Regional Human Rights Institutions and Cultural Integrity

Regional human rights institutions, and notably the African Commission on Human and Peoples’ Rights ( ACHPR) and the Inter-American Court of Human Rights ( IACtHR) have made several references to the indigenous peoples’ right to cultural integrity. The Inter-American Court has notably emphasized that the close relationship between indigenous peoples and their lands must be recognized and understood as the fundamental base of their culture, spiritual life, integrity, economic survival and cultural preservation.16 Based on such a holistic approach to indigenous peoples’ relationship with their lands and ter-ritories, the Court has often made references to the need to protect the cultural integrity of indigenous peoples.17 For example, in a case against Suriname, an indigenous community had specifijically made the claim that the government had violated their right to cultural integrity. The Court received the argument highlighting that ‘in order for the culture to preserve its very identity and integ-rity, [indigenous peoples]… must maintain a fluid and multidimensional rela-tionship with their ancestral lands.’18 The Court clearly implied the importance of considering the integrity of indigenous peoples’ cultures, which includes a

doms of indigenous people, James Anaya, Situation of indigenous peoples in Australia, UN Doc. A/HRC/15/37/Add.4 (2010), paras. 4, 13, 16, 28, 44, 65, 72.

14 Special Rapporteur on the Right to Food, Visit to Canada, UN Doc. A/HRC/22/50/Add.1, 25 December 2012, para. 62.

15 Second International Decade of the World’s Indigenous People, UN Doc. A/RES/59/174;

and Report of the Secretary-General, Mid-term Assessment, UN Doc. A/65/166.

16 I/A Court H.R, Yakye Axa Indigenous Community v. Paraguay, judgement of 17 June 2005 (Series C, No. 125) para. 51.

17 See: I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay (Merits, Reparations and Costs) Judgment of June 17, 2005. Series C No. 125, paras. 147 and 203;

Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayano v.

Panama, Ser. C No. 284, para. 143.

18 I/A Court H.R, Moiwana Village Case, at paras. 101, 102-3.

strong connection with their lands, territories, and their natural resources. The Inter-American Commission has also often referred to the need to protect and respect the ‘socio-cultural integrity’ of indigenous peoples.19 For example, the Commission has noted that: ‘extractive concessions in indigenous territories, in having the potential of causing ecological damage, endanger the economic interests, survival, and cultural integrity of the indigenous communities and their members (…).’20 Overall, both the Inter-American Court and Commis-sion have made several references to the need to protect the integrity of indig-enous peoples’ cultures, highlighting how this concept of integrity is relevant in ensuring a holistic approach to indigenous peoples’ rights.

One the clearest judicial expressions of the right to cultural integrity and its content comes from the 2010 decision of the African Commission on Human and Peoples’ Rights in the Endorois case against Kenya.21 In this case, the En-dorois, an indigenous pastoralist community, claimed that access to their an-cestral territory ‘in addition to securing subsistence and livelihood, is seen as sacred, being inextricably linked to the cultural integrity of the community and its traditional way of life.’22 As highlighted in their pleadings, access to their traditional lands relates to ‘health, livelihood, religion and culture’, as they ‘are all intimately connected with their traditional land, as grazing lands, sacred religious sites and plants used for traditional medicine are all situated around the shores of Lake Bogoria.’23 Lake Bogoria, which has been inscribed to the World Heritage List,24 is part of the traditional territory of the Endorois and constitutes an essential element of their cultural heritage. They argued that by removing them from their land, and not allowing access to this important

19 IACHR, Third Report on the Human Rights Situation in Colombia. Doc. OEA/Ser.L/V/

II.102, Doc. 9 rev. 1, 26 February 1999, Chapter IX, para. 37. IACHR, Report on the Situation of Human Rights in Brazil, Doc. OEA/Ser.L/V/II.97, Doc. 29 rev. 1, September 29, 1997, para. 47.

20 IACHR, ‘Indigenous and Tribal Peoples’ Rights over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System’ (2009) OEA/Ser.L/V/II. Doc. 56/09 at para. 206.

