness to a given ancestral land through repression or violence will
not lapse (¶ 132).
-In
finding violation of article 4 on right to life and holding the state
culpable for the deaths of 18 minors, members of the Sawhoyamaxa, the court
restated its basis thus: “ In order for this positive obligation to arise, it
must be determined that at the time of the
occurrence of the events, the authorities knew or should have known
about the existence of a situation posing an
immediate and certain risk to the life of an individual or of a group of individuals, and that the
necessary measures were not adopted within the scope of their authority which
could be reasonably expected to prevent or avoid such a risk” (¶ 155). The
court adopting this to the vulnerable situation of the community, opined that
“those measures which the state undertook to adopt before the members of the
Sawhoyamaxa community were different, in view of the urgent nature, from those
the state should adopt to guarantee the rights of the population…in general”
(¶ 173).
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ECtHR
Kilic v
Oneryldiz v Turkey, Application No.
48939/99, EurCourtHR (gc), Judgement of
Osman v
International Instruments and
standards
ILO Convention 169
UN Convention on Economic, Social and Cultural
Rights
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Saramaka v
(Judgement
of
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The
Saramaka are a tribal community descending from slaves who after freeing
themselves were recognized as an autonomous group by treaty with the Dutch
colonial authorities in 1762. Since the 16th Century, the
community has collectively occupied the
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The State was found to be in violation of the right
to property, as recognized in Article 21, the right to juridical personality
in article 3 and the right to judicial protection under article 25 of the
American Convention on Human Rights in relation to the obligations to
respect, ensure, and to give domestic legal effect to said rights, in
accordance with Articles 1(1) and 2 thereof. The State was ordered to
delimit, demarcate, and grant collective title over the territory of the
members of the Saramaka people, in accordance with their customary laws and
in consultation with the community.
The State was ordered to grant the members of the
Saramaka people legal recognition of the collective juridical capacity,
pertaining to the community to which they belong, with the purpose of
ensuring the full exercise and enjoyment of their right to communal property,
as well as collective access to
justice, in accordance with their communal system, customary laws, and
traditions. Damages of US$
675,000 to be managed by an Implementing Committee of 3 persons and applied
towards community development awarded. Costs of US$ 85,000 payable to the 2
Representatives of the Victims-Forest Peoples Programme and Association of
Saramaka Authorities also awarded.
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-With respect to the right to property, the court
affirmed that scope of indigenous and tribal peoples land rights should be
established by an assessment of the customary norms of the community and on
the basis of consultation with them (¶¶ 100 & 101). In this respect, a
statute that merely grants an interest (as apposed to a right) to the
indigenous community in relation to their land, subjecting their enjoyment to public good,
will not satisfy the obligation of a state under article 2 of the Convention
(¶¶ 108-110) . A statute that compensated only title holders to land the
subject matter of mining and leaves non-title holders (the Saramaka) without
recourse would also fail to satisfy article 2 of the Convention (¶111).
-The court interpreted the proviso to article 21 of
the Convention as capable of permitting a restriction in the enjoyment and
use of land and natural resources within the territory of an indigenous or
tribal group. Such restriction must be established by a law of general
application and should be necessary, proportional and aimed at achieving a
legitimate objective in a democratic society (¶ 127).
-The court explicitly held that restriction of
property rights will not be permitted if it has the effect of threatening the
survival and existence of a tribal or indigenous community and its culture (¶
128 -To ensure that the exploitation
of natural resources did not threaten the survival of indigenous and tribal
group, the court obliges state parties to the Convention to: i) ensure effective
participation of the community in conformity with their customs and
traditions in any development process; ii) secure their benefit sharing in
the outcomes of the development program, and; iii) undertake prior legitimate
and comprehensive environmental and social impact assessment of the proposed
development intervention (¶ 129)
-The court also established that in order to achieve the
participation of indigenous or tribal people in small scale logging/mining development, state parties must secure
the free, prior, informed and culturally-compliant consultation of indigenous
people (¶ 133). However, with respect to large
scale logging/mining programs, state obligation goes beyond consultation
and enlarges into prior, informed consent (¶¶ 134-137 (referencing CERD
General Comment no. 23 and Special Rapporteur’s report).In this, the court
was emphatic:
“…the safeguard of effective participation that is necessary when
dealing with major development or investment plans that may have a profound
impact on the property rights of the members of the Saramaka people to a
large part of their territory must be understood to additionally require the
free, prior and informed consent of the Saramakas, in accordance with their
traditions and customs.”
Whether a development is small scale or large scale
is an issue of fact based on its impact on indigenous peoples’ culture and
livelihood.
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Alexkor Ltd. &
Government of
Delgamuukw v British
Columbia [1997]
3 S.C.R 1010 (
African Commission on Human and
Peoples Rights
The Social and
Economic Rights Action Centre & the Centre for Economic and Social Rights
v Nigeria,
Communication 155/96 (2001)
Connors v
Human Rights Committee
Lansman v Finland, Communication
511/1992, U.N. Doc. CCPR/C/52/D/511/1994 [Decision of
Apirana Nahuika et al. v
U.N. Doc. CCPR/C/70/D/547/1993 (2000).
International instruments and standards
- Universal Declaration on Human Rights
-International Convention on Economic Social
and Cultural Rights
-International
Covenant on Civil and Political Rights
ILO Convention
169
-World Bank
Operational Policy on Indigenous Peoples,
-UNHRC General Comment 23
-UN CERD General Recommendation No. 23. -UN
Declaration on Indigenous Rights.
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