Implementing Human Rights in Afro-Descendant Communities In

Silja Aebersold

2020

To the communities of Tierrabomba, Colombia, and Orinoco, Nicaragua.

IMPLEMENTING HUMAN RIGHTS IN AFRO-DESCENDANT COMMUNITIES IN

COLOMBIA AND NICARAGUA: AN ANALYSIS OF SELECTED HUMAN RIGHTS

CLAIMS AT THE INTERSECTION OF LEGAL ORDERS

Silja Aebersold

ABSTRACT

This dissertation examines the human rights claims of two Afro-descendant communities, namely the community of Tierrabomba in Colombia and the community of Orinoco in

Nicaragua. It analyzes how these human rights claims are protected in international human rights and domestic legal systems and in practice. This dissertation demonstrates that there is not one legal framework applicable to all Afro-descendant communities due to the cultural, economic, ethnic, and linguistic diversity of this population group. There is a need to tailor the nature and scope of the relevant international and domestic legal protections to the specific circumstances of the communities and their territorial States in order to adequately protect their legal claims. A locally focused approach is necessary to highlight the gaps in the different legal orders applicable to Afro-descendants and to shed light on the effectiveness of the relevant legal norms on the ground.

To demonstrate this argument, this dissertation employed a multi-method approach, combining legal doctrinal research with a field study in the communities concerned. Field research revealed the communities’ human rights claims and living conditions. Through the doctrinal legal research, this dissertation analyzed the exact nature and scope of the relevant international human rights provisions and their incorporation into the domestic legislations of

Colombia and Nicaragua. It then compared these international and domestic legal frameworks with the realities in the communities concerned to identify any gaps in implementation. ii

This dissertation found that the applicable international human rights law and legal systems of Colombia and Nicaragua only partially protect the human rights claims of the communities concerned, and any protection implemented on the ground is ineffective. The communities concerned demand use of their ancestral land, access to justice, and other fundamental rights to protect their community-oriented way of life. The legal analysis showed that the applicable legal norms primarily focus on the folkloric and material aspects of culture, such as unique religious rituals and traditional economic activities. This does not reflect the communities concerned’s understanding of culture as a way of life. Additionally, conflicting legal norms applicable to the human rights claims of the communities concerned weaken their legal protections while domestic laws mostly lack effective remedies to enforce human rights provisions. Fear of threats of violence from non-State actors and State neglect further jeopardize the rights’ implementation on the ground.

To overcome these legal and practical challenges in the communities concerned, this dissertation suggests a set of recommendations for human rights scholars and practitioners. For human rights scholarship, these recommendations center around the integration of empirical research into legal studies and technical analyses of the law. Human rights practitioners should ensure effective agency of the communities concerned, adopt a more flexible understanding of culture, and strengthen local accountability mechanisms. While these recommendations are tailored to the communities concerned, they also inform human rights scholarship and practice for similarly situated communities in Latin America.

iii

ACKNOWLEDGMENTS

This dissertation would not have been possible without the unconditional support and openness to share information of the communities of Tierrabomba, Colombia, and Orinoco,

Nicaragua. I am particularly indebted to Mirla Aarón Freite, Marta Morales, and José Javier

Moncaris Padilla in Tierrabomba and Kensy Sambola and Jonathan Gonzalez in Orinoco.

During my field research in the summer of 2017, they introduced me to their fellow community members, hosted me in their homes, and gave me access to information that I would not have had without them. I hope that through my research and legal analysis, I can give the communities a voice and contribute to integrating their human rights claims in policy processes that concern them.

I also wish to express my deepest gratitude to my advisor, Professor Diego Rodriguez-

Pinzon, for guiding the research process and providing invaluable feedback for the past four years. I am equally grateful to my committee members, Professor Claudia Martin and Siobhan

McInerney-Lankford, whose insights were monumental to shape the structure and arguments of this dissertation. I am also grateful to all staff of the S.J.D. program of American University

Washington College of Law for their tireless support of this research’s progress. Further, I would like to thank editor Lauren LaVare for her careful work and patience throughout the editing process.

My studies would not have been possible without the generous scholarships of the

Janggen-Pöhn Foundation, Switzerland, and Helmuth M. Merlin Foundation, Liechtenstein. I owe them a great debt of gratitude.

Lastly, I must express my profoundest gratitude to my family who instilled within me the desire to continuously ask questions, study, and learn. They have never failed to encourage me in my journey. I am equally indebted to my friends in Washington D.C. who quickly became iv

like family and spent with me days and nights at the library. They provided unconditional support throughout my studies. This accomplishment would not have been possible without them. Thank you.

TABLE OF CONTENTS

ABSTRACT ...... ii

ACKNOWLEDGMENTS ...... iv

LIST OF ILLUSTRATIONS ...... x

CHAPTER 1 RESEARCH SETTING ...... 1

Introduction ...... 1 Research Framework ...... 15

Research Problems and Questions ...... 15 Research Contributions ...... 17 Theoretical and Methodological Research Approaches ...... 20

Relevant Terminology ...... 32

Minorities ...... 32 Indigenous Peoples ...... 33 Tribal Peoples ...... 34 Vulnerable or Disadvantaged Groups ...... 37 Application of the Relevant Human Rights Terminology to Afro- Descendants ...... 40

CHAPTER 2 THE COMMUNITIES OF TIERRABOMBA AND ORINOCO: HISTORIES AND SELECTED HUMAN RIGHTS CONCERNS ...... 52

Conceptualization of Afro-descendants in Latin America from Colonial Times to the 21st Century ...... 52

Slavery, Slave Trade, and Colonial Societies ...... 53 After the Abolition of Slavery: Racial Stratification in the New Latin American Republics ...... 55 Attempts to Overcome the Myth of Racial Democracy Through Legal Tools ...... 57 Demographics of Afro-Descendants in Latin America ...... 62

The Afro-descendant Community of Tierrabomba ...... 69

Historic Significance of the Community ...... 69 Human Rights Claims of the Community of Tierrabomba ...... 73

The Garifuna Community of Orinoco ...... 81

The Garifuna’s History of Migration ...... 82

Human Rights Claims of the Community of Orinoco ...... 85

CHAPTER 3 REFLECTIONS ON KEY CONCEPTS RELEVANT TO THE LEGAL ANALYSIS OF THE HUMAN RIGHTS CLAIMS OF THE COMMUNITIES CONCERNED ...... 92

Indivisible, Interdependent, and Interrelated Understanding of Human Rights ...... 93 Cultural Rights as “Empowering Rights” for the Communities Concerned ...... 96 State Obligations Resulting from Cultural Human Rights ...... 101

State Obligations to Respect, Protect, and Fulfill ...... 101 State Obligations of Immediate Effect and Progressive Realization ...... 104 Particularities of State Obligations Resulting from Cultural Human Rights in the Inter-American Human Rights System ...... 105

Context-Specific Interpretation of Cultural Human Rights and Resulting State Obligations ...... 107 Framework to Monitor the Implementation of International Human Rights Law at the Local Level ...... 110

The “5A” Framework ...... 111 Structural, Process, and Outcome Human Rights Indicators ...... 113

CHAPTER 4 OWNERSHIP, CONTROL, AND USE OF ANCESTRAL LAND AND ITS NATURAL RESOURCES ...... 118

Land Rights for Afro-Descendant Communities from a Human Rights Perspective ...... 119 Rights to Access and Protect the Traditional Land of the Community of Tierrabomba in International Human Rights Law ...... 122

Access to Traditional Land Through Demarcation and Collective Ownership of the Land ...... 122 Protection of the Traditional Land from Erosion ...... 128 Participation and Prior Consultation in Land-Related Matters ...... 132 Corresponding State Obligations ...... 135

Rights to Use and Enjoy the Traditional Land and Natural Resources of the Community of Orinoco in International Human Rights Law ...... 138

Use of Traditional Land and Natural Resources without Outside Interference ...... 138 Corresponding State Obligations ...... 145

Application to Colombia ...... 147

vii

Domestic Legal Framework of the Rights to Access the Traditional Land and Protect It from Erosion ...... 148 Practical Implementation of State Obligations Resulting from International Human Rights Law and the Domestic Framework in the Community of Tierrabomba ...... 156

Application to Nicaragua ...... 160

Domestic Legal Framework on the Right to Use and Enjoy the Traditional Land and Natural Resources Without Outside Interference ...... 160 Practical Implementation of the State Obligations Resulting from International Human Rights Law and the Domestic Framework in the Community of Orinoco ...... 164

CHAPTER 5 EQUAL AND EFFECTIVE ACCESS TO CRIMINAL JUSTICE ...... 169

A Human Rights Perspective on Equal and Effective Access to Criminal Justice for Afro-Latin American Communities ...... 170 Right to Equal Law Enforcement and Effective Investigation of Drug- Related Crimes in the Communities Concerned Under International Human Rights Law ...... 174

Equality before the Law and Non-Discrimination ...... 174 Right to an Effective Remedy ...... 177 Corresponding State Obligations ...... 181

Application to Colombia and Nicaragua ...... 182

Domestic Legal Frameworks ...... 183 Practical Implementation of the State Obligations Resulting from International Human Rights Law and the Domestic Framework in the Communities Concerned ...... 191

CHAPTER 6 ANALYSIS OF OTHER HUMAN RIGHTS CLAIMS OF THE COMMUNITIES CONCERNED ...... 194

Equal Access to Decent Work Opportunities ...... 195

Work-Related Rights of the Communities Concerned Under International Human Rights Law ...... 196 The Rights to Adequate Remuneration and Safe Working Conditions in Colombia ...... 204 The Rights to Freedom and Access to Work Within Close Geographical Reach in Nicaragua ...... 211

Safe and Clean Water for the Community of Tierrabomba ...... 215

viii

Water as a Social Good and an Economic Commodity in International Human Rights Law ...... 216 Application to Colombia ...... 224

Revitalization of the Garifuna Language in the Community of Orinoco ...... 229

Reviving Indigenous and Tribal Languages from an International Human Rights Perspective ...... 230 Application to Nicaragua ...... 236

CHAPTER 7 IN LIEU OF CONCLUSION: RE-THINKING THE CURRENT HUMAN RIGHTS APPROACH TO THE HUMAN RIGHTS CLAIMS OF THE COMMUNITIES CONCERNED AND SIMILARLY SITUATED COMMUNITIES ...... 243

Current Human Rights Approach towards the Human Rights Claims of the Communities Concerned and Its Impact on the Ground ...... 243

Focus on Folkloric and Material Aspects of “Culture” ...... 244 Conflicting Legal Provisions ...... 246 Lack of Effective Remedies ...... 248 Practical Challenges in the Communities Concerned ...... 249

A Set of Recommendations for the Communities Concerned ...... 251

A Grounded Approach of the Law Towards the Communities Concerned and Its Legal and Practical Foundations ...... 252 Recommendations to Incorporate the Grounded Approach Towards the Communities Concerned in Legal Scholarship and Human Rights Practice ...... 255

Lessons Learned for Similarly Situated Afro-Descendant and Other Communities ...... 270

ANNEX A: LAND RIGHT INDICATORS FOR THE COMMUNITY OF TIERRABOMBA ...... 274

ANNEX B: LAND RIGHTS INDICATORS OF THE COMMUNITY OF ORINOCO ...... 282

ANNEX C: ACCESS TO JUSTICE INDICATORS FOR THE COMMUNITIES OF TIERRABOMBA AND ORINOCO ...... 287

ANNEX D: LIST OF INTERVIEW PARTNERS ...... 292

BIBLIOGRAPHY ...... 298

LIST OF ILLUSTRATIONS

Illustration

Figure 1: Multiple-case study setting ...... 26

CHAPTER 1

RESEARCH SETTING

Introduction

Tierrabomba is a community of African origin with about 2,300 inhabitants on an island of the same name in the Caribbean Sea of the Republic of Colombia.1 The community forms part of the urban area of Cartagena de Indias, one of Colombia’s most touristic and wealthiest cities,2 and it is accessible by a ten-minute speedboat ride from Cartagena. While the community has existed for nearly five centuries, the inhabitants do not have legal ownership over the territory.3 In attempt to remedy this situation, the community initiated a land titling procedure with the National Agency on Territories, the Colombian authority mandated to decide on collective land titling requests of communities. This procedure resulted in a decision stating that the community’s land belonged to the municipality of Cartagena, and not to the community.4

The National Agency on Territories held that the community of Tierrabomba could only obtain legal land ownership with the municipality’s consent.5 At the time of writing, the municipality still refuses to cede the land title to the community. For community leader Luis Alberto Herrera

Cardales, the State is violating the community’s fundamental rights. He adds that the State “does not see it in this way. It considers that we generate expenses [because we bring claims]… What

1 CIFRAS&CONCEPTOS, REGISTRO POBLACIONAL Y CARACTERIZACIÓN SOCIOECONÓMICA DE LA ISLA DE TIERRA BOMBA Y SUS CUATRO CENTROS POBLADOS [POPULATION REGISTER AND SOCIO-ECONOMIC CHARACTERISTICS OF THE ISLAND OF TIERRABOMBA AND ITS FOUR POPULATED AREAS] 3 (2013). The Republic of Colombia is hereinafter referred to as Colombia. 2 OBSERVATORIO DE DERECHOS SOCIALES Y DESARROLLO, CIUDAD HETEROGÉNEA, DIVERSA Y DESIGUAL: APROXIMACIÓN SOCIODEMOGRÁFICA A LA POBLACIÓN AFROCOLOMBIANA Y AL PANORAMA SOCIAL DE CARTAGENA DE INDIA [HETEROGENOUS CITY, DIVERSE AND UNEQUAL: SOCIO-DEMOGRAPHIC APPROXIMATION TO THE AFRO- COLOMBIAN POPULATION AND SOCIAL PANORAMA OF CARTAGENA DE INDIA] 68 (2009). 3 Interview with Gelvis Godoy Córdoba, Community Leader, in Tierrabomba, Colom. (July 31, 2017) (on file with author); interview with Wilfran Jose Moncaris Padilla, Community Leader and Vice-President of the Community Council of Tierrabomba, in Tierrabomba, Colom. (Aug. 5, 2017) (on file with author). 4 Interview with Mirla Aarón Freite, Human Rights Defender and Member of the Community Council of Tierrabomba, in Tierrabomba, Colom. (Aug. 2, 2017) (on file with author). 5 Id. 1

happens is that when I read some of these human rights, I realize that this is a fallacy. It is not a reality.”6 Other community leaders share this frustration, stating the State fails to comply with its legal obligations towards the community.7

This experience of the community of Tierrabomba exemplifies the human rights situation of many Afro-descendants in Colombia and Latin America. Afro-descendants are descendants of enslaved Africans who were forcibly transported to Latin America and the Caribbean by

European colonial powers between the sixteenth and nineteenth century.8 Since their arrival to the region, they have experienced State neglect, racial discrimination, and forced assimilation.

Some 200 years ago, Latin America abolished slavery and slave trade.9 Currently, most countries guarantee equality before the law through domestic constitutional provisions and the ratification of international human rights instruments, such as the International Covenant on

Civil and Political Rights,10 International Covenant on Economic, Social, and Cultural Rights,11 and the American Convention of Human Rights.12 Yet, Afro-descendants are more vulnerable to human rights abuses than others in the region who identify as racially mixed. While living conditions of Afro-descendants vary within Latin American countries, Afro-descendants across the continent are denied access to political power structures and suffer higher poverty rates than the dominant, racially mixed population.13 Even in urban areas, where the socio-economic

6 Interview with Luis Alberto Herrera Cardales, Community Leader, in Tierrabomba, Colom. (Aug. 4, 2017) (translation by the author) (on file with the author). 7 Interview with Gelvis Godoy Córdoba, supra note 3; interview with Mirla Aarón Freite, supra note 4. 8 GEORGE REID ANDREWS, AFRO-LATIN AMERICA, 1800-2000 at 7 (2004); see also ROBERT J. COTTROL, THE LONG, LINGERING SHADOW: SLAVERY, RACE, AND LAW IN THE AMERICAN HEMISPHERE 21 (2013). 9 ANDREWS, supra note 8, at 55-67. 10 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. 11 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR]. 12 American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 143 [hereinafter ACHR]. 13 Inter-Am. Comm’n on Human Rights, The Situation of People of African Descent in the Americas, ¶ 11 (Executive Summary), OEA/Ser.L/V/II. Doc. 62 (2011). 2

conditions are generally better than in rural areas, Afro-descendants are consigned to underserved localities with weak State infrastructures, limited employment opportunities, and increased levels of violence.14 Accounting for approximately one quarter of Latin America’s entire population,15 Afro-descendants are considered “the largest excluded”16 population group in the region. Such exclusion has rendered Afro-descendants susceptible to numerous human rights abuses by the state. Afro-descendants face obstacles in accessing administrative and judicial remedies, disproportionate use of force by law enforcement, forced displacement, and lack of access to education, employment, health services, or housing.17 In response, Afro- descendants have raised different legal claims to overcome the human rights abuses faced.

These claims include demands to access to land ownership, criminal justice support, quality education, and safe drinking water.18

Despite the proven precarious living conditions and human rights abuses committed against Afro-descendants, the level and scope of legal protection of their claims are ambiguous under international human rights law. Binding international human rights instruments do not explicitly address Afro-descendants’ legal protections, let alone recognize them as a separate category of rightsholders.19 Legal scholars have debated whether Afro-descendants can be

14 THE WORLD BANK, AFRO-DESCENDANTS IN LATIN AMERICA: TOWARD A FRAMEWORK OF INCLUSION 65 (2018), https://openknowledge.worldbank.org/handle/10986/30201. Field research conducted by the author revealed that the community of Tierrabomba faces these challenges as well (see infra Human Rights Claims of the Community of Tierrabomba). 15 Id. at 56. 16 Id. at 12. 17 See MARGARITA SANCHEZ & MAURICE BRYAN, MINORITY RIGHTS GRP. INT’L, AFRO-DESCENDANTS, DISCRIMINATION AND ECONOMIC EXCLUSION IN LATIN AMERICA (2003). 18 See infra Human Rights Claims of the Community of Tierrabomba; Human Rights Claims of the Community of Orinoco. 19 The Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance contains the only mention of Afro-descendants in a binding human rights treaty, stating in its preamble that “the victims of racism, racial discrimination, and other related forms of intolerance in the Americas are, inter alia, people of African descent” (Organization of American States, Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance, opened for signature June 5, 2013, entered into force November 11, 2017, T.S. No. A-68 [hereinafter Inter-American Convention against Racial Discrimination]). Soft-law instruments addressing the 3

included under the concepts of indigenous or tribal peoples, racial and ethnic minorities, or individual rightsholders, respectively.20 However, this has not translated to protect all Afro- descendant communities in practice. Through their case law, the Inter-American Commission on

Human Rights and Inter-American Court of Human Rights, here defined as the Inter-American human rights system, have only clarified the legal protection of a limited number of rural Afro- descendant communities.21 The Inter-American Court of Human Rights has qualified these groups as “tribal peoples,” affording them collective land and cultural rights if they are able to demonstrate certain cultural characteristics.22 These characteristics are limited to folkloric and material aspects of culture, such as unique religious rituals, customs, and traditions, the practice of traditional economic activities, a language different to the rest of the population, and a spiritual connection to their traditional land.23 With this approach, the Inter-American human rights system extends the legal safeguards of collective land and cultural claims of indigenous peoples, to Afro-descendant communities who can demonstrate cultural features considered indigenous. Legal scholars have coined this interpretation of Afro-descendants’ claims as a

rights of Afro-descendants include the outcome documents of the 2001 U.N. World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban, South Africa (hereinafter World Conference Against Race) and its predecessor in the Americas, the Regional Conference of the Americas of 2000 (see infra Attempts to Overcome the Myth of Racial Discrimination Through Legal Tools). 20 Leonardo Reales, Ethnic Minorities and Human Rights Violations: The Afro-Colombian Case, 22 REV. LATINOAMERICANA DE DERECHOS HUMANOS 153, 157-58 (2011) [hereinafter Reales 2011]; Leonardo Reales, The Human Rights Protection Regime for Afro-descendants the Case of Latin America and the Caribbean, 3 REV. DE RELACIONES INTERNACIONALES, ESTRATEGIA Y SEGURIDAD, Jan.–June 2008, at 25, 30, 33 [hereinafter Reales 2008]. 21 Community Garifuna Punta Piedra and its Members v. Honduras, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 304, ¶¶ 85-91 (Oct. 8, 2015); Community Garifuna Triunfo de la Cruz and its Members v. Honduras, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 305, ¶¶ 49-57 (Oct. 8, 2015); Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 172, ¶¶ 80-84 (Nov. 28, 2007); Moiwana Village v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 124, ¶¶ 86(1)- (11), 131-34 (June 15, 2005). 22 Community Garifuna Punta Piedra and its Members v. Honduras, supra note 21, at ¶¶ 85-91; Community Garifuna Triunfo de la Cruz and its Members v. Honduras, supra note 21, at ¶¶ 49-57; Saramaka People v. Suriname, supra note 21, at ¶¶ 80-84; Moiwana Village v. Suriname, supra note 21, at ¶¶ 86(1)-(11), 131-34. 23 Saramaka People v. Suriname, supra note 21, at ¶ 84; Moiwana Village v. Suriname, supra note 21, at ¶ 133; see also Community Garifuna Triunfo de la Cruz and its Members v. Honduras, supra note 21, at ¶ 57. 4

“cultural approach.”24 In practice, only very few Afro-descendant communities are likely to benefit from this enhanced legal protection. Most Afro-descendant communities lack the aforesaid folkloric and material aspects of culture and therefore do not enjoy collective land and cultural rights as tribal peoples.25 These Afro-descendant populations are only granted legal protections if their claims can be subsumed under individual rights under international human rights law.

In the domestic legal frameworks of Latin American States, Afro-descendants have obtained constitutional recognition of their existence, collective land and cultural rights, and access to governmental institutions protecting and promoting their legal claims. Examples include Brazil, Colombia, Guatemala, Honduras, and Nicaragua.26 Some of these States, particularly Brazil and Colombia, have also adopted affirmative action measures to overcome racially driven inequalities.27 Other States, including El Salvador, have acknowledged their existence but do not provide special Afro-descendant rights, while a few States, such as Mexico, have not granted any official legal recognition to the Afro-descendants within their territory.28 In addition to these patchy legal frameworks, most Latin American States have enacted anti- discrimination legislation to investigate, prosecute, and punish racially discriminatory acts.29

Nonetheless, practice shows that, irrespective of the design of their domestic legal structures,

24 Ariel E. Dulitzky, When Afro-descendants Became “Tribal Peoples”: The Inter-American Human Rights System and Rural Black Communities, 15 UCLA J. INT’L L. & FOREIGN AFF. 29, 31 (2010). 25 Cf. THE WORLD BANK, supra note 14, at 27 (stating that only a minority of Afro-descendants identify as ethnic group). 26 Juliet Hooker, Indigenous Rights in Latin America - How to Classify Afro-Descendants?, in IDENTITY POLITICS IN THE PUBLIC REALM: BRINGING INSTITUTIONS BACK IN 104, 109 (Avigail Eisenberg & Will Kymlicka eds., 2011) 27 Id. 28 Menly Cortez, Las huellas de la afrodescendencia en El Salvador [The Traces of African Heritage in El Salvador], EL SALVADOR (Aug. 29, 2018), https://www.elsalvador.com/noticias/nacional/513773/las-huellas-de-la- afrodescendencia-en-el-salvador/; Hooker, supra note 26. 29 COTTROL, supra note 8, at 282-283. 5

many Latin American States have failed to fully implement the legal frameworks necessary to protect Afro-descendant communities.30

Given this inconsistent and varying legal protection of Afro-descendants under international human rights law and domestic legislations, the question arises of how human rights scholars and practitioners at both international and domestic levels can strengthen the legal protection of Afro-descendants and the implementation of their rights on the ground. While the

Inter-American human rights system has discussed Afro-descendants’ rights under the concept of tribal peoples, this legal scheme does not grant appropriate legal protection for all Afro- descendants. In fact, their human rights claims are too diverse to be included under one scheme of international human rights protections. The Working Group of Experts on People of African

Descent has promoted the adoption of an international human rights declaration on the rights of

Afro-descendants,31 but such legal instrument is likely to face implementation challenges. One challenge is that the wording would need to be sufficiently broad to reflect the diverse human rights claims of the Afro-descendant population. However, this would jeopardize the effective implementation as it gives States leeway in interpreting and applying the declaration’s provisions. Further, States would not be required to implement the declaration because as a legally non-binding instrument, its implementation largely depends on the States’ political will.

Human rights scholars have argued that Afro-descendants may avail to the international minority law framework, primarily referring to article 27 ICCPR, the United Nations (U.N.)

Declaration on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic

30 THE WORLD BANK, supra note 14, at 100. 31 Call for submissions: WGEPAD 22nd Session “Framework for a Declaration on the Promotion and Full Respect of Human Rights of People of African Descent” 19-23 March 2018, Geneva, U.N. WORKING GROUP OF EXPERTS ON PEOPLE OF AFRICAN DESCENT, https://www.ohchr.org/EN/Issues/Racism/WGAfricanDescent/Pages/CallSubmissionWGEPAD22ndSession.aspx (last visited Apr. 11, 2020). 6

Minorities,32 and International Convention on the Elimination of All Forms of Racial

Discrimination.33 These legal frameworks contain important guarantees to Afro-descendants, including the right to non-discrimination and protection of aspects of cultural identity.34

However, minority rights have been largely absent in the Inter-American human rights system and Latin American States, which have instead focused on indigenous and tribal peoples’ rights.

Moreover, minority rights provisions do not recognize rights related to land ownership, a central claim of many Afro-descendant communities.35 These considerations render the international minority rights framework an inadequate legal protection.

To adequately respect and ensure the legal claims of the diverse Afro-descendant populations, legal scholars and practitioners must tailor the nature and scope of the relevant legal protections to the specific circumstances and needs of the Afro-descendant communities and

State in question.36 For this purpose, the claims of a specific community of Afro-descent—or similarly situated communities—in a State’s territory must be identified and then analyzed in light of applicable U.N. and Inter-American human rights instruments and the domestic legal system. These applicable legal instruments will vary depending on the human rights claims and self-identification of the specific community asserting their rights. Consideration of how international and national legal frameworks interact is vital to identify the gaps in the law and create a more nuanced legal protection of Afro-descendants’ human rights claims. In the Latin

32 U.N. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities, U.N. Doc. A/RES/47/135 (Dec. 18, 1992), 32 I.L.M. 911 [hereinafter UNDRM]. 33 International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 U.N.T.S. 195 [hereinafter ICERD]. 34 Cynthia Morel, Invisibility in the Americas: Minorities, Peoples and the Inter-American Convention Against All Forms of Discrimination and Intolerance, REV. CEJIL, Sept. 2006, at 124. 35 Cf. UNDRIM. 36 While such approach acknowledges the diversity among Afro-descendants’ histories, living conditions, and legal claims, it also complies with the fundamental principle of self-identification (see THE WORLD BANK, supra note 14, at 201). 7

American context, article 29(b) ACHR requires the Inter-American human rights system to consider the domestic law of the State under examination if such law is more favorable than the rights stipulated in the ACHR.37 This provision allows human rights scholars and practitioners to strengthen the international human rights framework with potentially more comprehensive norms of the applicable domestic legal system.38 Vice versa, domestic entities addressing the human rights claims of Afro-descendants need to integrate U.N. and Inter-American human rights standards in their work.

This locally focused approach to the legal protection of Afro-descendants highlights how different existing legal orders intersect and operate in the context of specific Afro-descendant communities. It does not promote expanding or modifying current relevant international human rights norms and domestic laws, and it does not offer a tool to design a legal framework broadly applicable to all Afro-descendants in Latin America. However, this approach highlights the gaps in interactions between the different legal orders and legal protections of Afro-descendants and provides a tool to render the abstract human rights norms locally acceptable.39 Through these insights, the locally focused analysis of the sheds light on the effectiveness of the relevant legal norms on the ground and is therefore essential to elaborate human rights indicators and recommendations on how to improve the implementation of applicable international human rights standards and domestic legislation. In fact, while several Latin American States have adopted and committed to progressive domestic legislation and treaties in favor of Afro- descendant populations, they have frequently failed to implement these legal standards in

37 Article 29(b) ACHR. 38 Yota Negishi, The Pro Homine Principle’s Role in Regulating the Relationship between Conventionality Control and Constitutionality Control, 28 EUR. J. INT’L L. 457, 468 (2017). 39 See interview with Luis Alberto Herrera Cardales, supra note 6. 8

practice.40 This failure to comply with legal norms exacerbates the human rights abuses in Afro- descendant communities and fosters a culture of impunity. It also questions the effectiveness of the U.N. and Inter-American human rights systems on the ground. Thus, there is a need to conduct a detailed and technical analysis of relevant legal norms, corresponding State obligations, and their effectiveness in the local community to shed light on implementation gaps and draw tailored human rights indicators and recommendations for international and domestic human rights scholars and practitioners.41 This will ultimately contribute to strengthening the enforcement of U.N. and Inter-American human rights provisions, as well as domestic legal norms.

