Surinamese Compliance with Saramaka People v. Suriname

Suriname Court House, by Mark Ahsmann
Suriname Court House, by Mark Ahsmann

The Inter-American Court of Human Rights’ (IACtHR, Court) decision in Saramaka People v. Suriname signified an important victory for tribal communities in their battle against land encroachment. The 2007 ruling recognized that tribal communities’ physical and cultural relationships with their ancestral territories should be protected under international human rights law. However since this victory, there have been new obstacles facing the Saramaka People. On September 4, 2013, the Court denied Saramakan requests for provisional measures against the Surinamese government for alleged intimidation of Saramakan leaders and its approval of a new harmful mining concession made without prior Saramakan consultation. Despite denying provisional measures, the Court has required Suriname to submit a report on the mining concession by October 25, 2013.

Saramaka involved the Surinamese government’s grant of mining and lumber concessions to foreign companies on traditional Saramakan land. These concessions were made without Saramakan consent and severely interfered with the Saramakans’ territorial use and enjoyment. On November 28, 2007, the Court found for the Saramakans and issued various recommendations. The Court ordered Suriname to delineate Saramakan territorial boundaries, legally recognize Saramakan communal property rights, consult with the Saramakans regarding projects affecting their land, and ensure that environmental and social impact assessments are conducted before the granting of any concession within Saramakan territory.

In requesting the most recent provisional measures, the Saramakans alleged that Suriname threatened tribal leaders with loss of their government salary and personal repercussions if they continued as Saramakan legal representatives before the Court. The Court denied these provisional measures because the allegations did not reveal an extremely grave situation involving the leaders’ right to life or personal integrity, as required by Articles 63(2) of the American Convention and 27(1) of its Rules of Procedure.

Additionally in the same September 4th request, the Saramakans called for provisional measures against a new mining concession awarded on June 7, 2013, to the International African Mining Gold Corporation within traditional Saramakan territory. The Saramakans alleged that Suriname granted the mining concession without first consulting them or demarcating their traditional territory, which violated the Court’s 2007 holding. The Saramakans also stated that the mining project would severely harm their people and lands. However, the Court denied provisional measures stating that the assessment of the mining concession fell under the Court’s duty to supervise compliance with judgment, and not under a provisional measures framework.

The Court indicated that the concession implicated various provisions of its 2007 judgment and that it has closely monitored the judgment’s execution. The Court has held two private hearings on judgment compliance in 2010 and 2011, during which the Court declared that Suriname was noncompliant with various judgment obligations. Thus, while the Court denied the issuance of provisional measures, it did require Suriname to submit a report to it by October 25, 2013, detailing the concession’s scope, the methods by which the Saramakans were consulted, whether environmental and social impact assessments preceded the concession, and any applicable benefits to the Saramakans.

The decision in Saramaka v. Suriname established new standards for indigenous and collective rights. To maintain the significance of the decision it is essential that the Court continue to monitor Surinamese compliance. Although the Court’s denial of Saramakan requests for provisional measures represents a set back to the Saramakan People, overall the Court’s post-Saramaka actions show that it is making a concerted effort to deter harmful Surinamese action through the application of its judgment compliance procedures.

Situation of Economic, Social, and Cultural Rights of Campesinos in Latin America

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Commissioners: Rodrigo Escobar Gil; Rose-Marie Belle Antoine; Rosa María Ortiz; Elizabeth Abi-Mershed, Assistant Executive Secretary

Petitioners: Gabriela Kretzel (CELS); Lourdes Bascary (CELS); Daniel Pascual (CUC Guatemala); Diego Monton (CLOC Vía Campesina); Deolinda Carrizo (CLOC Vía Campesina)

Petitioners address the Commission. Credit: Oliver Contreras/Eddie Arrossi Photography on Flickr

State: N/A

The Petitioners, speaking on behalf of several different organizations, represented campesinos of various national origins in Latin America.  “Campesino” is a Spanish word without true translation in English.  Literally translated, it means “person of the country,” but the word “peasant” is often used.  It is meant, however, to identify relatively poor, agrarian laborers. The stated goal of the Petitioners was to raise awareness within the Organization of American States (OAS) of the hardships endured by many people throughout Latin America and the Caribbean, and how various multinational corporations are investing in Latin American states at the expense of many campesinos.  The Petitioners explained that the campesinos invented corn, a product multinational corporations are now trying to patent.

