By Nina Kolowratnik*
On the 23rd of August 2022, the Inter-American Court of Human Rights (the Court) held a public hearing in the case Pueblos Indígenas Tagaeri y Taromenane v. Ecuador (Tagaeri Taromenane). The Waorani community of the Amazonian rainforest seized the moment to invite the Court to visit their Indigenous homeland and see for themselves the threat that natural resource extraction companies are posing to their traditional way of life, as well as that of their neighbour, the Tagaeri and Taromenane–the last indigenous tribe in Ecuador living in voluntary isolation. The invitation by the Waorani community was followed by an invitation by the state of Ecuador. As I write this in January 2023, the parties to the case are still waiting to hear from the Court whether it is accepting the invitation to visit the Waorani Indigenous territory and the sites suggested by the state. Its past jurisprudence suggests it might, although it cannot be ruled out it won’t, given one case is not another, and what might seem called for a visit in a set of circumstances may appear inappropriate in another setting. Whatever the Court comes to decide in the Tagaeri Taromenane case, the visits it has conducted in the past have been pioneering in international human rights adjudication. This blog post sheds light on the value the Court’s in-situ visits have had and the limits they encounter as seen by the guests (Court) and the hosts (Indigenous communities).
As is well-known, the Inter-American Commission of Human Rights has a long tradition of visiting sites of human rights violation. It started doing this in 1961, only one year after having held its first session; by early 2020, it had completed no less than one hundred visits. As for the Court, it performed its first in-situ visit in 2012, in the case Pueblo Indígena Kichwa de Sarayaku v. Ecuador (Kichwa de Sarayaku). To date, it has made fifteen in-situ visits, six of which to the territories of Indigenous peoples.[1] If the Court accepts the invitation by the parties in the Tagaeri Taromenane case, this would be the second time the Court visits Ecuador–the first time having been to the Sarayaku Indigenous territory eleven years ago.*
What may motivate the Court to accept invitations to visit Indigenous territories?
In-situ visits represent a relatively recent procedural innovation for the Court. This has not triggered any change in its Rules of Procedure, and its site visits remain unregulated. The justification for holding site visits is accepted to be covered by Article 44.1 of the Rules, which permits the Court to obtain any evidence it considers helpful.[2]
When he was President of the Court, Judge Sierra Porto highlighted in a concurring opinion the benefits of on-site visits by the Court. This was in the case of Community Garifuna Triunfo de la Cruz and its members v. Honduras (Garifuna Triunfo).[3] In his view, on-site visits are beneficial in cases where the facts are unclear, and the visit can be expected to yield evidence which could clarify them. He notes that in the previous case of Kichwa de Sarayaku the Court had identified the primary function of its in-situ visit to be the obtention of additional information about both the situation of the presumed victims and the places where some of the alleged violations had occurred.[4] In the instant case of Garífuna Triunfo, Judge Sierra Porto reports that the Court was able to acquire first-hand knowledge on the local particularities in dispute and that having heard from the people living on the land, local authorities, and third parties had helped to assess the existence of the violation on the one hand and the adequacy of the reparation measures requested by the applicants on the other. The value of an in-situ visit, the judge observes, was also recognised by the defendant State. The State of Honduras had invited the Court during the public hearing so as “to facilitate adjudication of the case, […] to have a fair judgment according to the legal reality, [to] carry out an inspection in loco to verify respect to the precautionary measures ordered by the Inter-American Commission, […] the physical reality of the communities, the protected areas ordered and turned into national parks, [and] the lifestyle and how the Garífunas and non-Garífunas live side by side.”[5]
The concurring opinion suggests the collection of evidence on-site fulfils two objectives: on the one hand, viewing the contested areas reclaimed in this case by the Indigenous community and, on the other hand, meeting all the parties directly involved in or affected by the claim, including the Commission, diverse government authorities and settlers.
‘Seeing it with your own eyes’–but still through the eyes of others
The Court thus seems motivated by the opportunity to ‘see the legal reality directly’. Clearly an in-situ visit will make it possible for the Court to appreciate aspects of reality it would otherwise have missed and to gain insights it could not have otherwise reached. However, it is important to remind oneself that access to reality never takes place ‘directly’, without mediation, if only because of the different conceptual frameworks, past experiences and current interests we all carry. In other words, the evidence gathered during a site visit cannot give the judges direct access to the reality. Another aspect complicating the unfiltered perception of reality is that a site visit, by necessity, is preceded by a negotiation process as to how the reality will be presented. The in-situ visits to an indigenous territory will be meticulously planned by the communities and their lawyers in order to best represent their legal arguments. The presence of language translators and anthropologists then is vital to make accessible the information presented during the in-situ visit to the community outsiders, that are the judges.
