- State implementation of international court rulings favoring Indigenous peoples and their access to land remain very low, lawyers say; in many cases, information on progress toward rulings is murky.
- Mongabay found that of the 57 rulings by the African Court on Human and Peoples’ Rights mentioned in a 2023 report, 52 of them had no update on implementation.
- States can be unwilling to implement rulings or can run into difficulties putting them into practice due to lack of resources, the need to create new laws or unexpected conflicts created when restituting land.
- Though complicated, international court systems are considered a lifeline for Indigenous communities that face land rights abuses, and better monitoring and enforcement mechanisms are needed to improve the system, advocates and Indigenous leaders say.
After years of delays, the African Court on Human and Peoples’ Rights (AfCHPR) will soon meet for the first time to discuss Kenya’s failure to implement rulings recognizing the Ogiek peoples’ claim to land in the Mau Forest. It has been seven years since the community won its first landmark victory, and little has progressed since — a situation experts say is all too common.
“To date, unfortunately, nothing has happened,” said Daniel Kobei, Ogiek leader and executive director of the Ogiek Peoples’ Development Program.
The Ogiek peoples are not alone in their frustration. Lack of implementation of international court rulings is low and information on progress is murky, including on rulings that impact Indigenous peoples and their access to land in biodiversity hotspots. Calculations by Mongabay of the African court’s most recent activity report in 2023 found that of the 57 applications mentioned, 52 of them had no update on implementation as the state had not handed in a progress report. Some of these applications went as far back as 2013.
According to a 2021 report by the AfCHPR, only 7% of all its judgments had been fully complied with up to 2020. However, lawyers told Mongabay that this number is likely inaccurate, as there is no official reporting or research on state compliance, and many of the judgments are too vague to measure. Other experts said that the level of implementation is likely very low and risks questioning the legitimacy of high-level human rights courts.
“What is at stake is the efficacy of judgments handed out by international courts and tribunals,” said Joshua Castellino, professor of law at University of Derby and executive co-director at Minority Rights International.
Like the African court, the Inter-American Court of Human Rights (IACtHR), which fields many lawsuits by Indigenous communities in the region, faces similar challenges. However, it has a much more robust system for measuring compliance. Based on the most recent data listed on its website, Mongabay calculated that the implementation of 296 cases is actively being monitored, which is about 80% of all cases. In this region, challenges include simple unwillingness by the state to implement the rulings or lack of resources and conflict when trying to put them into practice.
While communities wait for the state to implement rulings that favor their land rights and environmental stewardship, threats continue, civil society groups say.
“There still have been further evictions,” Kobei told Mongabay. On Nov. 2, 2023, the police, along with the Kenya Forest Service and the Kenya Wildlife Service, evicted 700 Ogiek households from Sasimwani in Narok county.
Yet the African court first recognized the Ogiek community’s claim to the forest in 2017. In a subsequent ruling in 2022, it found that the government had violated the Ogiek’s rights and ordered them to pay compensation to the community. It also ruled for Kenya to demarcate and grant communal titles to Ogiek ancestral territory within one year of the judgment.
Like the Ogiek, communities such as the Garifuna Afro-Indigenous peoples of Honduras have been waiting for the government to return their ancestral lands to its peoples for almost 10 years, as the IACtHR ruled in 2015 and 2023 that their rights had been violated. The government has not yet complied with the sentences; meanwhile, Garifuna residents and human rights organizations told Mongabay that threats, criminalization and violence against them have increased.
Reading between the lines
Unlike the IACtHR, which has mechanisms to monitor compliance, it is difficult to know the exact percentage of AfCHPR judgments that have been fully implemented, as the court does not monitor the implementation and impact of its sentences, and it relies on states to submit progress reports, which they rarely do. In addition, the information provided in the court’s activity reports is often extremely vague, which makes it difficult to paint an accurate picture of the situation.
“The [courts] rarely give deadlines,” Rachel Murray, director of the Human Rights Implementation Centre and professor of international human rights law at the University of Bristol, told Mongabay. “The only way you can really get statistics that are reliable around implementation is if those remedies are incredibly clear and precise.”
While analyzing last year’s cases, Mongabay found that several mentioned the state having issues interpretating the judgment — meaning they were unsure of what was expected of them.
According to Misha Plagis, assistant professor at the Grotius Centre for International Legal Studies at Leiden University, although the judgments are legally binding, the AfCHPR has very few mechanisms to force states to comply. In some cases, states have refused to cooperate. But in others, the state is genuinely unable to cooperate due to weak economic and institutional resources.
