The evolution of international indigenous rights in the Inter-American Human Rights System

Human Rights Law Review

Volumn 6, Issue 2, 2006, Pages 281-322

  Pasqualucci, Jo M ^a,b  

^a UNIVERSITY OF SOUTH DAKOTA   (United States)

^b GEORGE WASHINGTON UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 33750173021     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngl004     Document Type: Article

References (345)

1. Under international law, the categorisation of who is indigenous is left to the people themselves. See Draft American Declaration on the Rights of Indigenous Peoples, 25 March 2006, OEA/Ser.K/XVI GT/DADIN/doc260/06. The draft American Declaration on the Rights of Indigenous Peoples is still under negotiation. The latest draft can be viewed at: www.oas.org. One common description is that indigenous peoples are those who descended from the people who inhabited a geographic area before it was colonised and became a State and who retain a separate cultural identity. See Article 1(b), Indigenous and Tribal Peoples Convention 1989, ILO C169
2. 28 International Legal Materials 1382.
3. See, generally, García Ramírez, Estudios Jurídicos (Mexico City, Universidad Nacional Autónoma de México, 2000) at 191-255.
4. Sarayaku Indigenous Community v Ecuador (Provisional Measures) IACtHR Series E (2004) at para. 2.
5. Ibid.
6. Case 11.140, Mary and Carrie Dann v United States Report No. 75/02 (2002)
7. IHRR 1143 (2003) at paras 96-8. The reports of the Inter-American Commission can be viewed at the website of the Inter-American Commission on Human Rights at: http://www.cidh.oas.org.
8. American Convention on Human Rights 1969, OAS Treaty Series No. 1, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, updated to May 2004, OAS/Ser.L/V/I.4 Rev. 10 at 27 (Basic Documents). The Basic Documents of the Inter-American human rights system and all opinions and decisions of the Inter-American Court of Human Rights can be viewed at the website of the Inter-American Court at: http://www.corteidh.or.cr.
9. American Declaration on the Rights and Duties of Man 1948, in Basic Documents at 17.
10. The following States are States Parties to the American Convention on Human Rights: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay and Venezuela. See Basic Documents at 56. See: http://www.cidh.oas.org.
11. 21 of the 24 States Parties to the American Convention have also recognised the jurisdiction of the Inter-American Court. They are Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay, and Venezuela. Basic Documents at 56. For a more complete discussion of the functioning of the Inter-American human rights system see Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (Cambridge: Cambridge University Press, 2003) at 1-25.
12. The African Banjul Charter on Human and Peoples' Rights 1981, CAB/LEG/67/ 3 rev.5
13. (1982) 21 International Legal Materials 58. The Banjul Charter specifically refers to both the rights of individuals and the rights of peoples.
14. See generally, Buergenthal and Nikken, 'El Sistema Africano de los Derechos Humanos y de Los Pueblos' [The African System of Human and People's Rights] (1991) 79 Revista de la Facultad de Ciencias Jurídicas y Políticas, Universidad Central de Venezuela 267.
15. See Crawford (ed.), The Rights of Peoples (Oxford: Oxford University Press, 1988) for a comprehensive discussion of peoples' rights.
16. For an analysis of the treatment of indigenous rights in the Inter-American human rights system prior to 1998, see Hannum, 'The Protection of Indigenous Rights in the Inter-American System', in Harris and Livingstone (eds), The Inter-American System of Human Rights (Oxford: Oxford University Press, 1998) 330.
17. Yakye Axa Indigenous Community v Paraguay IACtHR Series C 125 (2005) at para. 148. [All quotations from Yakye Axa and Yatama are translated by the author.]
18. Yatama v Nicaragua IACtHR Series C 127 (2005).
19. Ibid. at paras 218-9.
20. Mayagna (Sumo) Awas Tingni Community v Nicaragua IACtHR Series C 79 (2001);
21. 10 IHRR 758 (2003) at para. 125.
22. Yakye Axa Indigenous Community, supra n. 12 at para. 128. The Court explained that:
23. [t]he corpus juris of international human rights law comprises a set of international instruments of varied content and juridical effects (treaties, conventions, resolutions and declarations). Its dynamic evolution has had a positive impact on international law in affirming and building up the [international law's] faculty for regulating relations between States and the human beings within their respective jurisdictions. This Court, therefore, must adopt the proper approach to consider this question in the context of the evolution of the fundamental rights of the human person in contemporary international law. (Ibid.)
