Atelier : Peuples autochtones : un nouveau modèle de développement ?

(jeudi 23 mai 2013)

The Development of an International Corpus Juris by the
Inter-American Court of Human Rights Regarding
Collective Rights: the Case of Indigenous Peoples.

Humberto Fernando CANTÚ RIVERA, Ph.D. candidate at Université Panthéon-Assas

Paris II (France); Manager of the Corporate Responsibility and Human Rights Project of
the Commission of Human Rights of the State of Nuevo Leon (Mexico); former Intern at
the Special Procedures Branch of the UN Office of the High Commissioner for Human
Rights (Switzerland). CONACYT Scholar.

I. Introduction.

International human rights law has followed two different avenues: one that has led to
fragmentation,1 and another one leading to the universal application of standards, mainly in the
field of regional case law, regardless of its origin. This situation has repeatedly appeared
basically before the two already well-established regional human rights courts (the European
and the Inter-American Human Rights Systems), in fields such as enforced disappearance or
torture. However, one area in which there has clearly been a one-sided development has been
that of indigenous

1
A situation that can be seen in the numerous international treaties, conventions and declarations that seek to
protect a specific group or minority.

1
 peoples,2 in which the Inter-American Court of Human Rights has been able to develop at a
large scale the main corpus juris in the field.3

One of the remarkable features of Inter-American case law is that while treating indigenous
peoples’ rights, it has identified in a very pedagogic way the different sets of rights that
individuals are entitled to, depending on their individual or collective nature.4 As well, the
creation of the mandate on Indigenous Peoples’ Rights by the Inter-American Commission of
Human Rights in 1990, being the first mandate created by such organism, attests as to the
importance and development that this particular group of rights –and this minority group, as
well- has for the regional organism. The Inter-American Commission of Human Rights has
defined collective rights as those rights that refer to the legal conditions of organizations or
groups of persons and to which they are entitled to.5 Therefore, using the case law on
indigenous peoples provides an excellent example to assess the way in which the Inter-
American system has linked them to its notion of collective rights.

Through this note, we will review the main developments in the field of indigenous peoples’
rights before the Inter-American System of Human Rights, in order to assess the evolution of
the concept of collective rights before the regional tribunal and the possibilities of application
outside the American continent.

II. Indigenous peoples and collective rights before the Inter-American Commission of
Human Rights.

Starting with its first case in 1970, the Inter-American Commission of Human Rights
(hereinafter IACHR) considered the existence of certain human rights that could only be
attributed to and enjoyed by a collectivity or a group. In case 1690 brought by the Guahibos
Community against Colombia, the population denounced persecution and torture to the
indigenous population of the

2
Cienfuegos Salgado, for example, argues that indigenous peoples are the best example of what can be considered
collective rights, because due to their particular demographic composition and situation before the State –that is,
as a minority group-, they have been able to demand being subjected to differentiated rights, which find their
justification in the exceptional political, economic, social and cultural conditions in which such communities
persist. See Cienfuegos Salgado, David, “El futuro de los derechos y de los grupos: A manera de presentación” in
Cienfuegos, David and Cordero Pinto, Guadalupe (Coords.), Estudios sobre derechos individuales y de grupo,
Universidad Autónoma de Chiapas, Mexico, 2012, pp. 9, 93.
3
According to Burgorgue-Larsen, “…the Inter-American Court… is today the only international court to
recognize that indigenous peoples per se have certain rights. It did so by gradually and patiently building up a true
indigenous corpus juris, and succeeded in reconciling universality and diversity…” See Burgorgue-Larsen,
Laurence and Úbeda de Torres, Amaya, The Inter-American Court of Human Rights: Case Law and Commentary,
Oxford, Oxford University Press, 2011, p. 503.
4
“Although the American Convention… generally sets forth only individual rights and does not directly address
the corresponding rights of peoples, the Inter-American Court of Human Rights and the Inter-American
Commission on Human Rights have developed a progressive case law on indigenous peoples’ rights.” Vid.
Pasqualucci, Jo M., “The Evolution of International Indigenous Rights in the Inter-American Human Rights
System”, Human Rights Law Review, Vol. 6, No. 2, 2006, p. 283.
5
IACHR, La situación de los derechos humanos de los indígenas en las Américas, OEA/Ser.L/VII.108 (October
2000)

