On August 15, 2011, at least 1,000 members of indigenous communities living in the Bolivian Indigenous Territory of the National Park Isiboro-Sécure (TIPNIS) began their long and treacherous march on foot to the capital city of La Paz in hopes of engaging the Bolivian government in a peaceful dialogue to prevent the government from building a highway directly through their territory. To date, armed with nothing but their will to protect their homes and the park, they continue to march despite the Bolivian government’s violent attempts to disintegrate and stop the movement. On September 25, as the movement gained momentum with thousands of other Bolivians from different backgrounds supporting what has been called the “VIII Great Indigenous March to Protect the TIPNIS,” the Bolivian government clandestinely sent 500 members of its police force to attack the marchers’ camp at night. The police beat and sequestered hundreds of men and women, as well as separated children from their parents. The attack resulted in many injured and led children to flee and disappear for days in the surrounding forests. Hundreds of marchers who were captured and separated from the movement were able to rejoin after their capturers were met with resistance in a town of TIPNIS-supporters. During the course of their journey, hundreds of people belonging to other indigenous communities joined the march in support of the TIPNIS movement – more than two hundred of them from the Andean region arrived in La Paz two days ago. Now consisting of approximately 2,000, the TIPNIS marchers have walked well over 400 km and are now less than 100 km from La Paz. Because their arrival would have coincided with judicial elections scheduled to take place on Sunday, October 16, the TIPNIS marchers have postponed their arrival until Monday.
Unfortunately, the story of the TIPNIS communities is not unique. Indigenous communities are often displaced and subjected to deleterious living conditions by their own government in the name of development. This summer, the O’Neill Institute invited leading women’s human rights scholar Rebecca Cook, Assistant Secretary of the Inter-American Commission on Human Rights Elizabeth Abi-Mershed, and human rights specialist Karla Quintana, also from the Inter-American Commission, to speak about the health-related aspects and judicial milestone reached in the recent decision Xákmok Kásek Indigenous Community v. Paraguay, issued in 2010 by the Inter-American Court of Human Rights. The case involved the indigenous community Xákmok Kásek in Paraguay that had been displaced from its ancestral territory by ranchers and businesses over the years.
The Xákmok Kásek case portrays the reality faced by indigenous communities that could likely be the future of the TIPNIS communities, unless local and international pressure is exerted on the Bolivian government. The highway is seen as President Evo Morales’ plan to mainly benefit the coca growers, his support base, who are looking to extend their coca cultivations into the TIPNIS. In the case of the Xákmok Kásek, despite having legally received title to a portion of their ancestral land from the Paraguayan government in 1997, the Xákmok Kásek remained ousted and forced to live in settlements. Before the Inter-American Court, the Xákmok Kásek sought not only the physical return of their ancestral land, but also compensation for the deaths and suffering of their members caused by the lack of access to basic healthcare and adequate supply of medicines, water, and food in the settlements. Children were severely malnourished and affected by debilitating infectious diseases. Furthermore, children did not have access to vaccinations and the closest hospital was 400 km away, a situation that was exacerbated by the fact that the community lacked adequate means of transportation. The Court recognized that a number of deaths were caused by easily preventable diseases, mainly tetanus, pneumonia, tuberculosis, anemia, pertussis, serious cases of dehydration, enterocolitis, and complications during labor. The Court also emphasized that the majority of the victims were children, a population that under international law deserves greater protection from the State.
As highlighted by Professor Cook and Ms. Abi-Mershed during the panel discussion, the judicial milestone reached in Xákmok Kásek is the Court’s specific (even though short) discussion on maternal death in populations living in extreme poverty, such as indigenous communities. With respect to the death of a pregnant woman due to lack of adequate pre-natal care, the Court explained that her death “evinces many of the signs relevant to maternal deaths, namely: death while giving birth without adequate medical care, a situation of exclusion or extreme poverty, lack of access to adequate health services, and a lack of documentation on cause of death, among others” (¶ 232). Furthermore, the Court clearly underscored that:
“extreme poverty and the lack of adequate medical care for pregnant women or women who have recently given birth result in a high maternal mortality rate. Because of this, States must put in place adequate healthcare policies that allow it to offer care through personnel who are adequately trained to handle births, policies to prevent maternal mortality with adequate prenatal and postpartum care, and legal and administrative instruments regarding healthcare policy that allow for the adequate documentation of cases of maternal mortality. All this is because pregnant women need special measures of protection” (¶ 233).
