At the Inter-American Commission Human Rights…

I’m spending this week in Washington, DC, attending sessions of the Inter-American Commission on Human Rights. I’m here as a researcher on socio-environmental conflicts and a teacher; six of my students in a Human Rights of Indigenous Peoples class are here with me to see how the human rights they are learning about are claimed in practice. The Inter-American human rights system, which includes the Commission and the Inter-American Court on Human Rights, has become a critical node in the mesh of institutions that are transforming indigenous rights from a general aspiration to a formal international norm.

International law institutions are viewed by most United States citizens with well-earned skepticism. The US government has played an ironic role in helping to structure such institutions, but then refusing to acknowledge any outside legal commitment or monitoring structure as having authority over its actions. US Ambassador to the United Nations Jeane Kirkpatrick famously called social and cultural rights “a letter to Santa Claus” and Senate ratifications of major human rights treaties have included statements insisting they may not be invoked in civil litigation. Outside the superpower, however, these institutions tend to be regarded with greater respect and states dutifully send senior officials to be questioned and directed by members of the Inter-American Commission. On Friday, for example, Commissioner Macaulay insisted that a Minister from Panama not leave the room without first scheduling the next meeting with a community who brought its land claims case before the IACHR.

Indigenous Rights at UN:OAS.002Both the Commission and the Court are bodies of the Organization of American States, the regional association of Western Hemisphere countries founded in 1948 in response to the Roosevelt Administration’s call for a “League of Nations of the Americas.” US leadership initially positioned the OAS as anti-communist and drove Cuba’s suspension from the organization from 1962 to 2009. The Commission began in 1959 and the Court opened in 1979. While the softer of the two institutions, the Commission has the power to impose binding “precautionary measures,” ordering states to protect vulnerable individuals or avoid taking irreversible actions. The Commission also acts as an investigative arm of the system and makes recommendations to states, and sends cases to the Court for adjudication when the states don’t comply. The Court acts as a kind of continental Supreme Court overseeing the human rights of people in twenty-four countries that have ratified the American Convention on Human Rights (those countries indicated by all colors except purple and gray in this map).

My students have been reading Richard Price’s Rainforest Warriors: Human Rights on Trial, a detailed ethnographic account of the how the Saramaka people brought their rights claims before the Inter-American Commission and Inter-American Court in a landmark case. The Court’s eventual decision in Saramaka v. Suriname concluded (1) Afro-descendant peoples in the Americas living traditionally and distinctly from national societies have the same rights as indigenous peoples; (2) Both kinds of traditional peoples have rights to property in their traditional territories, and the resources they have traditionally used; (3) projects that seize this property or threaten the physical or cultural survival of traditional peoples can only be carried forward with their free, prior, and informed consent.

Four years ago, I attended the session on the Isiboro-Sécure National Park and Indigenous Territory at the Commission. You can read my report on that hearing here. More recently, in December 2016, three Sioux peoples brought the issue of the Dakota Access Pipeline to the IACHR. The hearing is archived as an online video (en and es, according the language of the speaker), just as all hearings this week are available from the Commission.

Bolivian-Venezuelan Military construction team begins work on TIPNIS highway

Putting new pressure on a polarizing national conflict, the Bolivian government re-started construction work on the Villa Tunari–San Ignacio de Moxos highway, whose central segment would run through the Isiboro-Sécure National Park and Indigenous Territory. The construction, which began yesterday June 28, is on Segment Three of the highway, stretching 100 kilometers from San Ignacio de Moxos to Santo Domingo, a community within the Park. A joint Bolivian-Venezuelan unit of military engineers will carry out the project, using forty dump trucks. They currently project completion of the project by 2016, although such timelines are often unreliable. The segment is projected to cost US$144 million.Read More »

Evo Morales reopens proposal for highway through TIPNIS

Bolivian President Evo Morales has renewed his efforts to build a controversial highway through the heart of the Isiboro Sécure National Park and Indigenous Territory (TIPNIS), a forested park that is home to over 12,000 indigenous people. The central segment of the highway would bisect the territory and accelerate already high rates of deforestation. Protests spearheaded by the Confederation of Indigenous Peoples of Bolivia (CIDOB) in 2011 and 2012 postponed its construction, while funding by the Brazilian Development Bank (BNDES) was withdrawn. The Bolivian government had previously said it would tackle extreme poverty in the territory before mounting any new effort to build the highway.

