By Charlotte Parker

Do Indigenous Communities’ Special Rights Impose Special Obligations on States to Protect the Environment?

By Charlotte Parker*

ABSTRACT

This note examines the existing legislative and judicial framework in Latin America offering protection and conferring rights to the indigenous communities in the region. This is focused particularly on the extension of territorial related rights based on indigenous communities’ relationship to their territory, to serve as a basis for possible future protection. The note considers if past judicial interpretations of the Interamerican Court of Human Rights, of the UN Declaration on the Rights of Indigenous Peoples and the American Convention on Human Rights, could be repeated in light of an expected growth of climate migration in Latin America, resulting in the protection of rights intrinsic to indigenous communities. The note will consider past decisions, which extended rights and increased protection for indigenous communities, and whether this could be mirrored to ensure the conservation of indigenous rights for climate migration.

* LL.B. Candidate, International and European Law Program, The Hague University of Applied Sciences. 2022 issue 1 ILSA Law Journal 59

I. INDIGENOUS COMMUNITIES’ SPECIAL NATURE IN THE LEGAL FRAMEWORK

Given historical challenges and oppression faced by indigenous communities, the need for protection of their rights has been recognized globally after the effects of colonization have been studied. This special position has resulted in the creation of national and international instruments aimed towards the protection of their rights, aside from general legislative human rights instruments. Such instruments grant further rights specific to indigenous peoples than that of the rest of society, as to protect values intrinsic to these communities and to ensure that their way of living is revered. Before considering some of these instruments, it is pertinent to note these also serve as a concrete reflection of the special status held by indigenous communities.

As a first instance, there is the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Some of the rights specific to indigenous communities include redress for actions that may deprive them of their integrity, cultural values or identity, dispossess them of their land and resources1 or for property taken without consent,2, another unique right held by these communities extends to their relationship with their territories, which includes the strengthening of their spiritual relationship with their territory,3, and the right to legal recognition of their lands.4. This differs from the regular protections offered to non-indigenous peoples, which is largely limited to the right to protection for interference with their own personal property.

Further, judicial interpretation has aided in the development, recognition, and applicability of indigenous rights. At the American judicial level, interpretation of international legislation has offered a similar protection to that of specific legislation for indigenous communities. A clear example is the extension of the applicability of articles of the American Convention on Human Rights (ACHR) to apply to specific indigenous rights in conjunction with the UNDRIP. For instance, the right to property enshrined in the ACHR which ensures the right of use of

1 Declaration on the Rights of Indigenous Peoples (UNDRIP), UNGA Res 61/295 (2 October 2007) UN Doc A/RES/61/295, art 8(2). 2 ibid art 11. 3 ibid art 25. 4 ibid art 26.

property and prohibits arbitrary deprivations of property for all,5 has been interpreted to protect the relationship between the territory of indigenous peoples and their community based on the cultural value held by such land,6 Judicial interpretation has allowed indigenous peoples to obtain further protection even through ordinary legislative instruments, as demosnstrated by the cases mentioned below. With ordinary legislative instruments referring to legislation applicable to all, as opposed to legislation applicable only to a specific group. These interpretations, in conjunction with the existence of legislative instruments specific to indigenous peoples, further highlight the internationally recognized notion that such communities have a special character and that States must recognise this fact.

II. CLIMATE CHANGE HAS CAUSED MASS AND FORCED MIGRATION OF INDIGENOUS COMMUNITIES

The recent exacerbation of the severity and effects of climate change has resulted in crossborder consequences, for all countries and communities. Although the effects of climate change have been observed worldwide, it has not affected each region, State, or even each community equally. This extends to the impact it has on migration,

A household’s behavioural elements such as their perception of vulnerability to climate change driven risks, future needs, and past experience of migration influence their likelihood to migrate.7. This likelihood increases for low-income groups. Lower-income countries tend to have large concentrations of people living in locations that are highly exposed to environmental hazards and more people with livelihoods tied directly to agriculture and local natural resources.8 .

Climate change has resulted in the production of ongoing ecological changes worldwide, severely impacting infrastructure, livelihoods and wellbeing of a region. These factors have

5 American Convention on Human Rights (ACHR) (adopted 22 November 1969, entered into force 1978), art 21. 6 Mayagna (Sumo) Awas Tingni Community Case, Merits, Reparations and Costs, Inter-American Court of Human Rights Series C No 79 (31 August 2001), para 148; Yakye Axa Indigenous Community Case, Merits, Reparations and Costs, Inter-American Court of Human Rights Series C No 125 (17 June 2005), para 143. 7 World Bank Group, ‘Groundswell: Preparing for Internal Climate Migration’ (2018), p55. 8 ibid, p49 &and 86. 2022 issue 1 ILSA Law Journal 61

created climigration, where livelihood is no longer sustainable due to ecological reasons as the aforementioned.9 .

At a regional level, climate change has already affected Latin America, comprising Mexico, Central America and South America. It is projected that this region will have over 17 million internal climate migrants, representing approximately 2.6% of the region’s population10. Given the rapid population growth of the region, this projection is increasingly concerning.

