The Inter-American Commission on Human Rights (IACHR) on Friday issued Resolution 41/2023, through which it granted precautionary measures in favour of members of the Indigenous Carib Community of Chinese Landing, who it said are “currently at serious, urgent risk of suffering irreparable harm to their human rights”.
The Commission has asked the government to advise it within 20 days from Friday’s ruling as to the steps taken.
A statement from the IACHR said that the petition before it indicates that the members of Chinese Landing (Region 1) are facing threats, harassment and acts of violence in the context of their opposition to mining activities in their lands. The representatives alleged repetitive incidents of threats and harassment, which would occur “daily” or “regularly”; advised of acts against persons in particular vulnerability such as aggression to a young man, attempted rape of a minor, and threat with a knife against an elder person; as well as the extensive use of firearms, with firing incidents. The IACHR said that Chinese Landing residents have also received collective death threats, reportedly perpetrated by mine workers. For example, it said that the toshao, who is the leader of the community, was allegedly warned that if the village wins its lands back, the miners would not leave easily and people would die.
The grant of the precautionary measures by the pre-eminent human rights body in the region came even though the Government of Guyana had sought to counter the complaints of the Chinese Landing residents. The edict of the IACHR will place immediate pressure on the government to heed the concerns of Chinese Landing residents and to take the measures recommended by the IACHR.
In June this year, Minister of Foreign Affairs and International Cooperation, Hugh Todd met with Margarette May Macaulay, President of the IACHR and other members of the IACHR Board of Directors on the sidelines of the Fifty-Third Regular Session of the General Assembly of the Organization of American States (OAS).
A release from the Ministry of Foreign Affairs said that during the meeting, Todd underscored the Government of Guyana’s policies for the promotion of human rights and reiterated Guyana’s commitment to supporting the Commission in the execution of its mandate. Macaulay was one of the signatories to Friday’s decision.
Stabroek News had visited Chinese Landing and reported extensively on the complaints by residents against the activities of the miners, threats to the toshao of the community and the evident cosy relationship between regulatory authorities and the prospectors.
The IACHR noted that the State of Guyana informed on actions to mitigate alleged risks and investigate the reported situation.
“Between May 18th and 22nd, 2022, a patrol was deployed to conduct security threat assessments and disrupt any illegal activities. Between June 26th and 28th, 2022, authorities held several meetings with the various Village Councils and residents, including Chinese Landing, and the Police in Santa Cruz was given directives to conduct routine patrols within Chinese Landing. In addition, on March 26th, 2023, the Regional Commander along with the regional crime inspector and other members of the regional police force conducted follow up investigations at Chinese Landing to address the threat allegations”, the Commission said.
The IACHR however found that no substantial action had been taken against the alleged perpetrators.
“The Commission took note of the actions informed by the State to investigate the beneficiaries’ risk situation. Nevertheless, while the IACHR valued these actions, it noted that they have not resulted in identifying suspects, the start of criminal trials, and/or holding perpetrators responsible. The Commission observed that several claims brought by the beneficiaries on risk events were dismissed by the State as misleading or for lacking evidence, without indicating that investigations have taken place. Likewise, the IACHR took note of the seriousness of the information which indicated the involvement of State police force in the events of risk. In addition, the Commission noticed that the State has not informed on risk evaluations carried out in favor of the beneficiaries and their leaders, particularly considering the collective nature of the risk alleged”, the IACHR stated.
Consequently, the IACHR requested that Guyana:
take the necessary measures to protect the rights to life and personal integrity of the members of the Indigenous Carib Community of Chinese Landing identified as beneficiaries, with a cultural, gender-based, and age-appropriate perspective to prevent threats, harassment, and other acts of violence against the beneficiaries;
consult and agree upon the measures to be adopted with the beneficiaries and their representatives; and
report on the actions taken to investigate the events that led to the adoption of this precautionary measure, so as to prevent such events from reoccurring.
The IACHR said that the fact that this precautionary measure has been granted and its adoption by the state does not entail a prejudgment on any petition that may eventually be filed before the Inter-American System to allege that the rights protected by the American Convention and other applicable instruments have been violated.