21 African Commission on Human and Peoples’ Rights, Centre for Minority Rights Develop-ment (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, Communication 276/2003 (2010).

22 Ibid., para. 16, emphasis added.

23 Ibid., para. 16.

24 On this issue, see: African Commission on Human and Peoples’ Rights, Resolution on the Protection of Indigenous Peoples’ Rights in the Context of the World Heritage Con-vention and the Designation of Lake Bogoria as a World Heritage site, November 2011 in Banjul, The Gambia.

site, the government had violated their fundamental right to cultural integrity.

There is no specifijic provision in the African Charter on Human and Peoples’

Rights referring to a ‘right to cultural integrity’. Instead the Endorois claimed that their removal meant a violation of their right to practice their own reli-gion (Article 8), their right to culture (Article 17) and their right to access natu-ral resources (Article 21). They nonetheless put forward the argument that all these rights were to be regarded as part of their right to cultural integrity.

The Endorois argued that the decision to remove them from their tradition-al territories was directly afffecting their right to religious freedom. Access to Lake Bogoria plays an important role in the spiritual tradition of the Endorois, as it is a place of an annual ritual and at the centre of other important places of worship for the community. The Endorois contended that their disposses-sion amounted to a violation of Article 8 of the African Charter which states:

‘Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.’ They claimed that their spiritual be-liefs and ceremonial practices attached to the land constitute a religion. They highlighted that an indigenous group whose spiritual belief is intimately tied to the land requires special protection that should fall under the protection of freedom to practice a religion. By not allowing them to access their ancestral spiritual sites, the Government had violated their right to practice their reli-gion.

The African Commission did recognise that the concerned territory was a signifijicant spiritual place for the community on the basis that the Endorois regularly hold religious ceremonies at several spiritual sites situated around Lake Bogoria, and that their ancestors are buried near the Lake. The Commis-sion acknowledged that ‘religion is often linked to land, cultural beliefs and practices, and that freedom to worship and engage in such ceremonial acts is at the centre of the freedom of religion.’25 Taking into consideration the Hu-man Rights Committee’s General Comments on religion,26 as well as its own jurisprudence,27 the Commission accepted that the Endorois’ spiritual beliefs and ceremonial practices constitute a religion under the African Charter. The African Commission found that the restriction imposed on the Endorois to

25 Ibid., para. 166.

26 Human Rights Committee, General Comment 22, Article 18 (Forty-eighth session, 1993), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\ GEN\1\ Rev.1 (1994).

27 See Free Legal Assistance Group v. Zaire, African Commission on Human and Peoples Rights, Comm. No. 25/89, 47/90, 56/91, 100/93 (1995).

practice their religion was a signifijicant restriction to their freedom of religion that was not justifijied by any signifijicant public security interest or other justi-fijication. The Commission concluded that Kenya had violated Article 8 of the African Charter since their forced eviction from their ancestral land ‘interfered with the Endorois’ right to religious freedom and removed them from the sa-cred grounds essential to the practice of their religion, and rendered it virtu-ally impossible for the Community to maintain religious practices central to their culture and religion.’28 This recognition that access to a territory is part of the freedom to practice their religion for indigenous peoples is an important statement at the international level, since little jurisprudence exists on such a correlation.29

The spiritual attachment to their territory was only one part of the Endor-ois’ claim that their displacement was violating their right to cultural integrity.

The second focus was on cultural rights. The community contended that their eviction from their ancestral lands was a violation of their right to enjoy their own culture, protected under the African Charter in Article 17 (2) which states:

‘Every individual may freely, take part in the cultural life of his community.’

They argued that ‘Article 17 extends to the protection of indigenous cultures and ways of life’ and that by encroaching on their land rights, the government had committed a violation of their cultural rights.30 The issue was to defijine whether access to a territory could be regarded as part of the cultural life of the community. The Commission found that the Government had violated the Endorois’ right to take part in the cultural life of their community, and highlighted that in general States have an obligation to ensure that the access of indigenous communities to their traditional territories is protected under Article 17 of the African Charter as constituting cultural rights. The Commis-sion concluded that the Government had ‘denied the community access to an integrated system of beliefs, values, norms, mores, traditions and artefacts closely linked to access to the Lake.’31 This broader approach to cultural rights

28 Ibid., para. 173.

29 For references, see: J. Briones, ‘We Want to Believe Too: The IRFA and Indigenous Peoples’

Right to Freedom of Religion’; 8 U. C. Davis J. Int’l L. & Pol’y 0 (2002); N.I. Goduka and J.E.