Thus far, the frequency and intensity of extremes in parts of Latin America have already increased. This includes extreme droughts and tropical storms with heavy rainfall and high winds. Projections for the region estimate more extreme El Nino events. The phenomenon consists of the warming of surface waters and the increase of speed and strength of currents in the Pacific Ocean.11. This results in the devastation of coastal ecosystems, increased precipitation in South America, and severe weather conditions throughout America. These predictions are concerning as it would affect croplands and fishing, which have historically formed a majority of the region’s economic activity. As a direct result of this, patterns of migration are expected to expand in a largely cyclical manner, towards neighbouring countries.12. El Nino is merely one of several climate phenomena with a severe impact on Latin America.

The indigenous communities of Latin America are among the first to face the direct adverse consequences of climate change, as they are more likely to rely on primary sector activities, have a lower socioe-economic background and depend directly on the environment for their resources, affecting factors such as food security.13

9 Robin Bronen, ‘Forced Migration of Alaskan Indigenous Communities due to Climate Change: Creating a Human Rights Response’ (University of Alaska) <https://www.iom.int/sites/g/files/tmzbdl486/files/jahia/webdav/site/myjahiasite/shared/shared/mainsite/events/ docs/abstract.pdf> accessed 10 January 2022. 10 World Bank Group, ‘Groundswell: Preparing for Internal Climate Migration’ (2018), p 109 11 National Geographic, ‘El Niño; (National Geographic Resource Library) <https://www.nationalgeographic.org/encyclopedia/el-nino/> accessed 10 February 2022. 12 World Bank Group, ‘Groundswell: Preparing for Internal Climate Migration’ (2018), p60. 13 Economic Commission for Latin America and the Caribbean, ‘Guaranteeing indigenous people’s rights in Latin America: Progress in the past decade and remaining challenges’ (November 2014) LC/L.3893/Rev.1, p52. 2022 issue 1 ILSA Law Journal 62

III. COMMUNITIES ARE FORCED OUTSIDE OF THEIR INDIGENOUS TERRITORIES WITH CULTURAL VALUE

As briefly mentioned beforehand, there is a special nature of the relation of indigenous communities with their territories, as recognized at the social, legislative, and judicial levels. The dependence on the environment extends to socio-cultural considerations.

Indigenous communities in Latin America largely settle in ancestral territories, where their communities have resided for decades. In case of migration, indigenous communities favour geographic areas close to their ancestral territories.14 Thus, the significance of the lands they inhabit does not depend on factors such as connectivity, availability of resources or opportunities, as it does for other, non-indigenous, communities.

The Interamerican Court of Human Rights (IACtHR) recognized the close relationship of indigenous groups with their territory, and the fundamental role of this aspect with their culture, spiritual life and integrity in the Awas Tingini v Nicaragua case.15. This principle was further developed in the Yaykye Axa v Paraguay16 case where such relationship was highlighted as the basis of States’ obligation to preserve and transmit such relation to future generations of these indigenous communities. Furthermore, this connection extended to the obligation to protect the right to property as the Court determined this was crucial for Ecuadorian indigenous communities to preserve their lifestyle, cultural identity, social structure and customs.17 .

IV. STATES HAVE AN OBLIGATION TO RESPECT INDIGENOUS

TERRITORIES

States’ commitment to the respect of indigenous rights is observed within their national legislation18, as well as at a regional and international level through further legislation and

14 ibid, p64. 15 Mayagna (Sumo) Awas Tingni Community Case, Merits, Reparations and Costs, Inter-American Court of Human Rights Series C No 79 (31 August 2001). 16 Yakye Axa Indigenous Community Case, Merits, Reparations and Costs, Inter-American Court of Human Rights Series C No 125 (17 June 2005). 17 Kichwa Indigenous People of Sarayaku Case, Merits and Reparations, Inter-American Court of Human Rights Series C no 245 (27 June 2012), para 146. 18 Constitución de la República del Ecuador 2008 art 171; Constitución de la nación Argentina art 75(17); Constitucion Politica de los Estados Unidos Mexicanos art 2(A) 2022 issue 1 ILSA Law Journal 63

cooperation with supranational judicial decisions. Through rulings on the subject of indigenous rights, the IACtHR has proven the possibility of extending rights to afford greater protection. Thus, taking into consideration the previous extension of judicial protection afforded on the basis of the significance of territory, one could argue a similar extension can be repeated for cases of climigration.

States could be under the obligation to ensure protection in light of the effects of climate change. The particular vulnerabilities faced by indigenous groups, and their ties to their territory, it would be appropriate to suggest States should ensure the effects of climate change are mitigated. This assurance would help avoid climigration which displaces indigenous communities and disrupts their socio-cultural identity and practice.

Furthermore, indigenous migrants have been found to reproduce their socio-cultural traditions after displacement.19 This poses an additional implication for States, which have historically been under the obligation to promote and respect the cultural traditions of such communities, to protect customs if migrations continue. This would entail further State interventions in these communities, as well as socio-economic investment to provide support.

19 Economic Commission for Latin America and the Caribbean, ‘Guaranteeing indigenous people’s rights in Latin America’ (November 2014) LC/L.3893/Rev.1, p67. 2022 issue 1 ILSA Law Journal 64