In its first judgment to independently analyze the human right to a healthy environment, the Inter-American Court of Human Rights (IACtHR) has held Argentina responsible for violating Indigenous communities’ human rights through its failure to recognize and protect their lands. [IACtHR Press Release] In Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina, the Court considered allegations by Indigenous communities in the province of Salta that the State had failed to implement measures to stop illegal logging and other harmful activities in their territory, which had altered their Indigenous way of life and damaged their cultural identity. See I/A Court H.R., Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina. Judgment of February 6, 2020. Series C No. 400 (Spanish only). This case builds on the Court’s 2017 advisory opinion, in which the Court recognized the “autonomous” right to a healthy environment under the Article 26 (the progressive realization principle) of the American Convention on Human Rights, noting that the right to a healthy environment should not only be considered a component of other substantive human rights. See IACtHR, Official Summary Issued by the Inter-American Court. The judgment also found Argentina responsible for violations of the rights to community property, cultural identity, and adequate food and water. Among other reparations, the Court ordered Argentina to clear the communities’ ancestral lands of settlers and cattle within six years and give the communities the deed.
Facts of the Case & Procedural History
The case concerns 132 Indigenous communities in Argentina that are part of the Lhaka Honhat (Our Land) Association that claims communal ownership of about 643,000 hectares of land near Argentina’s border with Paraguay and Bolivia, and whose presence has been verified in that area since at least 1629. See I/A Court H.R., Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina. Judgment of February 6, 2020, paras. 28, 47, 49. While Indigenous peoples have lived in the region for centuries, non-Indigenous people began to move into the area in the early 1900s, developing ranches and putting up barbed-wire fencing that changed the Indigenous communities’ way of life, including their access to food and water. See id. at paras. 36, 51-52. Argentina also built an international bridge that went through the land without first conducting a prior, informed consultation with the Indigenous communities. See id. at para. 23.
In 1998, Lhaka Honhat (Our Land) Association of Aboriginal Communities along with the Center for Justice and International Law (CEJIL) and the Centro de Estudios Legales y Sociales (CELS) submitted a petition to the Inter-American Commission on Human Rights (IACHR) on behalf of the Indigenous communities that are part of the Our Land Association, which the IACHR declared admissible in 2006. The IACHR referred the case to the Court on February 1, 2018, after Argentina failed to comply with the recommendations contained in its January 2012 merits report, in which the IACHR found Argentina responsible for violating the victims’ rights to property, judicial protection, and access to information, and recommended measures to compensate the victims. [IACHR Press Release]
The Court’s analysis focused on the victims’ right to community property under Article 21 of the American Convention; the rights to cultural identity, a healthy environment, and adequate access to food and water under Article 26; and the rights to judicial protection and due process under articles 25 and 8, respectively. See I/A Court H.R., Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina. Judgment of February 6, 2020, para. 91.
Right to community property
The main question before the Court was whether the State had violated the right to community property by not providing adequate legal security to this right for the Indigenous communities. See id. at para. 114. The Court first reiterated that the right to property under Article 21 of the Convention protects Indigenous and tribal peoples’ right to communal ownership of their lands, and that States have an obligation to give legal certainty to that right and guarantee that Indigenous communities are able to control the land and natural resources. See id. at paras. 93, 98. Further, States must follow an adequate consultation process, ensuring the Indigenous communities’ effective participation in the process, for all activities that may impact the integrity of their land and natural resources.
In this case, the Court found that Argentina allowed the Creole, non-Indigenous residents, in the territory and that, more than 28 years since the Indigenous communities first legally claimed the land, the State has failed to provide legal security via a proper deed or title to the territory. See id. at paras. 136-137, 166. While the Court acknowledged and valued the dialogues and agreements that have taken place between the State, the Creole community, and the Indigenous communities since 2007, it concluded that Argentina has yet to relocate the Creole from the land or provide a legal title, and thus “legal certainty,” to the Indigenous communities’ right to land. See id. at paras. 167-168. Moreover, the Court found that Argentina did not have the adequate normative framework in place to guarantee the community property right in violation of Article 21 of the Convention, in relation to articles 8, 25, 1.1, and 2. See id. at paras. 167-168. The Court also noted that Argentina must not only comply with its human rights obligations with respect to the Indigenous communities in this case, but must also guarantee the rights of the Creole population living on the lands at issue, taking into account the already vulnerable situation of the Creole. See id. at para. 137.