Kunnie (eds.), Indigenous Peoples’ Wisdom and Power: Afffijirming Our Knowledge Through Narratives (Ashgate, 2006); J.L. Cox, From Primitive to Indigenous: The Academic Study of Indigenous Religions (Ashgate, 2007); P.P. Arnold and A. Grodzins Gold (eds.), Sacred Landscapes and Cultural Politics: Planting a Tree (Ashgate, 2001).

30 Endorois Decision, supra note 21, para. 115.

31 Ibid., para. 250.

integrates the indigenous peoples’ claim that cultural rights are part of their way of life, which includes access to land central to their own culture.

Another important aspect of the Endorois decision was the connection be-tween cultural rights and access to natural resources. One of the arguments put forward by the community was that by restricting the access to their natu-ral resources, the government was not respecting the cultunatu-ral heritage of the Endorois, which includes the use of these resources. The land around Lake Bo-goria is a fertile soil and rich in salt licks providing great support to the cattle, which represent an important aspect of the pastoralist way of life of the com-munity. The lack of access to these specifijic lands, the water and the salt licks resulted in serious loss of cattle for the Endorois. Beyond the economic aspect of the restriction, one of the arguments put forward by the community was that this infringement was disrupting their pastoralist way of life, an important element of their cultural heritage, and therefore encroaching on their right to cultural integrity. In the view of the Commission, this restriction constituted a violation of the community’s cultural rights since ‘by forcing the community to live on semi-arid lands without access to medicinal salt licks and other vital resources for the health of their livestock, the Respondent State have [sic] cre-ated a major threat to the Endorois pastoralist way of life.’32 For the African Commission, this constituted a violation of Article 21 of the African Charter which states that ‘all peoples shall freely dispose of their wealth and natural re-sources.’ In fijinding a violation of Article 21, the Commission did acknowledge that the right to freely dispose of natural resources is of crucial importance to indigenous peoples and their way of life.33 On this issue, the decision is based on the rationale that access to natural resources is a fundamental aspect of cultural heritage of the concerned indigenous community. While not directly mentioning cultural heritage, the Commission made a clear link between in-digenous peoples’ rights to use natural resources found on their ancestral ter-ritories and their cultural way of life. From this perspective it represents an important connection between a traditional way of using natural resources (in this case salt licks) and the cultural heritage of a community. The vehicle used by the Commission to make such connection between natural resources and cultural heritage was the reference to the right to cultural integrity of the community.

32 Endorois Decision, supra note 21, para. 251.

33 On the correlation between cultural rights and access to natural resources, see also: Social and Economic Rights Action Center and the Center for Economic, and Social Rights/Nigeria, Communication No. 155/96.

This decision of the African Commission clearly supports the recognition of a ‘right to cultural integrity’ for indigenous peoples. It shows how the diffferent rights that are relevant to indigenous peoples’ cultural heritage, in this case religion, culture and natural resources should be considered under the same umbrella of cultural integrity rather than divided and clustered into diffferent rights. This decision embraced the evolution towards the afffijirmation of a right to cultural integrity, developing its own approach to the meaning and content of such a right. The decision indicates that the right to cultural integrity is now to be considered part of the Commission’s jurisprudence based on freedom of religion (Article 8), right to culture (Article 17), and access to natural resources (Article 21). This marks an important evolution towards a holistic approach to the recognition of indigenous peoples’ cultural heritage. The right to cul-tural integrity fully integrates the holistic approach that indigenous peoples have with their cultural heritage, which is rooted in their spiritual, cultural, economic and social norms, and which is central to the integrity and survival of their culture.