CAPTIVE COMMUNITIES:  SITUATION OF THE GUARANÍ INDIGENOUS PEOPLE AND CONTEMPORARY FORMS OF SLAVERY IN THE BOLIVIAN CHACO
 

III.    INTERNATIONAL LEGAL FRAMEWORK: THE STATE’S OBLIGATIONS TO ERADICATE CONTEMPORARY FORMS OF SLAVERY AND PROTECT THE RIGHTS OF INDIGENOUS PEOPLES

A.        Definitions

47.              In international law, slavery has been understood as the subjugation of one person to another as property. The 1926 Slavery Convention defines slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” That Convention defines the slave trade as including “all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.”^[53] 

48.              The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956 includes the prohibition on debt bondage and serfdom. That Convention obligates the States to abolish completely other similar practices “where they still exist and whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention,” specifically:

(a)      Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined;

(b)      Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status[.]^[54]

49.              For its part, the Rome Statute establishing the International Criminal Court defines “enslavement” as “the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.”^[55]

50.              Together with the element of treating the person as property, slavery includes the element of control over a person that results in “a state marked by the loss of free will where a person is forced through violence or the threat of violence to give up the ability to sell freely his or her own labour power.”^[56] Accordingly, slavery may have the following three fundamental dimensions: control by another person, the appropriation of labor power, and the use or threat of use of violence.^[57]  

51.              On analyzing the characteristics of contemporary forms of slavery or practices similar to slavery, one should consider various factors such as: “(i) the degree of restriction of the individual’s inherent right to freedom of movement; (ii) the degree of control of the individual’s personal belongings; and (iii) the existence of informed consent and a full understanding of the nature of the relationship between the parties.”^[58]

52.              Forced labor is distinguished from the concept of slavery as it does not include the element of ownership; nonetheless, there is a degree of restriction of individual liberty similar to that of slavery, which in some cases may be imposed by the use of violence.^[59] Forced or compulsory labor has been defined by ILO Convention 29 on forced labor as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”^[60] 

B.                 International Standards

53.              International law, as a fundamental principle, prohibits the practices of slavery, servitude, forced labor, and other practices similar to slavery. The Universal Declaration of Human Rights provides: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.”^[61] In addition, numerous international conventions to which Bolivia is a party explicitly prohibit these practices.

54.              The prohibition on slavery and similar practices is part of customary international law and of jus cogens.^[62] Protection from slavery is an obligation erga omnes that all States are bound to comply with that arises from the provisions of international human rights law.^[63] In addition, slavery and forced labor, practiced by public officials or private persons against any person, not only constitute a violation of human rights, but also represent a crime under international law independent of whether a State has ratified the international conventions that prohibit such practices.^[64] 

1.         The prohibition on contemporary forms of slavery

55.              The American Convention on Human Rights was ratified by Bolivia on June 20, 1979. Article 6 affirms the absolute and non-derogable prohibition on slavery, servitude, and forced labor: “1. No one shall be subject to slavery or to involuntary servitude, which are prohibited in all their forms, as are the slave trade and traffic in women. 2. No one shall be required to perform forced or compulsory labor.” In addition, Article 27(2) of the American Convention establishes that the prohibition on slavery and servitude is one of those fundamental human rights that cannot be suspended by the States in “time of war, public danger, or other emergency that threatens the independence or security of a State Party.”

56.              The International Covenant on Civil and Political Rights, ratified by Bolivia on August 12, 1982, provides that no one shall be subjected to slavery, the slave trade, servitude, or forced labor.^[65] In addition, the International Covenant on Economic, Social and Cultural Rights, ratified by Bolivia on August 12, 1982, reinforces the provisions against slavery and forced labor on providing for the protection of the right to work freely chosen, with fair and satisfactory working conditions.^[66]

