Angel Cabrera*, Daniel Cerqueira**, and Salvador Herencia-Carrasco***
Versión en español aquí.
On 6 February, 2020, the Inter-American Court of Human Rights (IACtHR) issued a judgement in the case of the Indigenous Communities Members of the Lhaka Honhat (Our Land) Association, vs. Argentina. The ruling reiterates the inter-American standards on communal land and territorial rights of indigenous peoples. This is a landmark decision establishing that economic, social, cultural and environmental rights (ESCER) of indigenous peoples are autonomous and judicially enforceable rights before the IACt-HR. Although the main controversy revolves around the absence of land titling, the petitioners alleged a series of impacts derived from grazing activities, illegal logging, and the installation of fences by non-indigenous people in the territory of the communities.
This article analyses the most relevant excerpts of the ruling, highlighting controversial aspects over the judicial enforceability of new rights recognised under Article 26 of the American Convention (ACHR), related to economic, social, cultural, and environmental rights (ESCER). We also comment on important advances in the area of reparation and obligations to ensure indigenous peoples’ rights in the face of environmental degradation perpetrated by settlers. Finally, we briefly comment on the contribution of the amici curiae in the reasoning present in the sentence and votes of Judges Ferrer Mac-Gregor and Sierra Porto.
Summary of the case
Lhaka Honhat is an association of Indigenous communities integrated by the Wichí (Mataco), Iyjwaja (Chorote), Komlek (Toba), Niwackle (Chulupí) and Tapy’y (Tapiete) peoples, located in the Salta province, near the border with Bolivia and Paraguay. The association was formed to request to the Argentinean Federal Government the collective title to their ancestral territory, known as Lot 14 and Lot 55.
The main controversy of the case was not related to whom owns the territory, as the Federal Government had recognized it as Indigenous. The IACt-HR was asked to determine instead whether the state had done enough to respect and guarantee the right of the communities to enjoy the collective ownership of their ancestral lands. Unlike previous cases involving the extraction of natural resources, natural reserves or other state or private enterprises on Indigenous territories, the Lhaka Honhat case is more complex, as it involves the presence of peasants settlers on lands claimed by Indigenous communities; some of whom are considered to be rural tenants in a vulnerable situation.
The first part of the ruling reinstates inter-American standards on the territorial rights of indigenous peoples and the state’s obligation to delimit and grant a property title to Indigenous communities. After determining the responsibility of the state in this regard, the Court ordered, in an unprecedented manner, the granting of a single property title, without internal subdivisions, in favour of all communities belonging to different indigenous peoples.
The second part of the decision analyses the allegations of environmental degradation caused by settlers and illegal loggers, as well as the failure of the State to prevent and guarantee the rights of indigenous communities. The Court examined these facts on the basis of the rights to a healthy environment, to adequate food, to water, and to cultural identity, which were defined as autonomous and judicially protected under Article 26 of the ACHR.
After determining the lack of adequate measures by the Argentine state to ensure the exercise of the right to collective property and to guarantee the ESCER referred to in the previous paragraph, the Court established a series of reparation measures, including economic compensation and the restitution of the violated rights. Among other things, it ordered that settlers should leave Indigenous territory within 6 years. The first 3 years must be done voluntarily, but after this period, the State may resort to evictions to carry out the transfer, emphasizing that the relocation must occur on productive land with access to adequate public services in favor of the settlers.
Protection of Economic, Social, Cultural and Environmental Rights of Indigenous Peoples
The IACtHR has an extensive case law on indigenous peoples’ rights, using Article 21 of the ACHR to hub the rights to collective property, consultation, consent and territory of indigenous peoples. Lhaka Honhat is only in this case so far in which the IACt-HR assessed the ESCER of indigenous peoples as autonomous and judicially enforceable.
Before the decision on Lhaka Honhat, the Court had defined the right to a healthy environment as an autonomous and judicially enforceable right in the Advisory Opinion OC-23/17, entitled “Environment and Human Rights”. Therefore, this is the first contentious case that declares the above-mentioned right breached, as well as the rights to adequate food, water and to participate in cultural life, all under Article 26 of the ACHR.
