Peruvian lawyer Diego García Sayán served as his country’s minister of justice and minister of foreign relations before joining the Inter-American Court of Human Rights in 2004. He is now completing a second two-year term as president of the court, which was established to uphold the Organization of American States’ American Convention on Human Rights, which took effect in 1978. While García Sayán has been a judge, the court has issued rulings upholding land rights and native peoples’ right to prior consultation about industrial or development plans or projects affecting them, as outlined in International Labor Organization Convention 169. García Sayán spoke with Indian Country Today Media Network correspondent Barbara Fraser in Lima, Peru.
What do you consider the court’s most important recent advances in Indigenous People’s rights?
There are two particularly important things. The first is recognition that the way indigenous people exercise their right to private property is usually through collective property. That is not just a rhetorical or academic matter. It implies that governments must organize their administrative procedures, legislation and public policies in a way that guarantees this right to collective property when it is characteristic of an ethnic group, as it is with most Indigenous Peoples.
The second point, which I think is very important because of conflicts that have arisen in many countries in the region, is having more precisely defined prior consultation as a process that not only involves formal consultation, but which also has a series of characteristics that the court has established in rulings, especially in the case of Sarayaku in Ecuador [where the court found that Ecuador had violated the Kichwa community’s rights by granting a petroleum concession without prior consultation of the community].
What are some of those characteristics?
Prior consultation is understood as part of a dialogue process aimed at developing an agreement between Indigenous Peoples and the state. It is a responsibility and an obligation of the state. This implies not only recognition of the right to consultation, but that governments must organize themselves to carry out prior consultation processes – just as they have to organize to hold elections. This is still under construction in Latin America. There is no “model” country in which it is working perfectly, although the country with the most long-standing practice is Colombia.
What will it take to close the gap between court decisions and actual practice, especially for peoples like the Guaraní or Mapuche, who are seeking rights to ancestral lands?
It’s complicated, because there is a long history. [Loss of ancestral territory] is not something that began 10 or 15 years ago under a dictatorship. It dates back to the beginning of our countries’ histories. It requires not just changing laws and regulations, but establishing public policies that reflect the fact that governments must guarantee those rights. Obviously, there will always be other rights on the other side of the scale – territories that are occupied by other people, or lands to which other people actually have title.
To arrive at a fair solution, the state must always weigh the different interests at stake in a conflict. As we have established in some cases in Paraguay, if certain lands and territories cannot currently be returned to the peoples involved, the state still has the obligation to provide those peoples with similar lands or territory in appropriate places. This may require expropriating or purchasing land, which is what is happening in a couple of cases in Paraguay. It is a slow process, but they are complying. In a judicial decision, you always have to remember that there may be other rights at stake, and the state must seek a balance, but it cannot abdicate its responsibility.
What can be done to protect the rights of indigenous people living in isolation, since they cannot defend themselves in court?
We have not had any cases of that sort, and it would be hard to take one to the court. But it is a matter in which the media and public opinion can play an important role. States must have very strict protective measures, because nowadays, with the increase in prices of raw materials, the quest for timber, oil and gas could easily break up areas inhabited by uncontacted people. Constant watchfulness by societies and states is very important, as are very clear policies for prevention and protection, so that these areas – which in some cases are very large – are respected.
What do you consider the most emblematic cases the court has handled in these areas?
Important ones involving groups that had lands taken away included cases in Paraguay [the Xákmok Kásek] and Suriname [the Saramaka people], and a case in Nicaragua [the Awas Tingni community], which had a positive resolution. Prior consultation was an extremely complicated issue, but we found that states were open to dialogue and to designing workable medium – and long-range policies. It is very difficult nowadays to find anyone who will say “no” to prior consultation. How it is done, what it implies, whether or not [indigenous communities have] a right to veto [a project affecting their lands] – those are issues that are still open to discussion. I think that will require a great deal of attention in the coming years, because it is an extremely complex topic. It will require a complicated structure in countries, because not only must [prior consultation] be decentralized, but governments must have the ability to organize dialogue long before a crisis or conflict arises.