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V. DOMESTIC LEGISLATION AND INITIATIVES TAKEN BY THE STATE IN RELATION TO THE GUARANÍ CAPTIVE COMMUNITIES
A. Prohibition on practices analogous to slavery in the national legislation
169. Slavery, servitude, and forced labor have been prohibited in Bolivia’s national legislation.[223] The Political Constitution in force up until February 2009 established at its Article 5: “No type of servitude is recognized and no one may be obligated to provide personal work without his or her full consent and fair compensation. Personal service may only be demandable when so established by law.”[224] In addition, Article 7(j) recognized the fundamental right of the person to “fair remuneration for his or her work so as to assure for oneself and one’s family a dignified existence as human beings.” It also provided that the State would regulate labor relations and would establish rules on individual contracts, minimum wage, maximum daily working hours, and social benefits.[225]
170.
The
Constitution now in force stipulates at Article 15 that no person may be
subjected to servitude or slavery, and Article 46 indicates that all
forms of forced labor and any analogous mode of exploitation requiring a
person to perform work without his or her consent and
171. Slavery and forms similar to slavery are defined as crimes in the Bolivian Criminal Code, which establishes that a person who reduces another to slavery or a similar condition shall be deprived of liberty for two to eight years.[227] Similarly, the Criminal Code provides that one who deprives another person of liberty shall be imprisoned for six months to two years with a fine of 30 to 100 days.[228] Therefore, the Public Ministry has the obligation to investigate, prosecute, and punish the persons responsible for committing those crimes. Nonetheless, the Commission observed with concern very few advances in the actions taken by the institutions entrusted with administering justice in Bolivia.
172. Nonetheless, the IACHR values certain actions taken by the State to begin to roll back the existence of contemporary forms of slavery in the Chaco. The Commission has learned that during the 1990s, the first judgment was handed down by the court (juzgado de instrucción) of Monteagudo convicting an estate owner of the crime of reduction to slavery or similar condition, in violation of Article 291 of the Criminal Code.[229] This judgment was the result of an investigation by an inter-institutional commission made up of representatives of the Vice-Ministry of Human Rights, the Vice-Ministry of Indigenous Matters and First Nations, and the Coordinator of the Office of Human Rights for Indigenous Peoples, whose objective was to look into the reports of labor exploitation and physical and psychological abuse in the locality of Cachimayo, province of Hernando Siles.[230]
B. Agrarian legislation and its application in the context of the captive communities
173. The IACHR observes that Bolivia’s agrarian legislation represents the main mechanism by which the indigenous peoples can vindicate their ancestral lands, particularly those they lost involuntarily. Law No. 3545 on Community Redirection of the Agrarian Reform of 2006[231] makes possible the redistribution of lands, especially on unproductive latifundia, so as to benefit landless indigenous peoples and peasant communities. Law No. 3545, like the earlier Law No. 1715 on the National Agrarian Reform Service, has been the principal legal framework used by the State and the Guaraní people in their efforts to confront the situation of the captive communities in the Bolivian Chaco.
174. The state policy on redistribution of land so as to benefit indigenous peoples is also reflected in Supreme Decree No. 28733 of June 2, 2006, which provides that all available government lands and those declared as such as a result of the process of clearing title shall be earmarked exclusively to the indigenous, peasant, and first-nation peoples and communities that have no land or insufficient land.[232] Similarly, the regulation of Law No. 3545 provides as the purpose of the agrarian legislation “to guarantee the reliable and responsible management of the agrarian regime so as to make it possible to overcome acts of social injustice, corruption, and clientelism in the administration of the agrarian law” and also provides for “guaranteeing and prioritizing access to the land for families and communities subject to debt bondage, captivity, forced labor, and a system based on servitude.”[233]
175. As a phase prior to the titling of a territory, Law No. 3545 provides for the redistribution of lands by means of the processes of clearing title, reversion of title, and expropriation. The process of clearing title seeks to regularize and perfect title to agrarian property, including clearing up the rights within a given property where there could be more than one registered owner.[234] The clearing of title is done by the National Agrarian Reform Institute, (INRA), “the entity entrusted with directing, coordinating, and implementing agrarian policies,”[235] which also verifies that the agrarian property is productive, that is, that it performs its economic-social function (FES: Función Económico Social) and its social function (FS: Función Social).[236] The process of clearing title is performed on the territories claimed by the indigenous peoples, which are known as Tierras Comunitarias de Origen (TCO),[237] under the modality of Clearing of Title of Community Lands of Origin (SAN-TCO: Saneamiento de Tierras Comunitarias de Origen), in which the law guarantees the participation of indigenous peoples in the implementation of that process.[238]
176. On the large landed estates of the Chaco on which there is bondage and forced labor, the process of clearing title could result in the reversion of lands to the State. Reversion (la reversión) is a process that reverts to the State those parts of the property on which the owner was not performing the economic social function, or where the collective interest is detrimentally impacted.[239] According to the regulation of Law No. 3545, the existence of bondage and forced labor on a property implies a failure to perform the economic social function, even in the event that there are areas that were effectively exploited on that property.[240] The IACHR observes that the measure[241] fulfills an important collective interest in eradicating the practices of bondage and forced labor on the property in question, as these activities have been criminalized by both Bolivian and international provisions.
177. In the context of the process of Clearing Title on Tierras Comunitarias de Origen, Law No. 3545 establishes that the properties of third parties that revert to the State shall be granted to the respective TCO where the properties are situated.[242] Reversion is a process that can be applied as of two years after the time a property has undergone the process of clearing title.[243] According to what the IACHR was told, to date there have been a total of two reversion resolutions by the INRA with respect to two properties in the province of Hernando Siles where there was forced labor. Both have been challenged before the National Agrarian Tribunal, and to date there has been no decision.