2
 Planas region with the intention of taking their communal lands, in what the Commission
deemed as an attempt to violate the collective human rights of the community.6

This trend continued before the Commission in case 1802, which saw the Aché community7 file
a complaint against Paraguay for what they considered an attempt to commit genocide against
that indigenous group, in order to gain possession of their collective land and destroy their
cultural and religious practices. The Commission, while considering the arguments of the case,
resolved that it was not a policy of genocide, but rather a practice of assimilation which was
threatening the Aché community.

Even though there were several important cases that shared similar characteristics, the very
first case which really did make an important impact regarding collective indigenous rights was
that of the Yanomami8 against Brazil (case 7615 of 1985). This case was brought under the
premise that the activities of the State and other powerful economic actors in the lands that
were inhabited by the community were harming the collective life and rights of the indigenous
group, which would bring about the rupture of the social organization of the Yanomami, as well
as the disintegration and destruction of the group by way of assimilation9 in violation of the
aims of the American Convention on Human Rights and other regional instruments. The
private actors were looking into the economic development of the Amazonian region, including
the construction of a highway and mining activities to obtain the rich natural resources in the
area. Under international pressure, the State decided to delimitate the territory inhabited by the
indigenous group, and to make efforts to safeguard their individual and collective rights,
including the right to self-determination and to the preservation of their cultural identity. Without
submitting the case to the Inter-American Court of Human Rights, the Commission
recommended that the State continue protecting the integrity of the Yanomami, including in its
health, education and social domains, in order to protect their life and health.

Many other cases have been filed before the Commission, arguing that the acts or omissions
of the State endanger or harm the collective rights of the indigenous populations of the
Americas. This situation has been acknowledged by the Commission not just in the cases
brought before it, but also in some of the country reports it has released. For example, in its
report on the situation of the Miskito group in Nicaragua of 1983, the Commission determined
that even if at that given moment in time there was no recognition or consensus under
international law regarding the political autonomy or self-determination of the indigenous
groups of that region, there was a recognition of the existence of a legal protection regarding
the language, religion and those aspects related to the preservation of the cultural identity of a
given indigenous group, as well as the land that they occupied for their activities and
livelihood.10

6
IACHR Case 1690 (1970), Comunidades Guahibo (Colombia)
7
IACHR Case 1802 (1973), Pueblo Aché (Paraguay)
8
IACHR Case 7615 (1985), Pueblo Yanomami (Brazil)
9
The right of access to land that is common between Latin-American indigenous communities requires a sort of
membership –an individual identification before a collective group-, which is conditioned to the participation of
the individual in community services, which includes social, cultural, economic or religious activities that tend to
reaffirm the social identification of the group. See Rodríguez Saldaña, Roberto, “Los pueblos indígenas y el uso
de sus recursos naturales”, in Cienfuegos Salgado, David and Cordero Pinto, Guadalupe, Estudios…, op. cit., p.
271.
10
IACHR, Report on the Human Rights Situation of the Nicaraguan People of Miskito Origin, OEA/Ser.L/V/II.62
(November 1983). Cienfuegos and Cordero argue that the justification for a differentiated regime of rights lies in
the exceptional conditions of a political, economic, social and cultural nature in which indigenous communities

3
 In its report on the human rights situation in Ecuador of 1997, the Commission again stated that some rights that
are of a collective nature can only be enjoyed through its collective protection, regardless of its mutual conception
as an individual human right. In this case, the Commission recognized that natural resources in general, and the
geographic space for the cultural and social reproduction of a group have to be interpreted and considered as
collective human rights, in order to ensure its enjoyment by that particular group that claims to be entitled to
them.11 The Commission has had an important an active role in developing the concept of collective human rights
under international law. However, it is the Inter-American Court who has developed this concept throughout its
jurisprudence and given it its current status under international human rights law, a situation that will be analyzed
in the following chapter.

