REPORT
Nº 78/00 I.
SUMMARY
1.
This Report concerns a petition presented to the Inter-American
Commission on Human Rights (hereinafter “the Commission”), by
attorneys Deborah Schaaf, Steven Tullberg, and S. James Anaya of the
Indian Law Resource Center, (hereinafter referred to as “attorneys of
record in the case”)[1]
by letter dated August 7, 1998 against the State of Belize (hereinafter
referred to as “the State” or “Belize”) for alleged violation of
Articles of the American Declaration of the Rights and Duties of Man
(hereinafter referred to as “the Declaration”), on behalf of the
Toledo Maya Cultural Council of Belize (hereinafter referred to as the
“petitioner”). 2.
The petitioner is a non-governmental organization which represents
the Mopan and Ke’ekchi Maya people of the Toledo District of Southern
Belize (hereinafter referred to as “the victims”), which include
people who live in or are otherwise members of the following villages:
Medina Bank, Golden Stream, Indian Creek, Silver Creek, San Miguel, San
Pedro Columbia, Crique Jute, San Antonio, Na Luum, Caj, San Jose, Santa
Elena, San Vicente, Jalacte, Pueblo Viejo, Aguacate, San Benito Poite, San
Pablo, Otoxha, Doleres, Corazon, Hicatee, Crique Sarco, Sunday Wood,
Conejo, San Lucas, Mabil Ha, Santa Teresa, Jordan, Blue Creek, Laguna, San
Marcos, Santa Anna, San Felipe, Boom Creek, Midway, San Marcos, and Big
Falls. 3.
The petitioner claims that the State has violated the Rights of the
Toledo Maya indigenous communities in relation to their lands and natural
resources. The petitioner
contends that the State granted numerous concessions for logging and oil
development to developers on a total of over half a million acres of land
that are traditionally used and occupied by the Maya communities in the
Toledo District. The
petitioner alleges that these concessions are causing, and are threatening
to cause further environmental harm to the Maya communities. The petitioner reports that the State has refused to
recognize the rights of the Maya people in connection with their
traditional lands and to participate in decision making concerning the
same. 4.
The petitioner alleges that the State’s actions constitute
violations of the victims’ rights guaranteed in Articles of the American
Declaration, namely, the right to life (Article I), the right to equality
before the law (Article II) the right to religious freedom and worship
(Article III), the right to a family and protection thereof (Article VI),
the right to the preservation of health and to well-being (Article XI),
the right to judicial protection, (Article XVIII), the right to vote and
to participate in government (Article XX), and the right to property
(Article XXIII). 5.
The petitioner states that a lawsuit was filed on December 3, 1996,
over three and a half years in the Supreme Court of Belize to stop the
logging and to gain judicial affirmation of Maya land and resource rights.
The petitioner maintains that the lawsuit has not produced any
results because of the Court’s failure to render any substantive
decision in the case. The
petitioner indicates that it is seeking the Commission’s assistance in
reversing the acts and omissions of Belize that violate the human rights
of the victims and in safeguarding those rights in the future. In this
regard the petitioner requests that the Commission call upon Belize to
adopt precautionary measures and suspend the logging and oil concessions
in order to avoid irreparable harm to the victims. 6.
The petitioner requests that the Commission find the petition
admissible and find that the State violated the human rights of the Maya
people and communities guaranteed under the American Declaration.
The petitioner also requests that the Commission should recommend
that the State: 1) suspend all future and current concessions in the
Toledo District until a suitable arrangement is negotiated between the
State and the indigenous communities concerned; 2) engage in dialogue with
the Maya communities; 3) establish a legal mechanism under domestic law
recognizing Maya customary land tenure and resource use; 4) implement a
plan with the affected communities to reduce environmental harm caused by
logging and oil development activities; 5) pay moral and pecuniary damages
incurred by the Maya communities as a result of the concessions and all
costs incurred by the communities and petitioner in defending the
communities’ rights; and 6) provide any other relief that the Commission
considers appropriate and just. 7.
To date, the State has not responded to any of the Commission’s
communications nor has it provided the Commission with information
concerning the issues on the admissibility and merits of the petition. 8.
In this Report, the Commission concludes that the petition is
admissible pursuant to Articles 37 and 38 of the Commission’s
Regulations.
II.
PROCEEDINGS BEFORE THE COMMISSION 9.
On September 24, 1998 pursuant to Article 34 of its Regulations,
the Commission forwarded the pertinent parts of the petition to the State
and requested its observations with regard to the exhaustion of domestic
remedies and the claims raised in the petition, within 90 days. 10.
In a Memorandum to the Commission dated November 18, 1998, the
State requested that the Commission monitor and facilitate a negotiation
process in connection with the case, within the framework of its friendly
settlement procedure. By letter dated November 18, 1998, the petitioner made the
same request to the Commission. On
November 25, 1998, the Commission received a copy of the “Memorandum of
Understanding” reached between the parties. In summary, the
“Memorandum of Understanding explained the negotiation procedure which
addressed the matters set forth in the petition submitted to the
Commission, and the petitioner’s Application for Constitutional redress
in the Supreme Court of Belize. The
Memorandum of Understanding also suspended the State’s original deadline
of December 23, 1998, to reply to the petition. 11.
