High-level dialogue session between GTI-PIACI, international organizations, indigenous organizations, allied organizations, and the Colombian State, aiming to promote an international technical assistance network for Colombian government entities in formulating and implementing PIACI rights prevention and protection policies at the national level and in border areas.
February 22, 2024
I want to express my gratitude to GTI-PIACI for organizing this event and for the years of work dedicated to protecting the rights of Indigenous Peoples in voluntary isolation and initial contact.
Today, amidst a severe climate crisis, we can recognize the crucial role played by Indigenous Peoples, particularly those in voluntary isolation and initial contact, in conserving the environment and biological diversity for the benefit of all humanity.
From this perspective, countries fortunate to host these Indigenous Peoples have an international responsibility to protect them in the interest of humanity. Despite this, many PIACI face the imminent threats of extinction or forced contact due to external activities and actors in their ancestral territories, such as agricultural entrepreneurs, livestock farmers, illegal miners, armed groups, and drug traffickers. Additionally, they confront significant challenges from state laws and policies that favor the exploitation of natural resources, minerals, water, and hydrocarbons in their ancestral lands.
Given this alarming reality, my mandate has conducted observations and provided recommendations on the situation of Peoples in voluntary isolation and initial contact in Bolivia[1], Brazil[2], Peru[3], Ecuador, and Paraguay[4]. These recommendations also address common issues, including their immunological vulnerability in the context of the COVID-19 pandemic[5].
The situation of PIACI is so critical that my annual thematic reports include dedicated sections on their rights. For instance, the thematic report on the impact of protected areas on the rights of Indigenous Peoples presented to the UN General Assembly in 2022 focused on this issue. Moreover, the thematic report scheduled for October of this year, presented to the UN General Assembly, will also include a section on PIACI. I urge you to provide relevant information, and the call for contributions is available on the Rapporteurship's website, with a deadline of March 15. Additionally, I will conduct a virtual consultation on March 19 at 10 AM Bogotá time to gather information on this topic.
Furthermore, I want to remind you of my official visit to Colombia from March 5 to March 15. I invite you to share any information you may have regarding the situation of Indigenous Peoples in the country.
Given the critical situation faced by many PIACI, the current event is of fundamental importance to reflect on their situation and find appropriate and shared solutions to adopt policies that ensure their physical and cultural survival. Special attention is needed for Peoples in Initial Contact, because it is during this situation that their true problems begin. I won't delve into them; I'll just say that the adaptation to the society that forced them to leave their way of life is not understood, and they are attacked, losing their lands, territories, and resources.
Therefore, I would like to contribute some reflections on international human rights norms regarding PIACI that should guide future laws, policies, and programs in this matter.
Concerning Indigenous Peoples in voluntary isolation and initial contact, the international legal framework on the human rights of Indigenous Peoples applies to them, such as the UN Declaration on the Rights of Indigenous Peoples, ILO Convention 169, the American Declaration on the Rights of Indigenous Peoples, and existing case law. However, due to their special situation of isolation, the principles of non-contact, caution, and non-interference should guide the interpretation and application of these international standards. In this sense, I want to recall that in 2021, the Office of the High Commissioner for Human Rights (OHCHR) adopted the Guidelines for the protection of Indigenous Peoples in voluntary isolation and initial contact in the Amazon Region, the Gran Chaco, and the Eastern Region of Paraguay.
Based on international human rights law [6], Indigenous Peoples in voluntary isolation enjoy the right to self-determination, which, concerning this population, manifests in the "right to remain in a state of voluntary isolation and to live freely and in accordance with their cultures" [7]. In this sense, the Inter-American Commission on Human Rights has clarified that "one of the fundamental premises of the rights of these peoples is respect for non-contact and their choice to remain in isolation" [8].
In the case of Indigenous Peoples in voluntary isolation, forced contact can constitute a form of forced assimilation, the destruction of their culture, and physical extermination, violating Article 8 of the UN Declaration [9]. Consequently, forced contact may endanger their right to preserve and strengthen their political, legal, economic, social, and cultural institutions protected in Articles 3, 4, and 5 of the UN Declaration.
The principle of non-contact requires states to adopt measures that demonstrate a determined willingness to avoid situations of forced contact, whether by state agents, extractive industry agents, or other third parties, as necessary to guarantee the rights of isolated peoples and prevent conflict situations that are dangerous for both members of isolated peoples, especially Indigenous Peoples in initial contact, and other citizens of the country [10].
Finally, this Rapporteurship agrees with the OHCHR guidelines in asserting that, in the application of the right to self-determination, justice should be preventive rather than reparative. In this sense, the precautionary principle represents a significant paradigm shift in the guarantee and protection of human rights. Concerning Indigenous Peoples in isolation and initial contact, it is necessary to act preventively, considering the catastrophic consequences of actions taken after the violation of their human rights [11].