24. Indigenous and Tribal Peoples Convention 1989, supra n. 1.
25. See OAS Report on the Human Rights Situation of the Indigenous People of the Americas, 20 October 2000, OEA/Ser.L/V/II.108 Doc. 62. Constitutional reforms that strengthen the recognition of indigenous rights have been adopted in Panama (1971);
26. Brazil (1988);
27. Colombia (1991);
28. El Salvador (1992);
29. Guatemala (1992);
30. Mexico (1992);
31. Paraguay (1992);
32. Peru (1993);
33. Argentina (1994);
34. Bolivia (1994)
35. and Ecuador (1994).
36. See the web site of the Inter-American Indigenous Institute at: http://www.oas.org/main/main.asp?sLang=E&sLink=http://www.oas.org/ OASpage/Inter-American.System.asp.
37. Draft Declaration On The Rights Of Indigenous Peoples, Reprinted In the Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Forty-Sixth Session, 28 October 1994, E/ CN.4/Sub.2/1994/56 at 105-15.
38. Draft American Declaration on the Rights of Indigenous Peoples, supra n. 1.
39. There have been two indigenous rights treaties promulgated, both under the auspices of the International Labor Organization (ILO). The original treaty, Convention No. 107 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 328 UNTS 247, entered into force in 1959. It has been criticised as being too assimilationist. See Anaya, Indigenous Peoples in International Law, 2nd edn (Oxford: Oxford University Press, 2005) at 54-5;
40. Smith and van den Ander (eds), The Essentials of Human Rights (London: Hodder Arnold, 2005) at 175.
41. OC-4/1984, Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica IACtHR Series A 4 (1984) at para. 55.
42. Ibid.
43. Declaration. In this regard, the Inter-American Commission stated that 38 Article 1 (1), American Convention provides that there can be no discrimination on the basis of 'race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition'. See also Article II, American Declaration. In this regard, the Inter-American Commission stated that the notion of equality before the law set forth in the Declaration relates to the application of substantive rights and to the protection to be given to them in the case of acts by the State or others. Further, Article II of the American Declaration, while not prohibiting all distinctions in treatment in the enjoyment of protected rights and freedoms, requires at base that any permissible distinctions be based upon objective and reasonable justification, that they further a legitimate objective, regard being had to the principles which normally prevail in democratic societies, and that the means are reasonable and proportionate to the end sought.
44. Article II, American Declaration and Article 24, American Convention.
45. Article II, American Declaration;
46. Article 24, American Convention.
47. Yatama, supra n. 3 at para. 184.
48. Ibid. at para. 185. See Article 24, American Convention.
49. Yatama, supra n. 3 at para. 186.
50. Proposed Amendments of the Naturalization Provisions, supra n. 22 at para. 56.
51. Ibid.
52. Yakye Axa Indigenous Community, supra n. 12 at para. 51.
53. Ibid. at para. 63. Article XI(1), draft American Declaration on the Rights of Indigenous Peoples states in this regard that 'States shall adopt special measures, when necessary,' so that indigenous peoples can fully enjoy their human rights.
54. Mayagna (Sumo) Arras Tingni Community, supra n. 15 at para. 164.
55. See Articles 2 and 5, Indigenous and Tribal Peoples Convention stating that any action planned or taken by the State with respect to indigenous peoples, should be undertaken 'with the participation of the peoples concerned'.
56. Anaya, 'Indigenous Peoples' Participatory Rights In Relation to Decisions about Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples Have in Lands and Resources', (2005) 22 Arizona Journal of International and Comparative Law 7 at 16. 'The concept of consulting the indigenous communities that could be affected by the exploration or exploitation of natural resources includes establishing a genuine dialogue between both parties characterized by communication and understanding, mutual respect, good faith and the sincere with to reach a common accord.'
57. Ibid. citing the Report of the Committee Set Up to Examine the Representation Alleging Non-Observance by Ecuador of the Indigenous and Tribal Peoples Convention No. 169, 1989, made under Article 24 of the ILO Convention by the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL), 14 November 2001, GB.282/14/2 at para. 38.
58. Article 4(2), Indigenous and Tribal Peoples Convention. In its General Comment 23, the UN Human Rights Committee observed that 'The enjoyment of [indigenous] rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them'. UN Human Rights Committee, General Comment No. 23: The rights of minorities (Article 27), 8 April 1994, CCPR/C/21/Rev.1/Add.5;
59. 1-3 IHRR 1 (1993) at para. 7.
60. Case 12.053, Maya Indigenous Communities of the Toledo District v Belize Report No. 40/04 (2004);
61. 13 IHRR 553 (2006) at para. 142.
