Saramaka People V. Suriname Author(s): Marcos A. Orellana Reviewed work(s): Source: The American Journal of International Law, Vol. 102, No. 4 (Oct., 2008), pp. 841-847 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/20456684 . Accessed: 13/02/2013 11:18
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This content downloaded on Wed, 13 Feb 2013 11:18:59 AM All use subject to JSTOR Terms and Conditions 2008] INTERNATIONALDECISIONS 841 differently to theAppellate Body itself, as opposed to panels?Note that theAppellate Body refers to "an adjudicatorybody"-in the singular-perhaps implying that only theAppellate Body may depart from prior rulingson the basis of "cogent reasons."Alternatively, the "adju dicatory body" itmentions may be theDispute Settlement Body, which would thus include panels. Since there are severalongoing zeroing disputes, the panels in question may have the opportunity to test the boundaries of theAppellate Body's new standard. SIMONLESTER WorldTradeLaw.net, Wellington, Florida
Indigenousand tribalpeoples' rights-land, territory,and natural resources-consultations and prior informedconsent- environmentaland socialimpact assessment- concessions andforeign direct invest ment- environmentaldamage
SARAMAKAPEOPLE V. SURINAME.Judgment (Preliminary Objections, Merits, Reparations,and Costs). SeriesC, No. 172.At
The case of the Saramaka People v. Suriname,1 decided by the Inter-AmericanCourt of Human Rights on November 28, 2007, concerned logging andmining concessions awarded by Suriname on territorypossessed by the Saramakapeople, without their full and effective consultation. The Court examined the rights of tribalpeoples in international law and con cluded that themembers of the Saramaka people have a right to use and enjoy the natural resources that lie on andwithin their traditionallyowned territoryand that are necessary for their survival.The Court also declared that Surinamemay restrict this right by granting con cessions for the exploration and extraction of natural resourcesonly when such restrictiondoes not deny theSaramaka's survival as a tribalpeople. In this respect, the statemust abide by three safeguards:first, effective consultations in every event, aswell as free,prior, and informed con sent in connection with development and investment projects havingmajor impacts; second, a sharingof benefits derived from development plans; and third, prior and independent envi ronmental and social impact assessment (EIA). In the end, theCourt found thatSuriname had violated the rights, under theAmerican Convention on Human Rights,2 to juridicalperson ality, property, and judicialprotection of the Saramakapeople living in theUpper Suriname River Region, in relation to the obligations to respect, ensure, and give domestic legal effect to those rights. In its judgment, the Court disposed of all issues relating to the Saramaka People case namely, preliminary objections, merits (including evidence), reparations,and costs. Both the Inter-AmericanCommission on Human Rights (Commission) and the "representatives"of the allegedvictims submittedwritten briefs containing pleadings,motions, and evidence.This
1 Preliminary Objections, Merits, Reparations, Costs, Ser. C, No. 172 (Inter-Am. Ct. H.R. Nov. 28,2007). The Court has issued a Saramaka v. on subsequent judgment, People Suriname, Interpretation of the Judgment Prelim and Ser. No. The are inary Objections, Merits, Reparations, Costs, G, 185 (Aug. 12, 2008). Court's judgments available at 2
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duality of "applicants" raised a question concerning the Court's competence in relation to alle gations by the victims' representativesconcerning the ongoing effects of theAfobaka Dam, a hydroelectric project in proximity to the Saramaka people. The Court considered that the Commission's application defined the factual scope of the litigation, and found that it did not include detailed factual assertions on the dam (paras. 13, 16). The Court then turned to preliminary objections; three of which are reported here. First, the state argued that the petitioners3 had no authorization from the chief leaderof the Sara makas (theGaa 'man)to petition on behalf of thewhole Saramakacommunity. In accordance with theprinciple of effectiveness (effetutile), theCourt noted that theAmerican Convention permits any group of persons to lodge petitions, including persons other than the alleged vic tims, and dismissed the objection (paras.19-24). Suriname also argued the non-exhaustion of domestic remedies.The Court noted that for this objection to be timely, itmust be pleaded in the state's first submission before theCom mission; otherwise, it ispresumed to be tacitlywaived. Further, the statemust specify the avail able remedies that remain to be exhausted