III. Collective rights before the Inter-American Court: a true jurisprudential development.

Having had at this moment twenty cases12 dealing with the violation of the human rights of
indigenous peoples, the Inter-American Court is by far the most experienced tribunal to have
dealt with this particular group of rights, and therefore, it is its case law which has aided the
development of the international corpus juris that now exists in this subject, and that has
helped to establish important concepts that are now mandatory under international law.13

One of the initial landmark cases in which the Inter-American Court of Human Rights set
standards regarding communal property as a collective right was in Mayagna (Sumo) Awas
Tingni against Nicaragua.14 In this case, related to the territorial limits and demarcation of an
indigenous territory, the Court stated that “Among indigenous peoples… ownership of the land
is not centered on an individual but rather on the group and its community.”15 This phrase,
along with the analysis made by the Court regarding the need to distinguish between the
collective and individual meaning and implication of rights, started a trend that has developed
an interesting case law, and that has driven some rights to be considered as international legal
principles.

For example, in Yakye Axa16 and Sawhoyamaxa17, two cases brought against Paraguay that
were resolved in consecutive years, and having similar arguments by the plaintiffs (both had to
deal with the long process required to ascertain their territorial recognition, which negatively
impacted their right to property and ownership), the Court stated that the cultural integrity of
indigenous populations should and could be protected through the guarantee of their right to
communal ownership and of the natural resources located within the territory. This line of
reasoning exposed therefore the interdependence and interrelation between different human

live. See Cienfuegos Salgado, David and Cordero Pinto, Guadalupe, “A propósito de los derechos políticos de los
pueblos indígenas en México”, Estudios…, op. cit., p. 93.
11
IACHR, Report on the Human Rights Situation in Ecuador, OEA/Ser.L/V/II.96 (April 1997)
12
Of those twenty cases, Guatemala has had 5 (Massacres of Rio Negro; Chitay Nech; Tiu Tojín; Massacre Plan
de Sánchez and Bámaca Velázquez), Surinam (Aloeboetoe; Moiwana; Saramaka) and Paraguay (Yakye Axa;
Sawhoyamaxa; Xákmok Kasek) each have had 3, Mexico (Rosendo Cantú; Fernández Ortega) and Nicaragua
(Mayagna (Sumo) Awas Tingni; Yatama) have had two, and Honduras (López Alvarez), Colombia (Escué Zapata),
Peru (Cayara) and Ecuador (Kichwa de Sarayaku) have each had one case.
13
Some of the most remarkable principles that the Court has now established as paradigms of international law
are non-discrimination and equal protection of the law, the participation of indigenous peoples in decisions
affecting them (which is the principle underlying the right to free, prior and informed consultation and consent),
the observance of indigenous customary law and cultural values, the application of indigenous case law to tribal
and other peoples, and the continuing effects in the violation of indigenous rights.
14
This case was the first of its kind before an international court, and highlighted the difficulties in the
enforcement of indigenous peoples’ rights.
15
Mayagna (Sumo) Awas Tingni Vs. Nicaragua, Merits, Reparations and Costs, par. 149 (August 31, 2001)
16
Comunidad indígena Yakye Axa Vs. Paraguay, Merits, Reparations and Costs (June 17, 2005)
17
Comunidad indígena Sawhoyamaxa Vs. Paraguay, Merits, Reparations and Costs (March 29, 2006)

4
 rights, for the cultural identity of the Yakye Axa and the Sawhoyamaxa communities was
dependent on and could only

be protected through the safeguarding of their communal ownership of the land,18 which was
also linked to the right to free, prior and informed consent in relation to any project that could
have any type of effect over their ancestral lands.

