Scottish Centre for International Law. Working Paper Series

Scottish Centre for International Law Working Paper Series Indigenous Peoples and the Environment under the Inter-American System for the Protection of Human Rights Pedro Pablo Silva Sanchez Working Paper No. 5 The purpose of the Scottish Centre for International Law Working Paper Series is to promote the dissemination of international legal scholarship produced by researchers associated with the Scottish Centre for International Law. The material contained in the papers will often be work in progress. Authors of the working papers would welcome comments and suggestions on the content of their papers. This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author(s). This paper may not be cited or quoted without the permission of the author.

Indigenous Peoples and the Environment under the Inter-American System for the Protection of Human Rights Pedro Pablo Silva Sanchez * Abstract: Human rights and the environment are inherently linked. This connection is even stronger in case of indigenous peoples rights, the close ties they have with the land is the fundamental basis of their cultural, spiritual, and material life. Although inherent, this link between human rights and the environment is not commonly reflected in the relevant conventions of different regional human rights systems. In turn, they do not provide for any special protection to indigenous peoples. However, Jurisprudential developments evidence a clear trend towards the recognition of the said relationship. Arguably, the Inter-American System for the Protection of Human Rights is coming to take a leading role in this evolving process. Moreover, its jurisprudence has become an important referent regarding the rights of indigenous peoples and the environmental protection. This paper explores the issue of indigenous peoples rights and the environment at the global level. Then, it analyses the main jurisprudential developments regarding human rights and the environmental protection at the regional level, with particular emphasis on the indigenous jurisprudence of the Inter- American System. 1. Introduction The relationship between Indigenous (native or tribal) 1 Peoples (IPs) and nature is a very * Pedro Pablo Silva Sanchez is currently a PhD candidate at the Center for Marine Environmental Sciences, University of Bremen, in Germany. This paper is based upon a dissertation submitted for the LLM in Global Environment and Climate Change Law at Edinburgh Law School. 1 In this work, the term indigenous peoples will be used for indigenous, native and tribal peoples. In the IACtHR's view, indigenous people s jurisprudence is also applicable to native or tribal peoples because both share distinct social, cultural, and economic characteristics, including a special relationship with their ancestral territories. See for instance: Case of the Moiwana Community v. Suriname, Preliminary Objections, Merits, Reparations and Costs, 2005, IACtHR, paras.132-133; Case of the Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, 2007, IACtHR, para.86. As regards nomadic indigenous or tribal peoples, see Case of the Xákmok Kásek Indigenous Community v. Paraguay, Merits, Reparations, and Costs, 2010, IACtHR, paras. 94 and 107. Also, see ILO Conventions on the Rights of Indigenous and Tribal Peoples. 2

complex one. IPs are linked to the environment around them by an essential tie. Nature not only provides them with the necessary means of subsistence, but also provides and maintains their cultural identity. Thus, they have a systemic or holistic conception of nature, where the wind, sky, rivers, forests, land, ecosystems, the biological diversity and also man, constitute one whole unit. 2 This unit, in turn, is seen as a living being and sacred deity, usually denominated as Mother Earth or Mother Nature (e.g. Pachamama, 3 Ñuke Mapu, 4 Coatlicue, 5 Maka, 6 etc.). Therefore, since ancient times, IPs have been governed by traditions and customs which are in harmony with the environment. They do not seek to dominate nature; rather, they exist as a part of it, in a moment of nature s own existence. IPs relationship with their ancestral territories and environment surrounding them has to be understood from a collective dimension. 7 Unlike occidental individualistic conceptions of private ownership, land and natural resources are not just economic goods or a mere instrument of agricultural production for IPs, but also part of their social and religious space, which is linked to their identity, history, current dynamics and very existence. 8 IPs rights are usually studied under Human Rights (HR) Law. However, international environmental law's interventions on the matter also keep increasing. This increment seems to be inevitable and also necessary given the close tie between IPs and the environment. Indeed, from an international environmental law approach, environmental issues are not only essential for IPs subsistence, but also, IPs themselves, have a vital role in proper environmental management, sustainable development, and conservation of the biological diversity. 9 In turn, the study of the relationship between IPs and the environment is part of a broader subject; the relationship between HR and the environment. Although, debates on this matter have increased during the last decade, the inherent connection between these two 2 See M. Blacutt Mendoza, El Desarrollo Local Complementario (Un Manual para la Teoría en Acción). Available at: http://www.eumed.net/libros-gratis/2013/1252/caracteristicas-cosmovision-andina.html, p.378. Also see, for instance, http://www.historiacultural.com/2010/03/cosmovision-andina-cultura-inca.html 3 Designation given by the Inca peoples in Peru. 4 Designation given by the Mapuche peoples in Chile. 5 Designation given by the Aztecas poeples in México. 6 Designation given by the Siux Oglalas peoples in the United States. 7 See Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations and Costs, 2001, IACtHR, para.149 8 See, for instance, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations and Costs, 2001, IACtHR, para.83(d) 9 See Rio Declaration on Environment and Development -1992 (hereinafter Rio Declaration), Principle 22; United Nations Declaration on the Rights of Indigenous Peoples-2007 (hereinafter UNDRIP), preamble; and Convention on Biological Diversity -1992 (hereinafter CBD), preamble and article 8(j). 3