Although the Court has ruled over many cases involving indigenous communities in the past, Xákmok Kásek is the first time that the Court has ever addressed maternal mortality, especially its preventability through adequate provision of maternal healthcare and the responsibility of the government to ensure it. Throughout the case, the government attempted to evade its responsibility to provide such services by denying direct responsibility; questioning the deaths; claiming that the minimal attempts made to provide healthcare, water, and food were sufficient; and claiming lack of knowledge of the health-related needs of the community. However, the Court was quick to respond that although the Paraguayan government did not play a direct role in the displacement of the community, the Court emphasized the government’s obligations to protect the life and health of its people. According to the Court, the mere knowledge of the “real” and “immediate” risks faced by the community members was sufficient to create the obligation of the government to adopt the necessary measures to protect the Xákmok Kásek from the preventable deaths and ailments suffered by them as a result of the government’s inactions (¶¶ 188, 234).
Among other human rights violations, the Court ultimately found the government of Paraguay in violation of the right to life under the American Convention on Human Rights for the deaths of a number of the indigenous community’s members, including victims of maternal mortality, which could have been prevented by providing the basic services needed for their survival, such as maternal medical care. In addition to ordering the government to restore the ancestral land to the Xákmok Kásek, the Court ordered the government to issue a public act of acknowledgment of its international responsibility for all the human rights violations found in the decision; to publish the judgment in the various media forms; and to immediately take, among others, the following actions, in consultation with the Xákmok Kásek, while the community awaited the return of its land:
“a) provision of enough potable water for Community members’ consumption and personal hygiene;
b) provision of medical and psycho-social care for all the Community’s members, especially the children and the elderly, along with periodic vaccination and deparasitization campaigns that respect their ways and customs;
c) provision of special medical care for the pregnant women, both pre- and post-natal and during the first few months of the baby’s life;
d) delivery of food that is of a quality and quantity sufficient to ensure an adequate diet; [and]
e) the installation of latrines or any other adequate kind of sanitary system in the Community’s settlement […]” (¶ 303).
As with any case before human rights bodies, compliance with the Court’s order is another issue that remains to be seen. However, for now, Xákmok Kásek, as well as other cases involving indigenous communities, can serve to tell a story – the reality of what happens when those who are already marginalized are further abused by those in more powerful positions. The hope for those of us advocating for the rights and lives of indigenous communities during times when something can be done is that international widespread awareness can help mobilize those in more influential positions.
Brazil, who will be funding and building the highway across the TIPNIS, has suspended construction and awaits resolution of the conflict. At the very least, the peaceful march for the TIPNIS is symbolic and monumental for the very fact that it reflects the extent to which the members of these indigenous communities are willing to go to protect the park and their homes, as well as the level of support that it has generated among other Bolivians, including indigenous supporters and those eagerly awaiting their arrival in La Paz. There are a number of them who are ill, but the march has continued despite this and the number of attacks by the Bolivian government. Their perseverance is not only due to their strong will, but also to the many Bolivians willing to march alongside them, receive them, clothe them, and protect them. The hope is that others abroad may join and generate as much international support as possible to aid the movement’s cause, so that when the marchers reach La Paz, the hopefully peaceful dialogue will lead to the protection of the TIPNIS and their homes.
Tags: Amazon American Convention on Human Rights Bolivia Brazil children displacement Elizabeth Abi-Mershed environment food health services highway hospital human rights indigenous indigenous movements indigenous rights infectious diseases Inter-American Commission Inter-American Court Karla Quintana La Paz maternal healthcare maternal mortality Paraguay poverty Rebecca Cook state obligation territory TIPNIS vaccines water women Xakmok Kasek
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.