It must be noted, however, that both cases expanded and refined the parameters established
by the Court regarding indigenous rights. In Yakye Axa, the Court expanded the decision in
Mayagna (Sumo) Awas Tingni regarding indigenous communal land rights, by using a
proportionality test between communal land rights and individual land rights. In its analysis, the
Court decided that whenever such situation presented itself, the preservation of the cultural
identity of a group -a collective right in itself- would have to be favored in spite of the restriction
of the alleged individual right to property.19 However, Sawhoyamaxa saw an exercise of
temporal limitation of the right to communal property by the Court: the representative of
Paraguay before the Court argued that whenever an indigenous group claimed their right to
ancestral lands the whole country would have to be returned to the indigenous communities,
due to its indigenous past before the colonization. The Court, taking this into consideration,
stated that a temporal limitation existed in relation to the right of indigenous peoples to regain
their lands, depending on the spiritual and material relationship that they had with their
ancestral territory.20

The Court has noted throughout its case law that the cultural identity of indigenous peoples is
directly linked to their conception of property and land, which is a part of their spirituality and in
connection to which all of their customs and traditions are passed on.21 These characteristics
therefore can only be protected as a collective right for it is only as a group that their cultural
integrity and life can be transmitted, and therefore the survival of the community as such
depends on the protection of their cultural heritage and sacred lands, which binds them as a
group.

Another right that has a collective nature and that was advanced through the case law of the
Inter-American Court of Human Rights is that on free, prior and informed consent. In
Sarayaku,22 one of the last cases in which a judgment on the merits was passed, a clear
reprise of all the previous developments of the Court in the topic of indigenous peoples’ rights
was done, confirming its previous case law that established the right to communal ownership
and in relation to it, the right and necessity to preserve the cultural identity of the aboriginal
groups of the Americas. The Court specifically stated that there is a common tradition between
the indigenous peoples to have a communal, collective ownership over the lands that are
essential for the development of their social, cultural and economic life, far distant from the
individual property regime that is also recognized by international human rights law. From this
collective ownership of the land derives a cultural link that has to be guaranteed as well, since

18
Comunidad indígena Yakye Axa Vs. Paraguay, par. 137.
19
Ibid., par. 148.
20
Comunidad indígena Sawhoyamaxa Vs. Paraguay, par. 131.
21
“…the Inter-American Court has recognised that one aspect of the right of indigenous people to their ancestral
lands is based on the distinct relationship that they have to those lands. The Court’s position that the recognition
of indigenous ancestral property rights is important to the survival of cultural diversity in a democratic society
would support a permissible restriction on private property ‘to the interest of society’.” See Pasqualucci, Jo M.,
op. cit., pp. 296, 300.
22
Pueblo Indígena Kichwa de Sarayaku Vs. Ecuador, Merits and Reparations, par. 143 (June 27, 2012)

5
 the beliefs of the indigenous peoples, as well as their culture, is strictly attached to their
lands.23

A context that has been frequent in the cases involving indigenous peoples –and which was
also present in Sarayaku- is that of extractive industries. A recurring situation in which
development and extractive projects have forced indigenous communities to be relocated, or
even to their cultural disintegration or assimilation, forced the development of the right to free,
prior and informed consultation and consent, originally expressed in ILO Convention 169. This
international treaty was interpreted by the Inter-American Court through its case law, which
was then directly linked to the right to cultural identity of the indigenous communities. In this
sense, the Court in Sarayaku explained that “The recognition of the right to consultation of the
indigenous and tribal peoples and communities has its foundations, among others, in the
respect to their right to have their own traditions and cultural identity…”24

The Court went on to assert that the obligation to undertake a consultation is not just of a
conventional nature, but is also a general principle of international law,25 which no doubt has
been primarily advanced by the Inter-American System. As explained before, the Court has
acknowledged the existence of a set of rights that can have either an individual or a collective
nature, but depending on the situation in hand their protection will only be achieved if
considered as a collective right. As well, it is worth noting that the Court reaffirmed its belief on
the interrelation between the right to cultural identity of indigenous peoples with their right to
communal ownership of their land and resources, and that both of them can only be protected
if their right to free, prior and informed consultation and consent is also safeguarded.

