The Inter-American Commission on Human Rights (IACHR) recently published a report identifying the perpetual and systemic forms of discrimination suffered by indigenous women in the Americas. See IACHR, Indigenous Women and Their Human Rights in the Americas (2017). The IACHR composed the report in response to the regular information it has received on the pervasiveness of discrimination against indigenous women in the form of physical, psychological, and sexual violence; barriers to access to services; and other impacts on personal integrity. See id. at paras. 1-2. To gather information for the report, the IACHR drew from its hearings, examination of individual complaints, thematic reports, country visits, questionnaires, meetings with indigenous women, and cases decided by the Inter-American Court of Human Rights. See id. at paras. 4, 13-29, 87. In the report, the IACHR identifies and examines three dimensions of discrimination: violence against indigenous women; access to justice; and the protection of their economic, social, and cultural rights.
Building on the IACHR’s previous work on discrimination against women and the rights of indigenous persons, the report purposefully interweaves existing standards on the rights of women and the rights of indigenous peoples to effectively protect indigenous women. See id. at paras. 11, 51, 58. The IACHR provides seven guiding principles and ultimately makes several recommendations to States. In particular, the guiding principles emphasize taking an intersectional approach to address the multidimensional discrimination indigenous women face, and both the guiding principles and the recommendations highlight the importance of involving indigenous women in policy making, processes affecting their rights, and in different levels of government. See id. at paras. 38-41, 44, 45, 231.
Violence against Indigenous Women
The report finds that indigenous women are particularly vulnerable to a variety of acts of violence, and that violence against indigenous women often occurs in specific contexts, including armed conflicts, in the context of extractive projects, the militarization of their territories, in detention, in the domestic sphere, and when they are acting as human rights defenders. See id. at paras. 7, 87. Both non-indigenous and indigenous perpetrators discriminate against indigenous women; perpetrators include State authorities, private actors, armed groups, and indigenous communities themselves. See id. at paras. 83, 131.
Discrimination against indigenous women, the Commission finds, is both the cause of the violence against them as well as the cause of States’ non-responsiveness to that violence. See id. at para. 82.
The report identifies institutions as a vehicle for the perpetuation of discrimination. See id. at para. 81. Institutional discrimination arises due to a lack of identification documents, which creates a barrier to social and economic services; barriers to adequate healthcare often due to a lack of culturally sensitive care and discrimination based on language and dress; barriers to access to justice due to a lack of interpretation services or due to economic and social barriers. See id. at para. 81.
Access to Justice for Indigenous Women
Despite being particularly vulnerable to human rights violations, the IACHR finds that indigenous women in the Americas are not guaranteed access to justice for the human rights violations they suffer. See id. at para. 182. The main barriers to access to justice for indigenous women, the report notes, are geographic, socio-economic, cultural, and linguistic. See id. at paras. 140, 183. Geographic constraints often force indigenous women to walk, in some cases for several days, merely to file a complaint, and the remoteness of many indigenous communities also pose significant challenges for women seeking to introduce evidence and further pursue their claims. See id. at para. 140.
Economic constraints also pose a challenge for indigenous women when they arrive in the towns and cities where authorities are located, the report states. See id. at para. 141. Without interpreters, which many States fail to provide, many indigenous women are unable to pursue their claims in court because they do not speak the language used in proceedings. See id.
Further, the IACHR found that States’ failure to fully address and take a holistic perspective of the issue of violence against women further hinders access to justice for indigenous women. See id. at para. 183. Many acts of violence, the report suggests, are met by no response or a deficient response by State authorities. See id. at para. 7.
Economic, Social, and Cultural Rights of Indigenous Women
The report finds that indigenous peoples, when compared to the general population, live in precarious economic conditions, and within indigenous communities, discrimination against women manifests in the labor market, limited access to social security, higher rates of illiteracy, and higher rates of poverty. See id. at paras. 185, 186. The IACHR recognizes that these issues implicate four core human rights: the right to education, the right to health, the right to food and access to water, and the right to be free from poverty. See id. at para. 187. Although universal and regional human rights instruments enshrine protection of these rights, the report finds that indigenous peoples are denied basic services, education, and healthcare and that they suffer from higher than average rates of poverty. See id. at para. 266.
Guiding Principles & Recommendations
The report sets out seven guiding principles, derived from international standards, that States should consider when developing laws or policies to protect the rights of indigenous women. See id. at para. 31. The guiding principles ask States to empower indigenous women, adopt an intersectional approach to protecting indigenous women’s rights, promote self-determination of indigenous women, promote the active participation of indigenous women in protecting their rights, incorporate indigenous women’s perspective into policy making, recognize the indivisibility of human rights, and recognize the collective nature of indigenous women’s rights. See id. at paras. 37-50.
In the report, the IACHR provides several recommendations to assist States in addressing and preventing human rights violations against indigenous women. See id. at para. 231. First, the IACHR recommends that States apply the seven guiding principles and repeal laws that are inconsistent with the principles. See id. Additionally, the Commission recommends that when developing and implementing measures or policies to combat discrimination and violence against indigenous women, including investigating and prosecuting violence against indigenous women, States should take a holistic, intersectional approach, which considers the sex, gender, and history of racism and discrimination faced by indigenous women and their worldview. See id. Further, policies and legislation that combat discrimination should recognize and address the multiple and interconnected forms of discrimination encountered in different contexts. See id.
States should, in addition, ensure indigenous women’s civil and political rights; include indigenous women at all levels of government; provide gender and cultural competency training for public servants; gather statistics on violence and discrimination against indigenous women, access to justice, and access to economic, social, and cultural rights; adopt measures to protect basic health care services, access to food and water, and education; and take measures to protect the lives and safety of indigenous women human rights defenders. See id.
Regional Legal Standards
The foundation of the IACHR report rests on the international human rights law principles of equality and non-discrimination. See id. at para. 52. Article 1(1) of the American Convention on Human Rights protects the right to equality and non-discrimination, and Article VII of the American Declaration on the Rights of Indigenous Peoples, recently adopted in 2016, protects the right of all indigenous women to the protection and enjoyment of all human rights, free from all forms of discrimination and violence. See id. at paras. 54-55. Additionally, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (“Convention of Belem do Para”) requires States to adopt special and prompt measures to prevent and respond to gender-based violence. See id. at paras. 77, 79-80.
Universal Legal Standards
Outside of the American system, the United Nations Declaration on the Rights of Indigenous Peoples; ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries, 1989 (No. 169); and ILO Convention on the Rights of Indigenous, Tribal and Semi-Tribal Populations in Independent Countries, 1957 (No. 107) specifically address the rights of indigenous peoples. Additionally, the Convention on the Elimination of All Forms of Discrimination against Women specifically addresses the rights of women.
IACHR’s Rapporteur on the Rights of Indigenous Peoples
The IACHR promotes and protects the rights of indigenous peoples through its Rapporteurship on the rights of indigenous peoples, which was created in 1990 and is intended to focus special attention on indigenous peoples in the Americas. See IACHR, Rights of Indigenous Peoples. The office is currently held by Francisco José Eguiguren Praeli. See IACHR, Rapporteur.
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