INDIGENOUS AND TRIBAL PEOPLES’ RIGHTS OVER THEIR

ANCESTRAL LANDS AND NATURAL RESOURCES

 

Norms and Jurisprudence of the Inter-American Human Rights System

 

 

III.      DEFINITIONS

 

A.        Indigenous Peoples; Tribal Peoples

 

24.              In addition to the full panoply of national and international rights accorded all individuals,[61] international human rights law establishes a set of specific individual and collective rights for indigenous peoples and their members.[62]  In most domestic legal systems, as well, the category “indigenous peoples” is distinguished from others such as “peasant communities,”[63] or “minorities”.  For this reason, it is necessary to identify the criteria under which a given group can be so designated.

 

Indigenous peoples

 

25.              There is no precise definition of “indigenous peoples” in international law, and the prevailing position is that such a definition is not necessary for purposes of protecting their human rights.[64]  Given the immense diversity of the indigenous peoples of the Americas and the rest of the world, a strict and closed definition will always risk being over- or under-inclusive. International law does provide some useful criteria to determine when a given human group can be considered as an “indigenous people.”  Such a determination has critical importance in international law.

 

26.              While neither the Inter-American human rights instruments, nor the jurisprudence of the Inter-American protection organs, have determined exactly the criteria for constituting an “indigenous people,” relevant criteria have been established in other international instruments, such as ILO Convention No. 169, the United Nations Declaration on the Rights of Indigenous Peoples, and others.[65]

 

27.              Article 1.1 (b) of ILO Convention No. 169 states that the treaty shall apply to

 

“peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.”

 

28.              Article 1.2 of the same Covenant establishes that “self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.”

 

29.              In the Convention No. 169 Application Guide, the ILO explains that the elements that define an indigenous people are both objective and subjective; objective elements include: (i) historical continuity, i.e. they are societies that descend from groups that preceded conquest or colonization; (ii) territorial connection, in the sense that their ancestors inhabited that country or region; and (iii) distinctive and specific social, economic, cultural and political institutions, which are their own and are totally or partially retained.  The subjective element corresponds to collective self-identification as an indigenous people.[66]

 

30.              Other international bodies apply similar criteria.  A study of the UN Working Group on Indigenous Populations concluded that the factors relevant to understand the notion of “indigenous” include: (i) priority in time, with regard to the occupation and use of a specific territory; (ii) voluntary perpetuation of cultural specificity, which can include aspects of their language, social organization, religion and spiritual values, modes of production, legal forms and institutions; (iii) self-identification, as well as recognition by other groups, or by State authorities, as differentiated collectives; and (iv) an experience of subjugation, marginalization, dispossession, exclusion or discrimination, whether these conditions persist or not.  These factors, warns the study, do not constitute, nor can they constitute, an inclusive or comprehensive definition; they are, rather, factors which can be present to a greater or lesser degree in different regions and national or local contexts, for which reason they can provide general guidelines for the adoption of reasonable decisions in practice.[67]  The United Nations Declaration on the Rights of Indigenous Peoples, in turn, opts for not defining the indigenous peoples who are the beneficiaries of its provisions; nonetheless, Article 33.1 establishes that “indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.” 

 

31.              Taking ILO Convention No. 169 into account, the IACHR has also underscored that “the criterion of self-identification is the principal one for determining the condition of indigenous people, both individually and collectively.”[68]  In this respect, regarding individual self-identification, the IACHR highlighted as a positive advance the fact that the 2001 Bolivian population census utilized the criterion of self-identification in order to establish the country’s percentage of indigenous inhabitants who were above the age of 15.[69] As for collective self-identification, the Inter-American Court considers that the identification of each indigenous community is a social-historical fact that forms part of its autonomy,[70] for which reason it is up to the corresponding community to identify its own name, composition and ethnic affiliation, without having the State or other external entities do it or contest it – the Inter-American bodies and the State must respect the determinations presented in this sense by each community, that is to say, its own self-identification.[71]

 

Tribal peoples

 

32.              Tribal peoples are peoples who are “not indigenous to the region [they inhabit], but that share similar characteristics with indigenous peoples, such as having social, cultural and economic traditions different from other sections of the national community, identifying themselves with their ancestral territories, and regulating themselves, at least partially, by their own norms, customs, and traditions”.[72]  This definition is in accordance with the provisions of Article 1.1.(a) of ILO Convention No. 169.