and demonstrate their applicability and effective ness. Since Suriname argued non-exhaustion only in its fourth submission, and since itdid not specifywhich remedieshad not been pursued, theCourt dismissed the objection (paras.41-44). Finally, the state challenged the petition's admissibility, arguing that petitioners had filed requestswith theUN Human Rights Committee and theUN Committee on theElimination of RacialDiscrimination (CERD) .4The Court focused itsexamination on the object, purpose, and nature of those actions to determine whether the caseswere substantially the same.The Court concluded that the reporting procedures of the universal, treaty-basedbodies and the CERD's earlywarning and urgent procedure could not be equatedwith its adjudicatory juris diction (para.54). After addressing (and dismissing) the state's preliminary objections, theCourt assessed the available evidence and then analyzed themerits in a single section. First, theCourt addressed the question whether themembers of the Saramaka people make up a tribal community; of central importance in this contextwere the social, cultural, and economic characteristicsof the Saramakas. Insteadof being indigenous to the region that they inhabit, the Saramakasare one of sixMaroon groups in Suriname whose ancestorswere enslaved during the European col onization in the seventeenth century but escaped to the interior regions of the country. The Saramakas' social structure is organized inmatrilineal clans, and they regulate themselves, at leastpartially, by theirown customs and traditions.Culturally, themembers of the Saramaka people maintain a strong spiritual relationshipwith the ancestral territory that they have tra ditionally used and occupied. In this regard,"land ismore thanmerely a sourceof subsistence; it isalso a necessary source for the continuation of the life and cultural identity of the Saramaka people" (para.82). The Court observed that their economy can also be characterizedas tribal. Having established that the Saramakapeople make up a tribalcommunity, theCourt then askedwhether itsmembers require specialmeasures that guarantee the full exercise of their rights. In this regard, theCourt declared that its jurisprudence regarding indigenous peoples'
3 Namely, the Association of Saramaka Authorities and the twelve Saramaka captains. 4 was a to on One submission "shadow report" the Human Rights Committee Suriname's compliance with the on International Covenant Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171 [hereinafter ICCPR]; other were to measures submissions the CERD's "early warning and urgent action procedure."
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right to property is also applicable to tribalpeoples because both share similar characteristics, such as having distinct social, cultural, and economic traditionsdifferent from other sections of the national community, identifying themselveswith their ancestral territories,and regu lating themselves, at leastpartially, by their own norms, customs, and traditions. The second issue addressedby theCourt was whether Article 21 of theAmerican Conven tion protects the rightof themembers of tribalpeoples to the use and enjoyment of communal property.Recalling its jurisprudenceon indigenous peoples' rights, "both the private property of individualsand communal property ofthe members of... indigenous communities arepro tected byArticle 21 of theConvention" (para.89). The Court explicitly observed that its juris prudence is "basedupon the special relationship thatmembers of indigenous and tribalpeoples havewith their territory,and on the need to protect their right to that territory in order to safe guard the physical and cultural survivalof such peoples" (para.90). The Court recognized that its interpretationof Article 21 in previous cases reflectedArticle 29(b) of theAmerican Convention5-in connection with legislation in the respondent coun tries-as well as the InternationalLabour Organization Convention (No. 169) Concerning Indigenous andTribal Peoples in IndependentCountries (para.92).6 An interpretativeobsta cle thus arose:Suriname had not ratified ILOConvention No. 169, and its legislationdid not recognize a right to communal property of tribalcommunities. The Court utilized systemic interpretation techniques to overcome this hurdle; in particular, theCourt referredto Articles 1 and 27 of the InternationalCovenant on Civil and Political Rights7 andArticle 1of the Inter national Covenant on Economic, Social and Cultural Rights,8 in connection with reportsby the treaty-basedbodies overseeing their implementation (paras.93-94).9 In conclusion, byvir tue of Article 29(b) of theAmerican Convention, theCourt held thatArticle 21 grants the members of the Saramaka community the right to enjoy property in accordancewith their communal tradition (para.95). Having recognized this right, theCourt examinedwhether Suriname had adopted an appro priate framework to give it domestic legal effect. After scrutinizing Suriname's internal legal framework, including itsconstitution and lawsconcerning "landpolicy," mining, and forestry, theCourt concluded thatSuriname merely grants themembers of the Saramakapeople a priv ilege to use land and that thisgrant does not guarantee the right to control their territorywith out outside interference.Suriname also argued, however, that itwould be discriminatory to the restof the population to pass legislation recognizing communal formsof landownership. The
