International Law And Indigenous Rights

International Law And Indigenous Rights In The Historical Context

The international legal order did not always recognize the special rights of indigenous
peoples with respect to their traditional lands and resources. In fact, indigeneity did not
emerge as a subject of special concern in international law until the end of the last
century. A brief overview of the steps in the historical evolution of international law and
its treatment of indigenous people provides a contextual backdrop for assessing how
these groups are treated today.
Early International Law: The Naturalist And Positivist Frameworks
It can be said that international law was born from Renaissance philosophies of natural
law driven by notions of morality. Natural law was believed to flow from a divine power,
independent of human authority. Based on the work of Hugo Grotius a century before
them, natural law theorists discerned certain minimum standards of treatment afforded
to any rational human being. The threshold question for determining the rights afforded
to indigenous people during colonization was whether they were rational human beings.
Largely considered barbaric and lacking divine rights inherent in natural law, early
international law failed to contemplate indigenous peoples because of their failure to
conform to European forms of civilization.
As European territorial arrangements emerged, however, the naturalist framework
transformed into a state-centered system. European theorists transformed the concept
of natural law from a universal moral code for all, into natural rights afforded at the
individual and state levels. This recognized the positive rights of the individual as a
member of society on the one hand, and the rights of the sovereignty as an independent
state. In this context, indigenous peoples would have to be regarded as nations or

states to be afforded any rights as distinct communities, or be reduced to their individual

constituents with no account for their right to group autonomy.
The concept of the nation-state was based on European models of political and social
organization that featured exclusivity of territorial domain and centralized authority.
Indigenous groups, however, were organized primarily by tribal or kinship ties, featured
decentralized political structures, and often had overlapping territorial control. This
meant that indigenous groups, not qualifying as states, could not participate in the
shaping of international law, nor could they use it to assert rights that had once been
deemed inherent by nature. European and European-derived states, however, enjoyed
rights at the international level, independent of natural law, in their practice as
sovereignties.
Since indigenous groups were not capable of asserting rights under international law,
nor given sovereign status, colonial patterns were legitimized without consequence for
indigenous presence. Areas occupied by indigenous groups prior to colonization were
considered terra nullius, or unoccupied and vacant land. With the adoption of new civil
codes in much of the the Americas, recognition of property rights was afforded
exclusively to private individualized holdings.
As colonizing states and their progeny consolidated power over indigenous lands,
states began adopting the trusteeship doctrine to wean native peoples from their way of
living and civilize them. Colonial powers, like Great Britain for example, devised
special administrative regimes aimed at reengineering the cultural and social patterns of
indigenous groups to be more in line with European conceptions of civilization. Until the
early twentieth century, governments and Christian church agents broke down
indigenous forms of political and social organization, disrupted communal land holdings,
and suppressed cultural practices.
Early international law failed to account for indigenous groups because their cultural
practices did not conform to European notions of civilization, and therefore were not
afforded the natural rights thought were believed to flow divinely to all human beings.

Then the doctrine of trusteeship and positivist legal constructs denied indigenous
people sovereign status in an effort to develop legal support for the forces of
colonization. Over the last few decades, in the aftermath of two world wars, the
international law system has been reformed as a growing concern for individuals and
groups about precepts of world peace and human rights began to take center stage.
Emergence Of Indigenous Peoples And Their Human Rights Under International
Law
Notwithstanding a global failure to recognize their inherent right to sovereignty,
indigenous peoples have continued to advocate for a collective right to self
determination using the human rights discourse as a basis for the assertion of
particularized rights. Indigenous communities around the world claimed their inherent
rights included: (1) the right to own, use, occupy, and control ancestral lands and
resources; (2) the right to recognition of independent and distinct governance and
political structures; and (3) the right to meaningful consultative processes where state
decisions implicate their interests.
A cornerstone of the indigenous rights movement has been the rejection of Eurocentric
notions of individual property rights tied to economic value, because of its futility with
respect to the allocation of traditional indigenous lands and resources. Instead
indigenous peoples have espoused that their ability to communally reside on their lands
and to operate under traditional land tenure systems is inextricably tied to their
communal identity, culture, religion, and modes of subsistence. Using pre-existing
human rights norms articulated in declarations and treaties, indigenous peoples have
grounded their claims in the right to self determination, the right to cultural integrity, and
the right to property. These norms have allowed indigenous claims to their traditional
lands and resources to be argued under the human rights umbrella, causing
international law to evolve in response to this indigenous articulation of issues.
In addition to evolving customary international law and hard law sources that have been
developed to address indigenous issues, jurisprudence continues to be produced by the