rights. 12 Since the 1990s, this instrumentalist approach 13 started to shift towards a different Scottish Centre for International Law Working Paper Series Do not cite without the consent of the author notions is by no means new. 10 The United Nations General Assembly was aware of this in 1968, when the Resolution 2398 (XXIII) on the Problem of the Human Environment was adopted. 11 Moreover, in 1972, the Stockholm Declaration proclaimed that environmental protection is an essential precondition for the enjoyment of civil, political, and economic approach, where the enjoyment and exercise of certain procedural HR, such as public participation in decision-making processes, access to environmental information, and access to justice, is fundamental for environmental protection. This was indeed the approach adopted by the Rio Declaration on Environment and Development in 1992 (Rio Declaration), in Principle 10. 14 As regards IPs, Principle 22 specifically provides that States must enable their effective participation in the pursuit of sustainable development. 15 A similar focus on procedural rights can be found in almost all the post-1990s HR and environmental international instruments, both at the universal and regional levels. For instance, as will be seen later, it is implicit in the International Labour Organization s (ILO) 1989 Convention Concerning Indigenous and Tribal Peoples in Independent Countries Nº169 (ILOCNº169), and the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Additionally, it received express recognition in the 1998 Aarhus 10 D. Shelton, Derechos Ambientales y Obligaciones en el Sistema Interamericano de Derechos Humanos Universidad de Chile, Anuario de Derechos Humanos, 0(6), pp.111-127, 2011, p.112 11 See United Nations General Assembly, Resolution Nº 2398 (XXIII) Problems of the Human Environment (1968). 12 See Stockholm Declaration on the Human Environment -1973 (hereinafter Stockholm Declaration), Principle 1: Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated. 13 D. Shelton, Derechos Ambientales y Obligaciones en el Sistema Interamericano de Derechos Humanos Universidad de Chile, Anuario de Derechos Humanos, 0(6), pp.111-127, 2011, p.112 14 See Rio Declaration, Principle 10: Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities [ ] and the opportunity to participate in decisionmaking processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided. 15 See Rio Declaration, Principle 22: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national. 4

Convention. 16 At the regional HR protection level, this approach has been supported by the General Assembly of the Organization of American States (OAS) 17 and it is also implicit in the Council of Europe s Manual on Human Rights and the Environment adopted in 2006. 18 The inherent link between HR and the environment is beyond doubt. The link is even stronger in case of IPs, because of their particular relationship with nature. Nevertheless, recognition of this inherent link is not commonly reflected in the main instruments of the three principal regional HR systems. The only exception on this regard is the African (Banjul) Charter on Human and Peoples' Rights (African Charter), which provides for a right to a general satisfactory environment for all peoples. 19 However, the relevant HR Conventions applying to Europe and the Americas do not provide, in principle, for a selfstanding right to a sound environment. 20 In turn, none of these three regimes recognize any special protection for IPs. Nevertheless, in both the Inter-American System for the Protection of HR and the European HR System, there is a clear trend towards the recognition of the said relationship between HR and environmental protection. This greening approach of existent HR, 21 where certain environmental rights have been developed through the interpretation of 16 See United Nations (UN) Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) of 1998 17 For instance, see OAS Resolution AG/RES. 1819 (XXXI-O/01), Human Rights and the Environment, adopted in 2001, which declares that the effective enjoyment of all human rights [ ] could foster better environmental protection by creating conditions conducive to [ ] more active participation in political processes by groups affected by the problem. Available at: http://www.oas.org/en/sla/docs/ag01788e16.pdf 18 See Council of Europe, Manual on Human Rights and the Environment 2006, ed.2012. This document brings together the ECtHR s environmental decisions and establishes a series of principles on these matters. Also see, A. Boyle, Human Rights and the Environment: Where next? 2012. European Journal of International Law p.613 v23, p.615. 19 See African (Banjul) Charter on Human and Peoples' Rights (Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986 (hereinafter African Charter), article 24, which establishes that All peoples shall have the right to a general satisfactory environment favourable to their development. 20 It must be noted however, that in the European context, the European Committee of Social Rights has held that a right to a healthy environment is included in article 11 (right to health) of the European Social Charter on social and economic human rights. See Council of Europe: Manual on Human Rights and the Environment 2006, (ed. 2012), p.123. In the Inter-American context, the San Salvador Protocol on ESCR provides for a right to a healthy environment on its article 11. However, it has not been widely ratified. Moreover, according to its article 19, the Commission and Court cannot receive individual petitions based on this provision, and the protection of this right is in principle only subject to the monitoring competences of the IACHR. Nevertheless, the Inter-American Commission has held that individual petitions involving San Salvador Protocols rights, such as the right to a healthy environment, can still be lodged, invoking the general ESCR provision embodied on article 26 of the ACHR. See, for instance, Report Nº 156/10, Petition 1368-04, Admissibility; Daniel Gerardo Gomez, Aida Marcela Garita et al. v. Costa Rica (2010), para.49. 21 For further information on the term greening of HHRR, see: A. Boyle. Human Rights and the Environment: A Reassessment. UNEP Human Rights and Environment (UNEP, 2010); A. Boyle, Human Rights and International Environmental Law: Some Current Problems. AEBoyle 2011; A. Boyle, Human Rights and the Environment: Where next? 2012. European Journal of International Law p.613 v23; and V. de Oliveira Mazzuoli and G. de Faria Moreira Teixeira, Greening the Inter-American Human Rights System. L'Observateur des Nations 300 Unies, 2012-2, vol. 33. 5