In addition, the Memorandum of Understanding provided that both the
petitioner and the State would enter into a joint Motion to suspend
consideration of the merits of their Application for Constitutional Relief
in the Supreme Court of Belize while negotiations were proceeding.
The Memorandum of Understanding indicated that the State and the
petitioner would endeavor to hold an initial meeting within the friendly
settlement procedure with a representative of the Commission at its
headquarters in Washington, D.C., no later than December 20, 1998, and
that negotiations would proceed in appropriate venues in Belize, unless
exceptional circumstances dictate otherwise.
Paragraph seven of the Memorandum of Understanding stated that
“the foregoing terms are without prejudice” to the petitioner’s
right to continue efforts to secure interim emergency relief from the
Supreme Court of Belize, or interim precautionary measures from the
Commission, if circumstances so require. 12.
On February 16, 1999, the parties attended a meeting at the
Commission to initiate the friendly settlement procedure and to establish
the “Terms of Negotiation” of the same.
On May 4, 1999, the petitioner wrote to the Commission expressing
its concern regarding the State’s failure to engage in a meaningful
dialogue towards a just resolution of the victims’ grievances, and to
meet its obligations under the terms of the negotiation and friendly
settlement process. Appended to the petitioner’s letter to the
Commission of May 4, 1999, was a copy of the petitioner’s letter of the
same date addressed to the State expressing their concerns about the same
issues raised before the Commission.
On May 14, 1999, the Commission forwarded the pertinent parts of
the petitioner’s correspondence to the State and requested that the
State take whatever measures are deemed necessary so that the Commission
could receive all the information relevant to the case, within 30 days. 13.
On July 20, 1999, the petitioner informed the Commission that the
petitioner and the State were prepared to resume friendly settlement
negotiations. By letter dated
August 24, 1999, the petitioner informed the Commission inter
alia that the Government had failed to establish the conditions the
petitioner believed to be necessary in order for the friendly settlement
talks to proceed in a fruitful manner.
The petitioner also stated in its letter of August 24, 2000, that
it remained committed to renewing discussions with the State aimed at
resolving the issues presented in this important case, and looked forward
to the hearing at the Commission’s next period of Sessions.
On September 2, 1999, the Commission informed both the petitioner
and the State that a hearing had been scheduled in the case before the
Commission on October 4, 1999, at its 104th period of Sessions. 14.
On October 4, 1999, a hearing was held before the Commission. Both
the State and the petitioner attended the hearing together with their
representatives.[2]
At the hearing the petitioner and its attorneys of record presented
arguments to the Commission on the issue of exhaustion of domestic
remedies, the merits of the case, the futility of continuing with the
friendly settlement procedure, and the conditions under which the
petitioner was willing to continue with the friendly settlement process.
The Commission granted the parties fifteen days from October 8,
1999, to agree to the terms under which the friendly settlement process
would continue. 15.
On October 7, 1999, the petitioner wrote to the Commission and in
summary informed it that continuing with the friendly settlement procedure
with the State would be futile, and that the petitioner wished to
terminate the friendly settlement procedure.
The petitioner also requested that the Commission continue with its
consideration of the petition in accordance with the Commission’s
Statute and Regulations, unless the State acceded to certain conditions.
In addition, in its letter of October 7, 1999, the petitioner asked the
following questions directed to the State, and requested that the
Commission forward the pertinent parts of its letter to the State: 1.
Will the Government of Belize immediately alter its course of
action in regard to development activities on Maya traditional lands? 2.
Will the Government of Belize immediately suspend any initiatives,
including legislative initiatives that affect Maya communities on Maya
traditional lands? 3.
Does the Government of Belize recognize that the Maya have rights
to lands and natural resources in Southern Belize based on their
traditional use and occupancy of those lands? 16.
On October 8, 1999, the Commission forwarded the pertinent parts of
the petitioner’s correspondence of October 7, 1999, to the State, and
requested that the State take whatever measures are deemed necessary so
that the Commission may receive all of the information relevant to the
case within 15 days. On
October 22, 1999, the State wrote to the Commission and requested an
additional 14 days to submit its reply to the Commission’s
correspondence of October 8, 1999, and a “follow-up meeting.” On
October 27, 1999, the Commission granted the State an extension of 15 days
commencing October 27, 1999, in which to submit its reply to the
Commission’s communication of October 8, 1999. 17.
By letter dated October 26, 1999, the petitioner in summary,
requested that the Commission immediately terminate the friendly
settlement process, and immediately examine the evidence and prepare a
report stating the facts and conclusions regarding the case pursuant to
its Regulations. In addition,
the petitioners requested that the Commission issue precautionary measures
pursuant to Article 29 of its Regulations against the State to avoid
irreparable harm to the Maya communities and their members.
The petitioner argued that these measures were necessary in order
to minimize the immediate, grave, and irreparable harm that is occurring
and will worsen if Belize does not alter its present course of action and
neglect. 18.
The Commission forwarded the pertinent parts of the petitioner’s
request to the State on October 28, 1999, and requested that the State
provide the Commission with information in respect of the petition within
10 days of the same date. 19.
