In the last two years, we have found ourselves confronted with a series of global crises that seem to have pushed the pressing issues of environmental protection and climate change to the side. But wrongly so. On the one hand, the progression of the climate crisis requires immediate responses and cannot be put on hold until we think our global capacities allow for environmental protection, and on the other hand, most crises are interrelated and require cross-cutting solutions. That is why this focus month is a good occasion to once again focus on topics of environmental law and justice, not despite but rather precisely because of the other crises.
I will use this month’s focus to take a closer look at participatory environmental rights in the context of regional systems. In the Pan-Amazon region foreign economic activities, such as mining, are increasing rapidly which has serious environmental ramifications. For example, excessive use of land leads to deforestation, species extinction, collapse of mining dams in the past and many more. These serious consequences, and the activities of the extractive industries themselves, have an immense cultural, environmental and social impact on the lives as well as rights of indigenous communities living in these areas. Indigenous peoples with their diverse characteristics have in common a special relationship with their traditional lands which manifests itself in the communities’ social, cultural, spiritual and economic institutions that are deeply connected to the lands.
Inter-American human rights system (IAHRS)
In the past, an auspicious framework for the protection of indigenous rights has been developed at the United Nations level.[1] However, the IAHRS and its jurisdiction have also significantly contributed to and coined the development of a protective framework for the rights of indigenous peoples. In doing so, it has repeatedly presented its innovative and progressive point of view. For example, the Inter-American Court on Human Rights has determined that communal property does not only include the right of the traditional land but also a right to own the natural resources on the same land.[2] In order to realize and guarantee protection of the granted rights, the tribunal created the right to consultation and participation regarding the indigenous peoples’ ancestral lands and natural resources.[3] The judges have connected this right “directly to the general obligation to guarantee the free and full exercise of the rights recognized in the Convention (Article 1(1))”.[4] On a national level, this means that indigenous peoples have to be consulted with and involved in any administrative or legal measure that could potentially affect their rights. This creates a direct obligation by the state, now as duty bearer, to carry out a consultation process in all matters that affect indigenous peoples directly.
This insight into the innovative IAHRS invites us to take a closer look at the measurements taken by the African human rights system in securing and protecting participatory environmental rights for indigenous peoples. Beyond that, it is particularly interesting to explore the interrelationship of the development of the participatory environmental rights in the Inter-American and African human rights systems and identify how the systems’ legislations and jurisdictions have cross-fertilized each other.
African human rights system
The African human rights system is also known for a distinct narrative and innovative measures regarding participatory environmental rights. The determination of collectives and their rights has experienced a special development in the African context. Thereby, especially the conception of different terminologies in the African context and their differentiation between each other have been challenging. For example, the term “people” in the African Charter on Human and Peoples’ Rights (African Charter) has been described by Ouguergouz as a “chameleon-like term”[5] which illustrates its versatile application according to need. Initially, the term “people” was discussed and introduced in light of “inhabitants of an African territory under colonial rule”[6] aiming to oppose foreign domination. Over time, the application of the term has been applied to different minorities within a state thus the African Commission on Human and Peoples’ Rights (African Commission) has decided to also include indigenous peoples in the term “peoples”.[7] The term “indigenous peoples” itself has its historical context mainly in the Americas and Australasia and has been referred to “first peoples”[8] in the process of claiming recognition and protection.[9] Thus, the application of the concept in an Africa context has been questioned by many African states and discussed among scholars and experts. In 2003, the African Commission’s Working Group of Experts on Indigenous Populations/Communities has presented four elements for a definition of indigenous peoples in an African context.[10]
Indigenous peoples’ rights to consultation and participation in the African context
In relation to indigenous peoples’ rights to consultation and participation, mainly three cases (Ogoni[11], Endorois[12] and the Ogiek[13]) have given the jurisdictional body of the African human rights system[14] the possibility to develop and shape this right since it cannot directly be found in the African Charter.