Since the Lagos del Campo vs. Peru case, decided in August 2017, the majority position of the IACtHR has established the tribunal’s jurisdiction to declare the direct violation of Article 26. Before Lagos del Campo, the Court considered Article 26 judicially enforceable only indirectly or by connection, in relation to certain civil and political rights protected in the ACHR. Said judgment inaugurates the direct judicial enforceability of Article 26.
As in previous cases, the Court concluded in Lhaka Honhat that «[t]o identify those rights that can be derived interpretively from Article 26, it must be considered that it makes a direct reference to the economic, social and educational, scientific and cultural norms contained in the OAS Charter» (para. 196). Unlike the economic and social norms clearly referring to rights subject to scrutiny under Article 26 of the ACHR, the right to a healthy environment does not find a correlation in the founding charter of the OAS or in any other Inter-American instrument, with the exception of Art. 11 of the Protocol of San Salvador, whose judicial enforceability is not permitted by express provision of the Protocol (Art. 19.6).
In OC-23/17, the IACt-HR sought to resolve this limitation of jurisdiction, highlighting the connection between the environment and integral development, the latter being expressly enshrined in the OAS Charter. As expressed in OC-23/17, the applicable international instruments establish that the preservation of the environment is one of the three inseparable pillars of integral development. In the Lhaka Honhat case, the Court reiterates its position, when it declares that “the right to a healthy environment must be considered as included among the rights […] protected by Article 26 of the American Convention, given the obligation of States to achieve the integral development of their peoples, which arises from Articles 30, 31, 33 and 34 of the Charter” (para. 202). With regard to the right to water, which was not alleged by the petitioners, but included in the judgment under the principle of iura novit curiae, the IACt-HR concludes the following:
[…] “it is protected by Article 26 of the American Convention. This follows from the norms of the OAS Charter, insofar as they allow for the derivation of rights from which, in turn, the right to water is derived. In this regard, it is sufficient to point out that these include the right to a healthy environment and the right to adequate food, whose inclusion in the aforementioned article 26 has already been established in this judgment, as well as the right to health, from which this Court has also indicated that it is included in the norm” (para. 196).
Until Lhakha Honhat, the IACt-HR had been expanding the catalogue of DESCA by referring directly to the economic and social norms of the OAS Charter, as established in Article 26 of the ACHR. In that case, the Court additionally established that it could expand the catalogue of autonomous ESCER, through their connection with other rights created by means of interpretation, without requiring their own connection with economic and social norms and principles explicitly contained in the OAS Charter.
Since the IACt-HR inaugurated its new line of jurisprudence in the Lagos del Campo case, its reasoning has oscillated between greater and lesser argumentative accuracy, with repeated divergences within the court itself, regarding the competence to declare direct violation of Art. 26 of the ACHR. Although some judgments related to social rights, including the Lagos del Campo case itself are based on more rhetorical than legal grounds, in cases such as Poblete Vilches vs. Chile and Cuscul Pivaral and others vs. Guatemala the arguments about the direct justiciability of the right to health are based on more precise legal reasoning. In the Lhaka Honhat case, while the Court could have been more precise in justifying, for example, the inclusion of the right to water in the catalogue of autonomous and justiciable rights, the judgment contains important jurisprudential advances that we will now examine.
Some jurisprudential developments from the Lhaka Honhat judgment
While in OC-23/17 the IACt-HR established general standards on the principle of prevention in environmental matters, the Lhaka Honhat case evaluates more specifically its non-compliance in the framework of a contentious case. Another important development concerns the «inter-Americanization» of Principle 22 of the Rio Declaration, which recognizes the central role of indigenous peoples «in environmental management and development because of their traditional knowledge and practices» (para. 250). Along these lines, the Court analyses the impact of the rights at stake on the lifestyles and cultural identity of the indigenous communities concerned.
Another contribution of the judgment relates to reparation measures. In deciding on the obligation to restore the territory of the communities declared as victims, the Court assesses the complexity of relocating hundreds of non-indigenous people whose interests will be directly affected. The ruling establishes different timeframes for each of the restitution measures, with guidelines on how the Argentine State should proceed in order to minimize the impact on the Creole population in indigenous territory.
