International Law And Indigenous Rights

International Law And Indigenous Rights In The Historical Context

The international legal order did not always recognize the special rights of indigenous

peoples with respect to their traditional lands and resources. In fact, indigeneity did not

emerge as a subject of special concern in international law until the end of the last

century. A brief overview of the steps in the historical evolution of international law and

its treatment of indigenous people provides a contextual backdrop for assessing how

these groups are treated today.

Early International Law: The Naturalist And Positivist Frameworks

It can be said that international law was born from Renaissance philosophies of natural

law driven by notions of morality. Natural law was believed to flow from a divine power,

independent of human authority. Based on the work of Hugo Grotius a century before

them, natural law theorists discerned certain minimum standards of treatment afforded

to any rational human being. The threshold question for determining the rights afforded

to indigenous people during colonization was whether they were rational human beings.

Largely considered barbaric and lacking divine rights inherent in natural law, early

international law failed to contemplate indigenous peoples because of their failure to

conform to European forms of civilization.

As European territorial arrangements emerged, however, the naturalist framework

transformed into a state-centered system. European theorists transformed the concept

of natural law from a universal moral code for all, into natural rights afforded at the

individual and state levels. This recognized the positive rights of the individual as a

member of society on the one hand, and the rights of the sovereignty as an independent

state. In this context, indigenous peoples would have to be regarded as nations or

states to be afforded any rights as distinct communities, or be reduced to their individual

constituents with no account for their right to group autonomy.

The concept of the nation-state was based on European models of political and social

organization that featured exclusivity of territorial domain and centralized authority.

Indigenous groups, however, were organized primarily by tribal or kinship ties, featured

decentralized political structures, and often had overlapping territorial control. This

meant that indigenous groups, not qualifying as states, could not participate in the

shaping of international law, nor could they use it to assert rights that had once been

deemed inherent by nature. European and European-derived states, however, enjoyed

rights at the international level, independent of natural law, in their practice as

sovereignties.

Since indigenous groups were not capable of asserting rights under international law,

nor given sovereign status, colonial patterns were legitimized without consequence for

indigenous presence. Areas occupied by indigenous groups prior to colonization were

considered terra nullius, or unoccupied and vacant land. With the adoption of new civil

codes in much of the the Americas, recognition of property rights was afforded

exclusively to private individualized holdings.

As colonizing states and their progeny consolidated power over indigenous lands,

states began adopting the trusteeship doctrine to wean native peoples from their way of

living and “civilize” them. Colonial powers, like Great Britain for example, devised

special administrative regimes aimed at reengineering the cultural and social patterns of

indigenous groups to be more in line with European conceptions of civilization. Until the

early twentieth century, governments and Christian church agents broke down

indigenous forms of political and social organization, disrupted communal land holdings,

and suppressed cultural practices.

Early international law failed to account for indigenous groups because their cultural

practices did not conform to European notions of civilization, and therefore were not

afforded the natural rights thought were believed to flow divinely to all human beings.

Then the doctrine of trusteeship and positivist legal constructs denied indigenous

people sovereign status in an effort to develop legal support for the forces of

colonization. Over the last few decades, in the aftermath of two world wars, the

international law system has been reformed as a growing concern for individuals and

groups about precepts of world peace and human rights began to take center stage.

Emergence Of Indigenous Peoples And Their Human Rights Under International Law

Notwithstanding a global failure to recognize their inherent right to sovereignty,

indigenous peoples have continued to advocate for a collective right to self

determination using the human rights discourse as a basis for the assertion of

particularized rights. Indigenous communities around the world claimed their inherent

rights included: (1) the right to own, use, occupy, and control ancestral lands and

resources; (2) the right to recognition of independent and distinct governance and

political structures; and (3) the right to meaningful consultative processes where state

decisions implicate their interests.

