The Rights of Maroons In International Human Rights Law
The vast majority of American states have ratified international human rights treaties that obligate them to respect the rights of individuals and certain groups. Some have also ratified International Labor Organization Convention No. 169 (ILO 169), which deals exclusively with the rights of indigenous and tribal peoples. The rights of Maroon individuals and collectivities are also protected under these instruments. This article provides an overview of the nature and content of those rights, with an emphasis on collective rights.
Prior to turning to the substance of Maroon rights, I should point out that states have an obligation to give effect to ratified human rights treaties in their domestic law, as without these measures international guarantees for the most part cannot be enforced or enjoyed by the intended beneficiaries. By virtue of both general principles of international law and specific provisions found in human rights treaties,(1) states are obligated, first, to give effect without discrimination to human rights in their domestic law by constitutional amendment, adopting new legislation and/or modifying existing legislation; and second, to ensure that effective remedies are in place permitting rights to be enforced in domestic courts and other tribunals.
While the underlying rationale for protecting the collective rights of Maroons -- the right to cultural integrity, the right to self-determination, the right to equality before the law and freedom from discrimination -- holds true in all cases, the manner in which Maroons are classified under international law -- as minorities, as tribal peoples, or as some other entity -- is important. Without engaging in a (contentious) discussion of how to classify Maroons, I will simply state that under international definitions, imperfect as they are, Maroons can be described as both "minorities" and as "tribal peoples," the latter being most relevant in terms of collective rights.(2) And while they are not indigenous peoples, Maroons enjoy largely the same rights as indigenous peoples under international law -- the main distinction being that Maroons cannot claim aboriginality and the rights that attach to that status. For this reason, but also due to a lack of international jurisprudence on Maroon rights, I will make frequent reference here to indigenous peoples' rights.
Maroon Rights Under International Instruments
Minority rights are encapsulated in Article 27 of the UN International Covenant on Civil and Political Rights (ICCPR), which provides that "[in] those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of the group, to enjoy their own culture, to profess and practice their own religion, or to use their own language." These rights are held by individuals but exercised "in community with other members of the group," thereby providing some measure of collectivity. Similar language is found in Article 30 of the UN Convention on the Rights of the Child; the points made here are therefore also relevant to the rights of Maroon children, and by implication, the larger community, under that instrument.
The UN Human Rights Committee (HRC) has interpreted Article 27 to include the "rights of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong." In reaching this conclusion, the HRC recognized that indigenous peoples' subsistence and other traditional economic activities are an integral part of their culture, and that interference with those activities can be detrimental to their cultural integrity and survival. By implication, the land, resource base, and the surrounding environment also require protection if subsistence activities are to be safeguarded.
The HRC further elaborated on its interpretation of Article 27 by stating in its 1994 General Recommendation No. 23:
[One] or other aspects of the rights of individuals protected [under Art. 27] -- for example to enjoy a particular culture -- may consist in a way of life which is closely associated with a territory and [with] its use of resources. This may particularly be true of members of indigenous communities constituting a minority.... With regard to the exercise of the cultural rights protected under Article 27, the committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, specifically in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.... The Committee concludes that Article 27 relates to rights whose protection imposes specific obligations on States parties. The protection of these rights is directed to ensure the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole.
According to an HRC statement in July 2000, Article 27 requires that "necessary steps...be taken to restore and protect the titles and interests of indigenous persons in their native lands" and that "securing continuation and sustainability of traditional forms of economy of indigenous minorities (hunting, fishing and gathering), and protection of sites of religious or cultural significance for such minorities...must be protected under Article 27."(3)
The basis for the protection of indigenous peoples' land and other rights under Article 27 is the right to enjoy culture. Just as with the cultures and economies of indigenous peoples, those of the Maroons are fundamentally related to the ownership, use, and enjoyment of their lands and territories. These territories are inextricably intertwined with the social, ancestral, and spiritual relationships that govern Maroon daily lives. Consequently, for Maroons to enjoy their culture, the same level of protection must be accorded.