By letter dated November 8th 1999, the State responded
to the petitioner’s letter of October 7, 1999,[3]
and stated the following: 1.
The government is prepared to commit to negotiating with the
petitioner’s immediate interim measures that would address Maya concerns
and change the terms under which the government permits activities. 2.
The government would not be able to immediately suspend the
proposed legislation but is prepared to fully negotiate and discuss the
provisions of the proposed legislation. 3.
The Government of Belize is entirely open to recognizing Maya
traditional land resource tenure patterns. 20.
On November 10, 1999, the Commission received the petitioner’s
response to the State’s note of November 8, 1999.
The petitioner stated that it was not entirely satisfied with the
answers of the Government of Belize to the three questions posed as
conditions for continuing the friendly settlement process.
The petitioner also stated that it was disappointed that the State
had refused to suspend its consideration of proposed legislation that
would affect Maya rights and interests in lands.
The petitioner indicated that it considered that the State’s
proposed legislation for the creation of a “Southern Development
Corporation” undermined Maya rights to lands and natural resources. 21.
The petitioner contended that the Government’s commitment to
“fully negotiate and discuss the provisions of the proposed
legislation” meant little if the consideration of the legislation by the
legislature continues during the discussions. In addition, the petitioner indicated that it was unclear
about the nature of the Government’s commitment to “recognize Maya
traditional land and resource tenure patterns.”
The petitioner stated that it noted that the Government avoided a
commitment to acknowledge any “rights” on the basis of traditional
patterns, as it had requested. 22.
Moreover, the petitioner stated that it was encouraged by the
Government’s willingness to negotiate interim measures that would
immediately address Maya concerns over the use and exploitation of lands
and natural resources. The
petitioner indicated that as an initial step towards establishing a new
framework of negotiations under the auspices of the Inter-American
Commission’s friendly settlement procedure, it proposed agreement on the
following: 1.
The parties will meet in the immediate future, at a place and time
to be determined, to discuss and attempt to reach agreement on interim
measures. At the meeting the Government of Belize will be represented by a
person or persons who is/are informed about the subject matter and who are
able to make decisions on behalf of the Government. 2.
Pending the outcome of negotiations on interim measures, the
Government of Belize will immediately suspend all logging and oil
exploration within the lands identified as “Maya traditional lands” in
the petitioner’s exhibits to its petition to the Inter-American
Commission on Human Rights. Such
suspension shall continue until the petitioner and the Government agree to
interim measures establishing conditions by which the logging and oil
development may proceed. 23.
The petitioner indicated that agreement on the foregoing would
allow the parties to establish the specific terms for a new framework of
negotiation, and would prevent the petitioner from having to continue its
request to the Inter-American Commission for precautionary measures. The
petitioner stated that it respectfully requested the State’s response to
the foregoing proposed points of agreement no later than Monday, November
22, 1999. 24.
By letter dated December 13, 1999, the petitioner wrote to the
Commission and informed the Commission that the petitioner had become
convinced in recent days that to continue the friendly settlement process
under the Commission’s auspices would not be fruitful.
The petitioner also confirmed that it wished to terminate the
friendly settlement process with the State. In addition, the petitioner
requested that the Commission proceed to find that the petition is
admissible, and upon such finding, consider the merits of the petition.
On December 16, 1999, the Commission forwarded the pertinent parts
of the petitioner’s letter of December 13, 1999, to the State and
requested that it take whatever measures that are deemed necessary so that
the Commission may receive all of the information relevant to the case
within 30 days. 25.
On August 31, 2000, the petitioner wrote to the Commission and
reiterated the claims referred to in its original petition concerning the
attempts which the petitioner has made to exhaust domestic remedies in
Belize. The petitioner inter
alia stated that the Motion which it filed in the Supreme Court of
Belize on December 3, 1996, for Constitutional redress was adjourned
indefinitely at the request of the Attorney-General’s office. In
addition, the petitioner stated that on February 25, 1999, the petitioner
and the attorneys of record in the case filed a notice in the Supreme
Court of Belize, informing the Court that it had obtained new local
counsel. However, the
petitioner maintains that the Supreme Court of Belize has not rescheduled
a hearing in the case, nor has the Court taken any decision on any aspect
of the case, which is still pending. 26.
The Commission reiterated its request for information from the
State on February 2, and June 20, 2000, and requested that it provide the
said information within 30 days of receipt of the letters.
On August 24, 2000, the Commission again reiterated its request for
information from the State and gave it a period of 15 days to respond to
the Commission’s communication. To
date, the State has not responded to the Commission’s initial
communications for information on the issue of admissibility and merits of
the petition dated September 24, 1998, May 14, 1999, February 2, June 20,
and August 24, 2000, nor has the State responded to the Commission’s
communication dated October 7, 1999, on the issue of the petitioner’s
request for precautionary measures. III.
POSITIONS OF THE PARTIES ON ADMISSIBILITY A.
Position of petitioner
a.
Historical Background 27.
The petitioner claims that people who live in Belize and are
identified as being “Maya” have for centuries formed organized
societies that inhabited a vast territory which includes the Toledo
District of Southern Belize, long before the arrival of Europeans and
colonial institutions that gave way to the modern State of Belize.
