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Rapa Nui: the struggle for indigenous land rights

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Chloë Baartmans

on 28 August 2013

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Transcript of Rapa Nui: the struggle for indigenous land rights

MA Thesis International Law, Human Rights
CONCLUSION
Supreme Court decision in HITO
* interpretation of Acuerdo de Voluntades denies ALL Rapa Nui land rights
* indigenous land claims controlled by CONADI, a state authority

NOT in line with contemporary international legal framework
* acknowledgement traditional ownership under specific requirements obligatory for states
* domestic legislation never legitimate excuse for denial
* historic acquisition may not automatically or invariably carry beneficiary title to all acquired territory

Rapa Nui: the struggle for indigenous land rights
What are the legal consequences for the Rapa Nui rights to land and property following the decision of the Chilean Supreme Court in the HITO case of 2010?

Will the judgment find legal standing within the contemporary international legal framework on indigenous peoples' rights?

The conflict
- HITO -

Compilation of Aljazeera report 2013
Diana Eliana Hito vs. Sociedad Hotelera Interamericana Chile S.A.
FACTS
- Hito Rangi clan
- Title to use land granted in 1926
- Transfer property title 1980 to CORFO
- Want the land back
DECISION
1. Right to land legally transferred to current owner
2. Territory under investigation not registered as indigenous land
3. Annexation of 1888 made Rapa Nui "illegal occupants"

El Acuerdo de Voluntades
"The below found signatories -the Chiefs of Easter Island- declare cession/surrender, forever and without reservations of the full and complete sovereignty of the above cited island to the government of the Republic of Chile [...]"
Chilean Indigenous Peoples' rights
ILO Convention 169 on Indigenous and Tribal Peoples
American Declaration on the Rights and Duties of Man

American Convention on Human Rights
Chloë Baartmans ©
- Rapa Nui officially recognized as indigenous community of Chile (art. 2)
- Right to land incorporated (art. 12)
- Additional protocol obligates registration of indigenous territory to the 'Registro Público'
- Registro Público controlled by the CONADI (governmental organ) (art. 15)
International law
- indigenous peoples-
LAND RIGHTS
* Secure access to land as so
urce of
shelt
er, food
and income fo
r all peoples
* B
asis for the
lives, surviv
al, culture
and
identity of ind
igenous peo
ples

Hav
e always b
een a source of co
nflict
bet
ween p
eoples
* Colonialism of the 15th till 19th century
* International law for and by 'civilized' states (community of nations)
* Law on modes of acquisition
- Occupation and Cession
- To guarantee land rights among states
* Indigenous peoples rights became part of domestic laws

Law of Nations
* Complete surrender of sovereignty
* Friendly agreement
* Domestic law perished legal obligations derived from agreements made
"the most advanced system on
Indigenous Peoples rights"

THE MONITORY SYSTEM
- country reports and complaint procedure
- Use of regional and international instruments

- IACtHR leading interpretations on land rights
- Coherence between organs

Case Law
Inter-American HR system
"Most comprehensive
legislative framework"

THE INSTRUMENTS
- Codification of Indigenous Peoples' rights
- Specific rights to land
- Indigenous Peoples determine terms &conditions
- General monitory mechanisms
Human Rights Council



International HR system
Contemporary International Law
1933
1966
2012
1993
1888
1815
EASTER ISLAND REGISTERED AS PUBLIC LAND
ART. 590 CODIGO CIVIL
ADOPTION LEY DE PASCUA
Rapa Nui citizenship rights
ADOPTION LEY INDÍGENA 19.253
Formal recognition of Indigenous communities Chile
MAY 25 SUPREME COURT DECISION HITO
Denial land rights on basis of the legality of complete surrender of sovereignty through historic Acuerdo de Voluntades
CHILE COLONIZED BY SPANISH EMPIRE
under rule of Pedro de Valdivia
EASTER ISLAND ANNEXED TO CHILE
led by Naval Officer Policarpo Toro
Era of positivist international law, a law made by civilized states for civilized states. Indigenous peoples disregarded completely as international players.
Era of naturalist international law, where autonomous entities, including indigenous peoples and tribes were acknowledged as players.
Common conception of 'indigenous' lands as terra nullius, in which international arbitrary courts confirm contracts between indigenous leaders and civilized states do not fall under international legal jurisdiction.
Only recently the UN adopted ILO Convention 107, the first international document on recognition of Indigenous Peoples rights, dominated by assimilation and integration policies
Adoption revised ILO Convention 107 to 169 and working group on UNDRIP drafting process. More in conformity with indigenous custom and culture in respect of their distinct way of life (i.e. land rights)
International and national courts further implications and interpretations of international legislation on indigenous peoples rights,

granting

them extensive rights to land
(i.e. Mabo and Awas Tingni)
United Nations Declaration on the rights of Indigenous Peoples
Mabo vs. Queensland
High Court of Australia:
"acquisition does not necessarily imply full and exclusive possession for the settling party"
Hopu & Bessert vs. France
Human Rights Council:
"proof of significance of spiritual and cultural beliefs, regarded as essential for recognition of indigenous lands"
Dann sisters vs. USA
Inter-American Commission on Human Rights:
"transfer would still have to comply with international human rights standards"
Awas Tingni vs. Nicaragua
Inter-American Court of Human Rights:
"duty of the state to delimit, demarcate and legally entitle traditional lands to indigenous communities"
Yakye Axa and Sawhoyamaxa vs. Paraguay
Inter-American Court on Human Rights:
"traditional possession of land by indigenous communities has an equivalent effect to those of state granted full property titles"
THE INTERPRETATIONS
- Existing close ties between indigenous peoples and land
- Ancestral ownership land prior to settlement
- Existence identifiable group or community today

To be seen independent of identification by state
of defined ownership title under domestic laws
Full transcript