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Business, Indigenous Peoples’ Rights and Security in the Case Law of the Inter-American Court of Human Rights

Published online by Cambridge University Press:  19 February 2019

Núria REGUART-SEGARRA
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Abstract

The history of indigenous peoples from across the globe is marked by constant aggression, persecution and conflict. In these times, they are being obliged to confront the consequences of economic interests in their ancestral lands and natural resources, which often take the form of extractive projects conducted by corporate actors with the permission of governments. These abusive practices have led to a number of social, legal and political disputes, many of which have resulted in violence. All of this reveals that indigenous rights cases cannot be omitted in the study of the interrelation between business, human rights and security, since these three elements are present in many of them. In particular, the case law of the Inter-American Court of Human Rights needs to be closely examined, as it is considered to be the regional system of human rights protection that has played the most prominent role in delimitating indigenous property rights.

Keywords

harassmentland grabbingright to liferight to personal integritystate accountability
Type
Scholarly Articles - Special Issue on Business, Human Rights and Security
Information
Business and Human Rights Journal , Volume 4 , Issue 1: Special Issue: Business, Human Rights and Security , January 2019 , pp. 109 - 130
Copyright
© Cambridge University Press 

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Footnotes

*

Research Group on Human Rights and Fundamental Rights, Universitat Jaume I, Castellón (Spain). The research for this article has received funding from the Generalitat Valenciana and the European Social Fund under a predoctoral scholarship for the recruitment of predoctoral researchers.

References

1 See generally Gilbert, Jérémie, Indigenous Peoples’ Land Rights under International Law: From Victims to Actors (New York: Transnational Publishers, 2006)Google Scholar .

2 Martínez Jiménez, A and Vergara Céspedes, MM, La Jurisdicción Universal como Instrumento para la Protección de Pueblos Indígenas: Una Guía Práctica para Defensores de Derechos Humanos (Copenhagen: IWGIA and Fundación Internacional Baltasar Garzón, 2015) 8 Google Scholar .

3 It must be taken into account that the habitat of these peoples represents for them a cosmovision in which respect and protection of the environment reach deep levels related to the sacred. See generally Suárez, Victoria Camarero, ‘Acaparamientos de Tierras y Aguas: Impacto sobre los Pueblos Indígenas y sus Convicciones Religiosas’ (2018) 34 Anuario de Derecho Eclesiástico del Estado Google Scholar ; del Ángel Iglesias-Vázquez, María, ‘El Hecho Religioso en las Comunidades Indígenas y la Jurisprudencia de los Tribunales Regionales de Protección de los Derechos Humanos. Especial Referencia a Europa’ (2017) 33 Anuario de Derecho Eclesiástico del Estado Google Scholar .

4 S James Anaya, ‘Los Derechos de los Pueblos Indígenas’ in Mikel Berraondo (coord), Pueblos Indígenas y Derechos Humanos (Bilbao: Universidad de Deusto, 2006) 30. See also Anaya, S James, Indigenous Peoples in International Law, 2nd edn (New York: Oxford University Press, 2004)Google Scholar .

5 See generally Zamora Cabot, FJ, ‘Desarrollo Sostenible y Empresas Multinacionales: Un Estudio sobre los Acaparamientos de Tierra en Clave de Responsabilidad’ in Anuario de los Cursos de Derechos Humanos de Donostia-San Sebastián, XV (Navarra: Thomson Reuters Aranzadi, 2016)Google Scholar ; Suárez, Victoria Camarero and Cabot, FJ Zamora, ‘El Acceso al Agua Limpia y al Saneamiento: Un Derecho Humano Crecientemente Asediado’ in Maria Chiara Marullo and FJ Zamora Cabot (eds), Empresas y Derechos Humanos: Temas Actuales (Naples: Editoriale Scientifica, 2018)Google Scholar .

6 Stavenhagen, Rodolfo, ‘Los Derechos de los Pueblos Indígenas: Esperanzas, Logros y Reclamos’ in Mikel Berraondo (coord), Pueblos Indígenas y Derechos Humanos (Bilbao: Universidad de Deusto, 2006) 26 Google Scholar . Recently, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz, has stressed that she continues to receive reports of ‘escalations in conflicts and continued militarisation on indigenous peoples’ ancestral lands; displacements, dispossessions and violence; peaceful mobilisations that are countered with attacks, criminalisation and harassments’ and so on. As a result, these violations are part of the everyday lives of indigenous peoples and indigenous rights defenders across the world. See her statement at the 17th session of the United Nations Permanent Forum on Indigenous Issues (New York, 18 April 2018), http://unsr.vtaulicorpuz.org/site/index.php/en/statements/225-statement-unpfii2018 (accessed 27 April 2018). See also Andrew Anderson, ‘What is Happening Now Across the World is Nothing Less than a Systematic Attack on Peasant Communities and Indigenous Peoples’, Front Line Defenders (August 2018), https://mailchi.mp/rightsandresources/fld-espanol?e=791f76edda (accessed 6 September 2018).

7 Gilbert, Jérémie, Strategic Litigation Impacts: Indigenous Peoples’ Land Rights (New York: Open Society Foundations, 2017) 23 Google Scholar . See also Pentassuglia, Gaetano, ‘Towards a Jurisprudential Articulation of Indigenous Land Rights’ (2011) 22:1 The European Journal of International Law Google Scholar ; Soledad Torrecuadrada, ‘Los Derechos Indígenas sobre sus Territorios y los Recursos que se Encuentran en Ellos’ in Los Derechos Económicos, Sociales y Culturales en Tiempos de Crisis, Cursos de Derechos Humanos de Donostia-San Sebastián, XII (Navarra: Thomson Reuters Aranzadi, 2012).