The petitioner states that among the historical and contemporary
Maya people of the Middle American region encompassing Belize, distinct
linguistic subgroups and communities have existed and evolved within a
system of interrelationships and cultural affiliations.
The petitioner reports that the contemporary Mopan and Ke’kchi
speaking people of the Toledo District are the descendants or relatives of
the Maya subgroups that inhabited the territory at least as far back as
the time of European exploration and incursions into Toledo in the
seventeenth and eighteenth centuries. 28.
The petitioner informs that each Maya village has an elected alcalde,
or village leader, who oversees community affairs in coordination with
other leadership figures and a village council.
The petitioner claims that the alcaldes
were part of the governance structures that evolved under European colonial
administrations, and that the Maya adapted the alcaldes system to their own governance practices of pre-colonial
origins. The petitioner states that the alcaldes
continue to be recognized as part of the municipal system of governance of
Belize. The petitioner
indicates that the life and continuity of the Maya communities of Toledo
are dependent upon a matrix of subsistence and cultural practices that are
carried out within the lands that the Maya have used and occupied for
centuries, which include “swidden agriculture,” hunting, fishing,
gathering, and religious uses of specific sites. 29.
The petitioner reports that concentric zones of land use surround
each of the Maya villages that are scattered throughout the inland parts
of the Toledo District, and that the village is that area where dwellings
are clustered and where villagers raise fruit and other trees and graze
livestock. The petitioner
states that the village zone typically extends up to two square
kilometers, and beyond the village zone is the main agricultural zone
where crops are planted within a rotational system, typical of forest
dwelling people throughout the hemisphere.
The petitioner informs that Maya agricultural practices are based
on traditional management techniques that have developed from a reservoir
of knowledge of the forest and its soils. 30.
The petitioner claims that the Maya employ a long-fallow rotation
system that requires extensive forested areas to remain undisturbed for
years at a time. The
petitioner explains that under the fallow-system some fertile spots are
permanently under cultivation, however, most fields are cleared only every
eight to fifteen years, cultivated with rotational crops used for grazing
purposes, and then allowed to lie fallow and regenerate until the next
clearing. The petitioner
indicates that the agricultural zone of each village can extend up to ten
kilometers from the village center. The
petitioner reports that the other zone includes large expanses of forest
lands used for hunting and gathering, and that these activities provide
additional sustenance for the Maya. The
petitioner claims that the forest products gathered for food and medicinal
purposes include numerous wild plant species, and that the Maya also rely
on the forest for building materials for their homes and other structures. 31.
The petitioner states that the many streams that meander through
each of the village zones are important to the Maya.
The petitioner indicates that the rivers and creeks are not only
employed by the Maya for fishing, but are also sources of water for
drinking, washing clothes, bathing, and as conduits for transporting
product to markets. The
petitioner claims that the Maya regard numerous sites throughout the
agricultural areas and the more remote permanently forested lands as being
“sacred.” The petitioner informs that these sacred lands include
caves, steep hills, and sink holes, which are used for ceremonial purposes
and as burial grounds. 32.
The petitioner indicates that the Maya land use patterns are
governed by a system of customary rules that form part of the social and
political organization of Maya communities, and that within this
traditional land tenure system, Maya villages hold land collectively,
while individuals and families enjoy subsidiary rights of use and
occupancy. The petitioner
maintains that earlier in this century, the British colonial
administration established “reservations” for the benefit of several
of the Maya villages. The petitioner claims that these reservations continue to
exist under the laws of Belize, but that they only include roughly half of
the Maya villages. The
petitioner informs that the customary land tenure patterns of the Maya
communities, including those of villages that were granted reservations,
extend well beyond the reservation boundaries. 33.
In addition, the petitioner maintains that the traditional land use
and occupancy of each of the Maya villages of Toledo are illustrated by
maps that are included in the Maya Atlas. The petitioner states that the illustrated village land
areas adjoin with each other and with other areas that are used in common
by two or more Maya villages and form a larger territorial unit, and that
this composite territory or traditional Maya land use and occupancy is
also illustrated in the Maya
Atlas. b.
Petitioner’s Claims 34.
The petitioner contends that since 1993, the Ministry of Natural
Resources of Belize has granted numerous oil and logging development
concessions on a total of over half a million acres of land in the Toledo
District of Southern Belize on lands traditionally used and occupied by
Maya communities in the Toledo District. The petitioner maintains that the State granted a single
logging concession for 159,018 acres of land to a Malaysian logging
company. The petitioner
claims that this single concession includes a third of the Maya villages
of the Toledo District and endangers roughly half of the Maya population
of the District. The
petitioner indicates that another Malaysian logging company began
operations in September of 1995 in the Columbia River Forest Reserve and
finished construction of one of Central America’s largest sawmills in
February of 1996, in an area used by the Maya for hunting and gathering. 35.
The petitioner claims that none of the Maya villagers agreed to any
of the logging concessions and no accommodations have been made to
consider Maya interests or rights. The petitioner claims that the logging activities are
damaging essential water supplies, threatening access to and use of Maya
sacred sites, and straining plant and wildlife population, and that some
of the concessions also allow clear-cutting for eventual “conversion”
into commercial agricultural lands. The
petitioner alleges that the State of Belize does not adequately monitor
the logging or enforce its environmental standards, intensifying the
threat of future environmental damage to the Maya people and communities. 36.