62. Ibid.
63. See Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 164.
64. Ibid.
65. Yakye Axa Indigenous Community, supra n. 12 at para. 151.
66. Aloeboetoe et al. v Suriname (Reparations) IACtHR Series C 15 (1993);
67. 1-2 IHRR 208 (1993) at paras 101-2.
68. See Pasqualucci, 'Victim Reparations in the Inter-American Human Rights System: A Critical Assessment of Current Practice and Procedure, (1996) 18 Michigan Journal of International Law 1 at 52-3.
69. Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 151. The Preamble to the American Declaration emphasises that 'since culture is the highest social and historical expression of that spiritual development, it is the duty of man to preserve, practice and foster culture by every means within his power'.
70. Aloeboetoe et al., supra n. 43 at para. 62.
71. Ibid. at para. 12.
72. Ibid. at para. 58. Under international law, rules of succession, which identify a decedent's beneficiaries, are generally determined under local law which would be national law. (Ibid. at para. 62.) Surinamese national law provides that a person's next of kin includes the legally recognised spouse, the children, and perhaps the decedent's dependent parents. (Ibid. at para. 62.) Moreover, Suriname law requires that marriages must be officially registered to be recognised by the State, and the State does not recognise polygamous relationships. (Ibid. at para. 17.) The Saramaca tribe, however, lived in a remote area and was not aware of national laws. Had they even known of and wished to comply with governmental requirements, there were no accessible facilities to officially register their marriages. (Ibid. at para. 58.)
73. Ibid. at para. 62.
74. Ibid. at paras 17 and 58.
75. Ibid. at para. 66.
76. Plan de Sánchez Massacre v Guatemala (Reparations) IACtHR Series C 116 (2004) at para. 49(12).
77. Ibid. at para. 49(13).
78. Ibid. at para. 49(16).
79. Ibid. at paras 6-9.
80. Article 1 (a), Indigenous and Tribal Peoples Convention. But see Article I(1), draft American Declaration on the Rights of Indigenous Peoples which states only that it 'applies to the indigenous peoples of the Americas'. The 1997 draft of the proposed American Declaration specified that it applied to 'indigenous peoples as well as peoples whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws and regulations.' Article 1(1), Proposed American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights on 26 February 1997.
81. Article 1(b), Indigenous and Tribal Peoples Convention. Article I(1), Draft American Declaration on the Rights of Indigenous Peoples.
82. Moiwana Community v Suriname IACtHR Series C 124 (2005) at para. 133.
83. Ibid. at paras 131-4.
84. Ibid.
85. Ibid. at para. 86.1. The N'djuka Community now numbers approximately 49,000 people. (Ibid. at para. 86.3.)
86. Ibid. at para. 86.1.
87. Ibid. at paras 86.1 and 86.4.
88. Ibid. at paras 86.19, 86.27 and 86.43.
89. Ibid. at paras 133-5.
90. See Pasqualucci, supra n. 8 at 107-13.
91. Moiwana Community, supra n. 57 at para. 43. The European Court of Human Rights also holds that there is a continuing violation of the right to property when land has not been returned to the victims (not a case of indigenous law).
92. See Loizidou v Turkey (Merits) 1996-VI 2210;
93. (1997) 23 EHRR 513 at para. 41. See also UN Human Rights Committee General Comment No. 24, General Comment on Issues Relating to Reservations Made Upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations Under Article 41 of the Covenant, 2 November 1994, CCPR/C/21/Rev.1/Add.6;
94. 2 IHRR 10 (1994) at para. 14.
95. Moiwana Community, supra n. 57 at paras 86.19, 86.27 and 86.43.
96. Ibid. at para. 34.
97. Ibid. at para. 45.
98. Ibid. at para. 108.
99. Plan de Sánchez Massacre, supra n. 51 at para. 42(5). Some human rights violations, such as the right to life, affect indigenous and non-indigenous alike. The long-term violence in Guatemala affected highland campesinos-both indigenous and non indigenous.
100. See Hannum, supra n. 11 at 323-43.
101. The prejudice, however, was directed again the indigenous. In its annual report on the Situation of Human Rights in Guatemala, the Commission stated that '[t]hose who retain characteristics that identify them as Mayas-language, community structure, dress, religious practices-are not only excluded from positions of power and prestige in the nation, but in general are scorned by politicians, conservative, liberals or marxists.' Inter-American Commission on Human Rights, Fourth Report on the Situation of Human Rights in Guatemala (1993) at 34 quoted in Hannum, ibid. at 335.