A cornerstone of the indigenous rights movement has been the rejection of Eurocentric

notions of individual property rights tied to economic value, because of its futility with

respect to the allocation of traditional indigenous lands and resources. Instead

indigenous peoples have espoused that their ability to communally reside on their lands

and to operate under traditional land tenure systems is inextricably tied to their

communal identity, culture, religion, and modes of subsistence. Using pre-existing

human rights norms articulated in declarations and treaties, indigenous peoples have

grounded their claims in the right to self determination, the right to cultural integrity, and

the right to property. These norms have allowed indigenous claims to their traditional

lands and resources to be argued under the human rights umbrella, causing

international law to evolve in response to this indigenous articulation of issues.

In addition to evolving customary international law and hard law sources that have been

developed to address indigenous issues, jurisprudence continues to be produced by the

United Nations human rights treaty compliance bodies and regional human rights

bodies applying concepts of self determination, cultural integrity, and property to protect

indigenous peoples' special relationship to their lands and resources. Beyond the formal

human rights process, the lending processes of the World Bank, the Inter-American

Development Bank, and the European Union are also being affected by the discourse of

indigenous human rights. International standards have trickled down and changed the

domestic legislation, policies, and judge-made law of many states. Additionally, regional

protection systems have been developed to address international law concerns of

indigenous peoples in an appropriate forum.

The Communal Right To Property Within The Inter-American Regional Human Rights System

A large part of the world's indigenous peoples live in the Inter-American Human Rights

system which, functioning within the Organization of American States (OAS), responds

to the concerns of indigenous peoples of the Americas. The OAS General Assembly

became a trailblazer of the indigenous rights movement when it first adopted special

recognition for indigenous groups in its 1948 Inter-American Charter of Social

Guarantees. It required states in the Inter-American system to take necessary

measures to protect indigenous peoples' lives and property, “defending them from

extermination, sheltering them from oppression and exploitation.” The International

Labour Organization (ILO) followed suit in 1957 when it adopted the first multilateral

treaty recognizing and protecting indigenous human rights, Convention No. 107.

Additionally, the Inter-American Commission on Human Rights began making formal

proclamations on human rights violations against indigenous peoples, after being

founded in 1959.

The Inter-American human rights system was developed to work within the OAS,

founded in 1948. Although concern about indigenous peoples had already given rise to

conferences and congresses about their issues as early as 1933, it was not

institutionalized within the OAS until land invasions by non-indigenous settlers into

indigenous territories resulted in violence and other forms of discrimination.

The modern indigenous rights movement gained momentum in the 1960s and 1970s,

when indigenous groups in the Americas and other parts of the world began to draw

increased attention on their demand to be distinguished as communities with historically

based cultures, political institutions, and entitlements to land. This prompted the ILO to

discard Convention No. 107's assimilationist slant, for a new multilateral treaty,

Convention No. 169 of 1989, which was subsequently ratified and now binding on

several states in the Americas. The most unequivocal support for the communal right to

property can be found in ILO Convention No. 169, which requires participating states to

guarantee indigenous peoples' “rights of ownership and possession” of their traditional

lands. Furthermore, it provides special protections for indigenous groups and their

relationship to the land that they live on or use.

The American Convention on Human Rights, another multilateral treaty, establishes

both the procedures and substantive rights that govern the adjudication of complaints by

the Inter-American Commission and Inter-American Court in relation to state parties to

the Convention. OAS member states that are not parties to the Convention follow

substantive and procedural rules set out in the American Declaration on the Rights and

Duties of Man, which articulates general human rights obligations of member states

under the OAS Charter, a multilateral treaty with the force of law. Procedurally, the

Inter-American system is unique because complainants do not have direct access to the

Inter-American Court of Human Rights. Complaints are first submitted to the Inter-

American Commission on Human Rights, who may recommend the case to the Inter-

American Court of Human Rights if the case is not resolved in a reasonable time after

the issuance of the Commission's report. The Court then has discretion as to whether

accept or reject the case.

Neither the American Convention, nor the America Declaration specifically mentions

indigenous peoples, however, both include general human rights provisions upholding

the rights to property, physical well being, and cultural integrity. Therefore, both

documents affirm rights of indigenous peoples to lands and natural resources on the

basis of traditional patterns of use and occupancy. Additionally, the Inter-American

Commission has frequently interpreted obligations of states under the American

Convention and the American Declaration by reference to obligations arising from other

international instruments. The Commission has cited to Article 29 of the American

Convention as a basis for this approach.

