Judicial Interpretation and Indigenous Peoples’ Rights to Lands, Participation and Consultation. The Inter-American Court of Human Rights’ Approach

In: International Journal on Minority and Group Rights
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  • 1 Senior Researcher, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund, Sweden, alejandro.fuentes@rwi.lu.se

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This article proposes a critical legal analysis of the jurisprudence of the Inter-American Court of Human Rights regarding indigenous peoples’ rights to lands, participation, and consultation. It focuses on the role that cultural diversity as a legal standard has played in the recognition of the indigenous peoples’ right to consultation and participation in all matters that directly affect them, as a guarantee for the protection of their right to communal property and natural resources traditionally used, and for safeguarding their cultural identity. In analysing the jurisprudence of the Inter-American Court, special attention is paid to the interpretative methods applied by the regional tribunal, and to the manner in which a non-restrictive and ‘culturally friendly’ interpretation of conventionally protected human rights has contributed to the enlargement of their scope of protection, and to their enjoyment by one of the most marginalized and excluded sectors of Latin-American societies.

  • 54

    According to the Court, “the efficacy of the mechanism of international protection, must be interpreted and applied in such a way that the guarantee that it establishes is truly practical and effective, given the special nature of human rights treaties”. Cf. Case of the Constitutional Court v. Peru. Competence, 24 September 1999, I-ACtHR, Judgment, Series C No. 55, para. 36. See also Yatama v. Nicaragua, supra note 49, para. 204.

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  • 65

    For the Court, “[t]he corpus juris of international human rights law comprises a set of international instruments of varied content and juridical effects (treaties, conventions, resolutions and declarations). Its dynamic evolution has had a positive impact on international law”. Cf. Juridical Condition and Rights of the Undocumented Migrants, 17 September 2003, I-ACtHR, Advisory Opinion oc-18, Series A No. 18, para. 120. See also The Right to Information on Consular Assistance, supra note 52, para. 115.

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  • 71

    As the Court stated, “[w]hen there are several options […] the one that is less restrictive of the protected right and more proportionate to the purpose sought should be chosen”. Cf. Yatama v. Nicaragua, supra note 49, para. 206. See also Case of Ricardo Canese v. Paragua, 31 August 2004, I-ACtHR, Merits, Reparations and Costs, Series C No. 111, para. 133; Case of Herrera-Ulloa v. Costa Rica, 2 July 2004, I-ACtHR, Preliminary Objections, Merits, Reparations and Costs, Series C No. 107, paras. 121 and 123; Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), 13 November 1985,, I-ACtHR, Advisory Opinion oc-5/85, Series A No. 5, para. 46.

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  • 76

    As the I-ACtHR said, “[i]t is a well-established principle of international law that unequal treatment towards persons in unequal situations does not necessarily amount to impermissible discrimination. Legislation that recognizes said differences is therefore not necessarily discriminatory”. Cf. Saramaka People v. Suriname, supra note 11, para. 103. See also Yatama v. Nicaragua, supra note 49, para. 225. In the same line of thought, see Case of Thlimmenos v. Greece, 6 April 2000, ECtHR, Reports of Judgments and Decisions, No. 34369/97, p. 11, para. 44.

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  • 140

    For the I-ACtHR, “the close relationship of indigenous peoples with the land must be acknowledged and understood as the fundamental basis for their culture, spiritual life, wholeness, economic survival, and preservation and transmission to future generations”. Cf. Yakye Axa v. Paraguay, supra note 11, para. 131.

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  • 141

    In the views of the Court, “[t]he culture of the members of the indigenous communities directly relates to a specific way of being, seeing, and acting in the world, developed on the basis of their close relationship with their traditional territories and the resources therein, not only because they are their main means of subsistence, but also because they are part of their worldview, their religiosity, and therefore, of their cultural identity”. Cf. Yakye Axa v. Paraguay, supra note 11, para. 135.

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  • 174

    Anaya, supra note 37, p. 16, para. 46.

  • 189

    As Judge Fogel Pedrozo stated, “the interpretation of the right to life, so as to include positive precautionary measures for the indigenous to enjoy their right to a dignified existence, is based in international doctrine and jurisprudence and makes new advances in International Law of Human Rights”. Xákmok Kásek v. Paraguay, supra note 11, Concurring and dissenting opinion of Judge A. Fogel Pedrozo, para. 19.

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