5 an a manner "[Article 29(b)] prohibits interpretation of any provision of the Convention in that restricts its to a is in or enjoyment lesser degree than what recognized the domestic laws of the State in question in another treaty to a which the State is party" (para. 92). 6 28 ILM at June 27, 1989, 1382,
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Court observed that "it is awell-established principle of international law that unequal treat ment towardspersons in unequal situations does not necessarily amount to impermissibledis crimination" (para. 103) and reiterated the need for specialmeasures to ensure the survivalof indigenous and tribalpeoples, in accordancewith their traditions and customs. The fourth and fifth issues addressed by theCourt go to the heart of this case-namely, whether, and towhat extent, members of the Saramakapeople have a right to use and enjoy the natural resources that lie on andwithin their traditionallyowned territory,and whether, and towhat extent, the statemay grant concessions for exploring and extracting such natural resources. In approaching these questions theCourt recalled its jurisprudenceon indigenous peoples'rights: Members oftribal and indigenous communities have the right to own thenatural resources theyhave traditionallyused within their territoryfor the same reasons that they have a right to own the land they have traditionallyused and occupied for centuries.Without them, the very physical and cultural survivalof such peoples is at stake. (Para. 121)10
The Court further reasoned that for indigenous and tribalcommunities, the right to territory would bemeaningless if said rightwas not connected to the natural resources that lie on and within the land (para. 122). Having established this connection, theCourt elaborated on the right's scope, reasoning thatwhat needs to be protected under Article 21 are those natural resourcestraditionally used and necessary for thevery survival,development, and continuation of indigenous and tribalpeoples' ways of life. In this regard, theCourt further noted that all exploration activity could affect, to a greater or lesserdegree, the use and enjoyment of some natural resource traditionallyused for the subsistenceofthe Saramakas.For example, clean nat uralwater essential for subsistence is likely to be affected by extraction activitiesof other natural resourcesnot essential to the survivalof the Saramaka.The Court considered, however, that Article 21 "should not be interpreted in away that prevents the State from granting any type of concession for the exploration and extraction of natural resourceswithin Saramaka ter ritory" (para. 126). Reasoning that the right to property isnot absolute, but subject to certain limitations and restrictions, theCourt declared that "the State will be able to restrict,under certain circum stances, the Saramakas'property rights, including their rights to natural resources found on and within the territory" (para. 127). In this respect the Court recalled that a permissible restrictionof the right to propertymust comply with the requirements established in its case law, 1 and that, in addition, any restrictionon the Saramakas' right to use and enjoy their tra ditional landsand natural resourcescannot "deny their survivalas a tribalpeople" (para.128).
[I]n accordancewith Article 1(1) of theConvention, in order to guarantee that restrictions to the property rightsof themembers of the Saramakapeople by the issuanceof conces sionswithin their territorydoes not amount to a denial of their survival as a tribalpeople, the State must abide by the following three safeguards:First, the State must ensure the
10 v. Ser. No. 125 Ct. Citing Indigenous Cmty. YakyeAxa Paraguay, Merits, Reparations, Costs, C, (Inter-Am. v. Ser. No. 146 H.R June 17, 2005), and Indigenous Cmty. Sawhoyamaxa Paraguay, Merits, Reparations, Costs, C, (Inter-Am. Ct. H.R. Mar. 29, 2006). 11 must be be and The restriction (1) have been previously established bylaw; (2) necessary; (3) proportional, (4) a in a democratic have the aim of achieving legitimate objective society (paras. 127-28).