8 Iglesias-Vázquez, María del Ángel, ‘La Protección de los Derechos de las Comunidades Indígenas en la Jurisprudencia de la Corte Interamericana de Derechos Humanos’ (2016) 13:26 Revista Principia Iuris Google Scholar .

9 See generally Amnesty International, Report 2017/18: The State of the World’s Human Rights (London: Amnesty International, 2018). See also The International Center for Transitional Justice, ‘Holding a Mirror to Society: Acknowledgment and the Struggle for Indigenous Peoples Rights’ (8 August 2018), https://www.ictj.org/news/holding-mirror-society-acknowledgment-and-struggle-indigenous-peoples-rights?utm_source=International+Center+for+Transitional+Justice+Newsletter&utm_campaign=6937d4fb50-World_Report_June_2018_COPY_01&utm_medium=email&utm_term=0_2d90950d4d-6937d4fb50-246021761 (accessed 23 August 2018); Cultural Survival, ‘Seven Human Rights Defenders in Guatemala Killed in the Last Month’ (13 June 2018), https://www.culturalsurvival.org/news/seven-human-rights-defenders-guatemala-killed-last-month (accessed 17 August 2018).

10 Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations’ “Protect, Respect and Remedy” Framework’, A/HRC/17/31 (21 March 2011). See generally Cabot, FJ Zamora, Urscheler, Lukas Heckendorn and De Dycker, Stéphanie (eds), Implementing the U.N. Guiding Principles on Business and Human Rights: Private International Law Perspectives (Zurich: Schulthess, 2017)Google Scholar ; Bernaz, Nadia, Business and Human Rights: History, Law and Policy – Bridging the Accountability Gap (New York: Routledge, 2017)Google Scholar .

11 Anaya, S James, ‘Divergent Discourses about International Law, Indigenous Peoples, and Rights over Lands and Natural Resources: Toward a Realist Trend’ (2005) 16 Colorado Journal of International Environmental Law and Policy 238 Google Scholar .

12 For a description of the Inter-American Human Rights System relating to indigenous peoples, see Anaya, S James and Williams, Robert A Jr, ‘The Protection of Indigenous Peoples’ Rights over Lands and Natural Resources Under the Inter-American Human Rights System’ (2001) 14 Harvard Human Rights Journal Google Scholar ; Pasqualucci, Jo M, ‘The Evolution of International Indigenous Rights in the Inter-American Human Rights System’ (2006) 6 Human Rights Law Review CrossRefGoogle Scholar ; Madariaga, Isabel, ‘The Rights of Indigenous Peoples and the Inter-American Human Rights System’ (2005) 22:1 Arizona Journal of International & Comparative Law Google Scholar .

13 Indigenous and Tribal Peoples ILO Convention No. 169 (adopted on 27 June 1989, entered into force on 5 September 1991). For information regarding the process of adoption, see generally Macklem, Patrick, ‘Indigenous Recognition in International Law: Theoretical Observations’ (2008) 30 Michigan Journal of International Law Google Scholar ; Mereminskaya, Elina, ‘El Convenio 169 de la OIT sobre Pueblos Indígenas y Tribales: Derecho Internacional y Experiencias Comparadas’ (2011) 121 Estudios Públicos Google Scholar. While having binding force, it has only been ratified by 23 countries and, thus, it cannot be regarded as an instrument of universal scope.

14 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), A/RES/61/295 (adopted on 13 September 2007). The Declaration was adopted with 144 votes in favour, 11 abstentions and four states against (Australia, Canada, New Zealand and the United States of America). A number of states have changed their stance later on, inclusive of the four which voted against but have now endorsed it. As an annex to a Resolution of the UN General Assembly, it technically has the effects derived from the instrument in which it is incorporated, that is, with non-legally binding nature. However, it contains rights and freedoms set out in binding international human rights treaty law and it reflects a global consensus on indigenous peoples’ rights. Therefore, the UNDRIP is worthy of the utmost respect and forms ‘an integral part of the evolving normative framework of indigenous peoples’ rights’ (Jérémie Gilbert and Cathal Doyle, ‘A New Dawn over the Land: Shedding Light on Collective Ownership and Consent’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Oxford: Hart Publishing, 2011) 326). See generally United Nations Human Rights Office of the High Commissioner, Indigenous Peoples and the United Nations Human Rights System, Fact Sheet No. 9, Rev. 2 (New York and Geneva: UN, 2013).

15 Currently, American Declaration on the Rights of Indigenous Peoples, AG/RES 1851 (XXXII-O/02) (adopted on 15 June 2016).

16 The Inter-American Court has recognized the relevant contribution of instruments of ‘varied content and juridical effects’, which includes both legally binding international instruments and non-binding instruments such as declarations and recommendations. In this respect, see generally Barelli, Mauro, ‘The Role of Soft Law in the International Legal System: The Case of the United Nations Declaration on the Rights of Indigenous Peoples’ (2009) 58 International and Comparative Law Quarterly CrossRefGoogle Scholar ; Davis, Megan, ‘To Bind or Not to Bind: The United Nations Declaration on the Rights of Indigenous Peoples Five Years On’ (2012) 3 Australian International Law Journal Google Scholar ; Voyiakis, Emmanuel, ‘Voting in the General Assembly as Evidence of Customary International Law?’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Oxford: Hart Publishing, 2011)Google Scholar .