The petitioner maintains that the Ministry of Energy, Science,
Technology and Transportation of Belize has approved the application of
the AB Energy company to engage in oil exploration activities in Block 12
which covers 749,222 acres in the lowland Toledo District.
The petitioner indicates that industry practice and laws of Belize
dictate that a contract for petroleum operations guarantees oil extraction
rights, which may last up to 25 years, if commercially viable oil deposits
are located. The petitioner
claims that the State has placed a substantial portion of Maya traditional
territory in a potential position of long term oil development and
production activities without consulting the Maya people. 37.
The petitioner alleges that the State violated the rights of the
Mopan and Ke’kchi Maya people of the Toledo District, and argues that
the current logging and oil concessions are creating irreparable
environmental damage to the Maya people and their communities.
The petitioner claims that the State’s action constitutes
violations of the victims’ rights guaranteed in Articles of the American
Declaration, namely, the right to life (Article I), the right to equality
under the law (Article II) the right to religious freedom and worship
(Article III), the right to a family and protection thereof (Article VI),
the right to the preservation of health and to well-being (Article XI),
the right to judicial protection, (Article XVIII), the right to vote and
to participate in government (Article XX), and the right to property
(Article XXIII). In addition,
the petitioner contends that as member of the Organization of American
States (“OAS”) and a party to the OAS Charter, the State is legally
bound to promote the observance of human rights. c.
Petitioner’s argument on Exhaustion of Domestic Remedies 38.
According to the petitioner, the Maya people have consistently
attempted to have the government address and resolve their concerns,
administratively and judicially from 1995 to the present time but to no
avail. The petitioner claims
that on December 3, 1996, the petitioner filed a Motion for Constitutional
Redress in the Supreme Court of Belize on the grounds that Sections 3, 16,
and 17 of the Constitution of Belize “have been and are being”
violated”. The petitioner
claims that the petitioner and the victims are seeking a decision from the
Court, which would find that the logging licenses granted by the State
were in violation of Maya aboriginal property rights, thereby suspending
all licenses for resource extraction.
The petitioner maintains that on January 13, 1997, a brief
procedural hearing was held before Justice Meerabux for redress pursuant
to section 20 of the Constitution of Belize. 39.
The petitioner indicates that on January 13, 1997, Justice Meerabux
ordered that the trial should be by affidavit and that the affidavits be
filed and served within 45 days of this order. The petitioner states that
the Court’s order required that the petitioner and victims, and the
State file an affidavit of
documents within 21 days of notice and that inspection of those documents
should follow within 21 days of service of the affidavit of documents.
The petitioner claims that subsequently, the Court ordered that the
action should be tried in Belize City with a Judge as opposed to a Jury,
giving either party the option to file an application regarding the mode
of trial. The petitioner maintains that on March 17, 1997, the
petitioner and victims filed a Notice to Produce Documents requiring the
State to produce certain documents for the petitioner’s and victims’
inspection. The petitioner
claims that on April 17, 1998, the petitioner and victims filed a Summons
for an injunction hearing before Justice Meerabux in Chambers to suspend
all logging and resource extraction concessions, granted within the land
over which the petitioner and victims claim property rights.
The petitioner informs that the hearing for the injunction was
scheduled for May 19, 1998, but was adjourned indefinitely at the request
of the Attorney-General’s office. 40.
The petitioner indicates that on February 25, 1999, the petitioner
and the attorneys of record in the case filed a Notice in the Supreme
Court of Belize, informing the Court that it had obtained new local
counsel. However, the
petitioner maintains that the Supreme Court of Belize has not rescheduled
a hearing in the case, nor has the Court taken any decision on any aspect
of the case which is still pending. In addition, the petitioner contends
that it has attempted to partake in a friendly settlement aided by the
Commission, but that the State failed to make a good faith effort.
The petitioner argues that the determination of the Government of
Belize to evade responsibility for addressing the issues set forth in the
petition filed at the Inter-American Commission (and in the domestic
litigation) especially in light of the political influences on the
judiciary in Belize has convinced the TMCC that further efforts to press
the Motion for Constitutional redress would be fruitless at this time, and
that this statement was consistent with the advice of local counsel. 41.
In addition, the petitioner claims exemption from the exhaustion of
domestic remedies requirement under Regulations Article 37(2)(c) because
the lawsuit filed in the Supreme Court of Belize to stop the logging and
gain judicial affirmation of Maya land and resource rights has not
produced any results. The
petitioner argues that there has been undue delay in the case because the
Supreme Court has failed to render any substantive decision on the case,
despite the fact the case was presented to the Court over three and a half
years ago (December 3, 1996). The
petitioner contends that the petition has been submitted within a
reasonable time as provided for by Article 38(2), which refers to cases in
which the exhaustion requirement does not apply. Moreover, the petitioner
claims that the current petition or subject matter is not pending in any
other international proceeding. B.
Position of the State
42.
On September 24, 1998, pursuant to Article 34 of its Regulations,
the Commission forwarded the pertinent parts of the petition to the State
and requested its observations with regard to the exhaustion of domestic
remedies and the claims raised in the petition, within 90 days.