The 18-page resolution said that the IACHR requests that the Government of Guyana inform the Commission, within 20 days from the date of this communication, on the adoption of the precautionary measures agreed upon and to update this information on a regular basis.
The resolution stated that the precautionary measures mechanism is part of the Commission’s function of overseeing compliance with the human rights obligations set forth in Article 106 of the Charter of the Organization of American States. These general oversight functions are established in Article 18(b) of the Statute of the IACHR, and the precautionary measures mechanism is described in Article 25 of the Commission’s Rules of Procedure. In accordance with that Article, the resolution said that the Commission grants precautionary measures in serious and urgent situations in which these measures are necessary to avoid an irreparable harm.
The IACHR resolution addressed one of the objections raised by Guyana that there had been a duplication of proceedings as relates to a complaint before a UN rights committee. The IACHR disagreed.
“In a preliminary manner, the Commission observed the State’s argument regarding the alleged duplication of the present proceedings due to an ongoing process in the United Nations Committee on Elimination of Racial Discrimination (UNCERD). As the applicants have highlighted, the UNCERD has a different object and purpose than the IACHR’s Precautionary Measures. While the first is focused on the International Convention on the Elimination of All Forms of Racial Discrimination, the precautionary measures procedure at hand aims to protect individuals or identified groups from serious and urgent risks of irreparable harm to their rights as enshrined in the American Declaration. It is important to recall that the precautionary measures mechanism does not establish States’ responsibility for violations of International Human Rights Law. In this manner, and in contrast with the petitions and cases presented under Article 51 of the IACHR’s Rules of Procedure, the admissibility criteria concerning duplication of procedures (Article 3313 of the Rules of Procedure) does not apply”, the Commission ruled.
The IACHR also addressed the vexed issue of the occupation of Chinese Landing lands by a miner.
“Still in a preliminary manner, the Commission observes that both applicants and State have presented arguments regarding the recognition of land ownership in favor of the proposed beneficiaries and the extension of rights derived from it, as well as the legality of the mine exploitation by third parties, in particular by Mr. W.V. Regarding these questions, the IACHR adverts that they require an analysis of merits to determine possible violations of the American Declaration of the Rights and Duties of Man and therefore, fall outside the scope of the present precautionary measures procedure. As indicated above, this is better suited to be addressed by the Petition and Case system. The analysis that follows relates exclusively to the alleged serious and urgent situations presenting a risk of irreparable harm, which can be resolved without making any determinations on the merits”, the Commission said.
In analyzing the requirements set forth in the Rules of Procedure, the Commission said it observed that the applicants alleged two sources of serious and urgent risk to their rights to life and personal integrity. One related to threats and acts of violence supposedly perpetrated by mine workers and police officers against the proposed beneficiaries of the precautionary measures in the context of their opposition to mining exploited by third parties; and a second connected to the consequences of environmental contamination of their means of subsistence, such as water supply, particularly derived from mercury, which allegedly negatively affects their health, life, and personal integrity.
Intimidated
With regards to the first source, the Commission observes that, in accordance with the applicants, since 2018, and later intensified in 2021, the proposed beneficiaries have received death threats and are allegedly intimidated and harassed “daily”. The proposed beneficiaries have registered the following:
In 2018, the expulsion of the proposed beneficiary Mr. Selwyn Miller and his family of their house under threats by two officers of the Tactical Services Unit of the Guyana Police Force and by Mr.I.A., the mines general manager;
In August 2021, an attempt to rape a 14-year-old girl who was grabbed by an armed miner who put his gun against her back;
In August 2021, a physical aggression against a 19-year-old who was allegedly slapped and later chased with three other proposed beneficiaries by the security officer of the mines with an iron;
In 2021, an elder proposed beneficiary was threatened with a knife and questioned about her son when returning from a fishing trip;
In June 2022, at least in two occasions, proposed beneficiaries were threatened with the use of firearms to remove their equipment by the mines’ general manager.