17 Inter-American Commission on Human Rights, Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources. Norms and Jurisprudence of the Inter-American Human Rights System, OEA/Ser.L/V/II, Doc. 56/09, 30 December 2009.

18 de Wet, Erika, ‘The Collective Right to Indigenous Property in the Jurisprudence of Regional Human Rights Bodies’ (2015) 40 South African Yearbook of International Law 3 Google Scholar .

19 Bartolomé Clavero, ‘El Difícil Reto de la Declaración Americana sobre Derechos de los Pueblos Indígenas’ (15 July 2016), https://www.servindi.org/14/07/2016/el-dificil-reto-de-la-declaracion-americana-sobre-derechos-de-los-pueblos-indigenas (accessed 16 January 2018). Also, see generally Rosmerlin Estupiñan Silva and Juana María Ibáñez Rivas, ‘La Jurisprudencia de la Corte Interamericana de Derechos Humanos en Materia de Pueblos Indígenas y Tribales’ in Jane Felipe Beltrão et al (coords), Derechos Humanos de los Grupos Vulnerables (Barcelona: Red de Derechos Humanos y Educación Superior, 2014); Rodríguez-Pinero, Luis, ‘The Inter-American System and the UN Declaration on the Rights of Indigenous Peoples: Mutual Reinforcement’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Oxford: Hart Publishing, 2011)Google Scholar ; de Oliveira Mazzuoli, Valerio and Ribeiro, Dilton, ‘Indigenous Rights before the Inter-American Court of Human Rights: A Call for a Pro Individual Interpretation’ (2015) 1:4 Google Scholar Revista Jurídica Luso-Brasileira; International Labour Organization, Application of Convention No. 169 by Domestic and International Courts in Latin America (Geneva: ILO, 2009).

20 American Convention on Human Rights ‘Pact of San José, Costa Rica’, UN Doc 1144 UNTS 123 (adopted on 22 November 1969, entered into force on 18 July 1978).

21 Clavero, note 19.

22 Article 31 of the Vienna Convention on the Law of Treaties, UN Doc 1155 No. 18232 (adopted on 23 May 1969, entered into force on 27 January 1980): ‘1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose […]’.

23 Article 29.b) ACHR: ‘No provision of this Convention shall be interpreted as: […] b. restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any state party or by virtue of another convention to which one of the said states is a party’.

24 Stavenhagen, Rodolfo, ‘Pueblos Indígenas: Retos después de la Batalla’ in Felipe Gómez Isa and Mikel Berraondo (eds), Los Derechos Indígenas tras la Declaración: El Desafío de la Implementación (Bilbao: Universidad de Deusto, 2013) 16 Google Scholar . Also, see generally Wilhelmi, Marco Aparicio (ed), Los Derechos de los Pueblos Indígenas a los Recursos Naturales y al Territorio: Conflictos y Desafíos en América Latina (Barcelona: Icària, 2011)Google Scholar .

25 Isa, Felipe Gómez, ‘El Derecho de los Pueblos Indígenas sobre sus Tierras y Recursos Naturales: Conflicto Social y Ambiental a la Luz del Caso Awas Tingni’ (2012) 5:7 Conflicto Social 88 Google Scholar .

26 The Court specifically referred to the UNGPs when ruling on the affectation of indigenous peoples’ rights by mining activities in the Case of the Kaliña and Lokono Peoples v Suriname, Inter-American Court of Human Rights, Judgement of 25 November 2015, Ser C, 309, para 224.

27 OAS General Assembly, ‘Promotion and Protection of Human Rights’, AG/RES 2887 (XLVI-O/16) (14 June 2016). Available at: http://www.oas.org/en/sla/dil/docs/AG-RES_2887_XLVI-O-16.pdf (accessed on 10 September 2018).

28 Grossman, Claudio. ‘Awas Tingni v. Nicaragua: A Landmark Case for the Inter-American System’ (2001) 8:3 Human Rights Brief Google Scholar . See also Vuotto, Jonathan P, ‘Awas Tingni v Nicaragua: International Precedent for Indigenous Land Rights?’ (2004) 22 Boston University International Law Journal Google Scholar ; Acosta, María Luisa, El Derecho de los Pueblos Indígenas al Aprovechamiento Sostenible de sus Bosques: El Caso de la Comunidad Mayangna (Sumo) de Awas Tingni, 1st edn (Managua: Editarte, 2004)Google Scholar .

29 Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua, Inter-American Court of Human Rights, Judgement of 31 August 2001, Ser C, 79.

30 James Anaya, S and Grossman, Claudio, ‘The Case of Awas Tingni v Nicaragua: A New Step in the International Law of Indigenous Peoples’ (2002) 19:1 Arizona Journal of International & Comparative Law 2 Google Scholar .

31 Alvarado, Leonardo J, ‘Prospects and Challenges in the Implementation of Indigenous Peoples’ Human Rights in International Law: Lessons from the Case of Awas Tingni v Nicaragua’ (2007) 24:3 Arizona Journal of International & Comparative Law Google Scholar . As regards the implementation of this decision (or lack thereof), see also Isa, Felipe Gómez, ‘The Decision by the Inter-American Court of Human Rights on the Awas Tingni v Nicaragua Case (2001): the Implementation Gap’ (2017) 8 The Age of Human Rights Journal 69–91.Google Scholar