 

33.              As happens with indigenous peoples, the determination of whether or not a given group can be considered as “tribal” depends on a combination of objective and subjective factors. According to the ILO, the objective elements of tribal peoples include (i) a culture, social organization, economic conditions and way of life that are different from those of other segments of the national population, for example their livelihoods, language, etc.; and (ii) distinctive traditions and customs, and/or special legal recognition.  The subjective element consists of the self-identification of these groups and their members as tribal.  Thus, a fundamental element for the determination of a tribal people is collective and individual self-identification as such.  The fundamental criterion of self-identification, according to Article 1.2 of ILO Convention No. 169, is equally applicable to tribal peoples.[73]

 

34.              Tribal peoples and their members have the same rights as indigenous peoples and their members. For the IACHR, “international human rights law imposes an obligation on the State to adopt special measures to guarantee the recognition of tribal peoples’ rights, including the right to collectively own property.”[74] The jurisprudence of the Inter-American Court of Human Rights in relation to the right to collective property applies not only to indigenous peoples, but also to tribal peoples who preserve their traditional ways of life based on a special link to their lands and territories.  Thus, in the Aleoboetoe,[75] Moiwana Community[76] and Saramaka cases, the victims belonged to different communities or peoples who form part of the Maroon population of Suriname, descending from self-emancipated slaves that settled in their territories since the colonial period and are therefore not regarded, stricto senso, as “indigenous.” The Court considers the Maroon to be “tribal” peoples and communities.[77]

 

The relevance of History to identifying indigenous and tribal peoples

 

35.              A key element in the determination of when a given group can be regarded as indigenous or tribal is the historical continuity of its presence in a given territory, and, for indigenous peoples, an ancestral relationship with the societies that pre-existed a period of colonization or conquest.  This does not imply, however, that indigenous or tribal peoples are static societies that remain identical to their predecessors.  On the contrary, as human groups, indigenous and tribal peoples have their own social trajectory that adapts to changing times, maintaining in whole or in part the cultural legacy of their ancestors. Indigenous cultures evolve over time.[78]  The indigenous communities of the present are the descendants of inhabitants of the pre-Columbian Americas; over the centuries they have experienced specific events which have shaped their distinctive social structures, spirituality and ritual practices, language, art, folklore, memory and identity – in sum, their culture. It is on the basis of that individual and dynamic history that the relationship of each indigenous people and community with its territory is built, a relationship from which their physical and cultural subsistence emerges, and to which international law has given a privileged level of protection.[79]

 

36.              The history of indigenous peoples and their cultural adaptations over time, as constitutive elements of their contemporary structural configuration, are consistent with the preservation of a fundamental relationship to their territory. In the case of Yakye Axa v. Paraguay, the Inter-American Court described the history of the affected community as follows:

 

“…it is necessary to consider that the victims of the instant case have to date an awareness of an exclusive common history; they are the sedentary expression of one of the bands of the Chanawatsan indigenous peoples (…). Possession of their traditional territory is indelibly recorded in their historical memory, and their relationship with the land is such that severing that tie entails the certain risk of an irreparable ethnic and cultural loss, with the ensuing loss of diversity. In the process of sedentarization, the Yakye Axa Community took on an identity of its own that is connected to a physically and culturally determined geographic space, which is a specific part of what was the vast Chanawatsan territory”[80].

 

37.              It is also important to understand that the cultural identity of indigenous and tribal peoples is shared by their members, but it is inevitable that some members of each group will live with less attachment to the corresponding cultural traditions than others.  This fact does not lead to the conclusion that indigenous or tribal peoples lose their identity or the rights conferred upon them by international law.  As the Inter-American Court of Human Rights said in the case of the Saramaka people v. Suriname: “The fact that some individual members of the Saramaka people may live outside of the traditional Saramaka territory and in a way that may differ from other Saramakas who live within the traditional territory and in accordance with Saramaka customs does not affect the distinctiveness of this tribal group nor its communal use and enjoyment of their property.”[81]  Insofar as they continue preserving and living their own cultural traditions, indigenous and tribal peoples and their members continue to have the individual and collective rights recognized by the Inter-American system.

 

38.              Likewise, indigenous communities may be composed of persons and families that belong to more than one ethnic group, but regard and identify themselves as a single community.  This multiethnic composition of some indigenous communities, which responds to their position as historical subjects, is consistent with the protection and exercise of their full range of entitlements under international human rights law.[82]

 

B.        Lands and Territories

 

39.              The territorial rights of indigenous and tribal peoples and their members extend over the Earth’s surface, and over the natural resources that are located on the surface and in the subsoil – with due regard for the specificities of water and subsoil resources, as explained in Chapter VIII. Holistically, the lands and the natural resources they contain comprise the legal notion of “territory”, as confirmed by the Inter-American Court.[83]  ILO Convention No. 169 in its Article 13.2, similarly provides that “the use of the term lands (…) shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use.”