57.              Under Article 1 of ILO Convention 29, ratified by Bolivia on May 31, 2005, the states parties are obligated “to suppress the use of forced or compulsory labour in all its forms within the shortest possible period.” ILO Convention 105 on the abolition of forced labor, ratified by Bolivia on June 11, 1959, also obligates states parties to suppress forced labor and lists other circumstances in which that practice should be prohibited: as a means of political coercion or for expressing political opinions; for economic purposes; as a means of discipline in the workplace; as punishment for participating in strikes; or as a means of racial, social, national, or religious discrimination.^[67] Conventions 29 and 105 apply in cases of work or services required by governments, public authorities, private entities, and individuals, and include slavery, servitude, and various forms of child labor.^[68]

58.              Slavery, bondage, and forced labor often entail violations of other fundamental human rights under the American Convention and other instruments of the universal system of human rights, such as the right of all persons to liberty, not to be subjected to cruel, inhuman, or degrading treatment, freedom of movement, the right of access to justice, freedom of expression, and freedom of association and identity.^[69]

59.              The prohibition on slavery and forced labor is also reflected in instruments on the rights of the child and child labor. Article 32 of the Convention on the Rights of the Child, ratified by Bolivia on June 26, 2006, obligates the states parties to protect children from economic exploitation and to adopt legislative, social, and educational measures to enforce this right.^[70] ILO Convention 182 on the prohibition of the worst forms of child labor, ratified by Bolivia on June 6, 2003, requires the states parties to eliminate “all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict.”^[71]

60.              The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by Bolivia on September 22, 1970, provides that the States must eliminate racial discrimination in the enjoyment of fundamental rights, including the right to work, to the free choice of work, and to just and favorable working conditions and pay.^[72]

61.              ILO Convention 169 on indigenous peoples, ratified by Bolivia in 1991, provides in its Article 20 that the States must adopt special measures to guarantee indigenous workers effective protection in hiring and conditions of employment, and to avoid any discrimination against indigenous workers in relation to access to employment, equal pay for equal work, medical care and social assistance, and the right to association. Those measures should guarantee, inter alia, that “workers belonging to these peoples are not subjected to coercive recruitment systems, including bonded labour and other forms of debt servitude.”^[73] The states parties are also to establish labor inspection services in the regions where indigenous persons work to ensure implementation of the Convention.^[74]

62.              The United Nations Declaration on the Rights of Indigenous Peoples, which is Bolivian domestic law, establishes the right of indigenous individuals and peoples to enjoy fully all the rights established in applicable international and domestic labor law and not to be subjected to discriminatory conditions of work, employment, or wages.^[75] With respect to indigenous children, the Declaration provides that the States shall take measures to protect them from economic exploitation and from all work that may be dangerous to their health and development.^[76]

2.         The duty to protect the rights of indigenous peoples to collective property and access to justice

63.              The IACHR also considers it relevant to highlight the international provisions regarding property rights and access to justice for indigenous peoples, since the situation faced by the Guaraní people in general and the captive communities in particular requires not only eradicating practices similar to slavery in this case, but also ensuring access to their ancestral territories to be able to develop and enjoy their own social, political, and legal institutions as well as their own vision of integral development.

64.              ILO Convention 169 on indigenous peoples establishes that the states parties have the duty to respect “the special importance for the cultures and spiritual values of the peoples concerned [i.e. indigenous peoples] of their relationship with the lands or territories … and in particular the collective aspects of this relationship” – the term “lands” being understood as the concept of “territories” – which “covers the total environment of the areas which the peoples concerned occupy or otherwise use.”^[77] Of special relevance for the Guaraní people, Article 14 of that Convention establishes the duty of States to take measures “to safeguard the right of the [indigenous] peoples … to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities.”

