The Indigenous World 2022: The Inter-American Human Rights System (IAHRS)

The Inter-American Human Rights System (IAHRS) is composed of two human rights bodies: the Inter-American Commission on Human Rights (IACHR or the Commission) and the Inter-American Court of Human Rights (IACHR Court). Both bodies work to promote and protect human rights in the Americas. The IACHR is composed of seven independent members and two independent special rapporteurs, and is based in Washington, D.C., United States, while the Court is composed of seven judges and is based in San José, Costa Rica.

In 1990, the IACHR created the Rapporteurship on the Rights of Indigenous Peoples with the aim of providing support for the Indigenous Peoples of the hemisphere, as well as strengthening, promoting and systematising the work that the Commission itself carries out in this area. To this end, the IACHR uses a variety of instruments, including thematic studies and reports; petitions and cases, including friendly settlements; precautionary measures; thematic hearings; confidential requests for information from States; and press releases. The Rapporteurship also participates in conferences and seminars organised by States, academic institutions and civil society. The Inter-American Court, on the other hand, issues advisory opinions and judgements, among other tasks.


The following sets out some of the main activities undertaken by the IACHR in relation to the rights of Indigenous Peoples during 2021.

I. Thematic reports

On 30 December 2021, the Inter-American Commission on Human Rights (IACHR) published its thematic report on the Right to Self-Determination of Indigenous and Tribal Peoples. This is the first time that the IACHR has comprehensively addressed the scope and content of this right, which is fundamental to Indigenous and tribal peoples’ enjoyment of their other human rights, both collectively and individually.

In preparing the report, a questionnaire was published in which the IACHR invited States, Indigenous and tribal peoples, civil society organisations, academic institutions and other interested parties to share information on the experiences, challenges, practices and legal recognition of self-determination in the different countries of the American continent. Virtual meetings were held with Indigenous and tribal representatives from North, Central and South America and the Caribbean, as well as with experts on the rights of Indigenous and tribal peoples, on specific topics such as the situation of peoples in isolation and initial contact, Indigenous Peoples living across borders or divided by state borders, and legal pluralism. Meetings were also held with justice workers and representatives of Indigenous autonomous governments.

There was a high level of interest and participation in the various regional meetings from representatives of Indigenous and tribal peoples as well as in the responses to the report questionnaire. State institutions, academia, non-governmental organisations and other sectors of civil society also contributed to this process through their responses to the questionnaire.[1] Despite the virtual meetings imposed by the pandemic, the dialogues with representatives of Indigenous and tribal peoples across the continent enriched the content of the report and provided a better understanding of their situation and their own aspirations and visions as regards this right.

The report included an intercultural perspective on the foundations and origins of this right, and the way in which it is conceptualised and materialised from the cultures, traditions, worldviews and normative systems of these peoples. It addressed the international standards in international law that recognise this right, primarily the American and UN Declarations on the rights of Indigenous Peoples, which establish that these peoples have the right to self-determination, through which they “freely determine their political status and freely pursue their economic, social and cultural development”. It explained how important constitutive elements of self-determination are also reflected in other international treaties such as Convention 169 on Indigenous and Tribal Peoples and in the doctrine and jurisprudence of the Inter-American Human Rights System.[2] It further explained that exercise of this right gives rise to various measures in different contexts, so the starting point must be the current aspirations of the different peoples.[3] In this sense, “there is no single way of exercising the right to self-determination” and therefore “the content of this right is given in its exercise and readapts to changes in historical relations, political conditions and cultural transformations”.[4]

Another important component was the inclusion of practices and experiences shared by Indigenous and tribal peoples, including: the development of normative instruments for self-government and territorial management; life plans; the creation of territorial, municipal and other autonomous political-administrative entities; justice and jurisdiction systems; their own protection and security systems; autonomous consultation and consent protocols; and responses to and strategies for COVID-19. In contrast, the main challenges and barriers that Indigenous Peoples face in the exercise of their self-determination include a lack of respect for their decision-making processes and ways of electing their representative authorities due to interference from external actors, and challenges in the enjoyment of their rights over their lands, territories and natural resources, particularly in the context of natural resource exploitation without prior consultation or consent.