Article 21 of the American Convention on Human Rights protects indigenous land and

resource tenure by providing that: “Everyone has the right to the use and enjoyment of

his property.” This language is mirrored in the American Declaration which recognizes

the right of all persons “to own such private property as meets the essential needs of

decent living and helps to maintain the dignity of the individual and the home.” Both of

these instruments must be understood to favor property regimes that derive from

indigenous peoples' own customary or traditional systems of land tenure over property

regimes recognized by official state enactments. This interpretation has also been

supported by the Inter-American Commission in its Proposed American Declaration on

the Rights of Indigenous Peoples.

Many of the indigenous tribes in the Americas lost their land during colonial times, either

through the terra nullius doctrine or through the adoption of civil codes that failed to

recognize their land tenure systems. Since the abandonment of terra nullius as a legal

basis for the dispossession of indigenous lands, there has been an increased

recognition of their rights to their lands as a matter of international law. Indigenous

peoples in the Americas have pursued actions for encroachments upon their traditional

lands and resources via the Inter-American Commission on Human Rights and Inter-

American Court of Human Rights. Jurisprudence from within the Inter-American

Regional Human Rights System has re-conceptualized the right to property as applied

to indigenous peoples. An analysis of two landmark cases from the Inter-American

Regional System will provide insight as to how indigenous groups have successfully

identified human rights precepts as a legal basis to assert their right to property. The

first case, brought before the Inter-American Court of Human Rights, illustrates how

communal possession of traditional lands became the basis for asserting an indigenous

right to property despite the state's failure to recognize such land tenure systems. The

second case, which was decided by the Inter-American Commission, serves to

establish that although not signed or ratified by the United States, the government was

still bound to comply with fundamental human rights principles set forth in the American

Declaration, as well as ILO Convention No. 169.

Mayagna (Sumo) Awas Tingni Community V. Nicaragua

The Awas Tingni is one of various Mayagna, or Sumo, indigenous communities found

along the Atlantic Coast of Nicaragua. The indigenous group filed a complaint with Inter-

American Commission against the government of Nicaragua on June 4, 1998 for

granting a logging concession on their claimed land without their consultation. The

problem first arose in December of 1993, when the Nicaraguan government, through its

Ministry of Environment and Natural Resources (MARENA), granted a concession to

the Dominican-owned company Maderas y Derivados de Nicaragua, S.A. (MADENSA),

for logging on about 43,000 hectares of land made up of mostly Awas Tingni ancestral

land. Pressured by international environmental organizations like the World Wildlife

Fund (WWF), the government agreed to suspend the concession until an agreement

could be reached with the Awas Tingni Community.

Assisted by the WWF, the University of Iowa College of law, and a forestry expert, the

Community compiled data in the form of maps and ethnographic studies to support its

claim to traditional lands. The data gathered was to be the basis of negotiations with the

government to grant land titles or other official recognition of Awas Tingni lands.

Negotiations between the parties, however, proved illusory when the government

granted a second logging concession to a Korean-owned firm for 63,000 hectares of

land adjacent to the MADENSA management area. The Awas Tingni filed for

emergency relief within the Nicaraguan judicial system, citing violations of domestic law

that affirm in general terms the rights of indigenous communities over their traditional

communal lands. When these efforts failed, the Awas Tingni petitioned the OAS Inter-

American Commission on Human Rights under the complaint procedure outlined in the

American Convention, to which Nicaragua is a party.

The Commission concluded that Nicaragua's concession had violated articles 1

(Obligation to Respect Rights), 2 (Domestic Legal Effects), 21 (Rights to Property), and

25 (Right to Judicial Protection) of the American Convention on Human Rights. The

Commission gave Nicaragua two months to report on their recommendations, invalidate

and renounce the logging concession on disputed lands, and take immediate action to

identify, title, and demarcate the traditional lands of the Awas Tingni.

