Press Release

IACHR refers case on Ecuador to the Inter-American Court

October 5, 2020

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Washington, D.C. - On September 30, 2020, the Inter-American Commission on Human Rights (IACHR) referred the case of the Tagaeri and Taromenane Indigenous Peoples in Voluntary Isolation regarding Ecuador before the Inter-American Court of Human Rights. This is the first case involving indigenous peoples in voluntary isolation.

The case concerns the international responsibility of the State for a series of violations of the rights of the Tagaeri and Taromenane indigenous peoples and their members, in the context of projects affecting their territories, natural resources and way of life. The case also refers to three groups of violent deaths of members of these peoples that occurred in 2003, 2006, and 2013; as well as the lack of adequate protection measures in relation to two Taromenane girls following the 2013 events.

The Tagaeri and Taromenane are indigenous peoples in voluntary isolation ("IPVI") who have chosen to live without contact with the majority population. They are also known as ecosystem peoples for living in strict dependence on their ecological environment. These peoples live according to a pattern of seasonal mobility in a wide territory that allows them to exercise their gathering and hunting activities, as well as the search for places related to their ancestors. Due to this strict dependence on the ecosystem, any change in the natural habitat can harm both the physical survival of its members, as well as that of the group as an indigenous people.

In its Merits Report, the Commission analyzed the State's obligations with respect to the territorial rights of the Tagaeri and Taromenane, their normative regulation, the form of recognition through the creation of a natural reserve, and the level of protection of indigenous property with respect to third parties with interests in the use and exploitation of the territories.

Regarding the first point, the Commission concluded that the ancestral territory of the Tagaeri and Taromenane peoples exceeds the limits of the Tagaeri and Taromenane Intangibility Zone ("TTIZ") and that the State did not demonstrate that there is a correspondence between the delimitation of the TTIZ and the ancestral territory of the Tagaeri and Taromenane peoples. The Commission found, in particular, that seasonal patterns of planting and harvesting have not been taken into account, generating contacts, affecting their subsistence and the handing over in concession and exploitation of their intangible territories to companies.

Secondly, the Commission considered that Article 57(21)(2) of the Constitution, which protects the inviolability of the territory of the IPVI, is, in principle, consistent with the level of international protection required by the IPVI. However, it considered that such protection is diminished by Article 407 of the Constitution, which establishes the possibility of carrying out extraction activities of non-renewable resources and forest exploitation in intangible territories based on a declaration of "national interest. In this regard, the Commission established that, taking into consideration the principle of non-contact and the principle of self-determination of the IPVI, it is not possible to intervene in their territories for economic exploitation when this could enter into tension with the safeguarding of their subsistence. The Commission noted in this regard that, although in the process of authorizing two mining projects the ITTZ was maintained as intangible, the delimitation of the ITZ was not consistent with the ancestral territory occupied by the PIAVs. The Commission concluded that the legal protection of intangibility was not effective and that, in its application to the specific case, such regulations failed to guarantee that any restriction on the property of the IPVI was compatible with the applicable standards.

Third, the Commission determined that the title granted is not a full title, which has led to illegal interventions by settlers and loggers. This is in violation of the State's obligation to guarantee the right of indigenous peoples to effectively control and have dominion and use of their territory without any type of interference from third parties. Finally, the Commission identified the existence of an asymmetry with respect to the protection of the property of IPVI in relation to the protection and promotion of initiatives for the use of their territories for economic purposes through the extraction of their resources. Likewise, the Commission noted the existence of indications of pressure exerted by companies so that the protection of PIAV territory is diminished, which has generated contacts and caused conflicts that have not been duly prevented by the State.

With respect to the violent deaths of members of the Tagaeri and Taromenane peoples in 2003, 2006 and 2013, the Commission observed that all three events are the result of contacts between third parties and the IPVI, due to the aforementioned lack of effective guarantees to prevent access to the territory by third parties. In its Merits Report, the Commission determined that the State was aware of the situation of real and immediate risk, but did not take reasonable measures to prevent it from being verified. Therefore, the Commission concluded that the Ecuadorian State is responsible for the lack of prevention of these deaths.

Furthermore, the Commission ruled on the separation from their community of two girls belonging to a IPVI, following the violent death of their parents and other persons in the context of the aforementioned events. The Commission considered, first of all, that the forced separation of an indigenous person in voluntary isolation and their consequent permanence in a society other than their own is of the utmost gravity, given that it results in an irreparable loss of their condition of isolation, which is why such a situation activates a reinforced standard of the State. In this regard, the Commission concluded that the Ecuadorian State is responsible for the failure to prevent the forced separation of the Taromenane girls, which put their lives at risk and violated their rights to personal integrity, personal freedom, protection of the family, children, movement and residence, cultural identity, and cultural rights.

Finally, the Commission observed that the State did not offer any judicial remedy to make territorial claims in favor of the IPVI, taking into account their particular circumstances, and that the remedies were not effective. It also concluded that the indications of lack of due diligence in criminal investigations, as well as the unjustified waiver of the State's punitive power, violated the rights to judicial guarantees and judicial protection.

Based on these determinations, the Commission concluded that the State of Ecuador is responsible for the violation of the rights set forth in Articles 4(1) (right to life), 5(1) (right to personal integrity), 7(1) (right to liberty), 8(1) (right to judicial guarantees), 11 2 (right to honour and dignity), 19 (rights of the child), 21.1 (right to property), 22.1 (right to freedom of movement and residence), 25.1 (right to judicial protection) and 26 (right to health and cultural rights) of the American Convention on Human Rights, in relation to the obligations set out in its Articles 1.1 and 2.

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

1. Correctly identify and delimit the lands and territories owned by the Tagaeri and Taromenane, granting them a registrable title with full domain characteristics. Properly determine the concessions granted that overlap or may affect the territory of the IPVI and provide for the necessary corrections to guarantee the full exercise of their collective property, including the necessary measures to ensure strict compliance with the principle of non-contact in accordance with the standards indicated in the report.

2. Provide the necessary and culturally appropriate physical and mental health care measures for the rehabilitation of the Taromenane girls if they so wish and in a concerted manner. To continue to make every effort to determine the needs of the Taromenane girls for their best well-being, in accordance with their best interests and the principle of special protection, taking into account the complexities of their situation and the serious implications for their rights and particularly for their family and cultural identity. The State must adequately evaluate the measures necessary for the reestablishment of the bond between the girls, as well as the knowledge of the truth about their origin through relevant and culturally appropriate means.

3. Continue the criminal investigation into the violent deaths of 2013 in a diligent and effective manner and within a reasonable time, with the aim of clarifying the facts completely, identifying all possible responsibilities and imposing the appropriate sanctions with respect to the human rights violations declared in this report. To report on the status of the investigations into the events of 2003 and 2006, including the eventual results of the processes in the indigenous justice system and, if applicable, to establish the necessary measures to avoid impunity for such events.

4. Provide mechanisms for non-repetition that include a clear and adequate normative and institutional framework for the reality of the PIAV in matters of collective property and their rights under the American Convention, in accordance with the standards indicated in the report. In particular, i) implement regulatory or other measures necessary to ensure that Article 407 of the Constitution is applied and interpreted in harmony with the inter-American standards developed in this report, and ii) establish protocols for health and health management in the face of exceptional situations of contact, as well as strengthen early warning systems on risks to the rights of PIAVs and measures to prevent conflict in these contexts.

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. 245/20