Awas Tigni Analisis (English)

ENVIRONMENT, EQUALITY, AND INDIGENOUS PEOPLES' LAND RIGHTS IN THE INTER-
AMERICAN HUMAN RIGHTS SYSTEM: MAYAGNA (SUMO) INDIGENOUS COMMUNITY OF

AWAS TINGNI V. NICARAGUA
Author(s): Jennifer A. Amiott
Source: Environmental Law , Fall 2002, Vol. 32, No. 4 (Fall 2002), pp. 873-903
Published by: Lewis & Clark Law School
Stable URL: https://www.jstor.org/stable/43266138
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NOTES & COMMENTS
ENVIRONMENT, EQUALITY, AND INDIGENOUS PEOPLES'

LAND RIGHTS IN THE INTER-AMERICAN HUMAN RIGHTS
SYSTEM: MAYAGNA (SUMO) INDIGENOUS COMMUNITY OF
A WAS TINGNI V NICARAGUA
By
Jennifer A. Amiott*
This Note outlines the struggles of the Mayagna (Sumo) Community of

A was Tingni of the Atlantic Coast of Nicaragua to protect its rights to its
traditional lands and the natural resources found upon them. Despite the
vital role that ancestral lands play in the lives of Nicaragua's indigenous
peoples ; the Nicaraguan government granted a foreign timber company a
concession to log more than 62 ' 000 hectares of tropical forest claimed by the
A was Tingni Community. Faced with the threat of devastating forestry
operations ; the Community sought to protect its land rights in Nicaragua : s
courts. Añer Nicaragua's legal system failed to provide a remedy ; the
Community brought its case to the Inter-American Human Rights system. In
August 2001, the Inter-American Court of Human Rights upheld the
Community's rights to its ancestral lands ; declared that Nicaragua violated
the Community's rights to property and judicial protection , and ordered the
Nicaraguan government to recognize and demarcate the traditional
territories of the Awas Tingni and other Atlantic Coast indigenous peoples.
The case sets a ufar reaching precedent affirming indigenous land rights not
only for the indigenous communities of the Atlantic Coast, but also for
* © Jennifer A. Amiott, 2002. Associate Editor, Environmental Law. J.D. and Certificate in
Environmental and Natural Resources Law expected May 2003, Lewis & Clark Law School; M.A.
2000, Portland State University (Anthropology); B.A. 1993, Miami University (Zoology). The
author thanks Professor Robert Miller for his guidance as advisor to this Note, and Sophia
Bordenave and Romina Picolotti for reviewing this Note. The author also thanks Colm Moore
for his editorial assistance and Matthew Moss for his patience and sense of humor.
[873]

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874 ENVIRONMENTAL LA W [Vol. 32:873
indigenous peoples throughout the hemispher

highlights the failure of states to protect the tr
indigenous peoples and illustrates the convergence of environmental '
sustainable development ; and human rights issues in indigenous land rights
cases.
I. Introduction
A. Mayagna (Sumo) Community of Awas Tingni v. Nicaragua
B. The Importance of Mayagna (Sumo) Com

Nicaragua
II. The Pas

Tingni v. Nicaragua
A. Background: The Problems and the Players
1. Recognition of Indigenous Peoples' Rights
2. International Law Battles a Leg

Indigenous Peoples, and the Environment
a. The Doctrine of Discovery
b. International Law
c. Internation
Rights.
d. Environment and Justice.
3. The A was Tingni Community.
4. The Inter-American Human Rights System
5. The Inter-American System and Indigenous Rights
6. Nicaraguan Law
7. Nicaraguan Practice
8. The SOLCARSA Concession
B. Seeking a Remedy, Part I: Nicaragua 's Domestic Courts.
1. The Awas Tingni Community's Use of

Process
2. How the Nicaraguan Judicial Process Failed the Community.
G Seeking a Remedy, Part 2: the Inter-American Human Rights System
1. The Inter-American Commission on Human Rights
2. Awas Tingni in the Inter-American Court of Human Rights
D. The Inter-American Court Decision
E. The Impact of the Awas Tingni Decision
III. Conclusion

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2002] INDIGENOUS PEOPLES' LAND RIGHTS 875
I. Introduction
Through history, indigenous peoples have been assaulted physically and

suffered discrimination; they have seen their cultures undermined, their
lands stolen, and their economies plundered; moreover, their very
existence as distinct communities has been threatened. International law
has evolved, however modestly, to challenge the legacy of this history and
the forces that would see it continue. 1
Throughout the world, and in the developing world in particular, many

indigenous peoples2 live in and use forests and other areas rich in natural
resources.3 However, developing nations - often transitioning to democracy,
fighting poverty, and under pressure from multinational corporations - may
1 S. James Anaya, Indigenous Peoples in International Law 184 (1996).

2 How to define "indigenous peoples" is "one of the most controversial issues within the
field [of international environmental law] and one with very practical consequences." David
Hunter et al., International Environmental Law and Policy 1335 (1998). The terms
"indigenous," "aboriginal," and "native" have been used to refer to "those who already inhabited
the encroached-upon lands [during the colonial period and onward] and who were subjected to
oppressive forces." Anaya, supra note 1, at 3. While the term "indigenous peoples" generally is
not precisely defined in international instruments, it is most often used "as a political and
sociological term to denote in general terms a range of groups whose shared interests and
concerns have been recognized internationally as warranting particular and distinct
investigation and action." Benedict Kingsbury, ' Indigenous Peoples' as an International Legal
Concept, in Indigenous Peoples of Asia 13, 15-16 (1995), in Hunter, supra at 1335. Recently,
the term "indigenous rights" has been used to refer to "a new pattern of claims, made by these
surviving indigenous peoples, for direct protection by the international community and, where
appropriate, restoration of rights taken from them in the past. Belatedly, indigenous peoples are
demanding a place in modern international law." W. Michael Reisman, Protecting Indigenous
Rights in International Adjudication, 89 Am. J. Int'l L. 350, 350 (1995). For example, the
International Labor Organization Convention No. 169 on Indigenous and Tribal Peoples (ILO
No. 169) 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 or by special
laws or regulations" and to "peoples in independent countries who are regarded as indigenous
on account of their descent from the populations which inhabited the country, or a geographical
region to which the country belongs, at the time of conquest or colonization or the
establishment of present state boundaries and who, irrespective of their legal status, retain
some or all of their own social, economic, cultural and political institutions." ILO Convention
No. 169, Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, 28
I.L.M. 1382 (1989), available at http://www.unhchr.ch/html/menu3/b762. htm (last visited Nov. 13,
2002). ILO No. 169 also states that "[s] elf-identification as indigenous or tribal shall be regarded
as a fundamental criterion for determining the groups to which the provisions of this
Convention apply." Id.
3 S. James Anaya & S. Todd Crider, Indigenous Peoples, The Environment, and Commercial
Forestry in Developing Countries: The Case of Awas Tingni ' Nicaragua, 18 Human Rts. Q. 345,
347 (1996). Two-thirds of the world's biological resources are found in seventeen countries:
Australia, Brazil, China, Colombia, the Democratic Republic of the Congo, Ecuador, India,
Indonesia, Madagascar, Malaysia, Mexico, Papua New Guinea, Peru, the Philippines, South
Africa, the United States of America, and Venezuela. United Nations High Commissioner for
Human Rights, Leaflet No 10: Indigenous Peoples and the Environment 2001, available at
http://www.unhchr.ch/html/racism/indileafletlO.doc (last visited Nov. 13, 2002). In addition,
these countries, also known as the "Biological 17," are home to most of the world's indigenous
peoples. Id.

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promote the "development" and exploitation of t

and occupied by indigenous peoples living within
for growth and lack of recognition of indigenous pro
the degradation of ancestral landholdings, the di
peoples, the disintegration of traditional cultures,
diverse forests.5 The struggle of the Mayagna (S
Tingni (Awas Tingni Community or Awas Tingni)
logging concession granted by Nicaragua highligh
protect the traditional landholdings of indigenou
illustrates the convergence of environmental, sust
human rights issues in indigenous land rights case
A. Mayagna (Sumo) Community of Awas Ting
The indigenous people of the Awas Tingni Comm

populated the vast rain forests of the Atlantic Coa
the Miskito, Rama, and other Mayagna commu
societies use a communal form of land tenure in
subsistence agriculture, hunting, and fishing, is
members of the community.9 The land and its n
provide for subsistence needs, but also play a cen
spiritual life, and identity of the Atlantic Coast comm
4 Brief of Amicus Curiae Nicaraguan Indigenous Orga

Representatives in the Mayagna (Sumo) Community of Awas T
of Human Rights, Case No. 11.555, available at http://indianl
(last visited Sept. 4, 2002) [hereinafter Awas Tingni Amicus].
burdened with external debts six times its gross domestic pr
acUustment programs mandated by the International Moneta
Inter-American Development Bank (IDB) have forced Nicaragu
exploit the country's natural resources. Danielle Knight, Envir
Nicaragua, Inter Press Service, Oct. 9, 1997, available at
http://www.oneworld.org/ips2/nov/nicaragua.html (last visited Sept. 4,
Nations Human Rights System reported that Nicaragua was "among
hemisphere with nearly half of the population living below the pove
creditors $6.1 billion, the highest per capita debt in the world." Unit
System, For the Record 1999: Nicaragua, available at
http://www.hri.ca/fortherecordl999/vol4/nicaraguatr.htm (last vis
5 Anaya & Crider, supra note 3, at 347; Indian Law Resource
Tingni, http://www.indianlaw.org/body_awas_tingni.htm [here
visited Sept. 4, 2002).
6 Anaya & Crider, supra note 3, at 346, 348.
7 Sustainable development is the "synthesis of environm
development," Anaya & Crider, supra note 3, at 347. It has been
meets the needs of the present without compromising the ability
their own needs." World Commission on Environment and Development, Our Common
Future ("The Brundtland Report") 43-46 (1987) in Hunter, supra note 2, at 100.
8 ILRC, LAC Rules , supra note 5. Though similarly organized, each of these communities
has its own social and political systems. Ld.
9 Id
io Id.