4. The next steps for indigenous rights’ protection in the Inter-American System?

The use of other international instruments by the Inter-American Court of Human Rights will
probably help expand the definition and particularization of the human rights it seeks to
protect.26 Taking as an example the cases involving the extractive industries, it is particularly
important that the Court looks into the universal system as it has done before, so that it can
take advantage of recent developments in this area. In the United Nations system, the Guiding

23
Pueblo Indígena Kichwa de Sarayaku Vs. Ecuador, par. 143. This argument was also used by the Court in
previous cases, such as Mayagna (Sumo) Awas Tingni Vs. Nicaragua, (par. 149) or Xákmok Kásek Vs. Paraguay,
Merits, Reparations and Costs, pars. 85-87 (August 24, 2010).
24
Pueblo Indígena Kichwa de Sarayaku Vs. Ecuador, par. 159.
25
Ibid., par. 164.
26
It must be recalled that the Court already addressed this situation in its opinions “Otros Tratados” (See Corte
IDH. "Otros Tratados" Objeto de la Función Consultiva de la Corte (art. 64 Convención Americana sobre
Derechos Humanos). Opinión Consultiva OC-1/82 del 24 de septiembre de 1982. Serie A No. 1) and “Condición
Jurídica y Derechos Humanos del Niño” (Corte IDH. Condición Jurídica y Derechos Humanos del Niño. Opinión
Consultiva OC-17/02 del 28 de agosto de 2002. Serie A No. 17), while making reference to case law of other
human rights systems. In Sarayaku, the Court affirmed that “it has considered that it could “interpret a treaty as
long as the human rights protection of a State party of the Inter-American system is directly involved”, even if
such instrument does not derive from the same regional system of protection.” Pueblo Indígena Kichwa de
Sarayaku Vs. Ecuador, par. 161. In the case of cultural identity, for example, the Court has linked its
interpretation to other developments by the UN Committee on Economic, Social and Cultural Rights (General
Comment 21 on the right of everyone to take part in cultural life), the UN Committee on the Elimination of Racial
Discrimination (General Recommendation 23 on the rights of indigenous peoples), as well as to the case law on
cultural identity of minorities made by the European Court of Human Rights in Chapman v. United Kingdom and
Gorzelik and others v. Poland.

6
 Principles on Business and Human Rights27 could probably constitute a toolkit that would help
it to better address cases involving indigenous communities and their relocation.

Even if is certain that the Court has defined throughout its case law the characteristics and
requirements that for example the right to free, prior and informed consultation and consent
has,

the Guiding Principles could offer new parameters to which companies and States involved in
extractive operations could measure up to, in order to better respect the livelihood and life of
indigenous communities and to avoid infringing on their human rights,28 taking advantage of
their universal recognition and publicity.

The development of an important part of a branch of international law through its case law
attests to the universality of human rights. The development of parameters and standards to
which the States –and even non-State actors- have to measure up is also a clear indication of
the progressive development and advancement of international law, as well as of the need of a
collaborative approach between the international and regional systems of justice. In the case of
indigenous rights, the African system provides an important opportunity to continue this
developing trend that the Inter-American Court of Human Rights helped established as
international legal principles; paradigms that protect the livelihoods and culture of those
minority groups that persist through the era of globalization.

27
United Nations, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect,
Respect and Remedy’ Framework, A/HRC/RES/17/4 (June 06, 2011)
28
Particularly the first report of the UN Working Group on the issue of human rights and transnational
corporations and other business enterprises will be useful in this regard, for it will focus on indigenous peoples
and the extractive industries, with a particular emphasis on the effect of the implementation of the Guiding
Principles in extractive projects, possibly on the same line that the UN Special Rapporteur on the rights of
indigenous peoples, James Anaya, did in his report of 2011. See United Nations, Extractive industries operating
within or near indigenous territories, Report of the Special Rapporteur on the rights of indigenous peoples,
A/HRC/18/35.