After a win, the court’s decision still has to be implemented. If the post-victory work is overlooked, the decision becomes a symbolic piece of writing about human rights and dignity, worthy of framing and hanging on a wall, but not a very effective tool for social justice.
The Sawhoyamaxa community, like the Paraguayan indigenous communities of Yakye Axa and Xákmok Kásek and the Ecuadorian community of Sarayaku, won their cases at the IACHR. The Court ordered their governments to protect their rights, such as their right to free, prior, informed consultation and their right to their territory. Yet, in every case, the governments have failed to obey the Court’s orders.
1. The Cases:
- Paraguay: The Yakye Axa, Sawhoyamaxa and Xákmok Kásek indigenous communities have historically lived in the Chaco region of Paraguay. The arrival of Anglican religious groups and the expansion of agro-industrial projects forcefully displaced these indigenous people from their ancestral territories. In some cases, religious groups displaced indigenous people from their land, to then give this land to foreign investors to grow soybeans and produce meat. After three decades of trying to get the Paraguayan government to return their lands, the three communities turned to the IACHR to request that the State grant them the land titles to their ancestral territories. In each case, the IACHR ordered the State to grant the titles and protect the economic, social and cultural rights of these communities. But nine years after the Court´s first decision on the matter, the government has not granted land titles to any of the three indigenous communities.
- Ecuador: In 1996, the government authorized the Argentinean fuel company Compañía General de Combustibles (CGC) to explore Block 23 of the Ecuadorian Amazon without consulting the Sarayaku indigenous community, the native inhabitants of that part of the rainforest. In 2012, the IACHR condemned the Ecuadorean government for the allowing the company to enter the rainforest without consulting the Sarayaku people. The Court ordered the State to remove the pentolite explosive devices the company had buried in the ground to explore petroleum, and to create regulations, together with the Ecuadorean indigenous peoples and nationalities, to enforce the right to consultation. Almost two years later, the Ecuadorean government has not obeyed either of these orders.
2. Strategies to encourage governments to fully obey and implement court orders:
- Encourage the IACHR to follow-up: The IACHR follow-up hearings have been successful in ensuring court decisions are followed. It is very important for social justice organizations to generate detailed reports about the lack of state compliance with court decisions. It is more likely that the State will feel pressured to obey a court decision if it shamed for a second, third, or fourth time, before the international community.
- What about the actual content of the decision? To ensure a court ordered is fully implemented, it is important to create national and international coalitions. In Paraguay, for example, national organizations like Tierraviva have created alliances with international organizations, such as Amnesty International, ESCR-net and Dejusticia, to pressure the Paraguayan Congress to give the Sawhoyamaxa back their ancestral lands. These coalitions have generated an avalanche of petitions requesting the Paraguayan Congress to grant the indigenous group their land titles. In cases like Sarayaku that have many technical questions, it is important to create alliances with organizations that have certain expertise. For example, the Sarayaku community connected with an independent scientific organization to help them prove that it was possible to remove the pentolite explosive devices from their territory.
- Monitor monetary compensation and how resources are spent: Given the Paraguayan and Ecuadorean experiences, it is clear that monetary reparations are often the first—and sometimes the only—part of a court decision governments choose to implement. In both these cases, the governments gave the indigenous communities money as compensation for the violation of their rights, in compliance with the Court’s decisions. But even after communities receive the money they are due, it is important for social justice organizations to carefully monitor how these resources are spent. If no one is watching, there is a higher risk that the money will be poorly spent. For example, in the Xákmok Kásek community the government built a medical center that cannot hire doctors due to a lack of resources and does not have the necessary medication to treat patients.
Winning a case in court, be it national or international, is hard. Much time and effort is put into fact-finding, legal research, writing and presenting a case. But even after putting in all that work, winning the case should not be ultimate goal. Seeing the lives of the plaintiffs changed for the better should be the real objective. To reach this goal, the implementation stage is crucial. This stage of the legal process should be a creative one that combines different strategies to ensure that Court orders become a reality for the people who seek their assistance and protection, a not just a paper to frame and hang on a wall.
*Carlos Andrés Baquero Díaz is a researcher at the Center for Law, Justice and Society (Dejusticia).