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Despite the vital role that ancestral lands play in the l

Atlantic Coast indigenous peoples, in 1995 the Nicaraguan government
granted a Korean forestry company a thirty-year concession to log more than
62,000 hectares of tropical forest on the lands traditionally used and
occupied by the Awas Tingni.11 Over the Community's express protest and
with a court action pending, Nicaragua granted the concession without
consulting or obtaining the consent of the Community - in spite of
Nicaragua's constitutional and statutory provisions recognizing the rights of
indigenous peoples to their ancestral lands.12
Faced with the threat of devastating forestry operations in their
traditional territories, the Awas Tingni Community sought to protect its land
rights in Nicaragua's courts.13 However, the domestic legal system provided
no remedy for the State's failure to demarcate indigenous communities'
traditional lands, the government's lack of recognition for indigenous rights,
or the failure to include local stakeholders in government decisions affecting
indigenous communities.14
The Awas Tingni Community then turned to the Inter-American Human
Rights system.15 The Inter-American Commission on Human Rights
investigated the Community's petition, recommended remedies, and
ultimately brought the case before the Inter-American Court of Human
Rights.16 This "conflict between the collective, undocumented land rights of
indigenous communities and the resource and development interests of
national governments and their corporate partners" was a case of first
impression for the Inter-American Court.17
On August 31, 2001, the Inter-American Court of Human Rights issued
an unprecedented decision affirming the collective rights of indigenous
peoples to their traditional lands, resources, and environment.18 In Mayagna
11 Id.
12 Id.; see also infra Part II.A (discussing Nicaraguan law).
13 Prior forestry operations in the Atlantic Coast region had resulted in environmental
degradation and the forced relocation of indigenous peoples, while threats to indigenous
peoples' lands had raised the possibility of social unrest and violence throughout the area.
ILRC, IAC Rules, supra note 5.
14 Awas Tingni Amicus, supra note 4, at introduction; Theodore Macdonald, The
Routinatlon of Protest: Institutionalizing Local Participation, 20(3) Cult. Survival Q. (1996).
15 See infra Part n.A.4, HC (discussing the Inter-American human rights system and the
Community's case within the system).
16 Indian Law Resource Center, Hearing of Awas Tingni Indigenous Land Rights Case Takes
Place Before the Inter-American Human Rights Court, Update November, 2000 [hereinafter
ILRC, Hearing, at http://www.indianlaw.org/body_at_update.htm; Indian Law Resource Center,
Awas Tingni Summary , at http://indianlaw.org/body_awas_tingni_summary.htm. [hereinafter
ILRC, Surrmiary'.
17 Patrick Macklem & Ed Morgan, Indigenous Rights in the Inter-American System: The
Amicus Brief of the Assembly of First Nations in A was Tingni v. Republic of Nicaragua, 22 Hum.
Rts. Q. 569, 571 (2000).
18 Indian Law Resource Center, Awas Tingni Decision Excerpt ; Unofficial English
Translation of the Judgment of the Inter-American Court of Human Rights in the Case of the
Mayagna (Sumo) Indigenous Community of Awas Tingni v. The Republic of Nicaragua ,at
http://www.indianlaw.org/body_awas_tingni_decision.htm (last visited Sept. 4, 2002)
[hereinafter ILRC, Unofficial Translation ].

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{Sumö) Community of Awas Tingni v Nicaragua (

upheld the Community's rights to its ancestral l
the Nicaraguan government violated the Awas Tin
property and judicial protection, and declared
protections for indigenous lands were "illusory an
therefore ordered the Nicaraguan government
Community and to recognize and demarcate the tr
Awas Tingni and other Atlantic Coast indigenous p
B. The Importance o/Mayagna (Sumo) Communit

Nicaragua
The Awas Tingni Community's efforts to obtain

have enormous significance in international huma
arenas. Under international human rights law, st
human rights and to provide remedies when th
Because the cultures, economic systems, and spiritual traditions of
indigenous peoples are often linked to their lands and natural resources,
"[h]uman rights for indigenous peoples necessarily include land rights."23
Nevertheless, throughout the world, indigenous peoples are subject to
"unfair, discriminatory, or racist" domestic laws, many of which violate
indigenous peoples' land rights and established international human rights
standards.24
19 Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua, case 11.555, (Ser.
C) no. 79 (Aug. 31, 2001) , available at www.indianlaw.org/awas_tingni_decision
[hereinafter Judgment of August 31, 2001].

20 Theodore Macdonald, Internationalizing Indigenous Commu
Indians and the Inter-American Court of Human Rights , Progr
Cultural Survival '
at http://www.wcfia.harvard.edu/ponsacs/DOCS/nicaragua.htm
lack of judicial protection given to the Awas Tingni is indicative o
recognize the rights of indigenous peoples, especially when f
opportunities. Id.
21 ILRC, Unofficial Translation, supra note 18.
22 Anaya, supra note 1, at 129.
23 ILRC, Summary ; supra note 16.
¿4 Indian Law Resource Center, Indigenous Land and Resource Protection m Central and
South America, at http://www.indianlaw.org/central_america.htm (last visited Sept. 4, 2002)
[hereinafter ILRC, Land and Resource Protection ]. There are countless examples of laws
worldwide that are culturally inappropriate - or worse. See, e.g., infra Part H.A.2.a (discussing
the doctrine of discovery); World Conference Against Racism, "Doctrines of Dispossession" -
Racism against Indigenous Peoples (discussing racist state policies), at
http://www.un.org/WCAR/ e-kit/indigenous.htm (last visited Sept. 4, 2002); David H. Getches,
al., Federal Indian Law 141-90 (4th ed. 1998) (discussing United States assimilationist polic
toward American Indians); Oxfam International Investigation Mission, Comparative C
Study - The Ainu People (Japan X at http://www.caa.org.au/oxfam/advocacy/ (discuss
Japanese laws passed in 1873 and 1877 that effectively removed traditional lands from Ainu [
descendants of the first inhabitants of the Japanese islands] control, as well as a 1899 act th
promoted assimilationist policies under which traditional customs were discouraged an
Japanese language education was mandatory); Bob Burton, RIGHTS-AUSTRALIA: Aborigin
Want Discriminatory Laws Out, Interpress Service, Aug. 7, 2001, available at

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This is not a new problem: Indigenous peoples have been deni

their lands in Latin America since the sixteenth century.25
In contrast, international recognition of indigenous rig
phenomenon. Until recently, the indigenous peoples have
alone" in their efforts to protect their land and rights.26 No
rights of indigenous individuals and groups are gaining r
regional and international human rights forums and instruments,
nongovernmental organizations (NGOs), and the popular consciousness.27
"Indigenous peoples are now widely acknowledged to have rights to
continue to live as distinct communities, to benefit from the natural
resources found on their ancestral lands, and generally to be in control of
their own destinies."28
This growing awareness of the rights of indigenous peoples is especially
evident in Latin America, a region where indigenous rights struggles
command significant national and international attention.29 Though
economic and political turmoil in the region has repeatedly led to conflicts
over indigenous rights, there is also a tremendous opportunity in Latin
America to provide for the legal recognition of indigenous rights, to build the
http://www.oneworld.org/ips2/aug01/10_48_025.html (last visited Sept. 4, 2002) (discussing

Australia's mandatory sentencing laws that "are overwhelmingly used against people from
Aboriginal communities").
25 Macdonald, supra note 20.
26 Id.
27 Reisman, supra note 2, at 353. For example, the Indian Law Resource Center, based in
Helena, Montana, has worked for more then twenty years to assist indigenous peoples in
meeting their legal needs. ILRC, Land and Resource Protection , supra note 24. Through its
work - both nationally and internationally - the Center seeks "to advance the rule of law, by
establish[ing] national and international legal standards that preserve indigenous human rights
and dignity, and to challenge the governments of the world to equally esteem all human beings."
Id. The Center challenges ur'just laws and practices through legal processes, education,
advocacy, and indigenous community capacity-building. Id. S. James Anaya and Robert A.
Williams, authors cited heavily in this text, work with the Indian Law Resource Center.
Similarly, the Center for Human Rights and Environment (CEDHA), based in Cordoba,
Argentina, works throughout the Americas to "provide access to justice in cases of
environmental degradation with related human rights abuses." CEDHA, Access to Justice
Program , http://www.cedhaorg.ar/justice/about-e.htm (last visited Sept. 4, 2002). CEDHA works
with and on behalf of many indigenous groups, and CEDHA's Romina Picolotti wrote an Amicus
Curiae brief for the Awas Tingni case that was presented by the International Human Rights
Law Group (IHRLG) and the Center for International Environmental Law (CIEL) to the Inter-
American Court on Human Rights.
28 Anaya & Crider, supra note 3, at 348.
29 ILRC, Land and Resource Protection, supra note 24. According to Theodore Macdonald of
Harvard's Program on Nonviolent Sanctions and Cultural Survival, "An indigenous movement -
with numerous local, national, and international organizations - now sweeps down from
Mexico to Chile. These 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." Macdonald, supra note 20.
Moreover, Latin America is significant to indigenous rights movements because of the large
number of indigenous people who live in the region. Martin Edwin Andersen, Thankful for
Renewed Rights, Wash. Times (Nov. 22, 2001), available at
www.indianlaw.org/body_awas_tingni_pr_washtimes.htm (last visited Sept. 4, 2002). For
example, more than ten million indigenous people live in Mexico alone. Id.

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capacities of indigenous communities to have their

develop natural resources in a sustainable manner.
This Note addresses the challenges the Awas Ti
in obtaining legal protection of its rights and th
Part IIA examines the rights of indigenous peoples in the international
human rights context, including the Inter-American Human Rights system.
Part IIA also discusses the culture and land tenure systems of the Awas
Tingni Community and Nicaraguan indigenous land rights laws and
practices. Part IIB outlines the Community's struggle within Nicaragua for
recognition of its rights. Part IIC discusses the Awas Tingni's path through
the Inter-American Human Rights system, and Part IID examines the Inter-
American Court of Human Right's monumental ruling in Mayagna (Sumo)
Community of Awas Tingni v. Nicaragua. Finally, the author proposes that
the Awas Tingni decision will have a significant impact on the Awas Tingni
Community, other indigenous communities of Nicaragua's Atlantic Coast,
and indigenous people throughout the Americas.
II. The Past, Present, and Future of Mayagna (Sumo) Community of A was
Tingni v Nicaragua
A. Background: The Problems and the Players
1. Recognition of Indigenous Peoples' Rights
Through historical forces set in motion during the colonial era, settle
across the Americas failed to recognize the cultures and land rights of t
region's indigenous peoples.31 Colonial discrimination impaired t
economic, social, and political institutions of the hemisphere's indigenou
inhabitants, and colonial control decimated populations, lands, and
resources - leaving indigenous peoples "among the poorest of the poor."32
Today, many of the indigenous peoples of the Americas remain on the
margins of the societies built up around them, in poverty, and cut off from
their land and the traditions that are tied to it.33
30 ILRC, Land and Resource Protection, supra note 24. Many supporters of indigenous rights
advocate for "belated state building" for indigenous peoples, which involves "remedial or
affirmative measures that may involve redress for historical land claims, the development of
social welfare programs, and change in the governing institutional order to secure cultural
integrity and self-government." Anaya, supra note 1, at 130.
31 Anaya & Crider, supra note 3, at 350-51; Anaya, supra note 1, at 3-4.
32 Anaya, supra note 1, at 3-4, 108. This discrimination extended to unequal legal treatment.
Indigenous social systems were treated with neither equality nor respect: indigenous customs
and laws were considered "primitive" and "exotic," and were designated to the realm of
anthropologists rather than jurists. Id. at 109, 111; see also International Labour Organization,
Indigenous People Still the Poorest of the Poor (Aug. 8, 2001) (discussing the ILO's efforts to
combat the high infant mortality and illiteracy rates, low income levels, and lack of access to
health and social services faced by indigenous peoples), at
http://www.ilo.org/public/english/region/asro/bankok/newsroom/prol05.htm.
33 Anaya, supra note 1, at 3-4, 108. In Latin America, state and non-indigenous actors often
exploit natural resources on the traditional lands of indigenous communities. Macdonald, supra

