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Guide to Indigenous Peoples' Rights in the Inter-American Human

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Guide to Indigenous Peoples' Rights in the Inter-American Human 1 2 GUIDE TO INDIGENOUS PEOPLES’ RIGHTS IN THE INTER-AMERICAN HUMAN RIGHTS SYSTEM Fergus MacKay IWGIA Copenhagen 2002 3 GUIDE TO INDIGENOUS PEOPLES’ RIGHTS IN THE INTER-AMERICAN HUMAN RIGHTS SYSTEM © Copyright: The Forest Peoples Programme (FPP) and the International Work Group for Indigenous Affairs (IWGIA) Author: Fergus MacKay Editor: Lola García Alix Translation from English: Mario Di Lucci Cover and layout: Jorge Monrás Prepress and print: Eks-Skolens Trykkeri aps Copenhagen, Denmark ISBN: 87-90730-59-3 ISSN: 0105-4503 THE FOREST PEOPLES PROGRAMME (FPP) 1c Fosseway Business Centre - Strattford Road Moreton-in-Marsh, GL56 9NQ, England Tel: (+44) 1608 652983 - Fax: (+44) 1698 652878 E-mail: [email protected] INTERNATIONAL WORK GROUP FOR INDIGENOUS AFFAIRS Classensgade 11 E, DK 2100 - CopenhageN, Denmark Tel: (+45) 35 27 05 00 - Fax: (+45) 35 27 05 07 E-mail: [email protected] - www.iwgia.org 4 This guide has been produced with financial support from The Danish Ministry of Foreign Affairs 5 CONTENT Summary .............................................................................. Introduction .......................................................................... Chapter I The Organization of American States and Human Rights ............................................................. Chapter II Rights protected by Inter-American human rights instruments .................................................. A. Articles 1 and 2 of the American Convention...................... B. Other international instruments ........................................... Chapter III The Inter-American Commission and Court on Human Rights .................................................... Chapter IV Submitting a petition to the Inter-American human rights system ......................................................... A. General requirements for submitting a petition ........................................................ B. The process .......................................................................... 1. Pre-admissibility Screening ............................................. 2. Admissibility ................................................................... a. Exhaustion of domestic remedies ............................... b. Admissibility report ...................................................... 3. Merits ............................................................................... 4. Other features of the process ......................................... a. Precautionary measures .............................................. b. Friendly settlement ...................................................... c. Transmission to the Inter-American Court on Human Rights............................................... 6 Chapter V Jurisprudence of the Commission and Court ................................................. A. Friendly Settlements ................................................ 1. Enxet-Lamenxay and Kayleyphapoyet Indigenous Communities............................................... B.Decisions on Cases and Reports Issues by IACHR ................................................. 1. Yanomami Case ........................................................... 2. Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin ......................................... 3. Report on the Situation of Human Rights in Ecuador ........................................ 4. Pending Cases ............................................................. a. Maya Indigenous Communities and Their Members .................................................. b. Mary and Carrie Dann.............................................. c. Carrier Sekani Case ................................................. d. Association of Indigenous Communities Lhaka Honhat ..................................... C.Special Country Situation Report off the IACHR .................................................................... 1. Mexico (1998) ............................................................... 2. Colombia (1999) ........................................................... 3. Peru (2000) .................................................................. 4. Guatemala (2001) ........................................................ 5. Paraguay (2001) ........................................................... D. Cases Decided by the Inter-American Court on Human Rights .................................................. 1. Awas Tingni v. Nicaragua ................................................ 2. Aloeboetoe et al. v. Suriname .......................................... 7 Chapter VI The Proposed OAS Declaration on the Rights of Indigenous Peoples .......................... A. The Working Group of the Committee on Juridicial and Political...................................................... 1.Backgroung ........................................................................ 2.The first session of the Working Group (November 1999) ................................................... 3. The second session of the Working Group (April 2001) ........................................................... 4. Activities since the second session ................................. B. An Overview of the Substance of the Proposed American Declaration .................................... 1. General Comments ......................................................... 2. To whom does the Declaration Apply? .......................... 3. Non-discrimination and Affirmative Action...................... 4. Autonomy and Self-government ..................................... 5. Political Participation Rights ........................................... 6. Lands, Territories and Resources................................... 7. Cultural Integrity .............................................................. 8. Treaties ............................................................................ 9. Indigenous Women ......................................................... 10.Conclusion ....................................................................... Annexes A. Ratifications of the American Convention on Human Rights ......................................... B. Declaration of the Hemispheric Caucus of Representatives of Indigenous Populations ................... C. Declaration of the Indigenous Peoples Summit of the Americas ................................... Notes ..................................................................................... 8 9 10 SUMMARY 1111 SUMMARY ndigenous peoples of the Americas continue to suffer serious I abuses of their human rights. In particular, they are experienc- ing heavy pressure on their lands from logging, mining, roads, conservation activities, dams, agribusiness and colonization. Al- though most American states have laws which recognize and pro- tect Indigenous peoples’ rights, to varying degrees, these laws are often violated. In other cases, adequate laws are not in place. Also, in many American states, national laws are inconsistent with the binding obligations of these same states under international human rights law. The Inter-American human rights system has mechanisms designed to address these very real problems. The system places binding obligations on all American states to comply with human rights standards. These rights include the rights of Indigenous peoples, among others: • To lands, territories and resources traditionally occupied and used, to a healthy environment and to be free from forcible relocation; • To cultural and physical integrity; • To meaningful participation in decisions that affect them; • To maintain and use their own cultural, social and political institutions; • To be free from discrimination and to equal protection of the law. Procedures exist for filing complaints about the abuse of these rights with the Inter-American bodies charged with oversight and protection of human rights. Decisions of the Inter-American Court on Human Rights, one of these bodies, are binding upon states. On human rights matters, the Court is effectively the highest court of the Americas to which Indigenous peoples can seek redress of their grievances. This booklet sets out in detail how the Inter-American human rights system works. It summarizes what rights are protected, with a 12 focus on those of particular importance to Indigenous peoples. It also provides detailed guidance on how to submit petitions to the Inter-American Commission on Human Rights. Summaries of rel- evant cases and judgments that have already passed through the system or ones that are in progress are also included. These cases and judgments provide show how the system deals with Indig- enous rights and provide concrete examples of how a case can be moved through the system as a way of illustrating some of the points made in the section on how to submit a petition. We hope that this booklet will provide Indigenous peoples with a better understanding of their rights and encourage them to use these international procedures to gain redress. We also hope it will help spur American states to reform their domestic laws and judi- cial procedures so that they provide effective and meaningful pro- tections for the rights of the Indigenous peoples within their juris- dictions. The manuscript of this Guide has been produced with the support of a grant from the Ford Foundation 13 14 INTRODUCTION 1515 INTRODUCTION ndigenous peoples’ rights have assumed an important place in I international human rights law and a discrete body of law
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