32 Article 21 ACHR: ‘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 […]’.

33 Anaya and Grossman, note 30, 1. See also Robert T Coulter, ‘The Awas Tingni Case: The Inter-American Court of Human Rights and Indigenous Peoples’ Collective Right to their Lands and Natural Resources’, paper presented at the Meeting of the Working Group on the Fifth Section of the Draft American Declaration on the Rights of Indigenous Peoples with special emphasis on ‘Traditional Forms of Ownership and Cultural Survival. Right to Land and Territories’, held in Washington, DC on 7–8 November 2002 (OEA/Ser.K/XVI GT/DADIN/doc.97/02); Willem Van Genugten and Camilo Pérez-Bustillo, ‘The Emerging International Architecture of Indigenous Rights: The Interaction between Global, Regional, and National Dimensions’ (2004) 11 International Journal on Minority and Group Rights 400; Rodríguez-Pinero, note 19, 461; Alvarado, note 31, 613. The influence of this decision has been manifested not only in subsequent cases brought before the Inter-American Court (for instance, see Case of the Kuna Indigenous People of Madungandi and the Embera Indigenous Peoples of Bayano and their Members v Panama, Inter-American Court of Human Rights, Judgement of 14 October 2014, Ser C, 284; Case of the Xucuru Indigenous People v Brasil, Inter-American Court of Human Rights, Judgement of 5 February 2018, Ser C, 346) but also at the national level in the Americas, where the case of the Awas Tingni has contributed to the adoption of international law standards on indigenous peoples’ rights by domestic courts, most prominently in Belize (e.g., see Case of the Maya Village of Santa Cruz v Attorney General of Belize, Decision of the Supreme Court of Belize, A.D. 2007, Consolidated Claims Nos. 171 and 172 of 2007). As for Nicaragua, the Awas Tingni case gave rise to the enactment of an indigenous demarcation law (Law No. 445 of Communal Property Regime of the Indigenous Peoples and Ethnic Communities of the Autonomous Regions of the Atlantic Coast of Nicaragua and of the Rivers Bocay, Coco, Indio and Maíz) by the Nicaraguan National Assembly in 2003, as well as to an electoral Commitment Agreement between the Sandinista National Liberation Front (Frente Sandinista de Liberación Nacional, FLSN) and YATAMA (the indigenous political party that represents the indigenous peoples of the Atlantic Coast) that was aimed, inter alia, at supporting the process of demarcating and titling indigenous territories based on the aforementioned Law No. 445 and the criteria of the IACtHR included in the Awas Tingni case. After the victory of this coalition and its coming to power in January 2007, Nicaragua’s political scenario regarding the demarcation and titling process of indigenous territories on the Atlantic Coast received a significant boost (see Gómez Isa, note 31, 80).

34 Case of Awas Tingni v Nicaragua, para 149.

35 This governmental aid can take the form of an active support, by providing enterprises with public security forces which are added to their own private security or by granting them fraudulent licenses with full legal effects, but it can also imply a passive support when public authorities overlook the incursions and abuses carried out by such enterprises and their personnel, which represents a way to ally with them at the cost of indigenous peoples’ rights.

36 Case of the Saramaka People v Suriname, Inter-American Court of Human Rights, Judgement of 28 November 2007, Ser C, 172.

37 Luis Rodríguez-Pinero, note 19, 472, 473. See also Oswaldo Ruiz Chiriboga and Gina Donoso, ‘Pueblos Indígenas y la Corte Interamericana: Fondo y Reparaciones’ in Christian Steiner and Patricia Uribe (eds), Comentario a la Convención Americana sobre Derechos Humanos (Bolivia: Konrad-Adenauer-Stiftung, 2014).

38 Case of the Saramaka People v Suriname, para 137.

39 Case of the Kichwa Indigenous People of Sarayaku v Ecuador, Inter-American Court of Human Rights, Judgement of 27 June 2012, Ser C, 245.

40 Ibid, para 164. See also Bordignon, Marta, ‘The State Duty to Consult and the Right to Consent of Indigenous Peoples: The Sarayaku Case in Ecuador’ in Carmen Márquez Carrasco (ed), Spain and the Implementation of the United Nations Guiding Principles on Business and Human Rights: Challenges and Opportunities (Barcelona: Huygens, 2014)Google Scholar .

41 Mario Melo, ‘Indigenous Peoples Rights in the Jurisprudence of the Inter-American Court of Human Rights. Advances Achieved in the Case of the Kichwa Community of Sarayaku v Ecuador’ (2014) VIII Anuario Facultad de Derecho – Universidad de Alcalá, 280. In this judgement, the Court constantly refers to the ILO Convention No. 169 (Arts 6 and 15) and the UNDRIP (Arts 19 and 32.2) as key points of reference in the normative development of the indigenous right to FPIC.

42 Iglesias-Vázquez, note 8, 289.

43 Article 4 ACHR: ‘1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life […]’. The right to life is also provided for in Article 7 UNDRIP (‘1. Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person’).

44 Sergio G Ramírez, ‘Los Indígenas en la Jurisprudencia de la Corte Interamericana de Derechos Humanos’, paper presented at the conference ‘Taller de Estrategias y Propuestas para la Defensa y Promoción de los Derechos de los Pueblos Indígenas’, organized by the Mexican Academy of Human Rights on 13 September 2005.

45 Guiding Principle 1, UNGPs, note 10. The security measures a government can take to prevent human rights abuses in its territory range from ensuring public security forces do not ally with businesses and actively control conflictual situations by assisting potential victims to establishing a strict licensing system that takes notice of international standards on business and human rights and that has to be complied with by private security contractors working for enterprises.