the existent HR, is found in the emerging jurisprudence of both the European Court of Human Rights (ECtHR), and the Inter-American Court of Human Rights (IACtHR). Arguably, the latter is taking a leading role in this evolving process. 22 More importantly, the jurisprudential developments of the IACtHR regarding IPs rights and the environment have been of pivotal importance. This work seeks to determine whether the Inter-American System for the Protection of HR guarantees a right to a sound environment for IPs, and if so, whether such right is also guaranteed to other individuals or non-indigenous groups. Additionally, it seeks to determine what the impact of other HR systems and international environmental law has been on the IACtHR s environmental jurisprudence, drawing upon the fact that there seems to be a certain dialogue or cross-fertilisation between different HR courts. 23 In turn, the paper will also consider if the IACtHR s outcomes would be different in the particular context of the ECtHR. 2. IPs Rights and the Environment at the Global Level There is no universally agreed definition of IPs. Because of their diversity 24 and distinct characteristics, such definition may restrict, instead of enhance their protection. Therefore, the UN System prefers to identify, rather than define IPs, based on factors such as the strong link to territories and surrounding resources. 25 The ILO s 1957 Convention Concerning the Protection and Integration of Indigenous and other Tribal and Semi-tribal Populations in Independent Countries Nº107 (ILOCNº107), 26 was the first international treaty that codified States international 22 F. MacKay, Guide to Indigenous Peoples Rights in the Inter-American Human Rights System, The Forest Peoples Programme (FPP) and the International Work Group for Indigenous Affairs (IWGIA), Copenhagen 2002, p.16-17 23 E.g. See cases Kawas-Fernández v. Honduras, Merits, Reparations and Costs, 2009, IACtHR, para.148; and Luna López v. Honduras, Merits, Reparations and Costs, 2013, IACtHR, para.123, where the IACtHR quoted the ECtHR s decisions Guerra et al. v. Italy, 1998; López Ostra v. Spain, 1994; and Fadeyeva v. Russia, 2005, to refer to the inherent relationship between human rights and the environmental protection. 24 Indigenous or tribal communities can be found in several regions of the world, such as the Americas, the Arctic, Northern Europe, Australia and New Zealand. 25 The UN System has developed a modern understanding of this term based on the following: selfidentification as indigenous peoples at the individual level and accepted by the community as their member; historical continuity with pre-colonial and/or pre-settler societies; strong link to territories and surrounding natural resources; distinct social, economic or political systems; distinct language, culture and beliefs; form nondominant groups of society; and resolve to maintain and reproduce their ancestral environments and systems as distinctive peoples and communities see United Nations Permanent Forum on Indigenous Issues (UNPFII), Who Are Indigenous Peoples? Factsheet 1, available at: http://www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf Also see, ILOCNº 107, article 1, and ILOCNº 169, article 1. 26 See ILOCNº 107 preamble. 6

obligations regarding IPs. 27 Although it made no contribution on an environmental-related rights context, it recognised IPs collective property rights over their traditional territories. 28 This Convention was founded on an integrationist approach, 29 which was widely rejected by IPs, who saw it as a threat to the preservation of their cultural identity. 30 Thus in 1989, the ILOCNº169 was adopted, under the assumption that IPs are permanent societies, 31 whose cultural identities have to be respected. 32 The ILOCNº169 does not expressly recognise a self-standing right to a sound environment for IPs. However, environmental issues are explicitly related to their rights. 33 Governments are mandated to adopt appropriate measures for safeguard, protect and preserve the environment of the territories they inhabit. 34 Additionally, IPs are entitled to procedural rights such as consultation 35 and participation in decision-making, 36 where State legislative or administrative measures may affect them. The ILOCNº169 protects IPs rights over their traditional territories. 37 It requires States to recognise IPs' special relationship with their territory, in their individual and collective dimensions, 38 and to guarantee the effective protection of their collective rights of ownership and possession over these territories. 39 Under the ILOCNº169, territories cover the total environment of the areas IPs occupy, or otherwise use. 40 Also, States are required to safeguard IPs rights over the natural resources within their territories. This includes the right to participate in the use, management and 27 See http://www.ilo.org/indigenous/conventions/no107/lang--en/index.htm 28 See ILOCNº 107, article 11 29 It was assumed that indigenous peoples were less advanced temporary societies destined to disappear with modernization, through its integration into the national society of their respective State. The Convention was focused in integrate IPs, rather than protect their identity and autonomy. See ILOCNº107, articles 1 and 2. Also see information on the ILOCNº107, available at: http://www.ilo.org/indigenous/conventions/no107/lang-- en/index.htm, and A. Olivares and C. Efrén, Indigenous Peoples' Rights and the Extractive Industry: Jurisprudence From the Inter-American System of Human Rights. Goettingen Journal of International Law. 2013, Vol. 5 Issue 1, p187-214. 2013, p.189 30 M. V. Cabrera Ormaza, Re-thinking the Role of Indigenous Peoples in International Law: New Developments in International Environmental Law and Development Cooperation. Goettingen Journal of International Law. Vol. 4 Issue 1, p263-290. 2012, p.270 31 See International Labour Organization, History of ILO s Work, Indigenous and Tribal Peoples, available at: http://www.ilo.org/indigenous/aboutus/historyofiloswork/lang--en/index.htm 32 See ILOCNº169, article 2 para. 2(b). 33 See ILOCNº169, article 4(1): Special measures shall be adopted as appropriate for safeguarding the [ ] environment of the peoples concerned. 34 See ILOCNº169, articles 4(1) y 7(4) 35 See ILOCNº169, articles 6(1)(a) and 6(2) 36 See ILOCNº169, articles 6(1)(b) 37 See ILOCNº169, articles 13-19 38 See ILOCNº169, article 13 39 See ILOCNº169, article 14 40 See ILOCNº169, article 13 7

