Contributed by Maria Antonia Tigre
In its 2020 decision in Indigenous Communities Members of the Lhaka Honhat Association vs. Argentina, the Inter-American Court of Human Rights held that Argentina violated an autonomous right to a healthy environment, to indigenous community property, cultural identity, food, and water.[1]For the first time in a contentious case, the Court analyzed the rights above autonomously based on Article 26 of the American Convention, and ordered specific measures of reparation to their restitution; including actions for access to adequate food and water, for the recovery of forest resources and indigenous culture.[2] The ruling marks a significant milestone for the protection of indigenous peoples’ rights.
Background
The case relates to the claim for recognition of land ownership by Indigenous Communities belonging to the Wichí (Mataco), Iyjwaja (Chorote), Komlek (Toba), Niwackle (Chulupí) and Tapy’y (Tapiete) peoples within the Argentinian province of Salta, on the border with Paraguay and Bolivia. The presence of these communities, which number more than ten thousand people, has been verified continuously in the area since at least 1629. Nonetheless, the lands have also been occupied by other residents, including Creole communities. These communities have promoted illegal logging activities, developed livestock, and installed fencing. Additionally, an international bridge was built by the State without prior consultation to the indigenous groups. These activities have decreased forest resources and biodiversity and have affected how indigenous communities traditionally sought access to food and water.
At the core of the case is the lack of delimitation, demarcation, and title of the ancestral lands of more than 90 indigenous communities comprising the Association of Aboriginal Communities Lhaka Honhat in Argentina. Over ten thousand people belong to these communities, whose traditional way of life is based on hunting, gathering, agriculture, and fishing. Since 1984, the indigenous communities have claimed recognition and a unique property title of their ancestral lands in the province of Salta. The communities were forced to modify their uses and customs because of the illegal activities managed by the Creole families, which severely affected their traditional way of life.
On August 4, 1998, the Llaka Honhat Association, represented by the Center for Legal and Social Studies (CELS) and the Center for Justice and International Law (CEJIL), presented a petition before the Inter-American Commission on Human Rights (IACHR) regarding the violation of the obligations to respect, protect and adopt necessary measures to ensure the effective enjoyment of the right to communal property, based on the construction of several public works and the exploration of hydrocarbons in the traditional indigenous territory without respecting inter-American standards on free, prior and informed consultation, and for having consented to and tolerated illegitimate actions by private individuals such as the installation of fences, logging and cattle farming in traditional indigenous territory.[3]
In its Admissibility Report Nº 78/06, the IACHR observed that the State has had multiple opportunities to promote the adequate protection of the property rights of the members of Lhaka Honhat and that there has been an undue delay in the pronouncement of a final sentence on an appeal for amparo filed by Lhaka Honhat in 2000.[4] The facts denounced by the petitioners regarding the lack of implementation of demarcation and land titling policy could characterize violations of the rights to judicial guarantees and freedom of thought and expression, in connection with political rights.
In 2012, the IACHR issued its Merits Report on the case in which it determined that various rights enshrined in the American Convention on Human Rights had been violated to the detriment of the communities grouped in the Llaka Honhat Association, and made recommendations to the Argentine state to guarantee the ancestral lands in question.[5]
Despite intense work from the communities and the IACHR to get Argentina to enforce the rights at stake, and even though the State committed itself on several occasions (including by issuing specific regulations) to granting a land deed that respects the traditional customs of the communities, six years after the IACHR’s merits report, the demarcation and delimitation of the indigenous land were not completed. Also, less than 5 percent of the infrastructure works necessary for the European-descended families to relocate were carried out, no effective measure to combat illegal logging was taken, nor was any progress been made to remove fences in the indigenous territory; among other actions that are still pending.
This situation exposes the vulnerability of indigenous peoples’ land rights and the danger that failing to achieve a timely resolution poses to their traditional ways of life. For that reason, the Inter-American Commission ultimately decided to send the case to the Inter-American Court in 2019.[6] The ESCR-Net, a network of eight NGOs, presented an amici curiae.[7]
Decision[8]
The Court understood that the activities carried out in the territory by the Creole population affected the environment, the traditional way of feeding indigenous communities, and access to water. Additionally, the Court found that the State violated the rights to cultural identity, a healthy environment, and adequate food and water, due to the lack of effective measures to stop activities harmful to them.[9] The Argentine State did not generate mechanisms to guarantee the community property right or give them a real and effective title without internal subdivisions. Neither did it consult the communities when it made modifications to their territories. The lack of proper regulation altered the indigenous way of life and damaged their cultural identity. Additionally, the communities had not consented to the interferences in their territory.
