IACHR Takes Case involving Panama to the Inter-American Court
April 4, 2013
Washington, D.C.-The Inter-American Commission on Human Rights (IACHR) filed an application with the Inter-American Court of Human rights in Case No. 12.354, Kuna Indigenous People of Madungandí and Emberá Indigenous People of Bayano and their Members, Panama.
The facts of this case refer to the State of Panama's failure to meet its obligation to provide the Kuna indigenous people of Madungandí and the Emberá indigenous people of Bayano, and their members, with adequate, effective procedures for gaining access to their ancestral territories and for obtaining a response to the numerous complaints of third-party interference in their territories and natural resources. From the standpoint of the right to equal protection of the law and to non-discrimination, the sequence of violations committed against these two indigenous peoples constitutes a form of discrimination. This is seen in the application of laws that reflect an assimilationist policy that contributes to the violation of indigenous peoples' right to property over their ancestral territories and natural resources.
Specifically, the case refers to the ongoing violation of the right to collective property of the Kuna indigenous people of Madungandí and the Emberá indigenous people of Bayano and their members, as a consequence of the State of Panama's failure, to this day, to pay economic compensation stemming from the dispossession and flooding of the victim's ancestral territories that began in 1969. The case also has to do with the lack of recognition, titling, and demarcation of the lands granted to the Kuna indigenous people of Madungandí, as well as the lack of recognition, titling, and demarcation of the lands granted to the Emberá indigenous people of Bayano. Along with the breach of the State's obligations concerning the collective property of indigenous peoples was a systematic disregard of numerous legal commitments made by the State as recently as 2010. In addition, the State of Panama in this case failed to comply with its obligations of prevention with respect to the invasion of colonists and illegal logging, as a corollary of its obligation to effectively protect the territory and natural resources of the Kuna of Madungandí and Emberá of Bayano indigenous peoples and their members. This situation worsened beginning in the 1990s.
The case was sent to the Inter-American Court on February 26, 2013, because the Commission deemed that the State had not complied with the recommendations contained in its Report on the Merits of the case. In that report, the Inter-American Commission recommended that the State promptly conclude the process of formalizing, delimiting, and physically demarcating the territories of these two indigenous peoples and their members; grant them prompt and just compensation for the removal, resettling, and flooding of their ancestral territories, with the amount to be determined through a process that ensures their participation, in keeping with their customary law, values, and uses and customs; and adopt the measures necessary to effectively protect the territories of these two peoples, so as to guarantee their physical and cultural survival, as well as the development and continuity of their cosmovision, so that they can continue living their traditional way of life and preserve their cultural identity, social structure, economic system, customs, beliefs, distinct traditions, and justice system. The Commission also recommended that the State adopt the necessary measures to ensure that both peoples have access to culturally pertinent health and education programs, and to halt the illegal entry of non-indigenous persons into their territories and move the current occupant settlers to territories that do not belong to indigenous peoples. The Commission also recommended that the State ensure the free, prior, and informed consent of the Kuna of the Madungandí and the Emberá of Bayano peoples to the plans, programs, and projects sought to be developed in their territories; establish an adequate and effective remedy that protects the rights of the indigenous peoples of Panama to claim and gain access to their traditional territories; and to protect their territories and natural resources from third persons, including respecting the right of indigenous peoples to enforce their customary laws through their justice systems. The Commission also requested that the State make individual and collective reparations for the consequences of the human rights violations that had been found-in particular, the lack of protection of ancestral territories, the lack of effective and prompt response by the authorities, and the discriminatory treatment to which both peoples had been subjected-and to adopt the measures necessary to prevent similar events from occurring in the future.
In addition, the IACHR believes that this case provides an opportunity for the Inter-American Court to analyze the scope and content of the obligation of compensation of indigenous peoples when it has been established that it is not possible to restore the lands and territories occupied and used by their ancestors. This case is also representative of the intrinsic relationship between the effective and timely fulfillment of the obligations to recognize, grant title to, demarcate, and delimit the lands and territories of indigenous peoples and the situation of vulnerability and defenselessness in the face of actions by third parties, with significant impacts on their traditional ways of survival and on their social and cultural life.
A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this matter. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.