Contributed by Maria Antonia Tigre
The Inter-American Commission on Human Rights (IACHR or Commission) recently published Resolution No. 35/2020 (in Spanish and Portuguese), in which it pointed out severe flaws in the Brazilian government’s actions against COVID-19 in the Yanomami Indigenous Land (TIY), and demanded that an effective strategy be presented. The Commission saw urgency and risk of irreversible damage to the Yanomami and Ye’kwana Indigenous groups due to the lack of appropriate actions taken by the government to tackle the pandemic. In the request for precautionary measures, the Commission understood that it was the government’s obligation to adopt the necessary actions to protect their rights to health, life, and personal integrity. The request was brought by the Hutukara Associação Yanomami and the National Human Rights Council. The precautionary measures adopted by the IACHR appear to be the first international protective measures addressing the risks posed to Indigenous peoples by the pandemic, although international human rights bodies have repeatedly made broader calls for States to address those risks.
Brazil has the second-highest death rate from COVID-19 of any country in the world. Indigenous peoples are particularly vulnerable. The Pan American Organization of Health (OPS) recently urged the health authorities to redouble efforts to prevent the spread of infection among Indigenous communities. According to OPS, Brazil, where more than 80,000 people have died from the coronavirus, reported 7,946 confirmed cases and 177 deaths among indigenous groups throughout the country.
In response to the COVID-19 pandemic, the Commission recently installed the Rapid and Integrated Response Coordination Unit (SACROI, by its Spanish acronym) to strengthen its institutional capacities to the protection and defense of fundamental freedoms and human rights in the context of the pandemic. With SACROI, the IACHR seeks to optimize and mainstream all mechanisms to provide timely responses to potential human rights violations in the context of the COVID-19 pandemic, especially by guaranteeing adequate access to the inter-American system and efficient and quick protection of the rights of victims.
One of the goals of SACROI is to ensure the duty to provide special assistance for groups in vulnerable situations is complied with by states. These include Indigenous peoples, campesinos and rural workers, migrants, people deprived of their freedom, people living on the outskirts of cities, and people who are neglected by social security networks such as informal sector workers, people living in poverty, and the homeless. With the new resolution, the Commission provided a timely response to the failure of the Brazilian State to comply with its obligations and to protect vulnerable groups from the spread of the COVID-19 pandemic.
On June 16, 2020, the Commission received a request for precautionary measures from the Hutukara Yanomami Association and the National Council of Human Rights (NCHR) in favor of the Yanomami and Ye’kwana Indigenous groups. They thus called on the Brazilian government to adopt the necessary measures to protect their rights to life and personal integrity. The Yanomami Indigenous Land (YIL) comprises 321 communities, totalling 26,000 people including some who live in recently contacted villages and some in voluntary isolation. These groups face specific risks related to the pandemic, considering their particular susceptibility to respiratory diseases and the rapid growth of infections in their territory; failures in the health care system, exacerbated by the pandemic (including lack of doctors, medication, essential equipment, and tests); the illegal presence of about 20,000 illegal miners in their territory, promoting the flow of the virus from urban communities; contamination of the population with mercury, and violence against indigenous leaders, among other things. The limited measures developed do not consider the socio-cultural realities of Indigenous people or provide realistic means for isolation, especially related to Indigenous groups in voluntary isolation. Additionally, medical professionals and other authorized people entering the Indigenous territory have failed to comply with quarantine requirements or wear proper protective equipment, such as masks.
On June 17, 2020, the IACHR requested information from the State. The Brazilian government relied on ongoing domestic cases (see below) to argue that the matters were already under discussion by the judiciary, and the internal resources had yet to be exhausted. Additionally, the government argued that the issue of illegal mining in the Indigenous territory is old, without admitting the new matter to require precautionary measures (See IACHR, Resolution No. 12/1985).
The State further supplied information on specific actions to address the effects of the COVID-19 pandemic on Indigenous people. A National Contingency Plan for Human Infection of Indigenous People due to the Novel Coronavirus had been developed, including by establishing Rapid Response Teams to prioritize actions to fight the pandemic. In particular, measures had already been taken to guarantee food security, including the distribution of food baskets, especially to families with suspected/confirmed cases. The government also supported sanitary barriers maintained and carried out an inspection of illegal activities in their territories.
