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Inter-American Court of Human Rights INTER-AMERICAN COURT OF HUMAN RIGHTS CASE OF THE KICHWA INDIGENOUS PEOPLE OF SARAYAKU v. ECUADOR JUDGMENT OF JUNE 27, 2012 (Merits and Reparations) In the Case of Kichwa Indigenous People of Sarayaku , the Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the Court”) composed of the following judges: Diego García-Sayán, President; Manuel E. Ventura Robles, Vice-President; Leonardo A. Franco, Judge; Margarette May Macaulay, Judge; Rhadys Abreu Blondet, Judge; Alberto Pérez Pérez, Judge; Eduardo Vio Grossi, Judge ; and also present, Pablo Saavedra Alessandri, Secretary, and Emilia Segares Rodríguez, Deputy Secretary, pursuant to Articles 62(3) and 63(1) of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) and Articles 31, 32, 42, 65 and 67 of the Rules of Procedure of the Court 1 (hereinafter “the Rules of Procedure”), delivers this Judgment, which is structured in the following manner: 1 The Rules of Procedure approved by the Court at its Eighty-fifth Regular Period of Sessions held on November 16-28, 2009, apply in this case in accordance with the provisions of Article 79 of said Rules of Procedure. Article 79.2 of the Rules of Procedure stipulates that“[i]n cases in which the Commission has adopted a report under Article 50 of the Convention before these Rules of Procedure have come into force, the presentation of the case before the Court will be governed by Articles 33 and 34 of the Rules of Procedure previously in force. Statements shall be received with the aid of the Victim’s Legal Assistance Fund, and the dispositions of these Rules of Procedure shall apply”. Therefore, as to the presentation of the case, Articles 33 and 34 of the Rules of Procedure approved by the Court at its Forty-ninth Regular Session, shall apply. INTER-AMERICAN COURT OF HUMAN RIGHTS CASE OF THE KICHWA INDIGENOUS PEOPLE OF SARAYAKU v. ECUADOR Table of contents I INTRODUCTION TO THE CASE AND THE PURPOSE OF THE DISPUTE ……… 4 II PROCEEDINGS BEFORE THE COURT ………………………………………………….. 5 III JURISDICTION ……………………………………………………………………………….. 9 IV ACKOWLEDGEMENT OF INTERNATIONAL RESPONSIBILITY …………………. 9 V PRELIMINARY OBJECTION …………………………………………………………….. 12 VI EVIDENCE ……………………………………………………………………………………. 13 A. DOCUMENTARY, TESTIMONIAL AND EXPERT EVIDENCE ………………….…………………………………….. 13 B. ADMISSION OF THE DOCUMENTARY EVIDENCE …………………………………………………………………….. 13 C. ADMISSION OF STATMENTS OF THE ALLEGED VICTIMS AND THE TESTIMONIAL AND EXPERT EVIDENCE ……………………………….……………………………………………………………………………………… 15 D. ASSESSMENT OF THE CASE FILE ON PROVISIONAL MEASURES ………………….………………………… 16 E. ASSESSMENT OF THE VISIT TO THE SARAYAKU TERRITORY ………………….……………………………… 16 VII FACTS ................................................................................ 18 A. THE KICHWA SARAYAKU INDIGENOUS PEOPLES ……………………………………………………………. 18 B. OIL EXPLORATION IN ECUADOR …………………………………………………………………………………. 19 C. ADJUDICATION OF TERRITORIES TO THE KICHWA PEOPLES OF SARAYAKY AND THE COMMUNITIES OF BOBONAZA RIVER IN MAY 1992 …………………………………………………………………………… 20 D. PARTICIPATION CONTRACT WITH THE CGC COMPANY FOR THE EXPLORATION OF HYDROCARBONS AND EXPLOITATION OF CRUDE OIL IN BLOCK 23 OF THE AMAZON REGION ………………………… 21 E. FACTS PRIOR TO THE SEISMIC PROSPECTING AND INCURSIONS INTO THE SARAYAKU PEOPLES ’ TERRITORY ……………………………………………………………………………………………………………. 23 F. WRIT OF AMPARO ………………………………………………………………………………………………..... 26 G. FACTS RELATED TO THE SEISMIC PROSPECTING OR OIL EXPLORATION ACTIVITIES OF THE CGC COMPANY AS OF DECEMBER 2002 ……………………………………………………………………………. 26 VIII MERITS ...……………………………………………………………………………. 34 VIII.1 RIGHT TO CONSULTATION AND TO INDIGENOUS COMMUNAL PROPERTY …………………………………………………………………………. 34 A. ARGUMENTS OF THE PARTIES ……………………………………………………………………………………………………….... 34 A.1 Right to Property, in relation to the Obligation to respect the Right to Freedom of Thought and Expression and Political Rights ……………………………………….. 34 A.2 Right to Freedom of Movement and Residence ……………………………………………….. 36 A.3 Economic, Social and Cultural Rights ………………………………………………………………. 37 A.4 Duty to Adopt the Provisions of Domestic Law ………………………………………………… 38 A.5 Obligation to Respect Rights ……………………………………………………………………………. 38 B. THE OBLIGATION TO GUARANTEE THE RIGHT TO CONSULTATION IN RELATION TO THE RIGHTS TO COMMUNAL PROPERTY AND CULTURAL IDENTITY OF THE SARAYAKU PEOPLE ……………………… 39 B.1 The right to communal indigenous property …………………………………………………… 39 B.2 The special relationship between the Sarayaku People and their territory …… 39 B.3 Protective measures to guarantee the right to communal property ……………… 41 B.4 The State’s obligation to guarantee the right to consultation of the Sarayaku 2 People ………………………………………………………………………………………………………………. 