Due to the close relationship between the right to live in their ancestral territories and the preservation and continuation of their physical and cultural existence, this Rapporteurship aligns with the Inter-American Commission on Human Rights in stating that the understanding of indigenous property must be adapted to the particular reality of Indigenous Peoples in voluntary isolation according to the principles of self-determination and non-contact, as well as the criteria of caution and care to ensure the physical and cultural survival of these peoples [12] [13].
The demarcation and titling of the territory of Indigenous Peoples in voluntary isolation must be geographically accurate, effectively corresponding to the areas traditionally used by the community in their nomadic way of life. The physical and cultural survival of these peoples depends on this accuracy. It is crucial to involve national, regional, and local indigenous organizations, as well as civil society organizations working towards the protection of isolated peoples, as indicated by the OHCHR Guidelines. Achieving a significant level of consensus on this matter is essential. In cases of doubt and considering the rights at risk, the application of the pro-isolation precautionary principle should be considered.
The designation used to identify the territory as the ancestral property of the peoples in voluntary isolation (such as "intangibility") should have legal binding force for national authorities, indirect state actors like economic entities with interests in the areas, and third parties. This will enable timely and resolute sanctions against any forced contact, including the criminalization of such conduct.
Due to the particular vulnerability of peoples in voluntary isolation, territorial protection should extend beyond the ancestral territory to include a buffer zone with a prevention and containment function. Additionally, establishing sanitary cordons and other surveillance measures and epidemiological care is crucial [14].
In line with the principles of non-contact and precaution, continuous monitoring is necessary, employing methodologies that do not involve direct contact. Some states in the region have already utilized methods like high-altitude photography or satellite imagery. In any case, contact should always be avoided when dealing with isolated peoples [15]. In this regard, my 2022 report on protected areas and Indigenous Peoples' rights highlights a positive example from Peru. The Native Federation of the Madre de Dios River and Tributaries, in coordination with indigenous peoples and a state entity, is implementing "non-contact" protection plans. These plans involve a network of surveillance posts surrounding Indigenous Peoples living in voluntary isolation and initial contact. The network monitors threats to their territories, documents potential signs of their presence, and implements measures to prevent forced contact and conflicts.
Finally, because many PIACI Peoples are transboundary, situations requiring bi-national or regional protection measures must also be considered[16].
Aligning with the OHCHR Guidelines, the right to consultation and free, prior, and informed consent should be interpreted considering the decision of Indigenous Peoples to remain in isolation and the need for increased protection due to their vulnerable situation. This can be reflected in their decision not to use such participation and consultation mechanisms[17].
In the case of development projects in the ancestral territories of peoples in voluntary isolation and their surroundings, it should be noted that, concerning peoples in voluntary isolation, their non-consent is presumed regarding any activity that encroaches upon their territory. The rejection of contact with outsiders should be understood as an affirmation of their will to remain isolated and their non-consent to such interventions or projects, as reiterated by the Inter-American Commission on Human Rights [18].
As indicated by this mandate, the requirement for a valid public purpose for limiting property or other rights related to indigenous territories, which is also necessary and proportional, is a "difficult requirement to meet in the case of extractive activities carried out in the territories of Indigenous Peoples without their consent"[19]. Additionally, in accordance with the principles of precaution and caution, there is a presumption of the superiority of the interest in protecting the physical and cultural survival of Indigenous Peoples in voluntary isolation in the balance with other rights and interests such as national interest, public utility, and other legal concepts. In this regard, as emphasized by the Inter-American Commission on Human Rights, "[t]he protection of cultural diversity is an ethical imperative inseparable from the respect for human dignity"[20]. Due to the delicate relationship and threats that can arise between the culture of Indigenous Peoples in voluntary isolation and the majority society, the State must strengthen its protective actions in the contexts of these peoples[21]. Additionally, the Inter-American Court of Human Rights has indicated that "the prevalence of a view of property that grants greater protection to private owners over indigenous territorial claims, disregarding their cultural identity and threatening their physical subsistence" can demonstrate "de facto discrimination"[22].
Regarding the responsibility of the private sector, they must operate in accordance with the UN Guiding Principles on Business and Human Rights, adopted by the Human Rights Council in 2011, and the fact that "this responsibility is independent of the requirements that the State imposes or does not impose on companies and their agents"[23]. Applying the due diligence principle, it should be understood that such actors do not fulfill their human rights responsibilities by implementing protocols for potential contacts if their operations are based in the territory of these peoples or in buffer zones that have a direct impact on them.
