Indigenous rights in South America: observance with inter-american standards/Derechos ind
| Autor | Navarro, Gabriela |
1 introduction
This article analyzes the observance, among South American countries, with the jurisprudential parameters developed by the Inter-American Court of Human Rights regarding indigenous territorial rights, consolidated in the case Xucuru v. Brazil.
The Court has built a progressive and transformative jurisprudence tackling the marginalization and exclusion experienced by indigenous peoples. Legal recognition of indigenous rights, however, is nothing new in South America, since most countries recognize the right of indigenous peoples to their territory, either in the Constitution or through international treaties. Although they do not represent legal innovations to the domestic system, the decisions of the regional human rights system serve the role of reinforcing the demands of social movements and indigenous protection organizations. This legal reinforcement becomes important as we observe a context of accelerated pressure on natural resources and lands, causing an exponential growth in violations of the right to indigenous collective property and escalating violence against indigenous peoples (GLOBAL WITNESS, 2018; TAULI-CORPUZ, 2018).
The article adopts the theory of the chain of effectiveness developed by Calabria (2018). The efficacy of international courts is divided into five layers: observance, enforcement, strengthening, implementation, and adequacy. The first layer of efficacy, observance, is adopted. It represents the spontaneous adherence by a country to the parameters of the regional court, preceding a final decision or contentious case involving the country (CALABRIA, 2018).
To achieve the objective, the development of territorial rights in the Inter-American Court is presented (topic 2), followed by a presentation of the international context of the recognition of rights (topic 3), and an analysis of the constitutional rights recognized in South America and the status of the ratification of ILO Convention 169 (topic 4). Although constitutionally guaranteed, territorial rights are gradually being violated (topic 5). The article concludes by affirming that the case law of the Inter-American Court consolidates the domestic recognition of indigenous territorial rights and analyzes it in relation to its present recognition, or not, in the constitutional courts in Latin America, strengthening social and governmental actors that act in the dispute for the effectiveness of the right to collective property (topic 6).
2 Territorial rights recognized by the inter-american court
The Inter-American Court has consolidated the most progressive binding international case law on indigenous territorial rights, representing a model for courts and treaties around the world, praised by several researchers in the field of human rights (ANTKOWIAK; 2014; PASQUALUCCI, 2009; BURGORGUE-LARSEN, 20013; GILBERT, 2014).
Since its creation until 2021, the Court has decided fourteen contentious cases involving indigenous territorial rights, and the right to collective property rights over ancestral territories has been recognized. (1) As the American Convention only recognizes the right to property from an individual perspective and does not mention any indigenous rights, the Court has applied extensive interpretative methods to ensure the protection of territorial rights, such as the pro homine principle, the use of indigenous customary law, and systematic interpretation based on the corpus iuris of indigenous rights.
Thus, through the extensive interpretation of article 21, the Court recognized the protection of the indissoluble bond between indigenous communities and their ancestral territories, recognizing the state's duty to delimit, demarcate, title, and to perform the saneamiento of the lands, and to refrain from any act prejudicial to the enjoyment of property. The right to collective property includes the right to natural resources indispensable to the physical and cultural survival of indigenous peoples. For mineral exploration, the Court established three procedural safeguards: the right to free, prior, and informed consultation, benefit sharing, and the elaboration of a prior socio-environmental impact study. The objective is to guarantee the cultural and physical continuity of the peoples.
The protection of territory is further reinforced by the recognition of other parallel rights. Indigenous peoples must have access to procedural remedies to protect their property in accordance with articles 8 and 25 of the Convention, including the right to collective legal personality (article 3 of the Convention). The Court further recognized the implied rights to cultural identity and self-determination, and recognized the right to a life of dignity and the state duty to guarantee it. In the Yakye Axa, Sawhoyamaxa, and Xákmok Kásek cases, the communities were displaced from their territories and experiencing conditions of misery.
A development in the recognition of territorial rights by the Court can be observed. First, the Court recognized the right to collective property and the procedures necessary to access the right (Awas Tingni, 2001). Next, it was recognized that in cases where indigenous communities were forcefully removed from their property, the state has an obligation to guarantee a life of dignity by ensuring basic social rights such as health, education, and housing (Yakye Axa, 2005). The next step was to recognize that the right to property encompasses natural resources that are indispensable to the survival of indigenous peoples, establishing safeguards for economic exploitation by the state or third parties (Saramaka, 2007). Finally, the state duty of saneamiento was recognized in Garífuna Triunfo de la Cruz (2015). Implicit rights to self-determination and cultural identity (2) were recognized respectively in Saramaka (2007) and Kichwa of Sarayaku (2012).
The case Xucuru v. Brazil (2018) consolidates the right to collective property. In the same vein, Kaliña y Lokono v. Suriname (2018) consolidates the parameters for exploitation of natural resources on indigenous lands.
Finally, in the most recent decision, Lhaka Honhat v. Argentina (2020), the court held that article 26 of the American Convention was violated, in relation to the rights to a healthy environment, to adequate food, to water, and to cultural identity. This is the first time that the Court has analyzed these rights autonomously on the basis of article 26 of the American Convention (3)
In the international order, the recognition of territorial rights and the imposition of state duties of protection and non-intervention in indigenous collective property by the Court represented a breakthrough in the indigenous struggle for recognition of their rights.
3 Treaties and declarations of indigenous rights recognized by international law
In International Law, the developed notion of Nation-State did not attribute to indigenous peoples the condition of subjects of rights, subjugating their culture as a "backwardness" before the State, because they did not match the proposal of civilization and progress (ZIMMERMANN; DAL RI JR, 2016).
This context, exemplified by the privatistic character of the first civil codifications in Latin America, has changed only recently. This change came with the re-democratization of Latin American countries and the development of International Human Rights Law, with the Inter-American Court, generating changes in domestic and international law.
The first change is in International Law, which only studied the relationship established between states, in the ideas of civilization and progress (ZIMMERMANN; DAL RI JR, 2016). This situation was transformed when institutions began to regulate state relations in order to safeguard citizens' rights. Thus, the Humanitarian Law, the International Human Rights Law and the International Labour Organization were created, covering greater human rights.
In this sense, specific declarations and treaties arose, in view of the movement for the decolonization of territories and the self-affirmation of these peoples. The indigenous situation, however, was belatedly observed within this dynamic, in view of two elements: the elaboration of ILO Convention 107, of 1957, and the protection of native peoples by state institutions.
ILO Convention 107 conditioned indigenous peoples to a right to formal equality in relation to other citizens, disregarding their differentiated conditions of existence, as it conferred on the State the guardianship of their rights, with the objective of integrating these peoples into society so that they could achieve equality. Despite emphasizing the duty of protection for indigenous communities, it did not contain definitive protections for their autonomy and their territories, as it tied them to the national economy and, therefore, the single nation (ZIMMERMANN; DAL RI JR, 2016), leading to violations of indigenous peoples' rights. This is revealed by the reports on repression in Latin America, such as the Brazilian National Truth Commission. (4)
The changes in the understanding of indigenous rights generated ILO Convention 169, which revised the content of this 1957 Convention (5). This new convention was drafted in 1989 and ratified by the various countries throughout the 1990s and 2000s and brings differences from the first one. This last convention is very important in guaranteeing indigenous rights, as it abolished the idea of integration because the current convention started to give participation and power to the idea of a community as a collective and autonomous subject. (6)
In this sense, importance was given to the performance of economic, labor, and educational activities to indigenous peoples with, minimally, an equality in relation to other social segments. (7) In addition, it gave them the right to consultation in processes that have some impact on the traditional indigenous universe, respecting the form of expression of the original...
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