conservation of these resources. 41 However, if the territory is owned by the State e.g. subsoil minerals- IPs rights are limited to consultations, and wherever possible, to participate in the benefits of the proposed activities and receive compensation for damage. 42 Consultations do not provide IPs with a veto right, nor do they necessarily need to reach an agreement or consent. 43 However, consultations cannot be understood as a mere formality. 44 According to article 6(2), consultations shall be meaningful, i.e. conducted in good faith and with the objective of trying to reach agreement based on consensus, 45 through IPs representative institutions, ensuring that IPs freely participate in decision-making. 46 Moreover, contracting parties must conduct, when appropriate, environmental and social impact assessments (ESIA), in cooperation with the peoples concerned. 47 The ILO conventions are the only binding international instruments that have exclusively referred to IPs. 48 Nevertheless, in 2007, the UNDRIP was adopted. 49 Just like the ILOCNº169, the UNDRIP protects IPs individual and collective rights 50 over their territories and natural resources therein, 51 and recognises their right to the conservation and protection of the environment in these territories. 52 It also establishes participatory rights regarding proposed activities likely to affect them. 53 Interestingly, and in coherence with the 1992 Convention on Biological Diversity (CBD), 54 the UNDRIP recognizes IPs intellectual property rights over genetic resources and traditional knowledge. 55 This issue has been 41 See ILOCNº169, article 15(1) 42 See ILOCNº169, article 15 43 This approach is supported by article 16(2), which authorises the relocation of indigenous peoples as an exceptional measure. See, International Finance Corporation (IFC) World Bank Group, ILO Convention 169 and the Private Sector - Questions and Answers for IFC Clients, p.6 44 See ILO, Understanding the Indigenous and Tribal People Convention, 1989 (No. 169) - Handbook for ILO Tripartite Constituents, Programme to Promote ILO Convention No. 169 (PRO 169) and International Labour Standards Department, 2003, pp.13 and 16. Also see International Finance Corporation (IFC) World Bank Group, ILO Convention 169 and the Private Sector - Questions and Answers for IFC Clients, p.6 45 See ILOCNº169, article 6(1)(2) 46 See ILOCNº169, article 6 47 See ILOCNº169, articles 7(3) and 7(4) 48 To-date, only twenty-two States have ratified the ILOCNº169. Fifteen of them are American countries, where the indigenous population is significant. See ratifications at: http://www.ilo.org/dyn/normlex/en/f?p=normlexpub:11300:0::no:11300:p11300_instrument_id:312 314:NO 49 The UNDRIP, was drafted by the UN Working Group on Indigenous Populations (WGIP) and adopted by the UN General Assembly in 2007, Resolution A/RES/61/295, 2007. Further information about the former WGIP available at: http://www.iwgia.org/human-rights/un-mechanisms-and-processes/working-group-on-indigenouspopulations 50 See UNDRIP, Preamble, articles 7(2) and 40. 51 See UNDRIP, articles 26 and 32(1) 52 See UNDRIP, article 29 53 For rights participation in decision-making, see UNDRIP, articles 18 and 27. For the right to consultations, see UNDRIP, articles 19 and 32 54 See CBD, article 8(j) 55 See UNDRIP, article 31 8

developed in detail by the 2010 Nagoya Protocol to the CBD. 56 Unlike the ILOCNº169, the UNDRIP does not expressly provide for a right to share benefits of proposed activities likely to affect IPs. Nevertheless, this notion might be implicit in its provisions on effective mechanisms for a fair-redress. 57 As a Declaration, the UNDRIP is not formally legally binding upon States. However, it represents a universal recognition of IPs rights, and provides guidance to all State s conduct, including those that have not ratified the ILO conventions. Moreover, the International Law Association has stated that some of its key provisions can be regarded as general principles of international law, and that some aspects of its provisions, such as those concerning IPs cultural rights and identity, land rights as well reparation, redress and remedies, can also be considered as a reflection of norms of customary international law. 58 Other UN initiatives relevant to the protection of IP are inter alia, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), 59 and the appointment of a Special UN Rapporteur for IPs by the UN Commission on Human Rights in 2001. In addition, measures addressing the subject have been taken by some other UN Agencies such as the World Bank. 60 Additionally, in the field of international environmental law, references to IPs can be found in the Rio Declaration, 61 Agenda 21, 62 the 1994 UN International Conference on Population and Development s Program of Action, 63 the CBD, 64 the Nagoya Protocol. 65 3. IPs Rights and the Environment at the Regional Level 56 See Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, adopted by the Conference of the Parties to the Convention on Biological Diversity at its tenth meeting on 29 October 2010 (Nagoya Protocol), in relation to article 15 and 8(j) of the CBD. 57 UNDRIP, article 32(3). 58 See International Law Association, Committee on the Rights of Indigenous Peoples, Interim Report, The Hague Conference Report (2010), p.43-52. Available at http://www.ilahq.org/en/committees/index.cfm/cid/1024 Also see International Law Association, Sofia Conference (2012), Rights of Indigenous Peoples, Final Report, p.28. Available at: http://www.ilahq.org/en/committees/index.cfm/cid/1024 59 For indigenous peoples, ICCPR and ICESCR, common article 1, and ICCPR, article 27. For the environment, see article 12(b) of the ICESCR. 60 E.g. See World Bank Indigenous Peoples Policy. Available at: http://web.worldbank.org/wbsite/external/projects/extpolicies/extopmanual/0,,contentm DK:20553653~menuPK:4564185~pagePK:64709096~piPK:64709108~theSitePK:502184,00.html 61 See Rio Declaration, Principle 22 62 See Agenda 21, Chapter 26.4. It Seeks to incorporate indigenous peoples within the larger agenda of global environmentalism and sustainable development. 63 See S.J. Anaya, Indigenous Peoples in International Law, Oxford University Press, 2000, p.54 64 See CBD, article 8(j) 65 See, Nagoya Protocol, preamble and articles 5, 6, 7, 11, 12, 13, 14, 16, 21, 22, and 25 9

