Daniel Cerqueira* and Ana Elisa Samayoa**

Leer en español aquí.

A few weeks ago, the Inter-American Court of Human Rights (IACt-HR) published two judgments on the cases of the Maya Q’eqchi’ Indigenous Community of Agua Caliente vs. Guatemala and the Garifuna Community of San Juan and its Members vs. Honduras, related to the lack of demarcation, titling and dispossession of their ancestral territories. This article comments on some aspects of both rulings, highlighting the inconsistency in the normative basis and time frame of the obligation to carry out prior consultations; the acceptance of submissions from third parties who are not involved the inter-American dispute; and a more restrictive approach to the restitution of Indigenous territories than in previous rulings.

Summary of the facts 

Located in the municipality of El Estor, department of Izabal, Guatemala, the Agua Caliente Community obtained a definitive title to its territory after 45 years of administrative and judicial claims. Part of their land overlaps a nickel mining area, operated by transnational companies since the 1960s. The mining concession has been renewed despite the objection of the Agua Caliente and other directly impacted Q’eqchi’ communities. The petitioners’ allegations hinged upon the right to self-determination and Indigenous autonomy over their territory, natural resources, and way of living. 

The Garífuna Community of San Juan lacks a title to its territory, which includes several settlements near the City of Tela, department of Atlántida, Honduras. Although the State agreed to the petitioners’ claim to the territory in question, the process of demarcation and collective titling at the national level have not yet been concluded. This is despite successive requests from the community lodged to the competent authorities. The lack of legal security over their lands has worsened with the irregular acquisition of lots and the granting of tourism projects and investments by companies and non-Garifuna individuals.

In both cases, the IACt-HR established that the States failed to exercise due diligence in titling the ancestral territory. This non-compliance included the misplacement of title deeds and the delay in concluding the judicial and administrative processes to that end. The rulings reiterate the Inter-American standards on Indigenous territorial rights, with a partial step forward in relation to the provisions of the American Convention on Human Rights (ACHR) that provide for the obligation to carry out free, prior, and informed consultation (FPIC) processes, and some steps backwards.   

The half step forward

Since its first judgment related to FPIC, in the 2007 Saramaka v. Suriname case, the IACt-HR has addressed this obligation under Article 21 of the ACHR, which refers to the right to collective property of Indigenous peoples. In the Kaliña and Lokono vs. Suriname case of 2015, the Court concluded, for the first time, that the disregard for the representative institutions of the people in question in a consultation process had violated the right to political participation, protected in Article 23. 

In the judgments analyzed here, the IACt-HR included Articles 13 (freedom of expression) and 23 among the provisions violated. It emphasized that one of the requirements of a prior consultation process is access to information, and that Indigenous cultural identity must be taken into account. In the Agua Caliente case, the Court emphasized that Guatemala did not provide information «[…] in a way that was accessible to the impacted population, which amount to an act of discrimination» (par. 266). 

It should be noted that the extension of violated treaty provisions in the face of a given factual assumption does not constitute, by itself, a jurisprudential advance. In order for its impact to be relevant for the victims and for Inter-American Law, such extension must be followed by reparation measures and/or obligations that unfold a more favorable state’s action compared to those established in similar precedents. The inclusion of Articles 13 and 23 of the ACHR in the judgments analyzed in this article did not modify the scope of the state obligations enforceable in the framework of a FPIC process, as its culturally appropriate nature had already been addressed under Article 21 of the ACHR by the IACt-HR, since the Saramaka case.  

In our opinion, the Inter-American Court missed the opportunity to analyze the state obligations in light of the principle of Indigenous self-determination. We had previously warned that the Court has not taken significant steps like the Inter-American Commission on Human Rights (IACHR) and organs of the Universal System in relation to this principle. Expressly recognized in Articles 3 of the Universal and American Declarations on the Rights of Indigenous Peoples, self-determination encompasses a series of obligations such as territorial autonomy; the power of peoples and communities to define their development priorities; the mandatory nature of Indigenous consent prior to the concession of large scale projects (recognized by the Inter-American Court in the Saramaka case); the validity of «self-consultations» conducted by the communities themselves; among others.

In his separate opinion in the case of the Maya Kaqchikel Indigenous Peoples of Sumpango v. Guatemala, in 2021, Judge Ferrer Mac-Gregor included standards of the Universal System on the self-determination of Indigenous peoples, highlighting that this principle is expressed by their participation in all decisions that may affect them, in accordance with their normative systems and community decision-making structures. This vote seemed to pave the way for the IACt-HR to adhere to international parameters on Indigenous self-determination, beyond the CPLI, which has yet to occur.

Backward steps

Regulatory basis and time frame of FPIC 

The position of the IACt-HR in this regard has oscillated between the following criteria: 

1. FPIC is an international obligation derived from both ILO Convention 169 and the ACHR; however, its validity begins with the ratification of the former (Sarayaku v. Ecuador and Garífuna Community of Punta Piedra v. Honduras cases);
2. the obligation to consult begins with the ratification of the ACHR (Kaliña and Lokono v. Suriname and Members of the Lhaka Honhat Association v. Argentina).      

In the case of the Garífuna Community of San Juan, the Court examined some state actions prior to the ratification of ILO Convention 169. Although it concluded that these actions violated the rights of participation in public affairs and access to information (Articles 23 and 13), the Court refrained from ruling on the obligation to carry out a process of prior consultation, emphasizing that the referred state actions took place prior to the ratification of Convention 169 by Honduras. More than a step backwards, this conclusion implies an incongruence over its competence. In the two judgments on Suriname (Saramaka and Kaliña Lokono), which has not ratified Convention 169, the Inter-American Court analyzed the obligation to consult exclusively under the ACHR, emphasizing that FPIC is a corollary of the right to self-determination protected in Article 1 common to the International Covenants on Human Rights. 