Both parties requested that the Commission suspend consideration of
the petition during the friendly settlement negotiations.
During the pendency of this case before the Commission, the State
communicated with the Commission with regard to the friendly settlement
negotiations. 43.
However, the Commission has not received a reply to its
communication dated October 28, 1999, to the State in which the Commission
requested that the State provide the Commission with information
concerning the petitioner’s request for precautionary measures.
Nor has the State replied to the Commission’s communication dated
December 16, 1999, in which the Commission informed the State that the
petitioner wished to terminate the friendly settlement negotiations.
The Commission also requested that the State provide it with
information it deemed relevant to the case within 30 days of receipt of
its communication, so that the Commission may continue with its processing
of the case. On February 2,
and June 20, 2000, the Commission reiterated its requests to the State to
provide it with information that it deemed relevant within 30 days of
receipt of its letters so that it could continue processing the case. On
August 24, 2000, the Commission again reiterated its requests to the State
to provide it with all relevant information in the case within 15 days of
receipt of its letter. 44.
To date, the State has not responded to any of the Commission’s
communications nor has it provided the Commission with information
concerning the issues on the admissibility and merits of the petition. IV.
ANALYSIS ON ADMISSIBILITY A.
Commission’s Competence
45.
In its petition, the petitioner alleges violations of Articles I,
II, III, VI, XI, XVIII, XX, and XXIII, of the Declaration. Article 26 of
the Commission's Regulations provides that “[a]ny person or group of
persons, or any non-governmental entity legally recognized in one or more
member states of the Organization, may submit petitions to the Commission,
in accordance with these Regulations, on one’s own behalf or on behalf
of third persons, with regard to alleged violations of a human right
recognized, as the case may be, in the American Convention on human Rights
or in the American Declaration of the Rights and Duties of Man.”
The petition in this case was lodged by the petitioner, Toledo Maya
Cultural Council of Belize on behalf of the victims, the Mopan and
Ke’ekchi Maya people of the Toledo District of Southern Belize,
nationals of the State of Belize.
46.
The Declaration became the source of legal norms for application by
the Commission[4]
upon Belize becoming a member a Member State of the Organization of
American States in 1981. In addition, the Commission has authority under
the Charter of the Organization of American States, Article 20 of the
Commission's Statute,[5]
and the Commission's Regulations to entertain the alleged violations of
the Declaration raised by the petitioner against the State, which relate
to acts or omissions that transpired after the State joined the
Organization of American States. Consequently,
the Commission has jurisdiction ratione
temporis, ratione materiae,
and ratione personae to consider
the violations of the Declaration alleged in this case. Therefore, the Commission declares that it is competent to
address the petitioner's claims relating to the alleged violations of the
Declaration. B.
Other Grounds of Admissibility
a.
Exhaustion
of Domestic Remedies 47.
This case raises two issues pertaining to the exhaustion of
domestic remedies. The first
is, whether the petitioner is excused from exhausting domestic remedies
pursuant to Article 37(2)(c) of the Commission’s Regulations. Second,
whether the State’s silence by not responding to the Commission’s
communications constitutes a waiver to object to non-exhaustion of
domestic remedies as established by the Inter-American Court’s and the
Commission’s jurisprudence. The
issue of exhaustion of domestic remedies is governed by Article 37 of the
Commission’s Regulations. Article 37(1) of the Commission’s
Regulations provides that: “For a petition to be admitted by the
Commission, the remedies under domestic jurisdiction must have been
invoked and exhausted in accordance with the general principles of
international law. Article
37(2) of the Commission’s Regulations provides that the provisions of
the preceding paragraph shall not be applicable when: (a)
The domestic legislation of the State concerned does not afford due
process of law for protection of the right or rights that have allegedly
been violated; (b)
The party alleging violation of his rights has been denied access
to the domestic law or has
been prevented from exhausting them; (c)
There has been unwarranted delay in rendering a final judgment
under the aforementioned remedies. 48.
Article 37(3) of the Commission’s Regulations provides that:
“When the petitioner contends that he is unable to prove exhaustion as
indicated in this Article, it shall be up to the government against which
this petition has been lodged to demonstrate to the Commission that the
remedies under domestic law have not previously been exhausted, unless it
is clearly evident from the background information contained in the
petition.” 49.
The State is not a party to the American Convention, however, for
purposes of analysis, the Commission refers to the Inter-American Court of
Human Rights Advisory Opinion OC-11/90 on the issue of exhaustion of
domestic remedies, in which the Court in construing Article 46(1)(a) and
46(2) of the American Convention[6]
which provisions are similar to Article 37(1) and 37(2) of the
Commission’s Regulations stated the following waiver of domestic
remedies rule: Under
Article 46(1) of the Convention and in accordance with general principles
of international law, it is for the state asserting non-exhaustion of
domestic remedies to prove that such remedies in fact exist and that they
have not been exhausted (Velásquez Rodríquez Case, Preliminary
Objections, supra 39, para. 88; Fairén Garbi and Solís Corrales Case,
Preliminary Objections, supra 39, para. 87, and Godínez Cruz Case,
Preliminary Objections, supra 39, para. 90.) [7] 50. The
Inter-American Court of Human Rights in the Case of Godínez Cruz Case
opined the following on the issue of exhaustion of domestic remedies: Generally
recognized principles of international law indicate, first, that this is a
rule that may be waived, either expressly or by implication, by the state
having the right to invoke it, as this Court has already recognized (see
Viviana Gallardo et al. Judgment
of November 13, 1981, no. G 101/81. Series A, para. 26).