102. Plan de Sánchez Massacre, supra n. 51 at para. 42 (6).
103. Ibid. at para. 42(7).
104. Ibid. at para. 42(15).
105. Ibid. at para. 42(17).
106. Ibid.
107. Ibid. at para. 42(18).
108. Ibid.
109. Ibid. at para. 42 (19).
110. Ibid. at para. 4.
111. The Court was also barred from considering the petitioners' claim that Guatemala was responsible for a policy of genocide against the indigenous Mayan people, again due to jurisdictional limitations. (Ibid. at para. 51) The Inter-American Court has jurisdiction to interpret and apply the provisions of the American Convention. It does not have jurisdiction to render judgments on violations of other treaties, unless that treaty confers jurisdiction on the Inter-American Court. When interpreting provisions of the Convention the Inter-American Court can take into account the relevant provisions of other treaties, especially if those provisions are jus cogens. See Las Palmeras v Columbia IACtHR Series C 67 (2000);
112. 9 IHRR 61 (2002) at para. 32;
113. Bámaca-Velásquez v Guatemala IACtHR Series C 70 (2000);
114. 9 IHRR 130 (2002) at paras 208-9. The Convention on the Prevention and Punishment of the Crime of Genocide 1948 does not confer such jurisdiction on the Inter-American Court. In the Plan de Sanchez Case, the Inter-American Court stated that
115. [i]n relation to the theme of genocide that was referred to by the Commission, the Court has competence to declare violations of the American Convention of Human Rights and of other instruments in the Inter-American system of protection of human rights that confer jurisdiction on it. Nevertheless, facts such as those stated, that gravely affect the identity, values, and development of the members of the Maya Achi Peoples within a pattern of massacres, cause an aggravated impact that compromises the international responsibility of the State and which this Court will take into account when it resolves reparations. (Ibid.)
116. Ibid. at paras 36(3) and 36(4).
117. Article 3, American Convention. Article IV, proposed American Declaration on the Rights of Indigenous Peoples specifies that '[i]ndigenous peoples have the right to have their legal personality fully recognized by the States within their systems', supra n. 1.
118. Yakye Axa Indigenous Community, supra n. 12 at para. 83.
119. Ibid. at para. 50(17).
120. Ibid.
121. Ibid. at para. 78.
122. Ibid.
123. Ibid.
124. Ibid. at para. 82.
125. Ibid.
126. Article 21(1), American Convention. The Inter-American Court has defined 'property' as 'those material things that can be possessed, as well as any right which may be part of a person's patrimony; that concept includes all movables and nonmovables, corporeal and incorporeal elements and any other tangible object capable of having value'. (Ibid. at para. 137, quoting Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 144.)
127. Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 149. The Inter-American Commission made a similar observation in the Dann Sisters case against the United States. The Commission stated that 'continued utilization of traditional collective systems for the control and use of territory are in many instances essential to the individual and collective well-being and indeed the survival of indigenous peoples and that control over the land refers both to its capacity for providing the resources which sustain life, and to the geo graphic space necessary for the cultural and social reproduction of the group'.
128. (Mary and Carrie Dann, supra n. 4 at para. 128.)
129. Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 149. Article XXIII, American Declaration, however, provides that '[e]very person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home'.
130. For a discussion of cases involving collective indigenous rights before the Inter-American Commission, see generally Kreimer, 'Collective Rights of Indigenous Peoples in the Inter-American Human Rights System, Organization of American States, (2000) 94 American Society of International Law Proceedings 315.
131. Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 145
132. Ibid. at para. 149.
133. Yakye Axa Indigenous Community, supra n. 12 at para. 139, quoting Paraguayan Law No. 43/89 at Article 3.
134. See also Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 148: 'it is the opinion of this Court that Article 21 of the Convention protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property, which is also recognized by the Constitution of Nicaragua'.
135. Yakye Axa Indigenous Community, supra n. 12 at para. 137. Article 21, American Convention. Article 13, ILO Convention 169 and the domestic laws of some States also recognise the right to restitution of indigenous lands, providing that 'governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship'.
136. Yakye Axa Indigenous Community, supra n. 12 at para. 216, quoted in Yakye Axa Indigenous Community v Paraguay (Interpretation of Judgment), IACtHR Series C 142 (2005) at para. 23.
137. Yakye Axa Indigenous Community, supra n. 12 at para. 242, resolution 6. The Yakye Axa total approximately 90 families comprised of about 320 persons. (Ibid. at para. 50(10).)
