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. |