The U.N. and Inter-American human rights systems provide important tools to assess the legal protection of the claims raised by Afro-descendent communities. These legal claims are here defined as “human rights claims” because they fit into several international human rights provisions enshrined in the ICCPR, ICESCR, ICERD, and ACHR, among others.42 Latin

American States have also ratified most core international human rights treaties and thereby consented to guarantee to all individuals on their territory, including the Afro-descendant populations, the fundamental rights enshrined in these texts without any discrimination.43 States mostly give direct effect to these human rights treaties through corresponding constitutional provisions.44 Further, most Latin American States have strengthened the implementation of

40 THE WORLD BANK, supra note 14, at 100. 41 See Siobhan McInerney-Lankford, Legal Methodologies and Human Rights Research: Challenges and Opportunities, in RESEARCH METHODS IN HUMAN RIGHTS 38, 38-40 (Bård-Anders Andreassen et al. eds., 2017). 42 See infra Human Rights Claims of the Community of Tierrabomba; Human Rights Claims of the Community of Orinoco. 43 See Ratification of 18 International Human Rights Treaties, U.N. Human Rights Office of the High Comm’r, https://indicators.ohchr.org/ (last visited Apr. 17, 2020). 44 Alejandro Chehtman, International Law and Constitutional Law in Latin America, in THE OXFORD HANDBOOK OF CONSTITUTIONAL LAW IN LATIN AMERICA (Conrado Hübner Mendes & Roberto Gargarella eds., forthcoming 2020), https://ssrn.com/abstract=3207795. 9

international human rights treaties in the domestic arena by enshrining their supremacy at constitutional level and adopting the amparo action, which enables citizens to claim violations of the treaties directly before domestic courts.45 Lastly, international human rights law reflects the claims of Afro-descendants on the ground as these populations primarily demand the preservation of their community-based way of life and development in economic, social, and cultural terms as a community within the States’ structure. Notably, they mostly do not seek political independence from their territorial States. For these legal and practical reasons, international human rights norms are appropriate tools to analyze the claims of Afro-descendant communities.

While the human rights claims of Afro-descendant communities are likely to include issues related to civil, political, economic, social, and cultural human rights, many communities identify these claims as cultural issues.46 They argue that in today’s globalized world order, their community-oriented way of life is threatened if the government does not take measures to protect it.47 These references call for a focus on cultural human rights when analyzing the communities’ human rights claims from a legal perspective. At the U.N. and Inter-American levels, cultural human rights have recently experienced a paradigm shift in legal doctrine, and to a lesser extent in human rights practice. In fact, while human rights scholars and practitioners traditionally viewed cultural rights as an “underdeveloped category”48 of rights, this label no longer holds

45 E.g., CONSTITUCIÓN POLÍTICA DE COLOMBIA art. 93, 94 [hereinafter Constitution of Colombia]; CONSTITUCIÓN POLÍTICA DE LA REPÚBLICA DE NICARAGUA, art. 10, 46, LA GACETA, DIARIO OFICIAL [L.G.] 9 January 1987, as amended by Ley No. 854, Feb. 8, 2014, Reforma Parcial a la Constitución Política de la República de Nicaragua, L.G. Feb. 18, 2014 [hereinafter Constitution of Nicaragua]. 46 See infra Human Rights Claims of the Community of Tierrabomba; Human Rights Claims of the Community of Orinoco. 47 E.g., interview with Rodolpho Chang, Entrepreneur, in Bluefields, Nicar. (July 13, 2017) (arguing that globalization is the main threat to preserving the culture of the Garifuna community of Orinoco, Nicaragua). 48 Janusz Symonides, Cultural Rights: A Neglected Category of Human Rights, 50 INT’L SOC. SCI. J. 559, 559 (1998). 10

true. Today, cultural human rights are considered important to effectively protect and promote various non-dominant population groups because they serve to protect a collective way of life.49

Human rights scholars have also clarified that, despite the ambiguous wording of some cultural human rights provisions, these rights give rise to both negative and positive State obligations,50 meaning that States must abstain from any act that would hinder the rights’ enjoyment as well as take active measures to safeguard these rights.51 Latin American States have adopted many of the aspects of cultural human rights in their constitutions and specific legislations on Afro- descendants.52

Notwithstanding these important developments, several aspects of cultural human rights provisions remain unclear, challenging their effectiveness on the ground.53 In particular, there is ambiguity surrounding the precise nature, scope, and content of the corresponding State obligations, which renders it difficult for States to effectively implement cultural rights at the local level and for international human rights actors to assess States’ implementation efforts.54

49 Asbjørn Eide, Cultural Rights and Minorities: On Human Rights and Group Accommodation, in LEGAL CULTURES AND HUMAN RIGHTS 25, 34 (Kristen Hastrup ed., 2001); see also Comm. on Econ., Soc. & Cultural Rights, General Comment No. 21: Right of Everyone to Take Part in Cultural Life (Art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), U.N. Doc. E/C.12/GC/21 (Dec. 21, 2009) [hereinafter CESCR General Comment No. 21]. 50 Asbjørn Eide, Economic, Social and Cultural Rights as Human Rights, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A TEXTBOOK 9, 22 (Asbjørn Eide et al. eds., 2d ed. 2001). 51 Comm. on Econ., Soc. & Cultural Rights, supra note 49, at ¶ 48. 52 E.g., Transitory article 55 of the Constitution of Colombia; L. 70/93, agosto 31, 1993, D.O. (Colom.); article 5 of the Constitution of Nicaragua; Ley No. 445, 13 Dec. 2002, Ley de Régimen de Propiedad Comunal de los Pueblos Indígenas y Comunidades Étnicas de las Regiones Autónomas de la Costa Atlántica de Nicaragua y de los Ríos Bocay, Coco, Indio y Maíz [Ley de Propiedad Comunal] [Law of the Communal Property Regime of the Indigenous Peoples and Ethnic Communities of the Autonomous Regions of the Atlantic Coast of Nicaragua and the Rivers Bocay, Coco, Indio, and Maíz], L.G., 23 Jan. 2003 [hereinafter Communal Property Law]. 53 MANISULI SSENYONJO, ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN INTERNATIONAL LAW 5 (2009) (“In actual practice [economic, social, and cultural] rights are accorded second‐rank status as compared to civil and political rights”). 54 Yvonne M. Donders, The Legal Framework of the Right to Take Part in Cultural Life, in HUMAN RIGHTS IN EDUCATION, SCIENCE AND CULTURE 231 (Yvonne Donders & Vladimir Volodin eds., 2007); Tara Melish, The Inter- American Court of Human Rights: Beyond Progressivity, in SOCIAL RIGHTS JURISPRUDENCE: EMERGING TRENDS IN INTERNATIONAL AND COMPARATIVE LAW 372, 381 (Malcolm Langford ed., 2008) (“The most formidable obstacle at present to the effective protection of economic, social, and cultural rights in the inter-American system lies in the 11

Additionally, the above-described “cultural approach” that the Inter-American human rights system has adopted towards rural Afro-descendant communities, questions the understanding of culture as a way of life as it largely focuses on folkloric and material aspects of culture. To counter these challenges, it is therefore necessary to define State obligations resulting from cultural and other human rights provisions that are relevant to effectively implement the human rights claims of Afro-descendant communities.55 The State obligations are the first step to assess the implementation and effectiveness of the relevant international and domestic legal frameworks on the ground and highlight the disparities between the legal texts and their practical implementation.

This present dissertation adopts the locally focused approach to the legal analysis of the human rights claims of two specific Afro-descendant communities, namely the above-mentioned community of Tierrabomba in Colombia and the Garifuna community of Orinoco in Nicaragua

(the communities concerned). Adhering to this approach, the dissertation establishes the need for human rights scholars and practitioners to reinterpret the current legal systems applicable to the communities concerned to strengthen their legal protection. To translate this interpretative approach into practice in the context of the communities concerned, this dissertation develops human rights indicators for the land and access to justice claims of the communities concerned and adopts a set of recommendations for human rights scholars and practitioners. The human rights indicators serve to guide the Colombian and Nicaraguan States in implementing the international human rights and domestic law provisions that are relevant to the communities

identification and application of the legal duties” arising from article 26 ACHR); see also infra Cultural Rights as “Empowering Rights” for the Communities Concerned. 55 From an international perspective, States are the principal bearers of the duty to implement human rights and accountable for failing to do so (e.g., Nigel S. Rodley, Can Armed Opposition Groups Violate Human Rights?, in HUMAN RIGHTS IN THE TWENTY-FIRST CENTURY 297, 306 (Kathleen P. Mahoney & Paul Mahoney eds., 1993)). 12

concerned’s land and access to justice claims in a way that protects these claims. The recommendations generalize the human rights indicators as they provide broader action steps for human rights scholars and practitioners. They contribute to overcoming the common legal and practical challenges facing the effective protection of their human rights claims and are based on field research in the communities concerned and the technical legal analysis of their human rights claims. While the set of recommendations is directly tailored to the circumstances of the communities concerned, it contains valuable insights to improve the human rights implementation in similarly situated Afro-descendant communities across Latin America.

For this purpose, the dissertation adopts the following thesis statement: The Afro- descendant community of Tierrabomba, Colombia, and the Garifuna community of Orinoco,

Nicaragua, demand use of their ancestral land, access to justice, and other fundamental rights to enhance their own economic and social development in accordance with their traditional culture, which they broadly understand as a community-oriented way of life. While the U.N. and Inter-

American human rights law and the relevant domestic legal systems at least partially promote and protect these claims, their implementation on the ground is ineffective in both communities due to conflicting legal norms and interpretations, inadequate legal remedies to hold human rights abusers accountable, threats of violence from non-state actors, and State neglect. To overcome these challenges, human rights scholars and practitioners must integrate the human rights claims of the communities in their interpretation of legal norms, strengthen local accountability and enforcement mechanisms, and raise awareness of racial discrimination.

To develop the interpretative approach for improved legal protection of the communities concerned, this dissertation is comprised of six chapters. In the remaining sections of this chapter, it clarifies the research setting and terminology applied in this dissertation. Next, the

dissertation conceptualizes the communities concerned within the historical processes of the

Afro-descendant population at large and identifies the most pressing human rights claims of each community. This dissertation then discusses key concepts of international human rights law that are relevant to analyze the communities’ human rights claims and assess the laws’ effectiveness on the ground. It proceeds with an in-depth legal study of human rights claims shared by both communities concerned, namely those focusing on land rights and access to justice. It examines these claims at the intersection of U.N. and Inter-American human rights law applicable to

Colombia and Nicaragua and the relevant domestic legal norms of these States. For this purpose, it discusses the nature, scope, and content of the applicable provisions, corresponding State obligations, and their practical effectiveness in the communities concerned and develops human rights indicators to guide the States’ in improving the rights’ implementation on the ground.

Next, this dissertation analyzes selected human rights claims that are specific to each community concerned. These include the claims of the community of Tierrabomba for adequate remuneration at work and clean drinking water, and the demands of the community of Orinoco to access decent work opportunities in geographic proximity and revitalize their aboriginal

Garifuna language. While this legal analysis does not go into the same level of details as the study of the claims related to land and access to justice, it provides important insights into the scope of legal protection of the communities concerned. Finally, based on the legal analysis of the communities’ human rights claims, the dissertation suggests a set of recommendations for human rights scholars and practitioners on how to reinterprete the applicable legal frameworks and strengthen implementation of human rights norms in the communities concerned. It concludes with the theoretical applicability of these recommendations to similarly situated Afro- descendant and other communities.

Research Framework

Research Problems and Questions

This dissertation focuses on three main research problems that arise in connection with the legal analysis of the human rights claims of the communities concerned. The first problem addresses the question of how to include complex realities on the ground under legal norms. The law operates with specific terms and clear-cut definitions, but the human rights claims of the communities concerned are complex, interrelated, and multi-faceted with numerous economic, social, and cultural issues underlying them. One single legal norm does not reflect the full picture on the ground. Relying on the information gathered during the field research, this dissertation first illustrates selected human rights claims of the communities concerned to highlight their complexity. Then, it analyzes these claims from a legal perspective, drawing on relevant international human rights and domestic legal norms. In this analysis, the dissertation shows that a given human rights claim may involve a myriad of legal norms that all shape the

State’s obligations to implement the relevant legal norms on the ground.

Communities understand their lifestyle in a way that does not always conceptually fit in a legal definition. The field research reveals that the communities concerned refer to their community-oriented lifestyle as their “culture.”56 This understanding of culture distinguishes them from the racially mixed societies of Colombia and Nicaragua.57 Thus, the communities concerned adopt a broad understanding of the term culture, which they seek to protect through their human rights claims. From a legal perspective, the references to culture and community life raise conceptual difficulties. While international human rights law contains several

56 See infra Human Rights Claims of the Community of Tierrabomba; Human Rights Claims of the Community of Orinoco. 57 Id. 15

provisions to protect and promote cultural life,58 human rights scholars and practitioners have traditionally viewed these rights with skepticism. Scholars and practitioners argue that the scope of these rights and corresponding State obligations are vague and, hence, the rights are not enforceable and justiciable.59 Additionally, these human rights frequently imply a collective dimension since individuals exercise some aspects of cultural life jointly with others; however, collective claims pose the difficult question of who the rightsholders are or, in other words, how the collectivities claiming the right are defined.60 This dissertation therefore aims to examine whether cultural and other relevant human rights provisions at the U.N., Inter-American, and domestic levels respect and promote the broad understanding of culture. In particular, it seeks to assess the exact content of these norms and the resulting State obligations to respect, protect, and fulfill these rights. Further, it seeks to determine whether the norms as they stand effectively protect and promote the communities’ human rights claims.

Lastly, this dissertation discusses the challenge of strengthening implementation of U.N. and Inter-American human rights law and domestic legal norms in practice. The field research conducted sheds light on a myriad of deficiencies in enforcing human rights provisions in the communities concerned. This dissertation seeks to address these implementation challenges from a technical legal perspective. This means that the dissertation analyzes the exact nature and scope of the relevant international human rights provisions and their incorporation into the domestic legislations of Colombia and Nicaragua. It then compares these international and domestic legal frameworks with the realities in the communities concerned to identify any

58 See infra Cultural Rights as “Empowering Rights” for the Communities Concerned. 59 Human rights scholars and practitioners adopted the same argumentation for economic and social rights (ASBJØRN EIDE ET AL., THE FUTURE OF HUMAN RIGHTS PROTECTION IN A CHANGING WORLD (1991)). 60 E.g., CORSIN BISAZ, THE CONCEPT OF GROUP RIGHTS IN INTERNATIONAL LAW (2012). Additionally, States are frequently reluctant to grant collective rights to their citizens, fearing that these rights might encourage non- dominant population groups to demand political autonomy or even territorial independence (see KRISTIN HENRARD, DEVISING AN ADEQUATE SYSTEM OF MINORITY PROTECTION 242 (2000)). 16

implementation gaps. This analysis reveals whether international human rights norms are sufficient to protect and promote the human rights claims of the communities concerned. It also demonstrates whether Colombia and Nicaragua have implemented these norms into their legal frameworks and granted a judicial or other remedy to the communities concerned as a means to request that these norms be respected.61 Thus, it assesses whether Colombia and Nicaragua have made the relevant U.N. and Inter-American human rights law, and domestic legal norms available, accessible, acceptable, and adaptable in the local contexts of the communities concerned, and whether they have implemented mechanisms to hold the State accountable for failing to do so.62

Research Contributions

By analyzing the research problems and questions, this dissertation endeavors to contribute to legal academia and human rights practice in five main areas. First, the dissertation integrates the claims of two specific Afro-descendant communities in legal human rights scholarship, analyzing their scope and level of protection under different legal orders. While these claims do not represent the full picture of demands raised by Afro-descendants in Latin

America, they exemplify important challenges facing the effective legal protection of Afro- descendants’ human rights claims across the region. The analysis of their human rights claims is especially relevant because Afro-descendants represent approximately one quarter of the entire

Latin American population. This population has the potential to make enormous contributions to the economic, social, and cultural developments of the region. This dissertation further aims to

61 U.N. and Inter-American human rights treaties typically require member States to take legislative and other measures to implement the norms established in a given treaty and provide individuals whose rights under the treaty were violated, with an effecive remedy at the domestic level (e.g., article 2 ICCPR; article 2 ICESCR; articles 2 and 6 CERD; articles 2 and 25 ACHR). 62 See infra The “5A” Framework. 17

fill a gap in the current human rights scholarship and practice on Latin America’s minority population groups. Human rights scholars and practitioners have almost exclusively been concerned with the legal protection of indigenous peoples within their territorial States, neglecting the human rights claims of Afro-descendants.63 In particular, they have thoroughly analyzed the indigenous peoples’ human rights claims related to the connection between ancestral land and spirituality as well as the preservation of their unique cultural systems under

U.N. and Inter-American human rights law and domestic legal systems.64 While these scholarly contributions are undoubtedly important, this dissertation analyzes their relevance for the legal protection of Afro-descendants.

The dissertation further seeks to contribute to the legal discussion of cultural human rights provisions in the specific context of the communities concerned. These norms still raise numerous legal questions despite the important scholarly contributions made over the past decades.65 The dissertation aims to substantiate the nature, scope, and content of the relevant cultural rights provisions stipulated in U.N. and Inter-American human rights instruments as well

63 Previous research into the Afro-descendant population has been carried out mainly from the perspective of social science (e.g., Juliet Hooker, Indigenous Inclusion/Black Exclusion: Race, Ethnicity, and Multicultural Citizenship in Latin America, 37 J. LAT. AMER. STUD. 285 (2005); MARK ANDERSON, BLACK AND INDIGENOUS: GARIFUNA ACTIVISM AND CONSUMER CULTURE IN HONDURAS (2009)). There are only a few legal studies on selected topics concerning Afro-descendants in Latin America, such as land rights or the impact of the armed conflict in Colombia (e.g., CESAR RODRIGUEZ GARAVITO ET AL., EL DESPLAZAMIENTO FORZADO DE LOS AFROCOLOMBIANOS: EVALUACIÓN DEL CUMPLIMINETO DEL GOBIERNO COLOMBIANO DEL AUTO 005 DE LA CORTE CONSTITUCIONAL [THE FORCED DISPLACEMENT OF AFRO-COLOMBIANS: EVALUATION OF THE COLOMBIAN GOVERNMENT’S COMPLIANCE WITH THE DECISION 005 OF THE CONSTITUTIONAL COURT] (2010)). Similarly, States have adopted several international legal instruments on the rights of indigenous peoples, such as the I.L.O. Convention Concerning Indigenous and Tribal Peoples in Independent Countries (I.L.O. No. 169) (June 27, 1989, 28 I.L.M. 1382 [hereinafter ILO Convention No. 169]), but their application to Afro-descendants is ambiguous. From a policy perspective, the Social Charter of the Americas states in its article 15 that the member States of the Organization of American States [hereinafter OAS] acknowledge “the contributions of … afro-descendants … to the historical process” of the Americas and “promote recognition of their value” (O.A.S. G.A. Res. AG/doc.5242/12 rev. 2, Social Charter of the Americas (Sept. 20, 2012) [hereinafter Social Charter of the Americas]). However, the Plan of Action implementing the Social Charter of the Americas does not include any reference to Afro-descendants or indigenous peoples (O.A.S. Permanent Council, Plan of Action of the Social Charter of the Americas, OEA/Ser.G CP/doc.5097/15 (Feb. 11, 2015)). 64 S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW (2d ed. 2004). 65 See infra Cultural Rights as “Empowering Rights” for the Communities Concerned. 18

as the corresponding State obligations that are relevant to protect and promote the human rights claims of the communities concerned.66 This contribution is essential to examine the scope and level of legal protection of the communities’ understanding of culture. It further contributes to identifying indicators to monitor the implementation of cultural human rights on the ground.67

Engaging in human rights research in two States, the dissertation promotes a comparative perspective to study the degree to which U.N. and Inter-American human rights norms are embedded in and influence the domestic legal systems.68 Such comparative studies are particularly important in the context of Latin America since States in the region have generally demonstrated a great willingness to ratify international human rights instruments, while subsequent implementation of these instruments has met many obstacles in practice. Therefore, the comparative approach serves to assess how effectively the States implement international human rights norms in the national and local contexts.

The dissertation integrates empirical research methods from social science into legal studies to examine the practical implementation and effectiveness of international human rights law and domestic legal norms in a specific local context.69 The empirical approach provides

66 In the same vein, the dissertation contributes to the objectives of the International Decade for People of African Descent proclaimed by the U.N. for the period of 2015 to 2024 to promote human rights and the diverse culture of Afro-descendants (U.N. G.A. Res. 68/237, Proclamation of the International Decade for People of African Descent (Dec. 23, 2013); U.N. G.A. Res. 69/16, Programme of Activities for the Implementation of the International Dec- ade for People of African Descent, ¶¶ 8-9 (Nov. 18, 2014). The OAS officially recognized the International Decade for People of African Descent in the Americas (O.A.S. G.A. Res. 2824 (XLIV-O/14), Recognition of the International Decade for People of Af-rican Descent (June 4, 2014)). 67 See Julie Ringelheim, Cultural Rights, in INTERNATIONAL HUMAN RIGHTS LAW 286, 301 (Daniel Moeckli et al. eds. 2d ed., 2014); Manisuli Ssenyonjo, Introduction, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS at xi, xv (Manisuli Ssenyonjo ed., 2011); Audrey R. Chapman, Development of Indicators for Economic, Social and Cultural Rights: The Rights to Education, Participation in Cultural Life and Access to Benefits of Science, in HUMAN RIGHTS IN EDUCATION, SCIENCE AND CULTURE 111, 118 (Yvonne M. Donders & Vladimir Volodin eds., 2007). 68 See Mads Andenas & Duncan Fairgrieve, Intent on Making Mischief: Seven Ways of Using Comparative Law, in METHODS OF COMPARATIVE LAW 25, 29 (Pier Giuseppe Monateri ed., 2012). 69 On the relevance of the use of empirical methods from social science in human rights law, see Todd Landman, Social Science Methods and Human Rights, in METHODS OF HUMAN RIGHTS RESEARCH 19, 43-44 (Fons Coomans et al. eds., 2009); see also infra Methodological Research Framework. 19

unique firsthand insights into the legal practices on the ground and is essential for crafting human rights indicators and recommendations for both legal scholars and practitioners on how to improve the human rights implementation in the communities concerned.70 These indicators and recommendations aim to guide human rights scholars and actors who, on a daily basis, deal with the legal claims of the communities concerned or other similarly situated communities at the international, national, and local levels. Ideally, the knowledge elaborated in this dissertation informs these policy processes. The empirical method further empowers the communities concerned through a bottom-up approach and directly involves the communities in the research process, giving them an opportunity to voice their claims.71 Considering that international human rights law has been criticized for being overly idealistic and distant from the realities of daily life,72 grounded empirical research provides a valuable and feasible tool to counter such criticism.

Theoretical and Methodological Research Approaches

Legal human rights scholarship frequently lacks a clear theoretical and methodical approach. It takes the validity and expansive interpretation of the human rights provisions for granted and disregards the impacts of these legal norms in the local context.73 To counter this

70 Sally Engle Merry, Global Human Rights and Local Social Movements in a Legally Plural World (1997), reprinted in LAW AND ANTHROPOLOGY 321, 325 (Martha Mundy ed., 2002). 71 While an empirical approach enriches both legal scholarship and practice, it may place an additional responsibility on the researcher conducting the empirical study since it may create expectations among the local population that is subject of the study. In fact, the field research conducted in this dissertation demonstrated that the communities concerned are very interested in the results of the study as their leaders seek to increase their leverage vis-a-vis governmental institutions. Thus, empirical researchers should ideally return at least part of the knowledge obtained to those participating in the empirical study in a way that is useful and accessible to the local communities. 72 E.g., ERIC A. POSNER, THE TWILIGHT OF HUMAN RIGHTS LAW (2014). 73 McInerney-Lankford, supra note 41, at 38-40; Fons Coomans et al., A Primer, in METHODS OF HUMAN RIGHTS RESEARCH 11, 14 (Fons Coomans et al. eds., 2009). There are a few notable exceptions to this criticism (e.g., ELLEN DESMET, INDIGENOUS RIGHTS ENTWINED WITH NATURE CONSERVATION (2011)). 20

tendency, this dissertation aims to introduce methodological rigor into human rights scholarship, basing its theoretical underpinnings on legal positivism and adopting a multi-method approach.

Theoretical Research Framework

Traditionally, legal scholars have placed human rights law in the realm of natural law theories, emphasizing the intrinsic value and legitimacy of human rights norms.74 While the natural law approach has been crucial to define and implement the most fundamental rights, human rights activists have used it to advocate constantly for broadening the scope of the existing international human rights treaties and internationally accepted customs.75 This has led to the criticism that “wishful thinking and sloppy legal analysis tend to be too common in international human rights law.”76 Since the establishment of the U.N., States have adopted a myriad of human rights treaties, declarations, resolutions, and guiding principles. These instruments have established important standards to protect individuals against abuses of their own States. However, human rights scholars and practitioners tend to interpret the instruments in an expansive manner, imposing broad obligations on States that they frequently are not willing or unable to implement fully.77 Responding to such criticism, this dissertation adopts a positivist understanding of international human rights law, which focuses on the law as it is currently stipulated in the books and interpreted by the courts. Thus, the dissertation deals only with

74 The theory of natural law, briefly summarized, asserts that law is built on principles that derive from a higher maxim, in particular morality (Brian H. Bix, On the Dividing Line between Natural Law Theory and Legal Positivism, 75 NOTRE DAME REV. 1613, 1614-5 (2000). 75 HORST HANNUM ET AL., INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW, POLICY, AND PRACTICE 32 (6th ed. 2018). 76 John R. Crook, The International Court of Justice and Human Rights, 1 NW. J. INT’L HUM. RTS. 1, 8 (2004). 77 Cf. Eric Posner, Human Rights Law is Too Ambitious and Ambiguous, THE NEW YORK TIMES (Dec. 28, 2014, 7:36 PM), https://www.nytimes.com/roomfordebate/2014/12/28/have-human-rights-treaties-failed. 21

international human rights law as it is—not as it should be—in the relevant legal instruments and practice.78

Legal positivism emerged in the late nineteenth century and strictly distinguishes between law and morality, arguing that the legal system of a State must be value-free.79 Law is considered a collection of (positive) standards enacted by the State. As positive law, such standards enjoy an inherent value and confer authority to the State, meaning that the State should adhere to the rules at all times, and the State has the sole authority to exercise power and enact these rules.80 This understanding of legal norms and the State corresponds to international human rights law, which explicitly mentions the State as the responsible actor for respecting and protecting human rights norms.81 The positivist approach to international human rights law is further supported by several legal developments since WWII,82 when States came together to create the U.N. with the goal of, inter alia, maintaining peace and security and promoting the respect for human rights. They committed to respect minimum legal standards to protect individuals against human rights abuses of their own States, adopting the Universal Declaration of Human Rights,83 the cornerstone of international human rights law in 1948.84 Since then,

78 See, HANS KELSEN, INTRODUCTION TO THE PROBLEMS OF LEGAL THEORY 56 (Bonnie Litschewski Paulson & Stanley L. Paulson trans., Oxford Univ. Press 1st ed. 1992) (1934) (“The law is valid only as positive law, that is, only as law that has been issued or set.”). It is however noteworthy that, over the last decades, the distinction between natural law and legal positivism has become increasingly blurred, rendering them congruous to a certain degree (Bix, supra note 74, at 1617; Mark C. Murphy, Natural Law Theory, in THE BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY 15, 22 (Martin P. Golding & William A. Edmundson eds., 2005). 79 Bix, supra note 74, at 1616; Brian H. Bix, Legal Positivism, in THE BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY 29, 29 (Martin P. Golding & William A. Edmundson eds., 2005). 80 HANNUM ET AL., supra note 75, at 31-32; Mario Jori, Introduction, in LEGAL POSITIVISM at xi, xii, xv (Mario Jori ed., 1992). 81 Therefore, this dissertation follows the strand that States are the sole bearer of international human rights obligations (Rodley, supra note 55, at 306; see also Int’l Comm. of Jurists, Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (Jan. 26, 1997), ¶ 2, http://www.refworld.org/docid/48abd5730.html [hereinafter Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights]). 82 HANNUM ET AL., supra note 75, at 32. 83 U.N. G.A. Res. 217(III) A, Universal Declaration of Human Rights (Dec. 10, 1948) [hereinafter UDHR]. 84 The Foundation of International Human Rights Law, UNITED NATIONS, https://www.un.org/en/sections/universal- declaration/foundation-international-human-rights-law/index.html (last visited May 2, 2020). 22

States have codified human rights norms in a total of nine core international human rights treaties and set up mechanisms to monitor the States’ compliance with these treaties. In addition, they have created regional human rights systems, including the Inter-American, European, and

African human rights systems, with their own conventions and judicial supervisory bodies.85

Legal tools to measure the implementation of U.N. and regional human rights provisions, such as indicators,86 further strengthen legal positivism in human rights law since they are based on the legal analysis of the currently existing human rights provisions.87

While legal positivists agree on the understanding of law as a set of legal norms or rules assigning authority to the State, three different strands on how to define these norms have evolved.88 For the purpose of this dissertation, selected aspects of the strands elaborated by

HANS KELSEN and H.L.A. HART, respectively, are elaborated in further detail. In his PURE

THEORY OF LAW, KELSEN asserts that legal norms are conditional, impersonal rules that result in a sanction or – in his own words – ways an “[i]ndividual ought to behave.”89 According to

KELSEN, law should be examined in its pure form and regardless of any factual or other considerations.90 Therefore, KELSEN proposes to eliminate from legal science “all elements

85 KAARLO TUORI, CRITICAL LEGAL POSITIVISM 6 (2002); see also MIECZYSLAW MANELI, JURIDICAL POSITIVISM AND HUMAN RIGHTS 235-36 (1981) (“Human rights have become a part of positive international law, and therefore recourse to natural law and ‘inalienable’ or ‘self-evident’ rights, has become unnecessary.”); but see BOBBIO, NORBERTO, THE AGE OF RIGHTS 59 (Allan Cameron trans., Polity Press 1996) (1990) (stating that although the adoption of corresponding domestic legislation has strengthened human rights, the expansion of the international human rights system weakens such rights in particular since the international human rights system lacks effective enforcement mechanisms). While BOBBIO’s argument does not undermine the positivist perspective on international human rights law, it stresses the necessity of ensuring effective implementation at domestic level. 86 See infra Structural, Process, and Outcome Human Rights Indicators. 87 See Kenneth Roth, Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization, 26 HUM. RTS. Q. 63, 64 (2004). 88 Bix, supra note 79, at 32-35 (explaining that Austin and Bentham represent the first doctrine within legal positivism according to which a legal norm is a command issued by the sovereign power). The second and third position represented by Kelsen and Hart, respectively, are elaborated will hereinafter. 89 Hans Kelsen, The Pure Theory of Law and Analytical Jurisprudence, 55 HARV. L. REV. 44, 56 (1941); see also Jori, supra note 80, at xv-xvi; see also Bix, supra note 79, at 34. 90 Torben Spaak, Kelsen and Hart on the Normativity of Law, in PERSPECTIVES ON JURISPRUDENCE: ESSAYS IN HONOUR OF JES BJARUP 397, 403 (Peter Wahlgren ed., 2005). 23

foreign thereto.”91 Other legal philosophers have criticized this theory, arguing that this understanding of law lacks any connection to the reality on the ground and fails to consider the law’s effectiveness.92

Addressing this criticism, HART argues that legal rules are—contrary to KELSEN’s assertion—based on social practice and can be divided into primary and secondary rules.93 HART states that the law’s normativity grounds in the “rule of recognition,” an underlying rule absent any moral component and based on social acceptance.94 HART affirms that international law differs from domestic legislation insofar as lawmaking authorities, tribunals with binding jurisdiction, and imperative sanction mechanisms are largely absent from the sphere of international law.95 Hence, international law consists of rules without amounting to a legal system.96 However, according to HART, these rules are binding to the extent that they are generally accepted and upheld by “social pressure”97 because law is a social construction, and legal norms are social practice.