In its recommendations to the States, the IACHR emphasised that recognition of this right must take into account the specific features, aspirations, needs and proposals of each people. The recommendations include different areas of action aimed at strengthening and guaranteeing the important constituent elements of self-determination, including models of self-government, political representation, legal systems, territorial rights, economic, social and cultural development priorities, and their own autonomous protocols for consultation and free, prior and informed consent.

II. Public hearings

During the sessions held in 2021, the following hearings addressed Indigenous Peoples’ issues.

179th Period of Sessions[5]

The IACHR held a hearing on the Impact of colonisation on the Indigenous territories of Nicaragua’s Atlantic Coast. At the hearing, it was reported that at least 13 murders and eight injuries had been recorded throughout 2020, along with the displacement of members of the Mayangna and Miskitu peoples. The petitioner denounced the lack of regulation of the Indigenous territories, which has prevented them from accessing, using and enjoying their lands and natural resources. The State of Nicaragua highlighted the approval of laws and policies on the rights of the Indigenous and Afro-descendant peoples of the Caribbean Coast in the areas of health, education, territorial rights and access to justice. For its part, the Commission acknowledged the participation of the State of Nicaragua in the hearing and, at the same time, expressed its concern at the lack of land titling and impunity in cases of attacks by settlers.

A hearing was also held on human rights and extractive projects in Honduras, in which it was denounced that the State’s economic policy favours extractive and energy projects that have negatively affected the territorial rights of Indigenous and Afro-descendant peoples and rural communities. The lack of transparency and legal protection with regard to approving these projects was highlighted, as well as the persecution, violence and criminalisation of environmental and territorial defenders. The State of Honduras reported on preventive and remedial actions in situations of conflict generated by mining projects, and environmental and labour oversight measures for these projects. For its part, the IACHR stressed that development policies must respect the rights of Indigenous Peoples and international standards on business and human rights, and that differentiated and intersectional protection measures need to be adopted for human rights defenders. It requested additional information from the parties on the differentiated impacts on women, the elderly, and on situations of displacement and human mobility as a result of these projects, and on the implementation of recommendations made by the international mechanisms regarding consultation and free, prior, and informed consent.

During the same session, a hearing was held on the human rights situation of cross-border Indigenous Peoples in the context of the COVID-19 pandemic in Ecuador, Colombia and Peru, in which the petitioning organisations pointed out that Indigenous Peoples were suffering from a large number of cases, and highlighted the risks faced by those who are particularly exposed to the advance of the Brazilian strain. It was reported that the border closures and militarisation measures adopted by States have had a disproportionate impact on the peoples of the Pan-Amazon region. Measures to prevent the pandemic have lacked a cross-cultural approach, and this could affect vaccination campaigns. This situation only exacerbates pre-existing problems such as violence against leaders and the impact of oil spills, deforestation and extractivist projects that are implemented without consultation. They emphasised the need to develop binational and regional measures to protect these peoples. For its part, the IACHR stressed that the measures adopted by States in response to the pandemic needed to respect the worldview and ancestral knowledge of Indigenous Peoples, and that there was a need for coordinated actions among the States to address the situation in the Pan-Amazon region. It also expressed particular concern at the situation of peoples living in voluntary isolation and called on States to respect the principle of no contact and their decision to remain in isolation.

180th Period of Sessions[6]

During the 180th Period of Sessions, a hearing was held on the precautionary measures (MC 51.15) put in place for the Wayuu Indigenous people in La Guajira department, Colombia, due to the humanitarian crisis the beneficiaries continue to face because of a scarcity of drinking water, food insecurity and a lack of adequate medical care. It was denounced that this situation has resulted in the avoidable deaths of several beneficiaries and that the actions taken by the State to implement the precautionary measures were not agreed upon with representatives of the beneficiaries, and nor did they take a cultural approach. For its part, the Colombian State reported on the creation of an intersectoral commission with responsibility for ensuring compliance with the precautionary measures granted by the IACHR and Judgement T-302-2017, particularly on issues of access to water, food security and health. It also reported on actions taken to carry out consultative processes and the implementation of public policies to reduce child mortality and malnutrition, which would include the beneficiaries. While recognising the actions implemented by the State, the IACHR reiterated the importance of dialogue and agreement on actions, to be reached with representatives of the beneficiaries. The IACHR expressed its willingness to participate in consultation meetings between the parties and to consider a possible visit to the territories.

