The Lhaka Honhat Case Of The Inter-American Court Of Human Rights: The Long-Awaited Granting Of 400,000 Hectares Under Communal Property Rights

On 6 February 2020, the Inter-American Court of Human Rights (the Court) delivered a judgment in which it declared the international responsibility of the Argentine Republic for the violation of diverse rights of 132 indigenous communities of the Salta province, organised under the Lhaka Honhat Association. This is the first time the Court has condemned Argentina for the violation of the rights of indigenous peoples.

The Lhaka Honhat Association demanded the granting of a unique communal property title to the land the 132 indigenous communities have been inhabiting, undisputedly, for at least 400 years. The claim was originally filed in 1991; because of the State’s failure to act, it was brought before the Inter-American Commission of Human Rights (the Commission), which determined in 2012 that the rights of the indigenous communities had been violated. As Argentina did not comply with the Commission’s recommendations, the claim was presented to the Court in 2018.

In its recent ruling, the Court held that the indigenous communities have the right to a unique communal property title for the 400,000 hectares they inhabit and it established deadlines for compliance. The Court held that Argentina also violated a series of rights: it did not generate the mechanisms to guarantee the right to communal property, it did not provide the communities a real and effective title, and it did not adequately consult them. The Court also determined that the State had violated the rights to cultural identity, to a healthy environment, to adequate food and to water, deriving these rights autonomously from Article 26 of the American Convention (ACHR) for the first time in a contentious case.

This post explores two salient aspects of the Lhaka Honhat case. The first is Argentina’s lack of regulation of and compliance with its international and national obligations regarding indigenous peoples’ rights. This reflects a too common situation worldwide (see Bhatt). The second is the new direction the Court seems to be taking regarding the grounding of the right to consultation, and the possible missed occasion to differentiate consultation from consent. We will not delve into the Economic, Social, Cultural, and Environmental Rights of Article 26, but interesting comments can be found here and here. In our opinion, this point still awaits confirmation, because the Court was highly divided (3-3, the President casting the deciding vote).

Indigenous peoples’ rights to communal land and consultation in Argentina

Through the Constitutional reform of 1994, Argentina recognises indigenous peoples as subjects of law. The Constitution recognises the pre-existence of indigenous peoples and the community ownership of the lands they traditionally occupy, as well as their right to participation in issues affecting them. Argentina has ratified international treaties that recognise these rights, such as the 1989 Indigenous and Tribal Peoples Convention of the International Labour Organization (ILO Convention). The 2007 UN Declaration on the Rights of Indigenous Peoples and the 2016 American Declaration on the Rights of Indigenous Peoples are applicable too. The Inter-American Commission and Court have also insisted repeatedly on the importance of upholding indigenous peoples’ rights (see de Casas).

According to Argentina’s Constitution, treaties have a higher hierarchy than federal law upon their ratification by Congress. The ILO Convention therefore has a higher hierarchy than Argentine laws and its requirement for good faith consultation and consent should be implemented. The indigenous peoples’ right to ownership of their lands should also be guaranteed, as it stems directly from the Constitution. However, these rights are neither regulated in national laws nor in provincial laws (see UBA Amicus Curiae), and Argentina’s lack of compliance with international and constitutional obligations has been a source of criticism for many years, for instance from the Committee on the Elimination of Racial Discrimination. Although this regulation was set as a priority for Argentina’s Human Rights National Action Plan (2017-2020), this objective was not met in Congress, mostly because of the objection of certain provinces and of the extractive sectors.

In any case, although it would be convenient to see a federal law establishing in detail how communal land titles must be granted and how consultation must be undertaken, both rights are already in vigor in Argentine law. As stated by the Argentine Supreme Court of Justice and the Court in this case, the lack of national regulation cannot be a pretext for not implementing rights. However, the ratification or adoption of international human rights instruments does not necessarily trigger compliance of State parties, sometimes it does the contrary, as research has shown (see Hathaway). Argentina is thus only one of many examples. However, this case shows two important aspects. First, the additional difficulties of international instruments’ implementation in federal States, where provinces have different realities and interests. This may unfortunately be reflected in the local reception of the Lhaka Honhat judgment. Second, and perhaps more encouragingly, the ratification of international human rights instruments can lead to a slow emulation process where actors other than the State unite to bring about compliance (see Hafner-Burton and Tsutsui). Indeed, here the civil society actively participated as both petitioners and amici curiae in helping to recognise the right to communal property of indigenous peoples. Hopefully, journalists and academics can participate in this emulation process and push for the implementation of the judgment.

