When the U.S. does not adhere to its commitments to international human rights norms, affected peoples and communities have only a few options for recourse. This is especially true for Indigenous Peoples when seeking remedy from human rights violations by nations that occupy their traditional territories and that exclude or limit their participation in government-to-government consultation.
The Inter-American Commission on Human Rights (IACHR) is a regional body that considers human rights violations by countries in North and South America. In extreme situations, the IACHR will issue “precautionary measures” for nations instigating or perpetuating human rights violations.
Recent engagements with the IACHR by Indigenous Peoples in the United States include the Standing Rock, Cheyenne River and Yankton Sioux Tribes, which sought remedy during construction of the Dakota Access Pipeline in 2016. The Gwich’in Steering Committee engaged the body in November 2020 to halt oil and gas development on their sacred lands in the Arctic Refuge. In both instances, resource development proceeded without the free, prior and informed consent of affected Indigenous Peoples.
What is the Inter-American Commission on Human Rights?
The IACHR is a subset of the Organization of American States (OAS), an international organization created after World War II to promote peace and the protection of human rights in North and South America. The OAS is made up of all 35 nations in North and South America (the “Member States”), including the United States of America and Canada. The IACHR was specifically created to work with the Member States to enforce international treaties and human rights agreements, such as the American Declaration of the Rights and Duties of Man. The work of the Commission involves three main areas:
- Responding to and investigating petitions from individuals alleging violations of human rights within the Member States
- Monitoring the human rights situation in each of the Member States
- Working on specific priority areas, such as the rights of minority groups and Indigenous Peoples
What are IACHR Precautionary Measures?
In serious or urgent situations, the IACHR may request that a Member State adopt precautionary measures; the IACHR may do so on its own initiative or following a petition or case that is in front of the inter-American human rights system. Filing a petition with the IACHR requires the Member State to acknowledge human rights violations and petitioners request the Member State take affirmative measures to prevent further violations.
Precautionary measures are granted when a person or group of persons are in imminent danger of serious or irreparable harm should development, or any other action, proceed. The IACHR will look at the specifics of each situation, the nature of the risk, and the imminent harm the requested precautionary measures seek to avert.
The inter-American human rights system has used this tool for over 30 years as a way to protect human rights. For example, precautionary measures can be issued in response to threats to human life, such as by suspending deportation orders if the person might suffer torture or other cruel and inhuman treatment in the receiving country. In response, Member States have ordered specific protection measures for people (such as bodyguards), created working groups to implement the protection measures, and even created new laws to comply with the precautionary measures.
Precautionary measures are granted in relatively few cases. For example, in 2019, the IACHR had 3,212 petitions to review. Of that, they approved processing of 733 petitions, with 32 sent to the Inter-American court and 74 precautionary measures granted. Petitions have generally increased in recent years. Since 2006, 1,238 petitions have been filed on behalf of people or peoples in the United States and only 53 precautionary measures have been issued.
The IACHR can monitor whether a Member State has complied with precautionary measures through exchanges of communications, working meetings or hearings convened during the IACHR’s sessions, follow-up meetings during visits by the Commission or the country rapporteurs, press releases, and thematic or country reports. The IACHR itself is responsible for monitoring the Member State’s response. The International Journal of Human Rights has noted that states are more likely to comply with precautionary measures than with decisions on the merits under the court. If a state has a history of noncompliance, the IACHR will file a provisional measure request with the Court, requesting an order for compliance as well.
Filing a petition with the IACHR draws important awareness to a Member State’s human rights violations. In granting precautionary measures, the IACHR is requesting that the Member State implement measures to address these violations and prevent further violation of human rights.