United Nations human rights treaty compliance bodies and regional human rights
bodies applying concepts of self determination, cultural integrity, and property to protect
indigenous peoples' special relationship to their lands and resources. Beyond the formal
human rights process, the lending processes of the World Bank, the Inter-American
Development Bank, and the European Union are also being affected by the discourse of
indigenous human rights. International standards have trickled down and changed the
domestic legislation, policies, and judge-made law of many states. Additionally, regional
protection systems have been developed to address international law concerns of
indigenous peoples in an appropriate forum.
The Communal Right To Property Within The Inter-American Regional Human
Rights System
A large part of the world's indigenous peoples live in the Inter-American Human Rights
system which, functioning within the Organization of American States (OAS), responds
to the concerns of indigenous peoples of the Americas. The OAS General Assembly
became a trailblazer of the indigenous rights movement when it first adopted special
recognition for indigenous groups in its 1948 Inter-American Charter of Social
Guarantees. It required states in the Inter-American system to take necessary
measures to protect indigenous peoples' lives and property, defending them from
extermination, sheltering them from oppression and exploitation. The International
Labour Organization (ILO) followed suit in 1957 when it adopted the first multilateral
treaty recognizing and protecting indigenous human rights, Convention No. 107.
Additionally, the Inter-American Commission on Human Rights began making formal
proclamations on human rights violations against indigenous peoples, after being
founded in 1959.
The Inter-American human rights system was developed to work within the OAS,
founded in 1948. Although concern about indigenous peoples had already given rise to
conferences and congresses about their issues as early as 1933, it was not
institutionalized within the OAS until land invasions by non-indigenous settlers into
indigenous territories resulted in violence and other forms of discrimination.

The modern indigenous rights movement gained momentum in the 1960s and 1970s,
when indigenous groups in the Americas and other parts of the world began to draw
increased attention on their demand to be distinguished as communities with historically
based cultures, political institutions, and entitlements to land. This prompted the ILO to
discard Convention No. 107's assimilationist slant, for a new multilateral treaty,
Convention No. 169 of 1989, which was subsequently ratified and now binding on
several states in the Americas. The most unequivocal support for the communal right to
property can be found in ILO Convention No. 169, which requires participating states to
guarantee indigenous peoples' rights of ownership and possession of their traditional
lands. Furthermore, it provides special protections for indigenous groups and their
relationship to the land that they live on or use.
The American Convention on Human Rights, another multilateral treaty, establishes
both the procedures and substantive rights that govern the adjudication of complaints by
the Inter-American Commission and Inter-American Court in relation to state parties to
the Convention. OAS member states that are not parties to the Convention follow
substantive and procedural rules set out in the American Declaration on the Rights and
Duties of Man, which articulates general human rights obligations of member states
under the OAS Charter, a multilateral treaty with the force of law. Procedurally, the
Inter-American system is unique because complainants do not have direct access to the
Inter-American Court of Human Rights. Complaints are first submitted to the InterAmerican Commission on Human Rights, who may recommend the case to the InterAmerican Court of Human Rights if the case is not resolved in a reasonable time after
the issuance of the Commission's report. The Court then has discretion as to whether
accept or reject the case.
Neither the American Convention, nor the America Declaration specifically mentions
indigenous peoples, however, both include general human rights provisions upholding
the rights to property, physical well being, and cultural integrity. Therefore, both
documents affirm rights of indigenous peoples to lands and natural resources on the
basis of traditional patterns of use and occupancy. Additionally, the Inter-American
Commission has frequently interpreted obligations of states under the American