On June 4, however, President Morales told an audience in his home base of Villa Tunari, Cochabamba, that the project “will be realized.” His remarks followed on earlier statements leading up to the April regional elections and a May runoff that put the highway back on the official agenda. Now, with an overwhelming victory for Morales’ MAS party in Cochabamba and a very narrow win in the Beni runoff, the national government seems committed to restarting the project. In the president’s words,

On the subject of integration, good voices come from the new governors of Beni [Alex Ferrier] and Cochabamba [Iván Canelas]. The Villa Tunari – San Ignacio de Moxos, comrades, will be realized.Read More »

Bringing the Fight over Bolivia’s TIPNIS Road to Washington, DC

Bolivian indigenous leaders denounce human rights violations in Isiboro-Sécure case in Washington

(This blog post also appears at Amazon Watch’s Eye on the Amazon blog.)

Subcentral TIPNIS leader Fernando Vargas Mosua and Adolfo Chávez, president of the Confederation of Indigenous Peoples of Bolivia (CIDOB), addressed the Inter-American Commission on Human Rights (IACHR) on Friday, March 15. The hour-long hearing was the culmination of a weeklong trip aimed at putting the Isiboro Sécure situation on the hemispheric human rights agenda. The visit came in the third year of high-profile campaign to prevent the Bolivian government from building a highway through the Isiboro-Sécure National Park and Indigenous Territory (TIPNIS; past coverage).

Since their march to La Paz in 2011, residents of TIPNIS have experienced restricted freedom of movement. Military detachments, variously labeled an “environmental brigade,” an anti-narcotics measure, and part of “integrating the territory under state control,” restrict access and have hampered the activities of external organizations. Boat fuel, the essential ingredient of mobility on the rivers, has been tightly regulated as a “narcotics precursor.” Meanwhile the Bolivian government backed its own parallel leadership for CIDOB and assisted in evicting Adolfo Chávez and the rest of its elected officers from their headquarters in Santa Cruz. Domestic and Amazon Basin-wide indigenous organizations continue to recognize his leadership.

At the headquarters of the Organization of American States, the indigenous representatives offered a wide-ranging presentation concerning all of the events since the inauguration of the Villa Tunari–San Ignacio de Moxos highway project. Adolfo Chávez introduced his compatriot and to ask that indigenous and individual rights be protected by the IACHR. Fernando Vargas described the territory and the project and presented the struggle of his people as a defense of the territory, of their rights, and the natural environment. “We cannot be accomplices,” he said, “to the destruction of the environment and global warming.”

The leaders called the IACHR’s attention to a series of violations of the collective and individual rights of the sixty-four indigenous communities. Their community structures, including local traditional leaders called corregidores and the territorial organization Subcentral TIPNIS, have been bypassed by the government as decisions are made about the route for a Cochabamba-Beni highway. Police officers and military troops attacked and imprisoned hundreds of members of a pro-TIPNIS indigenous march on September 25, 2011. Despite formal complaints and the presentation of forensic reports on injuries to seventy protesters, the official investigation into abuses that day remains stalled.

At the conclusion of the 2011 march, the government capitulated and passed Law 180, designed to permanently protect the territory as an “intangible zone.” However, a December 2011 agreement between the government and the indigenous communities to implement the law was never put into effect. Instead, the government has unilaterally declared that “intangibility” means that nearly all economic activities – including eco-tourism, sustainable nut and cacao harvesting, and other projects previously approved – must be suspended until the communities accept the construction of the highway.