While HART’s version of legal positivism has been the principle focus of legal positivists in Anglo-Saxon legal systems, KELSEN’s perspective has traditionally been prevalent in continental Europe and Latin America.98 In the latter context, KELSEN’s interpretation of the law is traditionally considered static and formalistic, meaning that the law cannot be easily adjusted to new circumstances.99 However, this is a simplified view of the legal landscape in the region

91 Kelsen, supra note 89, at 44. 92 Jori, supra note 80, at xvii. 93 HERBERT L. A. HART, THE CONCEPT OF LAW 91, 94 (3rd ed. 2012). 94 Spaak, supra note 90, at 407; Bix, supra note 79, at 35. 95 HART, supra note 93, at 232-33. Kelsen, on the other hand, argues that a basic norm underlies international law, rendering it a single legal system (id. at 233). 96 HART, supra note 93, at 236. 97 Id. at 234. 98 Bix, supra note 79, at 34. 99 Jorge L. Esquirol, Writing the Law of Latin America, 40 GEO. WASH. INT’L L. REV. 693, 707 (2008). 24

because the legal theories and practices are far more diverse. For instance, many Latin American

States recognize pluralistic legal systems on their territories by allowing indigenous and, in some instances, Afro-descendant communities to govern their affairs according to their own rules.

Thus, the positivist understanding of Latin America is not necessarily limited to KELSEN’s point of view.100 Based on these insights, the dissertation deviates from the KELSENIAN legal positivism and adopts HART’s version in the context of the communities concerned. This perspective justifies the integration of an empirical approach into the legal analysis of human rights norms because it views the law as a social construction; the field research in Colombia and

Nicaragua reveals how the law is lived and constructed on the ground.101 Moreover, this dissertation interprets HART’s perspective of international law as a legal system upheld with social pressure as a call for strengthening the implementation of international human rights provisions through domestic practice and legislative measures in the territorial State. Since international law lacks imperative enforcement mechanisms, the domestic judicial avenues are crucial to provide remedy to those who have suffered human rights abuses, such as the communities concerned.

Methodological Research Framework

This dissertation adopts a multiple-case study approach as the methodological research framework, incorporating doctrinal legal and qualitative empirical research methods.102 This approach serves to elucidate the research problems from different angles, and ultimately provide

100 Id. at 708; see also DIEGO EDUARDO LOPEZ MEDINA, TEORÍA IMPURA DEL DERECHO: LA TRANSFORMACIÓN DE LA CULTURA JURÍDICA LATINOAMERICANA [IMPURE THEORY OF THE LAW: THE TRANSFORMATION OF THE LATIN AMERICAN LEGAL CULTURE] 435-59 (2004). 101 See BOBBIO, supra note 85, at 48 (“[H]uman rights are at least partly a social phenomenon.”). 102 ROBERT K. YIN, CASE STUDY RESEARCH: DESIGN AND METHODS 49-63 (5th ed. 2014); see also Edward L. Rubin, “Law and” and the Methodology of Law, 1997 WIS. L. REV. 521 (1997) (“[L]egal scholarships needs social science to prosper, if not to survive.”). 25

a deeper and broader understanding of these problems.103 It consists of three interrelated levels of analysis as shown in figure 1. The overarching research context is the international human rights norms that are relevant to protect and promote the human rights claims of the communities concerned. Within this context, this dissertation defines the domestic legal systems of Colombia and Nicaragua as case studies and the communities concerned as units of analysis embedded therein. This multiple-case study setting requires different research methods for the three levels of analysis. These research methods include doctrinal legal research and what is here called a

“qualitative empirical legal research.”104 Despite the adoption of this pluralist methodical framework, the focus is on the legal methods, rendering the dissertation interdisciplinary only to a limited extent.105

Figure 1: Multiple-case study setting106

103 Cf. DESMET, supra note 73, at 35. 104 See infra. 105 JULIE THOMPSON KLEIN, INTERDISCIPLINARITY: HISTORY, THEORY, AND PRACTICE 196 (1990). 106 See YIN, supra note 102, at 55 fig.2.4; DESMET, supra note 73, at 360. The dashed lines indicate that the borderlines between the three levels of research are not always clear-cut (YIN, supra note 102, at 50). 26

For the analysis levels of the context and case studies as depicted in figure 1, this dissertation primarily employs the method of “doctrinal or theoretical legal research.”107 This method is defined as an approach that inquires “what the law is in a particular area.”108

Following this method, the researcher gathers and examines primary sources of law, including international and domestic legal instruments and jurisprudence. The researcher complements this analysis with information collected from secondary sources, particularly academic publications.109 The doctrinal legal method therefore contributes to establishing the level and scope of the legal protection of the communities concerned, unveiling any gaps in international human rights law and the legal systems of Colombia and Nicaragua that may weaken the legal protection.110

In this theoretical legal research, this dissertation analyzes relevant international human rights instruments, provisions of the Colombian and Nicaraguan legal systems, decisions of judicial and quasi-judicial international human rights bodies, domestic jurisprudence, general principles of law, customary rules, and legal literature.111 While the primary research focus is on legally binding sources of international human rights law and domestic legal systems of

Colombia and Nicaragua, this dissertation refers to soft law instruments, guiding human rights documents, and legal scholarship to complement and clarify the interpretation of these sources.

The legally binding sources examined in the dissertation and applicable to Colombia and

107 Ian Dobinson & Francis Johns, Qualitative Legal Research, in RESEARCH METHODS FOR LAW 16, 18 (Mike McConville & Wing Hong Chui eds., 2007). 108 Id. at 19. The approach to define the state of law in a particular field corresponds to the positivist understanding of law adopted in this dissertation. 109 Id. at 19. 110 Terry Hutchinson, Doctrinal Research: Researching the Jury, in RESEARCH METHODS IN LAW 7, 8 (Dawn Watkins & Mandy Burton eds., 2013). 111 Mark van Hoecke, Legal Doctrine: Which Method(s) for What Kind of Discipline?, in METHODOLOGIES OF LEGAL RESEARCH 1, 11 (Mark van Hoecke ed., 2011). 27

Nicaragua include the Charter of the OAS,112 ACHR, jurisprudence of the Inter-American Court of Human Rights, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights “Protocol of San Salvador,”113 Inter-American

Convention against Racial Discrimination, ILO Convention No. 169,114 ICCPR, ICESCR, and

ICERD. This dissertation further analyzes customary international law principles and domestic legal norms of Colombia and Nicaragua.115 The soft law instruments that this dissertation relies on to inform the nature, scope, and content of the legally binding sources, include the UDHR,

U.N. Declaration on the Rights of Indigenous Peoples,116 U.N. Declaration on the Rights of

Peasants and Other People Working in Rural Areas,117 American Declaration of the Rights and

Duties of Man,118 American Declaration on the Rights of Indigenous Peoples,119 and Social

Charter of the Americas. This dissertation further considers relevant documents adopted by U.N. and Inter-American human rights mechanisms, such as the U.N. human rights treaty bodies and

Inter-American Commission on Human Rights. These documents include general comments that

112 Charter of the Organization of American States, Apr. 30, 1948, O.A.S.T.S. No. 61, 119 U.N.T.S. 47 [hereinafter OAS Charter]. 113 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador,” Nov. 17, 1988, O.A.S.T.S. No. 69 [hereinafter Protocol of San Salvador]. 114 The dissertation disregards the predecessor of ILO Convention No. 169, ILO Convention No. 107, since such convention has widely been criticized for failing to effectively protect indigenous and tribal peoples, favoring their assimilation and integration into the wider society (I.L.O. Indigenous and Tribal Populations Convention, 1957 (No. 107), June 26, 1957 [hereinafter ILO Convention No. 107]). Further, ILO Convention No. 107 is no longer relevant for those countries that have ratified ILO Convention No. 169, including Colombia and Nicaragua (Stephan Marquardt, International Law and Indigenous Peoples, 3 INT’L J. GROUP RTS. 47, 55 (1995); see also article 36 ILO Convention No. 169). 115 The domestic legal norms of Colombia and Nicaragua include the constitutions, laws, and decrees, as well as jurisprudence. 116 U.N. Declaration on the Rights of Indigenous Peoples, U.N. Doc. A/RES/61/295 (Sept. 13, 2007), 46 I.L.M. 1013 [hereinafter UNDRIP]. 117 U.N. G.A. Res. 73/165, United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (Jan. 21, 2019) [hereinafter UN Declaration on the Rights of Peasants]. Nicaragua voted in favor of the resolution while Colombia abstained (U.N. G.A. Res. 73/PV55 (Official Records), 25 (Dec. 17, 2018)). 118 American Declaration of the Rights and Duties of Man, Res. XXX (May 2, 1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V./II.82, doc. 6, rev. 1 at 17 (1992) [hereinafter ADHR]. 119 Org. of Am. States, G.A. Res. AG/RES. 2888 (XLVI-O/16) (American Declaration on the Rights of Indigenous Peoples) (June 15, 2016) [hereinafter ADRIP]. 28

U.N. human rights treaty bodies have issued to guide the States’ implementation of their obligations under the human rights treaty in question. They also include opinions and recommendations that these treaty bodies and the Inter-American Commission on Human Rights have adopted in response to complaints and petitions of human rights abuses brought to them.

Lastly, this dissertation studies selected conference outcome documents, such as the Santiago

Declaration120 and Durban Declaration,121 and relevant U.N. and OAS general assembly resolutions, including the 2030 Agenda for Sustainable Development.122 Although these documents contain policy statements rather than concrete duties of States, they contribute to specifying international human rights norms relevant for the communities concerned.123

This dissertation complements the theoretical legal analysis with an empirical research approach, assessing the context in which the legal provisions operate and examining their impact in the communities concerned.124 This dissertation coins this approach “qualitative empirical legal research,” which is here understood as “the study of law, legal processes and legal phenomena”125 through research methods that are typically employed in qualitative social science research. This approach serves to outline the human rights claims of the communities

120 U.N. Secretary-General, Report of the Regional Conference of the Americas, Santiago, Chile, 5-7 December 2000, U.N. Doc. A/CONF.189/PC.2/7 (Apr. 21, 2001) [hereinafter Santiago Declaration]. 121 World Conference against Racism, Racial Discrimination, Xenophobia and Related Violence, Report, U.N. Doc. A/CONF.189/12 (2001) [hereinafter Durban Declaration]. 122 U.N. G.A. Res. 70/1, Transforming Our World: The 2030 Agenda for Sustainable Development (Oct. 21, 2015) [hereinafter 2030 Agenda for Sustainable Development]. 123 Marcel Brus, Soft Law in Public International Law: A Pragmatic or a Principled Choice? Comparing the Sustainable Development Goals and the Paris Agreement, SSRN (Mar. 22, 2017), https://ssrn.com/abstract=2945942. 124 Cf. McInerney-Lankford, supra note 41, at 47; Landman, supra note 69, at 40 (“Qualitative methods seek to identify and understand the attributes, characteristics, and traits of the objects of inquiry, as well as the meanings, processes, and context. The nature of the methods necessarily requires a focus on a small number of units of analysis, whether they are individuals, groups, sub-national regions, countries, or supra-national regions.”). 125 Mandy Burton, Doing Empirical Research: Exploring the Decision-Making of Magistrates and Juries, in RESEARCH METHODS IN LAW 55, 55 (Dawn Watkins & Mandy Burton eds., 2013). 29

concerned and understand how the relevant international human rights norms are implemented on the ground.

The qualitative empirical legal research methods include semi-structured interviews and participatory observations in Colombia and Nicaragua to enrich the research on the case studies of Colombia and Nicaragua and the units of analysis of Tierrabomba and Orinoco. For the analysis of the Colombian and Nicaraguan legal systems, this dissertation complements the doctrinal legal research with in-depth semi-structured expert interviews. Eight interviews were conducted in Colombia and four in Nicaragua with individuals who have a comprehensive understanding of a specific aspect of the research topic, particularly human rights activists, legal professionals, and government officials.126 The interview questions centered around the interpretation of domestic legal norms and practices applicable to the Afro-descendant population of the respective States, the living conditions of the communities concerned and similarly situated Afro-descendant communities, and the States’ policies towards their population of African descendants. These expert interviews serve to ensure the accurate understanding and interpretation of the domestic legal and institutional frameworks and to shed light on the prevalent legal practices in Colombia and Nicaragua.127 In addition, selected human rights activists and legal professionals in Colombia and Nicaragua provided information about the legal and institutional frameworks relevant for the communities concerned.

To study the units of analysis of Tierrabomba and Orinoco, this dissertation adopts a field research approach. Both communities concerned were visited for five weeks each to conduct qualitative semi-structured interviews with community members holding specific responsibilities

126 For a list of the expert interview partners and their functions, see infra annex D. 127 Such expert interviews are of particular relevance since the author of this dissertation is not a lawyer of Colombian or Nicaraguan national law. The author accepts full responsibility for any misrepresentations or misinterpretations in this connection. 30

and engage in participatory and interactive observation on the ground. These field visits took place between June and July of 2017 in the community of Tierrabomba and between July and

August of 2017 in the community of Orinoco. During this time, twenty-nine in-person interviews were conducted, including twelve in Tierrabomba and seventeen in Orinoco.128 All interviews were conducted in individual settings. They mostly took place in the interviewees’ private homes in the communities, ensuring the interviewees felt comfortable and safe to share information; only a few interviews were conducted at the interviewees’ workplace.129 The information gathered in the interviews is complemented with personal observations made during interactions with the community members and participation in their daily lives. The observations help gain a holistic understanding of the communities’ human rights claims. All observations and findings were recorded in a notebook with the place, date, and time of the observations and a brief description.130

Through its methodological framework, this dissertation takes on a comparative perspective. Both case studies are compared with their respective embedded units of analysis.

Such comparative approach serves to highlight the varying level and scope of legal protections given to the communities concerned, which raise similar human rights claims in different contexts.131 It therefore sets the foundation for substantive and robust recommendations on the effective implementation of human rights claims in the communities concerned and similarly situated Afro-descendant communities across Latin America.

128 For a list of the interview partners, their positions within the community, and the interview places, see infra annex D. 129 See infra annex D. 130 The notebook is on file with the author. 131 Cf. McInerney-Lankford, supra note 41, at 49. 31

Relevant Terminology

Under international human rights law, recognition and legal protection is given to

“indigenous peoples,” “tribal peoples,” and “minorities.” Only the Inter-American Convention against Racial Discrimination explicitly mention Afro-descendants in its preamble but does not elaborate this term.132 Human rights bodies and scholars have also introduced terminology for population groups that are not explicitly protected in the existing human rights texts, particularly

“vulnerable or disadvantaged groups.”133 They have applied the concept of vulnerable groups to a broad range of populations, ranging from detainees to asylum seekers and to indigenous peoples.134 Human rights practice and scholarship have argued for including Afro-descendants under one or the other of these identities.135 This has resulted in ambiguity about the legal categorizations of Afro-descendants. It is therefore important to define the different terms that international human rights law and legal scholars use for Afro-descendants and analyze the practical implications of these categorizations in the context of the communities concerned.

Minorities

International human rights law refers to “minorities” in several provisions. This is most prominent in article 27 ICCPR, which discusses the right of ethnic, religious, or linguistic minority members to enjoy their own culture. Other minority rights instruments include the

UNDRM and Framework Convention for the Protection of National Minorities, which applies to

132 Supra fn.19. 133 See infra Vulnerable or Disadvantaged Groups. 134 Audrey R. Chapman & Benjamin Carbonetti, Human Rights Protections for Vulnerable and Disadvantaged Groups: The Contributions of the UN Committee on Economic, Social and Cultural Rights, 33 HUM. RTS. Q. 682, 683-84 (2011). 135 See infra Afro-Descendants in Legal Scholarship; Afro-Descendants in the Jurisprudence of the Inter-American Human Rights System. 32

the European context.136 However, this minority rights framework does not formally define the term “minority.” In an attempt to fill this gap, legal scholarship and practice have formulated their own definitions, which at times do not fully included substantive minority rights.137 The most widely cited definitions are by CAPOTORTI138 and DESCHÊNES.139 Both require a minority to have specific cultural and linguistic characteristics that distinguish them from the rest of the society (objective criterion), awareness of these characteristics, and the willingness to uphold them (subjective criteria).140 According to these definitions, minorities also may not constitute a numerical majority in their territorial State and must be in a non-dominant position within the larger society. The latter criterion means that they are not in a politically or economically leading position within the territorial State. While legal scholars, practitioners, and States have widely discussed and applied the concept of minorities in the European context, the Inter-

American human rights system and domestic legislations of Latin American States rarely rely on it.

Indigenous Peoples

The concept of indigenous peoples is well established in international human rights law.

Unlike the minority rights scheme, this concept figures dominantly in the Latin American context, and the Inter-American human rights system has heavily contributed to its development

136 Council of Europe, Framework Convention for the Protection of National Minorities, Feb. 1, 1995, European T.S. No. 157 [hereinafter Minority Rights Framework Convention]. 137 U.N., HIGH COMM’R FOR HUMAN RIGHTS, MINORITY RIGHTS: INTERNATIONAL STANDARDS AND GUIDANCE FOR IMPLEMENTATION 6 (2010). 138 FRANCESCO CAPOTORTI, STUDY ON THE RIGHTS OF PERSONS BELONGING TO ETHNIC, RELIGIOUS AND LINGUISTIC MINORITIES, ¶ 568, U.N. Doc. E/CN.4/Sub.2/384, U.N. Sales No. E.78XIV.1 (1979) (“A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members—being nationals of the State— possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.”). 139 Jules Deschênes, Proposal Concerning a Definition of the Term “Minority,” U.N. Doc. E/CN.4/Sub.2/1985/31 (May 14, 1985). 140 Ulrike Barten, What’s in a Name: Peoples, Minorities, Indigenous Peoples, Tribal Groups and Nations, J. ON ETHNOPOLITICS & MINORITY ISSUES, 2015, at 1, 6-7. 33

and application in the region. International legal instruments have established criteria to define the existence of an indigenous people.141 According to these criteria, a population group is considered indigenous if it (1) has resided on a specific territory since before the European colonization; (2) demonstrates a unique material and spiritual connection to this territory; (3) has distinct cultural characteristics that have been totally or partially preserved over time; and (4) self-identifies as indigenous peoples.142

The concept of indigenous peoples typically does not apply to Afro-descendant communities. While some rural Afro-descendant communities may assert a strong relationship to their ancestral land similar to indigenous peoples, they fail to fulfill the first criterion of time since they arrived in Latin America during colonization. Thus, they have not been able to invoke the indigenous rights framework at the international level.143

Tribal Peoples

Closely related to the term “indigenous peoples” is the concept of tribal peoples. While international human rights law frequently mentions tribal peoples together with indigenous peoples, tribal peoples are, unlike indigenous peoples, not required to live on a given territory

141 Article 1(1) ILO Convention No 169; preamble and article 33(1) UNDRIP; preamble of the ADRIP; THE WORLD BANK, OPERATIONAL MANUAL, OP 4.10 – INDIGENOUS PEOPLES (2013), https://policies.worldbank.org/sites/ppf3/PPFDocuments/090224b0822f89d5.pdf; Erica-Irene Daes (Chairperson- Rapporteur of the Working Group on Indigenous Populations), Standard-Setting Activities: Evolution of Standards Concerning the Rights of Indigenous People, ¶ 69-70, U.N. Doc. E/CN.4/Sub.2/AC.4/1996/2 (June 10, 1996); JOSE R. MARTINEZ COBO, STUDY ON THE PROBLEM OF DISCRIMINATION AGAINST INDIGENOUS POPULATIONS, ¶ 379, U.N. Doc. E/CN.4/Sub.2/1986/7/Add.4., U.N. Sales No. E.86.XIV.3 (1986) (“Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.”). 142 Inter-Am. Comm’n on Human Rights, Indigenous and Tribal People’s Rights over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter‐American Human Rights System, ¶ 29, OEA/Ser.L/V/II. Doc. 56/09 (Dec. 30, 2009). 143 See infra Application of the Relevant Human Rights Terminology to Afro-descendants. 34

prior to colonization or the establishment of the relevant State’s boundaries. This makes the concept of tribal peoples particularly appealing to Afro-descendant communities. Article 1(1)(a)

ILO Convention No. 169 defines tribal peoples as those “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.”144 Despite these different definitions of indigenous and tribal peoples, tribal peoples enjoy the same rights as indigenous peoples under the ILO Convention No. 169 and other relevant international human rights instruments.145 The Inter-American human rights system has so far applied property rights of indigenous peoples to tribal peoples, but it has not yet clarified whether other indigenous rights equally apply to tribal peoples.

In the Inter-American human rights system, the cases applying the terminology of tribal peoples refer to some rural Afro-descendant communities, subsuming them under the aforesaid definition of the ILO Convention No. 169. For instance, in Saramaka People v. Suriname, the

Inter-American Court of Human Rights addressed the land rights of the Afro-descendant

Saramaka people and its battle against mining and logging companies, which had received concessions from the Surinamese State to carry out activities on the Saramaka people’s land without prior consultation.146 When discussing the legal scheme applicable to the Saramaka people, the Court held that the Saramaka is a tribal people “because of their special relationship with their ancestral territories, and because they regulate themselves, at least partially, by their own norms, customs, and/or traditions.”147 In the more recent case of Community Garífuna de

144 Article 1(1)(a) ILO Convention No. 169. 145 Article 1 ILO Convention No. 169; Barten, supra note 140, at 11, 12. 146 Saramaka People v. Suriname, supra note 21. 147 Id. at ¶ 84. In the previous case of the Moiwana Village, which dealt with the State’s failure to investigate a massacre committed by armed forces against the Afro-descendant Moiwana people and to prosecute and punish the perpetrators, the Court reached a similar conclusion. It ruled that the Afro-descendant community at stake enjoyed collective property rights because “the Moiwana community members, a N’djuka tribal people, possess an ‘all- 35

Triunfo de la Cruz and its Members v. Honduras, the Inter-American Court of Human Rights dealt with the question of whether the Honduran State’s urban development projects that extended into the ancestral land of the Garifuna community Triunfo de la Cruz, violated the community’s land rights under the ACHR.148 To determine the nature and scope of these land rights, the Court discussed whether the community qualifies as an indigenous people, tribal people, or none of them. Analyzing the community’s history, relationship to the traditional land, economic activities, language, and internal organization, the Court ruled that the community is indigenous or tribal in nature.149 The Court held however that it was irrelevant to determine the applicable legal scheme more precisely because both indigenous and tribal peoples enjoy the same collective rights with regards to their ancestral lands.150 The Court simply stated that it would consider “the indigenous or tribal nature”151 of the community when analyzing the case.

In these cases, the Afro-descendant communities at stake demanded legal protection of their ancestral territories to be able to remain on these lands as communities. While their specific land-related claims varied, they all benefitted from the Court’s application of the concept of tribal peoples because this concept allowed for the protection of their collective land claims.

In all cases, the Inter-American Court of Human Rights decided to qualify the Afro-descendant communities in question as indigenous or tribal after determining that the communities fulfill

encompassing relationship’ to their traditional lands, and their concept of ownership regarding that territory is not centered on the individual, but rather on the community as a whole” (Moiwana Village v. Suriname, supra note 21, at ¶ 133). 148 Community Garifuna Triunfo de la Cruz and its Members v. Honduras, supra note 21. 149 Id. at ¶¶ 46-56. 150 Id. at ¶ 57. 151 Id. The Inter-American Court of Human Rights reached the same conclusion in the case of Community Garifuna Punta Piedra and its Members v. Honduras (supra note 21, at ¶ 91). This case deals, inter alia, with the question of whether the Honduran State incurred an obligation to clear the Garifuna community’s traditional lands from interferences by third parties. The Court held that the community was indigenous or tribal in nature and therefore enjoyed collective land rights under article 21 ACHR (id. at ¶¶ 83-90, 168). Since Honduras failed to prevent non- community members from interfering with the Garifuna community’s traditional land despite knowing about the interferences, the Court held responsible for violating article 21 ACHR (id. at ¶¶ 189, 372). 36

certain folkloric and material criteria.152 These criteria include traditional economic activities, language, music and dance, as well as a spiritual connection to the traditional land.153 However, most Afro-descendant communities of Latin America will not be able to prove the existence of these criteria in their communities.154 They have not maintained aforesaid distinctive folkloric features. Thus, the majority of Afro-descendants is excluded from the legal protection granted to tribal peoples as they do not possess the necessary features to qualify as tribal.

Vulnerable or Disadvantaged Groups

The concept of vulnerable or disadvantaged groups emerged from the practice of U.N. and regional human rights treaty bodies. It is not explicitly mentioned in international human rights instruments. The Committee on Economic, Social, and Cultural Rights, Committee on the

Elimination of Racial Discrimination, Inter-American human rights system, and European Court of Human Rights, among others, have employ the term “vulnerable or disadvantaged group” when referring to a group of persons that is more susceptible to human rights abuses than others due to its social, economic, or other conditions, exposure to structural discrimination, or the inability to seek judicial protection.155 They have frequently used the terms “vulnerable” and

“disadvantaged” interchangeably without providing a consistent or clear definition of vulnerability or disadvantage.156 The human rights treaty bodies apply the concept of vulnerable or disadvantage group on an ad hoc basis to a variety of population groups. These groups have included women, children, persons with disabilities, persons deprived of liberty by the State,

152 See infra Afro-Descendants in the Jurisprudence of the Inter-American Human Rights System. 153 Saramaka People v. Suriname, 21, at ¶ 84; Moiwana Village v. Suriname, 21, at ¶ 133; see also Community Garifuna Triunfo de la Cruz and its Members v. Honduras, 21, at ¶ 57. 154 THE WORLD BANK, 14, at 27. 155 E.g., Jo M. Pasqualucci, The Right to a Dignified Life (Vida Digna): The Integration of Economic and Social Rights with Civil and Political Rights in the Inter-American Human Rights System, 31 HASTINGS INT’L & COMP. L. REV. 1, 17-22 (2008). 156 Chapman & Carbonetti, 134, at 683. 37

asylum seekers, persons of low economic status, and indigenous peoples.157 The human rights treaty bodies typically use the reference to a population’s vulnerability to establish the need for legal protection.158

The Inter-American human rights system primarily refers to the vulnerability of a population group to advocate for enhanced State protection for them.159 With regard to indigenous and tribal peoples, the Inter-American human rights system has ordered States to implement measures that go beyond the content of ordinary (positive) State obligations for individuals.160 Such special measures are temporary in nature and aim to achieve substantive equality vis-à-vis the rest of the population. These measures aim to overcome the indigenous and tribal peoples’ exclusion and discrimination, and ensure their cultural survival.161 The Inter-

American human rights system has primarily based this expansive interpretation of State obligations on the right to life (article 4 ACHR), which it has interpreted to include the right to a dignified life.162 According to the jurisprudence of the Inter-American Court of Human Rights, a vulnerable population group needs to fulfill the following three conditions to determine if a dignified life is violated: it must demonstrate that (1) their most fundamental needs, including access to safe and clean water, food, or medical assistance, are not met; (2) the State knows or

157 Id. at 683-84; see also Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights, 81, at ¶ 14, 20. 158 Chapman & Carbonetti, 134, at 685. 159 Claudia Martin, The Moiwana Village Case: A New Trend in Approaching the Rights of Ethnic Groups in the Inter-American System, 19 LEIDEN J. INT’L L. 491, 498 (2006). 160 Yakye Axa Indigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 125, ¶ 63, 163 (June 17, 2005); Inter-Am. Comm’n on Human Rights, 142, at ¶¶ 48-54. 161 Saramaka People v. Suriname, 21, at ¶ 103; Maya Indigenous Communities of the Toledo District v. Belize, Case 12.053, Inter-Am. Comm’n H.R., Report No. 40/04, OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 727 ¶ 95 (2004); INT’L LABOUR ORG., INDIGENOUS AND TRIBAL PEOPLES' RIGHTS IN PRACTICE: A GUIDE TO ILO CONVENTION NO. 169, at 35 (2009). 162 Pasqualucci, 155, at 18. 38

should know of such precarious conditions affecting the community’s lives; and (3) there is a causal link between the group’s living conditions and the State’s action or inaction.163

The Inter-American human rights system has also employed the vulnerability terminology to shed light on specific circumstances that might impede the enjoyment of indigenous and tribal peoples’ fundamental rights. This use of the vulnerability concept becomes evident in case of Community Garifuna Punta Piedra and its Members v. Honduras, in which the

Inter-American Court of Human Rights addressed Honduras’ failure to prevent third parties from interfering with the Punta Piedra community’s traditional land despite knowing of the interferences.164 The Court ruled that Honduras did not provide the community with an effective domestic recourse to address these interferences.165 It held that the decisions of the Honduran courts “should be executed without obstacles or undue delays in order to achieve their objective in a quick, easy, and integral manner. This is particularly important in cases on indigenous matters given the special situation of vulnerability that these peoples could be in, which by itself could impose obstacles not only to access justice but also to achieve implementation of the adopted decisions.”166 Without defining the term “vulnerability,” the Inter-American Court of

Human Rights concluded that the State should design its judicial and institutional avenues in a way that allows indigenous and tribal peoples to access them easily.167 With this use of the vulnerability concept, the Court highlights population groups that are particularly susceptible to human rights abuses.