3.1 General Developments at the global level regarding IPs HR and environmental protection are reflected, to greater or lesser extent, at the regional HR regimes. As already stated, within the African HR System, 66 article 24 of African Charter provides for the right of all peoples to a general satisfactory environment for their development. 67 This provision includes the right to a healthy, clean and safe environment. 68 Although the African Convention is not aimed at protecting IPs but all peoples rights, the African Commission on Human and People s Rights (ACommHPR) has held that indigenous communities, indeed, can invoke article 24. 69 The situation in the European HR System is different. The European Convention on Human Rights (ECHR) and its protocols do not recognise special rights for IPs or the right to a healthy environment. Moreover, the ECtHR s jurisprudence regarding IPs has been discrete. 70 Instead, the main developments in the ECtHR s environmental jurisprudence relate to individual s HR protection. This jurisprudence is included on the Council of Europe s Manual on Human Rights and the Environment. 71 In contrast, the environmental jurisprudence of the Inter-American HR System has evolved rapidly during the last decade, mainly in the field of IPs rights protection. 72 IPs rights are not expressly protected by IAHRS s legally binding instruments, and references to 66 The African HR System s environmental jurisprudence will not be further analyzed during this work. Unlike the case of the Inter-American and European Systems, the African Charter, article 24, expressly recognises all peoples a right to a general satisfactory environment favourable to their development. Therefore, it would be inaccurate to make a comparative analysis of its environmental jurisprudence with that of its Inter-American and European counterparts. However, the most significant African environmental jurisprudence can be found in: Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) / Nigeria, African Commission on Human and Peoples' Rights, Communication Nº155/96, 2001; and Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, Communication Nº276/2003, 2009. 67 See African Charter, article 24. 68 See Communication 155/96: Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) / Nigeria, African Commission on Human and Peoples' Rights, 2001, (Ogoniland case), paras.51-52 69 African Commission on Human Rights, Indigenous Peoples in Africa: The Forgotten Peoples? - The African Commision s Work on Indigenous Peoples in Africa, IWGIA, 2006, p.20-21 70 T. Koivurova, Jurisprudence of the European Court of Human Rights Regarding Indigenous Peoples: Retrospect and Prospects, 2011. International Journal on Minority and Group Rights, Vol. 18, pp.1-37, 2011, p.2-3 71 See Council of Europe, Manual on Human Rights and the Environment 2006, ed.2012. Also see, A. Boyle, Human Rights and the Environment: Where next? (2012) European Journal of International Law p613 v23, p.615 72 E.g. Mayagna Community (Sumo) Awas Tingni v. Nicaragua 2001, IACtHR; Indigenous Community Yakye Axa v. Paraguay 2005, IACtHR; Indigenous Community Sawhoyamaxa v. Paraguay 2006, IACtHR; Peoples of Saramaka v. Surinam 2007, IACtHR; Indigenous Community Xámok Kasek v. Paraguay 2010, IACtHR; Indigenous Peoples Kichwa of Sarayaku v. Ecuador 2012, IACtHR; Community Moiwana v. Suriname 2005, IACtHR. 10