In the early 1990s, many Latin American countries began to modernize their economies leading to multinational corporations investing in the area.  Since then, Latin American economies have become susceptible to external economic events as international institutions and creditors exacerbate financial problems.  The main remedy employed by Latin American governments is to sell the natural resources of the country; these resources were formerly used to support the Latin American poor.  According to the Petitioners, the brunt of this strain has been felt by the campesinos.  Since the early 2000s, the number and percentage of those impoverished has increased.

Ancestrally, the Petitioners said, the campesinos lived peacefully on the land.  They explained to the Commission that the campesinos inherited their practices from their ancestors: how to farm with diversity and respect for the environment and ecosystem.  The Petitioners feel that campesino heritage should be preserved for the good of mankind.  To demonstrate the sentiments of the people they represented, the Petitioners made a short documentary featuring Lydia, a campesino woman.

In the film, Lydia stated that peasant women feel very isolated and discriminated against on their land.  She went on to say that large multinational corporations have moved in, forcing them to sell their land and move to the cities while the corporations retain the land.   The government often plays a role in these land transfers, taking away the land belonging to the campesinos and giving it to major corporations, Lydia claimed.  When the campesinos resist, the government labels them as criminals.

The Petitioners expressed a desire for full acknowledgement of campesino cultural rights.  They asked the Commission to develop more jurisprudence through the Inter-American Court of Human Rights (IACtHR) to assist in defending the campesino’s rights to land, property, food and dignity. The Petitioners feel that the Commission has not addressed these rights in a meaningful way, and they would like that to change.

The Commission then addressed the Petitioners, asking very few questions but offering some suggestions.  Commissioner Rose-Marie Belle Antoine advised the Petitioners that they should expand their presentation to include the violation of labor laws, which have been much discussed by the Commission.  Ms. Antoine encouraged the Petitioners to connect with the International Labor Organization and expand the scope of their influence.

Commissioner Rodrigo Escobar Gil thanked the Petitioners for their report and noted that the Commission has much work to do to defend the rights of campesinos but that the information the Petitioners provided in their reports would be invaluable to that end.  He wondered, however, whether argo-industry was compatible, in the Petitioners opinion, with the campesino way of farming.

The Petitioners responded to the comments, and told the Commission that they did not believe that the two were compatible. Companies are patenting seeds while not allowing distribution or marketing of campesino seeds.  Further, argo-industry practices single crop harvesting: planting the same crop on the same plot year after year.  This method of harvesting goes against the practices of the campesino’s ancestors and is viewed as disrespectful to the land.

Argo-industrialists also require the use of pesticides the Petitioners described as “harmful”.  These pesticides are sprayed on the crops, but also invade the homes of the people that live nearby, the Petitioners explained.  According to the Petitioners, since the introduction of these pesticides into the environment, instances of cancer in the campesino population have greatly increased.  Additionally, argo-industry has diverted the flow of rivers, depriving many people of these natural resources and privatizing the rivers once they are redirected.  The Petitioners contended that there is no willingness among business to allow peasant farmers’ products to be exported or marketed.

The hearing concluded on a positive note with both the Petitioners and the Commissioners agreeing that, while there is a lot of work left to do, this hearing was a good beginning.

 

 

Deforestation Threatens Indigenous Land Rights in Bolivia

Nestled between the Andes to the west and the Amazon to the east, the farmlands of eastern Bolivia offer a unique opportunity for agriculture, with higher quality soil than other areas. In recent decades however, there has been a surge in deforestation, mostly a result of large landholding Brazilian migrants who arrived in the 1980s and 1990s. This has caused stress on the surrounding environment and threatened the ability of native communities to preserve their ways of life. International law protects indigenous property rights, both to the land itself and to the sustainability of the land, as a means of protecting local interests. Under both the American Convention and the American Declaration, state parties, including Bolivia have an obligation to respect and protect these threatened native land interests.

