I. Introduction
Indigenous peoples throughout history have been the object of continuous aggression: from the conquest and subsequent invasion of their territories by European colonistsFootnote 1 to the present-day abuses committed by some transnational corporations that prioritize economic benefits over the respect of these peoples’ rights.Footnote 2 In the contemporary world, they have been deprived of large plots of land and of access to the natural resources they need to sustain their livesFootnote 3 and, thus, their cohesion as distinct communities has been damaged and the integrity of their cultures undermined.Footnote 4 Their territories are currently threatened by unstoppable activities carried out by extractive companiesFootnote 5 or development projects that sweep away the environment and indigenous ways of life. These processes have led to a number of social, legal and political conflicts, many of which have resulted in violence.Footnote 6 There is little question that indigenous populations are one of the most affected groups by business activities. It is therefore necessary to examine whether their security is also endangered as a consequence of the abuses committed by corporations on their territories when upholding their economic interests with the assistance of both private and public actors and security forces.
Over the last two decades, indigenous peoples’ rights have achieved notable visibility and recognition internationally. Indigenous rights to land and natural resources have been among the most litigated indigenous-related issues throughout the world. That is why international human rights treaty monitoring bodies have developed a consistent body of jurisprudence based upon the international law instruments concerning them.Footnote 7 In this regard, the Inter-American Court of Human Rights (hereinafter IACtHR or the Court) has proven to play a key role in the judicial recognition of indigenous peoples’ rightsFootnote 8 . Many cases under its jurisdiction deal with land and water grabbing conflicts on indigenous territories in which the lives and security of the members of the communities involved are exposed to danger as a direct result of their tireless efforts to defend their lands.
This article aims at studying the recent case law of the IACtHR concerning the personal and communal security of indigenous peoples and the violation of their human rights in land grabbing conflicts affecting their territories, with a particular focus on their right to life. First peoples have constantly suffered – and are still suffering – threats, persecution and harassment which, in some cases, have eventually culminated in their own deaths.Footnote 9 Hence, an analysis of the IACtHR rulings is required so as to ascertain the pattern it follows to hold states accountable for failing to provide adequate measures of prevention and protection which guarantee the security of the members of indigenous communities. This analysis will in turn be crucial to bring an answer to the question of whether the Court’s interpretation of applicable international human rights instruments is effective in guaranteeing indigenous peoples’ security in this type of conflict when states fail to protect and corporations fail to respect their human rights in contravention of the United Nations Guiding Principles on Business and Human Rights (UNGPs),Footnote 10 which apply to all states and to all business enterprises.
The article is structured as follows. Section II provides insight into the most significant decisions the IACtHR has issued in relation to indigenous peoples’ rights, especially with regard to their right to collective property and their right to free, prior and informed consent. The international human rights instruments on which the Court bases its decisions will also be outlined. In Section III, the focus is on a series of judgements of the IACtHR that will be under examination with the objective of identifying the reasons why the Court decides to hold states to account when members of indigenous communities lose their lives as a consequence of disputes over their lands against business corporations. The article will finish with some thoughts on its overall aim.
II. Case Law Background and Regulatory Framework
In the course of recent years, the central issue that has reached regional courts from around the globe is that of the existence or extent of indigenous peoples’ rights over lands and natural resources, which are largely thought of as critical to the physical and cultural survival of these peoples as distinguished groups.Footnote 11 In this regard, the jurisprudence of the Inter-American Human Rights SystemFootnote 12 has contributed to the development of the minimum content of the right to collective property that indigenous peoples have over their territories, on the basis of the provisions contained in the international instruments that protect them, namely the ILO Convention No. 169,Footnote 13 the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),Footnote 14 the Draft American Declaration on the Rights of Indigenous PeoplesFootnote 15 and other relevant sources.Footnote 16 All of it has formed a coherent corpus iuris that defines the obligations of the Organization of American States (OAS) Member states in relation to the protection of this right.Footnote 17