178. Expropriation of lands occurs for failure to perform the economic social function or for reasons of public utility.[244] The concept of public utility includes, inter alia, the redistribution of lands on behalf of indigenous peoples that don’t have the sufficient quantity, quality, or geographic location of land to ensure their physical subsistence and reproduction as an ethnic group on having completed the processes of clearing title or reversion.[245]
C. Other initiatives for confronting the situation of bondage and forced labor
179. The Commission also values other initiatives of the State, such as Supreme Decree No. 28159 of May 17, 2005, which recognizes and defines the situation of servitude and debt bondage of the Guaraní communities in the Chaco,[246] plus it has as its purpose “to establish the labor regime of the families and captive communities and/or persons in debt bondage [of the Bolivian Chaco]… and, to prioritize the distribution of government lands available as a result of the process of clearing title and the search for lines of credit for access to ownership of lands for these families and communities.”[247] In the wake of that decree, legislation was prepared for the liberation of captive families and communities in 2005.[248] However, this bill was called into question by the Human Rights Ombudsman, who in a resolution issued in November 2005, identified certain weaknesses which included, among others, an approach limited only to labor aspects and the purchase of lands, but not addressing other fundamental aspects such as elimination of the system of bondage and forced labor, the criminal prosecution of the persons responsible for those violations, and the particular demand of the Guaraní indigenous people for the recovery of their ancestral lands and for the recognition of their collective property rights.[249]
180. In the same resolution the Human Rights Ombudsman urged different entities of the State – among them the Minister of the Presidency, the Vice-Minister of Justice, the Minister of Sustainable Development, the Minister of Labor, the President of the Judicial Council, the Governor of Chuquisaca, the District Director of Education of Chuquisaca, and the Minister of Indigenous Matters and First Nations – to undertake specific actions within the mandate of their functions to address the matter.[250] Those recommendations encompass integrated actions in the areas of access to justice, legal assistance, investigation into possible irregularities in the process to date of clearing title, labor rights, intercultural and bilingual education, and the need for a census on the number of persons in captivity to orient the application of the strategies necessary to resolve the situation.[251]
181. Special mention should be made of the actions taken by civil society on behalf of the captive communities, in particular the Catholic Church, which, at the urging of the Asamblea del Pueblo Guaraní (APG) and the Consejo de Capitanes Guaraníes de Chuquisaca (CCCH) and nongovernmental organizations, since the 1990s has promoted the purchase of lands for the transfer, resettlement, and establishment of free Guaraní communities. These measures benefited 500 families in the Bolivian Chaco region in the departments of Chuquisaca and Santa Cruz.[252]
182. In 1996, the Asamblea del Pueblo Guaraní (APG) presented its demand for the reconstitution of its territory in 19 TCOs in the Bolivian Chaco to the State.[253] As a result, Law No. 1715 of 1996, in its third transitory provision, provided for the encumbrance of 16 TCOs to be subject to clearing of title under the SAN-TCO modality mentioned above, and which includes the TCOs of Avatiri Ingre, Avatiri Huacareta, Machareti-Ñancaroinza-Carandayti, and Itikaraparirenda, situated in the department of Chuquisaca; and of the Alto Parapetí in the department of Santa Cruz.[254] On February 26, 2008, the clearing of title of these TCOs formally began; in addition, the presence of captive communities or communities in debt bondage was identified.[255] 183. On October 9, 2007, Supreme Decree No. 29292 was promulgated, establishing the Inter-Ministerial Council for the Eradication of Bondage, Forced Labor, and Similar Forms of Subjugation, and the 2007-2008 Transitory Inter-Ministerial Plan for the Guaraní people was drawn up.[256] That plan has as its objectives to lay the bases for generating dignified living conditions for the Guaraní families in debt bondage in the Bolivian Chaco, to eradicate forced labor, and to promote the social, cultural, and economic development of the region in the context of the National Development Plan. The five components of the plan are: (i) to restore the exercise of human rights in the Bolivian Chaco; (ii) to promote the processes of clearing title and the reorganization of agrarian property, which will benefit not only the indigenous communities, but also the small and medium landowners; (iii) to implement a contingency plan to ensure dignified living conditions for the freed families while carrying out the settlement process; (iv) to execute productive infrastructure and environmental programs and projects for the freed families; and (v) to create a mechanism for implementation, monitoring, and evaluation.[257] On December 19, 2007, Supreme Decree 29388 was approved, by which resources were allocated in the amount of US$2,000,000 for carrying out the Inter-Ministerial Plan.[258]
184. Similarly, it should be noted that Supreme Decree No. 29354 was promulgated on November 28, 2007, which makes public utility the grounds for expropriation and provides for redistribution of lands to benefit the Guaraní indigenous people of the department of Chuquisaca. This decree states the need to expropriate agrarian properties amounting to a total of 180,000 hectares in the department of Chuquisaca and instructs the INRA to carry out the expropriation of the properties that may be allocated for that purpose.[259] In addition, the IACHR takes note of Supreme Decree No. 29388 of December 19, 2007, which authorizes the Ministry of Treasury to transfer resources for implementing and executing the Inter-Ministerial Plan.