46 Consejo de Desarrollo de Nacionalidades y Pueblos del Ecuador (CODENPE), ‘The Kichwa Nation of the Amazon’, http://www.puerta-yasuni.com/index.php?option=com_content&view=article&id=5&Itemid=8 (accessed 29 January 2018). See generally Gina Chávez, Rommel Lara and María Moreno, Sarayaku: El Pueblo del Cenit, Identidad y Construcción Étnica. Informe Antropológico-jurídico sobre los Impactos Sociales y Culturales de la Presencia de la Compañía CGC en Sarayaku (Quito: Facultad Latinoamericana de Ciencias Sociales, Centro de Derechos Económicos y Sociales, 2005).

47 Case of the Kichwa Indigenous People of Sarayaku v Ecuador, paras 58–65.

48 Application filed by the Inter-American Commission on Human Rights with the Inter-American Court of Human Rights against the Republic of Ecuador, Case 12.465 ‘Kichwa People of Sarayaku and its Members’ (26 April 2010), para 70. See also Case of Sarayaku v Ecuador, para 73.

49 Case of Sarayaku v Ecuador, para 74, 75.

50 Application filed by the IACHR with the IACtHR against the Republic of Ecuador, para 79, 81.

51 A Cooperation Agreement on Military Security between the Ministry of National Defence and the oil companies operating in Ecuador was signed in Quito on 30 July 2001, which showed that the state supported the oil exploration activities. Members of the Sarayaku Community pointed out that the purpose of their presence was to ensure the continuity of CGC work and that they represented CGC’s public security. See Case of Sarayaku v Ecuador, para 78, 190–193. Pursuant to the Agreement, the state ordered a military presence in the Sarayaku territory and its neighbouring communities and, accordingly, four military bases were set up. See Application filed by the IACHR with the IACtHR against the Republic of Ecuador, para 80.

52 Case of Sarayaku v Ecuador, para 101. At the time of the judgement, the explosives had not been removed yet. See also Application filed by the IACHR with the IACtHR against the Republic of Ecuador, para 79.

53 Complaint filed on 19 April 2004 for threats received via telephone and email; Complaint filed on 27 February 2003 by José Gualinga for an alleged false report on his death in a road accident; Complaint filed on 1 March 2004 by Marlon Santi over an alleged assault. Furthermore, José Serrano Salgado, then the lawyer and legal representative of the Sarayaku, reported on 23 April 2004 that he had been attacked and assaulted by three armed and hooded men who had warned him to stop defending the Sarayaku. See Case of Sarayaku v Ecuador, para 107, note 125.

54 Prior to the attack, the Sarayaku had sent the Canelos People an invitation to join the march, in response to which the Canelos issued a press release declaring that they would not take part in the march nor would they allow freedom of movement within their territory for those who opposed the oil matter. As a result of the assault, up to twenty members of the Community got injured. See Case of Sarayaku v Ecuador, paras 107–113. See also Application filed by the IACHR with the IACtHR against the Republic of Ecuador, para 86.

55 After nine years of denial of the facts of the case, Dr Alexis Mera (former Secretary for Legal Affairs of the Presidency of the Republic of Ecuador) acknowledged, during the Court’s visit to the Sarayaku territory, the international responsibility of the state for the events that occurred in 2003, namely the invasive acts, the actions of the Armed Forces and the acts of destruction of natural resources. Even though the Sarayaku appreciated this shift, they decided to wait for the judgement of the IACtHR and stated that they would only engage in a conversation with the state once the Court’s decision had been pronounced. See Case of Sarayaku v Ecuador, paras 23–28. See also Mario Melo, ‘El Caso Sarayaku Pone a Prueba la Democracia y el Estado de Derechos en el Ecuador’ (13 July 2012), https://mariomelo.wordpress.com/2012/07/13/el-caso-sarayaku-pone-a-prueba-la-democracia-y-el-estado-de-derechos-en-el-ecuador/ (accessed 21 August 2018).

56 Ibid, para 232. See also Mario Melo, note 41; Madariaga, note 12, 59–60. For detailed information regarding the right to free, prior and informed consent, see Arévalo, Amelia Alva, El Derecho a la Consulta Previa de los Pueblos Indígenas en Derecho Internacional (Bilbao: Universidad de Deusto, 2014)Google Scholar .

57 In addition, the detonation of explosives had demolished forests, water sources and sacred sites and had endangered the Sarayaku’s right to transmit its cultural heritage. See Case of Sarayaku v Ecuador, para 233.

58 Inter-American Commission on Human Rights, ‘The Kichwa Peoples of the Sarayaku Community and its Members v Ecuador’, Admissibility Decision, Report No. 62/04, Petition 167/03 (13 October 2004), para 2.

59 Case of Sarayaku v Ecuador, para 234.

60 Case of Pueblo Bello Massacre v Colombia, Inter-American Court of Human Rights, Judgement of 31 January 2006, Ser C, 140, para 120; Case of 19 Merchants v Colombia, Inter-American Court of Human Rights, Judgement of 5 July 2004, Ser C, 109, para 153; Case of Myrna Mack Chang v Guatemala, Inter-American Court of Human Rights, Judgement of 25 November 2003, Ser C, 101, para 152; Case of Juan Humberto Sánchez v Honduras, Inter-American Court of Human Rights, Judgement of 7 June 2003, Ser C, 99, para 110; Case of Niños de la Calle v Guatemala, Inter-American Court of Human Rights, Judgement of 19 November 1999, Ser C, 63, para 144.

61 Case of Pueblo Bello Massacre v Colombia, para 123; Case of the Sawhoyamaxa Indigenous Community v Paraguay, Inter-American Court of Human Rights, Judgement of 29 March 2006, Ser C, 146, para 155; Case of Sarayaku v Ecuador, para 245.