In particular, the Inter-American Commission on Human Rights (hereafter IACHR or the Commission) and the Court have done ‘ground-breaking work’ in the extension of the scope of the right to property by taking into account the group identity. These bodies have understood that this right includes the communal property of indigenous and tribal peoples, whose identity is essentially defined by their intrinsic connection with their traditional lands.Footnote 18 In addition, it is widely recognized that both the UNDRIP and the ILO Convention No. 169 have become Inter-American instruments on indigenous peoples’ rights due to the efforts made by the Court in its judgements.Footnote 19 The same applies to the American Convention on Human Rights (ACHR),Footnote 20 which contains no provisions regarding indigenous peoples.Footnote 21 Despite this fact, since 2001, the IACtHR has been applying these instruments to indigenous peoples’ rights cases in light of the general rules of interpretation established in Article 31 of the Vienna Convention on the Law of TreatiesFootnote 22 and in Article 29.b) of the American Convention.Footnote 23
It is hardly surprising that today land rights are still the main claim of first peoples,Footnote 24 as interest in natural resources exploration and exploitation on lands traditionally occupied by them gradually increases. It is in this context that several conflicts between governments and transnational corporations, on the one hand, and indigenous communities, on the other, are arising.Footnote 25 In this respect, it should be underlined that, even though the Court has only once made explicit reference to the UNGPs in its case law on indigenous peoples’ rights,Footnote 26 the Inter-American System of Human Rights is not unfamiliar with the business and human rights discourse. Rather, it is concerned about promoting the implementation of the UNGPs and, following a mandate established by the OAS General Assembly, it has started to develop a study on inter-American standards on business and human rights based on an analysis of conventions, case law and reports set out by the Inter-American System.Footnote 27
As regards the property rights provided to indigenous peoples under the American Convention, the Court was called upon to rule on this matter for the first time in 2001.Footnote 28 In its landmark decision on the case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua,Footnote 29 the Court held that the international human right to property, especially as affirmed in the American Convention, embraces the communal right of indigenous peoples to the protection of their customary land and natural resources tenure. The IACtHR also held that Nicaragua had violated the property rights of the community by granting a foreign company a concession to log within its ancestral lands and by failing to provide satisfactory recognition and protection of its customary tenure.Footnote 30
With this ‘revolutionary approach’Footnote 31 to the interpretation of the right to property enshrined in Article 21 of the ACHR,Footnote 32 this case represents ‘an international legal precedent with implications for indigenous peoples throughout the world’.Footnote 33 The decision marks a historic breakthrough in the recognition of this right of indigenous peoples and is based on the fact that indigenous peoples, by their very existence, have the right to live freely in their territories.Footnote 34 Accordingly, they do not have to tolerate illegitimate incursions of private corporations which, with the support of governments,Footnote 35 aspire to expel them from their own lands.
Equally important is the Court’s development of the right to free, prior and informed consent (FPIC), which started to be delineated in the Case of the Saramaka People v Suriname. Footnote 36 This decision represents an example of ‘practical operationalization’ of this right that does not contradict the right to consultation laid down in Article 6 of the ILO Convention No. 169.Footnote 37 This is due to the fact that the Court distinguishes between consultation and consent and states that the latter is additional to the former and needs to be obtained in large development or investment projects that may have a profound impact on the property rights of a specific indigenous or tribal people.Footnote 38 A few years later, the Case of the Kichwa Indigenous People of Sarayaku v Ecuador Footnote 39 made a significant contribution to the Court’s doctrine on FPIC. It concluded that the obligation to consult is not only a conventional standard, but also a general principle of international law,Footnote 40 which implies that governments have the duty to carry out consultations, even if there is no international or national legal norm that provides for this obligation.Footnote 41
The justification used by the Court in these critical decisions has been reproduced in numerous subsequent cases, some of which will be under examination in the following section as long as they concern endangerments of the lives and security of members of the communities involved as a result of land grabbing conflicts on their traditional territories.
III. Case Studies
A. General Aspects
The infringement of indigenous property rights, as well as the consequences arising from the lack of access to their ancestral territories, may result in the violation of a series of rights, among which the right to judicial protection and the rights to life and personal integrity are noteworthy.Footnote 42 The right to life, as provided in Article 4 ACHR,Footnote 43 is of particular interest with regard to the personal and communal security of members of indigenous communities on account of their opposition to illegal sales of traditional lands. The Court has opted for a wide interpretation of this right that encompasses both the prohibition of the arbitrary deprivation of life and the obligation to ensure the conditions required for the attainment of a decent life.Footnote 44 This article will mainly focus on the first aspect of this right in cases in which community members have – or could have – lost their lives as a direct consequence of the disputes over their lands.