Convention and the American Declaration by reference to obligations arising from other
international instruments. The Commission has cited to Article 29 of the American
Convention as a basis for this approach.
Article 21 of the American Convention on Human Rights protects indigenous land and
resource tenure by providing that: Everyone has the right to the use and enjoyment of
his property. This language is mirrored in the American Declaration which recognizes
the right of all persons to own such private property as meets the essential needs of
decent living and helps to maintain the dignity of the individual and the home. Both of
these instruments must be understood to favor property regimes that derive from
indigenous peoples' own customary or traditional systems of land tenure over property
regimes recognized by official state enactments. This interpretation has also been
supported by the Inter-American Commission in its Proposed American Declaration on
the Rights of Indigenous Peoples.
Many of the indigenous tribes in the Americas lost their land during colonial times, either
through the terra nullius doctrine or through the adoption of civil codes that failed to
recognize their land tenure systems. Since the abandonment of terra nullius as a legal
basis for the dispossession of indigenous lands, there has been an increased
recognition of their rights to their lands as a matter of international law. Indigenous
peoples in the Americas have pursued actions for encroachments upon their traditional
lands and resources via the Inter-American Commission on Human Rights and InterAmerican Court of Human Rights. Jurisprudence from within the Inter-American
Regional Human Rights System has re-conceptualized the right to property as applied
to indigenous peoples. An analysis of two landmark cases from the Inter-American
Regional System will provide insight as to how indigenous groups have successfully
identified human rights precepts as a legal basis to assert their right to property. The
first case, brought before the Inter-American Court of Human Rights, illustrates how
communal possession of traditional lands became the basis for asserting an indigenous
right to property despite the state's failure to recognize such land tenure systems. The
second case, which was decided by the Inter-American Commission, serves to
establish that although not signed or ratified by the United States, the government was

still bound to comply with fundamental human rights principles set forth in the American
Declaration, as well as ILO Convention No. 169.
Mayagna (Sumo) Awas Tingni Community V. Nicaragua
The Awas Tingni is one of various Mayagna, or Sumo, indigenous communities found
along the Atlantic Coast of Nicaragua. The indigenous group filed a complaint with InterAmerican Commission against the government of Nicaragua on June 4, 1998 for
granting a logging concession on their claimed land without their consultation. The
problem first arose in December of 1993, when the Nicaraguan government, through its
Ministry of Environment and Natural Resources (MARENA), granted a concession to
the Dominican-owned company Maderas y Derivados de Nicaragua, S.A. (MADENSA),
for logging on about 43,000 hectares of land made up of mostly Awas Tingni ancestral
land. Pressured by international environmental organizations like the World Wildlife
Fund (WWF), the government agreed to suspend the concession until an agreement
could be reached with the Awas Tingni Community.
Assisted by the WWF, the University of Iowa College of law, and a forestry expert, the
Community compiled data in the form of maps and ethnographic studies to support its
claim to traditional lands. The data gathered was to be the basis of negotiations with the
government to grant land titles or other official recognition of Awas Tingni lands.
Negotiations between the parties, however, proved illusory when the government
granted a second logging concession to a Korean-owned firm for 63,000 hectares of
land adjacent to the MADENSA management area. The Awas Tingni filed for
emergency relief within the Nicaraguan judicial system, citing violations of domestic law
that affirm in general terms the rights of indigenous communities over their traditional
communal lands. When these efforts failed, the Awas Tingni petitioned the OAS InterAmerican Commission on Human Rights under the complaint procedure outlined in the
American Convention, to which Nicaragua is a party.
The Commission concluded that Nicaragua's concession had violated articles 1
(Obligation to Respect Rights), 2 (Domestic Legal Effects), 21 (Rights to Property), and

25 (Right to Judicial Protection) of the American Convention on Human Rights. The