138. Ibid. at paras 50.3 and 50.7.
139. Ibid. at para. 50.10.
140. Ibid. at para. 50.11.
141. Ibid.
142. Ibid. at paras 50.12 and 50.13.
143. Ibid. at para. 50.13.
144. Ibid.
145. Ibid. at para. 50.15.
146. Ibid. at para. 50.16.
147. Ibid. at para. 87.
148. Ibid. at para. 138, quoting the Paraguayan Constitution at Article 64.
149. Ibid. at para. 50.35.
150. Ibid. at para. 97.
151. Ibid. at para. 143. Anaya states that '[i]nasmuch as property is a human right, the fundamental norm of nondiscrimination requires recognition of the forms of property that arise from the traditional or customary land tenure of indigenous peoples, in addition to the property regimes created by the dominant society'.
152. Anaya, supra n. 21 at 142.
153. Yakye Axa Indigenous Community, ibid. at para. 146.
154. Ibid. at para. 144.
155. Ibid.
156. Article 21(1), American Convention.
157. Yakye Axa Indigenous Community, supra n. 12 at para. 145.
158. Ibid.
159. Ibid.
160. The Inter-American Court cited its earlier jurisprudence in Ricardo Canese v Paraguay IACtHR Series C 111 (2004) at para. 96;
161. Herrera Ulloa v Costa Rica IACtHR Series C 107 (2004) at para. 127 (both cases addressing the restrictions within the context of freedom of expression.)
162. Yakye Axa Indigenous Community, supra n. 12 at para. 145.
163. Ibid. at para. 146.
164. Ibid. at para. 147.
165. Ibid. at para. 148.
166. Article 21(1), American Convention.
167. Yakye Axa Indigenous Community, supra n. 12 at para. 149.
168. Yakye Axa Indigenous Community (Interpretation of Judgment), supra n. 99 at para. 22.
169. Yakye Axa Indigenous Community, supra n. 12 at paras 151 and 217.
170. Article 16(4), Indigenous and Tribal Peoples Convention quoted in Yakye Axa Indigenous Community supra n. 12 at para. 150. But see Article XII(2), draft Declaration on the Rights of Indigenous Peoples which states only that 'Indigenous peoples have the right to restitution of the property that is part of that heritage of which they may be dispossessed, or, when restitution is not possible, to fair and equitable compensation, supra n. 1. The parties have not agreed on this principle or the wording of the principle as evidenced by the brackets surrounding the Article in the draft.
171. Yakye Axa Indigenous Community, supra n. 12 at para. 149.
172. Mary and Carrie Dann, supra n. 4 at paras 1-2. The petitioners also claimed violations of their right to equality before the law, religious freedom, right to a family, right to work and right to a fair trial. (Ibid. at para. 35.)
173. Ibid. at paras 85 and 112.
174. Ibid. at paras 3 and 82.
175. Ibid. at paras 85 and 112.
176. Ibid. at paras 3 and 85.
177. A complainant may only pursue a case before the Inter-American human rights system after they have exhausted all domestic remedies, Article 46(1)(a), American Convention.
178. Mary and Carrie Dann, supra n. 4 at para. 142.
179. Ibid. at paras 140-2.
180. Ibid. at para. 142.
181. Ibid. at para. 143.
182. Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 151.
183. Yakye Axa Indigenous Community, supra n. 12 at para. 143.
184. See Amnesty International Report on 'Brazil, "Foreigners in Our Own Country" Indigenous Peoples in Brazil', 30 March 2005, available at: http://web.amnesty.org/library/Index/ENGAMR190022005?openof=ENG-BRA.
185. Mayagna (Sumo) Awas Tingnfsfsi Community, supra n. 15 at para. 173, resolution 4.
186. Ibid. at para. 103.
187. Ibid. at paras 103(d) and (e).
188. Ibid. at para. 103(g).
189. Ibid. at para. 116, quoting the Nicaraguan Constitution at Article 5.
190. Ibid. at para. 173, resolution 4.
191. Yakye Axa Indigenous Community, supra n. 12 at para. 215;
192. Yakye Axa Indigenous Community (Interpretation of Judgment), supra n. 99 at para. 22.
193. Yakye Axa Indigenous Community (Interpretation of Judgment), ibid. at para. 23.
194. Yakye Axa Indigenous Community, supra n. 12 at para. 216.
195. Yakye Axa Indigenous Community (Interpretation of Judgment), supra n. 99 at para. 18.
196. See Moiwana v Suriname (Interpretation of Judgment) IACtHR Series C 145 (2005) at para. 19.
197. Ibid.
198. Maya Indigenous Communities of the Toledo District, supra n. 38 at para. 117.
199. Yakye Axa Indigenous Community, supra n. 12 at para. 138. Article 29, American Convention provides that 'no provision of this Convention shall be interpreted as: B) restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State party or by virtue of another convention to which one of the said States is a party'.