Slightly over a third of Bolivia’s population lives in rural areas, and the agricultural output from the country’s eastern departments accounts for over a quarter of the country’s GDP. Therefore, issues affecting the frontiers have a tremendous effect on the country. The environmental effects of expanding cities and deforestation for cattle ranching have hit residents with warmer and drier weather from the farming and more flooding from the ranching. A report from the Regulatory Agency for the Social Control of Forests and Lands also found that 3.3 million hectares of land were illegally deforested between 1991 and 2009, largely for new agriculture. Indigenous farming communities downriver from the development have complained that they now have no water because of the ranching.

When Evo Morales was elected as president in 2006, he sought to remedy the situation by renegotiating the relationship between the state and the latifundia, the large landholding class. The 2006 agrarian reform law and the new constitution in 2009 aimed to limit the accumulation of landed power by limiting purchase of land between private parties to 5,000 hectares. As a result, native Bolivian ownership of productive land in Santa Cruz increased by 17% from the 1998-99 harvest to the 2008-09 harvest. However, the changes are largely forward-looking and therefore will have only limited effects on those transfers that have already occurred.

While both the appropriation of land by collectives and the micro-climatic effects of deforestation threaten indigenous land rights, Article 21 of the American Convention on Human Rights and Article XXIII of the American Declaration protect property rights. The right to property goes beyond mere ownership or residence to recognize the role of land as a means of securing community and anchoring culture. In the Case of the Yakye Axa Community v. Paraguay, the Inter-American Court of Human Rights (IACtHR, Court) established that indigenous groups have an interest in preserving their habitat as a means of maintaining their cultural attachment to the land. This right extends specifically to water and mineral resources. Furthermore, the Court declared in the Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua that “indigenous groups, by the fact of their very existence, have the right to live freely in their own territory.”

The dramatic changes to the environment and reduction of water pose indirect challenges to indigenous property rights, not by threatening to seize the land but rather by slowly pushing the native people off of their land. In the Case of the Saramaka People v. Suriname, the Inter-American Court of Human Rights required that neither governments nor third parties “affect the existence, value, use or enjoyment of the [indigenous] territory.” The changes in rainfall and access to water in eastern Bolivia are material problems may restrict the historical occupants’ use of the land.

The last several decades have seen remarkable liberalization of land ownership and use in eastern Bolivia, but these changes have also negatively affected the ability of indigenous groups to maintain their communities. Recent trends suggest that the Bolivian government’s attempts to reign in the use of land for large farming and ranching have had at least limited success. However, to the extent that deforestation for agricultural purposes continues to prevent the indigenous communities from using their land, the Bolivian government may not have fully complied with its obligation to protect indigenous interests in land ownership.

Inter-American Court Determines that Dominican Republic Used Excessive Force Against Haitian Migrants

Photo by: Inside Disaster

Following more than two decades of tensions between Haitian descendants and the Dominican Republic, at least one group of Haitians now has a judgment against the Dominican Republic. The Inter-American Court of Human Rights (IACtHR, Court), in its decision in the Case of Nadege Dorzema et al. v. Dominican Republic, said  that seven people died and several more were seriously injured at the hands of the Dominican Republic’s military officers when they forcefully expelled Haitian migrants from the country.

