The Non-Restrictive and Evolutive Principle: A Review of IACtHR’s Jurisprudence over Indigenous Peoples’ Rights in the Context of Green Transition.

Introduction

The surge of renewable energy projects and demand for critical minerals brought by the ongoing transition towards a green economy has posed new challenges for International Human Rights Law pertaining to indigenous peoples, and especially those of Latin America. A disproportionately large amount of the extractive sites and development projects are located in or around indigenous regions [1]. Without clear human rights obligations, effective national and international legal instruments, and cautious and diligent compliance of them, the green transition can bring about exploitation of Indigenous peoples under the guise of development.

This article, upon examining landmark cases in the last 20 years, argues that the Inter-American Court of Human Rights (IACtHR) has developed an interpretive and innovative jurisprudence that allows for a more expansive protection over Indigenous rights. By recognizing the collective right to land and natural resources as fundamental to indigenous rights and advancing a more substantive interpretation of the right to Consultation and the right to Free, Prior, and Informed Consent (FPIC), the Court creates space for indigenous peoples’ claims to self-determination and effective participation. However, despite its progressive attempts, the Court also perpetuates injustices towards the indigenous peoples because its reading of the FPIC still systemically distorts and marginalizes indigenous knowledge and epistemology, while invalidating the discourse and lived experiences of the indigenous peoples. It is in this sense that the IACtHR stands as both a critical tool of resistance and a site of political bargaining and mobilization.

The Non-restrictive and evolutive interpretation of the ACHR: an Extensive Approach

The Inter-American Court of Human Rights has interpreted the American Convention on Human Rights (ACHR), the constitutional charter of human rights in the Americas and the primary source of law of the Court, in an innovative and extensive fashion that allows for an expansion of the scope and implications of the rights. In particular, the Court has adopted the non-restrictive principle and the evolutive principle [2].

The non-restrictive principle is enshrined in the Article 29(b) of the Treaty: no provision of the Convention should be interpreted as “restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State, Party, or by virtue of another convention to which one of the said states is a party” [3]. Under a literal interpretation, this Article informs that the Treaty should not be used to limit the enjoyment of the rights guaranteed in other relevant international legal instruments. The Court, however, has interpreted this principle in accordance with the pro homine principle, which mandates that human rights treaties be interpreted so as to maximize the best possible protection of the individual [4]. Interpreting the ACHR in light of this enables the Court to move beyond a narrow, textual reading and to construe the Convention in accordance with its “object and purpose,” which, in this case, is the protection of human rights [5].

Given that most states involved in the ACHR have legal convictions to or de facto engagement with other treaties under International Human Rights Law, an expansive understanding of the principle allows the Court to consider and incorporate other relevant treaties into its jurisprudence. Also, since the principle compels that the Convention should not restrict the enjoyment/exercise of rights, in scenarios where the ACHR and other instruments are both applicable, “the rule most favorable to the individual must prevail” [6].

Another important implication of the non-restrictive principle is that the Court could import a right that is not directly stated in the ACHR but is relevant in other treaties the states could be considered a party of. This is because the denial of a right present in other treaties also constitutes a restriction on the rights enjoyed by the people, and therefore in contradiction with the non-restrictive principle. In practice, as noted by Judge Sergio Garcia Ramirez, this principle that prioritizes “the fullest protection of persons, all for the ultimate purpose of preserving human dignity, ensuring fundamental rights and encouraging their advancement” has indeed been “frequently cited in this Court’s case-law” [7]. Thus, the non-restrictive principle allows the ACHR to be read in harmony with other international legal instruments and gives the Court the freedom and flexibility to consider and/or import rights that are guaranteed in other treaties in cases where such rights are not explicitly stated but could be interpreted as being implied in the ACHR or enshrined in other relevant international treaties.

In addition, the Court emphasizes that the Treaty is a living instrument and therefore requires an evolutive interpretation in which changes over time and present-day conditions must be considered [8]. This principle by itself doesn’t allow for the importing of new rights that are not contained in the original Treaty. However, it does allow a right that is already enshrined in the Treaty to be further interpreted in light of the newest development of international legal instruments. The right to life, for example, can be interpreted under the evolutive principle to include the right to protection from environmental harms. Since the body of law of International Human Rights Law itself is always evolving, the ACHR can thus flexibly respond to the new needs of right bearers, apply the right to new scenarios, and protect the right in a fashion of greatest relevance to the status quo.