200. Article 36, Nicaraguan Law No. 28 which regulates the Autonomy Statute of the Regions of the Atlantic Coast of Nicaragua, 30 October 1987, published in La Gaceta No. 238 (the Official Gazette of the Republic of Nicaragua). This law states that: 'Communal property are the lands, waters, and forests that have traditionally belonged to the Communities of the Atlantic Coast, and they are subject to the following provisions: 1. Communal lands are inalienable; they cannot be donated, sold, encumbered nor taxed, and they are inextinguishable; and 2. The inhabitants of the Communities have the right to cultivate plots on communal property and to the usufruct of goods obtained from the work carried out'. See Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 150.
201. Yakye Axa Indigenous Community, supra n. 12 at para. 138, quoting Article 64, Paraguayan Constitution.
202. Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 150.
203. Yakye Axa Indigenous Community, supra n. 12 at para. 138, quoting Article 64, Paraguayan Constitution.
204. Moiwana Community, supra n. 57 at para. 86.5.
205. Ibid. at para. 130.
206. Ibid.
207. Ibid. at para. 86.6.
208. Ibid. at para. 199(2)(f).
209. Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 153.
210. Maya Indigenous Communities of the Toledo District, supra n. 38.
211. OAS Report on the Human Rights Situation of the Indigenous People of the Americas, 20 October 2000, OEA/Ser.L/V/II.108 Doc. 62 at 314, citing the United Nations Centre on Transnational Corporations, Transnational Investments and Operations on the Lands of Indigenous Peoples, 18 July 1991, E/CN.4/Sub.2/1991 at 22, para. 6.
212. See Sarayaku Indigenous Community (Provisional Measures), supra n. 2 at para. 2.
213. For an historic and contemporary treatment of the development of indigenous land rights see Anaya and Williams, 'The Protection of Indigenous Peoples' Rights Over Lands and Natural Resources Under the Inter-American Human Rights System', (2001) 14 Harvard Human Rights Journal 33.
214. Yakye Axa Indigenous Community, supra n. 12 at para. 167.
215. See generally Manus, 'Sovereignty, Self-Determination, and Environment-Based Cultures: The Emerging Voice of Indigenous Peoples in International Law', (2005) 23 Wisconsin International Law Journal 553.
216. Yakye Axa Indigenous Community, ibid. at para. 135 [translation by the author].
217. Plan de Sánchez Massacre (Reparations), supra n. 51 at para. 85.
218. Article 15, Indigenous and Tribal Peoples Convention. Article 15(2) further provides that:
219. In cases in which the State retains the ownership of mineral or sub-sur face resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.
220. Article 23(1)(a), American Convention.
221. Article 23(1), American Convention. Yatama, supra n. 13 at para. 195. Article 23(2), American Convention does allow the State to regulate political rights based on 'age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings'.
222. Yatama, supra n. 13 at para. 223.
223. Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 117, quoting Article 89, Nicaraguan Constitution.
224. Ibid. at para. 118, quoting Article 180, Nicaraguan Constitution.
225. Yatama, supra n. 13 at para. 124(11). YATAMA stands for Yapti Tasba Nanih Aslatakanka which means 'the organization of the Peoples of the Mother Earth'. (Ibid. at para. 124(9).)
226. Ibid. at para. 124(11).
227. Ibid. at paras 124(13)-(16).
228. Ibid. at paras 124(24) and 221.
229. Ibid. at para. 222.
230. Ibid.
231. Ibid. at paras 173 and 176.
232. Ibid. at para. 223.
233. Ibid. at paras 218-9.
234. Ibid. at para. 218. Article 6(b), ILO Convention 169 provides that Governments shall 'establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them'.
235. Yatama, supra n. 13 at para. 226.
236. Ibid. at para. 197.
237. Ibid. at para. 226.
238. Ibid. at para. 227.
239. Ibid.
240. Ibid. at paras 210 and 256.
241. Ibid. at para. 210.
242. Ibid. at para. 257.
243. Ibid.
244. citing Ricardo Canese, supra n. 121 at para. 148.
