Rewriting Human Rights Decisions
Edited by Eva Brems and Ellen Desmet
Chapter 16: Moving human rights jurisprudence to a higher gear: rewriting the case of the Kichwa Indigenous People of Sarayaku v Ecuador (IACtHR)
This chapter rewrites the judgment by the Inter-American Court of Human Rights in the case of the Kichwa Indigenous People of Sarayaku v Ecuador of 2012, concerning oil exploration activities in indigenous territories. A more sustained integrative approach to human rights is adopted in relation to seven themes, including innovative suggestions to move the human rights framework forward. To start, indigenous peoples’ right to self-determination should feature at the forefront of the Court’s analysis, instead of the right to property. Second, the Court should have further developed the norm of free, prior and informed consent, in line with (and beyond) earlier jurisprudence. Third, the analysis of some potential human rights violations was unjustifiably absorbed into the Court’s reasoning under article 21 ACHR. Fourth, children’s rights could have been more explicitly mainstreamed. Fifth, the right to live in a healthy environment should have been explicitly considered, at best as an independent right, at least included in the right to life. Sixth, the Court should have explicitly acknowledged that non-state actors bear human rights obligations. Finally, it is suggested that the Court should move towards not only an integrative approach to human rights norms, but to one of human rights holders as well.
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