The non-restrictive principle and the evolutive principle adopted by the IACtHR are essential to the Court’s innovative use of the ACHR to realize the rights of the indigenous peoples. In the following, I will examine how the Court has managed to promote the effective self-determination of the indigenous peoples through expanding two rights that are essential to effective political participation – namely, the right to communal land property and the right to Free, Prior, and Informed Consent (FPIC).

1. The Right to Communal Property – Connection between Communal Property Rights and Cultural Rights

The collective right to land, and to relevant resources within the territory, is one of the most fundamental rights of the indigenous communities. This is because in most cases the cultural identity of the indigenous groups are linked to their land— to that piece of land where their ancestors have lived for hundreds of years and developed their culture, ritual, and life styles around its environment and landscape [9]. Any exterior interference to their land may pose a threat to their cultural integrity. In other words, the right to the land is the cornerstone for the self-determination and cultural survival of the indigenous peoples. The right to land and resources is especially relevant in the process of just transition, which the ILO defines as “greening the economy in a way that is as fair and inclusive as possible to everyone concerned” and therefore involves the protection of equality and fundamental human rights [10]. In reality, however, under the excuse of constructing hydroelectric dams or wind farms, the local communities are often dislocated. The extraction of transition minerals grew by 39 percent over the last decade, and there are at least 342 identifiable cases of conflict involving critical minerals [11].

Due to the special legal status of indigenous peoples, whether the state has a right to the land and resources within the land of indigenous peoples remains controversial. Under the International Law, the indigenous peoples, as argued by Anaya, have a right to internal self-determination, but lack the right to external self-determination [12]. This means that they have the right to self-governance and to freely develop their cultural, economic, and political goals within their own territory without secession from the state; yet, they lack the power to freely determine their international political status or to declare independence from the state. This means that the state can retain the right to minerals and sub-surface resources in some cases. To protect indigenous People’s right to land, the IACtHR first established the legitimacy of collective property rights and then connected this right to the cultural right of indigenous peoples.

Primarily, the right to land falls under the category of property right, which concerns mostly private property.The Court first established the collective right to land in the case Mayagana (Sumo) Awas Tingni Community v. Nicaragua(2001) [13]. To begin with, when the state invoked the idea that there cannot be right to collective property, the Court defied the claim by rejecting the interpretation of the words of the Treaty in their ordinary meaning. The article at stake is Article 21, which states that “everyone has [the] right to … his property… [14].” Under ordinary reading, “his property” refers to the property of an individual. The Court, however, referred to the preparatory work of the ACHR, where the phrase “private property” is changed to “his property” to dismiss the thought that the property rights enshrined in the Article is limited to private rights [15]. In addition, the Court asserted that the indigenous peoples often have a communitarian tradition regarding the land, where instead of endowing the ownership of the land on one individual, the indigenous peoples tend to view the land as shared and communal [16]. The Court thus argued that under the principle of non-restrictive and evolutive interpretation, the Article 21 should be interpreted as protecting the right of the property of members of indigenous peoples “within the framework of communal property” [17]. This is a precedent for the recognition of indigenous collective land rights under International Human Rights Law [18].

The second step adopted by the Court was to connect the right to land with the right to cultural survival, and thus demand a more substantive(instead of procedural) protection of indigenous peoples’ rights. In the case of the Yakte Axa Indigenous Community v. Paraguay, the Court applied the non-restrictive principle to engage effectively with other international instruments [19]. Specifically, the Court adopted that the ILO Convention No.169, a binding treaty that Paraguay has signed, can be included in considerations since it is contained in the corpus iuris, the body of law, of international law. ILO Convention 169 has recognized the “special importance” of the land to the cultures of indigenous peoples, such that the right to land is viewed as an essential part of the right to self-determination and cultural survival [20]. Following the non-restrictive principle, the Court expanded the meaning and implications of Article 21 of ACHR, and insisted that “the close relationship of indigenous peoples with the land must be acknowledged and understood as the fundamental basis for their culture, spiritual life, wholeness, economic survival, and preservation and transmission to future generations” [21]. In addition, the Court further ruled that the state, in addition to the duty to respect the indigenous people’s right to traditional lands, indeed has a positive duty to ensure that indigenous peoples have a right to live with dignity on these lands [22]. To yield this, the Court refers to the proven facts that the Yakye Axa community was living in “extremely destitute conditions” due to lack of access to land and resources, and that such a situation constitutes a violation of people’s right to life with dignity, a right that was established in the Court’s jurisdiction of the previous case “Juvenile Reeducation Institute” [23]. Then, the Court compels the state to implement specific methods to enrich the living conditions of the Yakye Axa people, potentially through increasing their access to resources [24].