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Nevertheless, indigenous peoples have increasingly so

with the dominant society, often seeking solutions that p
as distinct communities on their own lands, under their own political
systems, with the right to express their traditional cultures and determine
their own destinies.34 Throughout the Americas, indigenous peoples have
mobilized around their rights to land and natural resources - concerns that
are both material and symbolic - as they seek to secure their futures.35 This
quest for self-determination and survival seeks the right to claim, access,
use, and obtain royalties from traditionally held lands and resources, and has
been carried out through tactics ranging from publicity, technical and legal
assistance, and national and international alliances,36 to armed resistance.37
International law has emerged as an essential tool: "[Although once an
instrument of colonialism, [international law] has developed and continues
to develop, however grudgingly or imperfectly, to support indigenous
peoples' demands."38
2. International Law Battles a Legacy of Abuse: Human Rights, Indigenous

Peoples, and the Environment
a. The Doctrine of Discovery
For the past five hundred years, many domestic and international legal
systems have relied on the principles of the discovery doctrine to place the
legal status of indigenous peoples "within the exclusive jurisdiction of the
settler state regimes that invaded and subjugated them."39 The discovery
doctrine gives "discovering" settler states the authority to control the
possession and use of indigenous lands, as well as the management and
exploitation of the natural resources found upon them.40 Under the doctrine,
note 14. This exploitation often leads to disputes regarding access to and use of resources. Id.
34 Anaya, supra note 1, at 4, 46, 75.
35 Id. at 183; Macdonald, supra note 14.
37 Anaya, supra note 1, at 4. While a lack of power may lead to conflicts and at times,
violence, empowerment and negotiation are nonviolent solutions that "create institutions to
increase local participation." Macdonald, supra note 14.
39 Robert A. Williams, Jr., Encounters on the Frontiers of International Human Rights Law:
Redefining the Terms of Indigenous Peoples' Survival in the World ' 1990 Duke L.J. 660, 672
(1990). United States Supreme Court Chief Justice John Marshall's opinion in Johnson v.
MlntosĶ 21 U.S. 543 (1823), is the "most famous and influential elaboration" of the doctrine of
discovery. Id. at 672-73. Johnson held that under European law, the "discovery" of land in
America gave the discovering European nation the "exclusive right to extinguish the Indian title
of occupancy, either by purchase or conquest." Id. at 673 {quoting Johnson, 21 U.S. at 587). In
recent years, the Supreme Court has continued to hold that Indian affairs and sovereignty are
under the plenary power of Congress. Id. at 692. Under this power and rights regime, the federal
government "has authorized (among other genocidal and ethnocidal initiatives) the destruction
of Indian religious sites and practices, suppression of traditional forms of tribal government,
forced removal of Indian children from their homes, uncompensated seizure of treaty-protected
resources, and involuntary sterilization of Indian women." Id.
40 Williams, supra note 39, at 692.

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international legal discourse has generally failed t

indigenous peoples because indigenous societies ar
unit.41 However, since the 1970s, indigenous peop
challenged the doctrine of discovery - and the de
based on the doctrine - through international hum
b. International Law
Though international law is generally based on principles of state

sovereignty, consent, and domestic noninterference, a growing international
concern for individuals, groups, peace, stability, and human rights makes
international law an increasingly valuable tool for indigenous communities
seeking recognition or enforcement of their rights.43 In particular,
international human rights law has become more attentive to "associational
and cultural patterns that exist independently of state structures,"44 such as
indigenous societies. Consequently, governments' assertions that their
citizens' allegations of human rights abuses are exclusively domestic
concerns have become more difficult to maintain, and formal and informal
human rights mechanisms have been developed and enforced to diminish
state practices that violate international human rights standards.45
The indigenous rights movement has recognized this growing authority
of international human rights law over state actors and has begun to use it.46
In the last few decades, indigenous peoples have become participants, along
with states and NGOs, in struggles to have their human rights recognized.47
41 Id. at 675. According to Williams, this M[d]enial of international legal status to indigenous
peoples holds many practical as well as theoretical implications in contemporary international
law. For example, the International Court of Justice and many other more effective and high-
profile forums of international law are available only to states - a term which under present
conceptions of international law does not include indigenous peoples." Id. at 695-96.
42 Id. at 667, 676.
43 Anaya, supra note 1, at 42, 151. International law is also important when domestic laws
fail to protect rights or fail to provide a remedy when rights are violated. Hunter, supra note 2,
at 1551; see also infra Part H.A. 7 (discussing Nicaragua's failure to provide a legal remedy for
the violations of the Awas Tingni Community's rights). The interplay between the international
and domestic legal systems can only improve the effectiveness of each system. Hunter, supra
note 2, at 1552.
44 Williams, supra note 39, at 668-69.
40 Id. For example, the Umted States government . . . has proved capable ot aggressive and
at times even effective advocacy of human rights standards in international relations" despite
the fact that the United States often fails to formally ratify international human rights
instruments. Id. at 670.
47 Anaya, supra note 1, at 56, 83. For example, in 1992, public outcry led then-Nicaraguan
President Violeta Barrios de Chamorro to cancel a thirty-year logging concession that was
under negotiation with a Taiwanese company. Julia Preston, Indians, Loggers at Loggerheads
Over Storied Nicaragua Territory/ENVIRONMENT: The Government Is Now Facing Thorny
Conflicts Between Indigenous People and Foreign Businesses, N. Y. Times, June 25, 1996 at A8.
Also that year, thousands of Hondurans marched in the streets to protest the grant of a forty-
year logging concession to a Chicago-based paper company. Id. The Honduran government
ultimately revoked the concession. Id. In addition, donor agencies such as the World Bank and
USAID have begun to incorporate recognition of indigenous rights into their programs through,

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Indigenous rights activists have focused international atte

demands to undo the forces of colonialism and enforce state
uphold indigenous rights.48 In addition, by challenging th
power by settler state governments, indigenous communities -
the objects of discussion - have "given voice to a new vision o
rights that matter to them under international law."49 These
obtaining international legal recognition of the rights of indig
to live autonomously on their traditional lands under their o
economic, social, and legal systems.50 Finally, by making the
in the international arena, indigenous peoples have been able
for themselves, their advocates, and their opponents througho
their shared experiences of oppression, marginalization, discr
disempowerment in an attempt to promote self-determination and
reconstruct the systems that have failed to recognize their rights.51
c. International Instruments, Indigenous Peoples, and Human Rights
As international concern for indigenous peoples' rights has grown, the

rights of indigenous peoples have been increasingly incorporated into
international human rights institutions and instruments.52 This evolution is
for example, policies requiring "informed consent" and "local participation." Macdonald, supra
note 14. However, Macdonald points out that ločal communities and multinational funding
agencies may have differing views of what may be considered "local" and "participation." Id.
48 Anaya, supra note 1, at 56, 83.
50 Id. at 667.
5! Id. at 701.
52 Macklem & Morgan, supra note 17, at 570-71. For example, fifteen organizations of
indigenous peoples had consultative status with the U.N. Economic and Social Council
(ECOSOC) as of March 1997. United Nations, Human Rights: The Rights of Indigenous
Peoples Fact Sheet No. 9 Rev. 1, 3 (1997). In addition, Chapter 26 of Agenda 21 provides for
principles of sustainable development relating to indigenous communities, and states in part:
"In view of the interrelationship between the natural environment and its sustainable
development and the cultural, social, economic and physical well-being of indigenous people,
national and international efforts to implement environmentally sound and sustainable
development should recognize, accommodate, promote and strengthen the role of indigenous
people and their communities." Agenda 21, Report on the United Nations Conference on
Environment and Development (Rio de Janeiro, June 3-14, 1992) If 26.1; Anaya & Crider,
supra note 3, at 348. Agenda 21 is a more than 800-page, four-volume plan for the
implementation of sustainable development that arose from the 1992 UN Conference on
Environment and Development (known as UNCED, the Rio Conference, or the Earth Summit).
Hunter, supra note 2, at 62, 276, 311. Chapter 26 of Agenda 21 also confirms the need for legal
mechanisms that will recognize traditional peoples' dependence on natural resources, secure
their access to and control over land, and create procedures to involve the participation of
indigenous peoples in decision-making regarding the development process. Anaya & Crider,
supra note 3, at 348.
Similar provisions have been included in ILO No. 169, a multilateral treaty binding on
several states in the Americas. ILO Convention No. 169, Concerning Indigenous and Tribal
Peoples in Independent Countries, June 27, 1989, 28 1.L.M. 1382 (1989), in Hunter, supra note 2,
at 1338-39. ILO No. 169 states "that 'rights' shall be recognized and respected for those lands, or
'territories,' that indigenous people have 'traditionally used and occupied.'" Macdonald, supra
note 20. Article 7 of ILO No. 169 ensures that people shall have the right to self-determination

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evident in A was Tingni. The Community's str

indigenous concerns - previously regarded, releg
simple 'claims' by marginal people - have been ele
recognized legal rights, which must be honored.
national and international legal mechanisms to pre
d. Environment and Justice
Destructive and unsustainable environmental practices carry a high

human cost that most often disproportionately burdens those already on the
margins of society.54 Such a disproportionate allocation of costs - and
benefits - is unmistakable in A was Tingni, where Nicaragua permitted and
promoted the unsustainable and destructive logging of forests on the
Community's lands.55
and participation in development decisions that affect them, while Article 15 specifies that
"[t]he rights of the peoples concerned [with] the natural resources pertaining to their lands shall
be specially safeguarded" and that indigenous people have the right "to participate in the use,
management and conservation of these resources." Hunter, supra note 2, at 1339. Nicaragua
has supported ILO No. 169 at the United Nations but has not yet formally ratified the
Convention, and the United States, Canada and Belize are not parties to No. 169. S. James Anaya
& Robert A. Williams, Jr., The Protection of Indigenous Peoples' Rights over Lands and Natural
Resources Under the Inter-American Human Rights System , 14 Harv. Hum. Rts. J. 33, 53-54
(Spring 2001). However, the principles expressed in ILO No. 169 may be considered customary
international law. Anaya & Crider, supra note 3, at 347-48.
The United Nations Working Group on Indigenous Populations was established in 1982
and promulgated the Draft United Nations Declaration on the Rights of Indigenous Peoples
(Draft Declaration) in 1994. Anaya & Williams, supra note 52, at 34. The Draft Declaration is
presently under review by the U.N. Commission on Human Rights. Anaya & Crider, supra note
3, at 34. Article 26 of the Draft Declaration states that
Indigenous peoples have the right to own, develop, control and use the lands and
territories, including the total environment of the lands . . . and other resources which
they have traditionally owned or otherwise occupied or used. This includes the right to
the full recognition of their laws, traditions and customs, land-tenure systems and
institutions for the development and management of resources, and the right to effective
measures by States to prevent any interference with, alienation of or encroachment upon
these rights.
Hunter, supra note 2, at 1340-41.