163 Id. at 26. 164 Community Garifuna Punta Piedra and its Members v. Honduras, 21, at ¶¶ 189, 372. 165 Id. at ¶ 251. 166 Id. at ¶ 249 (emphasis added). 167 Id. 39

Overall, international human rights law uses the concept of vulnerable or disadvantaged groups inconsistently, applying it to a broad variety of population groups. In the context of indigenous and tribal peoples, the Inter-American human rights system has referred to this concept to push for enhanced State protection and inform the scope and content of State obligations. However, the concept of vulnerability by itself does not impose a specific framework of legal protection similar to the indigenous or minority rights schemes. The fact that

U.N. and Inter-American human rights bodies have not adopted a working definition of the terms

“vulnerability” or “disadvantage,” renders this concept vague. The concept is therefore an insufficient basis for the legal protection of Afro-descendants.

Application of the Relevant Human Rights Terminology to Afro-Descendants

Considering that legally binding international human rights law does not explicitly recognize a separate legal framework applicable to Afro-descendants, this section analyzes the application of the above-mentioned human rights terminology to Afro-descendants.168 Such analysis is necessary to determine the legal framework that is applicable to the human rights claims of the communities concerned.169 Existing legal scholarship and jurisprudence in the

Inter-American human rights system cover Afro-descendants under different categories of rightsholders. While the scarce legal scholarship on Afro-descendants has referred to the concepts of indigenous peoples and minorities,170 the Inter-American human rights system has

168 The dissertation does not promote a new, separate legal framework for Afro-descendants (see supra Introduction). 169 See infra Chapters 4-6. 170 Unlike legal scholars, social and political scientists have extensively analyzed whether Afro-descendants identify as indigenous peoples, and how this self-identification is reflected at the domestic level. For this purpose, they have studied the social mobilization and (self-)identification processes of Afro-descendants as “black” and/or “indigenous.” These studies generally demonstrate that both the legal claims and identity formation of indigenous peoples and Afro-descendants are closely interrelated and inform each other – at least at the domestic and local levels (e.g., EDUARDO RESTREPO, ETNIZACIÓN DE LA NEGRIDAD: LA INVENCIÓN DE LAS “COMUNIDADES NEGRAS” COMO GRUPO ÉTNICO EN COLOMBIA [ETHNICIZATION OF BLACKNESS: THE INVENTION OF THE “BLACK COMMUNITIES” AS ETHNIC GROUP IN COLOMBIA] (2013); KWAME DIXON & BURDICK, JOHN (EDS.), COMPARATIVE 40

classified some Afro-descendant communities as tribal peoples. This section first elaborates on the principle of self-identification as the guiding principles in determining the applicable legal framework. It then discusses the different approaches of legal scholarship and the Inter-

American human rights system, reveals their weaknesses in the context of the communities concerned, and proposes a more nuanced approach to determining the legal framework applicable to Afro-descendants.

The Overarching Principle of Self-Identification

Self-identification is a central pillar in the concepts of minority, indigenous peoples, and tribal peoples and their corresponding legal frameworks. This principle is enshrined in article

1(2) ILO Convention No. 169 and article 1(2) ADRIP.171 It is comprised of two elements, namely the identification of a given population group as minority, indigenous people, or tribal people (collective self-identification) and the identification of a specific person as belonging to such group (individual self-identification).172 Along the same vein, the Inter-American Court of

Human Rights has held that the self-identification of communities and individuals is binding upon both the Court and States.173 The Court has applied the principle of self-identification also to Afro-descendant communities qualifying as tribal peoples, stating that self-identification is

PERSPECTIVES ON AFRO-LATIN AMERICA (2012); Juliet Hooker, Indigenous Rights in Latin America - How to Classify Afro-Descendants?, in IDENTITY POLITICS IN THE PUBLIC REALM: BRINGING INSTITUTIONS BACK IN 104 (Avigail Eisenberg & Will Kymlicka eds., 2011); ANDERSON, supra note 63; Bettina Ng’weno, Can Ethnicity Replace Race? Afro-Colombians, Indigeneity and the Colombian Multicultural State, 12 J. LAT. AM. & CARIBBEAN ANTHROPOLOGY 414 (2007); Juliet Hooker, supra note 63. 171 Article 1(2) ILO Convention No. 169 (“Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.”); article 1(2) ADRIP (“Self-identification as indigenous peoples will be a fundamental criterion for determining to whom this Declaration applies.”). 172 Inter-Am. Comm’n on Human Rights, supra note 142, at ¶ 31. 173 Xákmok Kásek Indigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 214, ¶ 37 (Aug. 24, 2010) (added that the collective self-identification is a “social and historical fact” that a community develops in an autonomous process). 41

“one of the principal and determining criteria”174 to consider when analyzing the indigenous or tribal nature of a community.

Afro-Descendants in Legal Scholarship

Legal scholarship has primarily applied the minority rights scheme to Afro-descendant communities in Latin America.175 REALES JIMENEZ discusses the terminology of indigenous peoples and minorities and stresses that terminologies relating to Afro-descendants should be based on the principle of self-identification.176 He acknowledges that some Afro-descendants reject the term “minority” for its derogatory connotation in Spanish, but concludes nonetheless that Afro-descendants constitute an ethnic minority in Latin America.177 MOREL reaches a similar conclusion, arguing that minority rights combined with the principle of non- discrimination are the appropriate legal tools to overcome the marginalization of Afro- descendants.178 She states that these legal tools serve to protect the physical existence of Afro- descendants, promote their cultural identity, and guarantee their effective participation in decision-making processes while prohibiting racial discrimination.179 Like REALES JIMENEZ, she recognizes the importance of the self-identification principle and the inapplicability of the indigenous rights framework to Afro-descendants.180

174 Community Garifuna Punta Piedra and its Members v. Honduras, supra note 21, at ¶ 84. 175 U.N. and Inter-American human rights treaty bodies have also referred to the term “minority” for Afro- descendants (e.g., Asbjørn Eide, Prevention of Discrimination and Protection of Minorities, Progress Report on the Update to the Study on Peaceful and Constructive Approaches to Situations Involving Minorities, ¶ 26-27, U.N. Doc. E/CN.4/Sub.2/2003/21 (June 17, 2003)). For the concept of minorities, see supra Minorities. 176 Reales 2011, supra note 20, at 159; Reales 2008, supra note 20, at 32. 177 Reales 2011, supra note 20, at 157-8; Reales 2008, supra note 20, at 30, 33. In both articles, Reales discusses the categories of minorities and indigenous peoples and rightly concludes that Afro-descendants generally do not qualify as indigenous in the Americas. However, his discussions neglect the related category of tribal peoples that the Inter-American Court of Human Rights has commonly invoked for certain Afro-descendant communities. 178 Morel, supra note 34, at 125 (“Far from incompatible, traditional anti-discrimination principles and minority rights are mutually reinforcing and therefore together best equipped to bridge the existing protection gap that currently denies equality to Afro-descendants and other marginalized communities throughout the Americas.”). 179 Id. at 125. 180 Id. at 127. 42

This dissertation rejects the categorizations by REALES JIMENEZ and MOREL. These categorizations fail to consider the legal context of Latin America and the practical realities of

Afro-descendants on the ground. With regard to the legal context, REALES JIMENEZ and

MOREL’s categorizations neglect that Latin American States and the Inter-American human rights system has not implemented a minority rights framework like Europe.181 It has instead focused on indigenous rights, which are fundamentally different. While the minority rights framework contains several rights relevant to Afro-descendants’ legal claims, such as the prohibition of discrimination, it does not recognize collective land rights.182 Thus, it does not offer protection to one of the most fundamental—and contentious—claims of rural Afro- descendant communities. 183 In addition, the minority rights framework disregards the different realities of Afro-descendant communities across Latin America, subsuming them in the “one- size-fits-all” model of minority rights. With regard to the local realities, both REALES JIMENEZ and MOREL contradict the fundamental importance of the principle of self-identification by acknowledging that Afro-descendants reject to be called a “minority”, but still classifying them as such.184 Many Afro-descendants highlight that the Spanish word for minority (“minoría”) has a negative connotation.185 They argue that the term “minority” refers to a powerless, diminished population group.186 Thus, the concept of minority rights does not resonate with Afro- descendants despite the fact that some of these rights might be relevant to their claims. Further, the term “minority” refers to a population group that constitutes a numerical minority of a State’s

181 See supra Minorities. 182 Cf. UNDRM; Minority Rights Framework Convention. 183 See infra Land Rights of Afro-Descendant Communities from a Human Rights Perspective. 184 See article 1(2) ILO Convention No. 169; article 3 UNDMR. 185 Reales 2008, supra note 20, at 33. 186 Reales 2008, supra note 20, at 33. 43

population, but Afro-descendants are a majority in several Latin American countries.187 While

MOREL rightly criticizes this formalistic understanding of minorities,188 the numerical criterion is still the prevailing approach of States and the international community and thus cannot be neglected.

Afro-Descendants in the Jurisprudence of the Inter-American Human Rights System

The Inter-American human rights system has classified some Afro-descendant communities as tribal peoples.189 For such categorization, they have examined the existence of cultural characteristics similar to those typically attributed to indigenous peoples. For example, the Inter-American Court of Human Rights has examined the communities’ language, folkloric elements of culture, such as traditional dances and music, connection of the ancestral land with their cultural and spiritual survival, as well as traditional economic activities, including fishing, hunting, and agriculture.190 To determine whether an Afro-descendant community meets these folkloric criteria, the Court has relied on witness testimonies of members of the Afro-descendant community in question, anthropologists, historians, and other experts on cultural features of these communities.191 This corresponds with the approach used for indigenous peoples as it requires Afro-descendants to prove cultural elements in order to claim rights to collective land,

187 For instance, Afro-descendants constitute over half of the population in Venezuela and approximately half of the population in Brazil (THE WORLD BANK, supra note 14, at 51). 188 Morel, supra note 34, at 126. 189 See supra Tribal Peoples. 190 Community Garifuna Punta Piedra and its Members v. Honduras, supra note 21, at ¶¶ 85-91; Community Garifuna Triunfo de la Cruz and its Members v. Honduras, supra note 21, at ¶¶ 49-57; Saramaka People v. Suriname, supra note 21, at ¶¶ 80-84; Moiwana Village v. Suriname, supra note 21, at ¶¶ 86(1)-(11), 131-34. 191 The World Bank takes a similar approach to identify the presence of indigenous or tribal peoples in the areas of its development projects. It consults with the people affected by the project as well as “[q]ualified social scientists with expertise in social and cultural groups and Indigenous Peoples’ rights … to make the technical judgment of whether they are [indigenous peoples] under Bank policy” (INSPECTION PANEL, THE WORLD BANK, EMERGING LESSONS SERIES NO. 2, INDIGENOUS PEOPLES 6 (2016), http://documents.worldbank.org/curated/en/447361478156710826/pdf/109710-REVISED-PUBLIC-IP-lessons-text- 10-31-16web-links.pdf). 44

natural resources, and prior consultation.192 Legal scholars have coined this understanding “the cultural approach” as it requires the communities seeking protection under the concept of tribal peoples to prove certain cultural characteristics.193

This cultural approach has allowed the Inter-American Court of Human Rights to grant broad legal protection to some Afro-descendant communities,194 but its legal and practical implications is detrimental to these communities for several reasons.195 From a legal perspective, it undermines the principle of self-identification as the Inter-American Court of

Human Rights places strong emphasis on the expert testimonies of anthropologists.196 Thus, the

Court might adopt a top-down approach and decide the non-existence of the aforesaid cultural characteristics in a case where the expert testimonies contradict the statements of the Afro- descendant community members. Such result would challenge the legitimacy and influence of the Court at the local level. In addition, the cultural characteristics that the Inter-American Court of Human Rights examines are present in only a very small number of Afro-descendant communities, such as the Garifuna people, including the community of Orinoco, or the community of San Basilio de Palenque in Colombia.197 The century-long assimilationist policies

192 E.g., the Inter-American Court of Human Rights granted the Saramaka people the rights to natural resources and prior consultation because of its tribal characteristics (Saramaka People v. Suriname, supra note 21, at ¶¶ 121, 129). 193 Dulitzky, supra note 24. It is noteworthy that some States have deviated from this approach. For instance, while in Colombia Law 70 of 1993 defines Afro-descendant communities by reference to certain cultural characteristics, practice has taken a more flexible approach (see infra Domestic Legal Framework of the Rights to Access the Traditional Land and Protect it from Erosion). 194 See Martin, supra note 159, at 503. 195 The criticism raised in this section might also apply to indigenous peoples since the Court follows the same cultural approach for their land claims. However, given the present research focus, this dissertation focuses only on the consequences of the cultural approach for Afro-descendant communities. 196 Dulitzky, supra note 24. 197 The community of San Basilio de Palenque is an Afro-descendant community in Colombia’s Caribbean coast that was established by escaped slaves about four centuries ago. Its inhabitants have preserved unique cultural characteristics rooted in African traditions, such as the Palenque language, music expressions, medical practices, and distinct social practices. In 2005, the UNESCO listed the community as intangible cultural heritage of humanity (Cultural Space of Palenque de San Basilio, UNESCO INTANGIBLE CULTURAL HERITAGE, https://ich.unesco.org/en/RL/cultural-space-of-palenque-de-san-basilio-00102 (last visited May 3, 2020)). 45

of Latin American States have resulted in the fact that most Afro-descendants no longer speak their ancestral languages or practice religions of African origin.198 While such communities may still raise collective land claims, they do not possess the required cultural characteristics to fall under the definition of tribal peoples. Therefore, the current case law of the Inter-American human rights system would not support their claims.199 Thus, the cultural approach excludes most rural Afro-descendant communities with land and other collective claims from benefitting from the corresponding legal framework of tribal peoples.200

Moreover, the cultural approach obliges Afro-descendant communities to stop developing or changing their way of life if they seek to claim collective land- and culture-related rights.201

For instance, the Inter-American Court of Human Rights protects the communities’ right to use and enjoy natural resources only if the natural resources are “found on and within the […] territory” and “essential for the survival of [the Afro-descendants’] way of life.”202 In the above- mentioned case of Saramaka People v. Suriname, it concludes that timber is traditionally used as natural resource, but gold on their territory is not; consequently, the Saramaka people have a right to use and enjoy only the former.203 In Community Garífuna Triunfo de la Cruz and Its

Members v. Honduras, the Inter-American Court of Human Rights held that the indigenous and tribal communities enjoy collective property rights under article 21 ACHR to “continue living their traditional way of life” and respect and protect “their cultural identity, social structure,

198 See infra Slavery, Slave Trade, and Colonial Societies. 199 The only exception to this standard would be an interpretation of the ACHR based on domestic law according to article 29(b) ACHR (supra note 19) if the domestic law guarantees collective rights to Afro-descendant communities irrespective of their cultural characteristics (see infra Domestic Legal Framework of the Rights to Access the Traditional Land and Protect it from Erosion). 200 Dulitzky, supra note 24, at 45. 201 Id. at 42-43, 46-48. 202 Saramaka People v. Suriname, supra note 21, at ¶ 123. 203 Id. ¶ 146. Nonetheless, the State has a duty to consult with the Saramaka people when issuing gold mining concessions to third parties (id., at ¶ 155). 46

economic system, customs, believes, and distinctive traditions.”204 This is necessary to ensure their physical and cultural survival.205 Thus, the Inter-American human rights system views land as a mere cultural commodity without economic value.206 This prevents Afro-descendant communities from freely deciding their own way of life and economic, social, and cultural development. The cultural approach of the Inter-American human rights system encourages

Afro-descendants to pursue economic activities and uphold beliefs or values that nowadays might no longer be profitable or appropriate. For instance, it requires Afro-descendant communities to maintain traditional economic activities in order to enjoy continuous legal protection under the tribal peoples’ framework. If they carry out different economic activities, they risk losing the ability to claim collective land title.207 Thus, the cultural approach can allow multinational companies to obtain a license to extract national resources from ancestral communal territory; but the Afro-descendant communities living on the territory may not engage in these activities if they want to maintain the right to their land.

Lastly, the cultural approach fails to acknowledge that land claims of Afro-descendant communities are the result of social and economic inequalities that have persisted since colonial times.208 Across Latin America, many Afro-descendants live in poverty and have only limited access to education of quality, health care, and sanitary installations.209 The cultural approach maintains these social and economic structures, which have marginalized Afro-descendant communities for centuries. Afro-descendants enjoy access to land only to preserve their traditional cultural identity while the dominant, racially mixed population has unlimited access to

204 E.g., Community Garifuna Triunfo de la Cruz and its Members v. Honduras, supra note 21, at ¶ 102. 205 Id. 206 Cf. Dulitzky, supra note 24, at 61, postscript. 207 Id. at 42. 208 Id. at 62. 209 See infra Socio-Economic and Political Situation. 47

land. Since the cultural approach encourages Afro-descendants to uphold traditional economic activities and other cultural characteristics, the Inter-American human rights system does not allow Afro-descendants to reconcile economic development with a collective way of life.

Instead, it factually prevents Afro-descendant communities from developing on their own terms, perpetuating the image that they are poor and underdeveloped.210 It reduces the communities to their cultural features and does not recognize that the denial of land and other fundamental rights is the result of lack of political will to invest in and improve the living conditions of Afro- descendant communities.211

Application of the Relevant Human Rights Terminology to the Communities Concerned

The current approaches of legal scholarship and the Inter-American human rights system do not fully cover the human rights claims of the communities concerned. The field research in the communities concerned reveals that the communities do not qualify as minorities as suggested in legal scholarship, and only the community of Orinoco falls within the tribal peoples’ rights framework applied by the Inter-American human rights system.

Both communities concerned explicitly reject the term minority. The community of

Tierrabomba refers to the term’s negative meaning in Spanish. The community of Orinoco considers itself aboriginal to the region, a perception that better aligns with the concept of indigenous peoples because this concept refers to the time of residing in a given place.212

Adhering to the principle of self-identification, the dissertation therefore does not apply the minority rights scheme to the communities concerned. Also, the minority rights scheme does not

210 For negative stereotypes against Afro-descendants, see infra Socio-economic and Political Situation. 211 The legal analysis of the human rights claims of the communities concerned confirms this finding. While the domestic legal systems of Colombia and Nicaragua frequently protect the communities’ human rights claims, the relevant legal provisions are not implemented on the ground (see infra Chapters 4-6). 212 See supra Indigenous Peoples. 48

offer sufficient legal protection for the human rights claims of the communities concerned. Both communities raise important claims to their traditional lands and natural resources, but minority rights do not cover land-related claims.213 Thus, the communities concerned would not enjoy any rights to their land and natural resources if they qualified as minorities.

The concept of tribal peoples that the Inter-American human rights system applies to some rural Afro-descendant communities does also not protect the human rights claims of both communities concerned. It arguably applies to the community of Orinoco because this community has preserved a unique language, religious rituals, songs, and dances, and certain traditional economic activities, such as farming and fishing.214 The community therefore satisfies the folkloric and material elements of a tribal community as established in the Inter-

American human rights system, benefitting from the legal protection afforded to tribal peoples’ land, natural resource, and participation claims.215 In addition, the Inter-American Court of

Human Rights has qualified other Garifuna communities as tribal in Community Garifuna Punta

Piedra and its Members v. Honduras and Community Garifuna Triunfo de la Cruz and its

Members v. Honduras,216 which increases the likelihood that the community of Orinoco would also be qualified as such. However, the community of Tierrabomba does not qualify as a tribal community because the inhabitants do not speak an ancestral language, maintain a religion other than Christianity, or perform specific dances or music with African roots. Also, many community members work in the service industry of Cartagena.217 The community of

Tierrabomba therefore does not enjoy any legal protection under the tribal peoples’ framework.

213 See supra Minorities. 214 See infra Human Rights Claims of the Community of Orinoco. 215 See supra Afro-Descendants in the Jurisprudence of the Inter-American Human Rights System. 216 Supra note 21. 217 See infra Human Rights Claims of the Community of Tierrabomba. 49

Its legal protection is limited to the rights granted under general international human rights law, which primarily focuses on individual rights. From a mere international human rights perspective, the community of Orinoco enjoys greater legal protection than the community of

Tierrabomba even though both communities concerned live in similarly marginalized conditions, suffer century-long exclusion and State neglect, and raise comparable legal claims.218

The communities concerned do not fall under the same category of rightsholders and do not enjoy the same legal protection at the international level. It is necessary to study the human rights claims of each community in their respective contexts at the intersection of international human rights law and domestic law to determine the legal protection applicable to their claims.

In the context of the communities concerned, this approach reveals that the community of

Orinoco benefits from the legal framework applicable to tribal peoples, but the community of

Tierrabomba falls under the general international human rights framework.219 For instance, this means that the community of Orinoco enjoys collective land rights while the community of

Tierrabomba does not although both communities raise similar land-related claims.220 These differences have an unsatisfactory result in practice because the communities concerned are subject to different legal regimes for similar human rights claims. However, taking these differences into account is essential to identify the gaps in the legal protection of each community and allows for robust and practical human rights indicators and recommendations to improve it.

218 It is important to note that the Inter-American human rights system allows considering domestic law in the interpretation of international human rights law if the domestic law is more favorable (article 29(b) ACHR). This provision helps strengthen the legal protection of the community of Tierrabomba because the domestic legal framework of Colombia affords greater legal protection than the international human rights law (see infra Particularities of State Obligations Resulting from Cultural Human Rights in the Inter-American Human Rights System). 219 See infra Chapters 4-6. 220 See infra Chapter 4. 50

This dissertation does not employ the concept of vulnerability of the communities concerned. “Vulnerability” does not define a specific legal framework applicable to the communities concerned. Without referring to the concept of vulnerability, the dissertation analyzes the State obligations applicable to the communities concerned in light of their human rights claims and living conditions as observed during the field research. The multiple-case study approach of this dissertation is sufficient to inform the changes States must implement to protect the human rights claims of the communities concerned.

CHAPTER 2

THE COMMUNITIES OF TIERRABOMBA AND ORINOCO: HISTORIES AND SELECTED HUMAN RIGHTS CONCERNS

This chapter conceptualizes the communities concerned as part of the Afro-descendant population of Latin America. It demonstrates how the common histories experienced by Afro- descendants, particularly the practices of slavery and slave trade, have shaped their current living conditions. It then sheds light on the historical particularities of each community concerned, their living conditions, and selected human rights claims, which serve as a basis of the subsequent legal analysis.

Conceptualization of Afro-descendants in Latin America from Colonial Times to the 21st Century

The historical processes of transatlantic slave trade, slavery, and racial stratification of society in colonial Latin America have laid the ground for the marginalization of Afro- descendants in political, economic, social, and cultural matters.221 In the post-colonial era, the new Latin American republics were, at best, reluctant to address issues of racial discrimination.222 This exacerbated Afro-descendants’ marginalization. While Latin American

States and international human rights actors have undertaken important efforts to remedy this situation, studies show that, in addition to experiences of racial discrimination, many Afro- descendants suffer precarious socio-economic conditions and are less likely to access political power than the dominant, racially mixed, population of Latin America.

221 ALVARO BELLO & MARTA RANGEL, ETNICIDAD, “RAZA” Y EQUIDAD EN AMÉRICA LATINA Y EL CARIBE [ETHNICITY, “RACE,” AND EQUITY IN LATIN AMERICA AND THE CARIBBEAN] (2000). 222 Id. at 34-37. 52

Slavery, Slave Trade, and Colonial Societies

Between 1501 and 1866, European colonial powers, in particular Spain, Portugal, France, and England, forcibly transported over twelve and half million people from the shores of Africa to the Americas to meet the increasing demand for a labor force in the European colonies.223 In

Latin America, these enslaved Africans were forced to work mainly on sugar, cotton, cacao, or tobacco plantations, at mining or construction sites, in manufacturing plants, or in households. 224

As a result, they suffered precarious safety and humanitarian conditions while exposed to the caprices of their (mostly European) masters.225 With the institution of slavery, the colonizers adopted an extensive legislative framework to subjugate slaves to the commands of their owners and prevent their escape.226 Slaves were subjected to sanctions of varying degrees of severity, ranging from whipping to amputations of bodily parts or the death penalty if they disobeyed their masters.227

From the early days of slavery, enslaved African did not accept their position as a labor force. Instead, they seized any opportunity to resist and leverage against their masters.228 Slaves preserved African religious customs despite the slave masters’ wish to impose the Catholic faith on them or fled to so-called maroon communities of escaped slaves.229 A prominent example of

223 David Eltis & Martin Halbert, Assessing the Slave Trade: Estimates, THE TRANS-ATLANTIC SLAVE TRADE DATABASE (2013), http://slavevoyages.org/assessment/estimates; ANDREWS, supra note 8, at 13-18. For a comprehensive overview of the history of the slave trade in Latin America, see HERBERT S. KLEIN, THE ATLANTIC SLAVE TRADE (2d ed. 2010). 224 Reales 2008, supra note 20, at 33. 225 ANDREWS, supra note 8, at 13-16. 226 MANUEL LUCENA SALMORAL, LEYES PARA ESCLAVOS: EL ORDENAMIENTO JURÍDICO SOBRE LA CONDICIÓN, TRATAMIENTO, DEFENSA Y REPRESIÓN DE LOS ESCLAVOS EN LAS COLONIAS DE LA AMÉRICA ESPAÑOLA [LAWS FOR SLAVES: THE LEGAL FRAMEWORK ON THE CONDITION, TREATMENT, DEFENSE, AND REPRESSION OF THE SLAVES IN THE COLONIES OF SPANISH AMERICA] 142 (2000). 227 Id. at 152-57. 228 ANDREWS, supra note 8, at 12. 229 Eduardo Silva, Black Abolitionists in the Quilombo of Leblon, Rio de Janeiro: Symbols, Organizers, and Revolutionaries, in BEYOND SLAVERY: THE MULTILAYERED LEGACY OF AFRICANS IN LATIN AMERICA AND THE CARIBBEAN 109, 110 (Dariél J. Davis ed., 2007) (referring to the Brazilian context and adding that other forms of resistance in Brazil included suicide, sabotage, and rebellion); SALMORAL, supra note 226, at 275 (stating that in the 53

maroons is the Garifuna people, who now live across several Central American countries and make up the community of Orinoco. In an attempt to discourage fugitive acts of slaves, the colonizing powers adopted several legislative measures, such as the “Códigos Negros” [the

Black Codes] in Spanish Latin America.230 Issued in the late eighteenth century by the Spanish

Crown, these Codes required slave owners to ensure a minimum level of humane treatment of the slaves to avoid their flight.

Since their arrival to the region, enslaved Africans physically and culturally mixed with

Europeans and indigenous populations of Latin America. While the physical mixing resulted from biracial relationships, cultural mixing was the consequence of the slave owners’ policy to acquire slaves from different African cultures and impose cultural values of the European colonial powers on these slaves. The slave owners forced them to learn a European language and convert to Christianity.231 Despite this process of acculturation, African slaves and their descendants reproduced African beliefs and behaviors that helped them resist and survive in a dominantly European society.232 For instance, some Afro-descendants distinguished themselves from other cultures through their religious practices, syncretizing different African beliefs with

Christianity.233 As the process of racial mixing continued, the European colonial powers became

Spanish colonies, manumission, which is the payment of the slave’s purchase price by the slave to his or her owner, was the most important and effective way for slaves to free themselves). The term “maroon” stems from the Spanish word “cimarrón,” which originally referred to fugitive cattle (Richard Price, Introduction: Maroons and their Communities, in MAROON SOCIETIES: REBEL SLAVE COMMUNITIES IN THE AMERICAS 1, 1 fn.1 (Richard Price ed., 3 ed. 1996)). Some of these maroon settlements have survived until today, upholding specific cultural characteristics of clear African origin (id. at 1, 28). An example thereof is the community of San Basilio de Palenque in Colombia. 230 SALMORAL, supra note 226, at 295. 231 KLEIN, supra note 223, at 179. 232 Id. at 179-180; see also SALMORAL, supra note 226, at 215. 233 KLEIN, supra note 223, at 181 (stating that Afro-descendants gradually integrated deities of different African origins, hiding these deities from the European elite by disguising them as folk and lay practices common in Catholicism). The European elites permitted such syncretization in the erroneous belief that it would divide the Afro-descendants and discourage them from developing a united identity along racial lines. Instead, the Afro- descendants used this tool to legitimatize and transmit African beliefs as well as organize their communal life (id. at 182). The Garifuna community of Orinoco illustrates this syncretization, combining spiritual rituals from African 54

increasingly concerned with the status of African slaves and their descendants within the colonial societies and legal systems.234 They ultimately adopted laws on racial and color classifications, defining the hierarchical position of an individual within society in accordance to skin color.235

This focus on the individuals’ skin color followed from the realization of European colonial powers that they were a minority in the colonial societies and needed to justify their power over indigenous and Afro-descendant populations.236 In Spanish America, this law was called the

Law of the Indies and established a system of castes with enslaved Africans in the lowest caste

237 and the Spaniards at the top of the social scale. The law’s emphasis on skin color marked “a considerable increase in race and colour prejudice”238 in the colonial societies and structured

Latin America along racial lines.