By first establishing that communal right to land is recognized by the current legal framework and then tying the right to land to the right of cultural survival, the Court has successfully secured some significant rights for the indigenous peoples. In Saramaka People v. Suriname (2007) , for example, when the government of Suriname granted hydroelectric concessions to private corporates, who then extracted minerals from their the land of the Saramaka people, the Saramaka people successfully protected their right to timber by establishing that the mineral has been essential to their traditional way of living and therefore remains central to their cultural survival [25].

2. The Right to Consultation and Free, Prior, and Informed Consent (FPIC)

According to Article 23 of UNDRIP, the states must “consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources” [26]. In ILO convention No.169, it is further stated that such consultation should be carried out “in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures” [27].

Since the drafting process of the ILO Convention 169, the scope and interpretation of the right to free, prior, and informed consent remains highly controversial [28]. As a result of strategic bargaining and compromise, Article 6 of the Treaty informs that “the consultations carried out shall be undertaken…with the objective of achieving agreement or consent to the proposed method” [29]. Article 16 further informs that when relocation of the Indigenous peoples is considered necessary, the state must obtain the people’s free and informed consent [30]. This doctrine, however, is mitigated by the following compromise in Article 16 that “where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations”, which therefore renders the consent as not necessary [31].

There has been ambiguities and tensions in terms of the reading of the right to consultation and free, Prior, and Informed Consent. In a textual reading, as supported by most states and private corporates, the FPIC is completely procedural: the consultation needs to be carried out with the objective of achieving FPIC, which means that the consent is a desired outcome but not a necessity. This reading also supports that the consultation process doesn’t need to take into real consideration the suggestions of the indigenous people, so long as the procedure of consulting has been carried out [32]. The stronger and more substantive reading has been supported by the Indigenous peoples and NGOs. This reading argues that there must be an effective and well-intentioned dialogue between the state/private corporations and the Indigenous Peoples before the implementation of the project, and that the Indigenous People’s advice and ideas, if not absolute consent, should be taken into serious consideration since the early stage of the project [33].

The right to consultation – the right of indigenous peoples to be consulted by the state with respect to activities that might affect their lands and natural resources – is essential to the political right to self-determination of the Indigenous People. Practically speaking, the projects launched by private corporations and states can and often do have huge impacts on the lifestyle and environment of indigenous communities. One may question how much power of self-determination do the Indigenous Peoples de facto possess if the states can carry out projects without asking for consent or even advice. In this case, the Indigenous Peoples must always concede their own developmental goals for the projects of the state. On a symbolic level, absence of the right to consultation signifies that the power of the state completely overrules their right to self-determination. To be deprived of effective power of discourse is to be silenced and excluded.

The Court has promoted a more substantive reading of the principle through its jurisdiction. For the outcome of consent, the Court rules that it should be compulsory instead of preferred for the launching of projects in special circumstances. For the process of consultation, the Court established that the state has a duty to ensure that the consultation process was not just procedural but consists of meaningful discussions and effective deliberations.

In Saramaka People v. Suriname (2007), the IACtHR developed FPIC into a binding principle under special circumstances [34]. That is, in contrast with an act of good practice, the free, prior, and informed consent is a compulsory requirement in these cases. Even though Suriname hasn’t ratified the ILO Convention No.169, which means the principles of FPIC entailed in the convention cannot be directly applied to this case, the Court utilized the non-restrictive principle to incorporate and consider the ICCPR (International Covenant on Civil and Political Rights) and the ICESCR (International Covenant on Economic, Social, and Cultural Rights), two fundamental Treaties within the body of law of international law that have been ratified by Suriname [35]. Article 1 of both Treaties announces that “All Peoples have the right of Self-Determination” [36]. The Court argued that the Indigenous Peoples should be considered as included in the “All peoples,” and therefore have the right to “freely pursue their economic, social and cultural development” [37]. Having established this, the Court argued that, following human rights law, whenever a violation of this right to self-determination might occur, as is when there are “large scale…projects that would have a major impact” within the land of indigenous people, the party potentially violating the right has a duty to achieve the free, prior, and informed consent of the indigenous people [38]. This argument is in line with U.N. Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people’s observation that “[w]herever [large-scale projects] occur in areas occupied by indigenous peoples it is likely that their communities will undergo profound social and economic changes” [39]. This case sets a precedent to compulsory FPIC.