42 B.5 Application of the right to consultation of the Sarayaku People in this case .. 53 a) Consultation must take place in advance ………………………………………………….. 53 b) Good faith and attempts to reach agreement …………………………………………… 55 c) Adequate and accessible consultation ………………………………………………………. 59 d) Environmental Impact Assessment …………………………………………………………… 61 e) The consultation must be informed ………………………………………………………….. 62 B.6 The rights to consultation and communal property in relation to the right to cultural identity ………………………………………………………………………………………………. 63 B.7 Duty to adopt provisions of domestic law ……………………………………………………. 66 B.8 Right to Movement and Residence ……………………………………………………………….. 68 B.9 Freedom of Thought and Expression, Political Rights, and Economic and Social and Cultural Rights …………………………………………………………………………….. 68 B.10 Conclusion …………………………………………………………………………………………………….. 69 VIII.2 RIGHTS TO LIFE, PERSONAL INTEGRITY AND PERSONAL LIBERTY. 69 A. ARGUMENTS OF THE PARTIES …………………………………………………………………………………………………………… 69 A.1 Right to Life …………………………………………………………………………………………………….. 69 A.2 Rights to personal integrity and personal liberty .………………………………………... 70 B. CONSIDERATIONS OF THE COURT …………………………………………………………………………………………………… 72 B.1 In relation to the explosives buried in the Sarayaku territory …………………….. 72 B.2 Alleged threats to members of the Sarayaku People ……………………………………. 74 B.3 Alleged attacks, unlawful arrest and restrictions on movement along the Bobonaza River ………………………………………………………………………………………………. 74 VIII.3 RIGHTS TO A FAIR TRIAL AND TO JUDICIAL PROTECTION ………. 75 A. ARGUMENTS OF THE PARTIES ………………………………………………………………………………………………………. 75 B. CONSIDERATIONS OF THE COURT ………………………………………………………………………………....... 76 B.1 Regarding the obligation to investigate ………………………………………………………… 78 B.2 Regarding the writ to amparo ………………………………………………………………………. 79 IX REPARATIONS (APPLICATION OF ARTICLE 63(1) OF THE AMERICAN CONVENTION) ……………………………….……………………………………………… 80 A. INJURED PARTY ………………………………………………………………………………………………………………………………. 81 B. MEASURES OF RESTITUTION, SATISFACTION AND GUARANTEES OF NON-REPETITION ………….. 81 B.1 Restitution ………………………………………………………………………………………………………. 83 B.2 Guarantees of non-repetition …………………………………………………………………………. 84 a) Due prior consultation ………………………………………………………………………………… 84 b) Regulation of the right to prior consultation in domestic law ………………….. 85 c) Training of state officials on the rights of indigenous peoples …………………. 85 B.3 Measures of Satisfaction …………………………………………………………………………………. 86 a) Public act of acknowledgement of State responsibility ……………………………. 86 b) Publication and broadcasting of the Judgment ………………………………………… 86 C. COMPENSATION FOR PECUNIARYY ANDNON-PECUNIARY DAMAGES ……………………………………….. 87 C.1 Pecuniary Damages ………………………………………………………………………………………. 87 a) Arguments of the Parties …………………………………………………………………………. 87 b) Considerations of the Court ……………………………………………………………………… 88 C.2 Non-Pecuniary Damages ………………………………………………………………………………. 90 3 a) Arguments of the Parties …………………………………………………………………………… 90 b) Considerations of the Court……………………………………………………………………….. 91 D. COSTS AND EXPENSES …………………………………………………………………………………………………………………… 91 D.1 Arguments by the Parties ………………………………………………………………………….…… 91 D.2 Considerations of the Court …………………………………………………………………….……. 92 E. REIMBURSEMENT OF EXPENSES TO THE VICTIMS’ LEGAL ASSISTANCE FUND …………………… 93 F. METHOD OF COMPLIANCE WITH THE PAYMENTS ORDERED ……………………………………………. 94 G. PROVISIONAL METHODS ……………………………………………………………………………………….. 94 X OPERATIVE PARAGRAPHS ……………………………………………………. 95 4 I INTRODUCTION TO THE CASE AND PURPOSE OF THE DISPUTE 1. On April 26, 2010, the Inter-American Commission on Human Rights (hereinafter “the Inter- American Commission” or “the Commission”) filed before the Court, pursuant to the provisions of Articles 51 and 61 of the Convention, a petition against the Republic of Ecuador (hereinafter “the State” or “Ecuador”) in relation to case No. 12.465. The initial petition was submitted to the Commission on December 19, 2003 by the Association of the Kichwa People of Sarayaku (Tayjasaruta ), the Center for Economic and Social Rights ( Centro de Derechos Económicos y Sociales ) (hereinafter “CDES”) and the Center for Justice and International Rights (hereinafter “CEJIL”). On October 13, 2004, the Commission approved Admissibility Report No. 62/04 2, in which it declared the case admissible. On December 18, 2009 the Commission approved the Report on Merits No. 138/09 3, under the terms of Article 50 of the Convention. The Commission appointed Luz Patricia Mejía, Commissioner, and Mr. Santiago A. Canton, Executive Secretary, as Delegates, and Mrs. Elizabeth Abi-Mershed, Deputy Executive Secretary, and the attorneys Mrs. Isabel Madariaga and Mrs. Karla
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