 

40.              The IACHR has acknowledged the value of the legislative incorporation of “a broad concept of indigenous land and territories, wherein the latter category includes not only physically occup[ied] spaces but also those used for their cultural or subsistence activities, such as routes of access,”[84] finding “this approach to be compatible with the cultural reality of indigenous peoples and their special relationship with the land and territory, as well as with natural resources and the environment in general.”[85]  The occupation of a territory by an indigenous people or community is thus not restricted to the nucleus of houses where its members live; “rather, the territory includes a physical area constituted by a core area of dwellings, natural resources, crops, plantations and their milieu, linked insofar as possible to their cultural tradition.”[86] In this same sense, the relationship between indigenous peoples and their territories is not limited to specific villages or settlements; territorial use and occupation by indigenous and tribal peoples “extend beyond the settlement of specific villages to include lands that are used for agriculture, hunting, fishing, gathering, transportation, cultural and other purposes”;[87] therefore indigenous and tribal peoples’ rights encompass the territory as a whole.[88]

 

C.        Natural Resources

 

41.              Natural resources are substances that exist naturally in the Earth. Natural resources are valuable in manufacturing products, supplying human necessities or comforts, and providing ecosystem services that maintain the health of the biosphere.  Natural resources include air, land, water, natural gas, coal, oil, petroleum, minerals, wood, topsoil, fauna, flora, forests and wildlife. Renewable natural resources are those that reproduce or renew and include animal life, plants, trees, water, and wind. Nonrenewable resources are irreplaceable once extracted from water or soil and include gold, silver, fossil fuels, diamonds, natural gas, copper and ore.
 

IV.       STATE OBLIGATIONS TOWARDS INDIGENOUS AND TRIBAL PEOPLES AND THEIR MEMBERS

 

A.        Respect and Ensure Rights

 

42.              The duty of OAS member States to promote and protect human rights stems from the human rights obligations established in the OAS Charter.  In addition, the American Convention and the American Declaration establish a series of State obligations to promote and secure the effective enjoyment of human rights. Articles 1.1 and 2 of the Convention expressly demand that States Parties “respect” and “ensure” the “free and full exercise” of the rights recognized therein, including through the adoption of “such legislative or other measures as may be necessary to give effect to those rights or freedoms.”

 

43.              Article 2 of the American Convention places States parties under the general obligation to adjust their domestic legislation to the standards of the Convention so as to ensure the enjoyment of the rights it embodies.  The obligation of adapting internal legislation to the American Convention under Article 2 “is, by its very nature, one that must be reflected in actual results.”[89]  States must, therefore, review their legislation, procedures and practices so as to ensure that indigenous and tribal peoples’ and persons’ territorial rights are defined and determined in accordance with the rights established in Inter-American human rights instruments.[90]  As a corollary, States are under the obligation to abstain from adopting legislative or administrative measures of a regressive nature, which can hinder the enjoyment of indigenous peoples’ territorial rights.[91]

 

44.              The IACHR has deemed it a good practice for states to adopt and promulgate rules in their domestic legal systems that recognize and protect the rights of indigenous peoples and their members,[92] but juridically beneficial laws “cannot by themselves guarantee the rights of such peoples.”[93]  States must effectively implement and enforce the constitutional, legislative and regulatory provisions of their internal law that enshrine the rights of indigenous and tribal peoples and their members, so as to ensure the real and effective enjoyment of such rights.[94]  Domestic legal provisions for this purpose must be effective (principle of effet utile).[95]  A favorable legal framework is “insufficient for due protection of their rights if it does not go hand in hand with policies and actions by the State to ensure application of and effective compliance with the provisions which the sovereign State has undertaken to apply.”[96]  The Inter-American Court of Human Rights has similarly insisted that the governments “ensure the actual existence of an efficient guarantee of the free and full exercise of human rights.”[97] Indigenous and tribal peoples have a right to see the law implemented and applied in practice,[98] specifically in relation to their territorial rights.[99] 

45.              Similarly, the ratification of international treaties or the approval of international instruments that protect indigenous and tribal peoples’ rights are often insufficient to guarantee effective enjoyment of the rights they contain.[100] The IACHR has reacted positively to the acceptance of ILO Convention No. 169 by OAS member states,[101] while emphasizing that once member states become party to the Convention, they are bound to “take special measures to guarantee indigenous peoples the effective enjoyment of human rights and fundamental freedoms, without restrictions, and to include measures that promote the full effectiveness of their social, economic, and cultural rights, respecting their social and cultural identity, and their customs, traditions, and institutions.”[102] The IACHR has also indicated that states must develop adequate compliance mechanisms to monitor the performance of state authorities and ensure the effective enjoyment of the rights and guarantees that they pledged to respect upon becoming party to ILO Convention No. 169.[103]  The lack of regulation does not excuse failure to comply with the application of Convention No. 169.[104]

 