Moreover, the government had requested a specific location for quarantine and isolation of Yanomami Indigenous people who, given the specificities of their ethnicity, are unable to isolate chronic patients. Finally, Brazil noted the measures adopted to reopen the Ethno-Environmental Protection Bases (BAPE), connected to protecting the region from illegal mining, indicating that one of three had already been reactivated (due to legal measures taken against the government after all BAPEs were shut down in 2018). This specifically relates to the protection of groups in voluntary isolation.
Brazil’s answer widely referred to general actions to protect Indigenous peoples, public policies, plans, or projects to be developed. Without denying their importance, the State did not explain how these observations would apply to the communities. According to the IACHR, the Brazilian government mentioned other matters that are not directly related to the risks indicated in this case, such as operations to combat illicit activities in other Indigenous lands. Likewise, the State did not specify whether the National Contingency Plan for Human Infection with the New Coronavirus in Indigenous Peoples, the respective District Plan, or the sanitary barriers are being adequately implemented in the TIY and, if applicable, whether these were effective. The Brazilian government also failed to respond to the acts of harassment and violence reported due to the presence of illegal miners within Indigenous land.
Through Resolution No. 35/2020, the Commission granted precautionary measures in favor of the Yanomami and Ye’kwana Indigenous peoples. The IACHR reported that both communities, who live in border areas between Brazil and Venezuela, are in an especially risky situation given the COVID-19 pandemic, considering its particular susceptibility to respiratory diseases and the rapid growth of infections in their territory. The IACHR found that the beneficiaries are in a “serious and urgent” situation, as their rights to life and personal integrity are at risk of irreparable damage. The resolution was approved by the president of the IACHR, Joel Hernández Garcia, by the first Vice President, Antonia Urrejola, and by four other members of the Commission.
The requirements of seriousness, urgency, and irreparability
The IACHR pointed out that there is no controversy about the particular need for the protection of Indigenous people, which was recently recognized by the Brazilian judiciary (see below). Yet the parties disagreed on whether the current situation represents a serious risk of irreparable damage. Within that context, the Commission recalled that the facts that motivate a request for precautionary measures need not be fully proven, and the information provided shall be evaluated prima facie. As such, the following requirements were assessed:
- Seriousness: the severe impact of an act or omission can have on a protected right or over the effect of a pending decision on a case of a petition in the inter-American system. In this case, the source of risk refers to the possible consequences of exposing indigenous communities to COVID-19.
- Urgency: the information provided indicates the risk or threat is imminent and could materialize, requiring preventive or precautionary action. In this case, the importance is justified by the COVID-19 pandemic, the dissemination of the virus, the number of confirmed cases and deaths, and the vulnerability of indigenous groups.
- Irreparability: the effects over the rights that cannot, due to their nature, be repaired, restored, or adequately compensated. In this case, the possible violation of the rights to life and personal integrity address the requirement.
In analyzing the requirements, the Commission took into account the differentiated risk that Indigenous peoples have in the face of the pandemic, which simultaneously contributes to a complex scenario:
- the particular immunological vulnerability of Indigenous peoples:
- the peoples of recent contact or in voluntary isolation;
- the critical State of the health system designed to serve the beneficiary population;
- the presence of unauthorized third parties (mainly illegal miners) in their territory;
- the mercury contamination due to the illegal mining activities;
- acts of violence against the Indigenous population, mostly against their leaders.
The Commission noted that the information presented by the Brazilian State is general and programmatic and does not clarify whether the actions implemented benefit the populations in question. The Commission was particularly concerned about the lack of implementation of domestic judicial decisions mentioned by the government, especially the resolution ordering the reopening of the three BAPEs in the region, which were only partially fulfilled, and the Emergency Plan to evict illegal miners. In general, the IACHR considered that in the current circumstances, the Indigenous communities have fewer protective measures, especially considering the precarious health conditions observed. Protective measures shall be adequate and effective, i.e., able to address the existing risk to the point of eliminating the threat. By contrast, without the implementation of protective measures, 40% of the communities would be infected.