The rationale behind the selection of these specific cases is that all of them revolve around land conflicts in which the interrelation between business activities and their impact on indigenous peoples’ rights and security is clearly evident. What is more, a fourth shared characteristic between these cases can be distinguished, as all of them have been brought before the IACtHR against states that allegedly failed to take the appropriate security measures that were expected in accordance with their duty to protect against human rights abuses within their territoriesFootnote 45 and that could reasonably have prevented such abuses. As a result, this section will look into the grounds on which the Court recognizes government accountability in this type of situation, most notably as concerns first peoples’ right to life, in order to draw conclusions on whether the Court’s interpretation of applicable international human rights instruments is efficient in safeguarding the actual security of these peoples when both states and corporations overlook their fundamental human rights.
B. Kichwa Indigenous People of Sarayaku v Ecuador
1. Established Facts
The Kichwa nation of the Ecuadorian Amazon consists of two peoples, the Napo-Kichwa People and the Canelo-Kichwa People, who share the same linguistic and cultural traditions. The Kichwa People of Sarayaku, which belongs to the latter, inhabits an area of tropical forest in the Amazon region of Ecuador along the banks of the Bobonaza River,Footnote 46 one of the most biodiverse areas of the entire planet. The intensification of oil exploration activities in Ecuador dates from the 1960s, when the first reserves of crude oil were detected. Even though the state had adjudicated an area of land in favour of the communities of the Bobonaza River under certain conditions, four years after the adjudication, the ‘State Petroleum Company of Ecuador’ and the consortium constituted by ‘Compañía General de Combustibles, S.A.’ (CGC) and ‘Petrolera Argentina San Jorge, S.A.’ signed a participation contract to execute hydrocarbon exploration and exploitation of crude oil in Block No. 23 in the Amazon region, which consisted of an area of 200,000 hectares inhabited by several indigenous groups.Footnote 47 Prior to the seismic prospecting activities and incursions into the Sarayaku’s territory, the CGC oil company had allegedly tried, on numerous occasions, to negotiate their access to the lands and also to come to terms with the Community through a wide range of actions, such as offering money and personal benefits to individuals as well as to the groups.Footnote 48 As a consequence, quite a few neighbouring communities decided to sign agreements with the CGC and support its activity, whereas the Sarayaku firmly chose to reject the offer on grounds of their longstanding, deeply spiritual ties with their traditional territories. Given the Sarayaku’s refusal, the new strategy of the oil company consisted in dividing the communities, manipulating their leaders and defaming them,Footnote 49 all of which led to conflicting situations among their own organizations.
Particularly remarkable are a series of events that happened in the following years and that are considered to have posed a threat to the security of the Sarayaku. Once the seismic prospecting phase started within its territory, there was an increase in the hostilities between members of that Community, the CGC workers and other indigenous groups inside Block No. 23.Footnote 50 The presence of the Armed Forces on the territory did not foster a climate of trust and mutual respect either.Footnote 51 Between October 2002 and February 2003, CGC buried a total amount of 1433 kilograms of ‘pentolite’ explosives in the territories that embraced Block No. 23, which forced the Sarayaku to declare a state of emergency due to the evident risk for their lives it involved.Footnote 52 Additionally, a number of alleged threats and harassment were reported to the detriment of leaders, community members and a Sarayaku lawyer.Footnote 53 One of the most conflictual incidents between adjacent communities took place on 4 December 2003, when approximately 120 Sarayaku, on their way to a ‘march for peace and life’ that was to be held in Puyo because of the danger of militarization in Block No. 23, were attacked with machetes, sticks, stones and firearms by members of the Canelos Peoples, in the presence of police officers who were simply looking on and whose number was clearly insufficient despite the fact that the government was aware of what was likely to happen in that encounter.Footnote 54
Although the list of established facts explained above could be widely extended, these are believed to be the most relevant facts that confirm the situation of constant pressure, threats and harassment that the Sarayaku had to endure as a consequence of the business interests over their ancestral lands.
2. Analysis of the Merits and Considerations
In spite of the state’s acknowledgement of international responsibility, the Sarayaku Community decided to wait for the judgement of the IACtHR in the expectation that it would bring about justice.Footnote 55 The lack of a valid and institutionalized process of consultation and participation of the Sarayaku People on the execution of a project that would have a direct impact on their territory is the central issue in this case, which, apart from constituting a human rights violation itself, also provokes the violation of other related rights, amidst which is the right to communal property and to cultural identity.Footnote 56 In this judgement, the Court examines, among other issues, whether the conduct of the state put not only community life at risk – typically analysed as a violation of the right to cultural identity –, but also the right to life and personal integrity of its members.