After the Abolition of Slavery: Racial Stratification in the New Latin American Republics

In the nineteenth century, the colonies in Latin America gained independence from their

European powers, forming new republics and gradually abolishing slave trade and slavery.239

With the abolition of slavery in the new republics, all societal groups—European-descendants, indigenous peoples, Afro-descendants, and racially mixed people—were theoretically recognized as equal before the law. However, they were not granted equality in practice. European- descendant elites governing the new republics did not change the mechanisms of exclusion and

cultures with Christianity and practicing these rituals until today (see Human Rights Claims of the Community of Orinoco). 234 COTTROL, supra note 8, at 36-37. 235 Id. at 36-42 (adding that the social realities were however more complex than the classifications established by this law because the social status of a person was not exclusively linked to race and skin color. For instance, the indigenous were superior to the African slaves, but, unlike the slaves, they did not form part of the Spanish society). 236 Id. at 37. 237 Id. at 37-38. 238 JUAN COMAS, RACIAL MYTHS 7 (1951). 239 ANDREWS, supra note 8, at 55-67. Colombia gained independence from Spain in 1810 and abolished slavery in 1852; the Federal Republic of Central America, which included today’s territories of Guatemala, El Salvador, Honduras, Nicaragua, and Costa Rica, became independent in 1821, and abolished slavery in 1824 (id. at 57). 55

stratification created by the colonial legal systems.240 Instead of striving for real equality, the new republics adopted the pseudoscientific eugenics rhetoric, which originated in Europe between the sixteenth and eighteenth century, to justify the inferiority of indigenous peoples and

Afro-descendants even after the abolition of slavery.241 These new States viewed the people of

African descent as a major obstacle to become “modern” and “civilized.” Subsequently, they implemented policies to dilute blackness and “improve the race.”242

Latin American States adopted different “race-improving” policies. Some States sought to “whiten” the society by actively promoting European immigration (blanqueamiento). Where blanqueamiento was not successful, States turned to celebrate the racial blending of Europeans, indigenous peoples, and Afro-descendants, as a symbol of national pride (mestizaje).243 While the specific implementation of blanqueamiento and mestizaje varied in Latin American States, these strategies commonly resulted in Afro-descendants and elements of African cultures becoming negated.244 Latin American States reinforced the effects of the “race improving” strategies by omitting questions on race in the national population censuses.245 These practices combined rendered Afro-descendants largely invisible in their societies.

240 Martin Hopenhayn & Alvaro Bello, Discriminación étnico-racial y xenofobia en América Latina y el Caribe [Ethnic-Racial Discrimination and Xenophobia in Latin America and the Caribbean], CEPAL POLÍTICAS SOCIALES, May 2001, at 1, 10. The situation at Nicaragua’s Atlantic coast differed. The Afro-descendant communities prospered after the British colonizers formally left in the nineteenth century as they entered commercial relationships with North Americans, gaining economic and social influence (Peter Sollis, The Atlantic Coast of Nicaragua: Development and Autonomy, 21 J. LAT. AMER. STUD. 481, 484-85 (1989)). During this time, the Garifuna people settled in the region (see infra The Garifuna’s History of Migration). 241 PETER WADE, RACE AND ETHNICITY IN LATIN AMERICA 31 (2d ed. 2010). 242 NANCY LEYS STEPAN, THE HOUR OF EUGENICS: RACE, GENDER, AND NATION IN LATIN AMERICA 135, 170 (1991). 243 TANYA KATERI HERNANDEZ, RACIAL SUBORDINATION IN LATIN AMERICA 34-38 (2013) (explaining that the blanqueamiento was most successful in Argentine, Chile, the southern part of Brazil, and Uruguay). It was in particular after 1930 when several Latin American States recognized that the strategy of blanqueamiento did not have the intended result in their society and shifted toward promoting mestizaje as the new national identity (ANDREWS, supra note 8, at 165). 244 See BELLO & RANGEL, supra note 221, at 34-37. 245 HERNANDEZ, supra note 243, at 43. 56

States’ blanqueamiento and mestizaje strategies resulted in the commonly echoed myth that Latin America viewed all citizens as equal and overcame the racial stratification of society that the European colonial powers had implemented through the Law of the Indies.246 Latin

American States considered themselves “racial democracies” where racial discrimination no longer existed, and claimed societies were not divided on racial grounds. In reality, the notion of racial democracy was based on the assumption that European lineage enjoyed greater value than the African or indigenous heritage.247 As such, it further marginalized Afro-descendants in society because it did not recognize their existence, let alone respect their different cultures and perspectives. Instead, it praised the European heritage in society and depicted other racial and ethnic population groups as socially inferior. As a result, many Afro-descendants became reluctant to identify themselves as a person of African descent.248 In many parts of Latin

America, this reluctance has continued until today.249

Attempts to Overcome the Myth of Racial Democracy Through Legal Tools

Since the 1980s, Afro-descendants have been increasingly vocal in advocating for their rights and raising issues of racial discrimination, subordination, and identity.250 New social movements have gained momentum in Latin America and prompted States and international institutions to take various measures to counter the marginalization of the region’s Afro- descendants. These actors have moved away from the rhetoric of racial democracy towards acknowledging the existence of different ethnic and racial groups and the socio-economic marginalization, and the human rights abuses they are exposed to. From a legal perspective,

246 COTTROL, supra note 8, at 120. 247 Dulitzky, supra note 24, at 85, 99. 248 COTTROL, supra note 8, at 201. 249 Id. 250 Id. at 266. 57

States have adopted legislative changes to address racial discrimination, land rights, or lack of political representation.251 U.N. and Inter-American human rights actors have increased Afro- descendants’ visibility through conference declarations and mechanisms that are mandated to monitor the States’ compliance with their human rights obligations towards Afro-descendant populations.252

Domestic Legal Developments towards Empowering Afro-descendants

In the 1980s and 1990s, indigenous peoples and Afro-descendants voiced demands for respect, remedies, and protection of their cultural distinctiveness to overcome historical marginalization. As a response to these claims and in an attempt to legitimize the governments’ political power after eras of military dictatorships and conflict, many Latin American States reformed their constitutions and domestic laws, adopting specific legal frameworks for indigenous peoples and Afro-descendants.253 While the design of these legal schemes varied between States, the rights afforded to the Afro-descendant population can generally be divided into four categories. These categories included collective land and cultural rights for those communities with a distinct culture, affirmative action programs, symbolical recognition of

Afro-descendants’ contributions to State-building processes in the constitution, and legislation prohibiting racial discrimination.254 Other States have lacked the political will to recognize

Afro-descendants at constitutional level or failed to take any legislative measures protecting them.255

251 Id. at 282-83. 252 See infra Legal Developments in the U.N. and Inter-American Human Rights Systems. 253 DONNA LEE VAN COTT, THE FRIENDLY LIQUIDATION OF THE PAST 2-3 (2000). For an overview of the rights granted to indigenous peoples during the multicultural constitutional reforms, see Rodolfo Stavenhagen, Indigenous Peoples and the State in Latin America: An Ongoing Debate, in MULTICULTURALISM IN LATIN AMERICA: INDIGENOUS RIGHTS, DIVERSITY AND DEMOCRACY 24 (Rachel Sieder ed., 2002). 254 COTTROL, supra note 8, at 282-83. 255 Hooker, supra note 170, at 109 (mentioning Mexico and Venezuela as examples). 58

The legal frameworks applicable to Afro-descendants reveal how Latin American States view people of African descent vis-à-vis indigenous people. Most Central American States, including Nicaragua, do not differentiate between the two population groups, affording them the same collective cultural and land rights.256 Other States, such as Brazil and Colombia, distinguish between the indigenous and Afro-descendant population, providing a more comprehensive legal protection to indigenous peoples.257 For Afro-descendants, these States have adopted limited collective land rights, cultural rights, or affirmative action programs to remedy and overcome racial discrimination. Thus, in cases where States have perceived Afro- descendants, or at least the communities residing in certain geographic areas, as ethnically different to the majority mestizo population, Afro-descendants have gained special culture and land-related rights similar or even identical to indigenous peoples. Afro-descendants who cannot demonstrate culturally distinct characteristics do not enjoy such rights.258 These different layers of legal protection at domestic levels have created “a hierarchy of rights claimants both with the

Afro-descendant community and between Afro-descendants, indigenous peoples and other ethno-cultural groups.”259 Such interpretation resembles the approach of the Inter-American human rights system, which recognizes collective land rights for those Afro-descendant communities that can prove certain cultural characteristics.260 Thus, domestic legal systems across Latin America have granted different rights to Afro-descendants depending on whether they view these populations groups as similar to indigenous peoples or not.

256 Id. at 109. 257 Id. at 108-09. 258 Juliet Hooker, Negotiating Blackness within the Multicultural State: Creole Politics and Identity in Nicaragua, in COMPARATIVE PERSPECTIVES ON AFRO-LATIN AMERICA 264, 268 (Kwame Dixon & John Burdick eds., 2012). 259 Corinne Lennox, Mobilising for Group-Specific Norms: Reshaping the International Protection Regime for Minorities 184 (July 2009) (PhD thesis, London School of Economics and Political Science), http://etheses.lse.ac.uk/2191/. 260 See supra Afro-Descendants in the Jurisprudence of the Inter-American Human Rights System; see infra Chapters 4-6. 59

Legal Developments in the U.N. and Inter-American Human Rights Systems

At the turn of the millennium, two U.N. conferences raised international awareness of the marginalization of Afro-descendants. In 2000, the U.N. organized a series of regional conferences as preparatory events for the World Conference against Racism held the following year in Durban, South Africa. In Latin America, this preparatory conference was called the

Regional Conference of the Americas and took place in Santiago de Chile, Chile, on December

4-7, 2000. It had diverse implications on the activities of Afro-descendant social movements, international organizations, and States across the region.261 In particular, it introduced the now commonly used epithet “Afro-descendants,” providing the relevant actors with a common language without resorting to the racially charged term “black.”262 In the conference’s final declaration, participating States and non-profit organizations officially acknowledged the detrimental effects that slavery and the colonial stratification of society according to skin color have had on Afro-descendants.263 It highlighted that these practices have resulted in contemporary forms of racial discrimination against Afro-descendants and marginalized them in socio-economic terms.264 The conference declaration affirmed several cultural rights of Afro- descendants that are similar to those afforded to indigenous peoples, including the right to cultural identity, ancestral lands, and participation in society at large.265 Additionally, it explicitly requested States to implement affirmative action programs266 and to resolve disputes over Afro-descendants’ traditional territories.267 In 2001, the World Conference against Racism

261 Dariél J. Davis et al., Pan-Afro-Latin African Americanism Revisited: Legacies and Lessons for Transnational Alliances in the New Millennium, in AFRODESCENDANTS, IDENTITY, AND THE STRUGGLE FOR DEVELOPMENT IN THE AMERICAS 19, 31 (Bernd Reiter & Simmons Eison Simmons Kimberly eds., 2012). 262 Id. 263 Santiago Declaration, supra note 120, at ¶ 28. 264 Id. 265 Id. at ¶ 27. 266 Id. at ¶ 105. 267 Id. at ¶ 116. 60

largely reiterated these affirmations in its final declaration.268 While the final declarations of both the Regional Conference of the Americas and the World Conference Against Racism are not legally binding, they demonstrate the participating States’ commitment to grant certain rights to their Afro-descendant population.

International human rights organizations began to address the Afro-descendant population in the aftermath of the World Conference against Racism. For instance, in 2002, the former U.N. Human Rights Commission, which was replaced by the U.N. Human Rights

Council, established the Working Group of Experts on People of African Descent.269 This

Working Group has the mandate to, inter alia, “study the problems of racial discrimination faced by people of African descent living in the diaspora”270 and “elaborate short-, medium- and long- term proposals for the elimination of racial discrimination against people of African descent.”271

The Working Group has only occasionally addressed cultural human rights of Afro-

268 Durban Declaration, supra note 121, at Declaration ¶¶ 13-14, 32-35, Programme of Action ¶¶ 4-14. It is noteworthy that, in 2009, the Durban Review Conference took place with the purpose of, inter alia, assessing the implementation of the Durban Declaration. It concluded that manifestations of racism and racial discrimination persist in many areas, and stronger political commitment is required to effectively put these manifestations to an end (Durban Review Conference, Adoption of the Final Documents and the Report of the Durban Review Conference, Section 1 ¶¶ 1-28, U.N. Doc. A/CONF.211/L.1 (April 14, 2009)). 269 Commission on Human Rights Res. 2002/68, at 8 (April 25, 2002). The U.N. Human Rights Council has periodically renewed the mandate of the working group with the last extension until 2020 (Human Rights Council Res. 36/23, U.N. Doc. A/HRC/RES/36/23 (Oct. 9, 2017)). Other U.N. bodies that have dealt with the human rights situation and marginalization of the Afro-descendant population include the U.N. Committee on the Elimination of Racial Discrimination (Comm. on the Elimination of Racial Discrimination, General Recommendation No. 34 adopted by the Committee: Racial Discrimination against People of African Descent, U.N. Doc. CERD/C/GC/34 (Oct. 3, 2011) [hereinafter CERD General Recommendation No. 34]); the U.N. Independent Expert on Minority Issues (Rita Izsák (Independent Expert on Minority Issues), Rep. on Ensuring the Inclusion of Minority Issues in Post-2015 Development Agendas, ¶ 85, U.N. Doc. A/HRC/25/56 (Jan. 6, 2014)); the Indigenous Peoples and Minorities Section of the U.N. Office of the High Commissioner for Human Rights (High Comm’r for Human Rights, Annual Rep. on its Nineteenth Session, ¶ 31, U.N. Doc. A/HRC/19/27 (2011)); and the U.N. Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance (Doudou Diène (Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance), Mission to Colombia, E/CN.4/2004/18/Add.3 (Feb. 24, 2004)). 270 Human Rights Council Res. 9/14, U.N. Doc. 2008/HRC/RES/9/14, at 8a (Sept. 18, 2008). 271 Id. at 8f. 61

descendants.272 In the Americas, the OAS has mirrored the U.N. approach to address the situation of the Afro-descendants, establishing the Rapporteurship on the Rights of Afro-

Descendants and against Racial Discrimination in 2005.273 This Rapporteurship is mandated to highlight the obligations of States to respect all human rights of Afro-descendants, eradicate racial discrimination, evaluate the related obstacles States face, issue recommendations to overcome such obstacles, and assess the application of these recommendations at the domestic level.274 In 2013, the OAS adopted the Inter-American Convention against Racial

Discrimination, which grants equality before the law, protects against racism and racial discrimination, and defines corresponding State obligations.275

Demographics of Afro-Descendants in Latin America

Afro-descendants, albeit sharing the common history of slave trade and slavery, are a socially, demographically, and economically heterogeneous group.276 The spectrum varies from isolated communities residing in rural areas who practice traditions and religions inherited from

272 E.g., Human Rights Council, Rep. of the Working Group of Experts on People of African Descent on its Twelfth Session, U.N. Doc. A/HRC/24/52 (July 15, 2013) (urging States to “[p]romote and protect the culture, identity and tangible and intangible heritage of the continent of Africa and people of African descent, and keep, maintain and foster [the Afro-descendants’] mode of life and forms of organization, languages and religious expressions.”). 273 Inter-Am. Comm’n on Human Rights, IACHR Creates Special Rapporteurship on the Rights of Persons of African Descent, and Racial Discrimination (Press Release 03/05) (Feb. 25, 2005), http://www.oas.org/en/ media_center/press_release.asp?sCodigo=IACHR-03. 274 Id. 275 Articles 2-14 Inter-American Convention against Racial Discrimination. The Inter-American Convention against Racial Discrimination entered into effect only in 2017, thirty days after two States, namely Costa Rica and Uruguay, ratified it (Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance (A- 68): Signatories and Ratifications, ORG. OF AM. STATES, http://www.oas.org/en/sla/dil/inter_american_treaties_A- 68_racism_signatories.asp (last visited May 6, 2020)). As of May 2020, Colombia and Nicaragua have not ratified the Convention yet, and it is therefore not applicable to them (id.). It is however noteworthy that Latin American States have widely ratified the CERD, which is the counterpart of the Inter-American Convention against Racial Discrimination at U.N. level (High Comm’r for Human Rights, Ratification Status for CERD - International Convention on the Elimination of All Forms of Racial Discrimination, http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx? Treaty=CERD&Lang=en (last visited Feb. 7, 2017)). 276 Sergio Costa, Perspectivas y políticas sobre racismo y afrodescendencia en América Latina y el Caribe [Perspectives and Politics on Racism and African Descent in Latin America and the Caribbean], in SENTIDO DE PERTENENCIA EN SOCIEDADES FRAGMENTADAS: AMÉRICA LATINA EN UNA PERSPECTIVA GLOBAL 245, 246 (Martín Hopenhayn & Ana Sojo eds., 2011). 62

their African ancestors to middle-class Afro-descendants living in urban locations who have assimilated with the overall national populations.277 Afro-descendants are linguistically diverse.

Some communities speak languages of Creole or—like the Garifuna people—of African origin, while the majority has adopted the dominant European language of their territorial States.

Nonetheless, most Afro-descendants share that they live in a marginalized position in society and are victims of structural racism. While accurate statistics are difficult to obtain, the available figures nonetheless reflect the precarious living conditions of Afro-descendants.278

Disclaimer about Demographic Data on Afro-descendants

Demographic information about the Afro-descendant population is either limited, or in some countries unavailable.279 This is primarily a result of the historical processes of blanqueamiento and mestizaje, which denied the existence of African heritage for centuries.280

Until the 2000s, most Latin American States omitted questions about race or ethnicity in their national censuses. This has significantly changed. Most censuses currently incorporate ethno- racial variables in their statistics.281 While these developments give Afro-descendants official statistical recognition, there are numerous other factors preventing full visibility of Afro- descendants. The current census questions ask citizens to self-identify as a certain racial or ethnic group. Although such questions comply with international standards, Latin Americans are frequently reluctant to identify as being of African descendant because they wish to appear

277 Id. 278 The difficulties in obtaining accurate demographic statistics about Afro-descendants are the result of historical processes of racial discrimination and Afro-descendants’ reluctance to self-identify (see supra Attempts to Overcome the Myth of Racial Democracy Through Legal Tools). 279 THE WORLD BANK, supra note 14, at 48. 280 Corinne Lennox & Carlos Minott, Inclusion of Afro-Descendents in Ethnic Data Collection: Towards Visibility, 18 INT’L J. ON MINORITY & GROUP RTS. 257 (2011). 281 Id. 63

“white” or of European descent to ascend in social class.282 Additionally, studies show that geographic location, socio-economic status, and cultural identity also factor in the self- identification process.283 For example, Brazilians with higher income are more willing to self- report as Afro-descendant than low-income Brazilians, which seems to indicate that the former benefit from improved welfare.284 The Afro-descendant Miskito population in Central America generally identifies as indigenous rather than Afro-descendant.285 Thus, Afro-descendant self- identification is subject to the people’s fluctuating perceptions about race, ethnicity, and identity, limiting the accuracy of the available demographic data.286 The following elaborations on Afro- descendants’ demographics should be read with consideration of these challenges.

Population Estimates

Afro-descendants reside in virtually every state of Latin America and the Caribbean.

While they are the majority population in most Caribbean States, Afro-descendants are a numerical minority in the rest of the region; the only exception hereto are Venezuela with fifty- five percent Afro-descendant population and Brazil with fifty-one percent.287 In 1998, approximately 150 million Afro-descendants accounted for in Latin America and the Caribbean, amounting to approximately one third of the region’s entire population.288 A World Bank report of 2018 showed, as of 2015, there were 133 million Afro-descendants in sixteen Latin American

282 Alvaro Bello & Marta Rangel, Equity and Exclusion in Latin America and the Caribbean: The Case of Indigenous and Afro-descendant Peoples, CEPAL REV., Apr. 2002, at 39, 48. 283 THE WORLD BANK, supra note 14, at 52. 284 Id. 285 Jane Freeland, Nicaragua, in NO LONGER INVISIBLE: AFRO-LATIN AMERICANS TODAY 181, 181 (Minority Rights Grp. ed., 1995). 286 THE WORLD BANK, supra note 14, at 52. 287 Id. at 51; see also Hopenhayn & Bello, supra note 240, at 23. 288 Bello & Rangel, supra note 282, at 49; see also Nestor Gandelman et al., Traditional Excluding Fources: A Review of the Literature, in OUTSIDERS? THE CHANGING PATTERNS OF EXCLUSION IN LATIN AMERICA AND THE CARIBBEAN 15, 17 (Gustavo Marquez et al. eds., 2007). 64

States; this was roughly one quarter of the States’ entire population.289 The report also reveals that about eighty-two percent of the Afro-descendants in these States reside in urban areas.290

This is comparable to the region’s average of eighty percent of urban population.291 Thus, these studies reveal that Afro-descendants constitute an important population group in Latin America that primarily resides in urban areas.

Socio-economic and Political Situation

In the 2000s, many Latin American States witnessed economic growth and a decrease in the poverty rate.292 While Afro-descendants benefitted from these developments, studies indicate that they still remain overrepresented among the poorest in a region characterized by the world’s greatest disparities in wealth distribution.293 In 1998, Afro-descendants made up forty percent of the region’s poorest while representing only thirty percent of the total inhabitants.294

Similarly, the 2018 World Bank report stated that Afro-descendants constituted forty-seven percent of the moderate poor and forty-nine percent of the extreme poor in six Latin American

States.295 Afro-descendants are therefore overrepresented among the region’s economically marginalized populations.

289 THE WORLD BANK, supra note 14, at 56. The 16 countries include Venezuela, Brazil, Colombia, Cuba, Panama, Uruguay, Costa Rica, Ecuador, Nicaragua, Peru, Honduras, Mexico, Argentina, Bolivia, El Salvador, and Paraguay (id. at 57). 290 Id. at 20. 291 Id. 292 Id. at 70. 293 Id. at 71; Paul Gootenberg, Latin American Inequalities: New Perspectives from History, Politics, and Culture, in INDELIBLE INEQUALITIES IN LATIN AMERICA 1, 1 (Paul Gootenberg & Luis Reygadas eds., 2010). The enormous social gaps are not a new phenomenon in Latin America. Since the beginning of the European colonialization in the sixteenth century, extreme inequalities have dominated Latin America (DAVID DE FERRANTI ET AL., INEQUALITY IN LATIN AMERICA: BREAKING WITH HISTORY? 110 (2004)). 294 Néstor Gandelman et al., supra note 288, at 17. 295 THE WORLD BANK, supra note 14, at 71. A person living in moderate poverty must survive on USD 3.2 per day; a person living in extreme povery must live on USD 1.9 (THE WORLD BANK, POVERTY AND SHARED PROSPERITY 2018: PIECING TOGETHER THE POVERTY PUZZLE (2018), https://openknowledge.worldbank.org/bitstream/handle/10986/30418/9781464813306.pdf). 65

As a result of poverty, Afro-descendants are frequently exposed to difficult socio- economic living conditions. They often lack access to basic sanitary installations, clean drinking water, and adequate nutrition, leading to preventable health issues and higher infant and child mortality.296 In addition, Afro-descendants have difficulties in attaining the same education level as their non-Afro-descendant counterparts, contributing to higher poverty rates.297 While States have made the education system available across virtually the entire region, and Afro- descendants have benefitted from improved access to primary and secondary schools, there are still significant gaps in attaining education.298 Afro-descendants frequently do not have access to quality primary and secondary education. They often attend public schools due to lack of finances, where the quality of professors and teaching materials are inadequate.299 Low educational levels impact Afro-descendants’ access to the labor market.300 Afro-descendants face significantly higher unemployment rates than non-Afro-descendants.301 Many of them work in the informal sector or as low-skilled professions. 302 They are less likely to be hired for managerial or technical jobs and white-collar office positions.303 The wage gap between Afro- descendants and racially mixed populations is also significant. Afro-descendants earn less for the same positions, even after controlling for factors such as work experience, education, and demographics.304 Scholars argue that the obstacles facing Afro-descendants (and indigenous

296 Marta Rangel, Propuestas para el análisis comparado de temas destacados de los derechos humanos de los afrodescendientes en América Latina [Proposals for the Comparative Analysis of Specific Topics Related to Human Rights of Afro-Descendants in Latin America], in POBLACIÓN Y DESARROLLO at 1, 30-31 (Econ. Comm’n for Latin Am. and the Caribbean, Ser. No. 59, 2005); MARGARITA SANCHEZ & MAURICE BRYAN, MINORITY RIGHTS GRP. INT’L, AFRO-DESCENDANTS, DISCRIMINATION AND ECONOMIC EXCLUSION IN LATIN AMERICA 18 (2003). 297 THE WORLD BANK, supra note 14, at 80, 88. 298 Id. at 88. 299 HERNANDEZ, supra note 243, at 78; THE WORLD BANK, supra note 14, at 93. 300 THE WORLD BANK, supra note 14, at 80. 301 Id. 302 Id.; see also ANDREWS, supra note 8, at 179. 303 Id.; see also ANDREWS, supra note 8, at 179. 304 THE WORLD BANK, supra note 14, at 82. 66

peoples) when entering the labor market lead to an aggregate loss of production and income that slows down the economic growth of the entire region.305

Across Latin America, Afro-descendants are underrepresented in public offices. As a result, they do not have access to decision-making processes that design public policies to improve their living conditions.306 The Afro-descendants’ lack of participation and representation in national politics has several underlying root causes. Afro-descendant politicians are generally reluctant to mobilize on racial grounds, and the general population is oftentimes unwilling to vote for black representatives due to racial prejudices.307 Additionally,

Latin American States have historically taken measures to limit the political influence of the poor and working class by implementing literacy requirements for suffrage.308 These factors have contributed to the fact that Afro-descendants typically have a limited say in the decision-making processes.

Two important root causes contributing to poverty and socio-economic marginalization are Afro-descendants’ concentration in underdeveloped regions and racial discrimination. A detailed discussion of these factors is beyond the scope of this dissertation. Nonetheless, it is worth mentioning that according to the 2018 World Bank report, Afro-descendants are frequently concentrated in less developed geographic areas where the infrastructure is weak and

State presence limited. This fact is one of the reasons for the gaps in socio-economic indicators and political participation between Afro-descendants and the racially mixed population.309

305 Jonas Zoninsein, The Economic Case for Combating Racial and Ethnic Exclusion, in SOCIAL INCLUSION AND ECONOMIC DEVELOPMENT IN LATIN AMERICA 41, 43 (Mayra Buvinić et al. eds., 2004). 306 Inter-Am. Comm’n on Human Rights, supra note 13, at ¶ 11. 307 COTTROL, supra note 8, at 207. 308 Id. 309 THE WORLD BANK, supra note 14, at 65. 67

Another factor contributing to Afro-descendants’ marginalization is racial discrimination.310

Racism and stereotypes against people of African descent have penetrated all aspects of daily life and become “informal expressions of everyday life that naturalize racial hierarchies and reinforce ethno-racial biases, from verbal interactions and humor to hiring practices and police profiling.”311 This situation has normalized racial discrimination in Afro-descendants’ daily life to the extent that both Afro-descendants and non-Afro-descendants are frequently not aware of it.312 Latin American societies still tend to associate visible European heritage with positive attributes, while indigenous and Afro-descendant appearance is generally regarded as correlating to negative qualities of a person, such as being criminal or lazy.313 These discriminatory attitudes against Afro-descendants can rarely be attributed to a specific perpetrator as they are ingrained in everyday life. This situation renders it particularly difficult to effectively combat racial discrimination as mere anti-racial discrimination laws do not suffice.314 These laws require the identification of a specific perpetrator to be prosecuted and punished. Since discrimination is ingrained in actions of both State and non-State actors, it becomes difficult to single out a perpetrator. Thus, racial discrimination contributes to exacerbating Afro- descendants’ marginalization in society.

The communities concerned exemplify the socio-economic and political marginalization of Afro-descendants. While their historical backgrounds and current living conditions are different, they both face challenges in protecting their traditional lands, having crimes in their

310 THE WORLD BANK, supra note 14, at 100; Alvaro Bello & Marcelo Paixão, Estado actual del cumplimiento de los derechos civiles, políticos, económicos, sociales y culturales de la población afrodescendiente en América Latina 46 (Econ. Comm’n for Latin Am. & the Caribbean, Preliminary Version, 2008). 311 THE WORLD BANK, supra note 14, at 100; see also ANDREWS, supra note 8, at 178. 312 THE WORLD BANK, supra note 14, at 100. 313 TEUN A. VAN DIJK, RACISM AND DISCOURSE IN SPAIN AND LATIN AMERICA 84 (2005) (arguing that such positive attributes include intelligence, politeness, and education, whereas non-white physical appearance is associated with being criminal, irresponsible, lazy, or backwarded). 314 See infra Chapter 4. 68

communities investigated by the police, and accessing the labor market. The following sections contextualize the communities in history and then describe their human rights claims that the field research revealed.

The Afro-descendant Community of Tierrabomba

The community of Tierrabomba is an impoverished Afro-descendant community in

Colombia’s Caribbean Sea. This community struggles to obtain land ownership, receive police assistance to investigate drug-related crimes, access clean and safe drinking water, or access employment opportunities.315 It is one of four Afro-descendant communities on the eponymous island located near Cartagena de Indias, Colombia. The community has a population of 2,276.316

Situated one mile southwest off the coast and accessible only by boat, the island belongs to the rural area of the Historic and Northern Locality of the municipality of Cartagena and falls within the city’s jurisdiction.317 The community of Tierrabomba is governed by a community council with seven members.318 They constitute the highest authority within the community.