245. See also Article 27, Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331.
246. Article 12, American Convention.
247. Plan de Sanchez Massacre v Guatemala (Merits) IACtHR Series C 105 (2004) at resolution 3;
248. Bámaca-Velásquez v Guatemala, supra n. 81 at paras 161 and 165.
249. Plan de Sánchez Massacre (Reparations), supra n. 51 at para. 85.
250. Bámaca-Velásquez v Guatemala (Reparations) IACtHR Series C 91 (2002) at para. 82. Bámaca-Velásquez had been disappeared by the Guatemalan military. (Ibid. at para. 29A.)
251. Ibid. at para. 81.
252. Plan de Sánchez Massacre (Merits), supra n. 200 at Resolution 3, holding that Guatemala had violated Articles 12(2) and 12(3), American Convention.
253. Plan de Sánchez Massacre (Reparations), supra n. 51 at para. 38(d) (testimony of expert witness Augusto Willemsen-Díaz, attorney and international expert on the subject of the rights of indigenous peoples).
254. Plan de Sánchez Massacre (Merits), supra n. 200 at para. 42(30).
255. Ibid. at para. 36(4). The State also accepted responsibility for violating the survivors' freedom of expression, since not only were the survivors prevented from manifesting their religious beliefs, but they were also prevented from denouncing or discussing the massacre for more than 10 years after it took place. (Ibid. at para. 87(e).)
256. Article 4(1), American Convention.
257. Yakye Axa Indigenous Community, supra n. 12 at para. 161.
258. Ibid. at para. 161 citing 'Instituto de Reeducací on del Menor'v Paraguay IACtHR Series C 112 (2004) at para. 156.
259. Yakye Axa Indigenous Community, ibid. at para. 162.
260. Ibid.
261. Ibid.
262. Ibid. at paras 168 and 176.
263. Ibid. at paras 50.8 and 164.
264. Ibid. at paras 164-8.
265. Ibid. at para 161.
266. Article 2, American Convention.
267. Baena Ricardo et al. v Panama IACtHR Series C 72 (2001);
268. 10 IHRR 130 (2003) at para. 180,
269. quoted in Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 136.
270. Ibid. at para. 135.
271. Ibid. at para. 122.
272. Ibid.
273. Ibid. at paras 123-4.
274. Ibid. at paras 138 and 164.
275. Article 25(1), American Convention.
276. Constitutional Court v Peru IACtHR Series C 71 (2001);
277. 9 IHRR 1003 (2002) at para. 89;
278. OC-9/1987, Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and (8) American Convention on Human Rights) IACtHR Series A 9 (1987) at para. 23, cited in Mayagna (Sumo) Arras Tingni Community, supra n. 15 at para. 111.
279. Article 12, Indigenous and Tribal Peoples Convention.
280. Yatama, supra n. 13 at para. 176.
281. Ibid. at paras 171 and 173. A witness testified that the seven members of the Supreme Electoral Council were from the traditional electoral parties and none of them were indigenous. (Ibid. at para. 110(a).)
282. Ibid. at para. 175.
283. Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 114.
284. Yakye Axa Indigenous Community, supra n. 12 at para. 65.
285. Ibid. at para. 61,
286. quoting Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 113.
287. Yakye Axa Indigenous Community, supra n. 12 at para. 65.
288. Ibid.
289. Ibid. at paras 67-73.
290. Ibid. at para. 85.
291. Ibid. at para. 86.
292. Ibid.
293. Ibid. at para. 88.
294. Ibid. at para. 89.
295. Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 131.
296. Ibid. at para. 134.
297. Ibid. at para. 131.
298. Ibid. at para. 133.
299. Ibid. at para. 137.
300. Plan de Sánchez Massacre (Merits), supra n. 200 at para. 98.
301. Ibid. at para. 95.
302. Ibid. at para. 94.
303. Ibid.
304. Article 63(2), American Convention. The American Convention authorises the Commission in 'cases of extreme gravity and urgency' to circumvent its time-consuming procedures and immediately request that the Inter-American Court of Human Rights adopt provisional measures.
305. Article 25, Rules of Procedure of the Inter-American Commission of Human Rights, in Basic Documents at 150. Although neither the American Convention nor the Statute of the Inter-American Commission authorises the Commission to request that a State adopt precautionary measures, the Court holds that there is a presumption that Court-ordered provisional measures are necessary when the Commission has previously ordered precautionary measures on its own authority that were not effective and another threatening event has subsequently occurred. Digna Ochoa y Plácido et al. v Mexico (Provisional Measures) IACtHR Series E (1999) at para. 6.