As far as the right to life is concerned, the Commission argued that Ecuador had failed to fulfil its obligation to guarantee the right to property by consenting to the burial of explosives in the Sarayaku territory, which in turn created a situation of permanent danger that threatened the life and survival of community members.Footnote 57 The representatives added that the state should be held responsible for placing the Sarayaku People at a serious risk because of ‘the oil company’s unconsulted incursion into their territory’ and, in short, for allowing third parties to ‘systematically violate’ their human rights.Footnote 58 Likewise, tense relations between the Sarayaku and neighbouring communities, and within the community itself, had resulted in a disruption of the security, tranquillity and lifestyle of the Community.Footnote 59
In this respect, it should be noted that the Court has constantly emphasized that the right to life is fundamental in the American Convention, as the realization of the other rights depends on its safeguard.Footnote 60 That is why no restrictive approaches are admissible. Article 1.1 ACHR provides for the obligation of governments to respect and guarantee the human rights recognized therein. As regards the right to life, not only do these obligations imply that the state must respect them (negative obligation), but also require that the state adopt all appropriate measures to guarantee them (positive obligation). Taking into consideration that a state cannot be held accountable for every situation in which the right to life is at risk, and bearing in mind the difficulties in planning and executing public policies, these positive obligations cannot comprise the imposition of an impossible or disproportionate burden upon the authorities. Rather, for this positive obligation to arise, there must be evidence that, when the events took place, state authorities were or should have been aware of the existence of a situation ‘that posed an immediate and certain risk to the life of an individual or of a group of individuals, and that the necessary measures were not adopted within the scope of their authority which could be reasonably expected to prevent or avoid such risk’.Footnote 61
Moreover, the IACtHR asserted that, in certain cases and under exceptional circumstances, it has been permitted to examine the violation of Article 4 ACHR with relation to persons who did not die but were instead placed in great peril.Footnote 62 In this particular case, the presence of explosives represented a significant concern to the Sarayaku People and the detonation of these materials was deemed a ‘real and potential danger’ according to expert witnesses.Footnote 63 Although the Court ordered the state to adopt provisional measures and remove the explosive materials in June 2005, it had only withdrawn slightly more than ten per cent of the 150 kilograms found on the surface by the date of the judgement.Footnote 64 Therefore, this fact constituted a manifest and proven risk to the life and physical integrity of the Sarayaku Community and, consequently, the Court concluded that the state was responsible for ‘having gravely put at risk’ the rights to life and physical integrity of this indigenous community, recognized in Articles 4 and 5Footnote 65 of the American Convention, respectively, in relation to the obligation to guarantee the right to collective property under Article 21 ACHR.Footnote 66
As for the right to personal integrity in relation to the assault that took place on 4 December 2003, the Commission claimed that the state had failed to provide community members with adequate protection owing to the clear insufficiency of the contingent of police officers dispatched.Footnote 67 In addition, the representatives claimed that the government was responsible for failing to provide protection to members of the Community who had constantly been the object of threatening acts and harassment.Footnote 68 They also argued that the situation had created ‘distress, anxiety and fear’ among the Sarayaku People and had had a serious influence on their physical and psychological well-being.Footnote 69 Nonetheless, the Court considered that the state could not take responsibility for the violation of Articles 5 and 7Footnote 70 of the Convention in this regard, as the evidence produced was not sufficient.Footnote 71
This judgement seems to merit a partially positive assessment in relation to the scope of this article. On the one hand, the analysis of the violations of the rights to life and personal integrity relating to the seismic prospecting must be regarded as adequate, inasmuch as the Court rightly acknowledges the manifest risk for the lives of the members of the Community that the presence of explosives involved, regardless of the fact that nobody eventually perished as a consequence of it. Moreover, the series of unlawful activities carried out by the company, along with the leaving behind of high explosives on indigenous territory, shows gross contempt not only for the collective dignity of the Sarayaku as a people, but also for the human dignity of its members. On the other hand, referring to the alleged threats and harassment which lacked sufficient evidence, it must be borne in mind that gathering convenient evidence may turn out to be an extremely difficult task given the context of generalized conflict and pressures at stake. Most of the acts of violence and threats suffered by community members were reported to the pertinent state authorities, who did little to properly investigate them. However, the Court considered that the state did not know they were facing a real, specific and immediate risk when the events took place and, consequently, opted for taking responsibility away from Ecuador. As to the incident with the Canelos People, the Court followed the same path and, although it recognized that the state could have adopted different measures,Footnote 72 ruled that it had not been provided with documents that indicated state authorities could have determined the magnitude of the events beforehand.