46.              Applying these rules in the Awas Tingni case the Inter-American Court held that it “believes it necessary to make the rights recognized by the Nicaraguan Constitution and legislation effective, in accordance with the American Convention.  Therefore, pursuant to article 2 of the American Convention, the State must adopt in its domestic law the necessary legislative, administrative, or other measures to create an effective mechanism for delimitation and titling of the property of the members of the Awas Tingni Mayagna Community, in accordance with the customary law, values, customs and mores of that Community.”[105]  In the case of the Sawhoyamaxa v. Paraguay, the Inter-American Court insisted that “merely abstract or legal recognition becomes meaningless in practice if the lands have not been physically delimited and surrendered because the adequate domestic measures necessary to secure effective use and enjoyment of said right by the members of the Sawhoyamaxa Community are lacking.”[106]

 

47.              The IACHR has equally valued the establishment of public policies and governmental plans of action for the recognition of indigenous peoples’ territorial rights, expressing that it “hopes that these initiatives contribute to the demarcation and titling of indigenous peoples’ lands and ancestral territories and that their results are quantifiable in the short term.”[107] Likewise, the IACHR has highlighted, as an advance, efforts to “establish policies in favor of indigenous peoples (…) through the creation of ministries, vice ministries, and specific entities focused directly on their needs”,[108] but it has recalled that such State institutions must provide an “effective response for the exercise of their human rights, and in particular their economic, social and cultural rights, on equality”.[109]

 

B.        Specific Obligations Owed Indigenous and Tribal Peoples

 

48.              Each state must ensure that the members of indigenous and tribal peoples effectively enjoy all human rights in equality with other persons.[110]  Article 1.1 of the American Convention establishes the obligation of the State to respect and ensure “the full enjoyment of human rights by the persons under its jurisdiction.”[111] Failure to comply with that obligation due to the actions or omissions of any public authority can generate international responsibility for the state.[112]

 

49.              The State’s general obligation acquires additional content in the case of indigenous and tribal peoples and their members. The IACHR has recognized that States must adopt special and specific measures aimed at protecting, favoring and improving the exercise of human rights by indigenous and tribal peoples and their members.[113] The need for special protection arises from the greater vulnerability of these populations, their historical conditions of marginalization and discrimination, and the deeper impact on them of human rights violations.[114] This positive State duty of adopting special measures is enhanced when it comes to indigenous children and women, given that their level of vulnerability is even greater.[115]

 

50.              The duty of States to afford special protection to indigenous and tribal peoples has been underscored by the IACHR from its early decisions.  In its 1972 Resolution on “Special Protection for Indigenous Populations: Action to combat racism and racial discrimination,” the IACHR held that “for historical reasons and because of moral and humanitarian principles, special protection for indigenous populations constitutes a sacred commitment of the states.”[116]  For the IACHR, “this notion of special protection has since been considered in numerous country and individual reports adopted by the Commission and (…) has been recognized and applied in the context of numerous rights and freedoms under both the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights, including the right to life, the right to humane treatment, the right to judicial protection and to a fair trial, and the right to property.”[117]  The IACHR has explained that a central element underlying the relevant norms and principles of international law “is a recognition that ensuring the full and effective enjoyment of human rights by indigenous peoples requires consideration of their particular historical, cultural, social and economic situation and experience.  In most instances, this has included identification of the need for special measures by states to compensate for the exploitation and discrimination to which these societies have been subjected at the hands of the non-indigenous.”[118]  In deciding complaints presented against States, the IACHR has thus afforded “due consideration to the particular norms and principles of international human rights law governing the individual and collective interests of indigenous peoples, including consideration of any special measures that may be appropriate and necessary in giving proper effect to these rights and interests.”[119]

 

51.              The obligation to adopt special and specific protective measures is inherent in ILO Convention No. 169; the IACHR has highlighted the need for its States parties to “take special measures to guarantee indigenous peoples the effective enjoyment of human rights and fundamental freedoms, without restrictions, and to include measures that promote the full effectiveness of their social, economic, and cultural rights, respecting their social and cultural identity, and their customs, traditions, and institutions.”[120]  The Inter-American Court of Human Rights has similarly held, based on Article 1.1 of the American Convention,[121] that “members of indigenous and tribal communities require special measures that guarantee the full exercise of their rights, particularly with regards to their enjoyment of property rights, in order to safeguard their physical and cultural survival.”[122] Other  international bodies[123] have also established that the members of indigenous and tribal peoples require special measures to secure the full exercise of their rights.[124]

 

52.              As explained in detail below, this obligation includes the State duty to adopt special, effective measures to ensure indigenous communities’ property rights over their ancestral lands and natural resources;[125] consequently, the general State duty to give special protection to indigenous peoples is specifically applicable in relation to their right to territorial property.[126]  As the Inter-American Court has clearly established, the “protection of property under Article 21 of the Convention, read in conjunction with Articles 1(1) and 2 of said instrument, places upon States a positive obligation to adopt special measures that guarantee members of indigenous and tribal peoples the full and equal exercise of their right to the territories they have traditionally used and occupied”.[127]