Three months later, after Nicaragua failed to comply, the Commission transferred the

case to the Inter-American Court for an adversarial hearing on the matter. The Court

noted that although Nicaraguan law afforded protections of the right to communal

property of indigenous groups like the Awas Tingni, it did not satisfy its obligations as a

signatory to the American Convention on Human Rights because they had not

implemented effective processes to protect the rights that the domestic law supposedly

granted. The Court also established that the concept of “property” as articulated in the

American Convention includes the communal property of indigenous peoples as defined

by their customary land tenure, despite any incongruence with domestic law. Echoing

the Commission's view, the Court stated that “possession of the land should suffice for

indigenous communities lacking real title to property of the land to obtain official

recognition of the property.”

The Court admittedly employed an “evolutionary” method of interpretation in reaching its

conclusion, accounting for international normative developments within and outside of

the Inter-American system. The Court's opinion became the first legally binding decision

by an international tribunal to uphold the collective land and resource rights of

indigenous peoples when the state had failed to do so, as part of its obligations under

the American Convention. This strengthened a contemporary trend in international law

to empower indigenous peoples in their demand for self-determination and recognition

of territorial rights.

The Dann Case

Mary and Carrie Dann first petitioned the Inter-American Commission on Human Rights

in 1993, trying to secure rights to aboriginal property in the United States (U.S.). The

petition alleged that the U.S. government had violated articles II (right to equality before

the law), III (right to religious freedom and worship), VI (right to a family and protection

thereof), XIV (right to work and fair remuneration), XVIII (right to a fair trial), and XXIII

(right to property) of the American Declaration of the Rights and Duties of Man. These

violations, the Danns asserted, occurred when the U.S. threatened to remove them and

their livestock from land they claimed was a traditionally occupied territory of the

Shoshone tribe. The sisters also maintained that the U.S. had granted or allowed gold

mining activities on ancestral Shoshone lands. The United States contended that any

Shoshone land rights were extinguished in the late 1800s when non-indigenous settlers

began encroaching on the land, and in the alternative, the government had already paid

the Shoshone just compensation for the loss of their land.

In their petition, the Dann sisters claimed that they and other tribe members had valid

claims to ancestral lands “through traditional patterns of use and occupancy of those

lands and its natural resources,” or a customary land tenure system, which is

recognized under U.S. law. The Danns also asserted that irrespective of domestic law,

notions of nondiscrimination coupled with the right to property espoused in article XXIII

of the American Declaration, indicated that “customary land tenure systems should

receive legal recognition.”

The United States responded by specifically rejecting the claim of a violation of article

XXIII (right to property) on the basis that it protected only individual property rights, and

not those of whole groups. The government also argued that the Proposed American

Declaration on the Rights of Indigenous People and ILO Convention No. 169 do not

form an appropriate bases for petitioning the Inter-American Commission since the U.S.

had not signed or ratified either document. Additionally, it was also claimed that

ownership of the land in question had been part of a lengthy administrative process, and

that after treating much of the territory as federal land, the Shoshone title was effectively

extinguished and justly compensated by the government.

In its analysis, the Commission noted that the American Declaration should be

interpreted in light of cases and developments in international human rights law since

the Declaration was written; including the American Convention on Human Rights,

which it held to be an “authoritative expression of the fundamental principles set forth in

the American Declaration.” While it did commend the U.S. for establishing an

administrative procedure for dealing with indigenous claims to land, the Commission

ultimately concluded that the process had failed to live up to contemporary international

law protections of the rights of indigenous peoples to their lands. Furthermore, the

Commission found that the process did not afford the Danns an opportunity to

participate, failed to offer the same protections given to others in a takings case, and

failed to argue fairly on the merits where and when indigenous land rights had been

extinguished. Based on the foregoing analysis, the Commission concluded that the U.S.

had violated articles II, XVIII, and XXIII of the American Declaration of the Rights and

Duties of Man in its failure to equally protect the property rights of the Dann sisters.