a healthy environment right are limited. 73 However, through interpreting the HR treaties, the IACtHR has developed a wide range of obligations for States regarding IPs, their collective property rights over their lands and natural resources therein, and environmental quality. These include procedural environmental rights such as consultation, participation in decisionmaking, access to information and ESIA. This may be explained by the large indigenous population inhabiting the region, which in turn is a consequence of the very history of the American Continent. Additionally, IPs are often settled in regions away from the big cities, rich in natural resources and biological diversity. The IACtHR s environmental jurisprudence is not limited, however, to IPs rights. There are non-indigenous cases, which, although limited in number, constitute a key precedent that will shape the emerging environmental jurisprudence of the IAHRS, and also are having impact abroad. 74 Arguably, American countries cannot ignore environmental problems if they are willing to comply with their regional obligations. 75 Thus, in the following sections, both the indigenous and non-indigenous environmental jurisprudence of the IACtHR will be examined. 3.2 Introduction to the Inter-American HR System The Inter-American HR System is the regional mechanism for the protection of HR in the Americas and the Caribbean. In broad terms, it is comprised of the Inter-American Commission on Human Rights (IACommHR) and the IACtHR, both created within the framework of the Organization of American States (OAS). 76 While all American States are subject to the IACommHR s jurisdiction, 77 only those who have ratified the American Convention on Human Rights Pact of San José (ACHR), and have expressly accepted jurisdiction in advance, are subject to the IACtHR s jurisdiction. 78 73 See below. 74 E.g.: Claude Reyes et. al. v. Chile 2006; Salvador Chiriboga v. Ecuador 2008; Kawas Fernández v. Honduras 2009; and Luna López Vs. Honduras Defensores medio ambiente Honduras 2013. 75 D. Shelton, Derechos ambientales y obligaciones en el sistema interamericano de derechos humanos. Universidad de Chile, Anuario de Derechos Humanos, 0(6), pág. 111-127. (2011), p.113-114 76 L. J. Reinsberg, Preventing and Remedying Human Rights Violations through the International Framework Advocacy before the Inter-American System: A Manual for Attorneys and Advocates. Second edition. International Justice Resource Center www.ijrcenter.org. First published June 2012. Revised March 2014, p.5-6 77 It was created by article 106 of the OAS Charter, which is binding upon all OAS States Parties. 78 The IACtHR was created by the American Convention of 1969. Its article 62 establishes an optional clause for the Court s jurisdiction. To-date, only twenty-five of the thirty-five OAS Member States have ratified the American Convention. Among them, twenty-two have recognized the Court s contentious jurisdiction. Information available at: http://www.cidh.oas.org/basicos/basicos3.htm 11

The IACommHR s competences include 79 monitoring the HR s situation in the OAS States, and receiving individual petitions. Individual petitions cannot be directly filed to the IACtHR. 80 It is only when a State subject to the IACtHR s jurisdiction fails to comply with the IACommHR s recommendations that the latter may refer the case to the Court. 81 In turn, IACtHR s decisions are final, 82 legally binding, 83 and self-executable, i.e. directly enforceable by domestic courts without the need of implementation 84 These bodies constitute the mechanism for oversight and enforcement of the American Declaration of the Rights and Duties of Man (ADHR), 85 the ACHR, 86 and other relevant instruments. These instruments do not provide for special protection to IPs. 87 Moreover, only the San Salvador Protocol in article 11 provides for a right to a healthy environment for everyone 88 and this treaty has not been widely ratified. 89 Additionally, it is limited to economic, social and cultural rights (ESCR), which are essentially programmatic. 90 More importantly, article 19(6) provides that the IACommHR and IACtHR cannot receive individual petitions based on article 11. 91 Therefore, the protection of this right is in principle, subject only to the monitoring competences of the IACommHR. Nevertheless, if the approach adopted by the IACommHR in other non-environmental cases is followed, 79 For the Commission s competences, see ACHR, article 41. Also see http://www.oas.org/en/iachr/mandate/what.asp 80 See ACHR, article 61.2 81 See ACHR, article 51 82 See ACHR, article 67 83 See ACHR, article 68(1) 84 See Case Almonacid-Arellano et al v. Chile, 2006, Preliminary Objections, Merits, Reparations and Costs, p.54-55, IACtHR, para. 124. This decision held that domestic courts have the duty to exercise a conventionality control. 85 The ADHR is not a treaty, and in principle it is not binding upon States. However, both the IACHR and the IACtHR have pointed out, by means of an authoritative interpretation, that it does not lack of legal effect. The IADHR contains and defines the OAS Charter s fundamental rights, which is indeed binding upon all OAS Member States. Thus, the latter cannot be interpreted and applied without considering the former. See Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89, July 14, 1989, Inter-American Court of Human Rights, paras.43-47 86 See, among others, OAS Charter, articles 53 and 107; ACHR, article 41. 87 It may be worth to mention that since 1989 the OAS has worked on a Proposed American Declaration on The Rights of IPs. Although, the Inter-American Commission on Human Rights approved this Declaration in 1997, the OAS General Assembly approval is still pendent. Further information available at: http://www.oas.org/en/iachr/indigenous/activities/declaration.asp For the text of the Declaration, see: http://www.cidh.oas.org/indigenas/indigenas.en.01/preamble.htm 88 See San Salvador Protocol, article 11 89 To-date, the San Salvador Protocol has been ratified only by sixteen States. Information available at: http://www.oas.org/juridico/spanish/firmas/a-52.html 90 See San Salvador Protocol, article 1 91 See San Salvador Protocol, article 19(6). The Commission and the Court, when applicable, can only receive individual petitions alleging violations of rights based on articles 8(a) and 13. 12