The courts can also face a lack of resources impacting implementation. According to Joel Correia, an assistant professor of human dimensions of natural resources at Colorado State University, the IACtHR does not have enough money to meet the demand in cases that it has. In 2019, it had 3,034 applications pending initial review, which is the first phase of the petition process. Because of this, the court is unable to finance the frequent monitoring and supervisory missions that communities desire to assess the situation on the ground and meet with victims and state agencies.
“What I hear on the ground is that more monitoring would be helpful in countries to facilitate or maintain pressure for effective implementation,” Correia told Mongabay in a text message.
Even in cases where progress is made and the state complies, governments can also take steps back, which makes measuring implementation more complicated. A year ago, it may have seemed as though the Kenyan government was complying with the 2022 Ogiek judgments, Murray said. However, by November 2023, the government had begun carrying out evictions again.
Putting a ruling into practice
In 2005 and 2006, the IACtHR ruled in favor of two Paraguayan Indigenous communities, the Yakye Axa and Sawhoyamaxa, which had been denied their communal property rights and were victims of several human rights abuses by the Paraguayan state. A third sentence was handed out in 2010 to another Indigenous community called Xákmok Kásek. The IACtHR ordered the government to provide all three communities with various reparations, including land restitution.
The government has cooperated, but full implementation has been complicated, as a study published in Geoforum has shown. After the 2005 judgment, the government was unable to resolve the Yakye Axa community’s land claim, as it was unable to negotiate the purchase of the community’s land.
In 2012, the Yakye Axa agreed to accept an alternative parcel of land, which ended up being 60 kilometers (37.2 miles) from where they were settled. The community was able to move to that land in 2022, 10 years after the land had been given to them, but the construction of an access road remains incomplete. Without the road, the community does not have access to necessary services, such as health care, education and markets, which has been a huge problem, Correia explained.
In some cases, despite a positive ruling from the IACtHR, what implementation means and how it’s carried out is another large battle that can take many years.
“On paper, it can be yes, the state checked the box, great,” Correia told Mongabay. “But in practice, what are the actual material effects of the implementation process on communities?”
Many states are held back by the legal systems in their countries, Correia explained. But other times, it’s down to a lack of political will. The state may have to enact new laws or processes to be able to meet the requirements of a judgment. In other cases, lands that must be restituted to a community are no longer livable because they are degraded or contaminated, and therefore governments, with the agreement of the community, need to find alternative lands.
The Sawhoyamaxa peoples refused to accept the government’s offer of alternative land. Instead, they decided to use the IACtHR judgment as justification to reoccupy their traditional territory in 2013. One year later, the Paraguayan Senate voted to expropriate 14,404 hectares (35,593 acres) of the ancestral territory they reoccupied for the community in the name of “public interest.” But years later, state officials had still not fully enforced the expropriation, which led to violent conflicts between the community and the settlers.
What needs to change?
Murray told Mongabay, in the case of the AfCHPR, to improve the system of Indigenous communities that face land rights abuses and other violations, there needs to be a better system for tracking what states have or have not done. Currently, because of a lack of resources, the court is not able to send many letters to follow up with states. Although the primary responsibility lies with the states, she said the AfCHPR should improve their enforcement mechanisms to ensure governments comply with judgments.
In some cases, the IACtHR has fined states for noncompliance. The Paraguayan government was fined $10,000 a month for noncompliance with the rulings in favor of the Xákmok Kásek community. This was decided because the state had not yet taken significant measures on the Yakye Axa and Sawhoyamaxa cases. Since 2014, this fine has been building and the state has just begun to pay it off, Correia said.
“The African courts should have a compliance mechanism, which they have already started, but has not fully been ratified,” Kobei said. “They should be able to speak to the government of Kenya and say, ‘You should do this.’ Governments should not be allowed to use court delays to make the people give up; it’s a way of delaying so people can suffer.”
For Indigenous plaintiffs, many of who lack resources and spend years locked in a difficult and expensive court process, the delay on implementation once they finally win is frustrating.
“This kind of delay is really killing us,” Kobei told Mongabay, highlighting the 12 years it took to get their case up the ladder into the African court. “It is creating fatigue among the community. Litigation is very, very hard and very expensive, time-consuming and not many people can do it.”
Banner image: Ogiek and Endorois Peoples of Kenya in a peaceful procession to demand for their land rights in Feb., 2024. Image by Queen Asali via Wikimedia Commons (CC BY-SA 4.0).
Violent evictions are latest ordeal for Kenya’s Ogiek seeking land rights
Citation:
Correia, J. E. (2018). Indigenous rights at a crossroads: Territorial struggles, the Inter-American court of human rights, and legal geographies of liminality. Geoforum, 97, 73-83. doi:10.1016/j.geoforum.2018.10.013
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