Commission gave Nicaragua two months to report on their recommendations, invalidate
and renounce the logging concession on disputed lands, and take immediate action to
identify, title, and demarcate the traditional lands of the Awas Tingni.
Three months later, after Nicaragua failed to comply, the Commission transferred the
case to the Inter-American Court for an adversarial hearing on the matter. The Court
noted that although Nicaraguan law afforded protections of the right to communal
property of indigenous groups like the Awas Tingni, it did not satisfy its obligations as a
signatory to the American Convention on Human Rights because they had not
implemented effective processes to protect the rights that the domestic law supposedly
granted. The Court also established that the concept of property as articulated in the
American Convention includes the communal property of indigenous peoples as defined
by their customary land tenure, despite any incongruence with domestic law. Echoing
the Commission's view, the Court stated that possession of the land should suffice for
indigenous communities lacking real title to property of the land to obtain official
recognition of the property.
The Court admittedly employed an evolutionary method of interpretation in reaching its
conclusion, accounting for international normative developments within and outside of
the Inter-American system. The Court's opinion became the first legally binding decision
by an international tribunal to uphold the collective land and resource rights of
indigenous peoples when the state had failed to do so, as part of its obligations under
the American Convention. This strengthened a contemporary trend in international law
to empower indigenous peoples in their demand for self-determination and recognition
of territorial rights.
The Dann Case
Mary and Carrie Dann first petitioned the Inter-American Commission on Human Rights
in 1993, trying to secure rights to aboriginal property in the United States (U.S.). The
petition alleged that the U.S. government had violated articles II (right to equality before

the law), III (right to religious freedom and worship), VI (right to a family and protection
thereof), XIV (right to work and fair remuneration), XVIII (right to a fair trial), and XXIII
(right to property) of the American Declaration of the Rights and Duties of Man. These
violations, the Danns asserted, occurred when the U.S. threatened to remove them and
their livestock from land they claimed was a traditionally occupied territory of the
Shoshone tribe. The sisters also maintained that the U.S. had granted or allowed gold
mining activities on ancestral Shoshone lands. The United States contended that any
Shoshone land rights were extinguished in the late 1800s when non-indigenous settlers
began encroaching on the land, and in the alternative, the government had already paid
the Shoshone just compensation for the loss of their land.
In their petition, the Dann sisters claimed that they and other tribe members had valid
claims to ancestral lands through traditional patterns of use and occupancy of those
lands and its natural resources, or a customary land tenure system, which is
recognized under U.S. law. The Danns also asserted that irrespective of domestic law,
notions of nondiscrimination coupled with the right to property espoused in article XXIII
of the American Declaration, indicated that customary land tenure systems should
receive legal recognition.
The United States responded by specifically rejecting the claim of a violation of article
XXIII (right to property) on the basis that it protected only individual property rights, and
not those of whole groups. The government also argued that the Proposed American
Declaration on the Rights of Indigenous People and ILO Convention No. 169 do not
form an appropriate bases for petitioning the Inter-American Commission since the U.S.
had not signed or ratified either document. Additionally, it was also claimed that
ownership of the land in question had been part of a lengthy administrative process, and
that after treating much of the territory as federal land, the Shoshone title was effectively
extinguished and justly compensated by the government.
In its analysis, the Commission noted that the American Declaration should be
interpreted in light of cases and developments in international human rights law since
the Declaration was written; including the American Convention on Human Rights,

which it held to be an authoritative expression of the fundamental principles set forth in