Though largely disregarded, the Commission issued recommendations that the U.S.

review its laws, procedures, practices, and adopt necessary legislation to ensure

respect for the property rights of indigenous peoples, including the Danns, established

in the American Declaration.

Cases decided in the Inter-American human rights system have illustrated an affirmative

duty on governments to recognize a communal right to property based on traditional

indigenous land tenure systems. Furthermore, these cases articulate that today's

customary international law now features an independent international basis for the

human right to communal property, requiring that all states be bound to fundamental

human rights principles, like those espoused in the American Declaration and ILO

Convention No. 169.

Communal Property Rights Of Afro-Latinos In The Inter-American Regional Human Rights System

Indigenous political mobilization has contributed to the creation and strengthening of a

number of key international norms embodied in legal frameworks, conventions, and

policies to protect their interests. While much work is still needed to ensure that these

rights are actually recognized within domestic systems of the Inter-American region, the

indigenous rights movement has provided other groups with leverage and credibility in

their assertion of a communal right to property.

Recognition Of The Afro-Descendent Right To Property In Latin America

The Afro-Latino movement has occurred in large part due to black political mobilization

combating racism from below, in conjunction with constitutional reforms and support

from international institutions' norms on indigenous rights. Like indigenous groups, the

central assertion of Afro-Latinos is that of a separate cultural identity from the dominant

population, in addition to secured traditional land tenure systems. Since democratization

swept through Latin America in the 1980s, Afro-Latino communities have mobilized for

state recognition and titling of land that they have traditionally occupied. A subset of the

broader land reform movement that occurred throughout Latin America in the mid

nineteenth century, Afro-Latino land rights have been met with limited recognition. Many

Latin American nations have ratified ILO Convention No. 169, requiring them to pass

laws granting indigenous peoples the right to bilingual education, involvement of

relevant policies, access, ownership, and use of resources, and traditional territories.

The rights outlined in ILO Convention No. 169 apply to “indigenous” and “tribal” peoples,

encompassing ethnic minorities such as Afro-descendants in Latin America.

However, not all rural black communities may have collective land rights. Afro-Latino

claims are based on appeals to a distinct territorially, culturally, and historically derived

ethnicity that has a long standing relationship to a particular area dating from either

before the founding of the Latin American state, or predating the presence of other

groups. This criterion, together with unique cultural practices, confers indigenous-like

status upon these groups.

Afro-descendants, like indigenous groups, have also been working with non-

governmental organizations (NGOs) and grassroots support organizations to develop

their collective title claims, especially where their lands have been threatened

environmentally and culturally by development projects. Anthropologists, NGOs, and

multilateral development banks have helped the Afro-descendants movement, in some

cases by carrying out ethnographies and mapping projects that serve as the basis for

the legal recognition of communal property rights. The Afro-Latino ethnic positioning,

and evolving norms and objectives of international law have combined to produce

constitutional reforms granting communal or collective titles to different rural black

communities throughout Latin America.

The Garifuna Movement In Honduras

The Honduran government first recognized the rights of the Garifuna in 1982 with the

passage of Article 346 of the Constitution, which protected the rights and interests of

indigenous communities, especially in terms of the land where they reside. The

constitutional provision did little to protect the Garifuna in practice and mobilization

continued through 1994, when the government ratified ILO Convention No. 169 and

created a special agency to address the country's ethnic groups.

Two grassroots support organizations, ODECO and OFRANEH, have been instrumental

in pressing the Honduran government to grant land titles to Garifuna communities since

the late 1990s. In 1996, the organizations united under an umbrella group,

Coordinadora Nacional de Organizaciones Negras de Honduras (CNONH), to form a

coalition of more than five thousand people for the First Grand Peaceful March of the

Black People of Honduras on October 11 of that year. Between 1997 and 2002, some

Garifuna communities finally had limited success in receiving titles from the

government, or titulos de dominio pleno. However, in most cases, titles applied only to

the casco urbano, or the area where Garifuna buildings were located, and not the areas

historically used by the community for hunting, fishing, and other traditional activities.

Although the titles that were given created enforceable rights, land conflicts and issues

of occupation by outsiders remained and are ongoing today.