Under the Convention on the Elimination of All Forms of Racial Discrimination (CERD), states-parties are obligated to recognize and respect the right "to own property alone as well as in association with others" and the right to inherit both without discrimination. As with indigenous property, peoples, traditional Maroon land tenure or property ownership is collective, with individuals holding subsidiary usufruct rights, and such land tenure is different from property rights regimes set out in state legal systems. Failure to recognize and protect Maroon property and inheritance systems and rights is discriminatory and denies equal protection of the law.
In its 1997 General Recommendation, the UN Committee on the Elimination of Racial Discrimination elaborated on state obligations and indigenous rights under CERD. In particular, the Committee called upon states-parties to "recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return these lands and territories," and to "ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent."
Similar conclusions about indigenous peoples' rights have been reached under Inter-American human rights instruments, specifically the American Convention on Human Rights, that apply equally to Maroons. First, it is well established in the Inter-American system that indigenous peoples have been historically discriminated against and disadvantaged and, therefore, that special measures and protections (affirmative action) are required if they are to enjoy equal protection of the law and the full enjoyment of other human rights. These special measures include protection for indigenous languages, cultures, economies, ecosystems and natural resource base, religious practices, and "ancestral and communal lands," and the establishment of an institutional order that facilitates indigenous participation through their freely chosen representatives.(4) The Inter-American Commission of Human Rights (IACHR) characterized the preceding as "human rights also essential to the right to life of peoples."(5) Protection of these rights, then, amounts to a broad prohibition of assimilation and ethnocide.
The IACHR has dealt with indigenous rights in the context of environmental degradation and development activities on a number of occasions. Most recently, it found that Nicaragua had violated the right to property, judicial protection, and due process of the law by granting logging concessions on indigenous lands without taking steps to title and demarcate those lands and to ensure that the affected communities could participate in decision-making about those concessions.(6) (See Theodore Macdonald's article on page 66.) It looked extensively at environmental issues in its 1997 Ecuador Report, which examined in detail the rights of indigenous peoples affected by oil drilling activities. It held that the right to life and to a healthy environment are inseparable, that human rights issues arise when regulations protecting the environment are absent or not enforced, and that a right to access to information and participation in decision-making about environment-and development-related matters exists pursuant to rights set out in the American Convention.
Addressing rights to lands, territories, and resources, the IACHR has found that indigenous peoples' property rights derive from their own forms of land tenure and traditional occupation and use.(7) It has related these rights on a number of occasions to cultural integrity, thereby recognizing the fundamental connection between indigenous land tenure and resource security and the right to practice, develop, and transmit culture free from unwarranted interference. For instance, in 1997, the IACHR stated: "For many indigenous cultures, continued utilization of traditional collective systems for the control and use of territory are essential to their survival, as well as to their individual and collective wellbeing. Control over the land refers to both its capacity for providing the resources which sustain life, and to `the geographical space necessary for the cultural and social reproduction of the group.'"(8) It reiterated this conclusion in its Second Report on the Human Rights Situation in Peru, stating: "Land, for the indigenous peoples, is a condition of individual security and liaison with the group. The recovery, recognition, demarcation and registration of the lands represents essential rights for cultural survival and for maintaining the community's integrity."(9)
Finally, in 1997, the Heads of State of the Caribbean Community adopted the CARICOM Charter of Civil Society, which provides in Article XI that "[the] States recognise the contribution of the indigenous peoples to the development process and undertake to continue to protect their historical rights and respect the culture and way of life of these peoples." This charter applies to both Suriname and Jamaica, although its scope -- in particular, the question of whether Maroons are included in the category "indigenous peoples" -- has yet to be articulated.
Territorial rights are interrelated with rights to autonomy and self-government and both are related to Maroon rights guaranteed by their treaties with colonial authorities. The Organization of American States (OAS) and the United Nations, in their respective draft declarations on the rights of indigenous peoples, have recognized the right to autonomy and self-government as a mode of exercising the right to self-determination within existing states; the draft declarations also require respect for rights guaranteed under treaties between indigeous peoples and states. From the Maroon perspective, their historical treaties are sacred covenants by which they exchanged a cessation of hostilities for political, territorial, and cultural autonomy. The treaties stand as a testament to the struggle of their most powerful ancestors and set immutable boundaries within which they can exist and prosper as free peoples. (Bilby, 1997)
Maroons can also be classified as tribal peoples. Tribal peoples enjoy essentially the same rights as indigenous peoples under international law. ILO 169 defines tribal peoples as "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 or by special laws or regulations." The IACHR used the same language when describing non-indigenous "tribal peoples" in Article 1 of its proposed American Declaration on the Rights of Indigenous Peoples, thereby according Maroons the same rights as indigenous peoples under that instrument. This proposed declaration is presently under review by a working group of the OAS Committee on Juridical and Political Affairs prior to submission to the OAS General Assembly for adoption at some point in the future.