 

53.              Such special measures are not discriminatory against the rest of the population[128] because “[i]t is a well established principle of international law that unequal treatment towards persons in unequal situations does not necessarily amount to impermissible discrimination. (…) Legislation that recognizes said differences is therefore not necessarily discriminatory. In the context of members of indigenous and tribal peoples, this Court has already stated that special measures are necessary in order to ensure their survival in accordance with their traditions and customs.”[129]

 

54.              The unique indigenous way of life has to be taken into account by the State in adopting special measures aimed at protecting their human rights:[130] “as regards indigenous peoples, 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.”[131]  This obligation applies in regard to the implementation of domestic laws and to the implementation of the Inter-American human rights instruments.[132]  This duty of specificity also entails that State measures aimed at protecting the human rights of indigenous peoples and promoting their social inclusion must start off from their recognition as historically excluded groups,[133] keeping in mind that “the complexity of the matter is no excuse for the State not to fulfill its obligations.”[134] 

 

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[61] In this sense, Article 1 of the United Nations Declaration on the Rights of Indigenous Peoples establishes that “[i]ndigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.”  Likewise, Article 3.1 of ILO Convention No. 169 provides that “[i]ndigenous and tribal peoples shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination.”

[62] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 96.

[63] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 216.

[64] ILO, “Indigenous & Tribal peoples’ rights in practice – A guide to ILO Convention No. 169.” Programme to Promote ILO Convention No. 169 (PRO 169), International Labour Standards Department, 2009, p. 9.

[65] United Nations Development Group – Guidelines on Indigenous Peoples’ Issues. February 2008, p. 8. Available at: http://www2.ohchr.org/english/issues/indigenous/docs/guidelines.pdf

[66] According to article 1.2 of ILO Convention No. 169, the subjective element is a fundamental criterion for the classification of a group as indigenous.  The Convention combines both sets of elements in order to arrive at a determination in concrete cases. ILO, “Indigenous & Tribal peoples’ rights in practice – A guide to ILO Convention No. 169.” Programme to Promote ILO Convention No. 169 (PRO 169), International Labour Standards Department, 2009, p. 9.

[67] UN – Economic and Social Council – Commission on Human Rights – Sub-commission on Prevention of Discrimination and Protection of Minorities – Working Group on Indigenous Populations: “Working Paper by the Chairperson-Rapporteur, Mrs. Erica-Irene A. Daes, on the concept of ‘indigenous people’.” UN Document E/CN.4/Sub.2/AC.4/1996/2, June 10, 1996, pars. 69-70.

[68] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 216.

[69] IACHR, Access to Justice and Social Inclusion:  The Road towards Strengthening Democracy in Bolivia.  Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 217.

[70] I/A Court H.R., Case of the Xákmok Kásek Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of August 24, 2010.  Series C No. 214, par. 37.

[71] I/A Court H.R., Case of the Xákmok Kásek Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of August 24, 2010.  Series C No. 214, par. 37.

[72] I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 79.

[73] ILO, “Indigenous & Tribal peoples’ rights in practice – A guide to ILO Convention No. 169.”  Programme to Promote ILO Convention No. 169 (PRO 169), International Labour Standards Department, 2009, p. 9.

[74] IACHR, Arguments before the Inter-American Court of Human Rights in the case of the Saramaka people v. Suriname. Cited in: I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007. Series C No. 172, par. 78.

[75] I/A Court H.R., Case of Aloeboetoe et al. v. Suriname. Reparations and Costs.  Judgment of September 10, 1993.  Series C No. 15.

[76] I/A Court H.R., Case of the Moiwana Community v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of June 15, 2005.  Series C No. 124.

[77] Likewise, the IACHR has considered the situation of the Garifuna people of Central America and the Caribbean from the perspective of the standards applicable to indigenous peoples.

[78] Just like any human society, indigenous peoples –and the communities that compose them- have their own history. They are dynamic human groups, who reconfigure themselves over the course of time on the grounds of the cultural traits that distinguish them. Indeed, indigenous and tribal peoples’ culture is continually adapting to historical changes; indigenous and tribal peoples develop their cultural identity over time. In this sense, the IACHR has recognized, for example, that the Guatemalan indigenous peoples, in spite of the ethnic discrimination to which they have historically been subjected, “whether they live in rural or urban areas, they maintain an intense level of activity and social organization, a rich culture, and are continuously adapting to situations imposed by the exigencies of historical change, while protecting and developing their cultural identity” [IACHR, Fifth Report on the Situation of Human Rights in Guatemala. Doc. OEA/Ser.L/V/II.111, Doc. 21 rev., April 6, 2001, Chapter XI, par. 4].