This adds particular complexity to this case, as it does not involve a large investment project in indigenous territory, but rather a considerable number of peasants who are covered by the recently adopted «UN Declaration on the Rights of Peasants and Workers in Rural Areas», adopted by the UN General Assembly in December 2018. This implies the need to recognize the duties that the State has towards numerous Creole families who are also in a situation of vulnerability, particularly given that their rights could be affected when implementing the reparations ordered.
In line with previous cases related to the rights of indigenous peoples, the IACt-HR ordered the Argentine state to establish a community development fund for the communities that make up the Lhaka Honhat Association. However, it establishes, for the first time, that the main purpose of this fund must be to «repair the damage to cultural identity» before specifying that it also serves as «compensation for material and immaterial damage.
This precision seems to have impacted the type of projects that the Court orders to be carried out through the community fund. In the three cases involving Paraguayan indigenous communities (Xaxmok Casek, Yakye Axa and Sawhoyamaxa), the Court had indicated that the community development funds should be used for «educational, housing, agricultural and health projects, as well as the supply of drinking water and the construction of sanitary infrastructure. In the Lhaka Honhat case, it specified that the development fund should be used for «the recovery of indigenous culture, including (…) programmes relating to food security and the documentation, teaching or dissemination of the history of the traditions of the indigenous communities that are victims» (para. 339).
In addition to the difficulties of relocating the local population, reparation through the development fund has a significant level of complexity, as it involves great difficulties in terms of budget allocation and fund management. It is worth noting that, through a resolution issued on 14 May 2019, the IACt-HR reported that it was not until April 2019 that the Committees for the Implementation of the Development Funds ordered in the Paraguayan cases were articulated (that is, 14 years since the first such ruling was issued in the Yakye Axa case). In the Lhaka Honhat case, the operation of the development fund will also have to overcome the challenge of creating a Committee where the 132 indigenous communities are represented and benefit from it.
The judgment on the Lhaka Honhat case represents a genuine jurisprudential advance, since it establishes clearer rules for State actions, particularly in relation to the principle of prevention of environmental damage caused by private individuals. It also establishes guidelines for restitution and compensation for the violation of the rights of indigenous peoples when their natural resources are affected. Another aspect of special relevance is the use of the standards of the Committee on ESC rights and other quasi-judicial bodies of the UN to determine the content of the ESCR whose violation was declared in the ruling. On several occasions, the IACt-HR has used such precedents to specify state obligations derived from inter-American instruments. In this case, the precedents of the Universal System were used to determine the scope of new rights recognized under Article 26 of the ACHR.
Another relevant element of the judgment is the order to transfer the peasant population from the indigenous territory recognized in the ruling. This measure has implications for the protection of the territory and culture of the communities declared as victims, but also for the role that international courts can play in protecting the rights of different vulnerable groups in situations where they appear to be opposed.
Finally, we would like to highlight the individual votes of judges Sierra Porto and Ferrer MacGregor, who highlighted the amici curiae submitted by civil society organizations and academia. Justice Ferrer MacGregor included a section of his vote regarding the role of civil society in strengthening the inter-American dialogue, as well as the use of amici curiae in reaching a decision in the case.
We, the undersigned, had the opportunity to participate in the drafting of one of these amici curiae, which invited the Court to recognize the interdependence of the ESCER of the respective communities; and made recommendations regarding reparations measures, many of which were included in the judgment. Undoubtedly, the openness of the IACt-HR in receiving amici curiae and basing its decisions on such writings contributes to a broad and deliberative dialogue among the different actors involved in the interpretation and materialization of the inter-American standards.
*Angel Cabrera is the Coordinator of the International Human Rights Clinic of the Guadalajara University.
**Daniel Cerqueira is the Director of the Human Rights and Natural Resources Program at DPLF.
***Salvador Herencia is the Director of the Human Rights Clinic, HRREC at the University of Ottawa.
Photo: IACt-HR/Flickr, Caso Comunidades Indígenas Miembros de la Asociación Lhaka Honhat Vs. Argentina