Indigenous Communities, Freedom of Association, and Democracy in the Inter-American System of Human Rights

Rafael Jerez Moreno

National Autonomous University of Honduras

To address the role played by the Inter-American System of Human Rights to strengthen democracy in the Americas and the Caribbean, it is essential to refer to its normative and jurisprudential precedents. One of the normative precedents is the Charter of the Organization of the American States (OAS). Section b) of Article 2 of the Charter provides that one of its essential purposes is to promote and consolidate representative democracy, with due respect for the principle of nonintervention. Later, Article 53 created several organs to accomplish the OAS’s purposes, including the Inter-American Commission on Human Rights (IACHR). Article 106 expresses that its principal function shall be to promote the observance and protection of human rights. 

In 1969, the American Convention on Human Rights (ACHR) was adopted amid the Inter-American Specialized Conference on Human Rights. The ACHR recognizes a catalogue of human rights and responsibilities assigned to State Parties to the Convention. Additionally, the ACHR foresees the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights (IACtHR or the Court) as the two organs with the competence to address the matters related to the commitments of the State Parties with the Convention. This brief historical review serves to understand the normative basis of the Inter-American System of Human Rights and the dialogic relationship between the Commission and the IACtHR within their competencies under the ACHR. 

In what follows, I address the rights of Indigenous communities amid the Inter-American System of Human Rights and its relationship with democracy and the right to freedom of association. There are four categories of cases involving the right to freedom of association: syndical freedom cases, cases concerning the rights of human rights defenders, and the ones addressing the relationship between political rights and freedom of expression. The fourth category does not involve the IACtHR exclusively, but its dialogic relationship with the Commission.

FoA and syndical freedom

The first decision issued by the Court addressing the right to freedom of association, protected by Article 16 of the ACHR, was Baena Ricardo and Others vs. Panama on February 2, 2001. This case refers to the dismissal of 270 public employees and union leaders who participated in protest activities against the government’s policy concerning their labor rights that were qualified by the government as threatening democracy and the constitutional order. In this case, the IACtHR explained that the right to freedom of association in syndical affairs consists of “the faculty to formalise syndical organisations, to put into work its internal structure, activities, and programs, without the intervention of the public authorities to limit or restrict this right,” and to guarantee every person’s right to decide whether to be a part or not of the organization. An important part of the jurisprudence of the IACtHR concerning the right to freedom of association has focused on syndical freedom.

FoA and the rights of human rights defenders

Another set of decisions issued by the IACtHR, such as Kawas Fernandez vs. Honduras of April 3, 2009, refers to the relationship between the defense of human rights and the right to freedom of association. The Kawas Fernandez case involved the extrajudicial killing of the Honduran environmentalist Blanca Jeannette Kawas in February 1995, amid her efforts to defend the Punta Sal Peninsula from attempts of illegal seizures by private entities, deforestation, and the contamination of the lagoons. The IACtHR explained that States must guarantee the conditions for human rights defenders to exercise the right to associate to fulfill their role in a democratic society.

FoA and the relationship between political rights and freedom of expression

However, it is in the cases that address the relationship between the right to freedom of association, freedom of expression, and political rights that the Court makes a direct reference to their conjunct effects on democracy. This criterion can be found in the cases of Manuel Cepeda Vargas vs. Colombia of May 26, 2010; Lopez Lone and Others vs. Honduras of October 5, 2015; Gudiel Alvarez and Other (“Military Diary”) vs. Guatemala of November 20, 2012; and Members and Militants of the Patriotic Union vs. Colombia of July 27, 2022. The Court’s reasoning in these cases builds on the precedent set in Carlos Castañeda Gutman vs. Mexico of August 6, 2008, where the Court argued that political rights are human rights of great importance that are closely tied to the freedoms of expression, assembly, and association, and collectively enable the “democratic game”.