The Inter-American Court of Human Rights determined that the State violated the right to community property, by not providing legal certainty and allowing the presence of Creole settlers as residents in the territory despite the 28 years old claim of indigenous property. It also concluded that the country does not have adequate regulations to sufficiently guarantee the community’s property right. Furthermore, the Court noted that adequate mechanisms for consulting indigenous communities on an international bridge built on their territory were not followed. It also resolved that judicial authorities did not follow a reasonable time in the processing of a judicial case in which it was decided to nullify rules regarding fractional land awards.[10]
The decision that the Argentine State was responsible for violating the rights to participate in cultural life, cultural identity, a healthy environment, food and water received 3 votes in favor (including the President’s, which unties the decision) and 3 against. Judges Vio Grossi, Sierra Port and Pérez Manrique presented dissenting opinions.[11]
The Rationale of Right to a Healthy Environment
The Court interpreted human rights instruments as living instruments that follow the evolution of current times and living conditions. Based on this rationale, it updated the meaning of the rights derived from Art. 26 of the American Convention, which requires States to adopt measures to achieve the full realization of the rights set forth by the Convention.[12] This was the first contentious case on the rights to a healthy environment, adequate food, water, and to participate in cultural life, and their implications and particularities regarding indigenous peoples.[13] The Court relied heavily on its interpretation of the right to a healthy environment its Advisory Opinion 23/17 of 2018, in particular as it refers to the content and scope of the right to a healthy environment.[14]
It thus incorporated the right to a healthy environment among the rights protected by Art. 26 of the American Convention given the obligation of States to achieve the integral development of its peoples arising from Arts. 30, 31, 33 and 34 of the Convention.[15] The Court particularly noted the right as a “universal interest” and a “fundamental right for the existence of humanity.” As an autonomous right, it protects the components of the environment, such as forests, seas, rivers, and other natural features, as interests in themselves, even in the absence of certainty or evidence about the risk to individual people. Like it did in the 2018 advisory opinion, the Court indicated an openness to adopting the trend of recognizing the rights of nature. It explicitly acknowledged the protection of nature because of its importance for other living organisms, rather than for its “usefulness” or “effects” to human beings. Notwithstanding, environmental damage can cause a violation of other additional human rights.[16]
The General Assembly of the Organization of American States (OAS) has previously issued various resolutions urging the regional States to promote the right to a healthy environment within their development policies, especially to combat climate change.[17] In this particular case, Argentina had recognized a right to a healthy environment in its constitution,[18] and ratified the San Salvador Protocol, which specifically recognizes a right to a healthy environment in Art. 11.1.[19] While the Court did not mention this fact as a way to legitimize the recognition of the right to a healthy environment, it is worth questioning whether it would have reached a different decision if the State of Argentina had not previously recognized the right to a healthy environment at the national or regional levels.
Following the explanation of the 2018 advisory opinion, the Court specified what the right to a healthy environment entails. The right to a healthy environment requires not only an obligation of respect,[20] but also the obligation of guarantee provided for in article 1.1 of the Convention, as one of the ways of ensuring compliance is preventing violations.[21] This duty of guarantee is projected to the private sphere, to prevent third parties from violating the protected legal assets. The duty encompasses all those legal, political, administrative, and cultural measures that promote the safeguarding of human rights and to ensure that eventual violations thereof are effectively considered and treated as illicit facts. Along these lines, the Court has indicated that on certain occasions, the States must establish adequate mechanisms to supervise and control certain activities to guarantee human rights, protecting them from actions by public entities, as well as private individuals.[22] The obligation to prevent “is of means or behavior and its non-compliance is not demonstrated by the mere fact that a right has been violated.”[23] Because this indication applies to the all rights in the American Convention, it also refers to the rights to adequate food, water and to participate in cultural life.[24]
In specific environmental matters, the principle of prevention of environmental damage is part of international customary law. It entails States’ obligation to carry out necessary measures ex ante of environmental damage, taking into consideration that, due to its particularities, it will often not be possible to restore the situation after the damage.[25] Under the duty of prevention, the Court has indicated that “the States are obliged to use all the means at their disposal in order to prevent the activities carried out under its jurisdiction from causing significant damage to the […] environment.”[26] This obligation must be met under the standard of due diligence, which must be appropriate and proportional to the degree of risk of environmental damage.[27] The Court provided some examples of how to fulfill the duty of due diligence related to potentially harmful activities, including to (i) regulate, (ii) supervise and oversee, (iii) require and approve environmental impact assessments, (iv) establish contingency plans, and (v) mitigate in cases of environmental damage.[28] The Court specifically noted that a detailed enumeration of all the potential measures is not possible.
