The majority of Latin American States voted in favor of the UN Declaration, which represents the current international opinion on the fundamental human rights of indigenous.
October 26, 2017.- Presentation by the United Nations Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz for the Focal Point Meeting of the Latin American Network for Genocide and Mass Atrocity Prevention
New York, 15 and 16 October 2017
Introduction
Good afternoon, I am Victoria Tauli-Corpuz, the United Nations Special Rapporteur on the rights of indigenous peoples. I again would like to thank all the organizers of this event for your invitation to take part in this important panel about the current challenges in matters of mass atrocity prevention in Latin America.
As I mentioned this morning, my mandate consists primarily of examining the obstacles, challenges, barriers and good practices that exist with regards to the enjoyment of indigenous peoples' rights. My work is guided by the UN Declaration on the Rights of Indigenous Peoples (UN Declaration) and other relevant international instruments for the advancement of indigenous peoples' rights. [1]
The majority of Latin American States voted in favor of the UN Declaration, which represents the current international opinion on the fundamental human rights of indigenous peoples' rights, consistent with widely ratified international treaties. Most Latin American States have ratified the International Labour Organization Convention No. 169 on Indigenous and Tribal Peoples (ILO 169). As parties to inter-American human rights instruments, States in this region are also to heed the interpretive jurisprudence of the Inter-American Commission and Inter-American Court of Human Rights in the area of indigenous peoples' rights. To varying degrees, many of the Constitutions in the region recognize indigenous peoples' rights and enable direct application of international human rights instruments domestically. Therefore, throughout Latin America there are strong legal foundations for the protection of indigenous peoples' rights. Yet, the reality in the daily lives of indigenous peoples represents significant challenges in the realization of these international human rights commitments.
The current social, economic and political circumstances of indigenous peoples in the region have been shaped by historical processes that resulted in the particular vulnerabilities and human rights problems they face. The preamble to the UN Declaration recognizes that "indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources." The type of historic injustices referred to include the annihilation of indigenous peoples and the destruction of entire cultures, beliefs and systems of knowledge, and other grave human rights violations. For indigenous peoples today, the dispossession of their lands and related consequences are still very real and represent the types of circumstances that the current legal framework on atrocity crimes should seek to prevent.
The international legal instruments I mentioned before, recognize the special relationship indigenous peoples have with their ancestral lands, territories and natural resources, which are the basis of their cultures and their identity as distinct peoples. They also indicate that States have the responsibility to legally recognize indigenous lands and natural resources and protect them from the actions of state agents or third parties that could affect the integrity of their lands. In addition, under these international instruments, fundamental human rights to property, culture, religion and others have a collective dimension.
According to the UN Declaration, "Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence" (art. 7). In addition to rights to not be subjected to the destruction of their culture, or to racist propaganda or discrimination, the UN Declaration also speaks of effective mechanisms that States shall provide to prevent and redress for actions that have "the aim or effect of depriving them of ... their cultural values or ethnic identities" or "of dispossessing them of their lands, territories or resources" (arts. 7, 8).
Among the serious challenges that indigenous peoples currently face, are extractive, energy, infrastructure and other investment projects being developed or proposed by government agencies or private businesses in their territories. For many indigenous peoples, these activities are a recent manifestation of the historical processes that have dispossessed them of their lands and threatened their social and cultural cohesion and physical survival. Indigenous peoples in the region demand that they be consulted and that their free, prior and informed consent be obtained prior to the approval of these projects. Thus, the issue of domestic implementation and regulation of prior consultation and consent, recognized in ILO 169 and the other legal sources mentioned above, has become a contentious topic throughout the region.
Government and business representatives have in many countries asserted that consultation and consent do not represent a veto power, and following this line of thought, many indigenous peoples are portrayed as being against national development and progress. This is very concerning, as indigenous leaders that voice their opposition and disagreement to these activities in many cases face sustained stigmatization campaigns, criminalization, death threats, harassment and even death.
Consultation and consent are safeguards intended to protect indigenous peoples' rights and revert centuries of exclusion, where important decisions that impacted their lives, lands and cultures were made by others without their participation and without regard to their self-determination and other human rights. Prior to authorization of these projects, independent social, environmental and cultural impact assessments need to be conducted, in accordance with ILO 169 and inter-American jurisprudence, to assess how the full range of indigenous peoples' human rights could be impacted. This is a practice that must be regularly instituted and enforced by State governments as a measure that could help prevent or mitigate grave impacts caused by extractive or other similar activities.