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effective participation of themembers of the Saramakapeople, in conformity with their customs and traditions, regardingany development, investment, exploration or extraction plan (hereinafter"development or investment plan")within Saramaka territory.Second, theState must guarantee that theSaramakas will receivea reasonablebenefit from any such planwithin their territory.Thirdly, theState must ensure thatno concessionwill be issued within Saramaka territoryunless and until independent and technically capable entities, with theState's supervision, perform a prior environmental and social impact assessment. These safeguardsare intended to preserve,protect and guarantee the special relationship that themembers of the Saramaka community havewith their territory,which in turn ensures their survival as a tribalpeople. (Para. 129)
The Court furtherclarified the scope of the guarantees concerning consultations and the shar ing of benefits. Consultations must be culturally appropriate, taking into account traditional methods of decision making, and in order to enable internaldiscussion within communities, must takeplace at the early stagesof an investment plan. The statemust ensure that commu nities are aware of environmental and health risks.Additionally, the Court distinguished between "consultations" and "consent": "Regarding large-scaledevelopment or investment projects thatwould have amajor impactwithin Saramaka territory, the State has a duty, not only to consultwith the Saramakas,but also to obtain their free,prior, and informed consent, according to theircustoms and traditions" (para.134). On benefit sharing, theCourt reasoned that the right of compensation recognized underArticle 21(2) "extendsnot only to the total deprivation of property titlebyway of expropriationby theSate, . . .but also to thedeprivation of the regularuse and enjoyment of such property" (para.139). In this sense, the right to obtain just compensation translates into a right "to reasonably share in the benefitsmade as a result of a restrictionor deprivation of their right to the use and enjoyment of their traditional lands and of those natural resourcesnecessary for their survival" (id.). In light of these interpretations, theCourt assessedwhether the concessions alreadymade by Surinamewithin Saramaka territorycomplied with the safeguardsestablished under inter national law.Finding that theydid not, theCourt furtherobserved that the logging concessions had left a "legacyof environmental destruction, despoiled subsistence resources,and spiritual and social problems" (para. 153) and that the Saramakapeople received no benefit from the logging in their territory. In the ambit of reparations, theCourt considered themembers of the Saramakapeople as the injuredparty, without having to name them individually.The Court determined several measures to guaranteenonrepetition, including:demarcating territories;recognizing collective juridicalcapacity; and perfecting internal lawson consultations, EIAs, and judicialprotection. As measures of satisfaction, theCourt ordered the state to translate its judgment intoDutch and to finance two radio broadcasts, in the Saramaka language, of the decision's key para graphs.Then, in relation to compensation, theCourt considered that theSaramaka people had obtained no benefit from the timber extracted from their territoryand that the logging con cessions had resulted in environmental damage; Suriname was therefore ordered to pay U.S.$75,000 in compensation for suchmaterial damage. The Court also considered that the immaterialdamage caused to the Saramaka people by "alterations to the very fabricof their society"-including the impact of the environmental damage on their spiritual connection with theirterritory, aswell as thesuffering and distress endured as a resultof the longstruggle
This content downloaded on Wed, 13 Feb 2013 11:18:59 AM All use subject to JSTOR Terms and Conditions 846 THE AMERICAN JOURNALOF INTERNATIONALLAW [Vol. 102 for legal recognition- entitled them to a justcompensation. Finally, on equitable grounds, the Court ordered the state to allocate U.S.$600,000 to a community development fund to finance, among other things, educational, housing, agricultural, and health projects.
The Saramaka People case presented the Inter-American Court with the challenge of addressing structural tensions between traditional international lawprinciples, such as that of permanent sovereignty over natural resources,on the one hand, and human rights law guar antees, such as the right of indigenous peoples to property over their lands and territories,on the other.Where both the state and indigenous peoples claim interests regarding the same ter ritory and natural resources, those tensions aremagnified. The Court inSaramaka People strengthened its jurisprudenceon indigenous and tribalpeo ples' rightsby emphasizing the importanceof the linkagesbetween land, territory,and natural resources, in connection with collective property rights. In this respect, systemic interpretation techniques anchored inArticle 29(b) of theAmerican Convention allowed theCourt to enrich its reading of land rights and self-determination with analyticalwork undertaken in other human rights forums. The Court proposed an interpretationofArticle 21 of theAmerican Convention thatwould not preclude the issuance of concessions for the exploration and exploitation of natural resources in indigenous and tribal territories,but would subject such concessions to stringent safeguards.To a largedegree, this interpretationcomports with the legaland political realities inmany states in