FoA and Indigenous Communities: different understandings in the Court and the Commission

In this fourth category, two cases address the rights of Indigenous communities and exemplify differences in the understanding of the Commission and the IACtHR concerning the nature and scope of the right to freedom of association. The two cases are the Massacre of Rio Negro vs. Guatemala of September 4, 2012, and the Members of the Chichupac Community and the Neighboring Communities of the Municipality of Rabinal vs. Guatemala of November 30, 2016. These cases refer to massacres, extrajudicial killings, tortures, forced disappearances, and sexual assaults against the members of the Community of Chichupac and the neighboring communities that occurred in the context of the Guatemalan armed conflict between 1962 and 1996, and massacres against members of the Rio Negro Community between 1980 and 1982.  In the latter case, the IACtHR expressed that "the community of Rio Negro cannot be implicitly assimilated as an association in terms of Article 16 of the ACHR," and that the community of Rio Negro that has an Indigenous character is not protected by Article 16. In the case of the Members of the Chichupac Community and the Neighboring Communities of the Municipality of Rabinal vs. Guatemala, the Commission argued that the Community of Chichupac lived for several years in the context of forced displacements and persecution of the State. It also suffered the destruction of its social structure, the diminishing of its cultural practices, and the weakening of the relationship with its leaders, which constituted a violation of the rights of conscience and religion, and the right to freedom of association. However, the IACtHR concluded that the Community of Chichupac and the other communities that are part of the Rabinal “cannot be considered an association in terms of Article 16 of the American Convention.”

Why did these cases reach the bench of the IACtHR if Indigenous communities cannot be considered an association in the terms foreseen in the ACHR? The case of the Massacre of Rio Negro vs. Guatemala sheds light on this question. The Inter-American Commission on Human Rights applied the principle of iura novit curia and decided to include Article 16 as part of the rights examined amid the allegations of human rights violation presented by the petitioners. When the Commission submitted the case to the IACtHR, it explained that the massacres produced the disintegration of the community, modifying their traditions and encouraging isolation. The Commission argued that the right to freedom of association had to be analyzed amid the communitarian life of Indigenous groups.

Despite the decision of the IACtHR not to link the right to freedom of association to Indigenous communities, it cannot be ignored that there have been significant decisions of the Court concerning Indigenous communities’ right to life, personal integrity, freedom of expression, communal property, freedom of movement and residence, and political rights, among others. In 2023, the Inter-American Commission issued a report concerning the right to self-determination of Indigenous communities. In this report, the Commission explained that the right to self-determination implies the ability for Indigenous communities to recognize themselves as a community with its members. The Commission argued that Indigenous communities cannot be considered “civil associations” because it would deny their worldview and history. In this sense, the IACHR has concluded that, regarding legal personality, Indigenous communities must be recognized as collective subjects of international law, considering these communities exercise certain rights from a collective perspective. The Commission argues that respecting the scope of self-determination of Indigenous communities is an opportunity to strengthen an inclusive view of democracy.

These cases, exemplifying the IACtHR’s jurisprudence concerning the right to freedom of association, allow us to understand the differences in the scope of the right according to the nature of the case and how it interacts with other rights foreseen in the ACHR. However, the differences in the criteria set by the IACtHR and the IACHR regarding the enforceability of the right to freedom of association in cases involving Indigenous communities can be seen as part of an ongoing debate on the collective nature of the rights protecting Indigenous communities, as well as the differences on the criteria used in the interpretations applied by the IACHR and the IACtHR.

Rafael Jerez Moreno is a lawyer from the National Autonomous University of Honduras with a Master of Law Degree with a concentration in Latin America and International Law from the University of Texas at Austin.

Suggested citation: Rafael Jerez Moreno ‘Indigenous Communities, Freedom of Association, and Democracy in the Inter-American System of Human Rights’ IACL-AIDC Blog (10 October 2024) Indigenous Communities, Freedom of Association, and Democracy in the Inter-American System of Human Rights — IACL-IADC Blog (blog-iacl-aidc.org)