Romy Castillo Villar
Derecho, Ambiente y Recursos Naturales (DAR)
Latin America and the Caribbean present a context where governments have been rapidly promoting infrastructure and extractive activities. In turn, these are part of a system that extends historical pressures on indigenous peoples’ territories. Faced with this, indigenous peoples have made advocacy for recognizing their rights at the local and international levels through various processes of decolonial, anti-systemic, and anti-hegemonic defenses for the respect of their autonomy and self-determination. However, these struggles persist.
During the last two decades, questions regarding impunity surrounding corporate scenario have gained greater force. Although companies have consolidated themselves as subjects of rights and prerogatives at the international level, they continue to have minimum obligations regarding human rights and the environment (Humberto Cantú, 2017, p.38)[1]. However, it is essential to highlight the existence of some initiatives aimed at committing to respect human rights to analyze whether they honestly respond to this approach.
Among these various initiatives carried out by international organizations, such as multilateral development banks, those carrying out modifications of their safeguards at the international level stand out. One of these is the Inter-American Development Bank (IDB), which in mid-December 2019 began a participatory process that involved updating its environmental and social policies to “ensure the achievement of results in the operations of the bank on environmental and social sustainability”[2]. In July, this year, it began the second consultation process. Although it has tried to position its commitment to human rights, the second draft of its Environmental and Social Policy Framework (MPAS) presents inconsistencies with international standards on indigenous peoples’ rights.
In the environmental and social performance standard No. 7 on indigenous peoples, the IDB tries to present us with a regulation to fulfill its objectives to ensure that the development process fosters full respect for indigenous peoples’ human rights. However, the proposed goals are not met, and, in many cases, their collective rights such as consultation and free, prior and informed consent, among others, are not fully guaranteed. Next, are some detailed examples of what has been pronounced.
First, it’s evident that the IDB safeguards proposal does not have explicit content on its human rights commitments because it uses ambiguous terms and vague phrases, such as “whenever possible”, “the borrower will consider”, “The borrower will undertake”, among others. As an example, regarding the relocation of indigenous peoples from their lands and natural resources subject to the traditional property regime or under customary use, the IDB indicates that “the borrower will consider feasible alternative designs of the project to avoid their relocation and others” […][3]. Likewise, the clauses that regulate indigenous peoples’ treatment in isolation and initial contact do not guarantee the principle of “no contact” or their territories’ intangibility, as they are interpreted as optional.
Second, the IDB stipulates its identification criteria for indigenous peoples, which presents a restrictive approach and is not by international standards on the matter. Although at the bottom of the page it cites instruments such as ILO Convention 169, it distorts the self-identification standard. It refers to the absence of a definition on indigenous peoples in the international framework to justify States or Institutions establishing their meanings, as in this case.
Finally, the safeguards proposal hasn’t included the consent consequences to grant indigenous peoples to any project. This indigenous right is of the most important since it responds to one of the central collective demands of indigenous peoples and derives from their right to self-determination. Furthermore, there are no measures focused on fulfilling the borrowers’ obligations about the significant recognition of indigenous peoples’ territorial rights through their land registry, registration, and titling. It should be noted that it does not consider a differentiated treatment, with gender and intersectional approach, for indigenous women’s cases.
In this sense, we call on the IDB to adapt its MPAS to international human rights standards. This adaptation is vital, mainly in the current COVID-19 context, because the pandemic has aggravated the situation of vulnerability in which certain groups or collectives, such as indigenous peoples, found themselves already.
Conclusions and recommendations
The second draft of the IDB MPAS lacks effective mechanisms to identify and address situations of human rights violations in the case of indigenous peoples. Instead, these are quasi-regulatory and generate the reproduction and legitimation of historic abuses. To that extent, we call for attention and reject any approach that distorts the human rights framework.
This trend raises the urgent need to confront these dispossession structures and reinforce the support for the defenses carried out by the indigenous peoples themselves. In this regard, we recommend that the IDB expressly and effectively incorporate the standards recognized in international instruments to protect indigenous peoples within the framework of a regulation that presents compulsory and, above all, clear measures. Among them, the recognition of indigenous peoples’ right to free, prior, and informed consultation and their right to grant or deny their free, prior, and informed consent.
Finally, the IDB must incorporate a gender and intersectional approach that allows acknowledging differentiated impacts on indigenous women’s cases. With this on the table, a more respectful framework could be evidenced and following the human rights commitments pronounced, even in a declarative way, in its second draft.
[1] Cantú Rivera, Humberto, (2017). The challenges of globalization: reflections on corporate responsibility for human rights. Human Rights and Business: Considerations from Latin America. San José de Costa Rica: Inter-American Institute of Human Rights.
[2] Inter-American Development Bank. Modernization of Environmental and Social Policies IDB.
[3] Ibid, 9.93.