individual petitions involving article 11 might still be admissible if they are based on the general ESCR provision embodied in article 26-ACHR, read with article 29. 92 It follows that the environmental jurisprudence of the IACtHR has been developed through the interpretation of other HR standards found in the relevant treaties. 3.3 IACtHR S Indigenous Environmental Jurisprudence Since the Case of the Mayagna -Sumo- Awas Tingni Community v. Nicaragua-2001 (Mayagna case), 93 the IACtHR s indigenous environmental jurisprudence has rapidly evolved. These cases have been mainly related to IPs collective right to property, 94 and right to a decent life. 95 3.3.1 Collective right to property The first time the IACtHR gave a broader interpretation to the right to property (article 21, ACHR), 96 was in the Mayagna case. In this case, the petitioners claimed that Nicaragua had violated, inter alia, their rights to property, because of its failure to ensure the Awas Tingni Community s collective ownership rights over their ancestral territories and natural resources, and also, because it granted logging concessions on community lands without their assent. 97 The IACtHR pointed out that HR treaties like the ACHR are living instruments that must be interpreted in the light of present-day conditions. 98 The ACHR tends to integrate the 92 See, for instance, Report Nº 156/10, Petition 1368-04, Admissibility, Daniel Gerardo Gomez, Aida Marcela Garita et al. v. Costa Rica (2010), para.49. This case was concerned with in vitro fertilization. Among other violations, the petitioners alleged violations of the ESCR to Health (article 10); to enjoy the benefits of scientific and technological progress (article 14(1)); and protection of the handicapped (article 18) of the San Salvador Protocol. Like with article 11, the IACommHR and the IACtHR are not allowed to receive individual petitions based on any of these rights. However, the IACommHR held that individual petitions involving San Salvador Protocols rights still can be lodged invoking the general ESCR provision embodied on article 26, read with article 29 of the ACHR. 93 Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations and Costs, 2001, IACtHR (hereinafter Mayagna case) 94 See ACHR, article 21 95 See ACHR, article 4 96 See IACHR, article 21. Right to Property: 1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. 2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law. 3. Usury and any other form of exploitation of man by man shall be prohibited by law. 97 See Mayagna case, paras.1-2 98 See Mayagna case, para.146. The ECtHR takes the same approach to interpret the ECHR, see A. Boyle. Human Rights and the Environment: A Reassessment. UNEP Human Rights and Environment (UNEP, 2010), p.13 13

regional and universal HR systems. 99 Thus, through an evolutionary interpretation of article 21, read with article 29 of the ACHR, it established that the right to property includes the protection of IPs communal right to a collective property over their territories. 100 In broad terms, article 29 of the ACHR brings a pro-homine interpretation to the Inter-American Human Rights System. 101 It sets forth two main rules: the ACHR cannot be interpreted as restricting or limiting: a) the application of more beneficial norms to the protection of individuals, recognised by domestic law or treaties to which the State is a party; 102 b) the effect of other international HR acts. 103 As regards IPs collective right to property, the Mayagna decision made the following specification: Among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centred on an individual but rather on the group and its community. Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element, which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations. 104 The Court also clarified that under article 21 of the ACHR, IPs possession of the lands according to their customary practices, should suffice to obtain official recognition of IPs collective property, and its subsequent registration and titling. 105 Furthermore, States are required to adopt all the necessary measures to create mechanisms, which must be effective, for the delimitation and titling of IPs property, in accordance with their customary law, 99 See Other Treaties Subject to the Consultative Jurisdiction of the Court (art. 64 American Convention on Human Rights), Requested by Peru, Advisory Opinion OC-1/82, 1982, IACtHR, para. 41 100 See Mayagna case, para. 148 101 See V. de Oliveira Mazzuoli and G. de Faria Moreira Teixeira, Greening the Inter-American Human Rights System. L'Observateur des Nations 300 Unies, 2012-2, vol. 33, p.312 102 See ACHR, article 29(b) 103 See ACHR, article 29(b)(c)(d). 104 See Mayagna case, para.149 105 See Mayagna case, para. 151 14

values, customs and mores. 106 Ultimately, the IACtHR found that Nicaragua had violated article 21. It should be stated that IPs collective rights were recognised by Nicaragua s Constitution. 107 Although IPs collective property rights were already recognised by the ILOCNº169, the Mayagna case represents a landmark decision; it set forth the foundations for the recognition of IPs rights in their collective dimension in the Inter-American HR System. Notably, the IACtHR s approach was indeed opposed to that of the ECtHR, for which at that time and still today, IPs traditional use of lands is not a basis for collective property rights, but just a business activity. 108 Later IACtHR s decisions have shaped the contours of IPs collective property rights further, reaching a considerable technical character. Ultimately, their protection requires the protection of the environment. In the Case of the Yakye Axa Indigenous Community v. Paraguay 2005 (Yakye Axa case), 109 the Court followed the approach adopted in Mayagna. In Yakye Axa, the Court interpreted the ACHR in the light of ILOCNº169, to which Paraguay was indeed a party. 110 In doing so, it clarified that article 21 of the ACHR not only protects IPs rights over their ancestral lands, but also over the the natural resources therein associated with their culture, as well as the components derived from them. 111 More importantly, the Court held that article 21 protects both the right to private property of individuals and the right to communal property of IPs. When these two notions enter into conflict, according to article 21(1)(2) of the ACHR, 112 these rights can be affected by some admissible restrictions. To be admissible, restrictions must be: a) established by law, b) necessary, c) proportional, and d) their purpose must be to attain a legitimate goal in a democratic society. 113 Additionally, if for justified reasons States are unable to return territories to IPs, the compensation granted must be guided by the meaning of the land for them. 114 Accordingly, 106 See Mayagna case, para. 138. The IACtHR reached to this conclusion, interpreting article 25, read with article 1(1) and 2 of the American Convention. 107 See Mayagna case, para. 148 108 See Application no. 9278/81 and 9415/81 (joined), G. and E. v. Norway, 3 October 1983, on the admissibility of the applications. Article 8 of the Convention and Article 1 of the First Protocol. 109 In this case, the petitioners claimed Paraguay s failure to attain an effective solution to ensure their ancestral communal property rights. See Case of the Yakye Axa Indigenous Community v. Paraguay, Merits, Reparations and Costs, 2005, IACtHR (hereinafter Yakye Axa case), para.2 110 See Yakye Axa case, paras. 127 and 129-130 111 See Yakye Axa case, paras. 137 112 See ACHR, article 21(1)(2): 1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. 2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law. 113 See Yakye Axa case, para.144. The content of these standards are further developed within the decision. 114 See Yakye Axa case, para. 149 15