Historic Significance of the Community

Due to its wealth of natural resources and location close to the continental shore, the island of Tierrabomba has played a fundamental role in the history of Cartagena and has contributed significantly to the prosperity of the city. In the sixteenth century, Cartagena emerged as a prosperous slave-trading post in the Caribbean coast with slave ships directly

315 See infra Human Rights Claims of the Community of Tierrabomba. 316 CIFRAS&CONCEPTOS, supra note 1, at 3. The community members, however, dispute this figure, claiming that as a consequence of the recent influx of Venezuelans in Colombia, the community’s population amounts to over 3,000 inhabitants (interview with Wilfran Jose Moncaris Padilla, supra note 3). The other communities on the island of Tierrabomba are Bocachica (4,369 inhabitants), Caño del Oro (1,955 inhabitants), and Punta Arena (529 inhabitants) (CIFRAS&CONCEPTOS, supra note 1). 317 OBSERVATORIO DE DERECHOS SOCIALES Y DESARROLLO, supra note 2, at 68. 318 Interview with Wilfran Jose Moncaris Padilla, supra note 3 (explaining that the community council includes a president, vice-president, legal representative, and four members). 69

arriving from Africa.319 Between 1580 and 1640, Cartagena constituted the principal entry point of enslaved Africans to South America, with the island of Tierrabomba serving as the port of disembarkation.320 The Spaniards used the island’s isolated location to select the slaves fit for sale and established nursing facilities for the new arrivals to recover from the transatlantic passage.321 These nursing facilities were operated by other enslaved Africans and constituted the first communities of Africans and their descendants on the island.322 Moreover, from the sixteenth to the eighteenth century the island of Tierrabomba became an important industrial site of Cartagena by generating the primary commodities for the construction and fortification of

Cartagena.323 The industrial activities resulted in an increase of the African population on the island and later in the consolidation of Afro-descendant communities.324

At the turn of the nineteenth century, the island of Tierrabomba became increasingly invisible.325 Construction activities in the city ceased with the end of colonialization and the need to fortify Cartagena, resulting in the closure of the industrial activities on the island.326

Deprived of their income as industrial workers, Afro-descendants of Tierrabomba shifted their economic activities to fishing and agriculture.327 During this time, Cartagena relocated its

319 RODOLFO SEGOVIA SALAS, LAS FORTIFICACIONES DE CARTAGENA DE INDIAS: ESTRATEGIA E HISTORIA [THE FORTIFICATIONS OF CARTAGENA DE INDIAS: STRATEGY AND HISTORY] 12-13 (1982), http://babel.banrepcultural.org/cdm/ref/collection/p17054coll10/id/3728/. 320 Sandra Higuera Gomez, El ecosistema cultural de litoral en Bocachica (isla de Tierrabomba - Cartagena): lineamientos básicos para la formulación de un plan especial de salvaguardia (PES) [The Cultural Ecosystem of the Coast in Bocachica (Island of Tierrabomba – Cartagena): Basic Outline for Formulating a Special Preservation Plan] 36 (July 2013) (unpublished Master thesis, Javeriana University) (on file with author); see also 1 CENTRO DE DOCUMENTACIÓN PARA LA HISTORIA Y LA CULTURA DE LOS AFRODESCENDIENTES EN EL CARIBE COLOMBIANO, UNIVERSITY OF CARTAGENA, DIÁSPORA AFRICANA Y ESCLAVITUD EN EL CARIBE COLOMBIANO [AFRICAN DIASPORA AND SLAVERY IN THE COLOMBIAN CARIBBEAN] 17 (2013) (stating that between 1595 and 1615, Cartagena was the only port in Spanish America authorized to trade African slaves). 321 Higuera Gomez, supra note 320, at 36. 322 Id. 323 Id. at 46. 324 Id. at 50. 325 Id. at 59-61. 326 Id. at 65. 327 Id. 70

leprosarium to the island, where it remained until around 1950.328 This attributed to the negative image of “the land of blacks and lepers”329 to the island.

At the beginning of the twentieth century, in 1936, the gunpowder magazine of the

Colombian military was relocated from Cartagena to a provisional establishment near the community.330 This transfer triggered property disputes between the Colombian military, municipality of Cartagena, and Afro-descendant communities on the island.331 These disputes have continued until today and lie at the heart of the principal human rights claim of the community of Tierrabomba, namely the claim to collective land ownership.332 Despite these disputes, in 1953 the Colombian military ordered the construction of a permanent gunpowder magazine in the center of the island.333

With the surge of the tourist industry in Cartagena at the beginning of the twentieth century, Cartagena initiated a process of embellishment of its colonial city center, attracting a steadily increasing number of tourists and foreign investors.334 However, the historical patrimony of the island of Tierrabomba, such as the military forts and factories established during colonial times, were excluded from these restoration and maintenance efforts and gradually fell apart.335 Cartagena’s neighborhood of Bocagrande—mainly inhabited by Afro-

328 SEGOVIA SALAS, supra note 319, at 76 (stating that the leprosium stayed on the island of Tierrabomba until 1948); Ana María Marín Morales, Historia de una expulsión: Macondo y la materialización de la exclusión [History of Exclusion: Macondo and the Materialization of the Exclusion], MAGUARÉ REV., 2016, at 247, 256-57 (stating that the island hosted the leprosium until 1950). The government of Cartagena chose Tierrabomba because of its isolated location from Cartagena, ignoring the fact that African slaves and their descendants already resided there and risked being infected (id. at 253). 329 Higuera Gomez, supra note 320, at 60. 330 Tania Patricia Vargas Cuadrado, Situación jurídica de la propiedad en Tierrabomba [Legal Property Situation in Tierrabomba] 66 (2007) (unpublished B.A. thesis, University of Cartagena) (on file with the Central Library of the University of Cartagena, Colom.). 331 Id. 332 See infra Ownership over Traditional Land. 333 Vargas Cuadrado, supra note 330, at 67. 334 Higuera Gomez, supra note 320, at 69. 335 Interview with Noel Enrique Cardales Morales, Community Leader, in Tierrabomba, Colom. (Aug. 3, 2017). 71

descendants—was turned into the primary site for real estate investment, which led to the forced expulsion of its Afro-descendant residents to Tierrabomba in the 1930’s.336 The city’s subsequent embellishment efforts culminated in Cartagena’s nomination as a UNESCO world heritage in 1984.337 Ever since, the tourist industry has brought economic prosperity to the city, rendering Cartagena one of the most visited places of Colombia. However, the community of

Tierrabomba has not participated in these developments.

The significant contributions of the community of Tierrabomba to Cartagena’s prestigious city center and military history have largely been ignored. This has rendered the community invisible despite the UNESCO recognition of Cartagena’s cultural heritage.338 The community has not benefited from the economic growth brought by tourists or industrial production sites of Cartagena. Instead, the large-scale fishing industry and environmental contamination of the bay of Cartagena have decreased the community’s income from their small- scale fishing activities.339 Mass tourism has pushed many community members into the informal labor sector because the tourist industry frequently does not recruit local workers.340 This situation has aggravated their precarious living conditions.341

336 Interview with Marta Morales, President of the Community Council of Tierrabomba, Director of the Fundación Dones de Misericordia, and Pastor of the Protestant Church, in Tierrabomba, Colom. (Aug. 5, 2017); KAREN ENGLE, THE ELUSIVE PROMISE OF INDIGENOUS DEVELOPMENT: RIGHTS, CULTURE, STRATEGY 265 (2010). The growth of the tourist industry concurred with the arrival of large-scale industrial projects in the region, contaminating important fishing sites surrounding Tierrabomba (Higuera Gomez, supra note 320, at 68). 337 Port, Fortresses and Group of Monuments, Cartagena, U.N., EDUC., SCI., AND CULTURAL ORG., http://whc.unesco.org/en/list/285 (last visited Oct. 8, 2018). 338 Higuera Gomez, supra note 320, at 71; see also interview with Wilfran Jose Moncaris Padilla, supra note 3 (“So sad, in Bogota they [the government] did not even know that this poplution existed. And I am talking about our ancestors of over 400 years.” (translation by the autor)). 339 Interview with Jhon Jairo Rodríguez, Community Leader and Fisherman, in Tierrabomba, Colom. (Aug. 3, 2017). 340 See infra Adequate Remuneration and Safe Working Conditions. 341 44.8% of the community members live in extreme poverty, and 44.3% live in moderate poverty (CIFRAS&CONCEPTOS, supra note 1, at 40). Moreover, the fact that 75.2% of the economically active working population declares to be self-employed indicates a high percentage of informal employment (id. at 39). 72

Human Rights Claims of the Community of Tierrabomba

Field research in the community of Tierrabomba revealed that the community has raised numerous human rights claims. These claims have related to ownership and effective use of the traditional land, access to justice to investigate and prosecute drug-related crimes in the community, adequate remuneration and safe working conditions, and clean and safe drinking water. 342 While the community also presents other demands, such improved access to health services or quality education, the community members emphasize aforesaid claims over the others. These claims are the subject of the subsequent legal analysis.343

Ownership over Traditional Land

The community of Tierrabomba seeks collective ownership of their traditional land on the island of Tierrabomba. Although the community has lived there for four centuries, they do not possess collective land title nor do their members have individual ownership over the land.344

Without legal title to their land, the community members fear being displaced from the island due to development of hotel complexes or other tourist projects.345 The community asserts that the government and private investors would not dispossess the inhabitants by force, but the State would purchase their homes and take advantage of the financial needs of the community.346

342 The human right claims of the communities concerned are based on the field research that the author conducted between July and August 2017. Since the field research is always a snapshot of a certain situation in a specific time, these human right claims might have changed in the meantime. 343 See infra Chapters 4-6. 344 This legal insecurity of the land ownership in Tierrabomba is emblematic for the rural Afro-descendant communities around Cartagena. Indeed, only four out of 28 communities have been granted collective land title (cf. ASOCIACIÓN DE CONSEJOS COMUNITARIOS DE CARTAGENA, AGENDA DE ETNODESARROLLO Y DIÁLOGO INTERCULTURAL PARA LA PAZ EN CARTAGENA DE INDIAS [AGENDA OF ETHNO-DEVELOPMENT AND INTERCULTURAL DIALOGUE FOR PEACE IN CARTAGENA DE INDIAS] 11-12 (2016), https://doctiktak.com/queue/fem- 3478cb4e2e8bbaf8f93c7e7a58071ab629367.html). 345 Interview with Luz Patricia Herrera Córdoba, Community Leader, in Tierrabomba, Colom. (July 31, 2017). Several community members draw a parallel between their current situation and the 1930s when the government of Cartagena displaced their ancestors from Bocagrande on the mainland to Tierrabomba to build Cartagena’s most luxurious district (id.; interview with Gelvis Godoy Córdoba, supra note 3 (“Here is what we call the second floor of Bocagrande. The mega development projects will come here. Everyone has their eyes on this island.”). 346 Interview with Gelvis Godoy Córdoba, supra note 3. 73

Community members who have already experienced such practices have been forced to move to the city of Cartagena. In Cartagena, they are deprived of access to the sea, their principal source of livelihood, and left to reside in impoverished urban environments.347

In 2013, the community council of Tierrabomba initiated a collective land titling process with the Agencia Nacional de Tierras (National Agency of Territories).348 The National Agency of Territories was unable to conclusively decide the community’s request because other parties, particularly the municipality of Cartagena, raised objections and claimed ownership over the communal territory. To address these objections, the National Agency of Territories conducted a property clarification procedure that should determine the legal ownership over the land. This procedure concluded in 2016, resulting in the territory Tierrabomba constituting legal property of the municipality of Cartagena.349 The collective land title could only be granted if Cartagena’s municipal council ceded its property rights to the community. 350 Since then, the recognition of the community’s collective land rights lies within the discretion of Cartagena’s municipal

347 Interview with Wilfran Jose Moncaris Padilla, supra note 3. 348 Interview with Mirla Aarón Freite, supra note 4. When the community initiated the land titling procedure in 2013, it also sought to protect its land against the planned transfer of Cartagena’s naval base to the island, which would have affected its ancestral territory. The government has however abolished this plan in June 2018 (D. 975/18, junio 7, 2018, D.O.). The National Agency of Territories is the government institution tasked with regulating land ownership in Colombia’s rural areas (Creación de la Agencia Nacional de Tierras [Establishment of the National Agency of Territories], AGENCIA NACIONAL DE TIERRAS, http://www.agenciadetierras.gov.co/la- agencia/creacion/ (last visited May 8, 2020)). 349 Interview with Mirla Aarón Freite, supra note 4. Additionally, this property clarification process unveiled that certain territories belong to individual investors; a fact that further complicates the land rights situation. These individuals became landowners only by an act of property cession by the municipal government, given the fact that the communal land pertains to the municipality of Cartagena. The inhabitants of Tierrabomba claim however that such acts are illegal since they jeopardize the community’s ancestral land rights (Irina Junieles, ¿Tierrabomba para quién? [Tierrabomba for Whom?], EL UNIVERSAL (Oct. 7, 2017), http://www.eluniversal.com.co/opinion/columna/tierrabomba-para-quien-13288). 350 Interview with Mirla Aarón Freite, supra note 4. Additionally, this property clarification process unveiled that certain territories belong to individual investors; a fact that further complicates the land rights situation. These individuals became landowners only by an act of property cession by the municipal government, given the fact that the communal land pertains to the municipality of Cartagena. The inhabitants of Tierrabomba claim however that such acts are illegal since they jeopardize the community’s ancestral land rights (Irina Junieles, supra note 349). 74

council.351 While the community could have appealed this decision, they were reluctant to do so for fear of reprisals and violence against the leaders.352 Many Afro-descendant communities across Colombia have witnessed threats against their leaders or even their assassinations when claiming collective land rights.353 Rather than appeal, the community has opted for a dialogue with the municipal council.354 Several community members express their skepticism for the prospect of such dialogue given the municipality’s slow progress to hold these discussions and its plan to develop tourist facilities on the communal land.355 At the time of writing the dialogue is still ongoing.

Protection of the Traditional Land from Erosion

Tierrabomba demands protection of the traditional land from erosion. The community believes the island’s continuous erosion jeopardizes access to and effective use of land.356 Large sectors of the village have disappeared in the water due to rising sea levels, big ship vessels entering into city harbors, and the construction of breakwaters along the continental coastline.357

351 Interview with Mirla Aarón Freite, supra note 4; interview with José Javier Moncaris Padilla, President of CORPODIS (Corporation for Integral and Sustainable Development in Tierrabomba), in Tierrabomba, Colom. (July 27, 2017). 352 Interview with Mirla Aarón Freite, supra note 4. 353 E.g., Tras liderar titulación colectiva de terrenos en Tierra Bomba, líder denuncia haber recibido amenazas de muerte [After Leading the Collective Land Titling in Tierrabomba, Leader Has Reportedly Received Death Threats], RCN RADIO (Dec. 13, 2017), https://www.rcnradio.com/colombia/caribe/tras-liderar-titulacion-colectiva- terrenos-tierra-bomba-lider-denuncia-haber-recibido-amenazas-muerte (stating that a leader of the community of Bocachica on the island of Tierrabomba received death threats after the community obtained the collective land title.). 354 Interview with Mirla Aarón Freite, supra note 4 (“To request the clarification, to ask for the nulification of the property clarification means to put the entire community in danger. And this is not what we want. It has happened with other communities in the country […] that the people fought, and it caused a massacre or the killing of community leaders. We do not want to pay one drop of blood for this. This is the land that we have defended despite the threats, but nontheless we will not go to the extreme and place the entire community in danger. We believe, we still believe in the institutions.” (translation by the author)). 355 Interview with Jhon Jairo Rodríguez, supra note 339; see also interview with Efrain Miranda Cañate, Lawyer Specialized in Land Rights of Afro-Descendant Communities at the Atlantic Coast, in Cartagena, Colom. (July 27, 2017) (“The government refuses to give the collective land title because, given its interests in the land, the government argues that it is not posible because they [the community] never had the property.” (translation by the author)). 356 Interview with Mirla Aarón Freite, supra note 4; interview with Marta Morales, supra note 336. 357 Interview with Jennesis Godoy, Community Leader, in Tierrabomba, Colom. (Aug. 5, 2017). 75

These changes have caused water currents to redirect towards and erode the island. This has particularly impacted the coastal areas of Tierrabomba.358 The community demands the State protect the land from erosion; otherwise any land-related rights would be meaningless.

Erosion has affected the island for the past two decades. In 2007, the First

Administrative Court of the Circuit ordered the municipal government of Cartagena to initiate coastal protection works within eighteen months of the decision,359 but the municipality delayed construction works.360 In the meantime, the erosion has accelerated. Between 2011 and 2017, erosion destroyed the embarkation area of the village and two streets next to this area with approximately 250 homes. It has forced many families to relocate further inland or to

Cartagena.361 In 2014, the municipal government of Cartagena initiated the construction of breakwaters in the community as part of an emergency plan.362 The breakwaters’ location, angle to the coast, and length were based on a study of 2009 that no longer reflected water currents at the time of construction.363 As a result, the breakwaters were ill-positioned and further accelerated the erosion of certain coastal areas in the community.364 In July 2016, erosion led to the island’s cemetery flooding and open tombs which exacerbated the sanitary conditions of the

358 Interview with Noel Enrique Cardales Morales, supra note 335; Marín Morales, supra note 336, at 264. 359 Interview with Noel Enrique Cardales Morales, supra note 335; Eleana Martelo Tirado, Piden activar plan de emergencia por crisis en cementerio de Tierrabomba [They Ask to Activate the Emergency Plan Due to the Crisis in the Cemetery of Tierrabomba], EL UNIVERSAL (Oct. 24, 2016), https://www.eluniversal.com.co/cartagena/piden- activar-plan-de-emergencia-por-crisis-en-cementerio-de-tierrabomba-238447-AXEU346457. 360 Interview with Mirla Aarón Freite, supra note 4. 361 Interview with Mirla Aarón Freite, supra note 4 (explaining that, because of the erosion, the community members have built houses further inland, in a myriad of cases erecting them on swampy soil that proved to be susceptible to floodings. Additionally, the constructions have not taken place in an organized manner, which has led to misaligned roads and houses); interview with Marta Morales, supra note 336. 362 Interview with Gelvis Godoy Córdoba, supra note 3. 363 Id.; interview with Mirla Aarón Freite, supra note 4. These community members criticize the study for failing to take into account their empirical knowledge of the water currents. They also assert that, as the currents have changed since the publication of the study, the construction works carried out at the time of writing this dissertation would not sufficiently protect the island. 364 Interview with Jennesis Godoy, supra note 357; interview with Gelvis Godoy Córdoba, supra note 3. 76

community.365 Despite a subsequent judicial decision ordering the reconstruction of the cemetery, the government has never fulfilled the judgement.366 Recognizing the failures to stop the erosion, the municipal council of Cartagena designed a large-scale coastal protection scheme.

However, due to a dispute between different governmental entities at the local and national levels, this scheme has not yet been implemented.367 Nevertheless, in August 2017 the municipality of Cartagena initiated the construction of additional breakwaters in an attempt to reduce the severe erosion.368 At the time of writing, the effects of these most recent protective structures are yet to be seen.

Access to Justice for Drug-Related Crimes

Micro-drug trafficking and drug consumption inside the community have flourished over the past years. Micro-drug trafficking is defined as the selling and buying of small amounts of drugs by low-level dealers at a local level.369 Tierrabomba has asked Colombian police forces to investigate and prosecute drug-related crimes involving their members.370 The police are stationed on the mainland and tasked to regularly visit the community to maintain law and order.

However, community inhabitants claim that police remain absent for several weeks at a time.371

On the polices’ rare patrols in the community, the community has asked the police to investigate

365 Eleana Martelo Tirado, En un plazo de 10 días Distrito deberá intervenir cementerio de Tierrabomba [Within 10 Days the District Should Intervene in the Cemetery of Tierrabomba], EL UNIVERSAL (Oct. 30, 2016), https://www.eluniversal.com.co/cartagena/en-un-plazo-de-10-dias-distrito-debera-intervenir-cementerio-de- tierrabomba-238890-DXEU346984. 366 Some community members assert that the government lacks political will to rebuild the cemetery at its original place since this area provides ideal conditions to build hotel and beach facilities (e.g., interview with Luz Patricia Herrera Córdoba, Community Leader, in Tierrabomba, Colom. (July 31, 2017)). 367 Interview with Gelvis Godoy Córdoba, supra note 3. 368 Interview with Mirla Aarón Freite, supra note 4. 369 GLORIA LAI, TRANSNAT’L INST., DRUGS, CRIME AND PUNISHMENT: PROPORTIONALITY OF SENTENCING FOR DRUG OFFENCES (2012), http://fileserver.idpc.net/library/Drugs-crime-and-punishment-Proportionality-of- sentencing%20(1).pdf. 370 Interview with Marta Morales, supra note 336. 371 Interview with Gelvis Godoy Córdoba, supra note 3. 77

the crimes and prosecute perpetrators.372 The police have failed to act. With the police acting as a silent bystander, an increasing number of teenagers and young adults have become addicted to drugs or have engaged in drug trafficking.373 Community inhabitants lament that the micro drug- trafficking has contributed to destroying the social cohesion of the community because it has caused the community youth to abandon their educational path and neglect their family and communal obligations.374

The community of Tierrabomba lacks governmental support to counter the local drug trafficking.375 The absence of the police from the community and police failure to act upon the community’s demands to investigate the crimes has prompted community members to collect detailed information about drug traffickers and drug dealing spots. Subsequently, community members have submitted such data to the police.376 Even upon receiving this information, the local police have not taken any action.377

Clean and Safe Drinking Water

The community of Tierrabomba seeks to obtain clean and safe drinking water. While the community has access to water, it is expensive and of poor quality.378 A private company delivers a tank of water to the island weekly and sells it to individual community members who operate water cisterns.379 These cistern owners sell the water to the other community members

372 Id. 373 Interview with Pablo Lienardo Barrio, Community Leader, in Tierrabomba, Colom. (Aug. 4, 2017); interview with Luis Alberto Herrera Cardales, supra note 6; interview with Mirla Aarón Freite, supra note 4. 374 Interview with Gelvis Godoy Córdoba, supra note 3. 375 Interview with Marta Morales, supra note 336; interview with Jennesis Godoy, supra note 357. Community members added that the governmental institutions have failed to provide support for countering drug addiction of community inhabitants. The municipality of Cartagena has not granted the affected inhabitants access to rehabilitation or other relevant programs to overcome their addiction despite the existence of such programs in the city (interview with Gelvis Godoy Córdoba, supra note 3). 376 Id. 377 Interview with Michel Martinez, Community Leader, in Tierrabomba, Colom. (Aug. 3, 2017). 378 Interview with Jhon Jairo Rodríguez, supra note 339. 379 Interview with José Javier Moncaris Padilla, supra note 351. 78

as a lucrative business.380 The community inhabitants of Tierrabomba have higher expenses for monthly water services than the inhabitants of Cartagena’s richest neighborhoods. In

Tierrabomba, a household with a monthly water consumption of 600 liters spends around

COP 180.000 per month (approximately USD 60)381 on water, whereas a high-income household in Bocagrande or El Castillo pays COP 168.000 (approximately USD fifty-six) for the same amount of water.382 However, Tierrabomba qualifies as a “stratum one” area in Colombia, meaning that the community’s income level is very low and their inhabitants benefit from subsidized utility services from the government.383 A stratum one household in Colombia should only pay COP 560 (approximately USD 0.1) for 600 liters of water.384 The water expenses of the community members of Tierrabomba are more than 320 times higher than the expenses of

Colombians of a similar income level who have access to water services provided by the government.

In addition to the high cost, the water is unfit for consumption. It contains bacteria, microbes, and traces of aluminum.385 During research for this dissertation, it was observed that

380 Interview with Gelvis Godoy Córdoba, supra note 3. 381 The exchange rate of the Colombian Peso (COP) and US Dollar used hereinafter refers to the exchange rate of July 24, 2017, which is the first day of the field research in the community of Tierrabomba. On July 24, 2017, the exchange rate was USD 1 = COP 3.021 (see Currency Converter, OANDA, https://www1.oanda.com/currency/converter/ (last visited Apr. 16, 2020)). 382 Interview with Jhon Jairo Rodríguez, supra note 339 (stating that five liters of water cost COP 1.500 (approx. USD 0.5). The minimum daily consumption of a family is 20 liters, which amounts to COP 6.000 (approx. USD 2), totaling COP 180.000 per month (approx. USD 60)) (interview with José Javier Moncaris Padilla, supra note 351; interview with Gelvis Godoy Córdoba, supra note 3; Tarifas agua de Cartagena [Water Tariffs of Cartagena], Aguas de Cartagena, https://www.acuacar.com/Oficina-virtual/Conozca-su-factura/Tarifas (last visited Apr. 16, 2020)). 383 In Colombia, the residential areas are classified in social stratums from one to six with stratum one being the social class with the lowest income. Generally, such classification of the neighborhood determines the price of the public services, including water and electricity. Hence, residents of a stratum one neighborhood pay less for these services than residents of other neighborhoods do for the same consumption. 384 In a regular stratum one household in Colombia, 600 liters of water cost COP 560 (approximately USD 0.1) (cf. Tarifas agua de Cartagena, supra note 382). It is worth noting that the minimum salary in Colombia amounted to COP 737,717 (USD 245) in 2017 (Salario mínimo en Colombia 2017 [Minimum Salary in Colombia 2017], PORTAFOLIO, https://www.portafolio.co/economia/empleo/salario-minimo-colombia-2017-109538 (last visited Apr. 16, 2020)). 385 Interview with José Javier Moncaris Padilla, supra note 351. 79

the community members still use this water for all activities including cooking, drinking, and sanitary needs. Unsurprisingly, many community members suffer health issues related to the poor water quality, particularly stomach problems and malnutrition.386

Adequate Remuneration and Safe Working Conditions

Tierrabomba community members demand adequate pay and safe working conditions.387

Most community members work in the informal sector as fishermen, motorboat drivers, street vendors, tourist guides, beach masseurs, domestic workers in the city, or in low-skilled professions in the community or the city, particularly private security guard services. Given the high living costs on the island, community members barely gain sufficient income to make a living.388 Additionally, the government has placed restrictions on fishing areas close to the coast.

This requires community members to go to the open sea to fish, but their boats are not equipped for such undertakings.389 Despite the lack of adequate equipment, the community’s fishermen still go fish in these areas, risking their lives to generate sufficient income for their families.390

Similarly, the increase in mass tourism has limited the community members’ possibilities to engage as motorboat drivers and guides for tourists. Many tourists rely on transportation and guides offered by hotels or travel agencies; there is no need for local providers.391 As a result of these developments, economic possibilities for the community are limited. The community

386 Id. (“We are convienced, convienced that the elderly people here die because of the water issue. For example, because of the stomach, because of stomach problems. Almost every time a person goes to the doctor it is because of the stomach, because of diarrhea.”). These health problems affect many aspects of the community members’ daily life, reducing, inter alia, the children’s ability to focus and perform well at school (id.). 387 Interview with Jhon Jairo Rodríguez, supra note 339; interview with Mirla Aarón Freite, supra note 4; interview with José Javier Moncaris Padilla, supra note 351. 388 Interview with Mirla Aarón Freite, supra note 4; interview with José Javier Moncaris Padilla, supra note 351. 389 Id. 390 Interview with Jhon Jairo Rodríguez, supra note 339. 391 Interview with Gelvis Godoy Córdoba, supra note 3. 80

demands work conditions that allow the inhabitants to generate sufficient income to cover their living expenses.

The Garifuna Community of Orinoco

The other Afro-descendant community studied to this dissertation is the community of

Orinoco. Its inhabitants almost exclusively identify as Garifuna.392 The Garifuna people are the most well-known Afro-descendant group. They live across Belize, Guatemala, Honduras, and

Nicaragua.393 Nicaragua has the smallest Garifuna population, with the community of Orinoco being one of six Garifuna communities located there.394 The community of Orinoco lies at the shores of the Pearl Lagoon in the country’s South Atlantic Autonomous Region (RAAS) and form part of the municipality of Pearl Lagoon.395 The city of Bluefields, the capital of RAAS and location of the region’s government, can be reached in about three hours by speedboat. The community is considered Nicaragua’s “capital of Garifuna culture”396 and has an approximate

392 Carlos Emilio Lopez, Cultura garífuna, Patrimonio Cultural Inmaterial de Nicaragua [Garifuna Cultura, Intangible Cultural Heritage of Nicaragua], FUNDACIÓN ILAM (Aug. 14, 2016), https://www.ilam.org/index.php/noticias/novedades-del-patrimonio/item/390-cultura-garifuna-patrimonio-cultural- inmaterial-de-nicaragua (adding that the total Garifuna population of Nicaragua amounts to approximately 5,000 people). 393 Lennox, supra note 259, at 183. The Garifuna people have obtained global recognizition for their unique traditions and riturals, which combine elements of African and indigenous cultures with Christian faith. In 2003, the UNESCO included the Garifuna people’s language, dance, and music in the Representative List of the Intangible Cultural Heritage of Humanity (Language, Dance and Music of the Garifuna, UNESCO INTANGIBLE CULTURAL HERITAGE, https://ich.unesco.org/en/RL/language-dance-and-music-of-the-garifuna-00001 (last visited Apr. 16, 2020)). 394 Maria Dolores Alvarez Arzate & Bayardo Gamez Montenegro, Recopilación del conocimiento oral de la lengua y cultura garífuna [Compilation of the Oral Language and Garifuna Culture], REV. PUEBLOS Y FRONTERAS DIGITAL, Dec. 2009–Jan. 2010, at 85, 91. The other Garifuna communities of Nicaragua are San Vicente, La Fe, Brown Bank, Wawashang, and Justo Point, all located near Orinoco. 395 Article 5 of the Constitution of Nicaragua grants autonomy to the Atlantic coastal region, dividing the coast into the South Atlantic Autonomous Region and the North Atlantic Autonomous Region [hereinafter Atlantic Autonomous Regions]. Both regions enjoy a certain degree of political and territorial autonomy from the central government of Nicaragua and are governed by a so-called Regional Council (see Ley No. 28, 7 Sept. 1987, Estatuto de la Autonomía de las Regiones de la Costa Atlántica de Nicaragua [Estatuto de Autonomía] [Law of the Autonomy of the Regions of the Atlantic Coast of Nicaragua], L.G., 30 Oct. 1987 [hereinafter Autonomy Law]). 396 Orinoco – Capital of Garifuna People, HOSTAL GARIFUNA, http://www.hostalgarifuna.net/index.php/en/live- garifuna-culture/orinoco-garifuna-capitol-in-nicaragua (last visited July 1, 2019). 81

population of 2,000 inhabitants. 397 The highest authority within the community is the communal government consisting of several community members.

The Garifuna’s History of Migration

The history of the Garifuna people “begins with a shipwreck”398 of two Spanish vessels transporting African slaves to the European colonies in Latin America in 1635.399 The Africans who survived this incident reportedly reached the shores of a Caribbean island now called St.