185. Furthermore, the IACHR takes note of the Plan for Integral Development of the Guaraní Nation (2009-2015), an effort begun in 2009 by the Ministry of Labor, Employment, and Social Security. That Plan states: "The National Government and the Assembly of the Guaraní People (APG), aware of the exploitation, servitude, and captivity of the Guaraní families, assumed responsibility for carrying out a sustainable and long-term process to abolish this system of ‘slavery.’" In addition, that Plan notes as the central problem that the Guaraní people “finds itself in a situation of exclusion and high vulnreability in socioeconomic, political, and economic terms, which is determinate of a condition of extreme poverty and dependency on a socio-productive system that exploits their labor, and maintains relations of servitude and the dispossession of their land and territory.” [260]
186. The IACHR values these initiatives undertaken by the State to address the specific situation of the Guaraní people, and observes that those expropriation measures should have as their objective the restitution of lands that the Guaraní themselves claim as part of their ancestral territory. Nonetheless if it is not possible, the State must grant lands whose quality and legal status are the same as the lands that the indigenous peoples occupied or else those peoples must receive compensation.[261] Moreover, whether consideration is given to giving alternative lands or monetary compensation to the indigenous peoples, or even in the case of the lands that the State expropriates on behalf of the Guaraní, the implementation of those actions is “not subject to purely discretionary criteria of the State, but rather, pursuant to a comprehensive interpretation of ILO Convention 169 and of the American Convention, there must be a consensus with the peoples involved, in accordance with their own mechanism of consultation, values, customs, and customary law.”[262]
187. The IACHR reminds the State that as it takes initiatives on behalf of the Guaraní indigenous people, whether by making restitution of ancestral lands or providing alternative lands, “the area of land must be sufficient to ensure preservation and development of the Community’s own way of life."[263] It is also important to reiterate the obligation of the State to respect the right of indigenous peoples to determine and draw up their own priorities and strategies for development and “to participate actively in the preparation and determination of health and housing programs, and other economic and social programs that concern them, and, to the extent possible, to administer those programs using their own institutions.”[264]
D. Provisions of the Political Constitution of the State
188. The IACHR considers it important to mention the current Political Constitution of the State,[265] approved by national referendum on January 25, 2009, which in several of its provisions affirms the principles established in the agrarian legislation and in international instruments ratified by Bolivia regarding the rights of indigenous peoples. The constitutional text provides that the rights contained in it shall be interpreted in keeping with the international human rights treaties ratified by Bolivia.[266]
189. The Constitution conceives of Bolivia as a plurinational, communitarian State with different kinds of autonomy for departments, municipalities, and indigenous peoples. Indigenous autonomy consists of self-government as the self-determination of indigenous peoples who share territory, culture, and legal, political, social, and economic institutions.[267] In addition, it recognizes the languages of the “first-nation indigenous peasant nations and peoples” as official alongside Spanish.[268]
190.
As regards the territorial organization of the State, the current
Constitution recognizes the indigenous territories[269]
and the right of autonomy of those territories.[270]
The collective property rights of indigenous peoples are recognized,
protected, and guaranteed, and
E. Observations with respect to the duty of the State to guarantee and protect the right of indigenous peoples to land, territory, natural resources, and the right to consultation
191. Another point that is important to cover in relation to Bolivian legislation on the rights of indigenous peoples has to do with the use of and access to natural resources. The IACHR reminds the State that under international law, the concept of indigenous land and territory encompasses “the total environment of the areas which the [indigenous] peoples … occupy or otherwise use,”[275] which includes the natural resources found in those territories. The Inter-American Court has affirmed that the members of the indigenous peoples “have the right to own the natural resources they have traditionally used within their territory for the same reasons that they have a right to own the land they have traditionally used and occupied for centuries. Without them, the very physical and cultural survival of such peoples is at stake.”[276]
192. The Political Constitution in effect in Bolivia provides that the natural resources, including mineral resources, hydrocarbons, the air, water, soil and subsoil, and the forests, are the “property and direct domain, indivisible, and imprescribable, of the Bolivian people, and it shall be up to the State to administer them mindful of the collective interest.”[277] The Constitution also provides that the exploitation of natural resources in a given territory would entail a process of consultation with the population affected, and in the case of indigenous peoples, the consultation process “shall take place respecting their own rules and procedures.”[278] In addition, it provides that the Bolivian people shall have “equitable access to the benefits from the use of all natural resources” and priority shall be given, in this type of participation, to the indigenous peoples whose territories and natural resources are used.[279]
193. With respect to these constitutional provisions, the IACHR considers it important that the State consider the principles that the Inter-American Court has established in its case law in relation to the rights of indigenous peoples to their territories, natural resources, and their right to consultation and to have their prior, free, and informed consent. Those principles apply to any situation in which exploitation of natural resources in the territories of indigenous peoples is to begin.
194. In the Case of the Saramaka People v. Suriname, the Court ruled that in situations in which the State is considering the exploitation of natural resources, whether of the soil or the subsoil, within indigenous territories, one must provide three fundamental guarantees: (1) the State must ensure the effective participation of the members of the respective indigenous people, in keeping with its customs and traditions, in relation to any plan for development, investment, exploration, or extraction that is carried out in its territory; (2) the State must guarantee that the members of the indigenous people benefit reasonably from the plan that is carried out on their territory; and (3) the State must ensure that no concession shall be given in the indigenous territory in question unless and until independent and technically capable entities, under the supervision of the State, perform a prior social and environmental impact study.[280] The Court specified that in those cases in which there is a development or investment plan that may have a profound impact on the property rights of an indigenous people, the guarantee of effective participation includes not only a process of consultation but also the obligation to obtain the prior, free, and informed consent of the indigenous people affected in keeping with its own customs and traditions.[281]
195. In addition to the aspects around characteristics of the collective property rights, natural resources, and consultation that must be guaranteed for the Guaraní people within the process of restitution of their ancestral territory, the State should also take into account the guarantees of due process, speedy process, and effectiveness that are required of the procedure of judicial protection for vindicating the territories of indigenous peoples in Bolivia.