65.              Article 14 also establishes a duty on States in the following terms:  “Adequate procedures shall be established within the national legal system to resolve land claims by [indigenous] peoples….” In addition, Convention 169 provides that the indigenous peoples “shall be safeguarded against the abuse of their rights and shall be able to take legal proceedings, either individually or through their representative bodies, for the effective protection of these rights.”^[78]

66.              With respect to access to justice, the United Nations Declaration on the Rights of Indigenous Peoples provides that indigenous peoples have the right to procedures that are “just and fair procedures for the resolution of conflicts and disputes with States or other parties” that lead to prompt decisions that include effective reparations for the injury to their individual and collective rights, taking due consideration of “customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.”^[79]

67.              In relation to the issue of reparations, the United Nations Declaration on the Rights of Indigenous Peoples provides at Article 28 that reparations should be made by means of restitution; and in case the restitution of lands is not possible, there should be “fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”^[80] It should be noted that in relation to any legislative, administrative, or other measure that affects indigenous peoples, including measures of reparation, States should engage in consultations and should cooperate in good faith with those peoples so as to secure their free, prior, and informed consent.^[81]

68.              For the captive Guaraní communities, it is important to consider that a possible granting of lands should incorporate the right of indigenous peoples “to the improvement of their economic and social conditions, especially in the areas of education, employment, training, housing, sanitation, health, and social security.”^[82] Considering that the members of these Guaraní communities find themselves at a disadvantage since on emerging from their situation of captivity they would not have the resources for addressing all their needs, the State therefore has the obligation to adopt “effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions.”^[83]

69.              In addition, the United Nations Declaration establishes that the indigenous peoples have the right to “determine and develop priorities and strategies for exercising their right to development,” which also includes the right of those peoples “to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.”^[84]

70.              The above-mentioned provisions of international law with respect to the rights of indigenous peoples are also backed by the case law of the inter-American human rights system in the context of its interpretation of the American Convention.

71.              With respect to the duty of the State to protect the right to life with respect to the indigenous peoples, the Court has reiterated that “the States must adopt any measures that may be necessary to create an adequate statutory framework to discourage any threat to the right to life; … and to protect the right of not being prevented from access to conditions that may guarantee a decent life.”^[85]  

One of the obligations that the State must inescapably undertake as guarantor, to protect and ensure the right to life, is that of generating minimum living conditions that are compatible with the dignity of the human person and of not creating conditions that hinder or impede it.  In this regard, the State has the duty to take positive, concrete measures geared toward fulfillment of the right to a decent life, especially in the case of persons who are vulnerable and at risk, whose care becomes a high priority.^[86]

72.              The Inter-American Commission and the Inter-American Court have issued rulings in matters related to the right to communal property, the restitution of ancestral lands, the contradictions that may arise between indigenous communal property and individual private property, the right of access to justice, as well as the obligation of the States to ensure a dignified life for the members of indigenous peoples.

73.              The Inter-American Court of Human Rights has established that Article 21 of the American Convention (right to property) also protects “the rights of members of the indigenous communities within the framework of communal property,” and recognizes that “[a]mong indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community.”^[87] The Inter-American Court recognizes: “For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.”^[88]

74.              The possession of land under the custom or “customary law” of the indigenous peoples, according to the Inter-American Court, “should suffice for indigenous communities lacking real title to property of the land to obtain official recognition of that property, and for consequent registration.”^[89] Therefore, the Court has ruled as follows on the right to property of indigenous peoples and the obligation of the States to recognize that right in their domestic legal systems:

… (1) traditional possession of their lands by indigenous people has equivalent effects to those of a state-granted full property title; (2) traditional possession entitles indigenous people to demand official recognition and registration of property title; (3) the members of indigenous peoples who have unwillingly left their traditional lands, or lost possession thereof, maintain property rights thereto, even though they lack legal title, unless the lands have been lawfully transferred to third parties in good faith; and (4) the members of indigenous peoples who have unwillingly lost possession of their lands, when those lands have been lawfully transferred to innocent third parties, are entitled to restitution thereof or to obtain other lands of equal extension and quality. Consequently, possession is not a requisite conditioning the existence of indigenous land restitution rights.…^[90]