According to the above, the preliminary conclusion to which the reasoning of the Court in this judgement leads is that it will not impute state responsibility unless there is no shadow of a doubt that the alleged human rights violations did occur. To this effect, the Court has to be provided with sufficient evidence by the indigenous communities affected, that is, by the victims. By requiring this, such reasoning fails to take account of the fact that the companies involved usually find themselves in a more advantageous situation due to all the means at their disposal, which allows them to prevent these groups from collecting suitable evidence and, thus, harming them in any form. Consequently, it needs to be examined whether this is an isolated case or whether this positioning is recurring throughout the Court’s case law on this matter.
C. Garífuna Communities v Honduras
Honduras is a multi-ethnic and pluricultural state that is composed of mestizos, indigenous people and African descendants.Footnote 73 According to the census conducted by the National Institute of Statistics in 2013,Footnote 74 43,111 people described themselves as Garífuna, whereas other sources estimate a much larger population.Footnote 75 The Garífuna People nowadays consists of approximately forty communities spread all along the Caribbean coast. Disputes over land go back to the early and mid-twentieth century, when the communities began to take steps in order to gain recognition of their rights over the lands they had traditionally used and occupied. A number of international organizations have expressed concern over the violence, persecution and harassment the Garífuna People has continually been subjected to for defending its lands.Footnote 76 So has the IACtHR, which, while monitoring the situation of human rights defenders in Honduras, has received disturbing information about attacks, threats and harassment against social leaders and human rights defenders.Footnote 77
1. Garífuna Community of Triunfo de la Cruz v Honduras
1.1 Proven Facts
Following the commencement of the process of recognizing and titling the territory of the Community, there has been a variety of problematic issues around it. The controversy arose in 1969, when a company called ‘MACERICA, S.L.’ acquired a 50-hectare lot of land in the ancestral territory of the Community. The situation got much worse after 1990, when the authorities started granting title deeds of land traditionally possessed by the Community to tourism conglomerates and individuals. Between 1993 and 1995, the Municipality of Tela sold off around 44 hectares of ancestral lands of the Community to the company ‘Inversiones y Desarrollo El Triunfo, S.A.’ with a view to using that land to execute a tourism project called ‘Club Marbella’.Footnote 78 It is also relevant to note the creation of the ‘Punta Izopo National Park’ protected area on part of the territory historically occupied by the Community, which was an area ‘with a primarily tourism-oriented approach’.Footnote 79
In spite of the titles eventually granted by the state to the Triunfo de la Cruz Community in recognition of the ancestral possession of its territory, peaceful enjoyment has been unattainable partly because of the lack of effective protection by the government. What is more, Community authorities and leaders have reportedly been the target of countless threats, persecution and harassment that have even ended in their own deaths.Footnote 80 In particular, four members of the Community were murdered within the context underlying this case.Footnote 81 Accordingly, the Court analyses in this judgement whether the state has violated their right to life under Article 4 ACHR.
1.2 Analysis of the Merits and Considerations
The IACtHR has continually pointed out that, as part of the above-mentioned guarantee obligations, the state has a legal duty to reasonably prevent violations of human rights, to seriously investigate them with the means available in order to identify those responsible, to impose the pertinent sanctions and to assure the victim adequate reparation.Footnote 82 This guarantee obligation extends beyond state agents and persons under its jurisdiction, including the duty to prevent third parties from violating protected legal rights in the private sphere. Nevertheless, a state’s duty to adopt measures of prevention and protection are conditioned on the knowledge of a situation of real and immediate risk for a particular individual or group of individuals – or that the government should have known about that situation – and to the reasonable possibilities to prevent or avoid that risk.Footnote 83
In this specific case, the Court observed that there was no additional information concerning these murdersFootnote 84 and, thus, it lacked sufficient evidence to establish whether the state had – or should have – been aware of a situation of real and immediate risk with reference to three of the murders. As for the homicide of the Deputy Mayor of the Community, even though the Court considered that the existence of a situation of real and immediate risk could have been inferred, there was not sufficient evidence that proved this risk during the period until his eventual death.Footnote 85 Consequently, the Court decided not to pronounce on the alleged violations of the right to life of these four members of the Community.Footnote 86 Referring to the right to judicial protection as regards the alleged threats and murders of community members, the Court ruled that the state had violated this right under Articles 8Footnote 87 and 25Footnote 88 ACHR, as it had failed both to carry out a serious and effective investigation of the numerous complaints filed with police and prosecutors by the Community and to initiate ex officio the investigation with regard to the deaths of the four Community members,Footnote 89 all of which had prevented the Triunfo de la Cruz Community from being heard in proceedings with due guarantees.