196. In this regard, the State indicated in its observations of November 11, 2009, that during the Constitutional Assembly “the representatives of the different sectors and especially of the indigenous peoples analyzed the relevance of title to the natural resources that are found” in the territory of the peasant indigenous nations, peoples, and communities [naciones, pueblos y comunidades indígenas originarias campesinos], “insofar as the natural resources, in particular the non-renewable ones, are the basis for the economic and financial foundation of the Bolivian State.” The State adds that “if title to them were recognized to vest in private persons, regions, or an indigenous people, the very viability of the country would be in question, and this was the conclusion reached by the peasant indigenous organizations [organizaciones indígenas originarias campesinas] and intercultural communities in the Constitutional Assembly….”
F. Observations with respect to the duty of the State to guarantee due process, judicial protection, and access to justice
197. The IACHR observes that measures such as the process of clearing title undertaken by the State in the Bolivian Chaco and, in particular, the promulgation of the above-mentioned Supreme Decree No. 29292 creating the 2007-2008 Transitory Inter-Ministerial Plan for the Guaraní people, represent significant efforts to eradicate forced labor and at the same time address the needs for territory and generate dignified living conditions for the Guaraní families and communities in the Bolivian Chaco. Nonetheless, the Commission is concerned that various obstacles and delays have arisen in the processes of making restitution of lands in the Chaco. These obstacles prevent members of the Guaraní people from enjoying their rights to due process, judicial protection, and access to justice.
198. The Commission observes with concern that none of the TCOs titled in the Chaco has covered the area originally demanded by the APG in 1996.[282] The Guaraní communities of Chuquisaca, for example, reduced their demands to four TCOs: Avatiri Ingre, Avatiri Huacareta, Iti Karaparirenda, and Machareti. The original demand was for 804,452 hectares but was reduced to 206,550 hectares.[283] This reduction in total area was done by the State without considering the recommendations of the Study to Identify Spatial Needs (EINE: Estudio de Identificación de Necesidades Espaciales), which recommended 501,751 hectares for these TCOs, despite which the land ultimately titled came to only 36,706 hectares.[284] As a result, the TCOs of Ingre and Huacareta received only 3.5% and 4%, respectively, of their original claim.[285]
199. In the context of the processes of clearing title undertaken in previous years in the department of Chuquisaca, the Guaraní indigenous communities suspect that there were strong ties between the technical personnel in charge of the field work and the estate owners in those TCOs. During the expert field inspections performed in 2001 and 2002, the technical personnel did not coordinate with the indigenous and peasant organizations, reflecting the bias in favor of the estate owners, who anticipated the arrival of the technical staff, which enabled them to “prepare” their properties so as to justify their economic-social function.[286] In this case, the indigenous did not have institutional support for learning of their rights under Bolivian law, nor did they receive technical support during the expert field inspections, which were carried out during the process of clearing title, which resulted in the consolidation of latifundia in the area and a reduction in the spaces available to the indigenous peoples.[287]
200. With respect to the conflictive process of clearing title in the TCO of the Alto Parapetí, the IACHR has received information that the INRA has concluded the process of clearing title in a total area of 157,000 hectares, where there was evidence of the existence of servitude on the estates of El Recreo, San Isidro, Huaraca-Itacay, Buena Vista-Isiporenda, Caraparicito I and II, Reserva Privada del Patrimonio Natural, and Yaguapoa.[288] According to state information sources, in February 2009 administrative resolutions were handed down reverting 40,000 hectares that were in the hands of five landowning families.[289] In addition, on March 14, 2009, the State delivered 34 property titles, benefiting indigenous producers in the Alto Parapetí.[290]
201. Based on the information provided to the IACHR, the owners of the properties affected by the reversion resolutions will have 30 days to challenge the resolution before the National Agrarian Tribunal.[291] In this respect, the IACHR observes with concern that an eventual challenge of those resolutions on reversion or the actions by the owners to block implementation of that resolution may result in additional delays in the restitution of the lands claimed by the Guaraní indigenous people. This is a matter of special concern due to the delays and obstacles that have been seen in earlier processes of clearing title in the Bolivian Chaco that have resulted in a reduction of the total area titled to the indigenous peoples and in delays that have been seen in relation to the challenge of the two resolutions on reversion in the province of Hernando Siles.
202. It is for this reason that the Commission reminds the Bolivian State that under Article 25 of the American Convention the indigenous peoples have a right to prompt and speedy remedies “or any other effective recourse, to a competent court or tribunal for protection against acts that violate [their] fundamental rights.” In this regard, and in consideration of the administrative or judicial proceedings that might be entailed in the process of clearing title in Bolivia, the right to due process of law “must be respected in administrative proceedings and in any other proceedings where the decision may affect [the indigenous people’s] rights” and therefore “it is essential for the States to grant effective protection that takes into account their specificities, their economic and social characteristics, as well as their situation of special vulnerability, their customary law, values, and customs.”[292]
203. For the indigenous peoples, celerity in the administrative, judicial, and other proceedings that affect their rights is of particular importance given that on having to wait for their territorial claims to be resolved, they cannot enjoy the right to their property, which in many cases implies that they remain in a state of vulnerability in terms of their economic situation, food and nutrition, or health, which continuously threatens their survival and integrity.[293] Such would be the case of the captive families and communities that would have to remain in situations of slavery or in situations of nutritional or health vulnerability, on having to wait for the restitution of their ancestral lands.