In addition, the United Nations Human Rights Committee and the Inter-American
Commission have determined that "under international law, the states' obligation to protect
indigenous peoples' right to cultural integrity necessarily includes the obligation to protect
traditional lands because of the inextricable link between land and culture in this context."
Anaya & Williams, supra note 52, at 53. The recognition of this "inextricable link" demonstrates
that rights to lands and natural resources are property rights that indigenous communities
depend upon for survival. Id. The Convention of the Elimination of All Forms of Racial
Discrimination and the Covenant on Civil and Political Rights are among the other international
human rights instruments applicable to the protection of indigenous peoples' rights. Id.
54 See, e.g., Aaron Sachs, Eco-Justice: Linking Human Rights and the Environment 6
(1995) (discussing the deeds and words of Chico Mendes).
55 ILRC, IAC Rules , supra note 5. In Nicaragua and throughout Central America, the
unsustainable practices of poorly regulated logging companies include failing to conduct

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The environmental justice movement, which emerged

1980s to advance the equitable distribution of environ
benefits, is gaining prominence in the United States and abroad.56
Environmental justice links the environmental and human rights movements
in several ways.57 First, because environmental degradation harms "the
human rights to life, health, and livelihood, acts leading to environmental
degradation may constitute an immediate violation of internationally
recognized human rights."58 Implementing effective environmental
protections would achieve human rights standards by enhancing
environmental and human health, thus increasing the survival of those
whose lives and livelihoods depend directly on natural resources - such as
the Awas Tingni Community.59
Conversely, protecting human rights, including the rights of indigenous
peoples to their ancestral lands, promotes respect for environmental
protection claims.60 Many proponents of environmental justice assert that
there is "an inalienable human right to a satisfactory environment" and that
it is the responsibility of the legal system to enforce this right.61
Finally, both the human rights and environmental movements have
focused on enhancing access to information and increasing the participation
of local peoples in the decision making that affects their lives.62 The capacity
of each movement to influence development policies - and to promote the
protection of the rights and environments of indigenous communities - can
regular replanting; building roads that destroy traditional farming systems and open areas to
settlers; polluting waterways; and damaging forest health, which can result in landslides,
flooding, and the loss of wildlife. Id.
5b See People of Color Environmental Leadership Summit, Principles of Environmental
Justice, Oct. 7, 1991, at http://www.igc.org/saepej/Principles.html (last visited Sept. 4, 2002)
(describing the tenets of the environmental justice movement); see generally Richard J. Lazarus,
Pursuing Environmental Justice: The Distributional Effects of Environmental Protection, 87 Nw.
U.L. Rev. 787 (Spring 1993), and Luke W. Cole, Environmental Justice Litigation: Another Stone
in David's Sling ; 21 Fordham Urb. L. J. 523 (Spring 1994) (discussing the legal uses of
environmental justice principles).
57 Sachs, supra note 54, at 7, 8.
58 Hunter, supra note 2, at 1308. See also Agenda 21, supra note 52, at 1Í 26.3(a)
(recognizing that "the traditional and direct dependence on renewal resources and ecosystems,
including sustainable development, continue to be essential to the cultural, economic, and
physical well-being of the indigenous peoples and their communities").
59 Id. According to Melba Mclean, an Awas Tingni Community member, "We have lived on
this land for a long, long time, and we have a close relationship with nature. We respect nature.
The problem is that others don't respect us." Catherine Elton, Indians' Heritage Gets a Legal
Stamp: Nicaragua's Mayagna Indians Gain Legal Title to Their Ancestral Lands and Set a
Precedent for Region , Christian Sc. Monitor (Dec. 4, 2001), available at
http://www.csmonitor.com/2001/1204/p6s3-woam.html.
60 "In general, when human rights and ecology are given equal weight and local people not
only participate in the development decisions that are going to affect them but also have a
strong ecological knowledge base, communities end up acting as stewards of the local
environment." Sachs, supra note 54, at 17 (discussing the example of the Amazon rubber
tappers in particular).
61 Hunter, supra note 2, at 1308.
b¿ Sachs, supra note 54, at 8.

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only increase as the two efforts unite under the

environmental justice.63
3. The Awas Tingni Community
The Awas Tingni case unites the human rights

discussed above, as the Awas Tingi Community sought to remedy an
effective denial of self-determination that began in the nineteenth century
and resulted in the incorporation of the Atlantic Coast region within the
Nicaraguan state.64 The indigenous peoples of the Atlantic Coast have since
lived on the margins of Nicaraguan cultural, social, economic, and political
life with the "imposition of government structures that have inhibited their
capacity to exist and develop freely as distinct cultural communities."65
However, though Awas Tingni Community members are generally
impoverished and seek income from the resources found on their traditional
lands, they have also demonstrated a strong environmental stewardship
ethic with regard to these resources.66
The Awas Tingni Community is one of several ethnically Sumo, or
Mayagna, indigenous communities in the Atlantic Coast region of
Nicaragua.67 Among themselves, Community members speak Mayagna,
although most speak some Spanish.68 The Community has a population of
approximately 150 families, or about 650 individuals.69 The land, used by the
Awas Tingni for subsistence agriculture, hunting, and fishing, is held
collectively by all members of the Community.70 Families and individual
community members may hold subsidiary use and occupancy rights.71 This
communal property system is based on the traditional law and culture of the
people and does not rely on official state recognition: The Community
claims about 100,000 hectares of land, but lacks formal title.72 Because the
Mayagna, Rama, and Miskito communities have always lived on the isolated
lands of Nicaragua's Atlantic Coast, present-day Community members
believe that the lands belong to them.73
63 Id.
64 Anaya, supra note 1, at 86-87.
65 Id. at 87.
66 Anaya & Crider, supra note 3, at 349.
67 Id. The Miskitos, Ramas, and Mayagnas (Sumos) Communities have historically
populated the Atlantic Coast of Nicaragua. Indian Law Resource Center, International Human
Rights Court to Rule on Indian Land Rights Case Against Nicaragua (Feb. 4, 2000), available at
http://www. indianlaw. org/body_awas_tingni. htm.
68 ILRC, Summary, supra note 16.
69 Id.
70 Id. Forest activities also hold a religious significance for the Atlantic Coast indigenous
communities, which have a culture and environmental identity that is linked to the land. Id.
71 Id.
72 Anaya & Williams, supra note 52, at 44 47.
73 Awas Tingni Amicus, supra note 4. The traditional, communal land tenure systems of the
Awas Tingni Community are recognized in the oral history and local knowledge of the people
themselves, as well as in anthropological accounts. Anaya & Williams, supra note 52, at 44-47.
However, the Community "hold[s] no title to back up their survey in their memories. They had
one, they say, but it was lost in one of their migrations within the forest." Preston, supra note

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4. The Inter-American Human Rights System
The Inter-American Commission on Human Rights and the Inter-

American Court of Human Rights were established under the American
Declaration of Human Rights and Duties of Man (American Declaration) and
the American Convention on Human Rights (American Convention) to hear
claims of alleged human rights violations.74 In 1948, the Ninth International
Conference of American States adopted the non-binding American
Declaration, which affirms the right of every person "to own such private
property as meets the essential needs of decent living and helps to maintain
the dignity of the individual and the home."75 The American Convention76
replaced the American Declaration in 1978. 77 The American Convention
articulates the procedures and substantive rights under which the Inter-
American Commission on Human Rights and the Inter-American Court of
Human Rights may investigate and adjudicate complaints relating to states
47. Thus, unofficial oral records may be the only records used and valued by the Community.
According to Anaya and Williams,
it should be emphasized that indigenous communities in the Americas and elsewhere will
define property rights according to their own unique traditions and customs. There is no
'universal' or one-size-fits-all definition of 'indigenous property rights' . . . because each
indigenous community possesses its own unique social, political, and economic history,
each has adapted and adopted methods of cultural survival and development suited to
the unique environment and ecosystem inhabited by that community. As a result, each
indigenous community creates its own customary laws for governing its lands and
resources.
Anaya & Williams, supra note 52, at 43.

75 Anaya & Williams, supra note 52, at 42 (quoting American Decl
Duties of Man, adopted 1948, Ninth International Conference of Am
O.A.S. Res. XXX, reprinted in Basic Documents Pertaining to Human Rights in the Inter-
American System 17 (1992)); see also Hunter, supra note 2, at 1312 (discussing the adoption of
the American Declaration by the Ninth International Conference of American States), and Inter-
American Commission on Human Rights, Organization of American States,
http://www.cidh.oas.org/Básicos/basicl.htm (discussing the Organization of American States
and the Inter-American Human Rights system, as well as the American Declaration, the
American Convention, and other human rights instruments) (last visited Sept. 4, 2002).
76 American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123,
available at University of Minnesota Human Rights Library, American Convention on Human
Rights ; http://wwwl.umn.edu/humanrts/oasinstr/zoas3con.htm (entered into force July 18, 1978
[hereinafter American Convention].
77 Hunter, supranote 2, at 1312. In addition, the Organization of American States (OAS) has
prepared a Proposed American Declaration on the Rights of Indigenous Peoples with input from
OAS member states and indigenous peoples' representatives. Inter-American Commission on
Human Rights, Organization of American States, Proposed American Declaration on the Right
of Indigenous Peoples, at http://www.cidh.oas.org/Indigenous.htm (last visited Sept. 4, 2002);
Anaya & Williams, supra note 52, at 35.

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that are parties to the Convention.78 The Conv

human rights that the signatories agree to uphold.79
The Inter-American Commission on Human Rig
under the Charter of the Organization of Ame
Commission investigates and monitors human righ
OAS member countries.81 Individuals, groups, or
have been legally recognized in OAS member stat
alleging human rights abuses to the Commiss
investigates the allegations and prepares a report outlining its
recommendations for the affected state.83 The state then has a specific time
during which to comply with the Commission's recommendations for
resolving the issue.84 If the state has not complied with the
recommendations by the end of this period, the Commission can publish
another report, or, if the country has agreed to submit to the Inter-American
Court's jurisdiction, the Commission can submit the case to the Inter-
American Court.85 The Commission determines whether to submit the case
to the Inter-American Court of Human Rights based on "what it deems to be
in the best interest of human rights in the Americas."86 If it brings the case to
the Inter-American Court, the Commission represents the parties, although
the parties, attorneys often participate as special counsel or as advisors to
the Commission.87 Parties may not bring a case to the court without the
Commission.88
78 American Convention, supra note 76. The Inter-American Commission applies to all OAS
members, whether or not they have ratified the American Convention. Hunter, supra note 2, at
1312. However, while both the American Convention and the American Declaration apply to
countries that have ratified the Convention, only the American Declaration applies to countries
that are not parties to the Convention. Id.
79 American Convention, supra note 76. Article 21 of the American Convention on Human
Rights establishes that (1) "Everyone has the right to the use and er'joyment of his property. The
law may subordinate such use and ei'joyment to the interest of society"; (2) "No one shall be
deprived of his property except upon payment of just compensation, for reasons of public utility
or social interest, and in the cases and according to the forms established by law"; and (3)
"Usury and any other form of exploitation of man by man shall be prohibited by law." Id. In
addition to Article 21's property rights protections, Article 25 requires states to adjudicate
claims of human rights violations promptly and to enforce their courts' decisions; Article 2
requires states to adopt measures (legislative or other) to protect the rights articulated in the
convention; and Article 1 requires states to respect and guarantee the rights articulated in the
Convention on a non-discriminatory basis. Id.
81 American Convention, supra note 76; ILRC, Summary, ; supra note 16.
82 American Convention, supra note 76, art. 44.
S3 ldt arts. 48-51.
84 Id., art. 51.
85 Id. The Commission submits the case within three months from the date of filing its initial
report with the state. ILRC, Summary ; supra note 16.
se Id.
87 Id; Erica-Irene A. Daes, Status of the Individual and Contemporary International
Law: Promotion, Protection, and Restoration: Human Rights at National, Regional and
International Levels 50 (1991).
88 Id.