62 Case of the ‘Juvenile Reeducation Institute’ v Paraguay, Inter-American Court of Human Rights, Judgement of 2 September 2004, Ser C, 112, para 176; Case of the Yakye Axa Indigenous Community v Paraguay, Inter-American Court of Human Rights, Judgement of 17 June 2005, Ser C, 125, paras 160–178; Case of the Massacre of La Rochela v Colombia, Inter-American Court of Human Rights, Judgement of 11 May 2007, Ser C, 163, paras 123–128.

63 According to Professor Shashi Kanth, ‘the leaving behind of explosives, with visible detonation cables, poses a very serious situation because they can be triggered deliberately or accidentally’ (Affidavit of 25 May 2011). Additionally, the expert witness William E Powers considered that the explosives abandoned in the Sarayaku territory constituted a ‘latent danger’ to them (Affidavit of 29 June 2011). See Case of Sarayaku v Ecuador, para 247, note 311.

64 The latest official update dates from 22 June 2016, when the IACtHR issued a Resolution on oversight of compliance with the judgement declaring which reparations had been made and which had not, being one of the latter the state obligation to neutralize, deactivate and, if applicable, completely remove the pentonite in the territory. Available at: http://www.corteidh.or.cr/docs/supervisiones/sarayaku_22_06_16.pdf and http://www.corteidh.or.cr/docs/supervisiones/SCS/ecuador/sarayaku/sarayakup.pdf (accessed 7 November 2018).

65 Article 5 ACHR: ‘Every person has the right to have his physical, mental, and moral integrity respected […]’.

66 Case of Sarayaku v Ecuador, paras 246–249.

67 The Canelos Community had announced previously that they would not let the Sarayaku pass through its territory, which made it evident that a contingent of only ten police officers could not be capable of preventing acts of violence. See Case of Sarayaku v Ecuador, para 236, 237.

68 These sorts of acts continue unabated even today. On 5 January 2018, Patricia Gualinga, a human rights Sarayaku defender and indigenous leader who played a key role in this process, was reportedly attacked at her own home in Puyo by a stranger who threw stones while shouting death threats. See Amnesty International, ‘Acción Urgente: Ataque contra Defensora Indígena’ AMR 28/7714/2018 (11 January 2018).

69 Case of Sarayaku v Ecuador, para 241, 242.

70 Article 7 ACHR: ‘Every person has the right to personal liberty and security […]’.

71 Case of Sarayaku v Ecuador, para 254.

72 Ibid, para 251.

73 Case of Garífuna Community of Triunfo de la Cruz v Honduras, Inter-American Court of Human Rights, Judgement of 8 October 2015, Ser C, 305, para 46; Case of Garífuna Community of Punta Piedra v Honduras, Inter-American Court of Human Rights, Judgement of 8 October 2015, Ser C, 304, para 82.

74 National Institute of Statistics, ‘2013 Census of Population and Housing’ http://170.238.108.227/binhnd/RpWebEngine.exe/Portal?BASE=CPVHND2013NAC&lang=ESP (accessed 23 January 2018).

75 The World Bank Inspection Panel, ‘Honduras: Land Administration Project (IDA Credit 3858-HO)’, Investigation Report No. 39933-HN (12 June 2007) 16. According to the Project Appraisal Document of the Bank-financed, Honduras: Judicial Branch Modernization Project (IDA Credit No. 4098-HO approved by the Board of Directors on 7 July 2005), the Garífuna population is estimated between 100,000 and 190,000 people.

76 See Amnesty International, ‘Honduras: Justice Fails Indigenous People’ AMR 37/10/99/s (September 1999), which shows its concerns about abuses against indigenous peoples in Honduras committed by individuals or groups allegedly linked to local authorities and the military (including references to Garífuna communities); Report of the United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Doudou Diène, ‘Mission to Honduras’ E/CN.4/2005/18/Add.5 (22 March 2005), para 19, which reveals that, due to their claims, Garífuna leaders are persecuted and even killed by politicians and the military, or by enterprises that have an interest in taking possession of their lands.

77 Case of López Álvarez v Honduras, Inter-American Court of Human Rights, Judgement of 1 February 2006, Ser C, 141, para 54.3, note 21.

78 Case of Triunfo de la Cruz v Honduras, paras 58–89.

79 See Executive Decree No. PCM-022-2005.

80 Inter-American Commission on Human Rights, ‘Garífuna Community of “Triunfo de la Cruz” and its members v Honduras’, Report No. 76/12, Case 12.548 (7 November 2012), paras 180–189. Moreover, the Commission deems the arbitrary arrests of Garífuna leaders as a way to intimidate those engaged in activities in defence of their land.

81 The victims of these murders were Óscar Brega, Jesús Álvarez, Jorge Castillo and Julio Alberto Morales. According to a Memorandum of 9 October 1996 by the Principal Prosecutor addressed to the Office of the Prosecutor for Ethnic Groups, ‘Mr Óscar Brega was driving in his own vehicle toward the paved road when he was intercepted by unknown persons who shot and killed him inside his car’ (IACHR Report No. 76/12, para 181, note 243). With regard to Jesús Álvarez, as Deputy Mayor of the Community, he had previously been the victim of attempted murder due to his determined opposition to the illegal sales of traditional land. On 17 March 1995, he appeared before the Office of the Attorney General and stated that he believed ‘the instigator of the attack was Don Heriberto Díaz [former Mayor of Tela] because he was interested in the lands of Triunfo de la Cruz’. Two years after his statement, on 9 May 1997, unknown persons shot him and he died on 11 May 1997 as a result of that attack (IACHR Report No. 76/12, para 182, 183). As for Jorge Castillo and Julio Alberto Morales, their crimes had still not been investigated by the date of the judgement (IACHR Report No. 76/12, para 184).

