Key words: Guna Indigenous People; mola designs; Nike; intellectual property rights.

The Guna Indians of the San Blas Archipelago of Panamá are famous for their tapestry designs that are used on their ‘molas’. Molas are hand-made textiles that form part of the traditional women’s clothing of the Guna. The full costume includes a patterned wrapped skirt (saburet), a red and yellow headscarf (musue), arm and leg beads (wini), a gold nose ring (olasu) and earrings in addition to the mola blouse (dulemor).

In the Guna language, ‘mola’ means ‘clothing’, and the swirling designs are coveted not just by artists all over the world but also by companies advertising their products and by the world of fashion. On sale in New York, items made up of combinations of mola squares are amazingly popular and pricey, whilst on the San Blas Islands they are the everyday component of towels, blankets, sheets, T-shirts, skirts and other textile items.

The transnational sportswear company Nike was preparing to release to the public a new trainer labelled ‘the Air Force 1’ which features a graphic design of the Puerto Rican native Coqui frog. The Guna people of Panamá, however, objected to the trainer’s launch and pointed out that the design was based on the community’s traditional ‘mole’ textile.

“We are not against our mola being commercialised. What we oppose is it being done without consulting us first,” said Belisario López, a Guna leader. Lawyers for the Guna explained that the trainer was created without the community’s permission, disregarding their intellectual property rights which are recognised in Panamanian law.

Various commentators on this matter have taken Nike to task for their poor research in believing that the design was Puerto Rican rather than belonging to the Guna. The trainer was due to be launched on 6^th June this year, but in May Agence France-Presse reported that Nike had withdrawn the product and would no longer offer it, as they had planned, for $100.

The community is seeking compensation from Nike.

Sources:

• Agence France-Presse, 22 May 2019, ‘Nike ditches shoe design after Panama’s indigenous Guna protest’

• Telesur, 24 May 2019, ‘Indigenous Guna Force Nike to Drop Shoe with ‘Stolen Design’

This text box is referred to in the book as Box 8.1 (Page 151)

The International Labour Organisation’s Convention No. 169 on Indigenous and Tribal Peoples – normally simply referred to as ILO 169 – was adopted at the International Labour Conference held in Geneva in June 1989. The Convention observed that “in many parts of the world these peoples do not enjoy the fundamental human rights to the same degree as other members of the national societies to which they belong, and recognised their aspiration to exercise control of their own institutions, their own livelihood and their economic development.”[1]

The Convention “applies to tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions …”[2]

“The basic concepts of the Convention are respect and participation. Respect for the culture, spirituality, social and economic organisation and their identity, all constituting essential premises regarding the enduring nature of indigenous and tribal peoples. … Convention No. 169 also presumes that indigenous and tribal peoples are able to speak for themselves and to take part in the decision-making process as it affects them and that they have a right to take part in this decision-making process, …”[3]

In essence, the Convention recognises:

• Land and property rights for indigenous peoples
• Equality and liberty for indigenous peoples
• Autonomy of indigenous peoples [4]

Only twenty-two nations have ratified the Convention. The following Central American nations have ratified the Convention:

• Costa Rica ratified 1993
• Guatemala ratified 1996
• Honduras ratified 1995
• Nicaragua ratified 2010
• Panama pledged to ratify 2011.

[1] International Labour Organisation (ILO) Introduction to ILO Convention No. 169, www.ilo.org/public/english/region/ampro/mdtsanjose/indigenous/derecho.htm (accessed 16.08.09).
[2] Ibid.
[3] Ibid.
[4] Unrepresented Nations and Peoples Organisation (UNPO) (2009) ‘ILO Convention 169: 20 Years Later’, The Netherlands. www.unpo.org

With the last set of additions made to The Violence of Development website (December 2021), we included a letter from the Nicaraguan government to the Organisation of American States (OAS) terminating that country’s membership of the Organisation and setting out the reasoning behind the government’s decision.

Under the Directorship of Luis Almagro, the OAS has consistently undermined and reported against those countries in Latin America and the Caribbean which follow a strongly or even slightly socially directed political and economic policy line. The OAS was largely responsible for spreading the lies about the Bolivian election which resulted in a right-wing coup which unseated the democratically elected Evo Morales. It has consistently disseminated untruths and half-truths about the Chavez and Maduro governments in Venezuela; and it has been instrumental in persuading the mainstream western media that the November election in Nicaragua was illegitimate.[1]

Before the Nicaraguan election and before Nicaragua’s withdrawal from the OAS, however, Nicaragua’s Ambassador to the OAS, Luis Alvarado, spoke at the OAS Special Session on the occasion of Indigenous Peoples’ Day. He recalled that Nicaragua is a multi-ethnic and multicultural nation.

