Self-determination or trusteeship? An analysis of the Xukuru case/Autodetermina
| Autor | da Silveira Loureiro, Sílvia Maria |
Introduction (1)
There is no doubt that the judgments handed down by the Inter-American Court of Human Rights are binding for those states that have sovereignly declared to submit to its jurisdiction, as per article 62 of the American Convention on Human Rights (ACHR). Article 68.1 of the ACHR, in turn, provides that "the States Parties to the Convention undertake to comply with the judgment of the Court in any case to which they are parties". This is a procedural obligation assumed by the States under jurisdiction, as a logical consequence of the final and unappealable nature of Inter-American sentences, conferred by article 67 of the ACHR, and under this obligation rests the fundamental pacta sunt servanda principle, the basis of International Law.
In contrast, it cannot be ignored that compliance with Inter-American sentences is one of the most complex stages of the process before the Inter-American System of Human Rights (IASHR). On the one hand, the decentralized nature of international law means that there is no direct coercion with the use of force against a recalcitrant State in complying with the orders issued by the Inter-American Court. The Court can only indicate cases in which a State has not complied with its judgments in an annual report submitted to the General Assembly of the Organization of American States (OAS) with pertinent recommendations, in accordance with article 65 of the ACHR.
On the other hand, the lack of internal legal and political mechanisms in most of the American States (2), hinders the internalization and prompt and full compliance with Inter-American sentences, especially with regard to non-indemnity reparations, such as victim rehabilitation measures, legislative changes, measures against impunity for public and private agents directly responsible for the violations recognized in the sentence, and the implementation of public policies to prevent the repetition of the same violations in future cases.
Thus, precisely in order to prepare its annual report, the Inter-American Court has developed - in its forensic practice - the stage of supervision of compliance with its own sentences (BURGOS, 2014, p. 137), to ensure, through a dialogical procedure between the parties to the case, the Inter-American Commission on Human Rights (IACHR) and amici curiae, the execution of its determinations, in periodic rounds of reporting on the resolutive points fulfilled or pending compliance by the State.
Following this practice, in the case of the Xucuru Indigenous People and its Members vs. Brazil, judged by the Inter-American Court on February 5, 2018, Resolutive point No. 12 consigned that the State should, within one year from the notification of the judgment, submit a report to the Court on the measures adopted for its compliance, determining in Resolutive point No. 13, that this case will be subject to supervision of compliance with the judgment by the Inter-American Court until the State fully complies with its provisions.
In observance of the above, in a Resolution dated November 22, 2019, the Court pronounced, as follows, in the first cycle of supervision of compliance with the judgment of the Case of the Xucuru Indigenous People and its Members vs. Brazil:
1. Declare, in accordance with the provisions of Considerations 5 to 7 of this Resolution, that the State has fully complied with the measures of disclosure and publication of the Judgment and its official summary (resolutive point ten of the Judgment). 2. Keep open the process of supervising compliance with the following remedies, which, as per the provisions of Consideration 3 of this Resolution, will be evaluated in a subsequent resolution: a) Guarantee, in an immediate and effective manner, the Xucuru Indigenous People's collective property right over their territory, so that they do not suffer any invasion, interference or damage, by third parties or State agents that might depreciate the existence, value, use or enjoyment of their territory (resolutive point eight of the Judgment); b) Complete the restructuring process of the Xucuru indigenous territory, with extreme diligence, make compensation payments for pending good faith improvements, and remove any type of obstacle or interference on the territory in question, in order to ensure the full and effective domain of the Xucuru people over their territory, within no more than 18 months (resolutive point nine of the Judgment); c) Pay the amounts established as compensation for immaterial damage (resolutive point eleven of the Judgment); and d) Pay the amounts established as costs (resolutive point eleven of the Judgment). 3. To provide that the State submit to the Inter-American Court of Human Rights, no later than February 21, 2020, a report on all measures pending compliance. To provide that the representatives of the victims and the Commission submit observations on the State's report mentioned in the resolutive point above, within four and six weeks, respectively, of receipt of the report. As can be seen, the Brazilian State, without deviating from what generally occurs in other States of the region in terms of compliance with inter-American sentences (BURGOS, 2014) (ORTIZ, 2018), managed to quickly implement the measures for publicizing and disclosing the decision. As for the part referring to compensation, the indigenous people themselves resisted the establishment of a community development fund based on the payment of US$1,000,000.00 (one million dollars) as compensation for the immaterial damage suffered by the members of the Xukuru People, and the Inter-American Court agreed, in paragraphs 4 to 7 of the aforementioned resolution, that the State should make the payment directly to the association appointed by the Xukuru Indigenous People. According to the research of Franco Neto (2020, p.221) in the Transparency Portal of the Brazilian Federal Government, a first payment was identified as having been made on January 21, 2020, in the amount of R$4,117,871.00, and a second payment, on February 3, 2020, in the amount of R$65,498.12 referring to the complementary payment of the sentence and the costs of the case, totaling US$ 15,405.16.
In this context, this article proposes an in-depth analysis of the possible legal causes of the noncompliance with the Inter-American judgment in the Case of the Xukuru Indigenous People, focusing on the analysis of the obstacles of Brazilian domestic law in the face of the principle of self-determination and the right to collective ownership of indigenous territories established by the interpretation of Article 21 of the ACHR in the case law of the Inter-American Court.
To this end, in the first place, the need to improve the procedure for contentious cases before the Inter-American Court of Human Rights will be highlighted in order to guarantee a true protagonism for indigenous peoples without retrogressing to the protection of the Inter-American Commission of Human Rights in situations such as the failure to present the Brief containing Pleadings, Motions, and Evidence (ESAP) (3). Next, based on the obligation contained in Article 2 of the ACHR, it will be demonstrated that the Brazilian internal regulations are insufficient to ensure the enjoyment and exercise of the right to indigenous collective property within the framework of a simple, rapid and effective process, particularly with regard to FUNAI Normative Instruction No. 2/2012. Finally, the contradiction existing between resolutive point 9 of the sentence under analysis and the Brazilian constitutional provision for attributing ownership to indigenous lands as property of the Union and not of the indigenous people collectively, will be discussed.
To conduct this study, the main methods used will be deductive and comparative, fostering dialogue between Brazilian Constitutional Law and International Indigenous Peoples' Law. In addition, the procedure will be bibliographic-documentary and the approach strategy will be the selected case (Xucuru Indigenous People and its Members vs. Brazil).
From the proposed studies, contributions will be offered for the improvement of the Inter-American process in relation to contentious cases involving indigenous peoples and with greater effectiveness of the application of the principle of self-determination of the peoples regarding the right to ownership of their ancestral lands.
1. Indigenous peoples as protagonists in the Inter-American process: self-determination or trusteeship in the case of the Xukuru indigenous people?
Although ILO Convention 169 (4) does not specifically refer to the right to self-determination (5) for indigenous and tribal peoples, the international treaty expressly provides that the interested peoples shall have "the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual wellbeing and the lands they occupy or otherwise use", in addition to the rights to "exercise control, to the extent possible, over their own economic, social and cultural development", and to "participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly" (art. 7.1) (6).
Furthermore, the text of the ILO Convention 169 also guarantees the right of indigenous and tribal peoples to prior, free, informed and bona fide consultation whenever the State envisages measures that may affect them directly. Said consultation must occur "through appropriate procedures and in particular through their representative institutions", guaranteeing that the means are established through which the interested peoples can participate freely, to at least the same extent as other sectors of the population, and at all levels, as well as providing mechanisms for the "full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for...
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