A hearing was also held on the precautionary measures ruled in favour of the Yanomami and Ye'kwana people (MC-563-20), the Munduruku people (MC-679-20) and the Guajajara and Awá people (MC-754-20) in relation to Brazil. The hearing was informed of the increased risks facing these Indigenous Peoples due to the continued presence of invaders on their lands, resulting in an increased spread of COVID-19 and other diseases, and mercury contamination from illegal mining. It was reported that the Special Indigenous Health Districts do not have sufficient capacity to deal with these issues and that violence against Indigenous leaders who denounce their situation has increased. For its part, the Brazilian State acknowledged the challenges in implementing the precautionary measures and reported on police operations against illegal mining on Indigenous lands, the reopening of the Ethno-environmental Protection Bases and vaccination campaigns against COVID-19 in Indigenous territories. The IACHR called on the State to strengthen its efforts to address the situation of violence and land invasions being suffered by Indigenous Peoples, and to improve the channels of communication between the parties in order to coordinate actions for the implementation of the precautionary measures.

181st Period of Session[7]

The IACHR held a hearing on the human rights situation of Indigenous children and adolescents in boarding schools in the region, in which the petitioning organisations denounced situations of family separation, a lack of inclusive education, a lack of knowledge of their languages, cultures and Indigenous traditions, as well as the trauma and effects on their own mental health and that of their families. The situation of boarding schools in Canada, Mexico and Colombia was discussed. The Commission recognised that institutionalisation in the region had been a focal point for violations of the human rights of Indigenous children and adolescents, as these schools were aimed at assimilation, and called for guarantees of their economic, social, cultural and environmental rights, as well as the right to truth, justice and reparation with an intercultural approach.

182nd Period of Sessions[8]

During this session, a hearing was held on the human rights situation of Indigenous Peoples in the Peruvian Amazon. This highlighted the risks these peoples face due to extractive and infrastructure projects, drug trafficking, mining and illegal logging. The petitioning organisations denounced the lack of free, prior and informed consultation on projects carried out in Indigenous territories, as well as the impacts they have on the environment and the right to access water, highlighting the intergenerational, physical and spiritual effects. They also pointed out how vulnerable Amazonian environmental and Indigenous rights defenders are to violence. For its part, the Peruvian State reported on the National Human Rights Plan 2018-2021, the mechanism for protecting human rights defenders, and the General Government Policy 2021-2026 as measures that are all promoting and protecting the work of human rights defenders. The IACHR expressed its willingness to work on a joint roadmap based on the recommendations set out in the Report on Indigenous and Tribal Peoples in the Pan-Amazon region and urged the State to ratify the Escazú Agreement.

The hearing on The situation of Indigenous Peoples and the right to the environment in the context of salmon farming in Chile addressed the impacts of this economic activity on Indigenous communities and the ecosystems on which they depend. Violations of the rights to a healthy environment, free, prior and informed consultation, access to participation, information and justice, cultural survival and adequate food, among others, were denounced. The Chilean State emphasised its strong institutional framework and regulations aimed at guaranteeing the rights of these communities in the context of this economic activity. The IACHR and the Office of the Special Rapporteurship on Economic, Social, Cultural and Environmental Rights expressed their concern at the vulnerable situation of Indigenous Peoples and the environmental degradation. They also called on the State to guarantee the rights of Indigenous Peoples to a healthy environment and to apply Inter-American standards in the context of business activities, through the effective use of their regulatory, supervisory and judicial functions, and also to ratify the Escazú Agreement.

III. Precautionary measures[9]

On 23 December 2021, the IACHR granted precautionary measures in favour of the families of the Mixtec Indigenous communities of Guerrero Grande and Ndoyonuyuji together with five missing persons due to the serious and urgent risk of irreparable harm to their rights caused by a series of acts of violence and armed aggression in the municipality of San Esteban Atatlahuca, Oaxaca, during October 2021. Families from these Mixtec communities were displaced by the violence and the burning of their homes, and the whereabouts of five people remains unknown. In its precautionary measures, the IACHR called on Mexico to adopt the necessary measures to: protect the rights to life and personal integrity of these Indigenous families, through culturally appropriate measures aimed at protecting their rights, especially those of the children, women and the elderly; guarantee security within the communities in order to prevent threats, harassment, intimidation and aggression against their inhabitants; and determine the whereabouts of the five missing persons in order to protect their right to life and personal integrity, among other things.[10]