While considering the human rights that may be affected by environmental damage,[29] the Court noted that these “can occur with greater intensity in certain groups in vulnerable situations,” among which indigenous peoples and “the communities that depend, economically or for their survival, fundamentally on environmental resources, [like] the forest areas or river domains.” Therefore, “based on the international regulations of human rights law, States are legally bound to address these vulnerabilities, in accordance with the principle of equality and not discrimination.”[30]
Remedies for Restituting the Rights to a Healthy Environment, Food, Water, and Cultural Identity
In its ruling, the Court states that the indigenous peoples have the right to their ancestral property in the north of Salta and a unique title for the 400 thousand hectares covering the former fiscal lots 55 and 14 of the Rivadavia department and establishes deadlines for compliance. The Court ordered the State to adopt various measures of reparation.
In its ruling, the Court ordered that the State must, within a maximum period of six years:
- Delimit, demarcate and grant a single collective title without subdivisions or fragmentation for the indigenous communities that are part of the Association of Aboriginal Lhaka Honhat Communities;
- Make active the transfer of the Creole population outside the territory, through specific mechanisms that promote, above all, the voluntary transfer of that population;
- Remove fences and livestock belonging to Creole settlers from indigenous lands;
- Refrain from carrying out acts, works or undertakings in the indigenous territory.
In addition, the Court required the State to adopt legislative and/or other measures to provide legal certainty for the right to property as part of existing federal regulations on the recognition of indigenous community property of all communities in Argentina.
The Court demanded that the State present a study in six months that identifies the critical situations of lack of access to drinking water and food, and that it formulate an action plan in which it determines the actions it will take and the time in which they will be executed.[31] The plan should be prepared in dialogue with the communities, and its implementation shall be immediate. An additional study shall be prepared within a period of one year, providing a plan for the conservation of waters within the indigenous territory, to ensure permanent access to water by all members of the community, and allow access to food in a nutritious and culturally adequate manner.[32]
Significance of the Judgment
The judgment sets an important precedent, since for the first time in a contentious case, the Court analyzed the rights to a healthy environment, adequate food, water, and cultural identity autonomously from article 26 of the American Convention, and where it ordered specific reparation measures for the restitution of those rights, including actions for access to water and food, for the recovery of forest resources and indigenous culture. For the first time, the Court set standards on the right to water, food, and a healthy environment. The ruling marks a significant milestone for the struggle of indigenous peoples for their rights since it is the first time that the Court has issued a ruling on an ancestral property in Argentina and that it has ruled on a territorial dispute of these dimensions.
The ruling of the Inter-American Court of Human Rights could be a milestone for the indigenous communities of the country and the region. In Argentina, there are no mechanisms to guarantee the right to indigenous territory and the problems due to the lack of land titles extend throughout the country. The ruling of the Inter-American Court of Human Rights could be a milestone for the indigenous communities of the country and the region.
[1] IACtHR, Caso Comunidades Indígenas Miembros de la Asociación Lhaka Honhat (Nuestra Tierra) vs. Argentina (Feb 6, 2020).
[2] See Press release: http://www.corteidh.or.cr/docs/comunicados/cp_24_2020_eng.pdf.
[3] https://www.cels.org.ar/web/en/2018/02/territorios-ancestrales-de-los-pueblos-indigenas-la-corte-idh-intervendra-en-un-caso-de-la-argentina/
[4] http://www.cidh.oas.org/annualrep/2006eng/ARGENTINA.12094eng.htm
[5] IACHR, Report No. 2/12, Case No. 12.094 (Jan. 26, 2012), http://www.oas.org/en/iachr/decisions/court/2018/12094FondoEn.pdf.
[6] IACHR, Case No. 12.094, Letter of submission (Feb. 1, 2018), http://www.oas.org/es/cidh/decisiones/corte/2018/12094NdeREs.pdf. See http://www.oas.org/en/iachr/media_center/PReleases/2018/035.asp.