In 2012, the Bolivian government approved a Law 222 allowing for a community consultation on the future of the territory. However, the terms of this consultation were never coordinated with the local indigenous organization, despite an order from the Plurinational Constitutional Tribunal that the consultation would only be legal if agreed to. The government’s consultation went ahead despite multiple institutions complaining that it failed to meet the most basic of international standards. The “consultation” was accompanied by the public bestowing of gifts and development assistance that were explicitly conditioned on acceptance of the highway. Late last year, a joint survey team led by the Catholic Church and the Permanent Assembly for Human Rights, found that the consultation was neither free, nor informed, nor prior – the essential conditions of its legitimacy.

Fernando Vargas sought the Commission’s presence to clarify the facts, its intervention to maintain in force Law 180, and its determination that the Bolivian government’s obligations to protect the TIPNIS indigenous’ collective rights have not been met.

The Bolivian government brought a sizable delegation to the Commission, led by Minister of Government Carlos Romero. For its part, the Bolivian government’s presentation reviewed another version of the TIPNIS story that focused on who should represent the interests of the indigenous community. Most of its allotted time was given to pro-government indigenous leaders, Melva Hurtado, Pedro Vare, Carlos Fabricano, and Gumercindo Pradel. Respectively, they come from the parallel CIDOB leadership elected while the 2012 indigenous march was still in La Paz, a Beni indigenous organization, and communities on the Sécure River and in the colonized zone of TIPNIS who are affiliated with the coca grower’s movement. . The strategy of the government had two sides: bringing these allies to speak on one hand, and on the other hand treating their demands as totally independent of its campaign to promote the highway. In response, Adolfo Chávez offered another point of view by saying that these figure’s presence was the best illustration of the division among indigenous communities created by the government, and of the lack of respect it has for indigenous people’s own processes of self-government.

In his presentation, Minister Romero denied that any highway project yet exists in TIPNIS, continuing to claim that Segment Two of the highway is entirely independent of Segments One and Three. With the annulling of the government’s contract with the Brazilian construction firm OAS, he said, the project which had begun is now “merely a possible road” in the future. Therefore, he claimed, the 2012 consultation is now a “prior consultation” as required by international standards. He said the current government is more indigenous than any previous one, describing the representation of indigenous people in the national executive and legislature and the titling of Native Community Lands like TIPNIS.

With a session of just one hour, and the lengthy presentation by the government (finally cut short by the Commission), little time remained for questions from the dais. But two members of the commission offered some. What was the form of environmental impact statement generated before the consultation process? What were the norms that regulated that consultation? What was the specific evaluation offered by the indigenous of the likely environmental and social impact of a highway?

The Bolivian indigenous leaders brought with them abundant documentation ranging from their legal title to the territory to detailed community-by-community documentation of the flawed consultation process of the government. They extended an invitation to the Commission to visit the territory and to take a stand on the legality of government actions over the past two years. A full response from the Commission is expected in the months to come.

During their trip, the indigenous leaders also aired their concerns with the American Bar Association,  American diplomatic officials, legislators in the House and Senate Human Rights caucuses, and Georgetown Law School.

Bolivian Constitutional Tribunal shakes up MAS executive with rulings, comments

In a very busy Wednesday, Bolivia’s Plurinational Constitutional Tribunal struck down a longstanding law criminalizing “contempt” toward public officials and limited the scope of an anti-corruption law; rounding out the court’s surge into the headlines, justice Gualberto Cusi made biting comments on the government’s failure to abide by the court’s ruling on the TIPNIS consultation.

Contempt law ruled unconstitutional: The Tribunal found, in Judicial Ruling 1250/2012, that the law prohibiting contempt (“desacato” ) towards senior public officials through defamation is an unconstitutional violation of the freedom of expression. The court advised public officials that they may use civil court procedures to deal with slander, and nullified the law in its entirety. Numerous opposition figures, including the center-left Mayor of La Paz, Luis (Lucho) Revilla, and the right-wing Governor of Santa Cruz, Ruben Costas, have been indicted under this very broad statute following complaints from the governing Movement Towards Socialism party.