In addition, through the Kichwa Indigenous People of Sarayaku v. Ecuador (2012), the Court increased the standard of the criterion of prior consultation, and explicitly established its status as not purely procedural [40]. In both cases, the Court emphasized, under the non-restrictive and pro homine principle, that the consultation should be conducted “in good faith following appropriate cultural procedures and must aim to reach agreement” [41].This requires the State to accept and disseminate information, and to provide the people with clear information on the potential risks of the plan. Furthermore, the Court informs that the people must be consulted at the early stage of the plan so there is sufficient time for internal discussion and proper response to the State. In Sarayaku, the Court finds the State to have failed to conduct “a serious and responsible consultation” with the Sarayaku people, which then leads to the state negatively affecting the cultural identity of the Sarayaku people [42]. It is under these provisions that the Court establishes clearly that the consultation should be read as a “true instrument of participation” instead of a mere formality [43]. Thus, the IACtHR in fact offers support to the non-hegemonic reading that endows the Indigenous peoples with the power of bargaining and places the burden of effective communication on the states, as advocated by the Indigenous peoples.

With the non-restrictive and evolutive principles, the Court has expanded the narrower reading of the ILO Convention No.169 in two ways: first, it decided that in special circumstances (large scale projects with major impacts) consent is necessary outcome; second, it delineated the implications and substances of a consultation process with “good faith”. Despite its progressive element, however, such an expansion remains insufficient to the protection over the rights protection of the indigenous peoples. The reasons are two-fold. First, under a more critical examination, the implementation of any extractive projects on the indigenous lands should be viewed as incompatible with the right to self-determination of indigenous people. The Sarayaku people, for example, has been mobilizing that the living forest – the nature itself – should also be considered to have the right to FPIC [44]. Although this might sound foreign to the western-centric tradition where the concept of right centers around humans, the Sarayaku people has always conducted the practice of acquiring the consent of the forest, and has viewed the nature as a living being. In this sense, not only has the current legal framework failed to accommodate the knowledge and lived experience of the Sarayaku people, but indeed any extractive project will be against the indigenous cosmology [45]. The second reason is that, even when the consultation is carried out in good faith and in accordance with the regulations of the IACtHR, the framework adopted in describing and organizing these consultations were still largely western-centric and involve foreign concepts to the indigenous peoples. For example, the states have the tendency to ignore the multiplicity of governing structures within the indigenous communities, and appeal only to the externally authorized authority in the process of consultation. The opinions of other internal governing structures that also deal with issues of land and resources, which are also significant, thus become neglected [46]. The concept of timetable, which was not part of the indigenous culture and often hindered full deliberation and internal discussion of opinions were sometimes present in states’ attempts of consultation [47]. In this sense, the current requirements on “good faith” needs to be further specified and expanded, and should strive to respect and prioritize the customary law of the indigenous communities, instead of trying to rule over it. In other words, to provide a more effective protection over rights of indigenous peoples, the Court needs to further expand its interpretation of the right to FPIC.

Conclusion

Applying the non-restrictive and evolutive principles, the IACtHR has expanded the rights that are protected under the ACHR. Namely, it verifies and extends the Indigenous peoples’ right to land and the right to substantive consultation as well as FPIC, both of which are essential to just transition. With that said, the Court has yet failed to surpass the limitations of a narrower reading of the FPIC, which is essential both because of the special connection between the land and the indigenous cultures and because of the need for the indigenous community to decide their own developmental goals, and thus fail to deliver full protection over the indigenous rights to self-determination.

Footnotes

[1] OHCHR, Annual Half-Day Panel Discussion on the Rights of Indigenous Peoples, Concept Note, 60th session of the Human Rights Council, September 24, 2025.

[2] Yota Negishi, “The Pro Homine Principle’s Role in Regulating the Relationship between Conventionality Control and Constitutionality Control,” European Journal of International Law 28, no. 2 (May 2017): 457–481.

[3] American Convention on Human Rights, art. 29(b), Nov 22, 1969.

[4] Jo M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (2nd ed., CUP 2013).

[5] Vienna Convention on the Law of Treaties, art. 31, May 23, 1969.