As in the previous case, the Court opts for staying on the sidelines owing to the lack of satisfactory evidence which sufficiently proves that the state knew about a situation of immediate risk with respect to these four members of the Community. Leaving aside the situation of permanent conflict that the Community was suffering and the possible outcome that could logically derive from it, it can be understood that the government of Honduras was not aware of three of the imminent murders in particular. As noted above, states cannot be held accountable for every situation in which the right to life of their citizens is at risk and, thus, it seems coherent with the Court’s doctrine that Honduras was released from liability in this regard. However, the same is not applicable to the homicide of the Deputy Mayor, who reported an attempted murder only two years before his death. What is more, it was believed that this attempted murder was a consequence of his determined opposition to the illegal sales of traditional land and that is why it was communicated to national authorities. Hence, it seems to be more than questionable that the state could not have prevented this from happening if it had taken the appropriate measures of prevention and protection that could have reasonably been expected.
The reasoning followed by the Court in the decisions examined so far raises questions as to the laxity of the standard applied in relation to the governments’ position of guarantor as far as the right to life is concerned. Given the situation of conflict resulting from the land disputes and the numerous complaints filed with public authorities, any reasonable person would have noticed the logical consequences that were inexorably bound to happen in such context and would have adopted the necessary prevention measures so as to stop them. Thus, the application by the Court of an objective standard of reasonableness, with regard to the security of the communities involved in their entirety, would have given rise to a more rational judgement.
2. Garífuna Community of Punta Piedra v Honduras
2.1 Proven Facts
The process of recognition and titling of the territory this Community had historically occupied commenced at the beginning of the last century. Despite the fact that the government had recognized and granted titles by 1999,Footnote 90 the territory has been occupied, since 1993, by third parties known as the settlers of the Miel River, which has provoked a continuous climate of violence and insecurity in the Community that has been evidenced in the form of threats and assaults against the Garífuna of Punta Piedra. Before the Commission, the petitionerFootnote 91 claimed that the National Agrarian Institute had granted legal titles to the settlers of the Miel River for plots of land that were then conveyed to an Armed Forces high command who likewise sold them to a palm tree processing company owner, Miguel Facussé,Footnote 92 all of which reflects the business nature of the situation of conflict as a whole. In addition, in 2014, during the development of the proceeding before the Court, a mining corporation called ‘CAXINA, S.A.’ was granted a mining concession to log within an area that covered part of the traditional territory of the community that had previously been recognized as such.Footnote 93
This case was thus instigated by the lack of peaceful possession of the Community’s ancestral territory as a result of the invasion instigated by a member of the military and a renowned Honduran industrialist for business purposes. As a consequence of the land disputes, a community leaderFootnote 94 was allegedly murdered at the hands of Miel River settlers, although no proper criminal investigation has been carried out to date.Footnote 95 In the same context, a member of the Community that witnessed the aforementioned murder has been targeted with constant death threats. The Commission decided to grant precautionary measures on his behalf and ordered the state to take protection measures so as to ensure his life and physical integrity. Nonetheless, these measures were never taken since the state asserted that no complaint had been made relating to these facts.Footnote 96 Furthermore, two complaints were filed with the Public Prosecutor’s Office for threats against another member of the CommunityFootnote 97 and against the Community in its entirety, although the petitioner failed to provide the Court with sufficient evidence in relation with these facts.Footnote 98
2.2 Analysis of the Merits and Considerations
In its Judgement of 8 October 2015, the Court decided on the right to life in conjunction with the right to judicial protection. The representatives of the Community claimed that, in spite of acknowledging the existence of a situation of risk with regard to the members of the Community, the government did nothing in order to avoid the violent facts that generated the alleged violation of the right to life.Footnote 99 Moreover, the Commission considered that the state had failed to guarantee the peaceful possession of its ancestral lands, which resulted in an evident situation of permanent conflict and insecurity.Footnote 100 Nevertheless, the Court recalled its jurisprudence concerning the state’s duty to adopt measures of prevention and protection and analysed whether in this case the requirements for the state’s responsibility to arise were met.
