Inter-American Commission Issues Precautionary Measures as COVID-19 Threatens Indigenous Communities
The Inter-American Commission on Human Rights (IACHR) has requested that Brazil protect the Yanomami and Ye’kwana peoples from the ongoing, heightened risk posed by COVID-19. [IACHR Press Release: Measures (Spanish)] In particular, the IACHR asked Brazil to protect the Indigenous communities’ rights to health, life, and personal integrity by taking steps to prevent the further spread of COVID-19 – including from trespassing miners – and by providing appropriate healthcare. See IACHR, Resolution 35/2020, Precautionary Measure No. 563-20, Members of the Yanomami and Ye’kwana Indigenous Peoples (Brazil), 17 Jul. 2020 (Portuguese). The precautionary measures adopted by the IACHR on July 17, 2020 appear to be the first international protective measures addressing the risks posed to Indigenous peoples by the pandemic, although international human rights bodies have repeatedly made broader calls for States to address those risks.
The Brazilian national human rights council (Conselho Nacional de Direitos Humanos) and the Hutukara Yanomami Association submitted the request for precautionary measures on June 16, 2020. See id. The request indicated that the Yanomami and Ye’kwana peoples living on ancestral lands are at particular risk from the COVID-19 pandemic because of their vulnerability to external disease, lack of adequate healthcare, the presence of approximately 20,000 illegal miners on their land, mercury contamination from mining, and violent attacks by miners against Indigenous leaders. A young Yanomami person died from COVID-19 in early April and there have been new infections recorded daily since early May, with a mid-June total of 150 known coronavirus cases. See id. at para. 5.
Indigenous Yanomami land is home to approximately 26,000 people in northern Brazil. The 321 villages include some living in voluntary isolation and some that have only recently had external contact. See id. at para. 4.
In addition to highlighting the communities’ vulnerabilities to respiratory illnesses, the request for precautionary measures described the lack of supplies and appropriate healthcare at the local government health facility. Healthcare workers and others, such as airplane pilots, coming from outside Yanomami land allegedly do not respect quarantine rules and some do not use masks. See id. at para. 8. The request also emphasized the risk posed by non-Indigenous miners trespassing on Yanomami land. Although panning for gold is illegal on Yanomami land, there has been a significant increase since 2018. See id. at para. 9. In spite of a judicial order, Brazil had not yet reopened three centers intended to protect against incursions of miners. See id. at paras. 10, 11.
The Brazilian State submitted information indicating that some of the issues raised in the request for precautionary measures were being considered by domestic courts. See id. at para. 18. The State also described its efforts to monitor and protect against COVID-19 and illegal mining on Indigenous territory. It alleged the IACHR had no authority to grant precautionary measures in this situation because, it argued, the communities had not shown national efforts to be insufficient or ineffective. See id. at para. 28. In granting the precautionary measures, the IACHR responded that the requirement of “exhaustion of domestic remedies” only applies to petitions. See id. at para. 38. The IACHR rejected Brazil’s argument that its jurisdiction was only “complementary” and it should not consider the request for precautionary measures where the State was already acting to address the risk; it explained that State action would only impact the IACHR’s authority when that action reduced the risk below the threshold of seriousness, urgency, and possibility of irreparable harm. See id. at para. 54. The Commission also noted that the information provided by the State was general and not specific to the Yanomami and Ye’kwana peoples. See id. at para. 47.
The IACHR’s resolution identifies the multiple and complex risk factors affecting the Yanomami and Ye’kwana peoples, and notes that the State did not dispute the need for special protection against COVID-19. See id. at para. 39. Given the decrease in protection from miners in recent years, the IACHR noted the possibility that 40% of people in villages near illegal mining could be infected. See id. at para. 49. Based on the facts alleged and the nature of the pandemic, the IACHR concluded that the Yanomami and Ye’kwana peoples are in a situation of grave risk of irreparable harm. See id. at paras. 51-55.
The IACHR requested that Brazil adopt the measures necessary to protect the health, lives, and physical integrity of the Yanomami and Ye’kwana peoples, taking into account a cultural perspective, by taking steps to prevent the spread of COVID-19, including by providing appropriate healthcare. It asked that Brazil agree on the measures to be adopted with the Yanomami and Ye’kwana peoples or their representatives, and that it report back on the actions taken to investigate the facts raised in the request for precautionary measures. See id. at para. 57. The IACHR asked Brazil to inform it, within 15 days and periodically thereafter, of the steps taken. See id. at para. 58.
COVID-19 and Human Rights Risks to Indigenous Peoples
Human rights oversight bodies and advocacy organizations have emphasized the particular risks posed by the pandemic to Indigenous peoples, including in the Americas. [IACHR Press Release: Indigenous Peoples; CEJIL] The United Nations Office of the High Commissioner for Human Rights (OHCHR), for example, has issued guidance to States on protecting the human rights of Indigenous peoples in the context of COVID-19. See OHCHR, COVID-19 and Indigenous Peoples’ Rights (June 2020). Earlier this week, the World Health Organization (WHO) issued a statement indicating that Indigenous peoples are among the world’s most vulnerable populations and are at higher risk of COVID-19. [UN News] Human rights experts, including the UN Special Rapporteur on the rights of Indigenous peoples, have noted that the risks from COVID-19 go beyond health and include opportunistic land grabs or reduced governmental protection. [OHCHR Press Release] These statements and guidance can be found on IJRC’s webpage on COVID-19 Guidance from Supranational Human Rights Bodies.
At the national level, some communities have turned to the courts to ensure protection against the novel coronavirus, such as in the case of the Waorani in Ecuador. [Mongobay]
COVID-19 and Precautionary Measures
Many supranational human rights bodies are authorized to order, or request, States to take immediate action to prevent serious, irreparable harm to individuals’ human rights. These may be called precautionary, provisional, or interim measures. Not all bodies regularly publish their decisions on requests for such measures. In the context of the COVID-19 pandemic, several such requests have been granted and published thus far.
The IACHR has granted precautionary measures to persons deprived of liberty in Venezuela, who alleged they were not receiving adequate healthcare and were also concerned about the risk of contracting coronavirus. See IACHR, Resolution 26/2020 (Amplification), Precautionary Measures No. 751-19, Emirlendris Carolina Benitez Rosales and seven other people deprived of liberty (Venezuela), 17 Jun. 2020 (Spanish); IACHR, Resolution 19/2020, Precautionary Measures No. 317-20, Juan Antonio Planchart Márquez (Venezuela), 3 May 2020 (Spanish). In the case of Vélez Loor v. Panama, the Inter-American Court of Human Rights (IACtHR) granted urgent measures in favor of immigration detainees in Panama. See I/A Court H.R., Resolution of the President of the Inter-American Court of Human Rights, Adoption of Urgent Measures, Vélez Loor v. Panama, 26 May 2020 (Spanish).
For additional information on the Inter-American or United Nations human rights mechanisms, visit IJRC’s Online Resource Hub. For IJRC’s continuing coverage of human rights bodies’ responses to the pandemic, visit our COVID-19 webpage. To stay up-to-date on international human rights news, visit IJRC’s News Room or subscribe to the IJRC Daily.