82 Case of Triunfo de la Cruz v Honduras, para 208; Case of Santo Domingo Massacre v Colombia, Inter-American Court of Human Rights, Judgement of 30 November 2012, Ser C, 259, para 189; Case of Velásquez Rodríguez v Honduras, Inter-American Court of Human Rights, Judgement of 29 July 1988, Ser C, 04, para 174.

83 Case of Triunfo de la Cruz v Honduras, para 209; Case of Pueblo Bello Massacre v Colombia, para 123; Case of Luna López v Honduras, Inter-American Court of Human Rights, Judgement of 10 October 2013, Ser C, 269, para 123.

84 With regard to the murder of Óscar Brega, there was some information about it in the Memorandum referred to in note 81. With respect to Jorge Castillo and Julio Alberto Morales, there is an undated press release that does not provide information about their murders. However, the representatives’ written request alleged that Jorge Castillo had suffered several anonymous threats and an attack the night before he died. Case of Triunfo de la Cruz v Honduras, para 210.

85 According to the material in the case file, there was a document of 30 January 1995 addressed to the Prosecutor for Ethnic Groups by the Committee for the Defence of the Lands of Triunfo de la Cruz (CODETT) in which the investigation of the attempted murder of Jesús Álvarez was requested. See Case of Triunfo de la Cruz v Honduras, para 212.

86 Case of Triunfo de la Cruz v Honduras, para 211, 214.

87 Article 8 ACHR: ‘Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law […]’.

88 Article 25 ACHR: ‘Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention […]’.

89 Case of Triunfo de la Cruz v Honduras, para 253. According to the IACtHR Resolution on oversight of compliance with the judgement of 1 September 2016, the state had still not fulfilled its obligation to investigate the crimes in a reasonable period of time. Available at: http://www.corteidh.or.cr/docs/supervisiones/SCS/honduras/gar%C3%ADfunatrinunfo/gar%C3%ADfunatriunfop.pdf (accessed 7 November 2018).

90 The National Agrarian Institute granted two property titles to the Garífuna Community of Punta Piedra: the first one on 16 December 1993 (File No. 25239) for a surface area of approximately 800 hectares and the second one on 6 December 1999 (File No. 52147-10775) for a surface area of 1.513 hectares.

91 This case was brought to trial, and so was the previous case, by the Black Fraternal Organization of Honduras (OFRANEH).

92 See the Brief containing Pleadings, Motions and Evidence submitted by the Petitioners on 3 January 2014. Available at: http://www.corteidh.or.cr/docs/casos/comunidad_gar%C3%ADfuna_punta_piedra_hn/esap.pdf (accessed 7 September 2018). See also Inter-American Commission on Human Rights, ‘Garífuna Community of “Punta Piedra” and its members v Honduras’, Report No. 30/13, Case 12.761 (21 March 2013), para 11, 12. Miguel Facussé was a Honduran businessman and landowner considered one of the three most powerful men in Honduras. See http://www.dinant.com/index.php/en/biografia-don-miguel-facusse (accessed 7 September 2018).

93 Honduran Institute of Geology and Mining, Resolution No. 105/12/2014 (4 December 2014). This concession expressly authorized the corporation to use the subsoil and to carry out mining activities and other works over the area of the concession. See Case of Punta Piedra v Honduras, para 125, 219.

94 Félix Ordóñez Suazo was the Community Coordinator and died on 11 June 2007 due to three gunshots. According to the facts narrated by Marcos Bonifacio, the only witness, two Miel River settlers were the perpetrators of the crime as a result of the conflict over a plot of land. See Case of Punta Piedra v Honduras, para 138, 139.

95 OFRANEH, ‘Estado de Honduras Incumple Sentencias de la Corte IDH en relación a Comunidades Garífunas’, Lista Informativa Nicaragua y Más (21 December 2016), https://nicaraguaymasespanol.blogspot.com.es/2016/12/estado-de-honduras-incumple-sentencias.html (accessed 25 January 2018); ‘Comunidades Garífunas Exigen Cumplimiento de Sentencia de la CIDH sobre sus Territorios’, Criterio.hn (11 October 2017), https://criterio.hn/2017/10/11/comunidades-garifunas-exigen-cumplimiento-sentencia-la-cidh-territorios/ (accessed 26 January 2018).

96 Case of Punta Piedra v Honduras, para 140, note 156.

97 According to the complaint No. 0801-2010-12739 filed on 16 April 2010, two Miel River settlers had encroached on lands owned by the Community and, in particular, on a part of the territory given to Paulino Mejía for the purpose of working the land.

98 Case of Punta Piedra v Honduras, paras 149–154.

99 Petitioner’s written statement submitted to the Commission on 14 June 2007. See Case of Punta Piedra v Honduras, para 257.

100 IACHR Report No. 30/13, para 110.

101 In accordance with some members’ statements, ‘Félix Ordóñez was a leader and that is why he was killed […]. He defended his people with his life’; ‘Strong armed men threaten us all the time, as if they were hunting animals. They drop by shooting in the bush’; ‘Every day the sons of the Community are persecuted by the invaders’. See Case of Punta Piedra v Honduras, paras 266–269.