compensations consisting of alternative lands are not left to the State s discretionary criteria, their selection must attain a consensus with the peoples involved, in accordance with their own mechanism of consultation, values, customs and customary law. 115 Two further contributions to the environmental jurisprudence of the IACtHR were made by the Moiwana Community v. Suriname (Moiwana) case 116, where the claimants - descendants of Africans, taken by force as slaves to Suriname around the 17 th Century- were violently expelled from their lands by Suriname s agents. Firstly, the IACtHR stated that its IPs jurisprudence is fully applicable to tribal peoples 117 (the same rule applies to nomadic communities). 118 Secondly, where IPs are forced to leave their territories, they are still the legitimate owners of their traditional lands. 119 The latter seems to odds with the Mayagna decision, where land possession was the basic criterion for determining IPs collective property rights over their territories. This issue was clarified later in Sawhoyamaxa Indigenous Community v. Paraguay (Sawhoyamaxa case), 120 where the Court established the following principles: 1) traditional possession has equivalent effects to those of a state-granted full property title; 2) traditional possession entitles IPs to demand official recognition and registration of property title; 3) IPs members who have unwillingly lost possession of their traditional lands, maintain their property rights thereto, unless the lands have been lawfully transferred to third parties in good faith; and 4) in the latter situation, they are still entitled to restitution thereof, or to obtain alternative lands. 121 In this case, the Court also referred to the time-restrictions for land restitution. These rights are enforceable as long as IPs unique relationship with their land exists. This relationship may be expressed by, for instance, traditional hunting, fishing, and gathering activities. Additionally, this relationship must be possible. 122 Where IPs have been prevented from carrying out said activities, their rights to land restitution survive. 123 Interestingly, the Sawhoyamaxa decision also confirmed that the enforcement of 115 See Yakye Axa case, paras.143-151 116 Case of the Moiwana Community v. Suriname, Preliminary Objections, Merits, Reparations and Costs, 2005, IACtHR (hereinafter Moiwana case) 117 See Moiwana case, paras.132-133 118 See Case of the Xákmok Kásek Indigenous Community v. Paraguay, Merits, Reparations, and Costs, 2010, IACtHR (hereinafter Xákmok Kásek case), paras. 94 and 107 119 See Moiwana case, paras. 133-134 120 Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Merits, Reparations and Costs, 2006, IACtHR (hereinafter Sawhoyamaxa case). 121 See Sawhoyamaxa case, paras. 126-128 122 See Sawhoyamaxa case, para. 132 123 See Sawhoyamaxa case, paras. 131-132 16

Bilateral Investment Treaties (BITs) should always be compatible with the ACHR. 124 IPs' rights violations as well as general HR violations - resulting from environmental harm, are often related to activities carried out by others (e.g. foreign investments projects), but not States. Thus, when addressing IPs claims, States may be tempted to put in balance some social, economic, and political interests. BITs grant several rights to foreign investors, and State domestic measures affecting them may amount to a denial of fair and equitable treatment, or to an indirect expropriation, sufficient reason for the foreign investor to take the case to international investment arbitration, 125 as a means to exert pressure over the host- State. In all the aforementioned decisions, 126 the IACtHR made deep analysis regarding the protection afforded by article 21 of the ACHR to IPs collective property rights over ancestral lands. Nevertheless, their property rights over natural resources were addressed only in broad terms. This issue was further developed in the Case of the Saramaka People v. Suriname (Saramaka case), concerning exploration and extraction concessions (logging and mining) granted by Suriname s Government, to be conducted within Saramaka's lands. 127 The IACtHR held that without access to, and use, of the natural resources of their lands, the very physical and cultural survival of IPs and their members is at stake. Accordingly, the protection of article 21 extends to natural resources pertaining IPs lands; otherwise, it would be meaningless. 128 It also clarified that article 21 protects IPs collective property rights, both when the use and enjoyment of their territories and natural resources is affected directly and/or indirectly by exploration and extraction activities. 129 For instance, logging concessions may have a direct environmental effect on forests, lands, animals and fruits therein, all essential for IPs subsistence s activities, such as agriculture, hunting, and gathering. Alternatively, activities like mining may affect natural resources not essential in principle for IPs survival. Nevertheless, they may have an indirect environmental impact on other resources that indeed are essential, such as rivers, clean natural water, and fish therein. 124 See Sawhoyamaxa case, para.140; 125 For instance, see Texaco Petroleum Company v. The Republic of Ecuador, Permanent Court of Arbitration, Case No. 2009-23. Where Chevron (who acquired Texaco in 2001), after been condemned by an Ecuadorian court in the case María Aguinda y otros v. Chevron to pay huge compensations to the indigenous peoples of the Amazon Province of Sucumbíos, filed a lawsuit against Ecuador before the Permanent Court of Arbitration (PCA), alleging a violation of the US-Ecuador BIT. 126 Mayagna case; Yakye Axa case; Moiwana case; and Sawhoyamaxa case. 127 Case of the Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, 2007, IACtHR (hereinafter Saramaka case). 128 See Saramaka case, paras. 120-122 129 See Saramaka case, para.126 17