Gabriela Navarro

This article analyses comparatively the enforcement procedures of the Ecuadorian judgment in the famous Chevron case, related to environmental damages caused by oil drilling in Ecuador. Enforcement of the judgment was analysed in several American countries, such as the United States, Canada, Argentina and Brazil. The central problem of the article is how private international law can assure the enforcement of a foreign decision related to human rights against a multinational business conglomerate. Central arguments used on the enforcement decisions were legal separateness of subsidiaries and public order exception. Some procedures are still pending final decision. The methodology used includes a bibliographical and documental review, mainly upon legislations and court decisions. The article concludes that the Chevron case may indicate that the current doctrine in private international law does not offer adequate instruments to make multinational conglomerates accountable for human rights violations.

Abstract

This article analyses non-compliance with decisions issued by the Inter-American Court of Human Rights on the matter of indigenous territorial rights. The central objectives of the work are (i) to quantify and to analyse the level of compliance with reparation orders issued by the Court in indigenous territorial decisions and (ii) to understand the elements that fomented and hindered compliance with the cases. Quantitative analyses of the compliance were used, analysing 11 cases decided by the Court. Additionally, a qualitative study was pursued by means of a case analysis, focusing on cases against Paraguay and Suriname. The article concludes that compliance with territorial cases is a complex matter, involving a multiplicity of interconnected elements and actors. Compliance is stimulated by clarity of the orders, existence of domestic institutions in charge of compliance, domestic legal protection of indigenous rights and when the Court exercises an active role as mediator.

This paper presents the decision of the Inter-American Court of Human Rights in the Lhaka Honhat v. Argentina case, focusing on the Court’s recognition of water as an autonomous right. The main argument is that the case is a milestone in the jurisprudence of the Court since for the first time it recognizes the direct justiciability of the right to water, offering a holistic approach to tackle inequalities and to provide means for overcoming marginalization. In the current context of COVID-19 pandemic, the decision becomes a paramount reference for judicial protection of vulnerable groups, proposing legal arguments for the guarantee of access to safe water. It is argued that the ruling has the potential to transcend the individual case and to enhance the transformative mandate of the IACtHR. The method used is bibliographic review, mostly based upon primary sources (judicial decisions). It relates to two theoretical backgrounds, the theory on intersectional discrimination and the ius constitutionale commune framework. The Court’s decision and its victim-centred approach is discussed in light of the situation of poverty and multiplied vulnerability that indigenous peoples in Latin America face. Besides, it is contextualized with precedents of indirect recognition of social rights to indigenous peoples through the affirmation of the right to a dignified life. A comparative perspective gives insights into the decision’s potential to transcend the individual case and, more specifically, to enforce the protection of indigenous rights during the COVID-19 pandemic. Finally, within the framework of a ius constitutionale commune, the Court is attributed a transformative mandate through which it can combat discrimination and promote structural change. The paper concludes stressing the importance of the recognition of intersectional discrimination in order to ensure access to safe water to indigenous peoples and other vulnerable groups. It also highlights the significance of the recognition of direct justiciability of social rights in order to tackle inequalities in times of pandemic.

The present article aims to analyse the recent decision against Brazil issued by the Inter-American Court of Human Rights, the Xucuru indigenous people and its members v. Brazil, which was decided in February 2018. The decision is the most recent among the consolidated jurisprudence of the Court on indigenous peoples` rights, as well as the first one against Brazil. The case study is based mainly upon a bibliographic review of primary sources related to the case, as well to the Court´s jurisprudence on indigenous rights. To achieve the central objective, the article is composed of three sections: an analysis of the Court´s jurisprudence on indigenous territorial rights, a further analysis of the decision on the Xucuru case and, finally, an analysis of aspects that were absent in the decision. The article concludes that, in most aspects, the judgment consolidates the Court case law on the territorial protection of indigenous lands. However, the decision is considered flawed in regard to four aspects: the protection of human rights defenders, the mentioning of the American Declaration on the Rights of Indigenous Peoples, applied remedies and the recognition of the injured party. As the case is very recent, this is the first academic analysis on its content. The Court´s innovative jurisprudence on indigenous rights must be acknowledged, but flaws and limitations in the most recent decision must be pointed out and analysed in order to enable further development and, therefore, provide a most adequate human rights protection.