102 Case of Punta Piedra v Honduras, paras 270–279.

103 Ibid, 302. However, by 1 September 2016, the state had still not continued and concluded the investigation. IACtHR Resolution on oversight of compliance with the judgement accessible at http://www.corteidh.or.cr/docs/supervisiones/SCS/honduras/gar%C3%ADfunapuntapiedra/gar%C3%ADfunapuntapiedrap.pdf (accessed 7 November 2018).

104 Case of Punta Piedra v Honduras, para 276.

105 Ibid, para 271, 273.

106 Iglesias-Vázquez, note 8, page 270.

107 Mauricio Iván del Toro Huerta, ‘Los Aportes de la Jurisprudencia de la Corte Interamericana de Derechos Humanos en la Configuración del Derecho de Propiedad Colectiva de los Miembros de Comunidades y Pueblos Indígenas’ (2008) Yale Law School SELA 13.

108 Case of the Sawhoyamaxa v Paraguay, para 73.4. See also Pasqualucci, Jo M, ‘International Indigenous Land Rights: A Critique of the Jurisprudence of the Inter-American Court of Human Rights in Light of the United Nations Declaration on the Rights of Indigenous Peoples’ (2009) 27 Wisconsin International Law Journal Google Scholar .

109 By the date of the judgements, the Yakye Axa Community’s lands were owned by ‘Florida Agricultural Corporation’, ‘Livestock Capital Group, Inc.’ and ‘Agricultural Development, Inc.’; the Sawhoyamaxa’s lands were owned by ‘Paraguay Steer Company, Inc.’; and the Xákmok Kásek’s lands by ‘Eaton y Cía, S.A.’ and the ‘Chortitzer Komitee Mennonite Cooperative’. See Case of the Yakye Axa v Paraguay, para 50.30; Case of the Sawhoyamaxa v Paraguay, para 73.27; Case of the Xákmok Kásek, para 69.

110 Antkowiak, Thomas M, ‘Rights, Resources and Rhetoric: Indigenous Peoples and the Inter-American Court’ (2014) 35:1 University of Pennsylvania Journal of International Law 146 Google Scholar .

111 Case of the Yakye Axa v Paraguay, para 164. See also Ramírez, Andrés D, ‘El Caso de la Comunidad Indígena Yakye Axa vs. Paraguay’ (2005) 41 Inter-American Institute of Human Rights Journal Google Scholar .

112 Case of the Yakye Axa v Paraguay, paras 157–178; Case of the Sawhoyamaxa v Paraguay, paras 145–180; Case of the Xákmok Kásek Indigenous Community v Paraguay, Inter-American Court of Human Rights, Judgement of 24 August 2010, Ser C, 214, paras 183–234.

113 Saranti, Vasiliki, ‘International Justice and Protection of Indigenous Peoples – The Case-Law of the Inter-American Court of Human Rights’ (2012) 9:427 US-China Law Review 444 Google Scholar .

114 Case of the Yakye Axa v Paraguay, para 176.

115 Case of the Yakye Axa v Paraguay, para 178. This clearly implies that the IACtHR’s positioning as regards the need for sufficient, suitable evidence coincides with the judgements already examined in this section.

116 Iglesias-Vázquez, note 8, 275. See also partially dissenting opinion of Judge A Abreu Burelli, separate dissenting opinion of Judges AA Cançado Trindade and ME Ventura Robles, and partly concurring and partly dissenting opinion of Judge Ramón Fogel on the Case of the Yakye Axa v Paraguay.

117 Case of Niños de la Calle v Guatemala, para 144; Case of the Yakye Axa v Paraguay, para 161. Judge Ventura Robles makes explicit reference to this fact in his separate opinion on the Case of the Sawhoyamaxa v Paraguay, the following judgement of this ‘trilogy’ of Paraguayan cases. He explains that the Court first advanced the interpretation of the right to life as encompassing not only the prohibition of the arbitrary deprivation of life, but also the obligation to assure the ‘conditions that guarantee a dignified existence’, in its renowned decision on the Case of Niños de la Calle v Guatemala (para 144). He argues that such interpretation of the right to life in that case was not restrictive, ‘as it was in the case of Yakye Axa’. See separate opinion of Judge Ventura Robles on the Case of the Sawhoyamaxa v Paraguay.

118 Case of the Sawhoyamaxa v Paraguay, para 178; Case of the Xákmok Kásek, para 234.

119 Case of the Yakye Axa v Paraguay, para 176; Case of the Sawhoyamaxa v Paraguay, para 156, 178; Case of the Xákmok Kásek, para 217.

120 According to the testimony of Esteban López, alleged victim and community leader, the threats became constant after the beginning of the process of claiming their lands. One night, three dressed-up individuals entered the Community shooting with firearms and professed explicit death threats while slaughtering some hens and saying that would happen to Community leaders. That incident was also corroborated by the statement of Albino Fernández, who claimed to have seen acts of violence suffered by the Community. Moreover, in accordance with the testimony of Inocencia Gómez, an alleged victim, at Loma Verde estate, an individual known as the ‘killer’ spent his days walking alongside the fence with a shotgun threatening children and women who tried to cross it. See Case of the Yakye Axa v Paraguay, para 50.91, note 152.

121 Case of the Yakye Axa v Paraguay, para 50.108.

122 Case of the Sawhoyamaxa v Paraguay, statement by Ms Elsa Ayala, alleged victim.

123 Ibid, para 182. According to the statement rendered by Ms Gladys Benítez before a public official on 17 January 2006, they had to keep a low profile in these incursions since, if they turned out to be found, those so-called ‘white men’ shot at their heads, ‘as it happened not long ago with a member of the Community’.