204. Due to this situation of vulnerability that the indigenous peoples face, on not having any protection for their collective property, the States should establish “[a]dequate procedures … to resolve land claims by the [indigenous] peoples.”[294] The Inter-American Court has ruled that under Article 1(1) of the American Convention, the procedures for claiming indigenous lands should be “accessible and simple and that the bodies in charge of them have the necessary technical and material conditions to provide a timely response to the requests made in the framework of said procedures.”[295]
205. Accordingly, the Bolivian State has the duty to adapt its legal and administrative apparatus to provide a prompt and effective solution to indigenous territorial demands, which includes observing the time frames established in its laws and regulations to complete the process of clearing title and redistributing lands on behalf of the indigenous peoples, and to resolve any challenge against the resolutions on reversion or expropriation so as to comply with the right to due process of all interested parties, as such challenges affect the rights of the indigenous peoples to their collective property. As the Inter-American Court has established in its case law, “it is not enough for the remedies to exist formally, since they must also be effective.”[296]
206. The Commission is aware that the process of restitution of lands has also faced resistance, often times violent, by the estate owners, which could mean continuous delays in the implementation of the resolutions on reversion affecting zones such as the TCO of the Alto Parapetí. In this respect, the Commission considers it important to make some additional observations in relation to the international obligations of the State and the sociopolitical situation in the Bolivian Chaco.
G. Observations with respect to the initiatives of the State in the sociopolitical context of the Bolivian Chaco
207. The recent agrarian laws and policies have been geared to modifying a situation of discrimination affecting the indigenous peoples of Bolivia. The initiatives of the State, such as drafting a new constitutional text, as well as the process of clearing title and redistributing land, have faced resistance, often violent, by sectors of the national population whose interests are affected by the current state policy favoring the rights of the indigenous peoples.
208. This resistance has taken place mainly in the eastern region known as the “Media Luna” (“crescent moon”), which includes the provinces and departments where the situation of servitude is to be found. Some sectors of the population in this region[297] have proposed autonomy and called for resistance to the implementation of the Constitution.[298]
209. After the approval of the Constitution, the State created a Ministry of Autonomy, whose minister has expressed the State’s willingness to enter into pacts with the regions that seek their own autonomy, and to adapt the statutes to the new Constitution[299] − which recognizes the existence of autonomy for departments, regions, municipalities, and indigenous peoples.[300] The current Constitution provides that a Framework Law on Autonomies and Decentralization is to be established that will “regulate the procedure for drawing up Autonomy Statutes and Organic Charters, the transfer and delegation of authorities, the economic-financial regime, and coordination between the central level and the decentralized and autonomous territorial entities.”[301]
210. The Commission observes that the State of Bolivia is under the obligation to comply with the provisions of the American Convention on Human Rights and all other international human rights treaties signed by the State. It should be noted that according to “the rules of law pertaining to the international responsibility of the State and applicable under International Human Rights Law, actions or omissions by any public authority, whatever its hierarchic position, are chargeable to the State which is responsible under the terms set forth in the American Convention.”[302] The Commission also notes that as a principle of international law, a State cannot allege that it cannot comply with its obligations under a treaty that it has signed because of provisions of its domestic law.[303]
211. In view of the foregoing, the State as a whole, whether as a unitary government or with departmental autonomy, has the obligation to comply with the provisions of the American Convention and all other treaties on human rights and the rights of indigenous peoples. Any failure to respect or violation of the rights in those treaties is imputable to the Bolivian State. It should be reiterated that the prohibition on slavery, bondage, forced labor, and other practices similar to slavery is a binding obligation erga omnes and those practices – whether practiced by agents of the State, private actors, or autonomous provincial or departmental entities – also constitute an international crime, independent of whether the State has ratified the conventions that prohibit these practices.
212. Therefore, the IACHR observes that the State has the obligation to prosecute and punish the persons responsible for committing the crimes of practices similar to slavery – such as bondage and forced labor – both in the Bolivian Chaco and in all other regions of the country, independent of the political structure the State may have.
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Next] [223] Bolivia’s agrarian legislation of the 1950s prohibited situations similar to slavery, on prohibiting all forms of labor for free or as compensation. Law on Agrarian Reform, Decree-Law No. 3464 of August 2, 1953, Article 144. Article 144.