The forgotten people of international law
To start the discussion about the indigenous peoples’ situation in the present international community, the following definition may be given : “A historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the society now prevailing in those territories... (and are) determined to preserve, develop and transmit to future generations their ancestral territories and their ethnic identity as the basis of their continued existence as peoples, in accordance with their own cultural, religious, social institutions and legal systems”. When contrasted with the definition of the national minorities, it is evident that the indigenous peoples do not necessarily constitute numerical minorities (for example, in certain countries of Latin America or Greenland). The most important distinction lies in the reference to the “pre-colonial” status of indigenous peoples and their particular attitude towards their ancestral lands.
One may consider that the indigenous peoples’ situation is too deeply rooted in the history of certain countries and is not a present-day and universal problem, leaving the opponents like Waldron and Kymlichka to argue about the need for and ways of reparations of the “injustice past” or about individual and collective rights’ dichotomy. However, even if the State leaders follow the example of the Queen Elizabeth II who apologized to the Maoris of New Zealand for their mistreatment by the British in the 19th century, the indigenous peoples are not safe from encroachments nowadays. In 2002 the United States replied to the Dann community’s petition to the Inter-American Court of Human Rights by impounding their livestock grazing on lands, imposing a considerable fine for the alleged trespass of the lands, seizing and selling 225 heads of the Dann’s cattle. In 2004 the Sarayaku people objected to the oil exploitation of their lands by an Argentine petroleum company under a contract from the Ecuador government. The company’s employees, with the assistance of State officials, threatened, beat, robbed and tortured members of the community and even killed their attorney. The petroleum company planted landmines in the Sarayaku hunting area which kept people from hunting for their food ; explosive detonations destroyed their forests, springs, caves and sacred sites. In the same 2004 the indigenous communities in Brazil were attacked by groups armed with chainsaws and tractors, killing one person, disappearing another and destroying 34 homes, the school and the health clinic.
Such examples clearly demonstrate the insufficiency or ineffectiveness of the national protection of the indigenous peoples and call for the international community to improve their situation in general and their status in the international law. The indigenous peoples still face even semantic problems of their recognition by the international law. Firstly, debates continue as to whether they are “peoples” in the sense of the UN Charter or simple “populations”. Secondly, the term of “self-determination” represents the greatest controversy between the advocates of the indigenous peoples and their opponents. Should it be abandoned for the term of “autonomy” or “self-government” ? Or maybe a clear definition should be given, for example, that the right of self-determination does not include the right of a cession and does not threaten the territorial integrity of the countries - these are the consequences the most feared by the national governments if the right of self-determination is to be acknoewledged. In any event, these discussions show clearly the lack of unanimous attitude among the international actors towards the indigenous peoples. This problem is more evident when the international documents conferring specific protection to the indigenous peoples are analysed. Up to the date, the only binding document is the International Labour Organisation (ILO) Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries. The other documents are either not binding or still in the process of elaboration which does not seem to finalise in the nearest future. However, in the recent time the indigenous peoples started using the regional human rights fora for the protection of their fundamental rights. These are the African, Inter-American and European human rights systems. The present paper deals with the most effective and progressive (in the author’s opinion) forum - the Inter-American Court and Commission of Human Rights - and analyses their structure and general principles of cases’ examination, as well as rights invoked by the indigenous peoples and remedies provided to them.
I Inter-American Human Rights System
A.Structure of the Inter-American Human Rights System
Every American State has ratified the Charter of the Organisation of the American States and, thereby, accepted the competence of the Inter-American Commission to consider violations of human rights within its jurisdiction. The common document on the basis of which the Commission may examine the cases is the 1948 American Declaration on the Rights and Duties of Man. The subsequent document, the 1969 American Convention on Human Rights, is applicable only to those States that have already ratified it (unlike, i.e., the USA and Canada). The Commission or the State Party may then refer a case to the Inter-American Court of Human Rights if the State has accepted the jurisdiction of the Court either ipso facto for all cases or by special agreement in a particular case.
The American Declaration on Human Rights sets forth only individual rights and does not address the rights of peoples. However, the American Convention “provides that every person has a right to recognition as a person before the law”. This recognition of the legal personality of indigenous communities is of great importance as it allows the communities to bring legal and administrative actions before the State authorities in the name of the community. However, the indigenous rights do not stem from the State recognition of the legal status of the community which is a simple formality - the Court has asserted that it only makes operative the pre-existing rights of indigenous communities that they have exercised for centuries.
