Date: Wed, 22 Jul 98 12:45:27 CDT
From: email@example.com (Rich Winkel)
Subject: NICARAGUA: Sued by Inter-American Commission of Human Rights
/** headlines: 160.0 **/
** Topic: NICARAGUA: Sued by Inter-American Commission of Human Rights **
** Written 9:03 AM Jul 21, 1998 by newsdesk in cdp:headlines **
/* Written 12:02 PM Jul 20, 1998 by firstname.lastname@example.org in saiic.indio */
Nicaragua is sued before the Inter- ---------- */
The Inter-American Commission of Human Rights of the Organization of American States has filed a complaint against the government of Nicaragua, charging it with violating the traditional land rights of the Mayagna indigenous community of Awas Tingni. The complaint was lodged at the beginning of June with the Inter-American Court of Human Rights. The Court, which is based in San Jose, Costa Rica, notified the Nicaraguan government of the complaint on June 19.
The complaint before the Court originated with a petition filed by the community of Awas Tingni in October 1995 with the Inter-American Commission on Human Rights. The Commission is the branch of the Organization of American States (OAS) responsible for the investigation and monitoring of human rights abuses. In the petition before the Commission, the community of Awas Tingni alleged that the Nicaraguan government had not met its legal obligations under the Nicaraguan Constitution and international law by failing to recognize and safeguard the community's rights to the lands that its members have traditionally occupied and used. Both the Nicaraguan Constitution and international law establish that indigenous peoples have rights to the lands that they have used and occupied according to custom. In spite of various efforts by the community of Awas Tingni to formally demarcate or achieve other specific legal recognition of its traditional lands, the community's use and occupancy of those lands have become increasingly threatened.
Rather than respond to Awas Tingni's requests that its land rights be respected, the Nicaraguan government ignored those rights and granted a concession to a Korean timber company, Sol de Caribe S.A. (SOLCARSA) to log lands traditionally held by Awas Tingni. The Ministry of the Environment and Natural Resources (MARENA) granted SOLCARSA logging rights to 62,000 hectares ( nearly 160,000 acres), without consulting with Awas Tingni nor without taking into account Awas Tingni's traditional use and occupancy patterns within those lands. In its petition to the Inter-American Commission, the community of Awas Tingni denounced SOLCARSA's concession as a violation of its territorial rights.
Before filing its petition with the Inter-American Commission, the community had filed an amparo action (an action for emergency relief from a violation for fundamental rights) with the Nicaraguan Supreme Court against MARENA for its approval of the concession. In February 1997, a year and a half after filing the amparo action, the Court rejected it without any clear explanation of its reasoning, thus leaving the community's land rights without legal protection by the Nicaraguan judicial system.
Another amparo action was filed with the Supreme Court by Alfonso Smith and Humberto Thompson, both members of the Regional Council of the North Atlantic Coast Autonomous Region (RAAN) , again demanding that SOLCARSA's concession be revoked. This amparo was granted on the grounds that the Regional Council of RAAN had not approved the concession as required by Article 181 of the Nicaraguan Constitution. The Supreme Court declared the concession unconstitutional in February, 1997.
In spite of the Court's decision, the MARENA took no action to revoke the concession and SOLCARSA was allowed to continue its logging operations. Faced with the Ministry's failure to abide by the Court's decision, Humberto Thompson asked that the Supreme Court order the government to comply. The Court granted this request and ordered the President of Nicaragua, Arnoldo Aleman to comply with the Court's ruling and revoke the concession. In February, 1998, more than a year after the Court found the concession unconstitutional, MARENA notified SOLCARSA that its concession had been made null.
Awas Tingni's successful challenge of SOLCARSA's concession was an enormous success for the community and for other sectors of civil society that had become involved in the issue. Nonetheless, Awas Tingni, like the majority of other indigenous communities on the Atlantic Coast of Nicaragua, continues to lack any official recognition or demarcation of their territory. Without demarcation of their lands, the communities' territories remain vulnerable to invasion by parties interested in natural resource extraction, many of whom often have the backing of the national government.
After studying the case, the Inter-American Commission recognized Awas Tingni's rights to its traditional territories and the natural resources found in them. The Commission concluded that the Nicaraguan government had violated its international legal obligations under the American Convention on Human Rights, for not demarcating or otherwise guaranteeing Awas Tingni's land rights and for granting the logging concession to SOLCARSA without consulting with the community. be respected. The Nicaraguan State was also found in violation of the community's right to judicial protection because the Nicaraguan judicial institutions had not been able to resolve the matter expeditiously.
Given the persistent failure of the Nicaraguan government to demarcate or otherwise officially recognize the territorial rights of indigenous peoples, the Commission decided to bring the case before the Inter-American Court of Human Rights. In its case against Nicaragua, the Commission is asking the Court to:
1) Declare that the Nicaraguan State has violated the terms of the American Convention on Human Rights with regard to the land and resource rights of Awas Tingni and its right to judicial protection;
2) Order Nicaragua to take measures to demarcate and legally guarantee the community of Awas Tingni's communal land rights (thereby establishing a framework for the demarcation of all indigenous territories in the Atlantic Coast region);
3) Order Nicaragua to abstain from granting any further concessions for natural resource extraction within the communal lands of Awas Tingni without first reaching an agreement with the community;
4) Order reparations for moral and pecuniary damages caused by the concession to SOLCARSA; and,
5) Order Nicaragua to pay for the community's costs incurred in defending its rights in the Inter-American system.
The Inter-American Court of Human Rights has jurisdiction over Nicaragua in accordance with the terms of the American Convention on Human Rights and by Nicaragua's 1991 declaration accepting the Court's jurisdiction. Under international law, Nicaragua is obligated to comply with rulings of the Court in cases to which it is a party. The Awas Tingni case is the first case before the Inter-American Court that directly addresses the territorial rights of indigenous communities. This case has the potential to set an important precedent, not only for the indigenous communities of the Atlantic Coast of Nicaragua, but also for indigenous peoples throughout the hemisphere.