Vincent.400 The survivors later mixed with African run-away slaves and indigenous peoples from other Caribbean islands, forming the Garifuna people.401 During the seventeenth and eighteenth century, the Garifuna people managed to remain largely independent from European colonial powers. This led to the development of their own way of life on the island of

St. Vincent and pursuing trading activities in the Caribbean Sea.402 This independence changed in 1795 when the British ended Garifuna’s resistance to the colonial powers and imprisoned over

4,000 Garifuna.403 Roughly half of these prisoners died due to harsh conditions of internment while the other half were forcedly deported to Roatán island in present-day Honduras.404 Within a few months after their arrival, the former prisoners crossed to the Honduran mainland where

397 Carlos Emilio Lopez, Cultura garífuna, Patrimonio Cultural Inmaterial de Nicaragua [Garifuna Cultura, Intangible Cultural Heritage of Nicaragua], FUNDACIÓN ILAM (Aug. 14, 2016), https://www.ilam.org/index.php/noticias/novedades-del-patrimonio/item/390-cultura-garifuna-patrimonio-cultural- inmaterial-de-nicaragua (adding that the total Garifuna population of Nicaragua amounts to approximately 5.000 people). 398 CHRISTOPHER TAYLOR, THE BLACK CARIB WARS 15 (2012). 399 Id. at 16 (citing a document from the English government dated 1667, which is the earliest mention of the shipwreck of 1635); see also Carlos Agudelo, Movilidades y resistencias de los caribes negros: pasado y presente de los garífuna [Mobilitiy and Resistance of the Black Caribs: The Past and Present of the Garifuna], CS CIENCIAS SOCIALES, July–Dec. 2013, at 190, 196. 400 MARK ANDERSON, BLACK AND INDIGENOUS: GARIFUNA ACTIVISM AND CONSUMER CULTURE IN HONDURAS 3 (2009). 401 Id. at 3. 402 TAYLOR, supra note 398 (stating that the Garifuna proudly claim that they were never subject to slavery unlike other Afro-descendants populations of Latin America). 403 PAUL CHRISTOPHER JOHNSON, DIASPORA CONVERSIONS: BLACK CARIB RELIGION AND THE RECOVERY OF AFRICA 75, 77 (2007). 404 Thorne, Eva T., Land Rights and Garifuna Identity, NACLA REP. ON AMERICAS, Sept.–Oct. 2004, at 21, 21. 82

they gradually settled along the Caribbean coast of Central America including to what is now

Nicaragua.405

In the nineteenth century, the first Garifuna people settled in Nicaragua.406 They were attracted to the economic growth the Nicaraguan Atlantic coast experienced during that time under the increasing influence of U.S. investments.407 The leader of these first Garifuna immigrants was Jose Sambola, who the community members of Orinoco describe as an important and charismatic leader.408 He brought other Garifuna families from Honduras to the

Pearl Lagoon basin and established new communities between 1880 and 1912.409 The community of Orinoco, the youngest Garifuna settlement in Nicaragua, was established by Jose

Sambola’s son, John Sambola, in 1912.410 Under John Sambola’s leadership, the community grew quickly and turned into Nicaragua’s stronghold of Garifuna culture.411

A Honduran and Nicaraguan border dispute led to the end of Garifuna migration between the two countries. This incident marked the beginning of a period of isolation for the Nicaraguan

Garifuna from their family members in Honduras or elsewhere.412 Additionally, Creoles and

405 TAYLOR, supra note 398, at 148. It is noteworthy that the subsequent development of the Garifuna people has been influenced by the political, economic, social, and cultural situation of the respective State in which the particular Garifuna communities live. Given the focus of this dissertation, the remaining section focuses on the Garifuna communities in Nicaragua. 406 Freeland, supra note 285, at 192; see also Agudelo, supra note 399, at 216. 407 Dolores Figueroa Romero, Historia del pueblo garífuna en Nicaragua [History of the Garifuna People in Nicaragua], in REVITALIZACIÓN CULTURAL DEL PUEBLO GARÍFUNA DE LA COSTA CARIBE NICARAGÜENSE 20, 23 (Victor Obando Sancho et al. eds, 1999). 408 Interview with Kensy Sambola, Owner of the “Hostal Garifuna” and Community Leader, in Orinoco, Nicar. (June 23, 2017); William V. Davidson, The Garifuna of Pearl Lagoon: Ethnohistory of an Afro-American Enclave in Nicaragua, ETHNOHISTORY, 1980, at 31, 34. 409 Id. at 24, 29; Davidson, supra note 408, 34-38. There is however no consensus about the chronological order of foundation of the different settlements. While ethnohistorical studies mention St. Vincent as the first Garifuna community at the Pearl Lagoon basin (id. at 34), the members of the community of Orinoco assert that Brown Bank was established first (interview with Kensy Sambola, supra note 408). 410 Figueroa Romero, supra note 407, at 24 (adding that Orinoco may stand for “a place to row,” a name derived from the indigenous Arawak language); Davidson, supra note 408, at 34; interview with Kensy Sambola, supra note 408; interview with Victorina Lopez, Garifuna Language Teacher at the Primary School of Orinoco, in Orinoco, Nicar. (July 4, 2017). 411 Interview with Kensy Sambola, supra note 408. 412 Figueroa Romero, supra note 407, at 29. 83

Miskito living in the area stigmatized the Garifuna as culturally and racially inferior for speaking

Garifuna instead of English Creole or Miskito.413 The discrimination was furthered by U.S. corporations’ policies that only employed Garifuna people for the least qualified positions, and required they know English if they wanted a promotion.414 The central government of

Nicaragua, located in the capital Managua, turned a blind eye to this.415 As a result of these inter-ethnic tensions, the Garifuna people adapted to the dominant Creole culture and language, leading to the near extinction of the Garifuna language.416 Nonetheless, the Garifuna people continued to reproduce other aspects of their cultural identity, in particular traditional dances, music, and spiritual rituals.417 In 1987, the Garifuna culture finally experienced revitalization when Nicaragua adopted a new Constitution that granted the Atlantic coastal regions autonomy from the central government and officially recognizing “aboriginal and Afro-descendant peoples.”418

While the Atlantic coastal areas experienced economically prosperity throughout the twentieth century,419 their economic situation has deteriorated over the past decades. Since 1979,

413 Interview with Rosita Davis, Frente Sandinista Member of the Municipal Council in Pearl Lagoon, in Orinoco, Nicar. (July 6, 2017) (“And then, [the ancestors] never put [the Garifuna language] into us, to maintain that, because people were giving us different names, discriminate them, yes, and the language is not good.”); interview with Nancy Gomez, Pastor of the Catholic Church and Treasurer of the Communal Government of Orinoco, in Orinoco, Nicar. (July 4, 2017). 414 Figueroa Romero, supra note 407, at 38; see also interview with Rodolpho Chang, supra note 47 (“The companies that held the power would prefer the Creoles because they speak English. They could at least communicate. So, the Creoles would have the top jobs. So, the Garifuna wanted to be Creole. If he wants to get the best job he has to be Creole.”). 415 Interview with Rosita Davis, supra note 413; see also Figueroa Romero, supra note 407, at 39. 416 Interview with Victorina Lopez, supra note 410 (“So, we started eating different because we feel like we are not Garifuna people because we are not speaking the language. We feel like we are Creole because we are speaking Creole. We start adopted, we start eating just the Creole people food and not the Garifuna people food. We start dressing ourselves just like the Creole people and not the Garifuna people.”). The loss of the Garifuna language in the Nicaraguan communities was further aggravated by the fact that the government imposed Spanish as the primary language in the school system of indigenous and Afro-descendant communities, including the community of Orinoco (GLENDA GODFREY ET AL., TAMBOR, TIERRA, SANGRE... SOY GARÍFUNA [DRUM, EARTH, BLOOD… I AM GARIFUNA] 11 (2012)). 417 Agudelo, supra note 399, at 216. 418 Article 5 of the Constitution of Nicaragua. 419 For detailed overview of the history of Nicaragua’s Atlantic coast, see Sollis, supra note 240. 84

the region has suffered economically with limited job opportunities. At that time, the insurgent movement, and current ruling party of Nicaragua, Sandinista National Liberation Front (FSLN) overthrew the U.S.-backed military junta of President Anastasio Somoza, which resulted in the withdrawal of U.S. corporations and closure of most industries in the Atlantic coast.420 In search for job opportunities, many Garifuna, including the inhabitants of Orinoco, have left their communities and migrated to the capital of RAAS Bluefields, Managua, or abroad, particularly the United States.421 At the same time, Spanish-speaking Nicaraguans (mestizos) from other parts of the country have increasingly immigrated to the Atlantic region, and settled on land traditionally occupied by Garifuna and indigenous peoples.422 This development has affected the community of Orinoco, causing the current property right disputes between the mestizos and community members.423 While in recent years the central government of Nicaragua has begun to invest in infrastructure projects and the creation of employment opportunities in the Atlantic regions, the economic situation in the community of Orinoco is still difficult.

Human Rights Claims of the Community of Orinoco

Field research in the community of Orinoco sheds light on the community’s human rights claims. These claims include claims related to effective use of the traditional land without interference of third-party settlers, access to justice to investigate and prosecute drug-related crimes, accessible work opportunities, and revitalization of the Garifuna language. 424 Although

420 Id. at 493; interview with Donnelea Gonzalez Flores, Owner of a Grocery Shop and Guesthouse, in Orinoco, Nicar. (July 5, 2017). 421 Davidson, supra note 408, at 43; interview with Abraham Humphries, Teacher for Mathematics, Physics, and Chemistry at the Secondary School of Orinoco, in Orinoco, Nicar. (June 30, 2017). 422 Davidson, supra note 408, at 43. 423 See infra Effective Use of the Traditional Land Without Interference from Third-Party Settlers. 424 The human right claims of the communities concerned are based on the field research that the author conducted between June and July 2017. Since the field research is always a snapshot of a certain situation in a specific time, these human right claims might have changed in the meantime. 85

other issues are persistent within the community, community members identified the aforesaid demands as the most important ones. These demands are the subject of the subsequent legal analysis.425

Effective Use of the Traditional Land Without Interference from Third-Party Settlers

The community of Orinoco urges the State to prevent third parties from settling on the community’s hinterland and expel those who have already settled there. They argue that these settlements constitute an illegal encroachment on their traditional territory because the community possesses collective ownership title for their land, including the residential area and vast hinterland.426 Immigration of the mestizo population from the Pacific to the Atlantic coast has increased over the last years. This has led to a growing number of mestizos settling in the hinterlands of the community of Orinoco by establishing farms and deforesting the area for cattle.427 Such intrusion in the community land has caused disputes between the settlers and community members who seek to expel the newcomers.428 Nicaragua’s legislation empowers the community to solve land disputes through a community judge (wihta), a representative to administer the traditional lands (síndico), or through the communal government.429 However, it

425 See infra Chapters 4-6. 426 For an analysis of the illegality of the settlements, see infra Domestic Legal Framework on the Right to Use and Enjoy the Traditional Land and Natural Resources Without Outside Interference. 427 Interview with Jonathan Gonzalez, Carpenter, in Orinoco, Nicar. (July 2, 2017); interview with Victorina Lopez, supra note 410; see also interview with Gonzalo Carrion, Director of the Legal Department of the Centro Nicaragüense de Derechos Humanos [Nicaraguan Center for Human Rights], in Managua, Nicar. (July 17, 2017) (stating that the problem of mestizo immigration at the Atlantic coast will aggravate since the central government has started to promote economic development in the autonomous regions, and this development further attracts the mestizo population); interview with Bernadine Dixon, Director of the Center for Research and Documentation on the Multiethnic Woman (CEIMM) at URACCAN University, in Managua, Nicar. (July 18, 2017). 428 Interview with Felix Sinclair, Wihta [Community Judge], in Orinoco, Nicar. (July 9, 2017) (referring to such confrontations as “the most common disputes we have right now”); see also interview with Gonzalo Carrion, supra note 427. 429 Interview with Felix Sinclair, supra note 428 (adding that “when there is problem between two people for one piece of land, then, there the judge comes in. But I always invite also the síndico to be there, but they call the judge because it is a problem of justice. It is in the community to administrate justice, the land, to administrate, but now the judge needs to solve the problem when there is a problem.”). 86

does not give the wihta and síndico the ability to enforce their decisions, rendering these decisions ineffective in practice.430 This paradoxical situation has made the community powerless in the face of the settlements on their traditional territory.431 The community of

Orinoco has resorted to the national enforcement system on several occasions but to no avail; the police force present in the community has been reluctant to interfere.432 The community members fear losing access and control over the natural resources on their territory if the State does not take measures to protect their traditional land.433

Access to Justice for Drug-Related Crimes

The community of Orinoco demands that Nicaragua investigates drug trafficking and consumption on their territory and prosecute perpetrators. They state that increasing drug addiction, micro-trafficking of drugs, and alcoholism in the community have deteriorated the community’s social cohesion over the past years.434 Several inhabitants of Orinoco attribute the increase in drug-related activities to the high unemployment rate and assert that drug addiction and alcoholism have particularly affected the younger generations.435 Drug addiction and micro- trafficking have worsened the security within the community, and community members claim

430 See infra Domestic Legal Framework on the Right to Use and Enjoy the Traditional Land and Natural Resources Without Outside Interference. 431 Id. 432 Id.; see also Bernardine Dixon, supra note 427 (arguing that the mestizo settlers act with the government’s consent). 433 Interview with Felix Sinclair, supra note 428. 434 Interview with Victorina Lopez, supra note 410 (“[A] lot of young people are in the drugs, and you have a lot of them that leave class early and don’t want to study because through the drugs, they don’t want to.”); interview with Abraham Humphries, supra note 421; interview with Donnelea Gonzalez Flores, supra note 420; interview with Jonathan Gonzalez, supra note 427; interview with Kensy Sambola, supra note 408; interview with Letty Sinclair Davis, Doctor at the Communal Health Center, in Orinoco, Nicar. (July 5, 2017); interview with Rebecca Flores, Teacher and Director of the Secondary School in Orinoco, in Orinoco, Nicar. (June 24, 2017). 435 Interview with Donnelea Gonzalez Flores, supra note 420 (“All have the same drugs. And they have kids, small kids. And they [the kids] sell it. Our community wasn’t like that. Our community was a good community. Silenced, nice community. You can sleep outside. You can leave everything outside. But then, these drugs come in the community…”); interview with Veronadine Lopez Stephen, Community Leader and Garifuna Representative in the Regional Council of RAAS, in Orinoco, Nicar. (June 24, 2017); interview with Victorina Lopez, supra note 410; interview with Ernesto Colindres, Minister of the Anglican Church, in Orinoco, Nicar. (July 4, 2017). 87

child abuse has been a consequence of the increased drug use.436 The community of Orinoco considers the local police, which is not composed of community members, as a silent bystander.437 Other law enforcement mechanisms or governmental programs, such as rehabilitation centers, that may assist the community are outside the community’s reach due to their remote location.438

Decent Work Opportunities Within Geographical Reach

The community members consider the creation of employment opportunities within the community essential for them to economically develop while preserving their cultural heritage.439 The community’s economy is historically agricultural. Located between the Pearl

Lagoon and fertile hinterland, the community’s subsistence economy has traditionally consisted of agriculture, hunting, and fishing.440 While agriculture and fishing still play an important role in the economic life of the community, they are no longer the main source of income. The fish stock in the lagoon has decreased considerably and agricultural work has diminished.441 Today only a handful of people engage in farming and fishing on a regular basis. Instead any farming is primarily sustenance farming where only a small surplus is sold in the community.442

436 Interview with Donnelea Gonzalez Flores, supra note 420; interview with Letty Sinclair Davis, supra note 434. 437 Interview with Felix Sinclair, supra note 428. 438 Interview with Jonathan Gonzalez, supra note 427; interview with Letty Sinclair Davis, supra note 434 (explaining that as a consequence of the government’s reluctance to take measures against the drug addiction, the community has addressed the problem in communal meetings several times but has failed to take any action so far). 439 Interview with Kensy Sambola, supra note 408 (“Everybody wants jobs”); interview with Rosita Davis, supra note 413 (“[T]hings are very hard in our communities. We don’t have work inside the community. This is one of the issues, what we really need, work. We don’t have”); interview with Abraham Humphries, supra note 421; interview with Veronadine Lopez Stephen, supra note 435. 440 Interview with Donnelea Gonzalez Flores, supra note 420; interview with Victorina Lopez, supra note 410; see also Davidson, supra note 408, at 33 (remarking that nearly all Garifuna communities in Central America settled near the water). 441 Interview with Rosita Davis, supra note 413. 442 Interview with Felix Sinclair, supra note 428. The inhabitants of Orinoco assert that most people prefer to engage in fishing since, contrary to agriculture, it permits them to earn money quickly by catching and selling the fish on the same day (interview with Griega Sambola Brautigam, President of the Asociación Afro-Garífuna Nicaragüense ARGANIC [Nicaraguan Afro-Garifuna Association], in Orinoco, Nicar. (July 3, 2017)). Additionally, the older generation laments that they used to share, instead of buy, the produce and draught among community members, 88

Consequently, the community has to import most goods from outside the community and pay relatively high prices due to transportation costs.443

Many community members struggle to find employment in the community and often leave in search of more sustainable sources of income. Besides the traditional economic activities, a few inhabitants have formal employment as doctor, nurses, and teachers in governmental institutions within the community. Others manage their own business such as small shops, guesthouses, bakeries, or ecotourism activities.444 As a result of these limited opportunities to generate income, inhabitants increasingly rely on remittances from family members outside the community.445 Further, many community members have departed from their homeland to seek employment on international cruise ships, in Bluefields, or other cities.446

While some leave the community for a few months, others settle permanently outside the community and return occasionally.447 The community members consider economically motivated migration as an impediment to maintaining and advancing the Garifuna culture as it

ensuring that everyone received sufficient products to cover their needs. They state that this mentality has however changed towards a more individualistic-oriented attitude with people increasingly charging the other community members for their produce and services (interview with Ernesto Colindres, supra note 435; interview with Rebecca Flores, supra note 434). This development has negatively affected other traditional professions, such as midwifery and ancestral healing, because midwives and healers have historically provided their services in exchange for voluntary contributions of other community members (interview with Ms. Elma, Midwife of Orinoco, in Orinoco, Nicar. (July 6, 2017)). 443 Interview with Felix Sinclair, supra note 428 (stating that the food products are transported by speedboat from Bluefields to Orinoco). Ironically, most agricultural produce is cultivated and sold by the mestizos who the community of Orinoco accuses of farming illegally on its territory (id.; see also interview with Rebecca Flores, supra note 434; interview with Rosita Davis, supra note 413). 444 Interview with Griega Sambola Brautigam, supra note 442; interview with Rosita Davis, supra note 413. 445 Interview with Abraham Humphries, supra note 421; see also interview with Gonzalo Carrion, supra note 427. 446 Interview with Nancy Gomez, supra note 413. 447 Interview with Kevin Sambola, Musician and Young Community Leader, in Orinoco, Nicar. (July 3, 2017) (explaining that he usually leaves the community for ten months to work on cruise ships); interview with Abraham Humphries, supra note 421 (“[T]hey would go and find a job in foreign land, and they would stay work and maintain the family and just return on vacation”); interview with Griega Sambola Brautigam, supra note 442 (“If somebody wants a recognized job you have to leave your community. You know, you have to leave the community to look for a job”); see also interview with Nancy Gomez, supra note 413 (mentioning that her son works on cruise ships during six months of the year). 89

causes the disintegration of communal unity.448 Additionally, those who return to Orinoco after living elsewhere have arguably adopted a different mentality, valuing individualistic thinking over the communal spirit inherent in the Garifuna culture.449

Revitalization of the Garifuna Language

The inhabitants of Orinoco unanimously stress the urgent need to revive the native

Garifuna language in the community.450 Decades of discriminatory treatment against the

Garifuna people resulted in an almost complete extinction of their native language.451 Despite the fact that the Garifuna language is the official language of the RAAS, English Creole constitutes the primary language of the community of Orinoco.452 The revitalization of the

Garifuna language has become an important concern because of its connection to losing other aspects of the Garifuna culture, in particular religious rituals.453 Religious rituals need to be performed in the Garifuna language.454 Furthermore, the community considers their native language a decisive factor in upholding and strengthening their identity as Garifuna people.455

The government has undertaken steps to revitalize the language such as employing Garifuna

448 Interview with Rodolpho Chang, supra note 47 (adding that “outside influence kills Garifuna culture”); interview with Victorina Lopez, supra note 410. 449 Interview with Abraham Humphries, supra note 421; interview with Felix Sinclair, supra note 428. 450 Interview with Abraham Humphries, supra note 421; interview with Donnelea Gonzalez Flores, supra note 420; interview with Ernesto Colindres, supra note 435. 451 Interview with Rosita Davis, supra note 413. 452 Currently, only a handful of community members of Orinoco are native in Garifuna language, while other inhabitants admit speaking only a few words (interview with Rosita Davis, supra note 413). 453 Interview with Victorina Lopez, supra note 410. 454 Id. (explaining that the walagallo ritual, which serves to cure a Garifuna member from sickness, requires the traditional healers, the sukia, to communicate with the ancestors in Garfiuna. If the healers do not master the language, they would not be able to cure the sick person). 455 Interview with Rosita Davis, supra note 413 (“The language is very sweet and pretty when you can learn. When I go to Honduras, I am just sad because I can’t. They talk and certain things, I will understand, but I can’t say any sentence. Lately, I was in Honduras. I was in Honduras in an activity, I was in a group, and they talk, and they talk in Spanish to me!”); interview with Victorina Lopez, supra note 410 (“Language is necessary and is important because that’s how we know who we are and can identify ourselves in our language. So, we should be talking Garifuna again inside our community with children.”); interview with Griega Sambola Brautigam, supra note 442. 90

language teachers in primary school.456 The community members believe further measures are necessary. The community wants an expansion of the language teaching program to include the secondary school, an exchange program with the Garifuna people living in Honduras, and to convert Garifuna into the primary language of instruction at the government school in the community.457 Several students of Orinoco have already participated in a language exchange program with Garifuna communities of Honduras organized by non-governmental organizations.458 While they gained a good understanding of the language, it has proven difficult to re-introduce Garifuna as the primary language into the English Creole-speaking environment of Orinoco.459

456 It is worth mentioning that the URACCAN started a revitalization program for the Garifuna language in the 1990s (Vernadine Lopez & Arja Koskinen, La revitalización de la lengua y cultura garífuna a través de la educación [The Revitalization of the Garifuna Language and Culture Through Education], CIENCIA ET INTERCULTURALIDAD, Dec. 2009, at 8, https://revistas.uraccan.edu.ni/index.php/Interculturalidad/article/view/87/82). 457 Interview with Victorina Lopez, supra note 410; interview with Rosita Davis, supra note 413; interview with Kensy Sambola, supra note 408; interview with Rebecca Flores, supra note 434; interview with Bernardine Dixon, supra note 427 (stating that the schools in Garifuna communities should instruct the classes in Garifuna language and introduce Spanish as the first foreign language. She denominates such education as “bilingual multicultural education.”). Currently, English Creole and Spanish are the languages of instruction at the community school. 458 The exchange program discontinued due to lack of financial means to cover the expenses of the stay abroad (interview with Rosita Davis, supra note 413). 459 Interview with Victorina Lopez, supra note 410 (explaining that she went to Honduras with the students of Orinoco); interview with Letty Sinclair Davis, supra note 434; interview with Rosita Davis, supra note 413. 91

CHAPTER 3

REFLECTIONS ON KEY CONCEPTS RELEVANT TO THE LEGAL ANALYSIS OF THE HUMAN RIGHTS CLAIMS OF THE COMMUNITIES CONCERNED

This chapter discusses the foundations necessary to examine the legal norms relevant to the human rights claims of the communities concerned and their practical implementation in the subsequent chapters. The first section concerns the concept that all human rights as indivisible, interdependent, and interrelated. This corresponds to the perception of human rights claims in the communities concerned. Field research demonstrated that human rights claims cannot be separated into one category of rights but must be analyzed through a holistic approach that takes into account relevant legal provisions from international human rights instruments and domestic legal systems. The next section addresses the interpretation of “culture” in international human rights law, demonstrating that such rights have experienced a paradigm shift over the past decades and partially reflect the understanding of culture of the communities concerned. The subsequent analysis of State obligations that results from cultural rights highlights the limited legal scholarship on this subject and the need to elaborate in detail the nature, scope, and content of State obligations. The chapter then elaborates on the methods of the Inter-American human rights system that allow for a context-specific interpretation of human rights norms. This is necessary to later define the nature, scope, and content of relevant human rights norms and corresponding State obligations in a way that supports the human rights claims of the communities concerned. Lastly, the chapter discusses how to monitor the implementation of cultural and other human rights provisions as well as corresponding State obligations in the communities concerned. It introduces the so-called “5A” framework as a tool to measure human rights implementation at the local level.

Indivisible, Interdependent, and Interrelated Understanding of Human Rights

The human rights claims of the communities concerned involve a myriad of legal issues ranging from civil to cultural rights.460 Their claims do not fall within one single category of rights but require an analysis under different human rights provisions. While human rights scholars and practitioners recognize the interrelatedness of human rights norms, international human rights law has historically taken a different approach.461 With the adoption of the ICCPR and ICESCR in 1966, legal scholars categorized international human rights into civil and political rights and economic, social, and cultural rights despite the fact that the UDHR does not make a distinction.462 Each set of rights attributed to different legal consequences.463 The 1968

Proclamation of Teheran states “the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible.”464 This was seemingly forgotten for several decades. Both at the U.N. and Inter-American levels, human rights scholars and practitioners have gradually abandoned this dichotomy for being “too simplistic and overly deterministic.”465 They consider international human rights to be indivisible, interdependent, and interrelated.466 The U.N. Vienna Declaration and Programme of Action of 1993 reiterated this

460 See supra Human Rights Claims of the Community of Tierrabomba; Human Rights Claims of the Community of Orinoco. 461 BEN SAUL ET AL., THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS: COMMENTARY, CASES, AND MATERIALS 1 (2014). 462 The reasons for these two sets of rights have been highlighted elsewhere, see MANFRED NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR COMMENTARY XXIII (2d ed. 2005). 463 E.g., Karel Vasak, A 30-Year Struggle, UNESCO COURIER, Nov. 1977, at 29, 29. 464 International Conference on Human Rights, Proclamation of Teheran, U.N. Doc. A/CONF. 32/41 at 3, ¶ 13 (April 22-May 13, 1968) (“Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible.”). States adopted the Proclamation of Teheran at the 1968 International Conference on Human Rights in Teheran, Iran, to monitor the progress of implementing the UDHR in practice and propose a plan to strengthen implementation in the future (id. at Preamble). 465 SAUL ET AL., supra note 461, at 1. 466 See NOWAK, supra note 462, at XX. For example, the Inter-American Court of Human Rights has expanded its interpretation of the right to life to include a dignified life (vida digna) under article 4 ACHR, stressing that life needs to be of a certain quality (e.g., Yakye Axa Indigenous Community v. Paraguay, supra note 160, at ¶¶ 162-64. It construes the right to life as to include “the right of every human being not to be arbitrarily deprived of his life” as well as “the right that conditions that impede or obstruct access to a decent existence should not be generated” (id. at 93

principle and added that the international community should give the same importance to all human rights while keeping in mind cultural, historical, and other differences at the local level.467 The international community has made similar statements in U.N. documents related to development. For instance, the 1986 U.N. Declaration on the Right to Development urged States to respect and implement all human rights equally and stressed their indivisibility, interdependence, and interrelatedness.468 The U.N. Millennium Declaration and the subsequently adopted 2030 Agenda for Sustainable Development both refer to the promotion of and respect for all human rights without any discrimination.469

Indivisibility, interdependence, and interrelatedness of rights are among the fundamental human rights principles derived from human rights instruments.470 The concept of indivisibility means that all internationally recognized human rights are equally important and valid.471 It is

¶ 161). While this broad reading of the right to life has sparked controversy among scholars (Pasqualucci, supra note 155, at 2), it has found entry into the U.N. human rights system, particularly article 6 ICCPR. In fact, the U.N. Human Rights Committee asserts in its latest general comment on the right to life as enshrined in article 6 ICCPR that “State parties should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity” (Human Rights Comm., General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, ¶ 26, U.N. Doc. CCPR/C/GC/36 (Oct. 30, 2018)). 467 World Conference on Human Rights, Vienna Declaration and Programme of Action, I ¶ 5, U.N. Doc. A/CONF.157/23 (June 25, 1993). Similar to the Proclamation of Teheran, States adopted this Declaration at the 1993 World Conference on Human Rights in Vienna, Austria, to reiterate their commitment to the principles enshrined in the U.N. Charter and adopt a program to promote human rights implementation across the globe. 468 U.N. G.A. Res. 41/128, Declaration on the Right to Development, art. 6 (Dec. 4, 1986). The U.N. General Assembly adopted this Declaration in 1986 to, inter alia, proclaim the human right to development and place the human being at the heart of development work and policies (articles 1 and 2). See also Commission on Human Rights, Note Verbale Dated 5 December 1986 from the Permanent Mission of the Netherlands to the United Nations Office at Geneva Addressed to the Centre for Human Rights (“Limburg Principles”), ¶ 3, U.N. Doc. E/CN.4/1987/17 (Jan. 8, 1987) [hereinafter Limburg Principles]. 469 U.N. G.A. Res. 55/2, United Nations Millennium Declaration, ¶ 25 (Sept. 8, 2000); 2030 Agenda for Sustainable Development, supra note 122, at Preamble. States adopted the U.N. Millennium Declaration in 2000, establishing a set of principles to render globalization “a positive force for all the world’s people” (U.N. G.A. Res. 55/2, supra note 515, at ¶ 5). Building on this Declaration, the 2030 Agenda for Sustainable Development adopts a program to reduce poverty that is grounded in international human rights. 470 Mac Darrow & Amparo Tomas, Power, Capture, and Conflict: A Call for Human Rights Accountability in Development, 27 HUM. RTS. Q. 471, 502 (2005) 471 Id. 502-03 (adding that indivisibility does not prevent States from prioritizing the implementation of certain human rights provisions over others based on needs and available resources and institutional design); Axel Marx et al., Human Rights and Service Delivery: A Review of Current Policies, Practices, and Challenges, in 6 THE WORLD 94

enshrined in the structure and content of the UDHR, which proclaims civil, political, economic, social, and cultural rights.472 The principle of interdependence means that improved implementation of one human rights necessarily entails an improvement in the realization of other human rights.473 Thus, realizing one human right on the ground positively affects other human rights and contributes to the advancement of human rights implementation.