[6] Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 of the American Convention on Human Rights), Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, 52 Nov 13, 1985.

[7] Sergio Garcia Ramirez, Concurring Opinion of Judge Sergio Garcia Ramirez in the Judgment on the Merits and Reparations in the Mayagna (Sumo) Awas Tingni Community Case, 19 ARIZ. J. INT'L & COMP. L. 449, 449, 2002.

[8] The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, Inter-Am. Ct. H.R. (ser. A) No. 16, para. 144 (Oct. 1, 1999).

[9] Almut Schilling-Vacaflor and Riccarda Flemmer, “Mobilising Free, Prior and Informed Consent (FPIC) from Below: A Typology of Indigenous Peoples’ Agency.” International Journal on Minority and Group Rights 27, no. 2 (2020): 291–313.

[10] United Nations Development Programme, “What Is Just Transition? And Why Is It Important?,” Climate Promise (blog), November 3, 2022, https://climatepromise.undp.org/news-and-stories/what-just-transition-and-why-it-important.

[11] Flávia do Amaral Vieira, “Building Pathways between Business and Human Rights and Just Transition Processes: Addressing the Role of Corporations in Latin America,” Rights as Usual, July 22, 2025, https://rightsasusual.com/2025/07/22/building-pathways-between-business-and-human-rights-and-just-transition-processes-addressing-the-role-of-corporations-in-latin-america/.

[12] S. James Anaya, Indigenous Peoples in International Law, 2nd ed. (Oxford: Oxford University Press, 2004).

[13] Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 79, ¶ 103 (Aug. 31, 2001).

[14] Ibid.

[15] Ibid., para.144.

[16] Ibid., para. 149.

[17] Ibid., para. 148.

[18] S. James Anaya and Claudio Grossman, “The Case of Awas Tingni v. Nicaragua: A New Step in the International Law of Indigenous Peoples,” Arizona Journal of International and Comparative Law 19, no. 1 (Spring 2002): 1–15.

[19] Yakye Axa Indigenous Community v. Paraguay, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 125 (June 17, 2005).

[20] International Labour Organization, Indigenous and Tribal Peoples Convention, 1989, C169, art. 13.

[21] Yakye Axa, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 125 (June 17, 2005), para. 124.

[22] Ibid., para. 168.

[23] Ibid., para. 169.

[24] Ibid.

[25] Saramaka People v. Suriname, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 172 (Nov. 28, 2007).

[26] UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, (September 13, 2007), art. 23.

[27] International Labour Organization, Labour Statistics Convention (No. 160), 69th ILC Session, adopted 25 June 1985, entered into force 24 April 1988.

[28] Schilling-Vacaflor and Flemmer, “Mobilising Free, Prior and Informed Consent.

[29] International Labour Organization, Labour Statistics Convention (No. 160), art. 6.

[30] Ibid., art. 16.

[31] Ibid.

[32] César Rodríguez-Garavito, “Ethnicity.gov: Global Governance, Indigenous Peoples, and the Right to Prior Consultation in Social Minefields,” Indiana Journal of Global Legal Studies 18, no. 1 (2011): 263–305.

[33] Ibid.

[34] Saramaka People, Inter-Am. Ct. H.R. (ser. C) No. 172 (Nov. 28, 2007).

[35] Ibid., para. 93.

[36] United Nations, International Covenant on Economic, Social and Cultural Rights, Adopted December 16, 1966, entered into force January 3, 1976.

[37] Ibid.

[38] Saramaka People, Inter-Am. Ct. H.R. (ser. C) No. 172 (Nov. 28, 2007), para. 134.

[39] Ibid., para. 135.

[40] Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 245 (June 27, 2012).

[41] Ibid., para. 185.

[42] Ibid., para. 198.

[43] Ibid., para. 186.

[44] César Rodríguez-Garavito and Carlos Andrés Baquero-Díaz, “Reframing Indigenous Rights: The Right to Consultation and the Rights of Nature and Future Generations in the Sarayaku Legal Mobilization,” in Legal Mobilization for Human Rights, ed. Gráinne de Búrca (Oxford University Press, 2022), 73–88.

[45] Ibid.

[46] Jill Carino and Cathal Doyle, “Making Free, Prior and Informed Consent a Reality: Indigenous Peoples and the Extractive Sector,” Piplinks and Middlesex University School of Law, London, May 2013.

[47] Ibid.