Garifuna Cmty. Of Triunfo De La Cruz V. Honduras And Garifuna Cmty. Of Cayos Cochinos & Members V. Honduras

Represented by OFRANEH, the Garifuna Communities of Cayos Cochinos and Triunfo

de la Cruz lodged a complaint with the Inter-American Commission against the

Honduran government in late 2003. Although the Commission later separated the

complaint into two petitions, one for each community, their claims remain largely the

same.Like the Awas Tingni, OFRANEH alleged that the government was in violation of

Articles 1 (Obligation to Respect Rights), 2 (Domestic Legal Effects), 21 (Rights to

Property), and 25 (Right to Judicial Protection) of the American Convention on Human

Rights, and ILO Convention No. 169. The Garifuna communities stated that despite

domestic recognition of their traditional areas, possession of the lands had not remained

undisturbed because of subsequent action by public officials and third parties.

In the case of Triunfo de la Cruz, property deeds had been given by the National

Agrarian Institute (INA) granting the Garifuna full ownership of over 500 hectares of

traditionally occupied lands. Despite these property titles, the community's lands have

been encroached by the surrounding municipality of Tela. In 1989 the municipality

requested, and was granted, an expansion of it urban limits by the INA, who had

neglected to advise the Garifuna even though their lands would be affected. In addition,

the petition claims that the municipality bought parcels of land from community

members that were not authorized to sell, and later transferred the land to a tourism

project, Inversiones y Desarollo El Triunfo S.A (IDETRISA). IDETRISA built houses

within the Garifuna territory, fenced in the area, and has prevented community members

from occupying that parcel of land which had been used for farming and other modes of

subsistence.

Like the Garifuna of Triunfo de la Cruz, the community of Cayos Cochinos is also

dependent on the lands its members have traditionally occupied, and has also been

displaced by the Honduran government. Their petition claims that the Cayos Cochinos

community land rights were first violated in 1993 when a Swiss investor purchased

surrounding cays, and Presidential Agreement 1928/93 was adopted declaring Garifuna

land a Natural Protected Area by the President. As a result of subsequent

environmental protection regulations, the community was prohibited from fishing with

bait and collecting crustaceans from surrounding waters, which had been a basic

source of income and sustenance for the area's Garifuna population.

Additionally, in 2003 Cayos Cochinos was declared a “Natural Maritime Monument” by

Presidential Decree 114/2003, which also established a “Management Plan” that

described the presence of Garifuna communities as harmful to the area because of their

exercise of property rights and day-to-day subsistence activities. The Garifuna alleged

in their petition, however, that the environmental programs established were preceded

by environmental impact studies that they viewed as “deficient and harmful,” and led to

the introduction of non-native species to the area, altering the ecological balance of the

cays. Finally, the Garifuna of Cayos Cochinos claimed that they were never consulted

before, after, or during the establishment of the protected environmental area, there had

been no facilitation or promotion of environmental sustainability education among their

communities, and that the plan had been imposed without taking into account Garifuna

presence. The environmental protection plan, they felt, failed to improve the conditions

of the cay and surrounding areas; instead the Garifuna are now restricted in their right

to enjoy “a decent standard of living, particularly as regards their food, clothing, housing,

and security.”

Although the Honduran government argued that the Garifuna petition was inadmissible

for failure to exhaust domestic remedies, both petitions were deemed admissible by the

Inter-American Commission; however, neither case has been decided on its merits.

Regarding the claims made against Honduras for violating ILO Convention No. 169, the

Commission noted that though it lacked jurisdiction over the issue, it “may and must use

it as a guideline for the complementary interpretation of obligations under the

Convention.” As a signatory to the American Convention, the Honduran government will

not only be bound to that instrument, but also the human rights principles set out in ILO

Convention No. 169.

Under these parameters, it is likely that the Commission will rule in favor of the

Garifuna, finding that the Honduran government has violated provisions of the American

Convention. Citing the same Article violations as in the Awas Tingni case, the

Commission will likely find that the Honduran system for granting communal title still

fails to satisfy its obligations under the American Convention, and that the Garifunas'

own land tenure systems should supersede any conflicting domestic regulations.

