Inter-American Court of Human Rights Rules in Favor of Nicaraguan Indians
On September 17, 2001, the Inter-American Court of Human Rights, the highest tribunal in the Americas, released its decision in a case concerning the small Mayagna (Sumo) community of Awas Tingni, located on the forested area of Nicaragua's Caribbean coastal regional. In so doing, the Court affirmed the existence of indigenous peoples' collective rights to their land, resources, and environment. The justices declared that the community's rights to property and judicial protection had been violated by the Nicaraguan government when it granted concessions to a Korean lumber company to log on the community's traditional land without even consulting with the community, let alone obtaining its consent.
Deeming Nicaragua's legal protections for indigenous lands "illusory and ineffective," the Court ruled that not only did the government discriminate against the community by denying them equal protection under the laws of the state, it also violated its obligations under international law to bring its domestic laws in line with the rights and duties articulated in the American Convention on Human Rights, of which Nicaragua is a signatory. In its ruling, the Court declared that for indigenous communities, the relationship with the land is not merely a question of possession and production; the land is also a material and spiritual element which they should fully enjoy, as well as a means of preserving their cultural heritage and passing it on to future generations.
The Court ordered the government to demarcate the land, recognizing the community's ancestral and historical title to it, and to establish legal procedures for the demarcation and titling of the traditional lands of all indigenous communities in Nicaragua. The Court also required the government to submit biannual reports on the measures it takes to comply with the Court's decision.(1)
The road leading to these decisions has been a long one. Since 1992, Awas Tingni has attempted to attain formal recognition of broad territorial rights in the face of encroaching international lumber companies. In a sense, Awas Tingni becamea test case, challenging the vague or non-existent rules that have stalled efforts to establish clear land rights for the community and for Nicaragua's Atlantic Coast region in general. The decision will reverberate throughout Latin America, where numerous and similar territorial claims have brought little, if any, government response.
Denial of indigenous land claims is hardly new. It has been endemic in Latin America since the 16th century. Until quite recently, however, whenever Latin American Indians took action on this issue, they largely stood alone. Such is no longer the case. An indigenous movement -- with numerous local, national, and international organizations -- now sweeps from Mexico to Chile. Indians' actions -- most dramatically illustrated by recent strikes and attempted coups in Ecuador and Bolivia -- now capture the attention of a wide range of journalists, academics, scholars, policy-makers, and politicians. The treatment of the Awas Tingni case in turn illustrates how indigenous concerns -- previously ignored as simple "claims" by marginal people -- have been elevated to internationally recognized legal "rights," that must be honored. Indians now have powerful national and international legal mechanisms with which to press their claims. Since 1995, the Weatherhead Center for International Affairs's Program on Nonviolent Sanctions and Cultural Survival (PONSACS) -- working in close collaboration with Nicaraguan and U.S. Attorneys, the Indian Law Resource Center, and the community of Awas Tingni -- has drawn on anthropological techniques to identify and document the local understanding of and justification for land and resource rights in this landmark case.
Recognizing Indigenous Land Rights
Nicaragua's 1985 constitution affirms indigenous rights to communal land and natural resources. That guarantee was restated in 1987 when the Nicaraguan National Assembly granted regional autonomy to Nicaragua's Atlantic Coast region. Likewise, the American Convention on Human Rights, legally binding throughout the Americas, states that each person has the right to use and enjoy property and interprets that right to include traditional land tenure of indigenous peoples and communities. The International Labor Organization's Convention #169 (ILO 169) -- which Nicaragua has supported at the United Nations but has not yet formally ratified -- most clearly specifies that "rights" shall be recognized and respected for those lands or "territories" that indigenous people have "traditionally used and occupied." The broad, plural term "rights" is significantly different from a specific "right," such as a clear title or exclusive use. Indigenous land rights, quite simply, emanate from long-term use and occupancy. Once these rights are recognized, the question of how they are subsequently exercised is determined through negotiation and consultation between the land's occupants and the state. It is Awas Tingni's general territorial rights that Nicaragua has refused to recognize and subsequently negotiate.
PONSACS' role was consequently to document, through ethnographic research, the community's current and historical use and occupancy of its territory. These patterns were illustrated through computer-generated maps (geographic information systems, or GIS). The preliminary research for these maps was one of the interesting (and surprising to the Nicaraguan defense attorneys) anthropological "techniques" used. After a short period of training by an ethnographer, members of the community (most of whom had a formal education only through primary school) plotted -- flawlessly -- most of the critical geographic data (houses, garden plots, hunting and fishing areas, and sacred sites) through the use of simple but sophisticated electronic global positioning systems (GPS) instruments. This basic anthropological research was not designed to win a court case (none was pending at the time of the initial research), but simply to draw on community members' existing knowledge, to define the parameters of their territory, and to explain their reasons for establishing those lines.
In the early 1990s, Nicaragua's economic demands led to a rush toward the resource-rich (in tropical hardwoods and minerals) areas of the coastal, tropical forest uplands of the Northern Autonomous Region. PONSACS' Awas Tingni project began when a joint Nicaraguan-Dominican lumber company sought logging rights on Awas Tingni lands after the Ministry of Natural Resources had, without informing the residents, declared the region a protected area. In May 1994, leaders of Awas Tingni signed a trilateral agreement with the Nicaraguan-Dominican lumber company and the government of Nicaragua for lumbering on 42,000 hectares of tropical rain forest claimed by the community. This agreement, negotiated under the eye of an international environmental organization and supported by specialists in national and international law, led to a community-based natural forest management project that was economically beneficial, environmentally sound, and respectful of human rights.