The “Marcelo Andrés Santa Cruz” Anti-corruption Law cannot be applied retroactively: In the first legislative session under the new Constitution, the Movement Towards Socialism supermajority wasted no time in approving a new law criminalizing corruption. The law allows for severe penalties against officials who took bribes or other compensation to change policies. It was designed to give the government room to revise contracts and licenses approved under improper influence, and to recover fortunes which had been pilfered from the government. However, it was also referred to as the “Guillotine Law” (including by the Vice President) for its ability to end the political careers of past government officials. On Wednesday, the court sharply limited this aspect, finding that the law may not be applied retroactively “when the sanction [it imposes] is more severe or the act being judged would not have constituted a crime when it was carried out.”

Gualberto Cusi speaks out on TIPNIS: The Constitutional Tribunal had already ruled on the TIPNIS consultation, insisting that any process establishing the will of the communities in the Isiboro-Sécure National Park and Indigenous Territory about the proposed Villa Tunari–San Ignacio de Moxos highway, which would cut through the region and accelerate already serious deforestation, must occur in a mutually agreed framework. Justice Gualberto Cusi—the judge who received the most votes in last year’s judicial election—denounced the current consultation process as a “disaster” that violates the indigenous inhabitants’ rights. Further, the justice suggested that the TIPNIS indigenous may need to look outside Bolivia for protection of their rights: “I believe that in Bolivia, no[, nothing can be done.] It will have to be the indigenous who appeal these acts to international tribunals. Yo creo que en Bolivia no (se puede hacer algo), tendrán que ser los indígenas quienes apelen a estos hechos en tribunales internacionales.” The most likely forum for international appeals is the Inter-American Court on Human Rights, which has been a pathbreaking forum for indigenous rights.

None of these rulings would be particularly exceptional for a high court around the world, but this particular high court is in its first year, and came out of a controversial nominating and election process which was boycotted by multiple opposition forces. For it to strike down major laws embraced by the governing party and publicly embrace human rights standards around freedom of expression, indigenous consultation, and ex post facto laws makes this something* of a Marbury v. Madison moment for the new court.

* The analogy is inexact since a Constitutional Tribunal began operation in 1999.

Bolivian government bypasses local organizations, misrepresents facts in “agreement” on TIPNIS consultation

On July 3, as participants in the Ninth National Indigenous March remained camped outside the Vice Presidency, the Bolivian government flew a set of 45 residents in the Isiboro Sécure National Park and Indigenous Territory (TIPNIS) to La Paz. Once there, they met with a group of government ministers on live television. The government accepted these 45 people as representatives of TIPNIS and signed an agreement with them authorizing a consultation process for July 29 to September 2 to approve the segment of the Villa Tunari–San Ignacio de Moxos highway that passes through TIPNIS. According to the government, these 45 people are Corregidores (a community-level office common among indigenous peoples of the region) conveying the assent of their communities. (Some coverage of the event: La Razón)

TIPNIS representatives rejected the proposed process of consultation in a March 2012 summit of Corregidores and have repeatedly stated their opposition to the construction of the road. The Subcentral TIPNIS, which holds collective title to the indigenous territory, the Confederation of Indigenous Peoples of Bolivia (CIDOB) and many other observers (like Pablo Solón), have criticized the proposed consultation as deeply flawed. Many TIPNIS community members and CIDOB members walked 62 days to La Paz as part of the march to oppose the consultation, and they reacted with outrage to the agreement’s announcement. Meanwhile, CONISUR, a separate organization in the region that represents indigenous communities overrun and now intertwined with coca-growing settlers, has been openly advocating for the road and the new consultation process.

As with the recent maneuvers within CIDOB, which have created a parallel leadership vying for control of the organization, the orchestration of this new “agreement” raises major questions about government interference in the internal workings of grassroots organizations, and about the government’s commitment to make the process of informed consent both free and fair.

Alongside these questions of principle, however, are more troubling questions about who this group of TIPNIS community members are, which communities they represent, and how the government of Evo Morales won their assent to the consultation. While the specific facts of the matter are in sharp dispute, multiple accounts undermine the credibility of the government narrative around this agreement.