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The Inter-American Court of Human Rights applies and

American Convention and the American Declaration.89 The Inter-American
Court's judgments are binding on party-states that have accepted
jurisdiction, and the court's rulings establish legal precedent for OAS
member states.90 If the court finds a state to be in violation of the
Convention, the court can order states to remedy violations, and such
remedial orders may be enforced in the states' domestic courts.91 The court
may also order the state to pay damages and reasonable attorneys' fees and
costs.92However, the court cannot award punitive damages.93
Nicaragua is a member of the OAS and ratified the American
Convention on September 25, 1979.94 On February 12, 1991, the State
consented without reservation to the Inter-American Court's jurisdiction
over all matters relating to the Convention.95 The Nicaraguan government is
therefore bound by the ruling of the court and is obligated to comply with
Inter-American Court orders.
5. The Inter-American System and Indigenous Rights
The Inter-American Commission on Human Rights has accepted, and is

investigating, several human rights complaints brought by indigenous
peoples against OAS member states.96 Though neither the American
Convention nor the American Declaration specifies obligations to
indigenous peoples,97 the general human rights provisions of both
documents protect the lands and resources of indigenous communities.98 In
89 Hunter, supranote 2, at 1312.

90 ILRC, Summary ; supra note 16; ILRC, IAC Rules, supra note 5.
91 ILRC, IAC Rules, supra note 5.
ILRC, Summary, ' supra note 16.
93 Id.
94 Organization of American States, Member States, at
http://www.oas.org/EN/MSTATES/bckgrdme.htm (last visited Sept. 4, 2002); Inter-American
Commission on Human Rights, Organization of American States, Signatures and Current Status
of Ratifications: American Convention on Human Rights uPact of San Jose, Costa Rica," at
http://www.cidh.oas.org/Basicos/basic4.htm (last visited Sept. 4, 2002) [hereinafter IACHR,
Signatures and Current Status) .
95 IACHR, Signatures and Current Status, supra note 94.
96 Inter-American Commission on Human Rights, Organization of American States, Chapter
II: Legal Bases and Activities of the IACHR During 2000, at
http://www.cidh.oas.Org/annualrep/2000eng/chap.2.htm (last visited Sept. 4,
IACHR had received thousands of petitions, resulting in more than 12,000
cases." Id.; see also Inter-American Commission on Human Rights, Organ
States, Petitions and Cases Before the Inter-American Commission, at
http://www.cidh.oas.org/annualrep/2000eng/chap.3ahtm (last visited Sept. 4, 2002) (de
precautionary measures granted by the Commission in 2000).
97 In addition, neither instrument refers "explicitly to the protection of the enviro
However, Article 11 of the 1988 Protocol to the American Convention on Human Rights
Salvador Protocol), 28 1.L.M. 156 (1989), provides that: 'Everyone shall have the right to
healthy environment and to have access to basic public services. The State Parties s
promote the protection, preservation and improvement of the environment.'" Hunter,
note 2, at 1312-13.
98 These provisions include those that uphold the right to property and physical well

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fact, according to some commentators, the Inter-American system has

recently "increased scrutiny" of state action impacting the rights of
indigenous peoples to their traditional lands and resources." For example,
at least three other cases presently in the Inter-American Human Rights
system address international protection of indigenous land rights based on
traditional use and occupancy.100 Each case "concerns serious threats to the
safe enjoyment of indigenous peoples' human rights, including threats to the
cultural survival and physical well-being of entire indigenous
communities."101 The proposition asserted by the Awas Tingni Communit
and the claimants in these cases - that the Inter-American system recognize
and protects indigenous peoples' rights over their lands and resources - is
based on provisions of the American Convention on Human Rights, the
American Declaration on the Rights and Duties of Man, Inter-American
system processes, and other international instruments.102
6. Nicaragua n Law
Through a "series of nineteenth century events that were devoid of

adequate procedures of consultation with the indigenous population," the
Atlantic Coast region was incorporated into the Nicaraguan state.103 In 1905
Nicaragua created the Miskito Region Titling Commission to grant some
indigenous communities title to small parcels of land.104 However, since that
time the State has failed to establish a process for regulating or securing
and affirm the right to the integrity of culture. University of Minnesota Human Rights Library,
American Declaration of the Rights and Duties of Man , arts. I (life, liberty and personal
security), XI (health and well-being), and XIII (benefits of culture), available at
http://wwwl.umn.edu/humanrts/oasinstr/zoas2dec.htm (last visited Sept. 4, 2002); American
Convention, supra note 76, arts. 7 (personal liberty), 21 (property), and 26 (progressive
development). According to Anaya and Williams, "provisions of the American Declaration and
the American Convention affirm the rights of indigenous peoples to lands and natural resources
on the basis of traditional patterns of use and occupancy, especially when viewed in light of
other relevant human rights instruments and international developments concerning indigenous
peoples." Anaya & Williams, supra note 52, at 41.
99 Anaya & Williams, supra note 52, at 39.
100 Id. One case involves the failure of the Belize government to protect traditional land and
resource use rights by granting logging and oil concessions on more than 700,000 acres of
rainforest used and occupied by the Toledo Maya. Id. at 38-39. The Inter-American Commission
has suspended the concessions pending investigation. Id. The Commission also is considering a
complaint filed by the Carrier Sekáni Tribal Council that seeks to assert aboriginal rights to land
and natural resources and prevent the province of British Columbia, Canada from "reallocating"
timber rights to corporate logging companies. Id. at 40. Finally, in the United States, the Dann
sisters, traditional Shoshone ranchers, have "asserted aboriginal title rights to Western
Shoshone lands as a defease to efforts by the United States to deprive them of the use and
er'joyment of these lands." The Danns have been denied a remedy through the United States
domestic legal system. Id. Anaya and Williams are part of legal representation teams for each of
these cases. Id.
101 Id. at 41.
102 Id. at 36.
104 Awas Tingni Amicus, supra note 4, at Part IIA.

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indigenous property rights.105 Consequently, while other

Nicaragua are permitted to secure ownership of their lan
peoples that have traditionally occupied the lands of the A
been denied this right.106
In 1987 Nicaragua included in the new Political Constitution of
Nicaragua the recognition of the rights of indigenous peoples to their
traditional territories.107 Article 5 of the Political Constitution of Nicaragua
declares that
the State recognizes the existence of indigenous peoples, who ei'joy the rights,
obligations and guarantees recognized in the Constitution, especially those that
maintain and develop their identity and culture ... so as to maintain the
communal forms, ei'joyment, use and benefit of their lands
In addition, Article 89 of the Constitution states that "[t]he State

recognizes the communal forms of property of the Atlantic Coast
Communities' lands; it also recognizes the ei'joyment, use and benefit of the
waters and forests of their communal lands."109
These rights were reaffirmed in Law No. 28 of the Autonomy Statute of
the Atlantic Coast Regions of Nicaragua (Autonomy Statute).110 Article 36 of
the Autonomy Statute declares that "[c]ommunal property is comprised of
the land, water, and forest which have traditionally belonged to the
Communities of the Atlantic Coast."111 Under the Article, "[c]ommunal lands
are inalienable; they cannot be gifted, sold, seized, or encumbered, and are
imprescriptible."112 Article 36 also stipulates that "[t]he Communities,
inhabitants have the right to work parcels on the communal property and to
the usufructory [sic] rights of the resources generated by that work."113
Therefore, though the documents lack specific regulatory protections,
Nicaragua's constitution and Autonomy Statute recognize the unique needs
of the indigenous peoples of the Atlantic Coast.114
105 Id
106 Id.
107 Id. However, according to the Awas Tingni, the Nicaraguan Constitution "came to
recognize indigenous peoples' land rights only after the Miskito people denounced the State
before the Inter-American Commission on Human Rights and generated international pressure
ensued at a global level with regard to the Government's attitudes." Id. at Part HE.
108 Political Constitution of Nicaragua, art. 5, reprinted in Awas Tingni Amicus, supra note 4,
at Part HA.
109 Id
no Law No. 28, Autonomy Statute of the Atlantic Coast Regions of Nicaragua, arts. 35, 36,
published in the Gaceta, Diario Oficial, No. 238 (Oct. 30, 1987), reprinted in Awas Tingni
Amicus, supra note 4, at Part IIA.
m Political Constitution of Nicaragua, art. 36, reprinted in Awas Tingni Amicus, supra note
4, at Part IIA.
112 Id.
113 Id.
114 Awas Tingni Amicus, supra note 4, at Part HD.

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7. Nicaraguan Practice
Despite the guarantees outlined in the Nicaragua

Autonomy Statute, the Nicaraguan Institute of Agrar
granted land title to an indigenous community since 1
that there is a lack of express legal authority in the cu
Law to do so.115 Thus, though the indigenous commun
sought to secure their land rights from the State for d
State has recognized these rights in its constitutional
Nicaraguan officials have ignored these rights.116
Because the Awas Tingni Community lacks formal t
lands, and because its lands have not been officially demarcated, the
Nicaraguan government has treated the Community's territory as national
lands.117 According to the Awas Tingni, the State has encouraged migration
to the Atlantic Coast region by offering title to settlers who claim land by
cutting the forests.118 The Community also alleges that the State has created
municipalities in indigenous territories and encouraged the exploitation of
local natural resources by appointing mayors who ignore the rights and
authority of the indigenous communities.119 In addition, Nicaragua created
the National Natural Resources Reserve of Bosawas by presidential decree
in 1991, without consulting the Miskito and Mayagna communities that
inhabited the protected lands.120 This lack of consultation, coupled with the
resource-use restrictions imposed under the biosphere designation,
increased mistrust of government management strategies among the
indigenous communities of the Atlantic Coast region.121
8. The SOLCARSA Concession
On March 13, 1996, the Nicaraguan government granted a thirty-yea

logging concession to the Korean forestry company Sol del Caribe, S.A.
(SOLCARSA) and gave the company permission to construct a highway
115 Id. at Part IIA.