75.              In those cases in which the restitution of ancestral lands of the indigenous peoples is made difficult by the presence of third parties who have acquired title to or possession of those lands, the guidelines under the provisions and case law of the inter-American system dictate that there may be restrictions on the enjoyment of and right to property if these (a) are established by law; (b) are necessary; (c) are proportional; and (d) are put in place for the purpose of achieving a legitimate objective in a democratic society.^[91] The American Convention, at Article 21, provides that a law of a State “may subordinate [the] use and enjoyment [of property] to the interest of society.” The need for such restrictions depends on the imperative public interest sought to be satisfied; and proportionality is “based on the restriction being closely adjusted to the attainment of a legitimate objective, interfering as little as possible with the effective exercise of the restricted right.”^[92] In addition, the restrictions on the right to property “must be justified by collective objectives that, because of their importance, clearly prevail over the necessity of full enjoyment of the restricted right.”^[93]

76.              Therefore, in the context of indigenous peoples, and the contradictions that may arise between the ancestral property claimed and the existence of private property within the area claimed, the Court has established:

… the States must assess, on a case by case basis, the restrictions that would result from recognizing one right over the other. Thus, for example, the States must take into account that indigenous territorial rights encompass a broader and different concept that relates to the collective right to survival as an organized people, with control over their habitat as a necessary condition for reproduction of their culture, for their own development and to carry out their life aspirations. Property of the land ensures that the members of the indigenous communities preserve their cultural heritage.

… Disregarding the ancestral right of the members of the indigenous communities to their territories could affect other basic rights, such as the right to cultural identity and to the very survival of the indigenous communities and their members.

… On the other hand, restriction of the right of private individuals to private property might be necessary to attain the collective objective of preserving cultural identities in a democratic and pluralist society, in the sense given to this by the American Convention; and it could be proportional, if fair compensation is paid to those affected.…^[94] 

77.              According to the case law of the inter-American system, the State has the duty to ensure the right to collective property of the indigenous peoples, and with respect to the indigenous peoples who are not in possession of their ancestral territory, the State should facilitate the restitution of their lands, which may include the impairment of private rights that currently vest in the lands claimed by those peoples. As follows from the case law cited above, private property may be restricted for the sake of a greater collective interest, so long as there is fair compensation for the owner harmed, if he or she has been an innocent third-party buyer to whom that right has been conveyed.

78.              The Inter-American Court has established that the right of the indigenous peoples to the recovery of their traditional lands that are not in their full possession persists indefinitely to the extent that there continues to be a cultural, spiritual, ceremonial, or material relationship of the indigenous people with their territory.^[95] Nonetheless, as the Court explains, “if the members of the indigenous people carry out few or none of such traditional activities within the lands they have lost, because they have been prevented from doing so for reasons beyond their control, which actually hinder them from keeping up such relationship, such as acts of violence or threats against them, restitution rights shall be deemed to survive until said hindrances disappear.”^[96]

79.              The case law of the inter-American system has also established that to ensure access to justice for the members of indigenous peoples, the States have the duty to grant effective protection that takes into account their own particularities:

As has been established by this Tribunal [on] other occasions and pursuant [to] the principle of non-discrimination enshrined in Article 1(1) of the American Convention, in order to guarantee the members of indigenous communities access to justice, “it is necessary that the States grant an effective protection taking into account their specific features, economic and social characteristics, as well as their special situation of vulnerability, their common law, values, uses and customs.”^[97]

80.              Moreover, the Court has highlighted that under Articles 8 (right to a fair trial) and 25 (judicial protection), and in light of the duty to adopt provisions of domestic law pursuant to Article 2 of the American Convention, the State is “obliged to provide for appropriate procedures in its national legal system to process the land claim proceedings of the indigenous peoples with an interest thereon. For such purpose, the generic obligation to respect rights established in Article 1(1) of [the Convention] imposes on the States the duty to ensure an accessible and simple procedure and to provide competent authorities with the technical and material conditions necessary to respond timely to the requests filed in the framework of said procedure.”^[98]