The IACtHR decision, announced in November 2012, cited violations of the American Convention on Human Rights (American Convention). The Court noted that the Dominican Republic originally tried the case by a military tribunal, which acquitted the officers. The Court found violations of the right to life (Article 4) regarding the seven people who died as a result of excessive force, as well as a violation of the right to personal integrity (Article 5) concerning those who survived but were injured by military police. In particular, the Court focused on the procedures for detention and the expulsion of Haitian migrants from the Dominican Republic. The Court found that some of the victims were illegally and arbitrarily detained, which violated the right to personal liberty (Article 7). Furthermore, the expelled victims received none of the internationally or domestically recognized protections inherent in removal proceedings, a violation of judicial protection (Article 25). The collective expulsion of migrants likewise violated the right to freedom of movement and of residence (Article 22). Lastly the Court found that there was de facto discrimination against the victims because of their migrant status, and that the blanket discrimination is a violation of the obligation to respect the rights guaranteed by the American Convention (Article 1).

The latest decision involving the Dominican Republic follows a string of constant and regular provisional measures granted by the Court that were focused on protecting Haitian migrants inside the Dominican Republic. The Inter-American Human Rights System has long raised concerns about treatment of Haitians inside the Dominican Republic, a sentiment noted by the report following the Inter-American Commission on Human Rights’ (IACHR, Commission) to the island nation in 1991. Likewise, in 1999 the Commission published a country report that expressed apprehension about Haitian migrant workers and their families. Also in 1999, the IACHR received a petition alleging that mass expulsions of Haitians were taking place in the Dominican Republic. According to the petition, people were expelled at high rates with no opportunity to inspect the victims’ documents or familial ties to the Dominican Republic, and the victims believed they were being selected by the color of their skin. Thereafter, representatives of Haiti and the Dominican Republic entered into agreement that the Dominican Republic would alert Haiti when its nationals were deported.

At a public hearing on the Commission’s request for provisional measures for Haitians and Dominicans of Haitian descent in the Dominican Republic before the IACtHR in August 2000, the Commission argued that although immigration law is within the sovereign authority of each country, each state must conduct its immigration policy with restraint, and if subjecting someone to deportation, the state must do so within the constraints of the law. For its part, at the same public hearing in 2000, the Dominican Republic contested that its immigration practices respected due process and that it needed to repatriate those Haitians illegally present in the country. Acting on the briefs, reports, and testimony from this public hearing, the Court ordered a provisional measure to protect certain named individuals from being deported, and permitted other deported individuals to return to the Dominican Republic. The Court also asked the Commission and the State to report with frequent updates on the situation.

In 2006, the Court expressed concern regarding a judgment by the Supreme Court of Justice of the Dominican Republic, which found the “Commission for the Implementation of Provisional Measures” unconstitutional and invalidated the procedures established to implement IACtHR provisional measures. Thus, the IACtHR expressed anxiety that no other mechanism was in place to implement provisional measures.  In 2010, following the earthquake in Haiti, some sources cited as much as a fifteen percent increase in the Haitian population in the Dominican Republic, making the treatment of migrants a continuing issue.

By 2012, the IACtHR acknowledged improvements by the Dominican Republic and praised its appointment of state authorities entrusted with the implementation of provisional measures. However, the Court raised concern that Dominican authorities did not respond to requests from the Court.

In Nadege Dorzema et al. v. Dominican Republic, the IACtHR ordered that the Dominican Republic undertake reparations. The reparations include ordering the investigation be reopened, that the authorities determine the whereabouts of the victims’ bodies, that the state offer medical and psychological support, that the state accept public responsibility, that the state provide training on the rights of migrants and the use of force, and that the state pay reparations to the victims.

In the twelve-year span from 2000-2012, the IACtHR granted ten provisional measures addressing the protection of Haitians or Dominicans of Haitian descent now in the Dominican Republic. The most recent decision of the IACtHR demonstrates that both the Commission and Court continue to monitor the treatment of Haitian migrants inside the Dominican Republic.

Country Visits Continue to Serve as Vital Tool for Human Rights Protection in the Americas

CC image courtesy of OAS.

In its latest country report, the Inter-American Commission on Human Rights (IACHR, Commission) reflected on its 2008 country visit to Jamaica and raised grave concerns regarding the high levels of continued violence inside the country. The report suggests the importance of country visits in order to collect evidence, conduct interviews, and learn more about the human rights situation in the Member State being visited.