[79] IACHR, Arguments before the Inter-American Court of Human Rights in the case of the Xákmok-Kásek community v. Paraguay. Cited in: I/A Court H.R., Case of the Xákmok Kásek Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of August 24, 2010.  Series C No. 214, par. 35.

[80] I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 216.  In the same sense, see: I/A Court H.R., Case of the Xákmok Kásek Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of August 24, 2010.  Series C No. 214, pars. 37-43.

[81] I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 164.

[82] I/A Court H.R., Case of the Xákmok Kásek Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of August 24, 2010.  Series C No. 214, pars. 39-43.  In this case, the petitioner community was composed mostly of members of two distinct ethnic groups, the Enxet-Sur and the Sanapana.

[83] For the Inter-American Court, the term “territory” refers to the totality of the lands and natural resources that indigenous and tribal peoples have traditionally used. I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, footnote No. 63.

[84] IACHR, Follow-up Report - Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 160.

[85] IACHR, Follow-up Report - Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 160.

[86] IACHR, Arguments before the Inter-American Court of Human Rights in the case of the Yakye Axa community v. Paraguay. Cited in: I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 120(h).

[87] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 129.

[88] The Inter-American Court has explained in this regard that “the scope of ‘respect’ afforded to the members of [an indigenous or tribal people’s] territory [is not limited] solely to ‘villages, settlements and agricultural plots’. Such limitation fails to take into account the all-encompassing relationship that members of indigenous and tribal peoples have with their territory as a whole, not just with their villages, settlements, and agricultural plots”. [I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 114].

[89] I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 100.  I/A Court H.R., Case of Caesar v. Trinidad and Tobago.  Merits, Reparations and Costs.  Judgment of March 11, 2005.  Series C No. 123, par. 93.

[90] IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 173, Recommendations
1 and 2.

[91] In case of adopting such regressive provisions, States are in the obligation of voiding them or refraining from their application. IACHR, Third Report on the Situation of Human Rights in Paraguay. Doc. OEA/Ser./L/VII.110, Doc. 52, March 9, 2001, Chapter IX, par. 49, 50 – Recommendation 4.

[92] The IACHR has positively valued the adoption of legal provisions on the collective rights of indigenous peoples, but at the same time it has forcefully called upon States to submit information about their implementation. See, inter alia: IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, pars. 1052-1061. IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, pars. 218, 219. IACHR, Follow-up Report - Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 134, and footnote No. 147.

[93] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Sawhoyamaxa v. Paraguay. Cited in: I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 113(b).

[94] IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, par. 1062. See also: IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, pars. 220, 297 – Recommendation 4. IACHR, Follow-up Report - Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, pars. 134, 149. 

[95] “Effectiveness” of the domestic legal provisions means that the State must take such measures as may be necessary to actually comply with the provisions of the Convention. I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 101.  I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 110

[96] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Yakye Axa v. Paraguay. Cited in: I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 120(b). See also: IACHR, Fifth Report on the Situation of Human Rights in Guatemala. Doc. OEA/Ser.L/V/II.111, Doc. 21 rev., April 6, 2001, Chapter XI, par. 36. IACHR, Third Report on the Situation of Human Rights in Paraguay. Doc. OEA/Ser./L/VII.110, Doc. 52, March 9, 2001, Chapter IX, par. 28.

[97] I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of March 29th, 2006. Series C No. 146, par. 167. I/A Court H.R., Case of the Pueblo Bello Massacre v. Colombia. Merits, Reparations and Costs.  Judgment of January 31, 2006.  Series C No. 140, par. 142.