The Inter-American Court and Commission have a dynamic interpretation of the human rights treaties considering them as “living documents”. They also use a comparative approach referring to other international or regional documents on human rights, such as the International Labour Organisation (ILO) Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, the Draft UN Declaration on Indigenous Rights and the Draft American Declaration on the Rights of Indigenous Peoples.
B. General principles
The Court and the Commission apply the following general principles in cases related to indigenous peoples :
Non-discrimination and equal protection before the law. This principle is established by both the American Declaration on the Rights and Duties of Man and by the American Convention on Human Rights. The latter protects the non-discrimination principle not only in respect of the rights guaranteed by the Convention, but also in respect of any rights set forth by the domestic laws of the States Parties. The Court and the Commission consider as discriminatory distinctions which do not have an objective and reasonable justification. They also accept positive discrimination inviting the States to take into consideration those characteristics of the indigenous peoples that differentiate them from other population and constitute their cultural identity, their customary law. The Court and the Commission ground the non-discrimination principle in the natural law and such concepts as human dignity and unity of the family. Moreover, in case of Yatama v. Nicaragua the Court named this principle as a new imperative norm - jus cogens.
Participation of indigenous peoples in decisions affecting them. In the Court’s view, decisions affecting indigenous peoples are only legitimate with active (individual and collective) participation of indigenous peoples. Moreover, such consultations must be “culturally appropriate and procedurally adequate” and based on indigenous peoples’ full access to relevant information as well as on their “mutual consent”. Even when enforcing the Court or Commission’s judgments, like demarcation and provision of titles to lands in Awas Tingni v. Nicaragua, the States have to consult the indigenous peoples.
Observance of indigenous customary law and cultural values. In the Aloeboetoe v. Suriname case the Court had to determine the beneficiaries of reparations to be paid by the Suriname State for extrajudicial execution of seven men from the Saramaca people. According to the non-official Saramaca family law (allowing polygamy), the reparations would have been available to all wives and children of one man and the Court followed the local cultural law of succession.
II Fundamental Rights of the Indigenous Peoples and Remedies in the Inter-American Human Rights System
1.The right of indigenous peoples to their ancestral lands is based on the distinct relationship that they have in respect of those lands - these territories are the fundamental basis of their cultures, spiritual life, integrity and their entire survival as a people “in a democratic and pluralistic society”.
2.These are primarily collective rights.
3.The right of property includes the right to restitution of lands but not necessarily the rights of indigenous peoples would prevail over the private ownership.
4.Land rights are relative and must be balanced against private land rights on a case-by-case basis.
5.Restrictions on the right to property must be established by domestic law and must be necessary and proportionate to the pursued legitimate objective - a compelling public interest.
6.When restitution of lands is not possible, the State has - with the agreement of the indigenous peoples concerned - to propose alternative lands (of quality and legal status at least equal to those of ancestral lands and suitable for the needs of the indigenous peoples) or compensation (which should take into account “the meaning that the land has for them”).
7.It is sufficient for the Court and Commission that a people possesses a territory to establish their ownership over this territory. However, they urge the States to provide the peoples with an official title to their lands.
8.The Court and Commission leave the State a certain margin of appreciation - i.e., to identify the traditional lands. It is up to the States to delimit, title and return the lands to the indigenous peoples on the basis of their technical and scientific expertise - the Inter-American authorities will then only control that the exercise of this power did respect the rights of the indigenous peoples. It may be said that the Court imposes the general principles and the States have to abide to their letter and spirit, but the concrete delimitation and attribution of lands depends only upon the States
Natural resources also constitute an integral element of the indigenous peoples’ view of the world, religion and cultural identity. Conflicts with the State may arise even when the indigenous peoples have a title to the land but the government sells the exploiting rights to certain companies (logging ; oil/minerals exploration). In the case of Awas Tingni the Nicaragua government awarded a Korean corporation a thirty-years’ concession for road construction and timber exploitation of the Awas Tingni communal lands. The Court ordered Nicaragua to demarcate and title the Community’s ancestral lands with their full participation and in respect of their customary law and values.
Freedom to participate in the Government
Indigenous peoples are believed to possess “the right, common to all people, to participate in government at every level of the State” which means equal rights to vote or to be elected. The only case before the Court about political rights of indigenous peoples - Yatama v. Nicaragua deals with the 2000 Nicaraguan municipal elections. The Yatama candidates were prohibited from participation in those elections on the ground that they had no candidates in 80% of the Nicaraguan municipal elections in accordance with a new national electoral law. Yatama had no connections or funding to enter their candidates in non-indigenous areas and, consequently, was disqualified from participating in the elections even in the areas where the party had structure and leadership. The Court considered that that electoral law imposed an excessive restriction on political rights of the indigenous people as it required from the people a form of organisation foreign to their customs and traditions and ordered the government to modify the electoral legislation.