Human Rights Violated
Given the facts presented by both parties and the prima facie parameter applicable to precautionary measures, the Commission considered that the rights to life, personal integrity, and health of members of the Yanomami and Yekuana indigenous peoples are under serious threat.
The Commission also acknowledged that the principle of complementarity of the Inter-American system and international jurisdiction requires that the measures adopted by the State have significantly reduced or mitigated the risk; if so, the gravity and urgency requirements would not be satisfied, thereby justifying international intervention to prevent irreparable damages. In this situation, the precautionary measures to safeguard human rights are justified.
The Commission requested the Brazilian government to take immediate steps to protect the Yanomami and Ye’kwana Indigenous peoples from the spread of the coronavirus pandemic. The IACHR specifically listed three measures to be taken by the Brazilian government:
- take the necessary measures to protect the rights to the health, life and personal integrity of the members of the Yanomami and Ye’kwana Indigenous peoples, implementing, from a culturally appropriate perspective, preventive measures against the spread of COVID-19, in addition to providing them with adequate medical care under conditions of availability, accessibility, acceptability, and quality, according to the applicable international standards;
- agree on measures adopted with the beneficiaries and their representatives; and
- report the actions taken to investigate the facts that led to the adoption of this precautionary measure and, thus, avoid its repetition.
The IACHR gave the government 15 days to comply with the adoption of precautionary measures. The lack of compliance with the precautionary measures by the Brazilian government has no direct legal effect but can have diplomatic and economic consequences. Besides, a case could be forwarded to the Inter-American Court of Human Rights.
Related Cases at the National Level
The national and regional jurisdictions are independent – the jurisdiction from the inter-American system is a subsidiary resource of redress and protection of victims of human rights violations. This means that domestic remedies should be exhausted before a request is presented to the Commission. Yet the gravity of the COVID-19 pandemic has changed this scenario and the Commission considered that the principle of complementarity did not apply. While the cases develop independently, some of the measures requested are similar, and thus compliance with one of them might influence the other. The cases highlighted below are, therefore, independent of the one at the Commission, yet might help comply with the remedies imposed at the regional level.
In July 2020, the Brazilian Federal Court (TRF-1) requested the immediate adoption of an emergency plan to contain the spread of COVID-19 in the Yanomami territory and evict the illegal miners in the region based on a request from the Ministério Público Federal (MPF-RR). The government has not complied with the decision yet, despite the short deadline given by the court.
In July 2020, Min. Barroso from the Brazilian Supreme Court asked the government to take action to prevent the spread of COVID-19 in Indigenous territories (ADPF709). Through a precautionary measure, Barroso requested the government to avoid illegal invasions to the territory, create sanitary barriers to protect communities in isolation, create an emergency room to respond to the pandemic, and asked the Secretariat of Indigenous Health to attend to all Indigenous people, including those living in cities and in territories not officially established.
The Emergency Plan to Fight COVID-19 in Indigenous Territories was approved on July 7th, 2020. It includes commitments from the government to provide rapid testing and medications, the emergency hiring of health professionals, ensuring food security and adequate nutrition and the requirement of mandatory quarantine for persons in contact with isolated indigenous groups. In particular, decisions on new measures should be taken along with the participation of Indigenous communities. The original bill included provisions related to the access to water and sanitation in Indigenous communities, which were vetoed by the Brazilian president.
Through the resolution, the Commission sent a clear message that the Brazilian government has yet to properly address the situation of Indigenous groups facing increased risks of COVID-19. Yet the Brazilian government has repeatedly shown disregard for the virus and for the protection of Indigenous groups. The “public shaming,” which results from non-compliance with international decisions, weighs little in this case, as President Bolsonaro has previously rejected any forms of international interference when the world tried to intervene during the 2019 fires that spread throughout Amazonia. Compliance with the decision is thus threatened. Yet the government’s position regarding Indigenous groups has led several lawyers and legal scholars, including the Supreme Court judge Barroso, to speak of a genocide, which could lead to other significant international consequences, including by bringing a case at the International Criminal Court. If this case evolves, the Commission could significantly investigate the Brazilian government’s response to the COVID-19 pandemic – or lack thereof – and eventually provide significant statements as to the fundamental human rights violated.
Feature image by Ed Andrade J