116 Judgment of August 31, 2001, supra note 19.
117 Bill Weinberg, The Battle for Miskitia : Part Two: Nicaragua's New Autonomy Struggle
Centers on Biodiversity, at http://www.towardfreedom.com/aug98/miskitia.htm (last visited
Sept. 4, 2002); Awas Tingni Amicus, supra note 4, at Part IIB. "'Nobody lives out there,' said
Alejandro Lainez, the official in charge of national forests, in an interview in Managua. 'Until
somebody shows me a title, that land is [government land.'" Preston, supra note 47.
118 Awas Tingni Amicus, supra note 4, at Part HB.
"9 Id. at Part HC.
120 Id. at Part IID. The area was certified as a Biosphere Reserve in 1998, a designation that
permits Nicaragua to secure global conservation and sustainable development funds. Weinberg,
supra note 117. The State has received funds to run the Reserve from international conservation
and environmental organizations including TNC, USAID, and the German agency GTZ. Awas
Tingni Amicus, supra note 4, at Part IID.
121 Id. at Part HE. In addition, Nicaragua created the State Forest Administration
(ADFOREST) in 1993 to manage state forests. Id. Because the Nicaragua Forestry Regulation
stipulates that landowners own the forest, ADFOREST directed the National Commission on
Demarcation of Nicaraguan Atlantic Coast Indigenous Lands to "[limit] indigenous lands and
[secure] state lands for the purpose of administering both." Id.

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leading to the concession.122 The concession granted SOLCAR

conduct logging operations on more than 62,000 hectares of
in the Mayagna territory. Atlantic Coast indigenous com
traditionally occupied all of the land included in the co
Nicaragua granted the concession in spite of the Awas Tingn
rights and a pending court action.124 In addition, Nicaragua f
or notify the Awas Tingni, or any of the indigenous commun
concession area, about the concession.125 The only no
provided was the publication of a few announcements in Managua,
Nicaragua, a considerable distance from the Atlantic Coast region.126
The logging concession illustrates the problems resulting from the lack
of formal title, demarcation of territory, or other effective state protections
for indigenous rights to traditionally held lands and natural resources.127 In
addition, the concession would have had devastating impacts on the hunting,
fishing, farming, and sacred lands of the Awas Tingni Community.128 Further,
environmentalists argued that the concession would degrade forests,
watersheds, and habitats necessary for wildlife in the nearby BOSAWAS
reserve.129 Finally, the concession violated Nicaragua's constitution and
autonomy laws, and Nicaragua's mahogany export laws.130 The Awas Tingni
Community therefore turned to Nicaragua's domestic courts in an attempt to
preserve the Community's communal lands, culture, and environment.131
122 Id. at 1; ILRC, LAC Rules, supra note 5. SOLCARSA is a local subsidiary of Kam-Kyung, a
Korean company that "agreed to make a $20 million investment, with plans to log and also set
up secondary sawmill, plywood and furniture industries." Preston, supra note 47. Interest in
Central American forests from other foreign logging companies "remains strong, and bids from
Indonesia, Taiwan and Malaysia are under consideration." Id.
123 ILRC, IAC Rules, supra note 5; Awas Tingni Amicus, supra note 4, at Part IA
124 ILRC, IAC Rules, supra note 5.
125 Awas Tingni Amicus, supra note 4, at Part IC.
126 Id. These announcements, written in Spanish with technical and legal terms, arrived to
the closest city to the indigenous communities several days after publication, and did not
circulate within the indigenous communities whose lands were affected by the grant. Id.
127 Id. at Part II. However, George Brooks, the general director of the State Forest
Administration (ADFOREST) claimed that the concession was responsible development: "Sixty
percent of everything that's been published about SOLCARSA is false. They never even touched
a single tree in their concession area." Weinberg, supra note 118.
128 ILRC, LAC Rules, supra note 5. States reportedly generally fail to regulate effectively
timber companies in the region, and the companies thus operate with little concern for forest
ecosystems or traditional lifestyles. Id. In addition, as of 1997, one Atlantic Coast indigenous
community, Fenicia, had been forcibly relocated when SOLCARSA established a plywood plant
in the community's territory. Knight, supra note 4. Though the company had offered each
Fenicia family about $150 to relocate, many refused and were forced to move by local
authorities and the Nicaraguan military. Id. The Awas Tingni also testified that they were
pressured to accept contracts with SOLCARSA. Id. In addition, Sumo communities that fled
mercury and cyanide contamination caused by mining operations near their homelands on the
Rio Bambana also live in the area sold to SOLCARSA. Id.
129 Id.
130 Id. In 1997, then-Nicaraguan President Aleman declared a five-year moratorium on
mahogany and cedar exports. Weinberg, supra note 118.
131 ILRC, IAC Rules, supra note 5; ILRC, Summary, supra note 16.

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894 ENVIRONMENTAL LAW [Vol. 32:873
B. Seeking a Remedy, Parti: Nicaragua's Do
1. The Awas Tingni Community's Use of the Nic
On September 11, 1995, the Awas Tingni C

Indian Law Resource Center, filed an amparo pe
Appellate Tribunal to stop the Ministry of th
Resources (MARENA) from granting the SOL
Awas Tingni also requested a judicial order to f
whose plan had already been preliminarily ap
government and who had been granted permissi
forest - to leave the Community's lands.133 Nati
and environmental groups provided support for
against the State.134
Nevertheless, the Matagalpa Appellate Trib
action, stating that the Community's failure to
within thirty days of acquiring knowledge of t
constituted "tacit consent" to the concession.13
to the Nicaragua Supreme Court on Septemb
affirmed the appellate tribunal's rejection of the
On March 29, 1996, the Regional Council of
Autonomous Regions (RAAN) filed another
Matagalpa Appellate Tribunal on procedural grounds, alleging that
Nicaragua's failure to obtain RAAN's approval for the concession violated
the Nicaraguan constitution.137 Nicaragua's Supreme Court agreed, and held
the concession unconstitutional on February 27, 1997. 138
However, neither the government nor MARENA revoked the
concession, and SOLCARSA continued its operations.139 At the urging of the
Awas Tingni Community, a member of the RAAN Regional Council sought
the assistance of the Nicaragua Supreme Court, and the court ordered the
President of Nicaragua to comply with its decision to revoke the
concession.140 MARENA notified SOLCARSA that the concession was
revoked on February 16, 1998, nearly a year after the original Supreme Court
decision.141
132 Id. An amparo petition is similar to a request for an injunction. It is the primary judicial
remedy for unconstitutional state action. ILRC, Summary, ; supra note 16.
133 Id.
134 Awas Tingni Amicus, supra note 4, at Part ID.
135 ILRC, Summary ; supra note 16.
Mb Id
1S7 Id.
138 Id.
139 Id.
140 id
141 Id. According to the Awas Tingni, the Community's forests were logged even after
SOLCARSA left the area, as smaller forestry operations (claiming to have Nicaragua's
permission) and settlers continued to clear the forest. Danielle Knight, Rights: Nicaragua
Honors Court Ruling on Indigenous Peoples ; Inter Press Service, 2002 WL 4912964 (Feb. 25,
2002).

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2. How the Nicaraguan Judicial Process Failed the Community
A was Tingni demonstrates how Atlantic Coast communities h

to find effective remedies when they file petitions in Nicaraguan
For example, two petitions challenging the SOLCARSA logging c
were rejected as being too late, despite the fact that one was
before the concession was signed and the other was submitted jus
concession was ratified.143 In addition, the Nicaraguan Supreme
more than one year to issue a decision, ignoring statutory require
decision on the merits within forty-five days.144
C. Seeking a Remedy, Part 2: the Inter-American Human Rights
Thus, despite Nicaragua's constitutional and statutory recogn

the rights of indigenous peoples, the Awas Tingni Community wa
obtain protection for or official title to its ancestral lands t
Nicaraguan legal system.145 Because the domestic judicial process
resolve the issues presented by the Atlantic Coast indigenous com
the only alternative for the Awas Tingni to vindicate its rights a
conflict with the State was to turn to an international judicial body.14
1. The Inter-American Commission on Human Rights
A party to the American Convention on Human Rights, Nica

participated in the Inter-American system over a prior Atla
indigenous land claim.147 In 1984, the Miskito peoples of the Atlan
Nicaragua sought the protections of the Inter-American Com
142 According to the Community, "judicial institutions are not accessible

communities and do not present an effective alternative for the resolution of t
land and natural resources." Awas Tingni Amicus, supra note 4, at 1-2. The indigenous
communities of Nicaragua's Atlantic Coast lack physical access to faraway courts, and social
barriers exist as well: Language barriers often prevent effective communication, the technical
legal process may hinder the ability of indigenous groups to develop amparo petitions and other
legal claims, community members often lack funds to pay for legal services, and the culture,
history, and rights of indigenous communities are foreign to many judges and lawyers. Id 1;
Claudio Grossman, Awas Tingni v. Nicaragua: A Landmark Case for the Inter-American System ,
8 No. 3 Hum. Rts. Brief 2 (2001). Further, the use of the amparo allegedly is "not effective for
Nicaraguan citizens in general and much less for indigenous communities that inhabit the
Atlantic Coast." Awas Tingni Amicus, supra note 4, at 1-2. In the Awas Tingni case, although the
Nicaragua Supreme Court affirmed the RAAN amparo petition, its decision was based on
procedural grounds. The Community believes that the "Supreme Court has never supported
indigenous community rights that are affirmed by Nicaraguan and international law." Id.
144 It is likely that this case would still be pending today if the Awas Tingni Community had
not filed the petition with the Inter-American Commission and generated the resulting
international attention. Id. The indigenous community of Kakamuklaya filed a petition with the
Nicaragua Supreme Court in January 1998, and a decision has not yet been issued. Id.
145 ILRC, Hearing, supra note 16.
146 Awas Tingni Amicus, supra note 4, at Part III, introduction 3.
w Id.