“We celebrate the legacy of our Caciques Diriangén and Nicarao and so many other Miskito, Mayangna, Ulwa and Rama leaders, who never surrendered to colonial oppression and whose strength and wisdom inspired national independence, anti-imperialist struggle, the Sandinista Popular Revolution and the autonomy of the peoples of the Caribbean Coast and the construction of a genuine Nicaraguan democracy,” he said. He said that the government of Nicaragua has implemented “important programmes such as the Mother Earth Programme, which has allowed the demarcation and titling of 23 territories of the native and Afro-descendant peoples between 2007 and 2021, incorporating 314 communities that cover a territorial extension of more than 37,859 sq. km., with more than 205,315 inhabitants, 31 per cent of the national territory, more than any other country in our hemisphere. Technical and higher education has been strengthened, which is free through the National Technological Institute (INATEC), the community and intercultural universities, BICU and URACCAN and the Open Online University of Nicaragua (UALN) of the National Council of Universities. In the area of health, the ancestral knowledge and practices of Indigenous peoples have been integrated into the Family and Community Health Model (MOSAFC), which guarantees greater investment in health infrastructure, professional training and comprehensive organisation of the health sector, encouraging participation of all actors (midwives, healers, traditional doctors, brigadistas, nurses, doctors, wise men, etc.) in the intercultural management of health in Indigenous communities.” [Nicaraguan Delegation to the OAS, as reported in Informe Pastrán, 12 August 2021.]

[1]   See ‘Ten Reasons Almagro Has To Go’: https://popularresistance.org/ten-reasons-almagro-has-to-go/

We are grateful to the Centre for International Environmental Law (CIEL ) for making their relevant press release available. We have used CIEL’s material before and are pleased to be able to do so again on account of their reliability. “CIEL uses the power of law to protect the environment, promote human rights, and ensure a just and sustainable society.”

www.ciel.org , July 2023

Key words: Panama; Indigenous communities; free, prior and informed consent (FPIC); World Bank; Fourth electrical transmission line; Ngäbe-Buglé comarca.

In a historic investigation published on 16 June [2023], the independent accountability mechanism of the World Bank’s International Finance Corporation (IFC), the Compliance Advisor Ombudsman (CAO), found that the IFC failed to act in accordance with its own sustainability policy when helping to structure and tender a public-private partnership for the financing, construction, and operation of Panama’s Fourth Electrical Transmission Line project.

The investigation concluded that, as a consequence, free, prior, and informed consent (FPIC)[1] processes have not been carried out properly with the Indigenous Peoples in the region who could be affected. The CAO’s findings also recognise that Indigenous communities located outside of the officially recognized territory of the Ngäbe-Buglé Comarca have been excluded from FPIC processes altogether.

The IFC has been advising Panama’s state-owned electrical transmission company, ETESA, during the initial phases of the Fourth Line project before construction begins. According to the CAO, the IFC failed to provide adequate guidance regarding the need to engage with stakeholders before ETESA began a preliminary FPIC process, despite known contextual risks that could make it difficult to carry out proper consultations with Indigenous communities in the region. Similarly, the IFC’s guidance about designing the primary FPIC process left significant gaps regarding how to ensure an inclusive and culturally appropriate FPIC process. The investigation found that the IFC’s reliance on ETESA’s assurances regarding the adequacy of its FPIC processes was a key factor that led to these shortcomings.

In response to the CAO’s findings and recommendations, the IFC Board of Directors approved the IFC’s Management Action Plan to address these shortcomings. The plan was approved after the IFC added commitments to advise ETESA on an ongoing basis about the measures required to ensure that all Indigenous communities that could be affected by the project are identified and properly included in mandatory FPIC processes. In addition, the IFC agreed to provide guidance regarding the project’s environmental and social impact assessment, including the expertise and resources needed to conduct proper FPIC processes. The IFC also agreed to take steps to ensure that contextual risks are considered in similar projects going forward.