the American Declaration. While it did commend the U.S. for establishing an
administrative procedure for dealing with indigenous claims to land, the Commission
ultimately concluded that the process had failed to live up to contemporary international
law protections of the rights of indigenous peoples to their lands. Furthermore, the
Commission found that the process did not afford the Danns an opportunity to
participate, failed to offer the same protections given to others in a takings case, and
failed to argue fairly on the merits where and when indigenous land rights had been
extinguished. Based on the foregoing analysis, the Commission concluded that the U.S.
had violated articles II, XVIII, and XXIII of the American Declaration of the Rights and
Duties of Man in its failure to equally protect the property rights of the Dann sisters.
Though largely disregarded, the Commission issued recommendations that the U.S.
review its laws, procedures, practices, and adopt necessary legislation to ensure
respect for the property rights of indigenous peoples, including the Danns, established
in the American Declaration.
Cases decided in the Inter-American human rights system have illustrated an affirmative
duty on governments to recognize a communal right to property based on traditional
indigenous land tenure systems. Furthermore, these cases articulate that today's
customary international law now features an independent international basis for the
human right to communal property, requiring that all states be bound to fundamental
human rights principles, like those espoused in the American Declaration and ILO
Convention No. 169.
Communal Property Rights Of Afro-Latinos In The Inter-American Regional
Human Rights System
Indigenous political mobilization has contributed to the creation and strengthening of a
number of key international norms embodied in legal frameworks, conventions, and
policies to protect their interests. While much work is still needed to ensure that these
rights are actually recognized within domestic systems of the Inter-American region, the

indigenous rights movement has provided other groups with leverage and credibility in
their assertion of a communal right to property.
Recognition Of The Afro-Descendent Right To Property In Latin America
The Afro-Latino movement has occurred in large part due to black political mobilization
combating racism from below, in conjunction with constitutional reforms and support
from international institutions' norms on indigenous rights. Like indigenous groups, the
central assertion of Afro-Latinos is that of a separate cultural identity from the dominant
population, in addition to secured traditional land tenure systems. Since democratization
swept through Latin America in the 1980s, Afro-Latino communities have mobilized for
state recognition and titling of land that they have traditionally occupied. A subset of the
broader land reform movement that occurred throughout Latin America in the mid
nineteenth century, Afro-Latino land rights have been met with limited recognition. Many
Latin American nations have ratified ILO Convention No. 169, requiring them to pass
laws granting indigenous peoples the right to bilingual education, involvement of
relevant policies, access, ownership, and use of resources, and traditional territories.
The rights outlined in ILO Convention No. 169 apply to indigenous and tribal peoples,
encompassing ethnic minorities such as Afro-descendants in Latin America.
However, not all rural black communities may have collective land rights. Afro-Latino
claims are based on appeals to a distinct territorially, culturally, and historically derived
ethnicity that has a long standing relationship to a particular area dating from either
before the founding of the Latin American state, or predating the presence of other
groups. This criterion, together with unique cultural practices, confers indigenous-like
status upon these groups.
Afro-descendants, like indigenous groups, have also been working with nongovernmental organizations (NGOs) and grassroots support organizations to develop
their collective title claims, especially where their lands have been threatened
environmentally and culturally by development projects. Anthropologists, NGOs, and
multilateral development banks have helped the Afro-descendants movement, in some

cases by carrying out ethnographies and mapping projects that serve as the basis for
the legal recognition of communal property rights. The Afro-Latino ethnic positioning,
and evolving norms and objectives of international law have combined to produce
constitutional reforms granting communal or collective titles to different rural black
communities throughout Latin America.
The Garifuna Movement In Honduras
The Honduran government first recognized the rights of the Garifuna in 1982 with the
passage of Article 346 of the Constitution, which protected the rights and interests of
indigenous communities, especially in terms of the land where they reside. The
constitutional provision did little to protect the Garifuna in practice and mobilization
continued through 1994, when the government ratified ILO Convention No. 169 and
created a special agency to address the country's ethnic groups.
Two grassroots support organizations, ODECO and OFRANEH, have been instrumental
in pressing the Honduran government to grant land titles to Garifuna communities since
the late 1990s. In 1996, the organizations united under an umbrella group,
Coordinadora Nacional de Organizaciones Negras de Honduras (CNONH), to form a
coalition of more than five thousand people for the First Grand Peaceful March of the
Black People of Honduras on October 11 of that year. Between 1997 and 2002, some
Garifuna communities finally had limited success in receiving titles from the
government, or titulos de dominio pleno. However, in most cases, titles applied only to
the casco urbano, or the area where Garifuna buildings were located, and not the areas
historically used by the community for hunting, fishing, and other traditional activities.
Although the titles that were given created enforceable rights, land conflicts and issues
of occupation by outsiders remained and are ongoing today.
Garifuna Cmty. Of Triunfo De La Cruz V. Honduras And Garifuna Cmty. Of Cayos
Cochinos & Members V. Honduras
Represented by OFRANEH, the Garifuna Communities of Cayos Cochinos and Triunfo
de la Cruz lodged a complaint with the Inter-American Commission against the