Together with its predecessor ILO No. 107, ILO 169 is the only binding international treaty to deal exclusively with indigenous and tribal peoples' rights. It is based on the principle that indigenous and tribal peoples should "enjoy as much control as possible over their own economic, social and cultural development." It recognizes that indigenous and tribal peoples "have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual wellbeing and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development." It also contains six articles on indigenous and tribal land and resource rights, basing these rights on traditional occupation and use of land and resources rather than on grants from the state, and a number of provisions relating to consultation and participation in decision-making. To date, of the states in which Maroons live, only Ecuador and Colombia have ratified ILO 169. In both countries, ILO 169 provided the basis for constitutional and legislative changes recognizing some of the rights of Maroons in domestic law.(10) Brazil is in the process of ratification, and Maroons in Suriname are lobbying the state (with little response) to ratify it.
Human Rights Cases Concerning Maroons
It is not surprising that international human rights law and bodies have dealt with indigenous peoples' rights to a greater extent than Maroon rights, given the strength and proactive nature of the international indigenous movement. Throughout the past 30 years, indigenous peoples have actively engaged their states, the UN, the OAS, the World Bank, and others to account for their rights and have sought enforcement of their rights through international mechanisms such as the HRC and IACHR. By comparison, and with few exceptions, Maroons have only recently begun to assert their rights at the domestic level and have not sought redress at the international level. While the IACHR has addressed Maroon rights in its country reports on Colombia (1999), Ecuador (1997), and Suriname (1983, 1985), it is only Suriname Maroons who have sought enforcement of their rights in the IACHR. Even then, only one case, filed in October 2000, deals directly with rights to ancestral lands and resources, treaty rights, rights to cultural integrity, and rights to participate in decisions affecting Maroon communities.
The best known case is Aloeboetoe et. al, decided by the Inter-American Court of Human Rights in 1993, in which Suriname was held responsible for the extra-judicial killing of seven Saramaka Maroons during the civil war of 1986-1992. (Padilla, 1995; Price, 1995) In determining reparations, the Court explicitly took account of Maroon customs and laws (e.g., polygyny) to set the amount of compensation due the victims' dependants. It refused, however, to require compensation for violations of Maroon territorial and treaty rights, effectively declaring that the Saramaka treaty of 1762 was null and void. A second case dealt with the massacre of more than 50 Ndyuka women, children, and elderly persons by the Surinamese army at the village of Moiwana in 1986. This case was declared admissible by the IACHR in March 2000; a decision is presently pending on the merits and possible adjudication pursuant to the binding jurisdiction of the Inter-American Court.(11)
A third, most recent, case was filed by 12 Saramaka leaders (captains) on behalf of their respective matrilineal clans and the Association of Saramaka Authorities, a body representing the majority of Upper Suriname River Saramaka captains.(12) The petition alleges that Suriname has been violating the rights of Saramakas -- matrilineal clans, individuals, and the Saramaka people as a whole -- to property, to participate in decisions affecting them, to cultural integrity, to judicial protection, and to other rights guaranteed under international instruments ratified by Suriname such as the right to self-determination. The case was filed with the IACHR directly due to the absence of effective remedies in Surinamese law pertaining to Maroon land and other rights; it is based on Suriname's failure to recognize Saramaka territorial and treaty rights and its active violation of those rights by grants of logging and mining concessions in Saramaka territory. The petitioners seek IACHR support to establish procedures in domestic law that will recognize Maroon territorial rights and provide for the demarcation of their communal lands, for an immediate suspension of all logging and mining activities in their territory, and for reparations for past violations. As with the Moiwana case, Suriname has thus far failed to respond in any way to the IACHR's requests for information about the allegations made in the petition.