As reiterated in this proceeding, in line with their independent responsibility to respect human rights, companies must act with due diligence before commencing or committing to commence extraction operations without the prior consent of the concerned Indigenous Peoples. They should conduct their own independent assessment of the conformity of operations with international standards and the conditions under which they would be in compliance. If operations are not in compliance, extractive activities should not be carried out, regardless of the state's authorization to do so[24].
In conclusion, the Special Rapporteur reminds that one of the functions of this mandate is to advise States and other actors on the implementation of international human rights standards for Indigenous Peoples. Therefore, I express my availability to any State or other actors wishing to avail themselves of this function.
Thank you.
[1] A/HRC/11/11 del 18 de febrero de 2009
[2] A/HRC/12/34/Add.2 del 26 de agosto de 2009, A/HRC/33/42/Add.1 del 8 de agosto de 2016
[3] A/HRC/27/52/Add.3 del 7 de mayo de 2014; Comunicado de prensa “Peru road-building law threatens survival of Amazon peoples in isolation – UN indigenous rights expert” del 20 de diciembre de 2017. En: https://www.ohchr.org/en/press-releases/2017/12/peru-road-building-law-threatens-survival-amazon-peoples-isolation-un?LangID=E&NewsID=22557
[4] A/HRC/30/41/Add.1 del 13 de agosto de 2015
[5] A/75/185 del 20 de julio de 2020; A/HRC/48/54 del 6 de agosto de 2021
[6] Artículos 1 de los Pactos Internacionales de derechos civiles y políticos y económicos, sociales y culturales ; Artículos 3 Declaración de la ONU y Amorcan Declaración.
[7] Articulo XXVI Declaración Americana; también verse, OACNUDH, Directrices, párr. 20: “La decisión de mantener su aislamiento puede ser entendida como una de las diversas formas de expresar el ejercicio del derecho a la autodeterminación, que pude contribuir al respeto de otros derechos.”
[8] CIDH, Derecho a la libre determinación de los Pueblos Indígenas y Tribales, párr. 40
[9] OACNUDH, Directrices, párr. 47
[10] A/HRC/15/37/Add.7 del 17 de septiembre de 2010. Párr. 62
[11] OACNUDH, Directrices, Párr. 50
[12] CIDH. Informe de Fondo No. 152/19. Caso 12.979. Párr. 101
[13] CIDH, Derecho a la libre determinación de los Pueblos Indígenas y Tribales, Párr. 365.10
[14] CIDH, Derecho a la libre determinación de los Pueblos Indígenas y Tribales, Párr. 365.10 a
[15] OACNUDH, Directrices, Párr. 46
[16] CIDH, Derecho a la libre determinación de los Pueblos Indígenas y Tribales, Párr. 365.10 b
[17] OACNUDH, Directrices, Párr.66
[18] CIDH, Informe Pueblos Indígenas en aislamiento voluntario y contacto inicial en las Américas: Recomendaciones para el pleno respeto a sus derechos humanos. Recomendaciones, Párr. 14
[19] Informe A/HRC/24/41 del 1 de julio de 2013. Párrs. 35-36. Así también en febrero de 2018 la Relatora sobre los derechos de los Pueblos Indígenas de la Comisión Interamericana de Derechos Humanos, Antonia Urrejola, junto con la Relatora Especial de las Naciones Unidas sobre los derechos de los pueblos indígenas, Victoria Tauli-Corpuz, expresaron su preocupación ante la aprobación, en Perú, de la Ley No. 30723, "Ley que declara de prioridad e interés nacional la construcción de carreteras en zonas de frontera y el mantenimiento de trochas carrozables en el Departamento de Ucayali". La recurrencia a este tipo de figuras jurídicas, es un factor de riesgo en toda la región para la salvaguardia de los territorios habitados por Pueblos Indígenas en aislamiento voluntario.
[20] CIDH. Informe de Fondo No. 152/19. Caso 12.979. Párr. 119; Comité DESC. Observación General No. 21. UN Doc. E/C.12/GC/21/Rev.1, 17 de mayo de 2010, Párr. 40
[21] CIDH. Informe de Fondo No. 152/19. Caso 12.979, Párr. 119
[22] Corte IDH. Caso Comunidad Indígena Xákmok Kásek Vs. Paraguay. Fondo, Reparaciones y Costas. Sentencia de 24 de agosto de 2010. Serie C No. 214, párrs. 273 y 274
[23] UN Guiding Principles on Business and Human Rights page 13; Informe A/HRC/24/41 del 1 de julio de 2013.Parr. 22
[24] A/HRC/24/41 del 1 de julio de 2013.Parr. 40