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Human Rights to settle a conflict with the Nicara

claims to their ancestral lands, modifications to the l
the exploitation of indigenous lands through agr
Commission conducted an investigation, publishe
recommended remedial steps for the Nicaraguan g
Nevertheless, as noted above, indigenous land rights
the Awas Tingni Community was forced to bring a
Commission.150
On October 2, 1995, the Community filed a petiti
American Human Rights Commission, alleging that
recognize the Community's land rights violated the
rights, as well as the Nicaragua Constitution and int
Organization of Nicaraguan Caribbean Indigenous Representatives
(OSICAN), the Indigenous Movement of the Southern Atlantic Autonomous
Region (MIRAAS), and the Miskito communities of Tasba Raya had joined
the Awas Tingni's legal fight before the SOLCARSA concession was granted,
and several Tasba Raya communities joined the Awas Tingni as co-
petitioners to the Inter-American Commission on Human Rights.152
The Awas Tingni brief to the Commission made four main points. First,
the brief alleged that the SOLCARSA concession was granted on the
Community's lands, without informing the Community or obtaining its
consultation, over its protest, and with no measures to mitigate the
concession's impacts on the lives and livelihoods of Community members.153
Second, the brief explained that the concessions are part of the larger
problem of the lack of demarcation of indigenous lands; that despite
constitutional and statutory protections, the State acts as if indigenous land
rights do not exist; that Nicaraguan laws are not designed to solve
indigenous land tenure problems; and that the State acts on indigenous land
148 Id
149 Inter-American Commission on Human Rights Organization of American States Petition
[hereinafter IACHR Petition ], 9 St. Thomas L. Rev. 164, 166 (1996). The Commission
recommended that the Nicaraguan government develop a "just solution" to the problem of
ancestral lands claimed by the Miskito people. Awas Tingni Amicus, supra note 4, at Part IV,
introduction 3. However, since the Commission issued its report, "there have been three
governments in Nicaragua, none of which has changed its attitude with respect to indigenous
peoples." Id.
150 IACHR Petition, supra note 149, at 165, 174. According to OSICAN:
Today, almost 15 years after the Commission's report in the previous case, the
Nicaraguan Government continues to ignore the Commission's recommendations;
therefore, far from improving, the indigenous land situation in Nicaragua has become
increasingly worse. Consequently, today more than ever, indigenous communities find
their very survival threatened. For these reasons, the Inter-American Court of Human
Rights' consideration of the merits of the Mayagna Awas Tingni Community's case is
crucial to the survival of the Nicaraguan Atlantic Coast indigenous people.
Awas Tingni Amicus, supra note 4, at Part IV.

151 ILRC, Summary, ; supra note 16; ILRC, Hearing, ; supra note 16.
152 Awas Tingni Amicus, supra note 4, at Part ID.
153 id at Part IC.

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rights issues only in response to international pressu

Community argued that effective judicial protection of
rights does not exist in Nicaragua.155 Finally, the Commun
American system to consider compelling Nicaragua to "s
effective solution to the systematic violations of the Ni
peoples' territorial rights."156
On March 3, 1998, in Report No. 27/98, the Inter-Ame
recognized the rights of the Awas Tingni Community to its ancestral
territories and the natural resources found on those lands.157 Despite
Nicaragua's arguments to the contrary, the Commission concluded that the
State violated the American Convention by failing to guarantee the Awas
Tingni Community's land rights and by granting the SOLCARSA concession
without the Community's consent.158 In addition, the Commission found that
the Nicaraguan government violated the Community's right to judicial
protection because its judicial institutions failed to address the Community's
land rights.159
The Commission made several recommendations to Nicaragua. First,
the Commission asked the State to establish legal procedures for the
recognition and demarcation of the territories of the Atlantic Coast
indigenous communities.160 The Commission also recommended that the
State suspend all logging activity related to the SOLCARSA concession until
land ownership issues were settled or an acceptable agreement could be
reached with the Community.161
In response, the government of Nicaragua asked the Commission to
close the case.162 It argued that Nicaragua had a national commission to
demarcate indigenous lands and that this commission had prepared a draft
Law on Indigenous Communal Property that would be approved within three
months.163 The government of Nicaragua also claimed to have cancelled the
concession and to have warned SOLCARSA management to suspend all
activities on February 16, 1998. The government stated that it was
154 Id. at Part II.

155 Id. at Part in.
156 Id. at conclusion.
157 University of Minnesota Human Rights Library, The Mayagna (Sumo) Awas Tingni
Community Case, Judgment on the Preliminary Objections of February 1, 2000, Inter-Am. Ct.
H.R. (Ser. C) No. 66 (2000), at http://www.umn.edU/humanrts/iachr/C/66-ing.html. [hereinafter
Judgment on the Preliminary Objections].
158 ILRC, Summary, ; supra note 16. Nicaragua presented several arguments to the
Commission. For example, on November 5, 1997, the State asked the Commission to close the
case, claiming that because the RAAN Regional Council had finally approved the concession, it
was now valid. Judgment on the Preliminary Objections, supra note 157. In 1997 and 1998,
Nicaragua argued that the Community had not exhausted its administrative remedies because
an amparo petition was still pending. Id.
160 University of Minnesota Human Rights Library, supra note 157.
161 Id.
162 id
I63 Id. Although then-President Chamorro created a Demarcation Commission in 1996 (a
condition to receiving GEF funding), "critics say it's so inactive as to exist in name only."
Weinberg, supra note 118.

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committed to initiating discussions with the Aw

solve land rights issues.164 Finally, the Sta
acknowledged indigenous land rights in its constit
"ha[d] faithfully complied" with these legal pr
Community had access to legal remedies.165
2. Awas Tingni in the Inter-American Court of Hu
The Inter-American Commission on Human Ri

the Inter-American Court of Human Rights
Commission presented the case to the court under Article 61 of the
American Convention on Human Rights, which grants the court compulsory
jurisdiction.167 The Commission's petition charged the Nicaraguan
government with violating Articles 1 (duty to respect rights), 2 (domestic
legal effects), 21 (property rights), and 25 (judicial protection) of the
American Convention on Human Rights.168 The Commission and the
Community asked the Inter-American Court to declare that Nicaragua
violated the human and property rights of the Awas Tingni Community,
failed to provide adequate domestic judicial protection for its citizens, and
denied the Community the means to secure its collective rights to own and
er'joy its lands by failing to demarcate indigenous territories.169 The petition
also asked the court to order Nicaragua to establish a system for
demarcating the communal land rights of Atlantic Coast indigenous peoples,
and to prevent the State from granting natural resource concessions without
the consent of affected indigenous communities.170 Finally, the Community
sought moral and pecuniary damages as well as reimbursement for the costs
of bringing the claim in the Inter-American system.171
On February 1, 2000, the Inter-American Court unanimously decided
that it would consider the merits of the case.172 Eight judges presided over
164 University of Minnesota Human Rights Library, supra note 157.

165 id
166 Judgment of August 31, 2001, supra note 19. Though the Commission is considering more
than forty cases involving indigenous issues, this was the first indigenous rights case the
Commission submitted to the Inter-American Court. Organization of American States, Court
Affirms Indigenous Rights, at http://www.oas. org/
OASNews/2001/English/Nov_Dec2001/art8.html (last visited Sept. 4, 2002).
167 Macklem & Morgan, supra note 17, at 570.
168 See supra Part II. A. 4 (discussing the American Convention).
169 ILRC Summary, supra note 16.
170 Id
171 Id.
172 ILRC, LAC Rules, supra note 5. The court rejected an attempt by the Nicaraguan
government to have the complaint dismissed on procedural grounds. Id. In preliminary
objections, Nicaragua argued that the Awas Tingni Community failed to exhaust its domestic
remedies. University of Minnesota Human Rights Library, supra note 157. The State claimed
that the Community's challenge to the logging concession involved "a series of omissions and
defective procedural actions," exceeded the statute of limitations, and was presented in an
"unclear petition," and that "the Community's attitude had a negative influence on the provision
of a legal remedy within a reasonable period." Id. Nicaragua also claimed that the Community
failed to request land titles from the appropriate authority (the Nicaraguan Agrarian Reform

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the case from November 16-18, 2000, in San José, C

Community presented a number of experts, includin
international development workers, indigenous right
lawyers, regional politicians, and Awas Tingni leaders.17
presented only one witness - a political appointee fro
agency that administers and distributes rural lands, who
that the Nicaraguan government is committed to the
indigenous lands.175 This witness also asserted that the
an indigenous community, but rather one of extremely m
and that the Community does not have an ancestral claim
the Community had moved there only recently.176
The lawsuit itself was unprecedented for several r
Inter-American Court had never before allocated th
hearing.177 More importantly, this was the court's f
indigenous traditional and communal land rights.17
proceedings themselves had a significant impact. For exa
the case in the Inter-American System created public an
such that the SOLCARSA concession was revoked in 1998.
World Bank learned about the struggles of the Awas Ting
conditioned Nicaragua's financial aid package on the crea
to demarcate indigenous lands.180 This pressure caused
preliminary steps to demarcate indigenous lands in
Nicaragua's president did not include indigenous commun
this legislation and the resulting efforts ultimately f
protect indigenous lands, the government's efforts t
Community's needs in light of international pressure
importance of the case.182
D. The Inter-American Court Decision
The Inter-American Court of Human Rights issued its decision in the

Awas Tingni esse on August 31, 2001. 183 Holding that Nicaragua's efforts to
protect indigenous lands were "illusory and ineffective," the court found that
Institute) when it petitioned the RAAN Regional Council. Id. The court dismissed the objection,
ruling that Nicaragua had "tacitly waived" the exhaustion of domestic remedies rule by failing to
raise the issue in a timely and express manner before the Inter-American Commission. Id.
173 ILRC, Hearing, supra note 16; ILRC, Summary, supra note 16.
175 Id. Further, the government attempted to present a suitcase load of documents just prior
to summations, but the court refused to admit them, stating that the government had long
missed the deadline to present these materials. Id.
i™ Id.
177 ILRC, Hearing, ; supra note 16.
ire Id.
179 ILRC, IAC Rules ; supra note 5.
180 Id
181 Id.
182 Id
183 ILRC, Summary, supra note 16; Judgment of August 31, 2001, supra note 19.

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the State violated the Community's rights to prop

(articulated in Articles 21 and 25 of American Con
provide equal protection (articulated in Articl
Convention), and the duty to conform its domestic
rights and duties agreed upon in the American
Rights."184 The decision "affirmed the existen
collective rights to their land ... by declaring that
property and judicial protection were violated
Nicaragua when [the government] granted [the
either consulting with the Community or obtaining i
The court also recognized the importance of
indigenous peoples: "As a product of custom, p
suffice to entitle indigenous communities without
official recognition and registration of their rig
court held that members of the Awas Tingni Com
property right over the lands they currently inh
the rights of the neighboring indigenous commun
consistent with the terms of Article 5 of the Political Constitution of
Nicaragua.187
According to the Inter-American Court, though Nicaragua has
recognized indigenous land rights, "it has not established the specific
procedure for putting into practice that recognition."188 The court observed a
"climate of constant uncertainty" among the Awas Tingni that had resulted
from the failure of the State to delimit and demarcate Atlantic Coast lands,
and ordered the State to adopt culturally appropriate measures to demarcate
and grant official title to the property of Nicaragua's indigenous peoples.189
The Court further ordered the Nicaraguan government to cease acts that
could adversely impact the value, use, or ei'joyment of the resources in the
territories of the Awas Tingni Community until the lands are demarcated and
titled.190
184 ILRC, Summary, ; supra note 16; Macdonald, supra note 20.
185 ILRC, Unofficial Translation , supra note 18. According to the Court, "article 21 of the
Convention protects . . . the rights of members of indigenous communities within the
framework of communal possession, a form of property also recognized by Nicaragua's Political
Constitution." ILRC, Unofficial Translation , supra note 18. The court therefore ordered
Nicaragua to "cease acts which could cause agents of the State, or third parties acting with its
acquiescence or tolerance, to affect the existence, value, use or ei'joyment of the property
located in the geographic area the Community of Awas Tingni inhabits and in which it carries
out its activities." Id. In addition, the court declared that "for indigenous communities the
relationship with the land is not merely a question of possession and production, but it is also a
material and spiritual element which they should fully ervjoy, as well as a means to preserve
their cultural heritage and pass it on to future generations." Macdonald, supra note 20.
186 ILRC, Unofficial Translation , supra note 18.
i88 Id.
189 Id.
190 id