In the Ogoni case, the African Commission stated that the state is obliged to share information providing meaningful opportunities for “individuals to be heard and to participate in the development decisions affecting their communities.”[15] This right was derived from the right to health (Art. 16) and a clean environment (Art. 24). In the Endorois case, the African Commission closely linked the right to development (Art. 22) to the issue of participation. While referring to the Inter-American Court of Human Rights, the African Commission lies out its perception of effective participation and sets the right to free, prior and informed consent (FPIC).[16] In the Ogiek case, the African Court refers to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and bases the FPIC on the right to land (Art. 14) and right to development (Art. 22).[17] To sum up, in the African context the right to FPIC has been linked to the right to self-determination (Art. 20 I) as well as to the right to development, the right to a clean environment, the right to health and the right to land.
Missed opportunity in the Ogiek case
However, despite the engagement with the FPIC in the Ogiek case, the African Court has missed the opportunity to meaningfully further develop and specify the indigenous peoples’ rights to consultation and participation. In doing so, it also missed an opportunity to further strengthen the cross-fertilization with the IAHRS by either referring to developments in the IAHRS or breaking new legal ground that is of interest for the IARHS. Instead, the concept lacks now a detailed and practical guidance that goes beyond the mere conceptualisation of the right in the context of the African human rights system. It is still to be determined what effective participation of indigenous communities requires and how far-reaching the influence of the communities can be. Thus, it is to be hoped that the institutions of the African human rights system will, through upcoming cases, use their opportunities to then further specify the right of FPIC of indigenous communities and thereby contribute to its effective realisation on the national level. After all, violations of the right still occur in Africa and the Americas which is to the detriment of the nature and indigenous communities. This blog contribution was inspired by a presentation of Ms. Hylla Barbosa on ”Mining in indigenous land in Brazil: An analysis from the perspective of the Inter-American human rights system”. This event was part of a series of talks hosted by the Friedrich-Alexander Universität Erlangen-Nürnberg.
[1] For example, United Nations Declaration on the Rights of Indigenous Peoples, 2007 (UNDRIP)
[2] For example, Yakye Axa v Paraguay [137]
[3] Sarayaku v Ecuador [146 et seq.]
[4] Sarayaku v Ecuador [166]
[5] Fatsah Ouguergouz, The African Charter of Human and People’s Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (Martinus Nijhoff Publishers 2003) 211
[6] Frans Viljoen, International human rights law in Africa (2nd edn, OUP 2012) 221
[7] African Commission on Human and Peoples’ Rights, Report of the African Commission’s Working Group of Exerts on Indigenous Populations/Communities (1989) 13
[8] In the sense first of time.
[9] Frans Viljoen, International human rights law in Africa (2nd edn, OUP 2012) 229
[10] Nevertheless, discussions about the suitability of the definition are ongoing.
[11] Dec. Comm. 155/96 SERAC v. Nigeria, (ACmHPR, Oct. 27, 2001); http://www.worldcourts.com/achpr/eng/decisions/2001.10.27_SERAC_v_Nigeria.htm
[12] Dec. Comm. 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya; (ACmHPR Nov. 25 2009); https://achpr.org/sessions/descions?id=193
[13] App. 006/2012 The African Commission on Human and Peoples’ Rights v Republic of Kenya, (ACHPR, May 26, 2017); https://www.african-court.org/cpmt/storage/app/uploads/public/5f5/5fe/9a9/5f55fe9a96676974302132.pdf
[14] In this case the African Commission on Human and Peoples’ Rights as well as the African Court on Human and Peoples’ Rights.
[15] Comm. 155/96 SERAC v Nigeria, Decision, (ACmHPR, Oct. 27, 2001), [53]; http://www.worldcourts.com/achpr/eng/decisions/2001.10.27_SERAC_v_Nigeria.htm
[16] Act. Report. 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, (ACmHPR, Nov 25, 2009), [289]-[291]; https://www.hrw.org/sites/default/files/related_material/2010_africa_commission_ruling_0.pdf
[17] App. 006/2012 The African Commission on Human and Peoples’ Rights v Republic of Kenya; (ACHPR May 26, 2017) para. 131 & 210; https://afchpr-commentary.uwazi.io/entity/9peyk8ngxkardsszw7hnnrk9?page=1