  •  The signatories include 18 representatives of CONISUR communities, located outside of the collective title that makes up the indigenous territory. Seven CONISUR communities were recognized as part of the Isiboro-Sécure National Park before, but had their titles divided into individual plots, leaving them outside of the Indigenous Territory. These 18 representatives seem to represent between 11 and 13 communities. (This point is made by Subcentral TIPNIS President Fernando Vargas here.) The government seems ready to treat 13 Conisur communities as part of the consultation, despite the dissent of its own Agrarian Reform Institute (the body charged with land titling in Bolivia). Source: Erbol.
  • Fernando Vargas also testified that only about 20 of the 45 community members are in fact Corregidores recognized by their own communities, while others are merely hand-picked community members selected by the government.
  • Those Corregidores signing in the agreement may have included both titulares (officeholders) and auxiliares or suplentes (alternates), most likely from the same communities. By the count of Benigno Noza, a Corregidor opposed to the road, there were just 18 officeholders among the group authorizing the consultation.

For these three reasons, government representations that “45 of the 63 communities” signed on to the consultation are lies, intended to deceive the media and the public about the situation in TIPNIS. The signers neither represent 45 communities, nor all they all from the 63 recognized communities within the collective title of the park, a number which excludes the CONISUR and coca-grower communities in Polygon 7, where farmers hold individual titles.

  • Adolfo Moye, past president of the Subcentral TIPNIS has also raised grave questions about the way the meeting was organized. Basing his account on family connections (his father-in-law was one of the 45), Moye reported: “The government met them in San Pablo, it was a gathering place from which to transport them. Supposedly, the corregidores had to hand in their [local development] project proposals to the Vice-Ministry of the Environment, but once they there, it became know that they would have to travel to La Paz. But there was resistance, so then the deceptions began with the [threat] of losing their projects and their outboard motors. [El gobierno los reunió en San Pablo, fue un lugar de concentración para llevárselos. Supuestamente los corregidores tenían que entregar proyectos a una comisión del Viceministerio de Medioambiente, pero cuando se encontraron ahí se enteraron que tenían que trasladarse a La Paz. Pero hubo una resistencia, entonces comenzó los chantajes con la pérdida de los proyectos y los motores fuera de borda.]” Later, according to Moye’s account, the government provided its meeting of leaders with alcohol and flew them to La Paz. Moye also claimed that isolation and deception were used to gain support of these community members.

While I cannot verify the details of these claims, it seems obvious that repeating the Morales government’s claim about “45 communities” is taking part in an intentional deception.

It is also clear that the consultation agreement was not representative, and bypassed the local democratic process in TIPNIS. Let me quote Xavier Albó, a Jesuit, intellectual, and anthropologist who worked closely with indigenous movements and the Morales government in crafting Bolivia’s plurinational constitution, on this issue:

It is not evident to me whether the denunciation of Fernando Vargas, that just 18 or 20 of the 45 who signed the agreement with the government are genuine, is true or not. But, having watched on television that entire mediatic ceremony, and all that occurred in the following days, it is clear to methat we are still very far from fulfilling those minimal conditions that would render constitutional this (prior, or justified-after-the-fact) consultation. When Evo and his ministers travel time and again through TIPNIS, laden with gifts (perhaps suitable for [their] development even without a highway) but deliberately avoid speaking as equals with the leaders on the march, and rather denigrate them, what is left of the “good faith” which is necessary for any agreement?  [No me consta si la denuncia de Fernando Vargas de que apenas 18 o 20 de los 45 que firmaron el acta con el gobierno son corregidores genuinos es o no real. Pero, habiendo visto por Tv toda aquella ceremonia mediática, y todo lo ocurrido en los días siguientes, sí me queda claro que estamos aún muy lejos de que se cumplan las condiciones mínimas que harían constitucional una consulta previa o de saneamiento posterior. Cuando Evo y sus ministros viajan una y otra vez por el TIPNIS, llenos de regalos (tal vez idóneos para un desarrollo incluso sin carretera) pero deliberadamente evitan hablar de igual a igual con esos dirigentes marchistas y más bien los denigran, ¿en qué queda la “buena fe” indispensable para cualquier concertación?] (“¿Consulta o cooptación en el TIPNIS?”)