To strengthen compliance with the agreement and to deal with any future disputes, the community members sought formal recognition of their territorial claims. In 1995, they began a land tenure initiative through which their claims could be supported by community-assisted, anthropological and geographical research. PONSACS was asked to assist with anthropological research and technical support for a community-mapping project, while others provided national and international legal assistance (international law specialist, Professor S. James Anaya of the University of Arizona Law School and a Special Attorney for the Indian Law Resource Center, as well as a PONSACS affiliate, has been the lead attorney throughout this case).
This work, initially considered a preventative tool, took on immediate significance in late 1995. Community members found that yet another government lumber concession on their lands had been awarded to a large Korean corporation (Sol de Caribe S.A., known as SOLCARSA). A review of the company's management plan and of the annual schedule of logging sites within the concession revealed that all sites were located on lands to which community members had significant current and historical use rights and cultural claims -- claims the anthropological research had identified and mapped.
Awas Tingni, its members, and its lawyers responded to this violation with litigation. The community first issued a legal complaint at a regional appellate tribunal. The complaint argued that a government body, the Ministry of the Environment and Natural Resources, was in violation of laws approved by the Nicaraguan legislature. The tribunal ruled that the community was fully aware of the agreement and had thus given tacit approval to the project. The community appealed the decision to the Nicaraguan Supreme Court. Though it found the concession to be "illegal," the Court took no action to stop the work. In late 1995, with no recourse obtained from within the national legal system, a petition was submitted to the Inter-American Commission on Human Rights (INCHR) alleging Nicaragua's failure to observe international standards, in this case the American Convention on Human Rights. The Inter-American Commission on Human Rights accepted the petition and recommended that the parties seek a "friendly settlement" -- one mutually negotiated and accepted with consent.
Meanwhile, the World Bank approved a broad-based sectoral loan to Nicaragua that was earlier withheld due to generally unclear land-tenure standards in the region and in Awas Tingni in particular. It also provided funds for a research project to survey the issues of land tenure along the entire Atlantic Coast region and to make subsequent recommendations. Using research methods similar to those of the Awas Tingni Project (ethnography and mapping), researchers from the Central American and Caribbean Research Council undertook a broad study and prepared a detailed report, the Diagnóstico general sabre la tenencia de la tierra en las comunidades indígenas de la Costa Atlántica. (1998) Their research illustrated extremely unclear, often overlapping local perceptions of land tenure. The report strongly recommended immediate remedial actions to avoid or decrease inter-community conflicts. The Nicaraguan government never distributed or circulated the report. The researchers, however, testified in support of Awas Tingni's claim in San José.
Since filing the petition with the Inter-American Commission on Human Rights, numerous efforts to reach a friendly settlement acceptable to the INCHR have failed. In June 1998, the Commission, which has no sanctioning capacity, transferred the case to the Inter-American Court on Human Rights, which does have sanctioning power.
In San José, from November 15-17, 2000, the Court heard the case. The principal witnesses for the prosecution were three Mayagna Indians from the community of Awas Tingni and the PONSACS anthropological researcher who provided the ethnographic study and related maps. More than a dozen "expert witnesses" from Nicaragua and throughout the Americas also testified on behalf of the community. The decision in favor of the community is a landmark in terms of its impact on land rights in Nicaragua, where most indigenous communities exist with precarious tenure. Equally important and clearly more far-reaching, a decision favorable to the community will have wide regional impact and will set a precedent for action, particularly in countries that have ratified ILO 169. That convention requires formal recognition of lands or territories "traditionally" occupied by indigenous peoples.
Without demarcation of their lands, those of Awas Tingni and of any of the innumerable communities in similar situations remain vulnerable to invasion by parties interested in natural resource exploitation. Threats to indigenous lands throughout the Atlantic Coast of Nicaragua have raised the possibility of social unrest and even violence. Similar tensions and underlying concerns help to explain, in large part, recent direct action -- protests, strikes, uprisings, and marches -- by Indian peoples in Colombia, Ecuador, and Bolivia. The Court's decision thus sets a far-reaching precedent affirming indigenous land rights, not only for the indigenous communities of the Atlantic Coast, but also for indigenous peoples throughout the hemisphere. Moreover, the decision, by specifying required actions to support broad laws, strengthens the rule of law throughout the region.
Ironically, now that the community has received a favorable opinion, the Nicaraguan government will simply be required to do what it could have done several years ago at far less expense and embarrassment. The government must begin to undertake its obligation to respect and subsequently negotiate indigenous land rights by demarcating and titling the region's communal lands. The Awas Tingni case illustrates that on some occasions, by invoking legal sanctions, traditionally less powerful groups can begin to balance structural asymmetry and force serious negotiation.
(1). Some of the text included here is drawn from the case "Summary" prepared by the Indian Law Resource Center (see their Web site at indianlaw.org).
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