Second, the objection asserting the non-exhaustion of domestic
remedies, to be timely, must be made at an early stage of the proceedings
by the State entitled to make it, lest a waiver of the requirement be
presumed. Third, the State claiming non-exhaustion has an obligation to
prove that domestic remedies remain to be exhausted and that they are
effective.[8]
51.
It is also important to note the Commission’s jurisprudence
concerning the issue of waiver of exhaustion of domestic remedies.
The Commission’s rulings on this issue are illustrated in some
cases from the Caribbean, namely, the cases of Rudolph Baptiste, Report
No. 38/00,[9]
Omar Hall, Report No. 25/00,[10]
and Brian Schroeter and Jeronimo Bowleg, Report No. 123/99 the Commission
found that where the States were given the opportunity to respond to the
issue of exhaustion of domestic remedies and failed to do so, those States
had tacitly waived their rights to object to the admissibility of those
petitions based upon the exhaustion of domestic remedies rule. 52.
The Commission notes that to date, the State has not provided the
Commission with information concerning the issues relating to the
admissibility and merits of the petition. 53.
In light of the foregoing the Commission finds first, that in
accordance with generally accepted principles of international law that
the State tacitly waived its right to object to the admissibility of the
petition based upon the exhaustion of domestic remedies rule. 54.
Second, in the alternative, the Commission finds that based
on the record of the case, that there has been unwarranted delay by the
Supreme Court of Belize in rendering a final decision on the lawsuit which
was filed by the petitioner seeking Constitutional redress on behalf of
the victims on December 3, 1996, on the claims raised in the petition. 55.
Moreover, the State has failed to demonstrate to the Commission
that there has been no delay on its part, rendering the application of
Article 37(2)(c) of the Commission’s Regulations inapplicable.
Further, the State has not provided the Commission with information
which would tend to establish that the remedies under domestic law have
not been exhausted or remain to be exhausted as provided by Article 37(3)
of the Commission’s Regulations. Therefore,
the Commission finds that based on the foregoing analysis of Article 37 of
its Regulations the petitioner and victims are excused from exhausting
domestic remedies pursuant to Article 37(2)(c) and 37(3) of the
Commission’s Regulations. 56.
The Commission concludes first, that this case is admissible
pursuant to the waiver of exhaustion of domestic remedies rule as
established by the Inter-American Court’s and the Commission’s
jurisprudence. Moreover, in the alternative, the Commission concludes that
the provisions of Article 37(1) of the Commission’s Regulations are
inapplicable as provided by Article 37(2)(c) of its Regulations, and finds
this petition admissible. b.
Timeliness of petition 57.
As concluded above, in accordance with Article 38(1) of the
Commission’s Regulations, a petition must be presented within a period
of six months from the date on which the complaining party was notified of
the final judgment at the domestic level. Where no such judgment has been
issued because it has not been possible to exhaust domestic remedies,
pursuant to Article 37(2) of the Commission’s Regulations,[11]
Article 38(2) of the Commission’s Regulations becomes applicable.
Article 38(2) of the Commission’s Regulations provides that:
“In the circumstances set forth in Article 37(2) of these Regulations,
the deadline for presentation of a petition shall be within a reasonable
period of time, in the Commission’s judgment, as from the date on which
the alleged violation of rights has occurred, considering the
circumstances of each specific case.” 58.
In the present case, the State has failed to provide any
observations in respect of the admissibility or merits of the petition and
has failed to demonstrate to the Commission that the petition has not been
timely filed.[12]
Moreover, the Commission finds that the petition was filed within a
reasonable time as established by the provisions of Article 38(2) of the
Commission’s Regulations. Therefore,
the Commission concludes that the petition is
admissible pursuant to Article 38(2) of
its Regulations. c.
Duplication of Procedures
59.
The petitioner states that the claims raised in its petition on
behalf of the victims have not been submitted for examination under any
other procedure of international investigation or settlement.
The record before the Commission does not indicate that the subject
of the petitioner’s claims is pending in another international
procedure, or duplicates a petition pending or already examined by the
Commission or another international organization.
The State has not provided any observations on the issue of
duplication of procedures. The Commission therefore finds that the
petition is admissible pursuant to Article 39(1) of its Regulations.[13]
d.
Colorable Claim 60.
The petitioner has alleged that the State has violated the victims'
rights under Articles I, II, III, VI, XI, XVIII, XX, and XXIIII, of the
Declaration. In addition, the petitioner has provided factual allegations
that if proven would tend to establish that the alleged violations might
be well founded. The Commission therefore concludes, without prejudging
the merits of the case, that the petition is not barred from consideration
under Article 41(c) of its Regulations.[14]
61.
