Pitfalls and Pipelines - Philippine Indigenous Peoples Links

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254 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries IACHR applies the Convention to process it. Otherwise, the IACHR applies the American Declaration. If the State Party has ratified other conventions these can also be considered. The Court’s role is to enforce and interpret the provisions of the American Convention on Human Rights. Complaints are not made directly to the Court. It is the Commission who potentially forwards cases to the Court if a solution cannot be reached. In urgent cases, it is possible for victims to request precautionary (or provisional) measures before the IACHR. Contrary to Court cases, this mechanism represents an innovative and fast way for victims to obtain help, if they need protection from serious and irreparable harm imminently. Nevertheless, the Inter-American system is under-staffed and under-resourced, which can cause severe delays in the consideration of complaints. 8 The Inter-American system of human rights is likely the regional system that has so far shown the greatest potential to address corporate-related human rights violations. It is also the regional organization that has done most to recognize and promote indigenous peoples’ rights. In 1989 the General Assembly of the OAS asked the IACHR to prepare a legal instrument on the rights of indigenous populations. The declaration is still in draft form over a decade later, but this is still further than any other region has gone with regard to indigenous peoples. 9 The Inter-American Court of Human Rights in its first case in 2001, Mayagna (Sumo) Awas Tingni v Nicaragua affirmed indigenous peoples’ collective right to property. In its judgement, the Court criticized the Nicaraguan government for not demarcating the communal land of the Awas Tingni community, and for granting timber concessions without consulting them. In doing so they accepted that Article 21 of the American Convention on Human Rights, where it mentioned property, should be applied to communal property. 10 Perhaps more importantly the Court has created significant jurisprudence affirming the requirement for FPIC. In the November 2007 case of Saramaka People v Suriname, the
Chapter 2.6: Legal Strategy from the Local to the International 255 Saramaka people’s customary lands had been distributed to mining and logging companies without any regard for their rights. The Court’s judgement reaffirmed that the property rights of indigenous peoples derive from custom and not from any act of the state, and noted their rights are exercised jointly with the right to self-determination and their right “to freely dispose of their natural wealth and resources.” The Court affirmed the right of the Saramaka people to FPIC, making decisions in line with their traditional methods of decision making. 11 Unfortunately, even as the decision is invoked by domestic courts, for example in Peru, the Saramaka have not benefited as the implementation of the judgement has been still stalled. 12 The Saramaka decision was recently reaffirmed in the Court’s ruling in Sarayaku v Ecuador in July 2012. The Court found that the Ecuadorian state violated the community’s right to be consulted, as well as their community property rights and their cultural identity. This was because a foreign oil company was allowed to encroach on their traditional lands in the early part of this century without consultation. Amnesty International noted “This sentence will have a far-reaching effect on countries across the region—it makes it crystal clear that states bear a responsibility to carry out special consultation processes before engaging in development projects affecting indigenous peoples and their rights.” 13 The IACHR responded to an appeal from affected Mayan communities around Goldcorp’s Marlin mine in Guatemala in 2010 by calling for the suspension of mining activities in order to safeguard the health of host communities. Unfortunately the government and the company both ignored the call, but campaigners made full use of the judgement to ensure the company took responsibility for the damage its mine is causing. 14 The African System of Human Rights Protection The African Charter on Human and People’s Rights is unique because of its wide coverage of civil and political, eco-
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