Additionally, any plans for environmental protection and conservation projects should be

redesigned to account for Garifuna presence and activities of subsistence, which is a

vital component of their unique culture.

Quilombo Of Brazil

Various social movements swept through Brazil into the mid 1970s, including those of

indigenous and Afro-Brazilian groups. It was not until the 1980's Unified Black

Movement that quilombos entered the public discussion. As urban-based Afro-Brazilian

activists adopted a radical stance based on challenging racial inequality, the Brazilian

government planned for large public infrastructure projects to be built on quilombo

lands. Afro-Brazilian and indigenous groups relied on Article 68 of the 1988

Constitution, which gave official recognition of collective land rights, to garner media

attention and further secure their lands. Despite the provision's implementation

occurring almost a decade before, the first collective titling process did not begin until

1995.

There was limited quilombo-related legislation until 2003 when President Luiz “Lula”

Inacio da Silva signed Decree 4.887, a measure regulating the process for identification,

recognition, delimiting, demarcation, and titling of lands occupied by descendants of

escaped slaves. Quilombo land rights suffered a setback, however, in December 2007

with public dissemination of Instrucão Normative Incra 20/2005, which activists argue

may nullify their constitutional protections.

Communities In Alcântara V. Brazil

In 2001, quilombo communities located in Alcântara submitted a petition accusing the

Brazilian government of human rights violations pursuant to the American Convention

on Human Rights and American Declaration if the Rights and Duties of Man. The

petitioners alleged violations of Articles 1 (right to protection under the Convention), 8

(right to a fair trial), 16 (right to freedom of association), 17 (rights of the family), 21

(right to property), 22 (right to freedom of movement and residence), 25 (right to judicial

protection), and 26 (right to protection of economic, social and cultural rights).

Additionally, for events that occurred before Brazil become a signatory to the

Convention in 1992, the petitioners alleged violations of the American Declaration under

Articles VI (right to family and protection thereof), VIII (right to residence and

movement), XII (right to education), XIII (right to the benefits of culture), XIV (right to

work and fair remuneration), XVII (right to recognition of juridical personality and civil

rights), XXII (right of association), and XXIII (right to property).

According to the petition, notwithstanding domestic legislative recognition of an

indigenous right to land, only 3 of the more than 1000 quilombo communities in Brazil

have received registered titles to land. Furthermore, many quilombo communities have

been displaced from their traditionally occupied lands due to the establishment of the

Alcântara Launch Center (CLA) in 1983. Although the CLA was originally created to

conduct and support the launch and tracking of aerospace operations, the government

has now morphed the project into a commercial venture. Since lands acquired for the

Alcântara Launch Center were originally deemed by the government to be “for public

use or interest,” Afro-descendent communities have been precluded from contesting

dispossession in Brazilian courts, pursuant to Decree No. 3.365/41.

Even though the Brazilian government rejected the claims made by the communities of

Alcântara because they had failed to exhaust domestic remedies, the Commission

concluded that because domestic law did not afford due process to challenge merits of

expropriation of lands, and quilombo titles had not been registered in a timely fashion,

the petition was therefore admissible. The Commission further stated that as a Member

State of the OAS Brazil was subject to the Commission's jurisdiction, which entails

examining communications alleging violations of the American Declaration. In addition,

because Brazil became a signatory to the American Convention in 1992, it is “therefore

internationally accountable for violations of it.”

The Commission has only ruled that the quilombo petition is admissible, and has yet to

decide on the merits of the case. Similar to the Dann case, the quilombo petition deals

with due process violations of land expropriations. The Commission will likely rule, as it

did in that case, that the Brazilian procedure for dealing with indigenous claims to land

falls short of the standards established in contemporary international law since most

Brazilian Afro-descendent communities still do not enjoy communal land rights. Finally,

the Commission should also find that Decree No. 3.365/41 does not afford quilombos

an opportunity to participate in a takings case, and fails to offer them any protection if

property is expropriated for alleged public use.