On 15 July 2021, the IACHR granted precautionary measures in favour of Indigenous leader Yiner Hernás Quiguantar Cortés from Cauca, Colombia, due to threats and harassment against him. The State was called upon to adopt the necessary measures to protect his life and integrity in an effective and culturally relevant manner so that he can continue to carry out his work of defending human rights, among other measures.[11]

On 23 April 2021, the IACHR decided to grant precautionary measures in favour of Tsotsil Indigenous families living in 12 communities in the municipality of Aldama, Chiapas, Mexico, due to aggression from armed actors. This situation took place despite the existence of a Non-Aggression Agreement. The IACHR requested that the State of Mexico: adopt the necessary and culturally relevant security measures to protect the life and personal integrity of the beneficiaries and, in particular, guarantee their safety within their communities and during their displacement, with a view to preventing threats, harassment, intimidation or acts of armed violence against them by third parties, among other measures.[12]

On 16 April 2021, the IACHR granted precautionary measures in favour of seven Indigenous Wichí women who were concealing their pregnancies through fear of the authorities in Formosa Province, Argentina. According to reports, this situation had made it impossible for them to access the medical care they needed for their pregnancy and forthcoming labour. The IACHR requested that Argentina immediately adopt measures to enable access to adequate culturally and linguistically appropriate medical care, in accordance with applicable international standards and in accordance with the free, prior and informed consent of the beneficiaries, taking into account their Indigenous worldview and from a gender perspective, among other measures.[13]

On 4 January 2021, the IACHR decided to grant precautionary measures in favour of members of the Guajajara and Awá Indigenous Peoples living in voluntary isolation in the Araribóia Indigenous Land, Brazil. The beneficiaries are at risk from the COVID-19 pandemic due to their particular vulnerability, deficiencies in health care and the presence of unauthorised third parties on their territory. The IACHR requested that the Brazilian State adopt the necessary measures to protect the rights to health, life and personal integrity of the members of the Guajajara and Awá Indigenous Peoples by implementing culturally appropriate measures to prevent the spread of COVID-19 and to provide adequate medical care under conditions of availability, accessibility, acceptability and quality, in accordance with applicable international standards, among other measures.[14]

IV. Petitions and cases

Admissibility reports

On 7 September 2021, the IACHR approved the admissibility report regarding the petition submitted on behalf of the Maya Achi, Q'eqchi and K'iche communities of Guatemala. The petition to the IACHR alleged the State of Guatemala’s responsibility for violating the human rights of 33 Indigenous Maya communities due to damage caused by the construction of the Chixoy hydroelectric dam, which was implemented in a context of violence, genocide, disappearances and forced displacement. This situation also had detrimental economic, social, cultural and environmental consequences. A lack of compliance with the reparations under the commitments acquired by the State was alleged. The IACHR admitted the petition in relation to the rights to life, personal integrity, personal freedom, judicial guarantees, freedom of expression and private property, among other provisions of the American Convention on Human Rights.[15]

On 14 July 2021, the IACHR approved the admissibility report for the petition of the Rapa Nui people with respect of Chile, which alleged violations of the right to their collective property, territory and natural resources. Despite requests for the recognition and autonomy of the Rapa Nui people for more than 125 years, more than 70% of their ancestral territory is under State control and ownership, and this has damaged their way of life and development. It was argued that the State needed to return the land in order to protect the ancestral property of the Rapa Nui people, and their right to self-determination. The IACHR admitted the petition in relation to the rights to life, judicial guarantees, freedom of conscience and religion, and to property, among other rights enshrined in the American Convention.[16]

On 28 March 2021, the IACHR approved the admissibility report regarding the petition submitted on behalf of the Navajo Indian communities of Crownpoint and Church Rock with respect of the United States. The petition alleges human rights violations following the approval of a licence to mine uranium in the Navajo communities of Crownpoint and Church Rock, New Mexico. The IACHR admitted the petition in relation to the rights to the benefits of culture, to justice and to property under the American Declaration of the Rights and Duties of Man.[17]

Merits reports

No substantive reports relating to the rights of Indigenous Peoples were recorded on the IACHR website during 2021.

