Press Release

IACHR refers case on Guatemala to the Inter-American Court

September 8, 2020

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Washington, D.C. - On August 7, 2020, the Inter-American Commission on Human Rights (IACHR) referred the case of the Mayan Q'eqchi' Indigenous Community of Agua Caliente regarding Guatemala before the Inter-American Court of Human Rights. The case relates to the lack of internal legislation to guarantee the right of the Q'eqchi' Mayan Community to collective property, the granting and establishment of a mining project in their territory, and the absence of adequate and effective remedies to demand the protection of their rights.

In its Report on the Merits, the IACHR observed that there is no dispute about the fact that the Agua Caliente Community does not have a collective property title to its ancestral lands and territories, despite multiple efforts made by the community over more than four decades. The IACHR noted the multiple omissions and irregularities in the processing of the request presented by the community for the granting of a collective property title, as well as the lack of internal mechanisms to make effective the collective nature of indigenous lands and territories. In this regard, the Commission emphasized that domestic legislation not only fails to recognize the collective nature of these territories, but also limits itself to establishing individual ownership by their members, which is contrary to the very worldview of indigenous peoples. On this basis, the IACHR concluded that the State is responsible for the violation of the rights to recognition of legal personality and the right to collective property.

On the other hand, the IACHR also observed that there is no dispute that the Guatemalan State granted an exploration license and later an exploitation license for the "Fénix" mining project, which covers part of the territory of the Q'eqchi' Agua Caliente Mayan Community. It also pointed out that there is no information that proves that the State complied with the right to free and informed prior consultation when granting permits, licenses and concessions for the realization of this mining project on community lands. The Commission considered that the omissions in the preparation of the environmental impact study, as well as the licenses for the exploration and exploitation of the mining project constitute a violation of the rights to collective property, to access information, and to participate in matters that may affect them. Finally, the Commission concluded that the rights to judicial guarantees and judicial protection were violated to the detriment of the community.

Based on the above, the Commission concluded that the State of Guatemala is responsible for the violation of the rights recognized in Articles 3 (recognition of legal personality), 5.1 (personal integrity), 8.1 (judicial guarantees), 13 (freedom of thought and expression), 21 (collective property), 23 (political rights), and 25.1 (judicial protection) of the American Convention, in relation to Articles 1.1 and 2 of the same instrument, to the detriment of the Q'eqchi' Agua Caliente Mayan Community.

In its Merits Report, the Commission recommended that the State:

1. Adopt as soon as possible all necessary measures to make effective the right to collective property and possession of the Q'eqchi' Agua Caliente Mayan Community, and grant complete title and effective sanitation of their ancestral territory. The State must ensure that these measures are conducive to effectively guarantee the self-determination of the members of the Q'eqchi' Agua Caliente Mayan Community and their right to live their traditional way of life in a peaceful manner, in accordance with their distinct cultural identity, social structure, economic system, customs, beliefs, and traditions.

2. To make full reparation for the consequences of the violations declared in the substantive report. In particular, the damages caused to the Community by the lack of title to its ancestral territory, as well as the damages caused by the mining project to its territory.

3. Ensure that any legislative or administrative measures or projects, including those related to concessions and business activities, that may affect the Q'eqchi' Agua Caliente Mayan Community do not begin or continue to be implemented until the Inter-American standards for consultation and free, prior, and informed consent have been met.

4. Ensure that if there are any pending legal actions filed by the Q'eqchi' Agua Caliente Mayan Community, these are resolved in a timely manner and with a conventionality check in accordance with the State's international obligations under the American Convention.

5. Adopt the necessary legislative, administrative, or other measures to prevent similar events from occurring in the future; in particular, to ensure that:

i) rapid and effective mechanisms to guarantee the right of indigenous peoples to reclaim their ancestral territories and to peacefully exercise their collective ownership, through titling, demarcation, delimitation and clean-up.
ii) mechanisms that guarantee prior consultation, with the due participation of the Guatemalan indigenous community, and that incorporate the provisions of Convention 169 and international standards in this area.

The Inter-American Commission on Human Rights (IACHR) issued Resolution 69/2019 on December 31, 2019, to grant precautionary measures in favor of Jorge David Glas Espinel in Ecuador, in the belief that he faces a serious, urgent risk of suffering irreparable damage to his rights.

When making this decision, the Commission considered that the proposed beneficiary is allegedly being deprived of liberty at the Social Rehabilitation Center in Cotopaxi (Latacunga Prison) and is allegedly being subjected to intimidation, harassment, and threats inside the facility. The proposed beneficiary is allegedly also in poor health due to various chronic conditions, and his life, personal integrity, and health are allegedly at risk. The Commission valued the measures adopted by the State. However, it could not find enough evidence to assess whether those measures were appropriate and effective, since Mr. Glas alleged that he continued to be subjected to threats and harassment, particularly at the hands of other inmates. No details were provided about action taken by the authorities to investigate these allegations.

After assessing the legal and factual allegations made by both parties, the Commission considered that—based on the standards that are applicable prima facie—Jorge David Glas Espinel faces a situation of grave and urgent risk, since his rights to life and personal integrity risk suffering irreparable damage. Consequently, in keeping with Article 25 of the IACHR’s Rules of Procedure, the Commission asked Ecuador to: a) take any measures necessary to protect the rights to life and personal integrity of Jorge David Glas Espinel, particularly those measures that are best suited to his personal circumstances and make it possible to create conditions to protect and respect his rights; b) come to an agreement with the beneficiary and his representatives regarding any measures that need to be taken; and c) report on any actions taken to investigate the events that gave rise to the adoption of this precautionary measure, to prevent such events from happening again in the future.

The fact that this precautionary measure has been granted and its adoption by the State do not entail a prejudgment on a potential petition that may be filed before the Inter-American system to allege violations of rights protected by the American Convention on Human Rights and other applicable instruments.

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 and to defend human rights in the region and acts as a consultative body to the OAS in this area. 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.

No. 211/20