Freedom of Religion
The freedom of religion is most often invoked in cases dealing with the indigenous people’s right to engage in their religious cultural burial customs. The Court held it to be a violation of the freedom to manifest one’s religion if the State prohibits the peoples to observe their burial customs. In the case of Plan de Sanchez Massacre v. Guatemala the Maya people could not follow their funeral ceremonies - lasting nine days, very detailed and elaborate - after the 1982 massacre when most of the victims had been buried quickly in mass graves. The Court found it to be a violation of the freedom of religion of the victims and of the survivors.
Right to Life
In the Court’s interpretation, the right to life has a broader meaning than simply a freedom from arbitrary deprivation of life. It also includes the State’s positive obligation “to generate living conditions that are at least “minimally compatible with the dignity of the human person - vida digna”. In the Yakye Axa case the Court found that the Government violated the people’s right to live in dignified conditions by delaying the proceedings for the restitution of their ancestral lands. The community members were living about eight years at the side of the road that lead to the entrance to their traditional lands in extreme misery. The Court found that the State violated the right to life by failing to take measures so that the Yakaye Axa people could have a “dignified life”.
Right to effective and appropriate remedies
Indigenous peoples have a right to an effective remedy for the violation of their human rights, which are either guaranteed by the Convention, international treaties ratified by the State or by the national legal systems. The States have to pass laws providing such remedies and ensure that these laws are effectively applied by the domestic authorities. In Awas Tingni case the Court held that although the laws of Nicaragua recognise and protect indigenous communal property, they do not establish any legal procedure whereby the indigenous peoples could have their communal lands demarcated and titled. The Court thus ordered the Government to adopt the relevant legislation. Likewise, in the Yatama case a violation was found because the Nicaraguan legislation did not provide any judicial recourse against the Electoral Council’s decision to bar the Yatama party from participation in the municipal elections.
B.Reparations for Violations of Indigenous Rights
Two major types of reparations awarded in the Inter-American Human Rights System may be described as follows.
1.Financial compensations are the most usual form of reparation. To these should be added the “financial” reparations to the community - an obligation to undertake some measures to improve the whole social situation of the peoples, like basic life infrastructure, to contribute to the maintenance of the chapel where people pay tribute to the victims of the massacre, to invest a certain sum in works or services of collective interest.
2.Another way of reparations takes the form of an acknowledgement of violations and apologies to the victims and their relatives - i.e., the Court ordered Guatemala to hold a ceremony in Plan de Sanchez to publicly honour the memory of the persons executed in the massacre of 1982.
It is evident that the Inter-American Court and Commission apply not only traditional means of reparations, like monetary compensations and acknowledgement of violations, but may also order to undertake specific measures designed to remedy the situation of indigenous peoples in general and to calm the tension between different groups of the society. The effectiveness of such reparations may be questioned, however, a court which seeks to reconcile the parties appears to take a more progressive approach the results of which may be less evident nowadays, but possibly more fruitful in further future.
The above paper demonstrates that the existing Inter-American human rights system provides a considerable protection at least to the fundamental rights of the indigenous peoples. It is true, of course, that this system does not accord any specific protection to the indigenous peoples and depends a lot upon the judges’ political will. It may be argued that such a system would be much more efficient if its basic convention were supplemented by additional documents specifically addressing the rights of the indigenous peoples.
It appears that the advantage of the Inter-American human rights system is the fact that it is not another institution of an international organisation, but a judicial organ. By way of flexible interpretation of the basic documents and extensive jurisprudence the human rights tribunals have a greater possibility to promote the indigenous peoples’ rights. It may be reminded that the very first recognition of the indigenous peoples occurred in 1975 thanks to the International Court of Justice which declared in the case of Western Sahara that the indigenous inhabitants of Western Sahara are entitled to self-determination instead of forced incorporation within a state. In 2000 the UN Economic and Social Council decided to establish a Permanent Forum on Indigenous Issues. This forum will consist of 16 members, half nominated by governments and half to be appointed from indigenous peoples across the world. There may be no doubt that this project, once implemented, would help to considerably improve the situation of the indigenous peoples in the present international community as the present Inter-American Court and Commission.