The value of an in-situ visit by the Court to the Indigenous communities
The first Court’s in-situ visit to an Indigenous community, in the Kichwa de Sarayaku case, was conducted by a delegation which was composed of the President of the Court Diego García Sayán and Judge Radhis Abreu, Secretary Pablo Saavedra Alessandri and lawyer Olger González Espinosa. The Court delegation visited the village of Sarayaku, heard testimonies of several community members in a traditional assembly setting, participated in cultural activities and flew over the territory. It was the first time victims were heard by the Court in their own homes. Until then Indigenous community members had always been restrained to give their testimonies within the space of the Court as set up in its western legal framework. They had to respect the rules of performance and time protocol expected in that setting which, to them even more than to other citizens, would have been foreign and highly intimidating. By contrast, the programming of a visit by the Court to Indigenous land is left to be decided by the visited community and its legal representatives. The fact that the local community is assigned the responsibility of the entire programming in itself sends a message of respect for local tradition and of interest in meeting and holding a dialogue at eye-level. A visit to their territory by Court members is therefore a valuable opportunity for the community to introduce the Court to the challenges they face and human rights violations they have suffered, to give them a glimpse into their Indigenous traditions and values, and to have more community members’ voices heard.
Mario Melo, who currently represents one petitioner’s group in the Tagaeri Taromenane case and previously represented the Kichwa de Sarayaku petitioners, has explained that the visit to the Sarakayu territory had multiple benefits, not only on a legal plane but also socially and spiritually, for it provided some kind of closure for the whole community after the long and taxing period of legal action on a national and international level. In this particular case, this was the more so since the Inter-American Court’s delegation was welcomed by José Gualinga, Tayak Apu (president) of Sarayaku. Gualinga explained in his welcoming remarks that this was the day the community had been awaiting since time immemorial. The Sarayaku founding legend says that when the community originally arrived at the place where the current village is now located, they had the vision that wise chiefs would one day arrive to solve a serious problem the community would then be facing. Gualinga presented the delegates of the Inter-American Court as these very chiefs.
Oral testimony in court is often limited to just one person explaining what has happened to them. It misses the traditional structure in which Indigenous communities typically give their oral accounts, such as rhythmic chant, song, or dance. Further, Western court settings disregard the traditional rules of information sharing, which determine, by reference to traditional hierarchies, who is allowed to speak about certain information. An in-situ visit, by contrast, allows community members to communicate with the Court in a way that respects traditional methods of knowledge transfer. To speak to their relation to land, they can use dance and ritual song, in the space and according to the timing their cultural norms intend.
In summary, in many cases an in-situ visit by the Court is likely to represent a great opportunity for Indigenous peoples to share knowledge in its traditional format. The Inter-American Court can only be applauded for its efforts to better grasp the reality and significance of Indigenous ways of life. One should nonetheless not fall into the romantic trap of thinking that the simple act of seeing with one’s own eyes, during one single visit, could lead to a total understanding of indigenous realities, let alone spiritual beliefs. Indigenous territorial cases are complex. A one-time visit will never be able to provide a full prehension of the community’s realities; in this case, ‘seeing it with one’s own eyes’ still means receiving linguistic translation and cultural meditation by both anthropologists and community members. What the Court delegation witnesses will always be a carefully crafted program that has been devised in order to support the legal strategies of the parties. As such, the site visit is yet another submission by the parties to the case. However, this is no reason to belittle its value. It has arguably been the best means at the Court’s disposal for allowing the performance of different evidentiary formats, for softening the debilitating effect on witnesses of the Court’s hierarchical setting, and for attempting to make it possible to achieve something approaching listening at eye level.
* Nina is a PhD researcher within the DISSECT project at the Human Rights Centre of Ghent University, Belgium, and is currently associated researcher at the Universidad Andina Simón Bolivar in Quito, Ecuador. Her dissertation looks at Indigenous representation, traditional knowledge, and translation at the Inter-American Court of Human Rights. From June to September 2022 and from January to October 2023 Nina is conducting fieldwork in Ecuador with a focus on the ongoing Tagaeri Taromenane case.
The author’s work could not have progressed without the support of Dean Mario Melo, Ass.Prof. Davíd Cordero, Doc. José Valenzuela Rosero and the Centro de Derechos Humanos PUCE, Prof. Ramiro Avila, Pedro Bermeo and Dr. Roberto Narvaez. Nina is further grateful to Waorani individuals she has had the pleasure to meet, among them Alicia Cahuiya, Mencany Patricia Nenquihui and Gilberto Nenquimo, whom she thanks for sharing their perspective with her. The author would also like to warmly thank her colleagues Nele Schuldt and Genaro A. Manrique Giacomán for their helpful feedback on previous drafts of this text, Prof. Thomas Keenan for discussing with her the mediation process in an in-situ visit, and especially Prof. Marie-Bénédicte Dembour for her continual engagement with, and discussion of, her work, and in particular for having suggested the title of this blog post amongst many other formulations that have gone into the text.
[1] In situ visits have also been used in order to gather evidence in other complex cases such as mass imprisonment and worker’s conditions. Most of these had occurred in relation to the consideration of provisional measures or during the monitoring compliance stage.
[2] Kichwa of Sarayaku v. Ecuador, Order of the President of the Inter-American Court of Human Rights (20 January 2012) §11.
[3] Concurring Opinion of Judge Humberto Antonio Sierra Porto in Community Garifuna Triunfo de la Cruz and its members v. Honduras, Merits, Reparations and Costs. Judgement of October 8, 2015. Series C No. 305, § 11-19 of the Concurring Opinion.
[4] Pueblo Indígena Kichwa de Sarayaku Vs. Ecuador. Merits and Reparations. Judgement of June 27, 2012. Series C No. 395, § 20.
[5] Concurring Opinion of Judge Sierra Porto, above n 3, §15.