The right to participate in relation to projects or works on communal property

The Court analyses consultations rights jointly with the right to communal property of Article 21, as it has in nearly all of its previous decisions. Unlike the Commission, which has construed the right to consultation as derived from several provisions of the ACHR – namely Articles 21 (property), 23 (participation), 26 (right to cultural identity), and sometimes 13 (access to information), the Court has been reticent to find violations other than that of Article 21 in this kind of case, at the most also recognising a violation of the right to cultural identity, but without mentioning Article 26 (Sarayaku v. Ecuador, paras. 230 and 232).

It was in the Kaliña and Locono case (para. 203) that the Court first considered that the right to consultation was also grounded in Article 23 (as the right “to take part in the conduct of public affairs”) in addition to Article 21. It appears that the Commission partially succeeded in its insistence for extending the grounding of this right, for in Lhaka Honhat again the Court decided that the rights to property and to participation (ACHR Articles 21 and 23.1) were violated (paras. 184-5).

Another point that is worth an analysis is what happens with the right to give or withhold consent. In the Inter-American System consultation rights could be defined in two levels. First, there is a “general obligation” or duty of the State to consult with indigenous peoples and guarantee their participation in decisions regarding any measure that affects their territory (Indigenous and Tribal People’s Rights over their Ancestral Lands, para. 273). Thus, the right to participation, with respect to decisions over indigenous peoples’ land and natural resources, is a right to “be involved in the processes of design, implementation, and evaluation of development projects carried out on their lands and ancestral territories (…). Consequently there is a State duty to consult and, in specific cases, obtain indigenous peoples’ consent in respect to plans or projects for investment, development or exploitation of natural resources in ancestral territories” (idem, paras. 289-90). So there is this second level, but this duty to obtain consent is only a limited one. The distinction between consultation and consent is a matter of the scale of the project (idem, paras. 329-333), and was established by the Court in the case of Saramaka v. Suriname (para. 134), but it has never been quite clear, and in no case to date has the Court declared a violation of the latter.

Was this a missed opportunity to do exactly that and to finally clarify when indigenous peoples are entitled to a right to consent? Two types of public works were analysed in Lhaka Honhat. One was some maintenance work on Provincial Route 54. The Court considered that it is important to distinguish between maintenance or betterment of existing work, on the one hand, and the making of new works or projects, on the other. The former does not require consultation, said the Court, for such a requirement would entail an unreasonable or excessive understanding of State’s obligations (Lhaka Honhat, para. 179). The other was an international bridge over the Pilcomayo River, which in that sector is a border with Paraguay. The Court considered that such a bridge is “an important undertaking for border transit and international trade. A civil work of this kind involves State policies and administration of territorial borders, as well as decisions with implications for the economy” (idem, para. 181). Infrastructure like that could be deemed at the same time large-scale in the Saramaka threshold, but strategic from the point of view of State sovereignty, posing a dilemma whether or not indigenous people could have the power to withhold consent for its construction. Since the Court observed that no consultations of any kind took place before the bridge’s construction, it ruled that Argentina violated the rights to property and participation. Again, we are left with no clarity on when indigenous peoples have a right to consent. Is it that such a bridge is not large-scale, or once again “the Court appeared to find it unnecessary to make specific reference to the requirement of consent [because the State] did not satisfy the preliminary obligation to consult; [and] thus, it was unnecessary to reach the issue of consent”? (see Brunner and Quintana).

Lhaka Honhat exposes the issue of States’ longtime noncompliance with international obligations. It is also definitely a landmark judgment, with old case law consolidated regarding property rights, and is innovative in some aspects regarding consultation rights but is lacking in the expected clarification on consent. And it will certainly be remembered as the judgment that finally recognised Argentine indigenous peoples’ rights to a piece of land the size of Rhode Island.

Note: The photograph accompanying this blog post is published with permission of the Inter-American Court press office