Honduran government in late 2003. Although the Commission later separated the
complaint into two petitions, one for each community, their claims remain largely the
same.Like the Awas Tingni, OFRANEH alleged that the government was in violation of
Articles 1 (Obligation to Respect Rights), 2 (Domestic Legal Effects), 21 (Rights to
Property), and 25 (Right to Judicial Protection) of the American Convention on Human
Rights, and ILO Convention No. 169. The Garifuna communities stated that despite
domestic recognition of their traditional areas, possession of the lands had not remained
undisturbed because of subsequent action by public officials and third parties.
In the case of Triunfo de la Cruz, property deeds had been given by the National
Agrarian Institute (INA) granting the Garifuna full ownership of over 500 hectares of
traditionally occupied lands. Despite these property titles, the community's lands have
been encroached by the surrounding municipality of Tela. In 1989 the municipality
requested, and was granted, an expansion of it urban limits by the INA, who had
neglected to advise the Garifuna even though their lands would be affected. In addition,
the petition claims that the municipality bought parcels of land from community
members that were not authorized to sell, and later transferred the land to a tourism
project, Inversiones y Desarollo El Triunfo S.A (IDETRISA). IDETRISA built houses
within the Garifuna territory, fenced in the area, and has prevented community members
from occupying that parcel of land which had been used for farming and other modes of
subsistence.
Like the Garifuna of Triunfo de la Cruz, the community of Cayos Cochinos is also
dependent on the lands its members have traditionally occupied, and has also been
displaced by the Honduran government. Their petition claims that the Cayos Cochinos
community land rights were first violated in 1993 when a Swiss investor purchased
surrounding cays, and Presidential Agreement 1928/93 was adopted declaring Garifuna
land a Natural Protected Area by the President. As a result of subsequent
environmental protection regulations, the community was prohibited from fishing with
bait and collecting crustaceans from surrounding waters, which had been a basic
source of income and sustenance for the area's Garifuna population.

Additionally, in 2003 Cayos Cochinos was declared a Natural Maritime Monument by

Presidential Decree 114/2003, which also established a Management Plan that
described the presence of Garifuna communities as harmful to the area because of their
exercise of property rights and day-to-day subsistence activities. The Garifuna alleged
in their petition, however, that the environmental programs established were preceded
by environmental impact studies that they viewed as deficient and harmful, and led to
the introduction of non-native species to the area, altering the ecological balance of the
cays. Finally, the Garifuna of Cayos Cochinos claimed that they were never consulted
before, after, or during the establishment of the protected environmental area, there had
been no facilitation or promotion of environmental sustainability education among their
communities, and that the plan had been imposed without taking into account Garifuna
presence. The environmental protection plan, they felt, failed to improve the conditions
of the cay and surrounding areas; instead the Garifuna are now restricted in their right
to enjoy a decent standard of living, particularly as regards their food, clothing, housing,
and security.
Although the Honduran government argued that the Garifuna petition was inadmissible
for failure to exhaust domestic remedies, both petitions were deemed admissible by the
Inter-American Commission; however, neither case has been decided on its merits.
Regarding the claims made against Honduras for violating ILO Convention No. 169, the
Commission noted that though it lacked jurisdiction over the issue, it may and must use
it as a guideline for the complementary interpretation of obligations under the
Convention. As a signatory to the American Convention, the Honduran government will
not only be bound to that instrument, but also the human rights principles set out in ILO
Convention No. 169.
Under these parameters, it is likely that the Commission will rule in favor of the
Garifuna, finding that the Honduran government has violated provisions of the American
Convention. Citing the same Article violations as in the Awas Tingni case, the
Commission will likely find that the Honduran system for granting communal title still
fails to satisfy its obligations under the American Convention, and that the Garifunas'
own land tenure systems should supersede any conflicting domestic regulations.