- The system of colonato is hereby abolished, as well as any other form of rendering of personal services free or as compensation. Peasant workers are incorporated to the legal-social regime of the Nation, with all rights recognized by law. [224] 2005 Political Constitution of the State. [225] 2005 Political Constitution of the State, Article 157. [226] 2009 Political Constitution of the State, Article 398: The latifundium and double titling are prohibited for being contrary to the collective interest and to the country’s development. Latifundium is understood to refer to unproductive land tenure; land that does not perform an economic-social function; exploitation of the land that uses a system of servitude, semi-slavery, or slavery in the labor relationship; or a landholding that exceeds the maximum zoned area established by law. In no case may the maximum area exceed 5,000 hectares. The text submitted to the referendum had two options in terms of the maximum area: Option A established the limit of 10,000 hectares as the maximum area of agrarian property, whereas option B establishes the limit of 5,000 hectares. Option B was approved by the voters. [227] Bolivian Criminal Code, Decree-Law 10426 of August 23, 1972, Article 291. Article 291 – (reduction to slavery or a similar condition): One who reduces a person to slavery or a similar condition shall be punished by deprivation of liberty of two to eight years. [228] 1972 Bolivian Criminal Code, Article 292. [229] Human Rights Ombudsman, Servidumbre y empatronamiento, p. 222. [230] Human Rights Ombudsman, Servidumbre y empatronamiento, p. 222. [231] Law No. 1715 of the National Agrarian Reform Service of October 18, 1996, modified by Law No. 3545 on Community Redirection of the Agrarian Reform of November 28, 2006, available at http://www.congreso.gov.bo. [232] Supreme Decree No. 28733 of June 2, 2006, Article 1. The article refers to the process of clearing title in the context of Article 43 of Law 1715. In addition, this decree creates the Single National Registry of Government Lands and the Single National Registry of Beneficiaries in which those governments lands are to be entered “for the purpose of making the information transparent and generating an orderly process of distributing them.” First final provision. [233] Supreme Decree No. 29215 of August 2, 2007, Regulation of Law No. 1715 of the National Agrarian Reform Service, modified by Law No. 3545 on Community Redirection of the Agrarian Reform, Article 4(b) and 4(c). [234] The clearing of title (saneamiento) is defined as “the transitory technical-juridical procedure aimed at regularizing and perfecting the right to agrarian property, and it is implemented sua sponte or at the request of a party,” Law No. 3545, Article 64. According to Law No. 3545, clearing title is a process that should be concluded at the national level within 10 years, Article 65. Its aims, inter alia, are the legal cadastre of agrarian property, the titling of agrarian proceedings under way, the conciliation of conflicts related to the possession of agrarian property, and the annulment of vitiated titles, Article 66. [235] Law No. 3545, Article 17. [236] Law No. 3545, Article. 2: The Economic-Social Function consists of the “sustainable use of the land in the development of agricultural, forestry, and other productive activities, as well as those of conserving and protecting biodiversity, research, and ecotourism … so as to benefit society, the collective interest, and its owner,” Article 2(II). The Social Function consists of “earmarking the land to achieving family well-being or the economic development of its owners, peoples, and indigenous, peasant, and first-nation communities,” Article 2(1). [237] Law No. 3545 defines the Tierras Comunitarias de Origen as “the geographic spaces that constitute the habitat of the indigenous and first-nation peoples and communities, to which they have traditionally had access and where they maintain and develop their own forms of economic, social, and cultural organization, so as to ensure their survival and development,” and those lands are also “inalienable, indivisible, irreversible, collective … non-attachable and imprescribable,” Article 41(I)(5). [238] Law No. 3545, Article 69. [239] Law No. 3545, Article 52. [240] Supreme Decree No. 29215, Article 157 (The benefit of society and the collective interest in the performance of the economic-social function with respect to relations of servitude): The benefit of society and the collective interest are inherent to the performance of the economic-social function; accordingly the productive activities undertaken by a landowner should not be contrary to this provision. Where there is a system of servitude, forced labor, debt peonage and/or slavery of captive families or persons in the rural area that violate Articles 5 and 157 of the Constitution State policy, in international conventions ratified by the Bolivian State, Articles 144 and 145 of Law No. 3464, Sections 3 and 4 of Law No. 1715, and the Fourth Final Provision of Law No. 1715 are contrary to the benefit of society and the collective, consequently implies the nonperformance of the economic-social function, although there are areas effectively exploited on the property, and shall abide by the provisions of the Law and this Regulation. Debts for personal obligations as a result of relations of servitude, forced labor, peonage, slavery, or captivity shall not be recognized. If it is determined that in relation to the salaried personnel there is a breach of labor obligations, the National Agrarian Reform Institute shall report it to the competent authority. [241] Observations of the Bolivian State, November 11, 2009.
[242] Law No. 3545, Article 72. [243] Law No. 3545, Article 57(II). [244] Law No. 3545, Article 59(II). Article 60 of Law No. 3545 establishes that the amount of compensation for expropriation would be based on the market value of the lands, improvements, or investments in conservation on the property in question. [245] Law No. 3545, Article 59(II). [246] Supreme Decree No. 28159 of May 17, 2005, Article 2: Guaraní families and communities in debt bondage and/or captivity are those that work for another, in conditions of subordination and dependence, in tasks that are particular to agricultural activity and which are remunerated in kind, in money, mixed, and in other cases no remuneration whatsoever is established, situated within individual private properties in spaces historically and ancestrally occupied by them in the provinces of Cordillera, Luis Calvo, Hernando Siles, O’Connor, and Gran Chaco of the departments of Santa Cruz, Chuquisaca, and Tarija, and who have no landed property. [247] Supreme Decree No. 28159 of May 17, 2005, Article 1. [248] Human Rights Ombudsman, Servidumbre y empatronamiento, p. 223. [249] Human Rights Ombudsman, Servidumbre y empatronamiento, p. 223. [250] Human Rights Ombudsman, Resolución Defensorial No. RD/SCR/2/2005/DH, pp. 12-17. [251] Human Rights Ombudsman, Resolución Defensorial No. RD/SCR/2/2005/DH, pp. 12-17. [252] Human Rights Ombudsman, Servidumbre y empatronamiento, p. 221. [253] Ismael Guzmán et al., Saneamiento de la tierra en seis regiones de Bolivia 1996-2007, p. 102. The total area claimed was 10,385,945 hectares, i.e. 81.3% of the Bolivian Chaco. [254] Law No. 1715, Law on the National Agrarian Reform Service, third transitory