[98] IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, par.  1062. Only a sustained implementation of constitutional and legal advances that are pertinent for the legal force of indigenous and tribal peoples’ rights can mark and advance in their real situation; referring to the Guatemalan legal system, the IACHR has held that “these very important provisions enshrine principles that can be developed in the legislative sphere, and which, if implemented on a sustained basis, can lead to improvement in the situation of indigenous populations” [IACHR, Fifth Report on the Situation of Human Rights in Guatemala. Doc. OEA/Ser.L/V/II.111, Doc. 21 rev., April 6, 2001, Chapter XI, par. 35]. In the same line, the Inter-American Court of Human Rights has explained that “legislation alone is not enough to guarantee the full effectiveness of the rights protected by the Convention, but rather, such guarantee implies certain governmental conducts to ensure the actual existence of an efficient guarantee of the free and full exercise of human rights” [I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of March 29, 2006. Series C No. 146, par. 167. I/A Court H.R., Case of the Pueblo Bello Massacre v. Colombia. Merits, Reparations and Costs. Judgment of January 31, 2006. Series C No. 140, par. 142]. The UN Special Rapporteur has also signaled the lack of application of the legal provisions that enshrine indigenous peoples’ rights, describing it as a “gap in implementation between, on the one hand, the advances made by many countries in their domestic legislation, which recognizes indigenous peoples and their rights, and, on the other, the daily reality in which many obstacles to the effective enforcement of those legislative measures are encountered.” UN – Commission on Human Rights – Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Mr. Rodolfo Stavenhagen, UN Doc. E/CN.4/2006/78, Summary. The Special Rapporteur has explained that obstacles to implementation include: (i) inconsistencies between international standards and principles and domestic legislation, the lack of incorporation of such standards into domestic law, or their disregard by judges and public officials; (ii) inconsistencies between sectoral legislations, or the lack of application of the existing sectoral legislation; (iii) the bureaucratic or rigid structure of public administration, and the lack of mechanisms to follow up implementation of the law; (iv) different interpretations of legal standards by different state authorities; or (v) the blocking of protective constitutional provisions through regressive legal and regulatory standards. UN – Commission on Human Rights – Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Mr. Rodolfo Stavenhagen, UN Doc. E/CN.4/2006/78, pars. 18, 19, 26, 33. See also: UN – Human Rights Council – Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, UN Doc. A/HRC/4/32, 27 February 2007, pars. 5-13.

[99] With regard to the right to property, formal recognition of indigenous and tribal peoples’ right to communal property in domestic law must be accompanied by concrete measures to make the right effective.  [I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 141] “Merely abstract or juridical recognition of indigenous lands, territories, or resources, is practically meaningless if the property is not physically delimited and established.” [I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of June 17, 2005. Series C No. 125, par. 143]. For the IACHR and the Inter-American Court, it is necessary that the legally guaranteed territorial rights of indigenous peoples are coupled with the adoption of the legislative and administrative measures and mechanisms to ensure the enjoyment of said rights in reality. Under Article 21, it is necessary for the legal and constitutional provisions that enshrine the right of members of indigenous communities to the property of their ancestral territory to be translated into the effective restitution and protection of such territories. [IACHR, Arguments before the Inter-American Court of Human Rights in the case of Sawhoyamaxa v. Paraguay. Cited in: I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 113(b).  IACHR, Third Report on the Situation of Human Rights in Paraguay. Doc. OEA/Ser./L/VII.110, Doc. 52, March 9, 2001, Chapter IX, par. 50, Recommendation 1]  Even if there is a formal affirmation of the territorial and other rights of indigenous and tribal peoples, States’ failure to adopt the measures required to recognize and guarantee said rights generates situations of uncertainty among the members of the communities.  [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 170] The UN Special Rapporteur has denounced the lack of implementation of the legislation that protects indigenous peoples’ territorial rights as part of the current trend towards territorial dispossession, as follows:  “The trend towards the depletion of the natural resources of the indigenous people is continuing, mainly through expropriation of their lands. Although in recent years many countries have adopted laws recognizing the indigenous communities’ collective and inalienable right to ownership of their lands, land-titling procedures have been slow and complex and, in many cases, the titles awarded to the communities are not respected in practice.  At the same time, privatization of traditional lands is on the increase. This measure is claimed to benefit indigenous owners in that it provides legal certainty.  The Special Rapporteur has, however, observed that in the long run the indigenous communities tend to lose their traditional lands and territories to the various private economic interests of either firms or individual invaders and settlers who have managed to install themselves in traditional indigenous areas.” UN – Human Rights Council – Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, UN Doc. A/HRC/4/32, 27 February 2007, par. 14.

[100] The UN Special Rapporteur has pointed out the inconsistency between international law on indigenous human rights and States’ domestic legislation as one of the obstacles for implementation of the legal provisions that protect indigenous peoples: “It has been pointed out that in many countries there is a gap between international standards and principles regarding the human rights of indigenous people and domestic legislation.  International standards, even when ratified, do not always and automatically become part of domestic law. They are sometimes ignored by public officials as well as in the case law of the courts.” UN – Commission on Human Rights – Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Mr. Rodolfo Stavenhagen, UN Doc. E/CN.4/2006/78, par. 18.

[101] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 218.

[102] IACHR, Third Report on the Situation of Human Rights in Paraguay. Doc. OEA/Ser./L/VII.110, Doc. 52, March 9, 2001, Chapter IX, par. 13.  Thus, for example, in its 2000 Report on the Human Rights situation in Peru, the IACHR recalled that “on ratifying this instrument, the Peruvian State undertook to take special measures to guarantee the indigenous peoples of Peru the effective enjoyment of human rights and fundamental freedoms, without restrictions, and to make efforts to improve living conditions, participation, and development in the context of respect for their cultural and religious values.” IACHR, Second Report on the Situation of Human Rights in Peru.  Doc. OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, Chapter X, par. 7.