The Commission also took note that the proposed beneficiaries alleged that miners carry guns and “regularly discharge their firearms at night”. It was indicated that in one instance, a proposed beneficiary who had been working inside the mining concession was threatened to leave by the mines manager who fired six shots over his head. Several members of the Chinese Landing Community have been searched at gunpoint by police and mining company personnel “without reasonable justification”. They further informed that they have observed miners taking photographs and videos of villagers as well as drones at the Toshao’s house and that the Toshao would be “regularly verbally abused and threatened by the miners, who sometimes mime shooting him with a gun”.
With regard to the second alleged risk source, connected to the consequences of environmental contamination to health, life, and personal integrity of the proposed beneficiaries, mainly derived from exposure to mercury, the Commission said it does not currently have enough information to substantiate the existence of a risk that meets the requirements set forth in Article 25 of the Rules of Procedure. While the applicants have provided examples of persons with relevant health symptoms and lodged concern due to alleged lack of an environmental impact study and the unsuitability of their traditional water sources, the State has provided information indicating that it carried out environmental contamination assessments without findings of pollution by In this light, the Commission took note of the information provided by the State that “it was recommended that the (Guyana Geology and Mines Commission) GGMC conduct further detailed analysis to confirm these findings to ensure the safety of both the environment and the local community”. The Commission said that it remains attentive to information that the State might provide on the results of such a study. The Commission said it recalls that the serious health impacts of mercury contamination and the risk it poses to peoples’ health, life, and personal integrity.
Considering the information provided by the parties, the IACHR cited States specific obligations to protect indigenous and tribal people:
“The IACHR has recognized that States must adopt special and specific measures aimed at protecting, favoring and improving the exercise of human rights by indigenous and tribal peoples and their members. The need for special protection arises from the greater vulnerability of these populations, their historical conditions of marginalization and discrimination, and the deeper impact on them of human rights violations. This positive State duty of adopting special measures is enhanced when it comes to indigenous children and women, given that their level of vulnerability is even greater”, the Commission noted.
Prima facie
In light of the ongoing situation of unprotected rights to life and personal integrity of the persons proposed as beneficiaries due to threats, harassment, and acts of violence as evaluated above, the IACHR said that it considers that, according to the applicable prima facie standard, they are at serious risk.
“Regarding the requirement of urgency, the Commission considers that it has been met in view of the continuity and repetition of events of threat and violence against the proposed beneficiaries, which indicates, in view of the situation of lack of protection, the possibility that new high-risk incidents may occur again at any time. This also takes into consideration that the proposed beneficiaries remain opposing the mining concession on their lands and have an ongoing judicial process, which potentially indicates that it may raise new conflicts. All of this implies that violations of their rights to life and personal integrity may materialize at any time”, it said.
In relation to the requirement of irreparable harm, the Commission said it considers that this requirement has been met since the possible impairment of the rights to life and personal integrity constitutes, by its very nature, the maximum degree of irreparability.
Lastly, due to the context of the present precautionary measure, the Commission reaffirms the following: “One of the main concerns of the Commission is compliance with the standards requiring that the granting of a concession does not affect the survival of the indigenous or tribal people in accordance with their traditional ways of life. It is important to emphasize, as stated by the Court in its interpretation judgment in the Saramaka case, that ‘survival’ entails much more than physical survival, rather it “must be understood as the ability of the Saramaka to ‘preserve, protect and guarantee the special relationship that [they] have with their territory’, so that ‘they may continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected […]’.That is, the term ‘survival’ in this context signifies much more than physical survival.” In a similar sense, for the IACHR, “the term ‘survival’ […] does not refer only to the obligation of the State to ensure the right to life of the victims, but rather to take all the appropriate measures to ensure the continuance of the relationship of the Saramaka People with their land or their culture.”
The IACHR is a principal and autonomous body of the Organization of American States (OAS), whose mandate stems from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has the mandate to promote the observance and defense of human rights in the region and acts as an advisory body to the OAS on the matter. The IACHR comprises seven independent members who are elected by the OAS General Assembly in their personal capacity, and do not represent their countries of origin or residence.