First of all, the Court confirmed that the settlers of the Miel River had constantly threatened the Community by oral intimidation and use of weapons, which ended up in the development of widespread fears among its members and limited the peaceful use and enjoyment of its territory.Footnote 101 The Court also verified that the state had failed to fulfil its duty to clear the titles of ownership granted to the Community, which led to a situation of general risk in the territory characterized by the threats and harassment mentioned above. In this context, the murder of the Community leader occurred. However, based on the information submitted to the Court, it appreciated that no authority was aware of a specific situation that placed the life of the community leader at risk and, consequently, a breach of the guarantee duty of the government had not been proven.Footnote 102 As for the right to judicial protection regarding the investigation of this crime, the Court decided that Honduras was responsible for failing to conduct a thorough and diligent investigation of it from the very beginning and for the prolongation of the process.Footnote 103
It is worth emphasizing that, prior to the murder, up to thirteen government institutions had been informed about a number of components of the conflict situation,Footnote 104 but once again the evidence provided was regarded as insufficient. Thus, the Court considered that no public authority was aware of a situation that placed the lives of specific community members at immediate and real risk. Although the IACtHR could have remained mindful of the fact that the risk to the personal integrity of community members stood out in some of the documents filed before government authorities,Footnote 105 it is true that these documents contain general references to the situation of conflict as a whole and avoided referring to specific cases of imminent risk. That is why this judgement appears to have assessed the right to life in an appropriate way in accordance with the Court’s case law.
However, the Court cannot let states go unpunished when they turn a blind eye to evident situations of risk to the lives of members of indigenous peoples involved in land disputes against business corporations. Hence, at this point, the question that arises is what will need to happen next so that indigenous communities are provided with adequate measures of protection and prevention in widespread conflict situations even when they have not reported particular acts of violence with regard to specific persons, as occurred in all the cases cited. Rather than having to wait until there is an immediate and certain risk for groups or individuals, a possible way forward would be to compel states to take these precautionary measures at an earlier stage. This should be when there are rational indications of sufficient magnitude and scope that an indigenous group is undergoing a generalized situation of continuous threats, harassment and conflict that poses a serious threat to its members’ security and is highly likely to lead to undesirable consequences. Otherwise, the immediacy and certainty of the risk that the Court has been demanding for state responsibility to arise may result in the adoption of security measures that come too late.
D. Yakye Axa, Sawhoyamaxa and Xákmok Kásek Communities v Paraguay
The three cases in this section present an intimate connection derived from the fact that the indigenous communities involved populate the same geographical area, the Paraguayan Chaco. Likewise, their respective claims focus on the violation of the right to communal property in relation to a series of rights such as the right to life or personal integrity.Footnote 106 Their background goes back to the late nineteenth century, when large plots of lands in the Paraguayan Chaco were acquired by British business owners through the London stock exchange without the permission or even the knowledge of the indigenous groups that inhabited the area.Footnote 107 The Anglican Church of England began to establish a vast array of missions and to ally with the then newly established ‘International Products Corporation’. From then on, indigenous peoples’ traditional lands have been transferred to and gradually divided among private non-indigenous owners.Footnote 108 In the 1990s, the three communities involved started their respective proceedings for claiming their traditional lands and natural resources before administrative bodies, all of which were then owned by corporate actors.Footnote 109
As a result of this progressive dispossession of their ancestral territories, these communities have been forced to move onto an adjacent area which did not allow them to practise their traditional subsistence activities.Footnote 110 They have also been obliged to live in ‘extremely destitute conditions’ owing to the lack of land and access to natural resources as well as the precarious temporary settlement in which they have had to stay.Footnote 111 That is why the right to life in these three cases is analysed from a different perspective and, accordingly, the IACtHR examines whether the state must be held to account for failing to take suitable measures to ensure the right to a decent existence of the members of the communities regarding access to water, food, health care services and education. Moreover, the Court also decides on whether Paraguay must be held responsible for the deaths that occurred in the communities due to the severely deficient housing, sanitary and health conditions.Footnote 112