provision: In relation to the sixteen (16) applications for Tierras Comunitarias de Origen, filed prior to this law, it shall be ordered that they be immobilized with respect to new applications and settlements, respecting rights legally acquired by third parties. See also, Ismael Guzmán, et al., Saneamiento de la tierra en seis regiones de Bolivia 1996-2007, p. 105. (Table of original claims for TCOs in the Bolivian Chaco.); and Vice-Ministry of Lands, La lucha por la Tierra y la libertad en el Alto Parapetí, p. 3. Available at: http://www.bancotematico.org/archivos/primeraMano/archivos/alto_parapeti.pdf. [255] By Resolution to Determine the Area for Clearing Title for Tierras Comunitarias de Origen No. 029/2008 of February 12, and Resolution Initiating Procedure RA-ST 0034/2008 of February 26, 2008, issued by the National Agriaran Reform Institute (INRA). According to information submitted by the Bolivian State during the Commission's 131st regular period of sessions. [256] Supreme Decree No. 29292 of October 3, 2007 – Creates the Inter-Ministerial Council for the Eradiction of Servitude, Forced Labor, and Similar Forms, and approves and implements the 2007-2008 Transitory Inter-Ministerial Plan for the Guaraní People. La Paz, Bolivia. April 2008. [257] 2007-2008 Transitory Inter-Ministerial Plan for the Guaraní People. Para. 3. [258] 2007-2008 Transitory Inter-Ministerial Plan for the Guaraní People. Annex. Slides. [259] Supreme Decree No. 29354 of November 28, 2007: Establishes the existence of the grounds for expropriation due to public utility for regrouping and redistributing the land for purposes of endowing, for the Guaraní Indigenous People of the department of Chuquisaca, which includes all the communities that are part of the Tierras Comunitarias de Origen Itikaraparirenda, Asociación Comunaria "Zona Huacareta," Tentayapi, "Zona Machareti" Community Association, and Avatiri Ingre; and those that are part of the Guaraní zones or Capitanías of Ingre, Huacareta, Añimbo, Muyupampa, Iguembe, Machareti, Ivo, Santa Rosa, and Guacaya - Mboicobo; whose spatial needs have not yet been covered either with the clearing of title to agrarian property or with the endowment of government lands. [260] Observations of the Bolivian State, November 11, 2009. [261] I/A Court H.R., Indigenous Community Yakye Axa v. Paraguay Case. Judgment of June 17, 2005. Series C No. 125, para. 151. [262] I/A Court H.R., Indigenous Community Yakye Axa v. Paraguay Case. Judgment of June 17, 2005. Series C No. 125, para. 151. [263] I/A Court H.R., Indigenous Community Yakye Axa v. Paraguay Case. Judgment of June 17, 2005. Series C No. 125, para. 217; see also, Indigenous Community Yakye Axa v. Paraguay Case. Request for Interpretation of the Judgment on the Merits, Reparations, and Costs (Article 67, American Convention on Human Rights). Judgment of February 6, 2006. Series C No. 142, para. 26. [264] United Nations Declaration on the Rights of Indigenous Peoples, Article 23. [265] 2009 Political Constitution of the State. [266] 2009 Political Constitution of the State, Article 13(III). [267] 2009 Political Constitution of the State: Article 1: Bolivia is constituted as a Plurinational Communitarian Social Unitary State under the Rule of Law that is free, independent, sovereign, democratic, intercultural, decentralized, and with autonomies. Bolivia is based on plurality and political, economic, legal, cultural, and linguistic pluralism, within the integrative process of the country. Article 289: First-nation peasant indigenous autonomy consists of self-government as the exercise of the self-determination of the first-nation peasant indigenous nations and peoples, whose population shares territory, culture, history, languages, and legal, political, social, and economic organization or institutions of their own. [268] 2009 Political Constitution of the State, Article 5. Section II of that article also establishes: “The plurinational government and the departmental governments should use at least two official languages. One should be Spanish, and the other will be decided taking into account the use, convenience, circumstances, needs, and preferences of the population as a whole or of the territory in question.” [269] 2009 Political Constitution of the State, Article 269: I. Bolivia is organized territorially in departments, provinces, municipalities, and first-nation peasant indigenous territories. II. The creation, modification, and delimitation of the territorial units shall be done by the democratic will of their inhabitants, in keeping with the conditions established in the Constitution and the law. III. The regions shall be part of the territorial organization, in the terms and conditions determined by law. [270] 2009 Political Constitution of the State: Art. 291. I. The first-nation peasant indigenous territories, and the municipalities and regions that adopt that character in keeping with the provisions of this Constitution and the law, are first-nation peasant indigenous autonomies. II. Two or more first-nation peasant indigenous peoples may constitute a single first-nation peasant indigenous autonomy. Art. 292. Each first-nation peasant indigenous autonomy shall draw up its Statute in keeping with its own rules and procedures, in keeping with the Constitution and the law. Art. 293. I. Indigenous autonomy based on consolidated indigenous territories and those in process, once consolidated, shall be constituted by the will of their population expressed in consultation in keeping with their own rules and procedures as the only demandable requirement. [271] 2009 Political Constitution of the State, Article 394(III): The State recognizes, protects, and guarantees communitarian or collective property, which includes the first-nation peasant indigenous territory, the first-nation intercultural communities, and the peasant communities. Collective property is declared indivisible, imprescribable, unattachable, inalienable, and not subject to reversion, and is not subject to the payment of agrarian property taxes. The communities may be titled recognizing the complementarity between collective rights and individual rights, respecting territorial unity with identity. [272] 2009 Political Constitution of the State, Article 395. I. Government lands shall be endowed to first-nation peasant indigenous communities, first-nation intercultural communities, Afro-Bolivian communities, and peasant communities that do not possess them or that possess them in insufficient quantities in keeping with a state policy that addresses the ecological