Other recent events have also threatened indigenous peoples' physical and cultural survival. These include armed conflicts in countries like Guatemala, where the Guatemala Commission for Historical Clarification concluded that acts of genocide were committed against the Maya indigenous people, who represented most of the victims of the armed conflict. The effects of this 36-year long conflict that ended in 1996 still endure and there are still calls for justice and reparations. In February 2016, I spoke at a seminar about the Sepur Zarco case, where 15 Maya women brought a case against military officials for acts of sexual violence that they perpetrated in 1982 during the conflict. The officers were found responsible for crimes against humanity. This case is an example of the gender dimensions of the human rights violations indigenous women face. As I indicated in that seminar, there needs to be an understanding of the intersecting forms of discrimination indigenous women face and the particular contexts these incidences of violence occur, particularly with regards to land disputes and other external pressures affecting their communities.
In Colombia, indigenous peoples were disproportionately affected by the armed conflict. The Colombian Constitutional Court in a 2009 Order (Auto 004) determined that certain indigenous peoples faced the risk of extinction due to the differentiated impacts caused by the presence of armed actors in their territories, which included land displacements and incidences of violence that threatened their physical and cultural survival. The Court ordered the government to institute special ethnic safeguard plans, in consultation with these indigenous peoples, that would, among other things, seek prevention of the disproportionate impacts caused by the conflict, the protection of their territories, the protection of indigenous leaders at risk due to their activism, the strengthening of their social and cultural integrity, and measures for truth, justice, reparations and non-recurrence.
Similar specific safeguard measures are also necessary in other national contexts where indigenous peoples have faced serious threats to their physical and cultural survival due to the presence of drug-traffickers, organized crime, agro-commercial interests, loggers, legal and illegal miners and other outsiders present in indigenous peoples' territories without their consent. These are particular risks faced by indigenous peoples in countries where I visited like Paraguay, Honduras and Brazil. Governments need to devise solutions that address the multidimensional problems faced by indigenous peoples and undertake comprehensive actions to safeguard indigenous lives, lands, territories, cultures and natural resources.
The problems described above are particularly grave for indigenous peoples living in voluntary isolation and initial contact in the Amazon and Chaco regions. These specific groups face very pronounced threats to their physical and cultural survival due to their immunological vulnerabilities and the ongoing pressures on their territories caused by external actors and State- promoted extractive, development and infrastructure activities. These territorial pressures have caused a growing wave of contacts and interactions in the border regions between Peru and Brazil, some initiated by isolated indigenous peoples themselves as a result of the dire circumstances they live in due to incursions on their lands. Recently in Brazil, there have been reported massacres of indigenous peoples in isolation and initial contact in the Vale do Javari region allegedly committed by illegal miners. This caused serious alarm nationally and internationally.
The UN Office of High Commissioner for Human Rights' South America Regional Office and the Inter-American Commission on Human Rights have issued guidelines and special reports outlining the human rights standards applicable to these peoples [2]. Both these instruments establish the principles of no contact as an expression of the right to self-determination of these peoples, of the intangibility of their territories, and the precautionary principle - in which actions that potentially risk and endanger the health, well-being and other human rights of these indigenous peoples are to be avoided, even if conclusive scientific or other evidence is not yet available.
The human rights situation of these indigenous peoples and the level of implementation of the above standards was the subject of a Working Meeting in which I participated in Lima, Peru in June of this year. The Meeting was attended by representatives of State institutions, inter-governmental institutions, NGOs, experts and academics. The findings and conclusions drawn from this event evidence the need for States in the region to redouble efforts to protect the territories of these indigenous groups against the presence and actions of state agents and third parties. Along with improved agency coordination at the national level, inter-state coordination is also necessary to address the threats these indigenous peoples face across borders. It was also emphasized that neighboring indigenous and other communities need to be included in the formulation and implementation of protection measures for these indigenous peoples, including health and contingency protocols, early warning systems and conflict prevention measures.
Participants also expressed the need for international human rights bodies and organizations to redouble their efforts. There were calls for increased collaboration between my mandate and the Inter-American Commission on Human Rights and the UN Office on Genocide Prevention and the Responsibility to Protect. Clearly, the human rights situation of these particular indigenous groups should be part of the agenda and action plans and programs of the highest-level political bodies of the United Nations and Organization of American States.
The situation of indigenous peoples in isolation and initial contact reflects the need to avoid repeating the previous history that indigenous peoples in Latin America have endured for centuries which has lead to the loss of life and cultures due to violent land dispossession, wars, colonization, disease and other external factors.
It is my hope that through the work of the Latin America Network and other international organizations dedicated to the prevention of atrocity crimes, these events that have threatened indigenous peoples' physical and cultural survival can be prevented in the future.
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Notes
[1] A/HRC/RES/33/12.
[2] OHCHR, Guidelines for the protection of indigenous peoples in voluntary isolation of the Amazon region, the Gran Chaco, and Eastern Paraguay (2012); and IACHR, Indigenous Peoples in Voluntary Isolation and Initial Contact in the Americas: Recommendations for the Full Respect of their Human Rights (2013).
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