1.Anaya, S. James, and Crider, S. Todd, Idigenous Peoples, the Environment, and Commercial Foresty in Developing Countries : the Case of Awas Tingni, Nicaragua, Human Rights Quaterly, Vol. 18, 1996 ;
2.Follesdal, Andreas, Indigenous Minorities and the Shadow of Injustice Past, International Journal on Minority and Group Rights 7 (2000) ;
3.Macklem, Patrick and Morgan, Ed, Indigenous Rights in the Inter-American System : The Amicus Brief of the Assembly of First Nations in Awas Tingni v. Republic of Nicaragua, Human Rights Quaterly, Vol.22, 2000 ;
4.Ketley, Harriet, Exclusion by Definition : Access to International Tribunals for the Enforcement of the Collective Rights of Indigenous Peoples, International Law on Minority and Group Rights 8 (2001) ;
5.Jo M. Pasqualucci, The Evolution of International Indigenous Rights in the Inter-American Human Rights System, Human Rights Law Review 6 (2006) ;
6.Pitty, Roderic, Indigenous Peoples, Self-Determination and International Law, the International Journal of Human Rights, Vol.5, No.4 (Winter 2001).
1. American Convention on Human Rights, 1969, http://www.cidh.org/Basicos/basic3.htm ;
2. American Declaration on the Rights and Duties of Man, 1948, http://www.cidh.org/Basicos/basic2.htm ;
3. Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, http://www.unhchr.ch/html/menu3/b/62.htm ;
4. Draft American Declaration on the Rights of Indigenous Peoples, http://www.cidh.org/Indigenous.htm ;
5. Draft UN Declaration on the Rights of Indigenous Peoples, http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.SUB.2.RES.1994.45.En ?OpenDocument.
 As cited in Pitty, Roderic, Indigenous Peoples, Self-Determination and International Law, the International Journal of Human Rights, Vol.5, No.4 (Winter 2001), p. 48
 Ketley, Harriet, Exclusion by Definition : Access to International Tribunals for the Enforcement of the Collective Rights of Indigenous Peoples, International Law on Minority and Group Rights 8 (2001), p. 333
 see, i.e., Follesdal, Andreas, Indigenous Minorities and the Shadow of Injustice Past, International Journal on Minority and Group Rights 7 (2000)
 Jo M. Pasqualucci, The Evolution of International Indigenous Rights in the Inter-American Human Rights System, Human Rights Law Review 6 (2006), p. 317
 Jo M. Pasqualucci, ibid, p. 316
 See, i.e., Pitty, Roderic, ibid, and Ketley, Harriet, ibid.
 Pitty, Roderic, ibid, pp. 45-47
 Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, http://www.unhchr.ch/html/menu3/b/62.htm
 Jo M. Pasqualucci, ibid, p. 282
 American Declaration on the Rights and Duties of Man, 1948, http://www.cidh.org/Basicos/basic2.htm
 American Convention on Human Rights, 1969, http://www.cidh.org/Basicos/basic3.htm
 Jo M. Pasqualucci, ibid, p. 283
 ibid, p. 294
 Ibid, p. 294
 ibid, p. 295
 ibid, pp. 285-285
 Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, http://www.unhchr.ch/html/menu3/b/62.htm
 Draft UN Declaration on the Rights of Indigenous Peoples, http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.SUB.2.RES.1994.45.En ?OpenDocument
 Draft American Declaration on the Rights of Indigenous Peoples, http://www.cidh.org/Indigenous.htm
 as cited in Jo M. Pasqualucci, ibid, p. 283
 Mary and Carrie Dann v. United States Report No. 75/02 (2002), as cited in Jo M. Pasqualucci, ibid, p. 301
 Patrick Macklem and Ed Morgan, Indigenous Rights in the Inter-American System : The Amicus Brief of the Assembly of First Nations in Awas Tingni v. Republic of Nicaragua, Human Rights Quaterly, Vol.22, 2000, pp. 569-602
 see, i.e., Anaya, S. James, and Crider, S. Todd, Idigenous Peoples, the Environment, and Commercial Foresty in Developing Countries : the Case of Awas Tingni, Nicaragua, Human Rights Quaterly, Vol. 18, 1996.
 Jo M. Pasqualucci, ibid, p. 306
 ibid, p. 307
 as cited in ibid, pp. 309-310
 ibid, p. 310
 Yakye Axa v. Paraguay, as cited in ibid, p. 311
 as cited in Jo M. Pasqualucci, ibid, pp. 311-312
 ibid, p. 319
 Pitty, Roderic, ibid, pp. 50-54
 Pitty, Roderic, ibid, pp. 63-64