Maya Indigenous Communities v. Belize, Case 12.053, Report No. 78/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 129 (2000).
REPORT
Nº 78/00
CASE 12.053
MAYA INDIGENOUS COMMUNITIES AND THEIR MEMBERS
BELIZE
October 5, 2000
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 Keekchi 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 States 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
Courts failure to render any substantive decision in the case.
The petitioner indicates that it is seeking the Commissions
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 Commissions
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 Commissions 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 petitioners Application for Constitutional
redress in the Supreme Court of Belize.
The Memorandum of Understanding also suspended the States
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 petitioners
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 States 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 petitioners letter to the
Commission of May 4, 1999, was a copy of the petitioners 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 petitioners 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 Commissions 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 Commissions
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 petitioners 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 Commissions 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 Commissions
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 petitioners
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 petitioners letter of October 7, 1999,[3]
and stated the following:
1.
The government is prepared to commit to negotiating with the
petitioners 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 petitioners
response to the States 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 States
proposed legislation for the creation of a Southern Development
Corporation undermined Maya rights to lands and natural resources.
21.
The petitioner contended that the Governments 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 Governments 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
Governments 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
Commissions 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 petitioners 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 States
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 Commissions 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 petitioners 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-Generals 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 Commissions communication.
To date, the State has not responded to the Commissions
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
Commissions communication dated October 7, 1999, on the issue
of the petitioners 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 Kekchi
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.
Petitioners 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 Americas 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 Kekchi 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 States 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.
Petitioners 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 Courts 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 petitioners 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-Generals 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
petitioners request for precautionary measures.
Nor has the State replied to the Commissions 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 Commissions
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.
Commissions 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 ones
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 Keekchi 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 Commissions Regulations. Second,
whether the States silence by not responding to the Commissions
communications constitutes a waiver to object to non-exhaustion of domestic
remedies as established by the Inter-American Courts and the Commissions
jurisprudence. The issue
of exhaustion of domestic remedies is governed by Article 37 of the
Commissions Regulations. Article 37(1) of the Commissions
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
Commissions 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 Commissions 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 Commissions
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 Commissions jurisprudence
concerning the issue of waiver of exhaustion of domestic remedies.
The Commissions 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 Commissions 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 Commissions 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 Commissions 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 Courts and the Commissions jurisprudence.
Moreover, in the alternative, the Commission concludes that the provisions
of Article 37(1) of the Commissions 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 Commissions
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 Commissions Regulations,[11]
Article 38(2) of the Commissions Regulations becomes applicable.
Article 38(2) of the Commissions 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 Commissions 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 Commissions 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 petitioners 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 petitioners 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 States 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 Commissions 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 Commissions 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 Commissions 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 Commissions 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.