Additionally, any plans for environmental protection and conservation projects should be
redesigned to account for Garifuna presence and activities of subsistence, which is a
vital component of their unique culture.
Quilombo Of Brazil
Various social movements swept through Brazil into the mid 1970s, including those of
indigenous and Afro-Brazilian groups. It was not until the 1980's Unified Black
Movement that quilombos entered the public discussion. As urban-based Afro-Brazilian
activists adopted a radical stance based on challenging racial inequality, the Brazilian
government planned for large public infrastructure projects to be built on quilombo
lands. Afro-Brazilian and indigenous groups relied on Article 68 of the 1988
Constitution, which gave official recognition of collective land rights, to garner media
attention and further secure their lands. Despite the provision's implementation
occurring almost a decade before, the first collective titling process did not begin until
1995.
There was limited quilombo-related legislation until 2003 when President Luiz Lula
Inacio da Silva signed Decree 4.887, a measure regulating the process for identification,
recognition, delimiting, demarcation, and titling of lands occupied by descendants of
escaped slaves. Quilombo land rights suffered a setback, however, in December 2007
with public dissemination of Instruco Normative Incra 20/2005, which activists argue
may nullify their constitutional protections.
Communities In Alcntara V. Brazil
In 2001, quilombo communities located in Alcntara submitted a petition accusing the
Brazilian government of human rights violations pursuant to the American Convention
on Human Rights and American Declaration if the Rights and Duties of Man. The
petitioners alleged violations of Articles 1 (right to protection under the Convention), 8
(right to a fair trial), 16 (right to freedom of association), 17 (rights of the family), 21
(right to property), 22 (right to freedom of movement and residence), 25 (right to judicial
protection), and 26 (right to protection of economic, social and cultural rights).

Additionally, for events that occurred before Brazil become a signatory to the
Convention in 1992, the petitioners alleged violations of the American Declaration under
Articles VI (right to family and protection thereof), VIII (right to residence and
movement), XII (right to education), XIII (right to the benefits of culture), XIV (right to
work and fair remuneration), XVII (right to recognition of juridical personality and civil
rights), XXII (right of association), and XXIII (right to property).
According to the petition, notwithstanding domestic legislative recognition of an
indigenous right to land, only 3 of the more than 1000 quilombo communities in Brazil
have received registered titles to land. Furthermore, many quilombo communities have
been displaced from their traditionally occupied lands due to the establishment of the
Alcntara Launch Center (CLA) in 1983. Although the CLA was originally created to
conduct and support the launch and tracking of aerospace operations, the government
has now morphed the project into a commercial venture. Since lands acquired for the
Alcntara Launch Center were originally deemed by the government to be for public
use or interest, Afro-descendent communities have been precluded from contesting
dispossession in Brazilian courts, pursuant to Decree No. 3.365/41.
Even though the Brazilian government rejected the claims made by the communities of
Alcntara because they had failed to exhaust domestic remedies, the Commission
concluded that because domestic law did not afford due process to challenge merits of
expropriation of lands, and quilombo titles had not been registered in a timely fashion,
the petition was therefore admissible. The Commission further stated that as a Member
State of the OAS Brazil was subject to the Commission's jurisdiction, which entails
examining communications alleging violations of the American Declaration. In addition,
because Brazil became a signatory to the American Convention in 1992, it is therefore
internationally accountable for violations of it.
The Commission has only ruled that the quilombo petition is admissible, and has yet to
decide on the merits of the case. Similar to the Dann case, the quilombo petition deals
with due process violations of land expropriations. The Commission will likely rule, as it
did in that case, that the Brazilian procedure for dealing with indigenous claims to land

falls short of the standards established in contemporary international law since most
Brazilian Afro-descendent communities still do not enjoy communal land rights. Finally,
the Commission should also find that Decree No. 3.365/41 does not afford quilombos
an opportunity to participate in a takings case, and fails to offer them any protection if
property is expropriated for alleged public use.