306. Plan de Sánchez Massacre (Reparations), supra n. 51 at paras 23-5.
307. Kankuamo Indigenous Peoples v Columbia (Provisional Measures) IACtHR Series E (2004) at para. 2.
308. Ibid. at para. 2(f).
309. Ibid. at paras 2(g) and 2(h).
310. Ibid. at para. 11.
311. Ibid. at Resolutions 1, 3 and 4.
312. Sarayaku Indigenous Community v Ecuador (Provisional Measures) IACtHR Series E (2004) at para. 2(a).
313. Ibid.
314. Ibid. at para. 2.
315. Ibid. at para. 2(d).
316. Ibid. at para. 2(t). The Inter-American Commission previously had ordered the State to take precautionary measures to protect the indigenous community, but to no avail. Ibid. at para. 2(m).
317. Maya Indigenous Communities of the Toledo District, supra n. 38 at para. 8. According to the Commission's Annual Reports for the years 2000-2005, it has issued precautionary measures to protect indigenous communities or members of indigenous communities on 15 occasions.
318. Annual Report of the Inter-American Commission of Human Rights 2004, Precautionary Measures granted by the IACHR in 2004 (Brazil), 23 February 2005, OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at para. 13.
319. Rainforest Foundation, 'Victory! Brazil's President Ratifies Indigenous Territory', 19 April 2005, available at: www.rainforestfoundation.org/ brazil_victory.
320. Mary and Carrie Dann, supra n. 4 at paras 14, 16 and 23.
321. Ibid. at paras 14-25.
322. Ibid. at para. 14.
323. The Western Shoshone had grazed their cattle on that land for generations. (Ibid.)
324. Ibid. at para. 18.
325. Ibid. at para. 22. Likewise, the United Nations Committee for the Elimination of Racial Discrimination (CERD) issued a decision to the United States under its Early Warning and Urgent Action Procedure urging the United States to adopt specific measures to freeze, stop and desist from acts that interfered with Western Shoshone land rights. See CERD, Early Warning and Urgent Action, Decision 1(68), United States of America, 7 March 2006, CERD/C/USA/DEC/1.
326. Mary and Carrie Dann, ibid. at para. 23.
327. Ibid. As reported in July 2004, President George W Bush signed HR884/PL 108-270 into law which distributes 15 cents per acre to the Western Shoshone Nation for the extinguishment of their ancestral lands. According to the article, 'the land is marked for gold extraction, nuclear testing and to expand Yucca Mountain for a nuclear waste repository.'
328. See Hunter, 'Dann Sisters Hold Firm as Western Shoshone HR884 Turns Public Law 108-270', available at: http://www.thinkandask.com/news/ shoshone.html.
329. Article 63(1), American Convention.
330. See Bámaca-Velásquez, supra n. 81 at para. 93 (a). '"Military intelligence" has used slander as a strategy to obstruct the exercise of justice, by diminishing the credibility of the victims of human rights violations and intimidating those in charge of the criminal prosecution' (expert testimony of Helen Mack).
331. See also Plan de Sánchez Massacre (Reparations), supra n. 51 at para. 49(15), stating that the survivors of the massacre were stigmatised as being guerillas and were, thus, blamed for it, which forced them to remain silent about what had happened. (Ibid. at para. 87(c).)
332. Plan de Sánchez Massacre, supra n. 200 at para. 34.
333. Ibid. at para. 38.
334. Ibid. at para. 125, resolutions 2 and 3. The Court also ordered the State to translate the American Convention, and the two Inter-American Court judgments into the Maya Achí language. The Court also obligated the State to publish relevant sections of its judgment on the merits in both Spanish and Maya Achí. (Ibid. at para. 125, resolutions 4 and 5.)
335. Moore, 'Guatemalan Community's Search for Justice Continues', 1 March 2006, available at: http://upsidedownworld.org/main/content/view/215/1/.
336. Ibid.
337. Article 7(2), Indigenous and Tribal Peoples Convention.
338. Plan de Sánchez Massacre (Reparations), supra n. 51 at para. 86.
339. Ibid. at Resolutions 6-9.
340. Aloeboetoe et al. (Reparations), supra n. 43 at Resolution 4.
341. Mayagna (Sumo) Awas Tingni Community, supra n. 15 at para. 6.
342. Ibid.
343. Plan de Sánchez Massacre (Merits), supra n. 200 at paras 96-7.
344. Yatama, supra n. 13 at paras 218-9.
345. Yakye Axa Indigenous Community, supra n. 12 at para. 148.