Under Article 106 of the Organization of American States (OAS) Charter, the Commission’s mandate is to “promote the observance and protection of human rights.” To meet its mandate the Commission undertakes a variety of activities, including investigating petitions, publishing human rights reports, conducting in-country visits, and presenting cases to the Inter-American Court of Human Rights (IACtHR, Court). Since 1961, the IACHR has organized country visits in order to conduct in-depth observations. Member States must grant permission for these visits. In order for a visit to count as an in loco visit, in 2001 it was settled that at least two Commissioners must participate in the visit; an in loco visit also requires Commissioners visit in their capacity as Commissioner, and not in their Rapporteur capacity. In comparison, country visits may include less than the two required Commissioners and the visits often relate to the thematic rapporteurships. Since its inception, the Commission has conducted 92 in loco visits.

The Commission’s Strategic Plan stated that it hoped to conduct two in loco visits per year, for a total of ten such visits between 2011 and 2015. Thus far, it appears that there has been one in loco visit since the Strategic Plan was announced in 2011, but there has been a greater number of country visits, including three visits in 2011, two in 2012, and already one in 2013. In loco visits generally lead to a published report on the situation on human rights observed, a document that is distributed to the Permanent Council and General Assembly of the OAS.

Jamaica, Suriname and Colombia all serve as recent case studies and highlight the value of country visits as an avenue for promoting and protecting human rights. Since at least 2008 the Commission has closely monitored the human rights situation in Jamaica. That year, the IACHR conducted an in loco visit to Jamaica in which Commissioners met with government officials and civil society to conduct independent investigations into alleged human rights violations, including assertions of arbitrary detentions, high crime rates, and failures to investigate by the police. The Commission has continued to monitor human rights in Jamaica by holding public hearings and most recently publishing a report. The report summarizes the Commission’s four-year observations, and though it welcomes Jamaica’s reports that homicides have decreased, the Commission stated that it remains extremely concerned at the high level of insecurity. Furthermore, the Commission expressed concern that the violence primarily affects the urban poor. For its part, Jamaica conceded that it continues to battle high levels of violence, but stated that it is doing what it can given financial constraints.

The Commission is also observing human rights in Suriname, where it conducted its most recent in loco visit. The visit’s goal was to examine the rights of women and indigenous peoples in Suriname. Regarding indigenous rights, Commissioner Dinah Shelton, Rapporteur on the Rights of Indigenous Peoples, reinforced the need for Suriname to fully comply with the Moiwana and Saramaka judgments of the IACtHR and underscored the need for the national government to consult with local communities on mining projects. On the rights of women, Commissioner Tracy Robinson, Rapporteur on the Rights of Women, applauded the Suriname government for its recent legislative efforts to protect women and promote equality. She simultaneously stressed the need to put financial and human resources behind these policies to ensure follow-through and increase inclusion of women across private and public sectors as well as in political decision-making. The visit also raised concerns regarding discrimination against LGBTI communities in Suriname, and Commissioner Robinson called on authorities to create a government policy that advances gender equality and protects against discrimination.

Lastly, during a visit to Colombia, the IACHR stated that it appreciated the government’s efforts to protect human rights after five decades of violence. However, the Commission also heard from members of civil society who stressed “the execution of protection measures in the interior of the country and in rural areas represents greater challenges when compared to the measures implemented in urban areas.” Thus, through a country visit the Commission learned about the government’s progress, and confirmed implementation through dialogue with civil society.

Today, scholars believe that visits in loco are a way for Member States to show cooperation with the Inter-American System, and for the Commission to collect evidence before a case and improve the quality of its decisions. “The Commission visits and the follow-up reports create powerful incentives for states to consider the international implications of their human rights policies. In loco visits and country reports, therefore, significantly contribute to the Commission’s work in dealing with gross and mass violations of rights,” wrote Claudio Grossman, current Chair of the United Nations Committee Against Torture and IACHR Commissioner from 1994-2001.