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The Inter-American Court's judgment served as one form

for the Community.191 However, the court also ordered Nica
$50,000 in public works and services for the collective benef
Tingni "as reparation for immaterial damages."192 The court
investment to be made within twelve months under the sup
Inter-American Commission.193 Moreover, the court ordered
an additional US$30,000 for expenses and costs incurred by t
and its representatives in the domestic and international pr
addition, Nicaragua must submit a report to the court ev
outlining its compliance with the decision. Finally, the cour
jurisdiction over the case and supervise Nicaragua's compl
decision.195
E. The Impact of the Awas Tingni Decision
Mayagna (Sumo) Community of Awas Tingni v. Nicaragua "will

reverberate throughout Latin America, where numerous and similar
territorial claims have brought little, if any, government response."196
Through its ruling, the Inter-American Court of Human Rights set an
important precedent establishing the duties of Nicaragua and other
American states to address and protect indigenous land rights.197 According
to Claudio Grossman, chairman of the Inter-American Commission on
Human Rights, the decision also "reaffirms the value of the Inter-American
System in settling important disputes and at the same time strengthens the

192 id
193 Id.
I94 Organization of American States, supra note 166; ILRC, Summary, supra note 16.
195 Id
196 Macdonald, supra note 20. According to one source, 385 other indigenous communities
face similar land demarcation issues. NicaNet: Nicaragua Network Hotline, Topic 1:
Inter_American Court on Human Rights Hears Awas Tingnis Case , at
http://www.infoshow.Org/nicanet/pubs/hotlinell20_2000.html#topicl (last visited Sept. 4
197 ILRC, Hearing ; supra note 16. Not only is Nicaragua bound by the ruling, but th
American Court's ruling is "governing legal precedent" for all OAS member states. IL
Rules , supra note 5. There is already some indication that Nicaragua is acting on the
and that international protections for the rights of indigenous peoples are now valid
theory and in practice. For example, Nicaraguan President Enrique Bolaños Geyer, ele
November 2001, has vowed to create a secretariat for the Atlantic Coast region, whose
will include land-titling issues. Elton, supra note 59. In addition, on February 22, 2
Nicaragua's ambassador to the OAS presented a US$30,000 check to the Community's l
Knight, supra note 141. The Ambassador reported that legislation had been introduced in
Nicaragua to begin the process of demarcating all indigenous lands in the country. Id.
According to James Anaya, "It's the first concrete expression of willingness to implement the
court's judgment." Id. However, it remains to be seen whether the State will take the necessary
steps to actually demarcate and title the land. Id. Under the court's ruling, Nicaragua has until
December, 2002 to begin this process. Id. The Inter-American Commission also held a news
conference in Washington D.C. on February 21, 2002, to discuss the implementation of the
court's ruling. Reuters Washington Daybook Report, General News Events ; 2002 WL 2854352
(Feb. 21, 2001). In addition to IACHR staff and delegates, Nicaragua's ambassador to the OAS
participated in the conference. Id.

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rule of law in the Americas": States can no longer

justify exploiting the human rights and environ
peoples.198
In addition, this decision contributes to the developing customary
international law protecting the land and resources of indigenous peoples. 199
The growing consensus regarding indigenous rights gives "rise to
expectations that the rights will be upheld."200 Because the Court recognizes
and has the power to enforce these rights, its decision may have a "profound
impact" on the millions of indigenous peoples throughout the Americas who
are striving to protect their lands and human rights.201
According to one human rights commentator, A was Tingili "was, in a
way, the test case to challenge vague or non-existent rules that have stalled
efforts to establish clear land rights for the community and Nicaragua's
Atlantic Coast region in general."202 With perhaps the ideal result of the test
realized, the case may provide inspiration to other marginalized or
disempowered groups that they, too, possess the "unique capacity to
transform the law."203
A was Tingni is also important on the environmental front. Indigenous
societies have long been recognized for their stewardship practices and
sustainable development of natural resources. Perhaps as a result,
significant portions of the world's remaining tropical forests are found on
the traditional lands of indigenous peoples.204 The efforts of indigenous
peoples to protect their homelands may be the only check on state-
sponsored development that degrades, destroys, and pollutes. The
protection of Central America's forestlands - presently being destroyed at a
rate of 1160 square miles per year205 - is thus inextricably linked to
recognizing the rights of the forests' indigenous inhabitants.206 Nevertheless,
environmentalists' efforts to protect natural ecosystems have often ignored
the interests of indigenous peoples.207 The Awas Tingni case may serve to
198 Organization of American States, supra note 166.

199 Anaya & Williams, supra note 52, at 54-55.
201 ILRC, IAC Rules, supra note 5. The right of self-determination for indigenous peoples has
been a recurring demand and poses one of the most significant challenges in international law.
Williams, supra note 39, at 691, 693. Once achieved, self-determination for indigenous peoples
"gives rise to remedies that tear at the legacies of empire, discrimination, suppression of
democratic participation, and cultural suffocation." Anaya, supra note 1, at 75.
203 Williams, supra note 39, at 661-62.
204 Anaya & Crider, supra note 3, at 345. The rainforest and mahogany stands found on Awas
Tingni lands are "one of the few remaining expanses of unexploited and relatively accessible
tropical forest(s) in the world." Preston, supra note 47.
205 Id.
206 Nicaragua has the greatest area of productive forests in Central America, with 2.5 million
hectares of leafy tropical forests and 500,000 hectares of coniferous forests. G. Castilleja,
Changes in the Forest Policies of Latin America : The Cases of Chile, Nicaragua and Mexico, at
http://www.fao.org/docrep/vl500S/vl500s07.htm (last visited Sept. 4, 2002).
207 Anaya & Crider, supra note 3, at 347. Environmentalism - concern for the preservation of
ecosystems and biodiversity, with perhaps a "secondary attention to the economic or material
welfare of human beings" - is a value largely held by progressive Western elites and

77.231.69.108 on Mon, 15 Apr 2024 18:32:07 +00:00
convince many environmentalists that recognizing indigenou

essential element in environmental protection. Finally, the In
Court's ruling takes an important step in acknowledging the c
between indigenous land rights, human rights, and environme
issues.208
III. Conclusion
Land and natural resources are crucial for the survival and cultural
integrity of indigenous peoples. Protecting indigenous peoples' rights an
the lands used and occupied by indigenous communities requires an
"appreciation of the profound, sustaining linkages that exist between
indigenous peoples and their lands."209 It follows, then, that "[i]f
development projects emphasized the full, well-informed involvement of
local peoples, governments could no longer treat them - or their
environments - as expendable," and "if there were no expendable people or
ecosystems, development would have to be sustainable."210 Human rights
and environmental justice campaigns - often brought by or with indigenous
communities - promote this involvement, and seek to distribute the costs
and benefits of natural resources and their protection more equitably.211
Members of the Awas Tingni Community have fought for decades to
protect their land and resources from government-sponsored encroachment
by loggers. The Inter-American Court of Human Rights' ruling vindicates the
rights that the Community - and indigenous peoples throughout the
Americas and the world - have struggled to protect.212 The Awas Tingni
decision thus sets a powerful precedent that is essential to acknowledging
indigenous rights and environmental protection on an international scale.213
nongovernmental organizations. Id. at 346. Concern for economic development in an attempt to

increase living standards is a value that is often in competition with environmental concerns,
especially in the developing world, where economic development is promoted by governments
and "fueled by conditions of poverty as well as by the flow of capital transnational^. " Id.
208 See Sachs, supra note 54, at 17.
209 Anaya & Williams, supra note 52, at 49.
2*o Id.
2" Id.
212 Indian Law Resource Center, Landmark Victory for Indians in International Human Rights
Case Against Nicaragua, at http://indianlaw.org/awas_tingni_decision.htm (last visited Sept. 4,
2002).
213 Id.

77.231.69.108 on Mon, 15 Apr 2024 18:32:07 +00:00

Awas Tigni Analisis (English)

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ENVIRONMENT, EQUALITY, AND INDIGENOUS PEOPLES' LAND RIGHTS IN THE INTER-

AMERICAN HUMAN RIGHTS SYSTEM: MAYAGNA (SUMO) INDIGENOUS COMMUNITY OF

Stable URL: https://www.jstor.org/stable/43266138

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ENVIRONMENT, EQUALITY, AND INDIGENOUS PEOPLES'

This Note outlines the struggles of the Mayagna (Sumo) Community of

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indigenous peoples throughout the hemispher

A. Mayagna (Sumo) Community of Awas Tingni v. Nicaragua

B. The Importance of Mayagna (Sumo) Com

II. The Pas

A. Background: The Problems and the Players

1. Recognition of Indigenous Peoples' Rights

2. International Law Battles a Leg

a. The Doctrine of Discovery

d. Environment and Justice.

3. The A was Tingni Community.

4. The Inter-American Human Rights System

5. The Inter-American System and Indigenous Rights

8. The SOLCARSA Concession

B. Seeking a Remedy, Part I: Nicaragua 's Domestic Courts.

1. The Awas Tingni Community's Use of

2. How the Nicaraguan Judicial Process Failed the Community.

G Seeking a Remedy, Part 2: the Inter-American Human Rights System

1. The Inter-American Commission on Human Rights

2. Awas Tingni in the Inter-American Court of Human Rights

D. The Inter-American Court Decision

E. The Impact of the Awas Tingni Decision

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Through history, indigenous peoples have been assaulted physically and

Throughout the world, and in the developing world in particular, many

1 S. James Anaya, Indigenous Peoples in International Law 184 (1996).

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promote the "development" and exploitation of t

A. Mayagna (Sumo) Community of Awas Ting

The indigenous people of the Awas Tingni Comm

4 Brief of Amicus Curiae Nicaraguan Indigenous Orga

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Despite the vital role that ancestral lands play in the l

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{Sumö) Community of Awas Tingni v Nicaragua (

B. The Importance o/Mayagna (Sumo) Communit

The Awas Tingni Community's efforts to obtain

[hereinafter Judgment of August 31, 2001].

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This is not a new problem: Indigenous peoples have been deni

http://www.oneworld.org/ips2/aug01/10_48_025.html (last visited Sept. 4, 2002) (discussing

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capacities of indigenous communities to have their

A. Background: The Problems and the Players

1. Recognition of Indigenous Peoples' Rights

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Nevertheless, indigenous peoples have increasingly so

2. International Law Battles a Legacy of Abuse: Human Rights, Indigenous

a. The Doctrine of Discovery

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international legal discourse has generally failed t

Though international law is generally based on principles of state

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Indigenous rights activists have focused international atte

c. International Instruments, Indigenous Peoples, and Human Rights

As international concern for indigenous peoples' rights has grown, the

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