Leonardo J. Alvarado, M.A., J.D., L.L.M. is a lawyer and expert in international law on the rights of Indigenous Peoples. He is currently working as a specialist lawyer in the Office of the Rapporteurship on the Rights of Indigenous Peoples of the Inter-American Commission on Human Rights.[18]

 

This article is part of the 36th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. Find The Indigenous World 2022 in full here

 

Notes and references 

[1] IACHR. Right to Self-Determination of Indigenous and Tribal Peoples. OAS/Ser.L/V/II, Doc. 413, 28 December 2021, paras. 52, 54.https://www.oas.org/en/iachr/reports/pdfs/self-determination-EN.pdf.

[2] IACHR. Right to Self-Determination of Indigenous and Tribal Peoples. OAS/Ser.L/V/II, Doc. 413, 28 December 2021, para. 4.https://www.oas.org/en/iachr/reports/pdfs/self-determination-EN.pdf.

[3] Ibid, para. 356.

[4] Ibid, para. 6.

[5] Section based on IACHR, Press Release 076/21. IACHR concludes 179th Virtual Period of Sessions. 26 March 2021. https://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/media_center/PReleases/2021/076.asp.

[6] Section based on IACHR, Press Release 165/21. IACHR completes 180th session. 2 July 2021. https://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/media_center/PReleases/2021/165.asp.

[7] Section based on IACHR, Press Release 297/21. IACHR completes 181st session. 8 November 2021. https://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/media_center/PReleases/2021/297.asp.

[8] Section based on IACHR, Press Release 344/21. IACHR completes 182nd session. 17 December 2021. https://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/media_center/PReleases/2021/344.asp.

[9] General information on precautionary measures: https://www.oas.org/en/iachr/jsForm/?File=/en/iachr/decisions/mc/about-precautionary.asp

[10] IACHR, Precautionary Measure No. 1050-21. Families from the Mixtec Indigenous communities of Guerrero Grande and Ndoyonuyuji et al in Mexico. 22 December 2021. https://www.oas.org/es/cidh/decisiones/mc/2021/res_105-21_mc_1050-21_mx_es.pdf.

[11] IACHR, Precautionary Measure No. 552-21. Yiner Hernán Quiguantar Cortés with respect of Colombia. 15 July 2021. https://www.oas.org/es/cidh/decisiones/mc/2021/res_53-21_mc_552-21_co_es.pdf.

[12] IACHR, Precautionary Measure No. 248-18. Tsotsil Indigenous families from 12 identified communities in Aldama, Chiapas, Mexico. 23 April 2021. https://www.oas.org/es/cidh/decisiones/mc/2021/res_35-21_mc_284-18_mx_es.pdf,

[13] IACHR, Precautionary Measure No. 216-21. Seven pregnant women of the Wichí ethnic group with respect of Argentina. 16 April 2021. https://www.oas.org/es/cidh/decisiones/mc/2021/res_32-21_mc_216-21_ar_es.pdf.

[14] IACHR, Precautionary Measure No. 754-20. Members of the Guajajara and Awá Indigenous Peoples of the Araribóia Indigenous Land in Brazil, 4 January 2021. https://www.oas.org/es/cidh/decisiones/mc/2021/res_1-21_mc_754-20_br_es.pdf.

[15] IACHR, Report No. 196/21. Petition 466-13. Admissibility. Maya Achí, Q'eqchi and K'iche Indigenous communities. Guatemala. 7 September 2021. https://www.oas.org/es/cidh/decisiones/2021/GUAD466-13ES.pdf.

[16] IACHR, Report No. 150/21. Petition 172-15. Admissibility. Rapa Nui people. Chile. 14 July 2021. https://www.oas.org/es/cidh/decisiones/2021/CHAD172-15ES.pdf.

[17] IACHR, Report No. 67/21, Petition 654-11. Admissibility. Navajo Communities of Crownpoint and Church Rock. United States of America. 28 March 2021. https://www.oas.org/en/iachr/decisions/2021/USAD654-11EN.pdf.

[18] This compilation is the sole responsibility of the author and does not constitute a work carried out within the context of his role within the IACHR.

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