theAmericas, where natural resources, especiallyminerals, oil, and gas, are vested in the state, regardlessof surface land ownership. This interpretation is also consonant with theCourt's case lawon permissible restrictionsof rights, aswell aswith developments in other international human rights forums. The Court's approach shows the limitations, however, of framing indigenous rights to land and territory as an issue of property rights under Article 21.While theCourt observed that certain natural resourcesare indispensable to the survivalof the indigenous or tribalgroup, it nevertheless found that concessions over such natural resourcesmay be permissible because, inter alia, the right to property isnot absolute but admits of restrictions.The Court elaborated a frameworkof safeguards to ensure that such concessions would not result in threats to the survivalof indigenous and tribalcommunities, including consultations (and consent in regard to projects involvingmajor impacts), EIAs, and benefit sharing. This construct raisesseveral questions regarding its effective operationalization that are left open by theCourt. First,what criteriadetermine thenatural resources indispensable to the sur vival of the group? Second, does benefit sharing cover only those natural resourcesnecessary for survival,or all natural resourceswithin the group's territory?Third, what standardsdeter mine when a project has a "major impact," thereby triggering the free and prior consent requirement?Fourth, andmore generally, is the frameworkof safeguardscapable of achieving its objective, given its internal logic? In this regard,allowing a restrictionor deprivationof the right to use and enjoy traditional lands and the natural resourcesnecessary for survival- even after consultations, EIAs and compensation-is inconsistentwith the recognition that inter feringwith natural resourcesnecessary for survival imposes a threat to the survivalof the group; only freeand prior informed consent could ensure that this risk isnot imposed but voluntarily
This content downloaded on Wed, 13 Feb 2013 11:18:59 AM All use subject to JSTOR Terms and Conditions 2008] INTERNATIONALDECISIONS 847 assumed. Stated bluntly, if the natural resourceaffected isessential for survival, then payment of compensation quantifies the price of the group's existence. To avoid this (unintended) consequence, the interlinkagesbetween indigenous and tribal peoples' right to exist and thenatural resourcesnecessary for their survivalcould be approached under a right-to-life analysis.Within such vocabulary, the need to ensure the survival of the group would preclude concessions that negatively affected natural resources necessary for survival.While this approach could intensify the tension between human rights law and the sovereignty of the state- especiallywhen states are not prepared to abandon claims over natural resourcesconsidered of strategic or vital importance-it may nevertheless guide the preventive role of human rights law in safeguarding the right to exist of indigenous and tribal peoples. Yet another question concerning theCourt's decision inSaramaka People relates to the deci sion's impacton international investment law.For example, if a country's administrationwere to nullify a hydroelectric concession involving resettlement and flooding of cemeteries and sacred sites because itwas establishedwithout free and prior informed consent of affected indigenous or tribalcommunities, would an arbitral tribunalconstituted under an investment treaty grant protection to the (foreign) concessionaire?The analogy with corruption ap pears apposite, as such tribunalshave declined to hear cases in relation to investmentsprocured by corruption.12 If human rights law is considered essential to the internationalpublic order, then an investment established in breach of human rights law is arguably not an investment under international investment law. If so, the rescissionof concessions for oil and gas explo ration in territories traditionally occupied by isolated indigenous peoples in theAmazon which threatens them with forced contact and significant environmental consequences would not give way to viable arbitral claims. Admittedly, the questions that surface in the dialogue between these two spheres of international law are complex and require further research. A final point worth highlighting concerns the valuation of environmental damage. The Court was prepared to consider that the environmental destruction resulting from the logging concession constituted compensablematerial damage.The judgment lacksdetailed analysison valuation, however, and the level of compensation appears low in regard to what experts described as "severeand traumatic"damage, as "among theworst planned, most damaging andwasteful logging possible," and as rendering the "forest incapableof producing traditional Saramakaagricultural crops" (paras.150-52). The practice of other internationalcourts and mechanisms demonstrates themethodological difficulties associatedwith environmental val uation.13Nonetheless, theCourt's decision to compensate for environmental damage high lights the inextricableconnection between human rightsand the environment, particularly in respectof lands and natural resourcesupon which indigenous and tribalpeoples rely for sub sistence and development. MARcos A. ORELLANA Centerfor InternationalEnvironmental Law
12 5? World Duty Free Co. v. Republic of Kenya, ICSIDCase No. ARB/00/7, Award (Oct. 4, 2006). 13 ^MICHAEL BOWMAN& ALAN BOYLE,ENVIRONMENTAL DAMAGE IN INTERNATIONALAND COMPAR ATIVELAW: PROBLEMS OF DEFINITION AND VALUATION (2002).
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