With the position adopted in the San Juan case, it seems that the current case law of the IACt-HR limits its competence to analyze compliance with FPIC as an obligation that arises with the ratification of ILO Convention 169, for countries that have done so, and with the ratification of the ACHR, for countries that have not. In other words, the ratification of Convention 169 would shrink the temporal competence of the Inter-American Court to examine allegations of the absence of FPIC, an anomalous situation contrary to the provisions of Article 29 of the ACHR.   

Acceptance of third parties submissions not involved in the inter-American dispute

In both cases the Court accepted, and in the case of the Garífuna Community of San Juan it requested information from third parties, based on Article 58.a of its Rules of Procedure, which regulates the ex officio request for evidence. The IACt-HR usually uses this faculty to hear alleged victims, witnesses, experts or any person whose statement or opinion it deems relevant to adjudicate a case. Exceptionally, this provision has been invoked to request information from internal organs of the denounced State (e.g. Kaliña Lokono Case, para. 12) or from the representatives of the victims (e.g. Punta Piedra Garifuna Community, par. 15).

In the judgments analyzed here, the Court replicated the practice of the Lhaka Honhat v. Argentina case, in which it admitted briefs submitted by persons not involved in the inter-American dispute. Particularly in the Community of San Juan case, the Court ostensibly used this faculty to obtain testimony that, in reality, meant pledges from companies and individuals who acquired property titles in traditional Garifuna territory. Such testimonies were decisive for the IACt-HR Court to order the State of Honduras to partially and not fully restore the Garífuna territory, without considering, as it did in Lhaka Honhat, the fundamental difference between peasants who would face a humanitarian crisis if they lost access to productive lands and mega tourism ventures and other types of private investments within a traditional Indigenous territory. 

Restrictive approach to the obligation to restitute Indigenous territories 

In their separate opinion in the Garífuna Community of San Juan case, Judges Mudrovitsch and Ferrer Mac-Gregor clarified that 

due to the particularities of the present case, since there were «reasonable and well-founded» grounds, the restitution of the ancestral territories was not feasible (which implies, inter alia, the expropriation and eviction of 7,620 non-Garifuna persons who inhabit that area and who hold title deeds). This cannot be considered a change in the historical jurisprudence of the Court. It is rather an exceptional situation, considering the particular circumstance of the case, which the IACt-HR corroborated by means of an in loco inspection prior to the issuance of the judgment (par. 66).  

Both judges emphasized that the obligation to fully restitute Indigenous territories remains in force, but «when there are ‘objective and well-founded’ reasons (as in the present case), in which such restitution is not possible, ‘alternative lands of the same or higher physical quality’ or, if the peoples concerned prefer, ‘compensation in money or in kind’ shall be granted» (par. 67). Indeed, this possibility is contemplated in Articles 16 of ILO Convention 169; 28 and XXIX.5 of the UN and OAS Declarations on the Rights of Indigenous Peoples. However, it seems to us that the legal solution chosen by the Court contrasts with that of other cases that shared similar factual elements. For example, in Lhaka Honhat, the full restitution and relocation of more than 218 peasant families was ordered, in order to guarantee the full exercise of the right to property over the territory of the Indigenous communities declared as victims (par. 329). In this case, the Court ordered the resettlement or access to productive lands in favor of the aforementioned families, in order to resume their subsistence activities.

Unlike other cases, in the Case of the Community of San Juan, the IACtHR omitted an analysis of the status of the «innocent third parties» who, being in good faith possession or with property titles to Indigenous territories, generate the collision between Indigenous and private community property. In its constant case law, the IACt-HR has established that in order for such a situation to justify restrictions to Indigenous property, the requirements of a proportionality test must be met, namely: 

a) be established by law; b) be aimed at achieving a legitimate goal in a democratic society, that is, a collective […] objective […] which, by its importance, clearly outweighs […] the need for the full enjoyment of the restricted right; c) be necessary to satisfy a compelling public interest; and d) be proportional, in the sense of being closely tailored to the achievement of [the] legitimate objective, interfering as little as possible with the effective exercise of the restricted right¹ . 

Needless to say that the argumentative burden regarding the fulfillment of these requirements falls on the State and not on the alleged victims. In this regard, Honduras refrained from justifying a restriction on Garifuna collective property, and accepted the victims’ claim regarding the extent of the territory claimed. By ordering the permanence of companies and individuals in part of the Garifuna territory, without the State or the IACt-HR substantiating the necessity, suitability and strict proportionality of this measure, the judgment implied an ex abrupt restriction on the right to collective Indigenous property.

Finally, among the factual elements of the case described by the IACt-HR as exceptional and which, in its opinion, advised against full restitution, is the social conflict over the possession and use of the land in Garifuna territory. We find this conclusion worrying, firstly, because the conflict is the result of the omission of the Honduran authorities in demarcating, titling and guaranteeing the community’s property rights over its traditional territory. Secondly, this sets a dangerous precedent in a region where the agrarian conflict is often framed in a context of co-optation of entities in charge of land registry and property registration, and even the prosecutor’s offices and the Judiciary, by interest groups with investments in Indigenous territories.

 * Daniel Cerqueira is Program Director of the Due Process of Law Foundation (DPLF).

** Ana Elisa Samayoa is Program Officer of DPLF.

1. See, footnote 102 of the Lhaka Honhat vs. Argentina Judgment, in which the IACHR Court systematizes its jurisprudence on «innocent third parties» and restriction to Indigenous property. ↩︎

Photo credits:  AP Photo/Ginnette Riquelme (File)