[7] https://www.escr-net.org/sites/default/files/-_lhaka_honhat_amicus_-_final_esp.pdf
[8] Summary of the decision: http://www.corteidh.or.cr/docs/casos/articulos/resumen_400_esp.pdf. The composition of the Court for the issuance of this Judgment was as follows: Judge Elizabeth Odio Benito (President); Judge Patricio Pazmiño Freire (Vice President); Judge Eduardo Vio Grossi (Chile); Judge Humberto Antonio Sierra Porto (Colombia); Judge Eduardo Ferrer Mac-Gregor Poisot (Mexico); and Judge Ricardo Pérez Manrique (Uruguay). Judge Eugenio Raúl Zaffaroni (Argentina) did not participate in the deliberation and signing of the Judgment.
[9] Ibid., [289].
[10] http://www.fiscalespenalesalta.gob.ar/lotes-14-y-55-la-corte-interamericana-de-ddhh-fallo-a-favor-de-las-comunidades/
[11] Ibid., [370(3)].
[12] Ibid., [197-200].
[13] Ibid., [201].
[14] Ibid., [203]. See Advisory Opinion, [56-68].
[15] Ibid., [202]. Inter-American Court of Human Rights, The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity), interpretation and scope of Articles 4(1) and 5(1) of the American Convention on Human Rights). Advisory Opinion OC-23/17 (15 November 2017). Series A No. 23. Solicitada por la República de Colombia, Medio Ambiente y Derechos Humanos, [57].
[16] Ibid., [203]. See Advisory Opinion, [59; 62; 64].
[17] See i.e. OAS, Derechos Humanos y Medio Ambiente, AG/RES. 1926 (XXXIII-O/03), recognizing the increasing importance assigned to the necessity to manage the environment in a sustainable way to promote human dignity and well-being; OAS, Derechos Humanos y Cambio Climático en las Américas, AG/RES. 2429 (XXXVIII-O/08), recognizing the close relationship between environmental protection and human rights and highlights that climate change produces adverse effects on the enjoyment of human rights; Programa Interamericano para el Desarrollo Sostenible, AG/RES. 2882 (XLVI-O/16), which recognizes the three dimensions of development, in line with the 2030 Agenda.
[18] Argentina, Constitución Nacional, art. 41. Constitución de Salta, art. 30; 80.
[19] The Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (Protocol of San Salvador) 28 ILM 156 (1989), 17 November 1988, art. 11.1, (entered into force 16 November 1999).
[20] Based on the general obligation to respect human rights, see art. 1.1 of the Convention.
[21] Ibid., [207]. See Advisory Opinion, [117].
[22] See Caso Ximenes Lopes Vs. Brasil. Fondo, Reparaciones y Costas. Sentencia de 4 de julio de 2006. Serie C No. 149, párrs. 86, 89 y 99, y Caso I.V. Vs. Bolivia, párrs. 154 y 208. See Caso Ramírez Escobar y otros Vs. Guatemala, párr. 355.
[23] Ibid., [207]. See Advisory Opinion, [118]. The Court has expressed the same notion, although not directly linked to the right to a healthy environment, in other decisions: See Caso Velásquez Rodríguez Vs. Honduras. Fondo, para. 165 y 166, y Caso López Soto y otros Vs. Venezuela. Fondo, Reparaciones y Costas. Sentencia de 26 de septiembre de 2018. Serie C No. 36, para. 130. In the same sense, the African Commission on Human Rights and People has stressed that the right to a healthy environment imposes on States the obligation to take reasonable measures to prevent contamination and environmental degradation, promote conservation and ensure the development and use of ecologically sustainable natural resources (Cfr. African Commission on Human and Peoples’ Rights, Case of Ogoni Vs. Nigeria, Communication 155/96. Decision of May 27, 2002, para. 52).
[24] Ibid., [207].
[25] Ibid., [208].
[26] Ibid., [208]. See Advisory Opinion, footnote on page 247, [142].
[27] Ibid., [208]. See Advisory Opinion, footnote on page 142.
[28] Ibid., [208]. See Advisory Opinion, footnote on page 145.
[29] As referred to in Advisory Opinion, at 142.
[30] Ibid., [209]. See Advisory Opinion, [66, 67]. Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, U.N. Doc. ONU A/HRC/10/61 (Jan. 15, 2009), [42], and Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, U.N. Doc. A/HRC/31/52, at 81 (Feb. 1, 2016).
[31] Ibid., [332].
[32] Ibid., [333].
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