The innovative aspect of the first of these three judgements was that the Court also found a violation of the right to life beyond the violation of the right to collective property and the right to fair trial and to judicial protection.Footnote 113 Nevertheless, it has been criticized due to the fact that, although the Court found a violation of the right to life to the detriment of the members of the Yakye Axa Indigenous Community for not adopting the appropriate measures that would have assured their decent existence,Footnote 114 it also ruled that it did not have sufficient evidence to prove the violation of the right to life to the detriment of up to sixteen members of the Community that perished as a consequence of the deplorable conditions they had to live in.Footnote 115 In doing so, it provided the interpretation of the right to life with a restrictive approach,Footnote 116 contrary to its own case law, which advocates for the inadmissibility of this type of approach when the right to life is at stake.Footnote 117 Nonetheless, this doctrine was later amended in the other judgements, in which the Court found a violation of the right to life of the members of the Sawhoyamaxa and Xákmok Kásek Indigenous Communities that lost their lives as a result of the displacement caused by disputes over their lands.Footnote 118 As for the sphere of the right to life concerning the right to a decent existence, its violation is expressly recognized in all the aforementioned decisions.Footnote 119
In addition, not only did these indigenous communities have to tolerate illegitimate encroachments on their lands, but also they were the object of constant threats and harassment. In the case of the Yakye Axa, community members submitted complaints before various state agencies, but there is no sign of any sort of investigation having begun since.Footnote 120 Like in other cases, the lack of guarantees concerning their right to communal property made the Community vulnerable to threats and harassments of others and caused a generalized state of ‘fear, unrest and concern’.Footnote 121 As to the Sawhoyamaxa, it was alleged that they were constantly threatened by the state management for having started to take legal actions in order to reclaim their lands.Footnote 122 Furthermore, they also feared to be assaulted by ‘white men or Paraguayan people’ when they covertly tried to access their traditional territories to carry out their ancestral practices,Footnote 123 all of which proves that the violation of the indigenous right to communal property tends to go hand in hand with the violation of a number of related rights and, above all, with ceaseless acts of violence, harassment and widespread despair among the members of the affected communities.
IV. Conclusion
The aim of this article was limited to the study of a specific set of judgements issued by the Inter-American Court of Human Rights. What all of them had in common was the land grabbing practices that communities had to endure as a consequence of large-scale business activities on their ancestral lands. The direct effect of these practices was the violation of the right to collective property, which in turn entailed the violation of a series of related rights. It is in this regard that the personal and communal security of indigenous peoples in this sort of conflicts has especially been taken into account in cases in which the violation of the right to life was under examination. The work of the Court has not been straightforward, nor has the struggle of these peoples been unproblematic. The most serious obstacle they had to face was the gathering of sufficient evidence, which in the majority of cases was practically unachievable.
The immediate and certain risk doctrine which the Court has developed throughout the studied decisions was intended to avoid placing a disproportionate burden upon the authorities. However, it seems that efforts made in this respect have turned against the most vulnerable, i.e., those indigenous communities that not only had to experience the encroachment of their traditional territories but also had to demonstrate unequivocally, with the scant means available, the human rights violations to which they had been subjected as a result of those facts. This article has thus shown that this is one of the major barriers these communities have had to deal with so as to achieve the full recognition of their rights, which, in some of the analysed decisions, has not even been possible. In this respect, the application by the Court of an objective reasonableness standard would be positively appreciated, as should be states’ duty to show in each case that a reasonable person could not have been aware of a situation of generalized insecurity within an indigenous community undergoing a land conflict that placed the lives of its members at serious risk. Likewise, it would be desirable for the IACtHR to firmly show its commitment to the UNGPs and to monitor their actual application in order that all states that fail to protect against human rights violations are held to account.
Notwithstanding the undeniably fundamental role that the Court has proven to play in the protection of indigenous peoples’ human rights, a number of issues remain to be addressed regarding their right to life. The most preoccupying of all, as indicated above, refers to those widespread conflict situations in which, despite the absence of an immediate and certain risk for particular individuals or groups, the level of insecurity is severe enough for a government to take the appropriate protection and prevention measures in favour of the whole community, as precautionary measures that guarantee both their physical and psychological well-being and prevent further consequences. States have a vital role to play in this regard and it cannot be accepted that they turn a blind eye to flagrant violations of human rights within their territories when indigenous peoples’ security and, therefore, their survival is at stake. Unless this type of measure is taken at an earlier stage, these peoples’ fight will continue to confront the additional obstacle of the burden of proof, along with a number of undesirable, but inevitable, effects.
