Alejandro Fuentes, a senior researcher at RWI, has written a research brief, a summary of a larger research paper that he first presented at the 12th Annual European Society of International Law (ESIL) Conference on “How International Law Works in Times of Crisis”. It was held on 8-10 September 2016 in Riga,Latvia.
The brief is titled “Exploitation of Natural Resources and Protection of Indigenous Peoples’ Communal Property over Traditional Lands and Territories: A summary of the Inter-American Court of Human Rights’ safeguards.”
We caught up with him for a few minutes to ask a few questions about this research.
Why are you interested in this topic?
Exploitation of natural resources is essential for developing countries. Their sustainable development depends more and more on their capacity to export commodities to global markets. But lands and territories where those resources are are not empty. Indigenous peoples and local communities also depend on access to those lands and territories for their physical and cultural livelihood. These potentially opposite interests have generated and will still generate innumerous conflicts in the Americas and beyond. Scholars could contribute to the prevention of these potential conflicts by means of clarifying the relevant legal standards. The legitimate interests of States and the human rights protection of the members of the affected communities need to be balanced in order to achieve justice in pluralist, inclusive and democratic societies.
What impact can this landmark jurisprudence have on the lives of indigenous peoples? Has it had any real impact yet?
This jurisprudence can be seen as pioneering in international law. For the first time, an international tribunal recognized that indigenous peoples have the right to communal property over the lands and territories that they traditionally possess. In less than ten years, this jurisprudence evolved encompassing the protection of their cultural identity and – therefore – their right to be culturally different.
Of course, the jurisprudence of an international court does not always generate concreate changes at the national level. Systemic changes need time and – most importantly – societal and political support. However, it is important to highlight that most of the Latin American countries involved in these cases have partially complained about the judgments of the Inter-American Court. Some of them, including Argentina, Brazil and Colombia, have even introduced changes in their national legislations, recognising the collective property rights to indigenous communities. This is far from being ideal, but legislative changes are going in the right direction.
You argue that the I-ACtHR’s broad and expansive interpretation of Article 21 ACHR recognizing the right of indigenous communities to communal property over their traditional lands and territories is a clear sign of the increased protection of diversity and awareness of the existence of a plurality of identities in our modern societies. What impact does this have on the maintenance and perpetuation of their cultural identity?
As argued in the paper, the relevance of this innovative jurisprudence consist in the centrality of the protection of indigenous peoples’ identity and cultural diversity. In this sense, securitisation of the access and enjoyment of their traditional lands and territories became a vehicle for the protection of their unique ways of living. When their traditional lands and territories are protected from unjustified or arbitrary interferences, indigenous peoples could have the chance to maintain and further develop their cultures and – therefore – to contribute to the enrichment and diversification of human heritage.