With regard to the international bridge and other construction related to it, the Court held that Argentina failed to ensure an adequate consultation process prior to beginning construction. See id. at para. 183. The Court concluded that Argentina violated the rights to property (Article 21) and to participate in government (Article 23) of the Convention by not implementing mechanisms for a free, prior, and informed consultation with the affected Indigenous communities. See id. at paras. 184-185.
Rights cultural identity, a healthy environment, and adequate access to food and water
While the Inter-American Commission did not analyze Article 26 of the Convention in its Merits Report, it called on the Court to develop its Article 26 jurisprudence, particularly as it relates to Indigenous peoples and the right to food or other rights that may be relevant. See id. at fn. 172. The Court first affirmed its competence to determine Article 26 violations, indicating that protecting economic, social, cultural and environmental rights (derived from the Charter of the Organization of American States (OAS Charter)) falls within its jurisdiction. See id. at para. 195. The Court then identified the autonomous rights that can be derived from Article 26. See id. at para. 196.
The IACtHR elaborated on States’ obligations with respect to the autonomous right to a healthy environment, which it determined could be derived from Article 26 in its Advisory Opinion OC-23/17. See id. at para. 203. The Court established that States have an obligation to prevent environmental harms and, when it is not possible to prevent the harm, to implement measures that will restore the situation to how it existed before the harm was done. See id. at para. 208. Drawing on regional and universal human rights standards, the Court also concluded that the right to food can be derived from Article 26 and that States have an obligation to respect and guarantee this right, as well as to prevent third parties from interfering with it. See id. at para. 221. Similarly, the Court stated that the right to access to water can be derived from Article 26 and held that States have an obligation to guarantee access to water, both by guaranteeing the progressive realization of this right and implementing immediate measures to ensure that access to water is provided in a non-discriminatory manner. See id. at paras. 229-230. Moreover, the Court stated that States have an obligation to adopt measures and policies to ensure that all persons are able to exercise the right to cultural identity, as well as measures to protect this right and prevent third-party interference. See id. at para. 242.
The Court found that activities of the Creole people on the territory, mainly their use of livestock, illegal logging, and barbed-wire fencing, altered the Indigenous way of life and their cultural identity. See id. at paras. 257, 262, 266. These activities also interfered with their access to water and traditional way of obtaining food. While the State was aware of the activities and implemented measures to stop some of them, the Court concluded that the illegal logging continues and the barbed-wire fences still exist. See id. at paras. 267-271. Thus, the Court determined that the State measures have been ineffective in preventing these activities from causing harm to the Indigenous communities, and held that the State failed to guarantee the Indigenous communities’ rights to a healthy environment, cultural identity, food, and water under Article 26. See id. at paras. 286-289.
Finally, the Court held that Argentina violated the right to judicial guarantee within a reasonable time under Article 8.1 of the Convention with respect to the national process concerning the allotment of land lots. See id. at paras. 300-302, 305. The Court considered that the almost seven-year process before national courts was excessive and unjustified, in violation of the Convention. See id.
Among several reparations, the Court ordered Argentina to conduct a study identifying where there is a lack of access to drinking water or food within the territory, and to implement a plan to address it within six months of this judgment; remove from the Indigenous territory the fences and the cattle belonging to Creole people, and transfer the Creole residents to an area outside of the Indigenous territory within six years; create a community development fund and implement it within four years; disseminate information about the Court’s judgment via radio broadcasts and other publications; adopt necessary legislative measures and policies to give legal certainty to Indigenous communities’ community property rights; and, pay $50,000 for legal costs and expenses within six months of the judgment. See id. at 122-123. The Court will continue to monitor compliance with its judgment. See id.
While this is the first contentious case in which the Court analyzes the rights to a healthy environment, cultural identity, food, and water as autonomous rights, it has long recognized the territorial and cultural rights of Indigenous persons. For example, the IACtHR has previously held Suriname responsible for failing to recognize the Saramaka people’s right to juridical personality in relation to the right to property under articles 21 and 25 of the American Convention. See I/A Court of H.R., Saramaka People v. Suriname, Preliminary Objections, Merits, Costs, and Reparations. Judgment of November 28, 2007. Series C No. 172. This was the first binding international decision that recognized the right to natural resources located within the territory of an Indigenous or tribal group. [Amazon Watch] Additionally, in 2012, the IACtHR issued a landmark decision concerning Ecuador, where it affirmed the right to free, prior, and informed consent for Indigenous communities where development on their traditional lands may affect the use and enjoyment of their lands. See I/A Court of H.R., Kichwa Indigenous People of Sarayaku v. Ecuador, Merits and Reparations. Judgment of June 27, 2012. Series C No. 245.
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