The case will now enter a monitoring phase, during which the IFC will report every six months to the CAO and the IFC Board of Directors regarding the actions it has taken to fulfill the commitments made to address the shortcomings identified in the CAO’s investigation report.

Feliciano Santos, a representative of Indigenous Ngäbe, Buglé, and Campesino communities and coordinator of the Movement for the Defense of the Territories and Ecosystems of Bocas del Toro (MODETEAB), stated:

When we submitted our complaint about the Fourth Line project to the CAO in 2018, we hoped that the CAO would recognize the legitimacy of our concerns and emphasize the need for the IFC to take action to ensure that our rights as Indigenous Peoples are respected in this project.  Now, four years later, the CAO has done just that.

We welcome the CAO’s findings and the actions that the IFC has committed to take in response. We reiterate that the IFC’s role is particularly important in light of ETESA’s previous failures to carry out adequate consultations — let alone proper FPIC processes — with communities affected by its projects, including the Third Electrical Transmission Line. 

While the hard work of ensuring full respect for our rights in practice still lies ahead, the outcome of this investigation reinforces the centrality of FPIC for development actors and paves the way for the IFC to play a constructive role in assisting ETESA in carrying out robust FPIC processes with our Indigenous communities. This is essential not only to meet the IFC’s own standards, but also to safeguard our Indigenous communities, our cultural heritage, our lands, and our resources in the face of the Fourth Line project.

Sarah Dorman, an attorney with the Centre for International Environmental Law (CIEL), stated:

This is just the second case to be completed under the CAO’s new policy, which provides new guarantees for consulting with complainants about the commitments and actions that should be taken in response to CAO findings. This case shows that these accountability processes can work, especially when the concerns and insights of affected community members are taken seriously and incorporated in action plans at early, pre-construction stages of development projects — before irreparable harm might be done.

Just as importantly, the findings in this case represent a milestone for ensuring that Indigenous Peoples’ rights are respected in the context of projects supported by the IFC — not just in policy, but in practice. Through this investigation, the CAO confirmed that respect for Indigenous Peoples’ right to free, prior, and informed consent is a prerequisite for sustainable development. And it sets the critical precedent that development finance actors cannot shirk their responsibilities to Indigenous Peoples with impunity.

[1]  Note regarding FPIC: The right of Indigenous Peoples to free, prior, and informed consent allows Indigenous Peoples to give or withhold their consent for projects that would affect them or their territories. FPIC is now a well-established right: Not only is it enshrined in numerous regional and international instruments related to Indigenous Peoples, but it has also been incorporated into the environmental and social policies of development banks such as the IFC.

This text box is referred to in the book as Box 8.2 (Page 152)

In September 2007 the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples. The Declaration had been negotiated for over twenty years between nation states and indigenous representatives.

143 nations voted in favour of the Declaration with 11 abstentions and only four nations (Canada, Australia, New Zealand and the United States) voting against.

Survival International director Stephen Corry said, ‘The declaration on indigenous peoples, with its recognition of collective rights, will raise international standards in the same way as the universal declaration on human rights did nearly 60 years ago. It sets a benchmark by which the treatment of tribal and indigenous peoples can be judged, and we hope it will usher in an era in which abuse of their rights is no longer tolerated.’[1]

The declaration recognises the rights of indigenous peoples to ownership of their land and to live as they wish. It also affirms that they should not be moved from their lands without their free and informed consent.

[1] Survival International is an organisation which supports tribal peoples. It was founded in 1969. www.survival-international.org

THE ANCHORAGE DECLARATION

http://www.indigenoussummit.com/servlet/content/declaration.html
Indigenous Peoples Global Summit on Climate Change, 24 April 2009

From 20-24 April, 2009, Indigenous representatives from the Arctic, North America, Asia, Pacific, Latin America, Africa, Caribbean and Russia met in Anchorage, Alaska for the Indigenous Peoples’ Global Summit on Climate Change. We thank the Ahtna and the Dena’ina Athabascan Peoples in whose lands we gathered.

Calls for Action

6. We challenge States to abandon false solutions to climate change that negatively impact Indigenous Peoples’ rights, lands, air, oceans, forests, territories and waters. These include nuclear energy, large-scale dams, geo-engineering techniques, “clean coal”, agro-fuels, plantations, and market based mechanisms such as carbon trading, the Clean Development Mechanism, and forest offsets. The human rights of Indigenous Peoples to protect our forests and forest livelihoods must be recognized, respected and ensured.