In accordance with the foregoing analysis, and without prejudging
the merits of this petition, the Commission decides to declare admissible
the alleged violations of the Declaration presented on behalf of the
victims. THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS DECIDES: 1.
Declare that the petition is admissible with respect to the claimed
violations of Articles I, II, III, VI, XI, XVIII, XX, and XXIIII of the
American Declaration. 2.
Transmit this Report to the State of Belize and to the petitioner. 3.
Place itself at the disposal of the parties concerned with a view
to reaching a friendly settlement of the matter. 4.
To publish this report and include it in its Annual Report to the
General Assembly. Done and signed in Washington, D.C., on the 5th day of the month of October, 2000. (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman, Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo, Commissioners.
[1]
The petitioner has appointed the Attorneys of record in the case to
act on all matters for it before the Commission. [2]
The petitioner’s representatives: Mr. Pio Co, of the Toledo May
Cultural Council of Belize, Mr. Martin Shal, of Toledo Alcaldes
Association, attorneys of record of the Indian Law Resource Center:
Messrs. S. James Anaya, Deborah Schaaf, Steven Tullberg, Armstrong
Wiggins, June Lorenzo, Alex Page, Michele Chebat, and Mr. John Allen
of the University of Iowa Law School. The State’s representatives:
Ambassador/Permanent Representative James Murphy and
Counselor/Alternate Representative Georgia Brown Williams Esq. [3]
1. Will the Government of Belize
immediately alter its course of action in regard to development
activities on Maya traditional lands? 2.
Will the Government of Belize immediately suspend any
initiatives, including legislative initiatives that affect Maya
communities on Maya traditional lands? 3. Does the Government of Belize recognize that the Maya have rights to lands and natural resources in Southern Belize based on their traditional use and occupancy of those lands? [4]
I/A Court H.R., Advisory Opinion OC-10/89 (Interpretation of
the American Declaration of the Rights and Duties of Man Within the
Framework of Article 64 of the American Convention on Human Rights), 14 July 1989. [5]
Article 20 of the Commission’s Statute provides as follows: In
relation to those member states of the Organization that are not
parties to the American Convention on Human Rights, the Commission
shall have the following powers, in addition to those designated in
Article 18: (a)
To pay particular attention to the observance of the human
rights referred to in Articles I, II, III, IV, XVIII, XXV, and XXVI of
the American Declaration of the rights and Duties of Man; (b)
To examine communications submitted to it and any other
available information, to address the government of any member state
not a Party to the Convention for information deemed pertinent by this
Commission, and to make recommendations to it, when it finds this
appropriate, in order to bring about more effective observance of
fundamental human rights; and, (c)
To verify, as a prior condition to the exercise of the powers
granted under subparagraph b. above, whether the domestic legal
procedures and remedies of each member state not a Party to the
Convention have been duly applied and exhausted. [6]
Belize is not a party to the American Convention.
Article 46(1) of the American Convention provides that:
“Admission by the Commission of a petition or communication lodged
in accordance with Articles 44 or 45 shall be subject to the following
requirements: (a) that
remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international
Law.” Article
46(2) of the American Convention provides: The Provisions of the
paragraphs 1(a) and 1(b) of this Article shall not be applicable when: (a)
The domestic legislation of the State concerned does not afford
due process of law for the protection of the right or rights that have
allegedly been violated; (b)
The party alleging violation of his rights has been denied
access to the remedies under domestic law or has been prevented from
exhausting them; or (c)
There has been unwarranted delay in rendering a final judgment
under the aforementioned remedies. [7]
Exceptions to the Exhaustion of Domestic Remedies (Art. 46(1), 46(2)
and 46(2)(b) American Convention on Human Rights), at 32, para. 41.
Advisory Opinion OC -11/90, Series A. Judgments and Opinions, No. 11. [8]
Preliminary Objections, (Judgment of June 28, 1987), Decisions and
Judgments No. 3. [9] Case
11.743, (Grenada), Annual
Report of the Inter-American Commission on Human Rights, 1999, Volume
I, pp. 721, and 737. [10]
Case 12.068, (The Bahamas), Id. Annual Report of the Inter-American
Commission, pp. 184, and 187. [11]
1.
Article 37(2) of the Commission’s Regulations provide that
the provisions of the preceding paragraph shall not be applicable
when: (a)
The domestic legislation of the State concerned does not afford
due process of law for protection of the right or rights that have
allegedly been violated; (b)
The party alleging violation of his rights has been denied
access to the domestic
law or has been prevented from exhausting them; (c)
There has been
unwarranted delay in rendering a final judgment under the
aforementioned remedies. [12]
I/A Court H.R., Neira Alegría Case, Preliminary Objections,
Judgment, 11 December 1991 pp. 44-45, at paras. 25-31. [13]
Article 39(1) of the Commission’s Regulations provides that the
Commission shall not consider a petition in cases where the subject of
the petition is pending in another procedure under an international
governmental organization of which the State concerned is a member, or
essentially duplicates a petition pending or already examined and
settled by the Commission or by another international governmental
organization of which the state concerned is a member. [14] Article 41(c) of the Commission’s Regulations provides that the Commission shall declare a petition inadmissible if the petition is manifestly groundless or inadmissible on the basis of the statement by the petitioner himself or the government. |