Headlines, Human Rights, Indigenous Rights, Latin America & the Caribbean

Q&A: Indigenous Rights Appeals Increasingly Reach Inter-American System

Daniela Estrada interviews VÍCTOR ABRAMOVICH, Vice President of IACHR

SANTIAGO, Oct 8 2009 (IPS) - Standards relating to indigenous peoples’ rights, laid down by the Inter-American Commission and Court of Human Rights, are increasingly being incorporated into the laws of countries in the region, according to Víctor Abramovich, First Vice President of the Commission.

Víctor Abramovich Credit: CIDH/IACHR

Víctor Abramovich Credit: CIDH/IACHR

In 2006, the prominent Argentine lawyer was elected to a four-year term as First Vice President of the Inter-American Commission on Human Rights (IACHR), which forms part of the Organisation of American States (OAS) and is one of the two bodies in the system for promotion and protection of human rights in the Americas.

He is also Rapporteur on the Rights of Indigenous Peoples for the Washington-based IACHR.

In this capacity, Abramovich was invited to a seminar in Santiago devoted to the implementation of the International Labour Organisation’s (ILO) Convention 169 on Indigenous and Tribal Peoples, which entered into force in Chile on Sept. 15.

IPS: You have said that the indigenous peoples of the region are increasingly active users of the inter-American system for the protection of human rights. What are the most common problems that lead them to resort to this system? VICTOR ABRAMOVICH: Recently these problems have basically involved the recognition of communally-owned indigenous property, matters related to investment or development projects that directly or indirectly affect indigenous communities, and the scope of the right to prior consultation.

They also have to do with the right to political participation, electoral participation by indigenous political parties or organisations, and situations of violence that affect the communities, such as cases of forced displacement in the context of armed internal conflicts, and death threats against, or killings of, indigenous leaders.

These matters come under the Commission’s competence to issue precautionary measures, or the Court’s competence to grant provisional measures, which are protective measures to prevent irreparable harm.

IPS: From a historical perspective, what impact has the work of the Commission and the Court had on the recognition and protection of the rights of indigenous peoples? VA: It’s a relatively new area of activity, in contrast to others where the system has already carried out much more work, for example in the areas of crimes against humanity, amnesties and press freedom.

The system is consolidating a collection of principles, and achieving the resolution of particular cases, through friendly settlements or precautionary measures. And I have the impression that little by little, the principles adopted by the system are being increasingly incorporated into national legal systems in the countries of the region.

The courts in some of these countries are making considerable use of the inter-American system standards, including those in Argentina, Colombia, Peru and Costa Rica, and to a lesser extent in Brazil, Chile and Uruguay, where the system is only just beginning to receive attention.

IPS: Is there a visible trend, then, in how the jurisprudence of the Inter-American Court is being applied in these countries? VA: The trend is not homogeneous, it has its ups and downs, but in many countries it is seen to be both very strong and very positive.

IPS: One of the most frequent criticisms of the Commission and the Court is the excessive delay in processing and resolving cases, and the fact that they lack the power to enforce their rulings. What is your view on this? VA: It’s true that cases take a long time to be processed. The system is receiving about 4,000 petitions a year, and its operational capacity has remained stable for the past 10 years. This means that with the same level of resources it must respond to increasing numbers of petitions. And it is also true that it is a court with no coercive power.

But I would say that compliance with its decisions is quite strong and significant, over and above the problems that crop up in any justice system.

IPS: ILO Convention 169 came into force in Chile on Sept. 15. What would you say are the main challenges for this country in relation to implementation of the Convention? VA: The first issue is to create a space for dialogue between the government and Congress on one hand, and indigenous representatives on the other, in order to discuss an implementation strategy, because legislation must be brought into line with the Convention, changes in the design and implementation of policies are needed, and the legal framework must also be modified.

So the main thing is to create an environment for discussion, in order to agree a strategy supported by as broad a consensus as possible, to ensure that the rights in the treaty are adopted as policy.

IPS: The Commission and the Court generally use ILO Convention 169 when considering cases involving indigenous peoples. To what extent is this treaty applied in Latin America, given the recent conflicts in countries like Colombia, Peru, Bolivia, and even Chile itself, with the Mapuche (the country’s largest group of indigenous people)? VA: There are many unresolved issues in the implementation of the Convention, especially the need for good rules and guidelines to establish proper procedures for consultation, participation and seeking consent (for mining or oil projects on indigenous land, for example). But strides have been made, such as in Colombia, where the Constitutional Court has handed down important rulings in different cases, involving the direct application of Convention 169.

In Argentina, too, there have been important cases of direct application of the Convention by the courts, and discussions on changing legislation to conform with its provisions. I think these are slow, gradual processes. Approval of the Convention does not change society from one day to the next; other political conditions are required to do this, but it is a substantial first step.

IPS: Carrying out consultation processes on every issue affecting indigenous peoples is one of the Convention’s most controversial aspects. How should these processes be understood? VA: They should not be understood as a mechanical procedure to listen to the views of indigenous peoples. The process should allow for ongoing communication, dialogue and the exchange of information, and its goal must be to reach an agreement.

This does not mean indigenous peoples have the power to veto projects, but it does mean the government needs to take these processes seriously, with the aim of obtaining the consent of the affected communities. The best way to do this is to have procedures in place for carrying out consultation processes, and to agree on these procedures with the organs of political representation, in permanent dialogue with indigenous peoples.

IPS: In a report on his visit to Chile in April this year, United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, recommended “carrying out a consultation process on the consultation process.” VA: Yes, of course, that is essential. That’s why I mentioned that the first step is to create spaces for dialogue and consensus with indigenous peoples, in order to develop a strategy for the next steps to be taken. If there is to be a law regulating consultation mechanisms, consultation has to take place about the law, and ideally it should have the support of indigenous communities.

IPS: The Rapporteurship that you preside is currently researching another controversial issue: the property rights of indigenous peoples. VA: Yes. What we are doing is systematising all the decisions about indigenous property rights issued by the Commission and the Court over the past 10 years, trying to define the scope of what they have said about the right to property and on the obligations of states to respect, guarantee and implement it, and protect it against non-state actors.

The second part of the study will be something like a set of guidelines for carrying out a consultation process. In other words, what elements and what practical steps need to be taken into account to implement consultation mechanisms that conform to the standards of the inter-American human rights system.

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