and geographic realities, as well as the population, social, cultural, and economic needs. The endowment shall be performed in keeping with the policies of sustainable rural development and the right of women to access, distribution, and redistribution of the land, without any discrimination based on civil status or conjugal union. II. Dual endowments and the purchase and sale, exchange, or donation of lands given in endowment are prohibited. III. Obtaining land rent generated by the speculative use of the land is prohibited as it is contrary to the collective interest. [273] 2009 Political Constitution of the State, Article 352: The exploitation of natural resources in a given territory shall be subject to a process of consultation of the population affected, convoked by the State, which will be free, prior, and informed. Citizen participation is guaranteed in the process of environmental management, and the conservation of the ecosystems will be promoted, in keeping with the Constitution and the law. In the first-nation peasant indigenous nations and peoples, the consultation shall take place respecting their own rules and procedures. [274] 2009 Political Constitution of the State, Article 388: The first-nation peasant indigenous communities situated within the forest areas shall be vested with the exclusive right to their use and management, in keeping with the law. [275] ILO Convention 169, Article 13(2). [276] I/A Court H.R., Saramaka People. v. Suriname Case. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 28, 2007. Series C No. 172, para. 121. [277] 2009 Political Constitution of the State, Articles 348-49. [278] 2009 Political Constitution of the State, Article 352. [279] 2009 Political Constitution of the State, Article 353. [280] I/A Court H.R., Saramaka People. v. Suriname Case. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 28, 2007. Series C No. 172, para. 129. [281]/A Court H.R., Saramaka People. v. Suriname Case. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 28, 2007. Series C No. 172, paras. 134, 137. [282] Saneamiento de la tierra en seis regiones de Bolivia 1996-2007 – Ismael Guzmán (Coordinador); Eulogio Núñez; Pelagio Pati; Julio Urapotina; Miguel Valdez; Alfredo Montecinos. Centro de Investigación y Promoción del Campesinado CIPCA, pag. 105. [283] Ramiro Guerrero Peñaranda, Huacareta: Tierra, Territorio y Libertad, February 2005, pp. 79-80. [284] Ramiro Guerrero Peñaranda, Huacareta: Tierra, Territorio y Libertad, pp. 81. [285] Ramiro Guerrero Peñaranda, Huacareta: Tierra, Territorio y Libertad, p. 81. [286] Ramiro Guerrero Peñaranda, Huacareta: Tierra, Territorio y Libertad, pp. 88-90. [287] Ramiro Guerrero Peñaranda, Huacareta: Tierra, Territorio y Libertad, p. 87. [288] "Gobierno inicia restitución de tierras al Estado en Alto Parapetí," Agencia Boliviana de Información, February 11, 2009. Available at: http://abi.bo. [289] "Estado revierte 40.000 hectáreas en convulso Alto Parapetí," Agencia Boliviana de Información, February 15, 2009. Available at: http://abi.bo. [290] “Evo entrega 34 títulos de tierras a los productores y guaraníes": Diario La Razón, March 15, 2009. Available at http://wwww.la-razon.com. [291] "Gobierno inicia restitución de tierras al Estado en Alto Parapetí," Agencia Boliviana de Información, February 11, 2009. Available at: http://abi.bo. [292] I/A Court H.R., Indigenous Community Yakye Axa v. Paraguay Case. Judgment of June 17, 2005. Series C No. 125, paras. 51, 62, 63. [293] IACHR, Access to Justice as a Guarantee of Economic, Social, and Cultural Rights: A Review of the Standards Adopted by the Inter-American System of Human Rights, OEA/Ser.L/V/II.129 Doc. 4 (September 7, 2007), para. 111, citing Case of the Sawhoyamaxa Indigenous Community, para. 111. [294] ILO Convention 169, Article 14(3). [295] I/A Court H.R., Indigenous Community Yakye Axa v. Paraguay Case. Judgment of June 17, 2005. Series C No. 125, para. 102. [296] I/A Court H.R., The Mayagna (Sumo) Awas Tingni Community v. Nicaragua Case. Judgment of August 31, 2001. Series C No. 79, para. 114; Constitutional Court v. Peru Case. Judgment of January 31, 2001. Series C No. 71, para. 90; Bámaca Velásquez v. Guatemala Case. Judgment of November 25, 2000. Series C No. 70, para. 191; and Cesti Hurtado v. Peru Case. Judgment of September 29, 1999. Series C No. 56, para. 125. [297] Observations of the Bolivian State, November 11, 2009. [298] "Líderes cruceños anuncian una resistencia pacífica," La Razón, February 11, 2009. Available at: http://www.la-razon.com. As this source indicates: The legal director of the Prefectura, Vladimir Peña, said that peaceful resistance will translate into “continuing to legislate based on the Autonomy Statute … the Government takes a series of folkloric actions with which it wishes to show that there is a Constitution in force, when the only thing it has promulgated is an organic instrument for just one sector of the country,” which does not represent the majority in Santa Cruz. [According to the president of the Civic Committee of Santa Cruz:] “That has to be the starting point of any pact at the national level in which the decisions of this region are recognized. We want to have the No vote recognized, and we’ll see what the necessary measures are. We still don’t know, we’ll see.” [299] "Nuevo Ministro de Autonomías promete buscar pactos con regiones opositoras," La Patria, February 9, 2009. Available at http://lapatriaenlinea.com; “Se agilizarán las autonomías según la capacidad regional," La Razón, February 9, 2009. [300] 2009 Political Constitution of the State, Articles 269-296. [301] 2009 Political Constitution of the State, Article 271. As Article 272 of the Constitution explains: “Autonomy implies the direct election of their authorities by the citizens, the administration of their economic resources, the exercise of the legislative, regulatory, oversight, and executive powers by their organs of autonomous government within the scope of their jurisdiction, authority, and powers.” [302] I/A Court H.R., The Mayagna (Sumo) Awas Tingni Community v. Nicaragua Case. Judgment of August 31, 2001. Series C No. 79, para. 154; Constitutional Court v. Peru Case. Judgment of January 31, 2001. Series C No. 71, para. 109; Bámaca Velásquez v. Guatemala Case. Judgment of November 25, 2000. Series C No. 70, para. 210. [303] Vienna Convention on the Law of Treaties. U.N. Doc A/CONF.39/27 (1969). 1155 U.N.T.S. 331 (January 27, 1980), Article 27. Internal law and the observance of treaties. A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.… |