The basis for asserting and protecting Maroon rights is firmly entrenched in international human rights law. But as with indigenous peoples, much work is required to ensure that states implement and respect those rights at the domestic level. While Colombia, Ecuador, and Brazil have made significant progress (on paper, at least), Suriname, French Guiana, and Jamaica trail behind. And the situation on the ground in Colombia, Ecuador, and Brazil demonstrates that legal guarantees are not enough to ensure cultural integrity and survival. Guarantees must be backed up with effective and proactive enforcement measures. In this respect, it is crucially important that Maroons themselves assert and defend their rights and interests.
In Suriname, where legal guarantees are entirely absent, the situation is most dire. There, Maroons are experiencing an onslaught of mining and logging operations that is substantially undermining their ability to sustain themselves and causing massive environmental degradation and severe social and health problems. Matawai Maroons, for instance, have recently been forced to import water due to river pollution caused by mining. Conservation activities, however laudable in principle, are also cause for concern, as they have expropriated Maroon lands and curtailed Maroon subsistence rights. Whether the latest case filed by the Saramaka with the IACHR will change this situation remains to be seen. Needless to say, other Maroon peoples are looking on with great interest.
References & further reading
Bilby, K. (1997). Swearing by the Past, Swearing to the Future: Sacred Oaths, Alliances, and Treaties among the Guianese and Jamaican Maroons. Ethnohistory 44, pp 655-689.
Kambel, E.-R. & MacKay, F. (1999). The Rights of Indigenous People and Maroons in Suriname. Copenhagen: International Work Group for Indigenous Affairs; Moreton-in-Marsh, England: The Forest Peoples Programme.
Padilla, D.J. (1995). Reparations in Aloeboetoe v. Suriname. Human Rights Quarterly 17, pp 541-555.
Price, R. (1995). Executing Ethnicity: The Killings in Suriname. Cultural Anthropology 10, pp 437-471.
(1). See for instance, Article 31 of the Vienna Convention on the Law of Treaties, which restates the general principle of pact sunt servanda, Articles 1 and 2 of the American Convention on Human Rights, and Article 2(1) of the International Covenant on Civil and Political Rights.
(2). See Article 1 of International Labor Organization Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1989) and Article 1 of the Draft American Declaration on the Rights of Indigenous Peoples. According to World Bank Operational Directive 4.20 (and the new draft OP.410 [see also page 68, this issue]) on Indigenous Peoples, Maroons would be classified as indigenous for the purposes of applying World Bank safeguard standards.
(3). Concluding observations of the Human Rights Committee: Australia. 28/07/2000. CCPR/CO/69/AUS. (Concluding Observations/Comments), at paras. 10 and 11.
(4). See, among others, Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, OEA/Ser.L/V/II.62, doc.26. (1984), at 76-78, 81; Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96 doc.10, rev.1 (1997), at 103-4; Case 7615 (Brazil), OEA/Ser.L/V/II.66, doc 10 rev 1 (1985), at 24, 31; and Third Report on the Situation of Human Rights in The Republic of Guatemala, OEA/Ser.1/V/II. 67, doc. 9 (1986), at 114.
(5). Third Report on the Situation of Human Rights in The Republic of Guatemala, ibid.
(6). Case 11.577 (Awas Tingni Indigenous Community -- Nicaragua), Annual report of the IACHR. OEA/Ser.L/V/II.102, Doc.6 rev., (Vol. II), April 16, 1999, p. 1067, at para. 108. This case was recently adjudicated by the Inter-American Court of Human Rights, which has binding jurisdiction.
(7). Ibid. See also Art. XVIII, Proposed American Declaration on the Rights of Indigenous Peoples, approved by the IACHR in 1997.
(8). Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96 doc. 10, rev. 1 (1997), at 115.
(9). Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/II.106, Doc 59 rev., June 2, 2000, at Ch. X, para. 16.
(10). In Colombia, for instance, see Transitional Article 55, Colombia Const. 1991; Law No. 70 of 1993; and Decree 1745 of 1995.
(11). Case 11.281 (Village of Moiwana), Suriname. Report 26/00 on Admissibility.
(12). Case 12.338 (Twelve Saramaka Communties), Suriname.
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