[103] IACHR, Second Report on the Situation of Human Rights in Peru.  Doc. OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, Chapter X, par. 39 – Recommendation 3.

[104] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia.  Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 255.

[105] I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 138.

[106] I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 143.

[107] IACHR, Follow-up Report - Access to Justice and Social Inclusion:  The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 149.

[108] IACHR, Access to Justice and Social Inclusion:  The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 221.

[109] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 223.  The UN Special Rapporteur has called for coordination in the actions undertaken by the different State authorities responsible for protecting indigenous rights: “One aspect of the [implementation gap] is the lack of a coordinated or systematic policy –with the participation of the indigenous peoples- that plays a cross-cutting role in the various ministries and organs of State regarding indigenous issues, such as ministries of agriculture, energy, mines and natural resources, education and health, to name but a few, in order to guarantee the rights of the indigenous peoples.  The existence of human rights commissions or ombudsmen is not enough if the ministries with responsibilities in sensitive areas for the indigenous peoples do not take coordinated action.” UN – Commission on Human Rights – Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Mr. Rodolfo Stavenhagen, UN Doc. E/CN.4/2006/78, par. 86.

[110] IACHR, Democracy and Human Rights in Venezuela.  Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, par. 1072.

[111] I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs. Judgment of January 31st, 2001. Series C No. 79, par. 154.

[112] I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31st, 2001.  Series C No. 79, par. 154.

[113] IACHR, Democracy and Human Rights in Venezuela.  Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, par. 1072.  IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 169.

[114] IACHR, Preliminary observations of the Inter-American Commission on Human Rights on its Visit to Honduras, May 15 to 18, 2010. Doc. OEA/Ser.L/V/II., Doc. 68, 3 June 2010, par. 26, Recommendation 11.

[115] IACHR, Preliminary observations of the Inter-American Commission on Human Rights on its Visit to Honduras, May 15 to 18, 2010. Doc. OEA/Ser.L/V/II., Doc. 68, 3 June 2010, par. 26, Recommendation 11; par. 87.

[116] Cited in: IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 126. IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 96.

[117] IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 126.

[118] IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 125. IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 95.

[119] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 98.

[120] IACHR, Third Report on the Situation of Human Rights in Paraguay.  Doc. OEA/Ser./L/VII.110, Doc. 52, March 9, 2001, Chapter IX, par. 13.

[121] As the Inter-American Court of Human Rights has explained on this same point, “within the framework of the American Convention, the international responsibility of States arises at the moment of the violation of the general obligations embodied in Articles 1(1) and 2 of such treaty.  (…) From these general obligations special duties are derived that can be determined according to the particular needs of protection of the legal persons, whether due to their personal conditions or because of the specific situation they have to face [Cf. Case of the Pueblo Bello Massacre, supra note 3, 111 and 112; Case of the ‘Mapiripán Massacre’, supra note 3, paras. 108 and 110, and Case of the Gómez-Paquiyauri Brothers.  Judgment of July 8, 2004. Series C No. 110, para. 71], such as extreme poverty, exclusion or childhood.”  [I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 154].

[122] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 85.

[123] CERD, General Recommendation 23, Indigenous Peoples, U.N. Doc. A/52/18, Annex V (1997), par. 5.  European Court of Human Rights, case of Connors v. United Kingdom, May 27, 2004, par. 84.

[124] I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 85.

[125] IACHR, Arguments before the Inter-American Court of Human Rights in the Case of Awas Tingni v. Nicaragua.  Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(e).

[126] IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 126.

[127] I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 91.

[128] Cfr. I/A Court H.R., Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica. Advisory Opinion OC-4/84 of January 19, 1984.  Series A No. 4, pars. 57-60; I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002.  Series A No. 17, par. 55. 

[129] I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 103.

[130] In addition to adopting special measures to guarantee the exercise of human Rights by indigenous and tribal peoples and their members, States must make sure that they interpret and comply with their international obligations with due consideration for the socio-cultural specificity of these populations.  Articles 24 and 1.1 of the American Convention on Human Rights bind States to guarantee, in conditions of equality, the full exercise and enjoyment of the human rights of persons under their jurisdiction, including the members of indigenous communities; “however, it is necessary to emphasize that to effectively ensure those rights, when they interpret and apply their domestic legislation, the States must take into account the specific characteristics that differentiate the members of the indigenous peoples from the general population and that constitute their cultural identity”  [I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 51.  I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 59].

[131] I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 63.

[132] I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 51.

[133] IACHR, Access to Justice and Social Inclusion:  The Road towards Strengthening Democracy in Bolivia.  Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 229.

[134] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(l).