Interrelatedness refers to the understanding that one human right cannot be implemented by itself; all human rights are connected to each other.474 Considering the example of the community of Tierrabomba, the right to safe and clean drinking water is closely related to the right to health (article 12 ICESCR) because many community members suffer stomach problems and other health issues without access to clean water (indivisibility).475 Implementation of the right to clean and safe drinking water therefore improves the realization of the right to health

(interdependence). The right to water needs to be accompanied with guarantees of non- discrimination and equality to render the water services accessible to all community members, irrespective of their income (interrelatedness). In the community of Orinoco, the right to use traditional land without interference from third party settlers is intrinsically linked to the right to an adequate living standard (article 11 ICESCR) as the community needs the land to grow fruits and vegetables for their own consumption (indivisibility). Therefore, improved realization of the right to use traditional land also increases the realization of the right to an adequate living

BANK LEGAL REVIEW: IMPROVING DELIVERY IN DEVELOPMENT: THE ROLE OF VOICE, SOCIAL CONTRACT, AND ACCOUNTABILITY 39, 44 (Jan Wouters et al. eds., 2015). 472 Examples of civil rights include the right to life (article 3 UDHR) and to an effective remedy (article 8 UDHR); political rights include article 21 UDHR on the right to take part in the government of one’s country; an example of economic rights is the right to work (article 23 UDHR); articles 25 and 26 UDHR on the right to health and education are examples of social rights; and cultural rights include article 27 UDHR on the participation in the cultural right of the community. 473 Darrow & Tomas, supra note 470, at 504. 474 Id. 475 See supra Clean and Safe Drinking Water. 95

standard (interdependence). Given the inadequacy of a community-based justice system,476 the land right is futile without guarantees of access to justice to demand enforcement of this right

(interrelatedness). These examples of the communities concerned show indivisibility, interdependence, and interrelatedness of human rights on the ground, highlighting the practical relevance of this principle.

The new understanding of the indivisibility, interdependence, and interrelatedness of human rights has not changed the fact that States and legal scholarship largely focus on civil and political human rights.477 Scholars have criticized economic, social, and cultural rights and the corresponding State obligations as vague, while States have argued that these provisions are policy goals rather than rights.478 However, several populations, including the communities concerned, raise human rights claims related to civil, political, economic, social, and cultural issues.479 Merely focusing on one category of rights would not do justice to their claims.

Instead, a holistic approach to human rights is required to effectively address their claims and find a remedy for legal violations.

Cultural Rights as “Empowering Rights” for the Communities Concerned

An adequate system protecting culturally distinct population groups is based on two pillars. These pillars include the prohibition of discrimination and special measures to protect and promote the population group’s identity.480 While this approach was originally developed

476 See supra Effective Use of the Traditional Land Without Interference from Third-Party Settlers. 477 Asbjørn Eide & Allan Rosas, Economic, Social and Cultural Rights: A Universal Challenge, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A TEXTBOOK 3, 3 (Asbjørn Eide et al. eds., 2d ed. 2001). 478 Philip Alston & Gerard Quinn, The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights, 9 HUM. RTS. QUART. 156, 158, 222 (1987). 479 See supra Human Rights Clains of the Community of Tierrabomba; Human Rights Clains of the Community of Orinoco. 480 HENRARD, supra note 60, at 8-11; see also GAETANO PENTASSUGLIA, MINORITIES IN INTERNATIONAL LAW: AN INTRODUCTORY STUDY 35 (2002). 96

for minorities, it is here expanded to other non-dominant groups that do not necessarily fall under the definition of a minority, such as the communities concerned. The first pillar of non- discrimination has historically constituted the predominant approach in legal scholarship and

State practice. Scholars and human rights bodies acknowledge that the prohibition of discrimination alone does not provide sufficient protection for legal claims of non-dominant population groups.481 Instead, the non-discrimination approach needs to be combined with measures aimed at protecting and promoting the specific aspects of the groups’ cultural life.482

Cultural human rights provide an adequate legal basis for the adoption of such measures as these rights offer “a framework for resolving disputes and managing cultural differences that is not so threatening to States as the rights to self-determination and minority rights.”483 Cultural human rights include article 27 ICCPR, article 15(1)(a) ICESCR, article 14(1)(a) Protocol of San

Salvador, and land and language rights enshrined in the ILO Convention No. 169. Cultural rights measures need to be adjusted to the specific setting within the State’s territory since the non-dominant groups’ claims to maintain their specific cultural life are context-specific.484

Hence, concrete State obligations resulting from cultural human rights also need to be tailored to the circumstances of a particular group.

481 Ana Vrdoljak, Liberty, Equality, Diversity: States, Cultures and International Law, in THE CULTURAL DIMENSION OF HUMAN RIGHTS 26, 51 (Ana Vrdoljak ed., 2013) (“It was only after the large-scale human tragedy and instability caused by civil conflicts in the late twentieth century, that there emerged growing acceptance that dependence on the universal application of individual human rights and non-discrimination alone failed to protect victims targeted because of their membership of an ethnic or religious community.”); see also Commission on Human Rights, Towards a Comprehensive Programme for the Prevention of Discrimination and Protection of Minorities, Including Proposals for the Examination of Thematic Issues Relating to Racism, Xenophobia, Minorities and Migrant Workers: Some Suggestions, ¶ 25, U.N. Doc. E/CN.4/Sub.2/1996/30 (July 25, 1996). 482 Asbjørn Eide, Cultural Rights and Minorities: On Human Rights and Group Accommodation, in LEGAL CULTURES AND HUMAN RIGHTS 25, 34 (Kristen Hastrup ed., 2001) (“The key word regarding protection of minorities is the preservation of identity.”). Colombia and Nicaragua have adopted this approach of combining the prohibition of discrimination with measures to protect cultural identity in the context of their Afro-descendant populations (see infra Chapters 4-6). 483 Dominic McGoldrick, Culture, Cultures, and Cultural Rights, in Economic, Social and Cultural Rights in Action 447, 472 (Mashood A. Baderin & Robert McCorquodale eds., 2007). 484 HENRARD, supra note 60, at 14. 97

Cultural human rights are further essential for the effective protection and promotion of non-dominant groups, such as the communities concerned, as they contribute to peace and stability at global and State levels.485 These rights allow the communities and their individual members to face “the world on their own terms [and to appropriate] its cultural riches through the prism of their own conceptions, thereby making their distinctive contribution to the common heritage of mankind.”486 Cultural human rights embody the relationship between the communities’ daily social life, collective and individual identity, integrity, and communal cohesion and aim to ensure the survival and development of the communities as such.487

Cultural human rights are a complex set of legal norms. They refer to community life, development, empowerment, and cultural uniqueness. In the past decades, legal scholarship and practice have addressed some of these complexities.488 While these rights have received scholarly attention since the 1990s, their scope, content, and international recognition have developed in the past decades.489 This dissertation argues that a recent paradigm shift has occurred in the legal doctrine and international and domestic human rights practice. They now recognize a broad understanding of culture and positive State obligations resulting from cultural human rights norms, their collective dimension, and justiciability.

485 E.g., ELSA STAMATOPOULOU, CULTURAL RIGHTS IN INTERNATIONAL LAW: ARTICLE 27 OF THE UNIVERSAL DECLARATION AND BEYOND 8-9 (2007) (“While a serious public policy response may not be the full response to all the issues raised by groups in conflict, it will go a long way towards solving long-standing disputes that have led to numerous conflicts around the world.”); Asbjørn Eide & Rianne Letschert, Institutional Developments in the United Nations and at the Regional Level, 14 INT’L J. ON MINORITY & GROUP RTS. 299, 299-300 (2007). 486 Patrick Thornberry, Cultural rights and Universality of Human Rights, Background Paper Submitted to the Committee on Economic, Social and Cultural Rights, at 21, U.N. Doc. E/C.12/40/15 (May 9, 2008). 487 Fergus MacKay, Cultural Rights, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A GUIDE FOR MINORITIES AND INDIGENOUS PEOPLES 83, 83 (Salomon Margot E. & Minority Rights Grp. eds., 2005). 488 E.g., ELSA STAMATOPOULOU, supra note 485; YVONNE DONDERS, TOWARDS A RIGHT TO CULTURAL IDENTITY? (2002). 489 Symonides, supra note 48; see also Yvonne Donders, Do Cultural Diversity and Human Rights Make a Good Match?, 61 INT’L SOC. SCI. J. 15 (2010); Athanasios Yupsanis, The Concept and Categories of Cultural Rights in International Law - Their Broad Sense and the Relevant Clauses of the International Human Rights Treaties, 37 SYRACUSE J. INT’L L. & COM. 207 (2010); MAURICE CRANSTON, WHAT ARE HUMAN RIGHTS? (1973). 98

A broad understanding of culture poses the question of what constitutes “culture.” This concept has evolved from the very narrow notion of fine art and fictional literature, that the drafters of article 15(1)(a) of the ICESCR initially envisaged,490 to the understanding of culture as multi-layered,491 to the broad anthropological concept of culture as a way of life.492 UNESCO introduced the understanding of cultural as a way of life into the human rights discourse in

1976.493 This understanding of culture has been widely adopted since then and currently prevails in legal literature.494 It acknowledges that culture is a multifaceted, constantly evolving phenomenon that expresses itself in different ways.495 In practice, human rights bodies are reluctant to accept such understanding, focusing instead on material and folkloric aspects of culture.496 An example of such reluctance is the cultural approach to the rights of Afro- descendants under the Inter-American human rights system.497

490 Yvonne Donders, Cultural Life in the Context of Human Rights, Background Paper Submitted to the U.N. Committee on Economic, Social and Cultural Rights, at 4, U.N. Doc. E/C.12/40/13 (May 9, 2008) (“At the time of its adoption, the right to take part in cultural life was still mainly meant to make the ‘high’ material aspects of culture more broadly available.”). 491 Asbjørn Eide, Cultural Rights as Individual Rights, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS 289, 290 (Asbjørn Eide et al. eds. 2d ed., 2001); Janusz Symonides, Cultural Rights: New Dimensions and Challenges, in 29 THESAURIUS ACROASIUM 135, 141-142 (Kalliopi Koufa ed., 2000); Lyndel V. Prott, Cultural Rights as Peoples’ Rights in International Law, in THE RIGHTS OF PEOPLES 93, 94 (James Crawford ed., 1988); Rudolfo Stavenhagen, Cultural Rights: A Social Science Perspective, in CULTURAL RIGHTS AND WRONGS 1, 4-7 (Halina Niec ed., 1998). 492 E.g., CESCR General Comment No. 21, supra note 49, at ¶¶ 10-11. 493 U.N., Educ., Sci. and Cultural Org., Recommendation on Participation by the Peoples at large in Cultural Life and their Contribution to it, Preamble (Nov. 26, 1976), http://portal.unesco.org/en/ev.php- URL_ID=13097&URL_DO=DO_TOPIC&URL_SECTION=201.html (“[C]ulture… is at one and the same time the acquisition of knowledge, the demand for a way of life and the need to communicate.”). 494 E.g., CESCR General Comment No. 21, supra note 49, at ¶¶ 10-11; Human Rights Comm., CCPR General Comment No. 23: Article 27 (Rights of Minorities), ¶ 7, U.N. Doc. CCPR/C/21/Rev.1/Add.5 (Aug. 4, 1994) [hereinafter CCPR General Comment No. 23]; Rudolfo Stavenhagen, Cultural Rights: A Social Science Perspective, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS 85, 89 (Asbjørn Eide et al. eds., 2d ed. 2001) (defining culture as “the sum total of the material and spiritual activities and products of a given social group which distinguishes it from other similar groups” and as a “system of values, and symbols as well as a set of practices that a specific cultural group reproduces over time” (italics omitted)). 495 E.g., Thornberry, supra note 486, at 3-4. 496 See supra Afro-Descendants in the Jurisprudence of the Inter-American Human Rights System. 497 Id. 99

Scholars have endeavored to specify the scope and content of cultural human rights norms because international legal instruments do not define the term “cultural human rights,” and the definition of culture as a way of life is far-reaching. To clarify their scope and content, scholars have divided the cultural rights norms into different categories.498 DONDERS, a professor of international human rights and cultural diversity at the University of Amsterdam, suggests the division of cultural rights in the narrow sense and cultural rights in the broad sense.

While the first category consists of the legal norms explicitly referring to the term culture,499 the latter refers to other human rights provisions related to culture.500 Such rights include language rights, freedom of expression, freedom of religion, right to education, or land rights.501 Other human rights norms do not fall within this categorization but contain aspects of culture.502 For instance, the Committee on Economic, Social, and Cultural Rights states that “health facilities, goods, and services must be… culturally appropriate, i.e., respectful of the culture of individuals, minorities, peoples and communities.”503 It has also affirmed the importance of cultural

498 Yvonne Donders, The Cultural Diversity Convention and Cultural Rights: Included or Ignored?, in THE UNESCO CONVENTION ON THE PROMOTION AND THE PROTECTION OF THE DIVERSITY OF CULTURAL EXPRESSIONS 165, 166-67 (Toshiyuki Kono & Steven Van Uytsel eds., 2012); STAMATOPOULOU, supra note 485, at 2-3; Adam Lopatka, Cultural Diversity and Cultural Human Rights, in LAW AND LEGAL CULTURE IN COMPARATIVE PERSPECTIVE 216, 219 (Günther Doeker-Mach et al. eds., 2004); DONDERS, supra note 488, at 74; Asbjørn Eide, Economic, Social and Cultural Rights as Human Rights, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A TEXTBOOK 9, 18-19 (Asbjørn Eide et al. eds., 2d ed. 2001). In this connection, legal scholars have also discussed whether international human rights law implies a right to cultural identity (see DONDERS, supra note 488; in favor e.g., Laura Pineschi, Cultural Diversity as a Human Right? General Comment No. 21 of the Committee on Economic, Social and Cultural Rights, in CULTURAL HERITAGE, CULTURAL RIGHTS, CULTURAL DIVERSITY: NEW DEVELOPMENTS IN INTERNATIONAL LAW 29 (Silvia Borelli & Federico Lenzerini eds., 2012); Oswaldo R. Ruiz Chiriboga, The Right to Cultural Identity of Indigenous Peoples and National Minorities: A Look from the Inter- American System, SUR INT’L J. ON HUM. RTS., Jan. 2006, at 43). The dissertation does not further address the right to cultural identity, as it is not explicitly mentioned in U.N. and Inter-American human rights instruments. 499 Article 27 ICCPR; article 15(1)(a) ICESCR; article 26 ACHR; article 14(1)(a) Protocol of San Salvador. 500 DONDERS, supra note 488, at 74; see also Yupsani, supra note 489, at 218-19 (suggesting a slightly different categorization of cultural rights in the narrow sense and in the broad sense). 501 DONDERS, supra note 488, at 74. 502 Yvonne Donders, International Human Rights and Cultural Diversity: A Balancing Act, 4 ROM. J. COMP. L. 123, 132 (2013). 503 Comm. on Econ., Soc. & Cultural Rights, CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), ¶ 12(c), U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000); see also Donders, supra note 502, at 132. 100

appropriateness with regard to the right to water.504 These categorizations show that a broad range of human rights provisions relate to culture, rendering it difficult to conduct a legal study into “cultural human rights.” This dissertation does not limit the legal analysis of the human rights claims of the communities concerned to a specific category of cultural rights. Instead, it takes these claims and the interrelatedness of human rights as a starting point to analyze all relevant human rights provisions and assess if they have a cultural dimension.

State Obligations Resulting from Cultural Human Rights

U.N. and Inter-American human rights law recognizes different categories of State obligations. These have included State obligations to respect, protect, and fulfill citizens’ rights as well as State obligations of immediate effect and progressive realization.505 While the nature, scope, and content of State obligations resulting from cultural human rights are vague, the “more favorable” clauses of international human rights systems provide a useful tool to clarify the obligations that States should implement in a given context.

State Obligations to Respect, Protect, and Fulfill

States have the obligations to respect, protect, and fulfill the international human rights norms applicable in their territory.506 The obligation to respect citizens’ human rights requires

States to abstain from restricting a specific human right provision. The obligation to protect requires States to prevent third parties, in particular private parties, from interfering with the

504 Comm. on Econ., Soc. & Cultural Rights, General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant), ¶ 12(c)(i), U.N. Doc. E/C.12/2002/11 (Jan. 20, 2003) [hereinafter CESCR General Comment No. 15]. 505 For further categorizations and elaboration on the nature of State obligations, see MARIA MAGDALENA SEPULVEDA CARMONA, THE NATURE OF THE OBLIGATIONS UNDER THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (2003). 506 Asbjørn Eide introduced this division in his capacity as Special Rapporteur on the right to food (U.N. Sub- Division on the Promotion and Protection of Human Rights, The Right to Adequate Food as a Human Right, 1 HUM. RTS. STUDY SERIES 1, at 24, U.N. Sales No. E.89.XIV.2 (1989)). For further elaborations on State obligations under international human rights law, see, e.g., SAUL ET AL., supra note 461, at 133; NOWAK, supra note 462, at 37-41. 101

human rights enjoyment of citizens. The obligation to fulfill human rights requires States to take appropriate measures to ensure full implementation of the legal norm.507

This typology of State obligations to respect, protect, and fulfill citizens’ rights also applies to cultural rights.508 The precise scope and content of the obligations resulting from cultural rights provisions is unclear. Article 27 ICCPR was initially considered to impose only on States the obligation to respect citizens’ rights, thus to require States stop any action that might interfere with the exercise of this rights.509 However, scholars such as CAPOTORTI,

CHOLEWINSKI, RODLEY, and YUPSANIS have deduced positive State obligations to protect and fulfill citizens’ rights from this provision.510 The Human Rights Committee has followed this latter approach, stressing that States may have obligations to protect the identity, language, and religion of a minority group and its members. It has also asserted that States have an obligation to allow members of a minority group to effectively participate in decision-making processes concerning them.511 In an attempt to clarify these State obligations, legal scholars have examined the content of such obligations resulting from article 27 ICCPR, including State

507 E.g., CESCR General Comment No. 21, supra note 49, at ¶ 48. Some scholars and human rights bodies further refine the obligation to fulfill, dividing it into the obligations to facilitate, promote, and provide (id. at ¶ 51). This dissertation follows the tripartite typology of State obligations to respect, protect, and fulfill without considering the subcategories of the obligation to fulfill in further detail. This typology is useful to clarify State obligations as it is internationally recognized and easy to follow (see DONDERS, supra note 488, at 90; SEPULVEDA, supra note 505, at 205). 508 Eide, supra note 482, at 22. 509 Christian Tomuschat, Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights, in VÖLKERRECHT ALS RECHTSORDNUNG 949, 969 (Rudolf Bernhardt et al. eds., 1983). 510 Athanasios Yupsanis, Article 27 of the ICCPR Revisited – The Right to Culture as a Normative Source for Minority / Indigenous Participatory Claims in the Case Law of the Human Rights Committee, in 26 HAGUE YEARBOOK OF INTERNATIONAL LAW 359, 404 (Nikos Lavranos et al. eds., 2013); Nigel S. Rodley, Conceptual Problems in the Protection of Minorities: International Legal Developments, 17 HUM. RTS. Q. 48, 51 (1995); Ryszard Cholewinski, State Duty towards Ethnic Minorities: Positive or Negative?, 10 HUM. RTS. Q. 344, 371 (1988); CAPOTORTI, supra note 111, at ¶¶ 212-13. 511 CCPR General Comment No. 23, supra note 494, at ¶¶ 6.1, 6.2. 102

obligations to respect, protect, and fulfill the minority members’ rights under this provision.512

Proposed obligations are general and not tailored to a specific context.

Likewise, with regard to article 15(1)(a) ICESCR, legal scholars such as SYMONIDES and

EIDE have developed broad State obligations that leave States with a wide discretion in implementing them.513 Other authors including HANSEN, STAMATOPOULOU, CHAPMAN, and

GRONI, as well as the Committee on Economic, Social, and Cultural Rights have gone further and proposed definitions of core obligations.514 With the exception of GRONI, these core obligations are broadly formulated and too far-reaching in scope and content.515 For instance, the Committee on Economic, Social, and Cultural Rights asserts that, under article 15(1)(a)

ICESCR, States have the core obligation “to create and promote an environment within which a person individually, or in association with others, or within a community or group, can participate in the culture of their choice.”516 This phrasing is broad and insufficient to guide

States in implementing the provision. However, GRONI suggests four core obligations that are more limited in scope and content, namely non-assimilation, non-isolation, non-discrimination,

512 NOWAK, supra note 462, at 657-66; see also Yupsanis, supra note 510 (focusing on the duty to obtain the free and informed prior consent of minorities on decisions that concern them). 513 Janusz Symonides, Cultural Rights, in HUMAN RIGHTS: CONCEPTS AND STANDARDS 175, 206 (Janusz Symonides ed., 2000); Eide, supra note 491, at 293-95. 514 CHRISTIAN GRONI, DAS MENSCHENRECHT AUF TEILNAHME AM KULTURELLEN LEBEN [THE HUMAN RIGHT TO PARTICIPATION IN CULTURAL LIFE] (2008); STAMATOPOULOU, supra note 485, at 153-56; Stephen A. Hansen, The Right to Take Part in Cultural Life: Toward Defining Minimum Core Obligations Related to Article 15 (1)(a) of the International Covenant on Economic, Social and Cultural Rights, in CORE OBLIGATIONS: BUILDING A FRAMEWORK FOR ECONOMIC, SOCIAL AND CULTURAL RIGHTS 279, 299 (Audrey R. Chapman & Sage Russell eds., 2002); Audrey R. Chapman, A “Violations Approach” for Monitoring the International Covenant on Economic, Social and Cultural Rights, 18 HUM. RTS. Q. 23, 64 (1996); CESCR General Comment No. 21, supra note 49, at ¶ 55; see also Stephen P. Marks, Defining Cultural Human Rights, in HUMAN RIGHTS AND CRIMINAL JUSTICE FOR THE DOWNTRODDEN 293, 302 (Morten Bergsmo ed., 2003) (referring to “cultural identity and diversity” as “the two core concepts” of cultural human rights). 515 GRONI, supra note 514, at 378-79 (stating that these proposals of core obligations are “unrealistic”). For instance, Chapman proposes the core obligation to take measures to preserve the cultural identity of minorities and indigenous peoples (Chapman, supra note 514, at 64); Stamatopoulou suggests the core obligation to take measures to achieve the full realization of cultural rights (STAMATOPOULOU, supra note 485, at 156). 516 CESCR General Comment No. 21, supra note 49, at ¶ 55. 103

and the prohibition of imposing a State culture.517 Despite their limited scope, these core obligations are difficult for States to translate into practice. They are not tailored to the specific circumstances of a country or a culturally distinct group. Nonetheless, this dissertation adopts the core obligations suggested by GRONI as a starting point to analyze the relevant core obligations in depth, ensuring that the indispensable minimum levels of certain cultural rights provisions are implemented in practice.518

State Obligations of Immediate Effect and Progressive Realization

Legal scholars and practitioners have divided State obligations into immediate effect and progressive realization. While they agree that obligations of immediate effect require the implementation of the relevant norm without delay,519 the scope and content of obligations of progressive realization are more ambiguous. This latter category, which is explicitly mentioned in article 2(1) ICESCR, article 26 ACHR, and article 1 Protocol of San Salvador, includes that

States must take all appropriate means using the maximum of their available resources to progressively achieve the full implementation of the rights.520 Such wording has raised controversy on State obligations resulting from cultural human rights. States may delay the implementation of cultural human rights that are subject to progressive realization if they claim they lack the necessary financial and other resources.521 The Committee on Economic, Social, and Cultural Rights has rejected this interpretation, clarifying that article 2(1) ICESCR entails

517 GRONI, supra note 514, at 379-84. 518 For further elaborations on the core obligations with respect to the communities concerned, see infra Chapters 4- 5. 519 E.g., JOHN TASIOULAS, MINIMUM CORE OBLIGATIONS: HUMAN RIGHTS IN THE HERE AND NOW 12 (2017), http://documents.worldbank.org/curated/en/908171515588413853/pdf/122563-WP-Tasioulas2-PUBLIC.pdf; Comm. on Econ., Soc. & Cultural Rights, CESCR General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), ¶ 1, U.N. Doc. E/1991/23 (Dec. 14, 1990) [hereinafter CESCR General Comment No. 3]. 520 SEPULVEDA, supra note 505, at 133. 521 Symonides, supra note 513, at 205; Alston & Quinn, supra note 478, at 172, 177. 104

certain State obligations of immediate effect.522 These include the obligations to exercise the rights without discrimination and to take steps towards the realization of these rights.523

Additionally, States have certain core obligations to ensure the minimum levels of the human rights subject to progressive implementation.524 Such minimum core obligations need to be implemented immediately and independently of State’s available resources.525 Legal scholars have confirmed this interpretation for cultural human rights, particularly through article 15(1)(a)

ICESCR.526 It is noteworthy that other cultural human rights, such as article 27 ICCPR and provisions stipulated in the ILO Convention No. 169, are not subject to progressive realization but must be implemented with immediate effect.527

Particularities of State Obligations Resulting from Cultural Human Rights in the Inter-American Human Rights System

The aforesaid categories of State obligations also apply in the Inter-American human rights system.528 However, the specific State obligations resulting from cultural rights are even more ambiguous. Article 26 ACHR requires States to take measures to progressively implement

“economic, social, educational, scientific, and cultural standards set forth in the Charter of the

522 CESCR General Comment No. 3, supra note 519, at ¶ 1; see also Limburg Principles, supra note 468, art. 16. 523 CESCR General Comment No. 3, supra note 519, at ¶¶ 1-2; Limburg Principles, supra note 468, arts. 21, 22. 524 CESCR General Comment No. 3, supra note 519, at ¶ 10. 525 Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights, supra note 81, at ¶ 9; see also STAMATOPOULOU, supra note 485, at 153 (stating that core obligations are useful to assess whether the State has the political will to respect its cultural human rights obligations). 526 SAUL ET AL., supra note 461, at 147, 152; SSENYONJO, supra note 53, at 65-69; Audrey R. Chapman & Sage Russell, Introduction, in CORE OBLIGATIONS: BUILDING A FRAMEWORK FOR ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1, 8-14 (Audrey R. Chapman & Sage Russell eds., 2002). 527 Symonides, supra note 513, at 206-07; Human Rights Comm., CCPR Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, ¶¶ 5, 14, U.N. Doc. CCPR/C/21/Rev.1/Add. 13 (May 26, 2004). The ILO Convention No. 169 contains only a few State obligations subject to progressive implementation, such as article 24 on social security systems and article 27(2) on the creation of educational programs. 528 THOMAS ANTKOWIAK & ALEJANDRA GONZA, THE AMERICAN CONVENTION ON HUMAN RIGHTS 18-19 (2017). Article 1(1) ACHR requires States to respect and ensure the fulfillment of the human rights provisions included in the ACHR, while article 2 ACHR requires States to take the necessary “legislative or other measures” to achieve this goal. 105

Organization of American States.”529 This general reference to the OAS Charter invokes the question of which provisions of the OAS Charter and corresponding State obligations are included in article 26 ACHR.530 While the Inter-American Court of Human Rights has only recently found States in violation of this provision,531 legal scholars have debated whether article 26 ACHR can give rise to substantive State obligations at all since the OAS Charter contains only vague cultural standards and no specific individual rights.532 The other cultural human rights provision of the Inter-American human rights system, namely the right to take part in the cultural and artistic life of a community established in article 14(1)(a) Protocol of San

Salvador, has received virtual no attention in legal scholarship or practice.533 Instead, both the

Inter-American human rights system has deduced State obligations to protect and promote a community’s cultural life from civil and political rights enshrined in the ADHR and the

ACHR.534 These State obligations are of immediate effect and require States to respect, protect, and fulfill the human rights norms of these instruments.535 The Inter-American human rights

529 Article 26 ACHR. 530 Thomas M. Antkowiak, Social, Economic, and Cultural Rights: The Inter-American Court at a Crossroads, in THE INTER-AMERICAN COURT OF HUMAN RIGHTS: THEORY AND PRACTICE, PRESENT AND FUTURE 259, 264 (Yves Haeck et al. eds., 2015) (arguing that article 26 ACHR refers to the entire OAS Charter); Melish, supra note 54, at 385 fn.88 (arguing that article 26 ACHR should be interpreted as to include articles 30-52 OAS Charter). 531 Cuscul Pivaral et al. v. Guatemala, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 359 (Aug. 23, 2018) (on the right to health of people living with HIV); Lagos del Campo v. Peru, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 340 (Aug. 31, 2017) (on the rights to work, freedom of expression, and fair trial). 532 Veronica Gomez, Economic, Social, and Cultural Rights in the Inter-American System, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN ACTION 167, 171 (Mashood A. Baderin & Robert McCorquodale eds., 2007). 533 Even the Working Group of the Protocol of San Salvador, which is mandated to examine the periodic reports submitted by States under said protocol, does not address article 14(1)(a) Protocol of San Salvador in its concluding observations. In fact, all concluding observations released to date are limited to an analysis of the rights to social security (article 9), health (article 10), and education (article 13) although the Working Group’s monitoring activities are not limited to these three rights according to article 19 Protocol of San Salvador. 534 Antonio Augusto Cançado Trindade, The Right to Cultural Identity in the Evolving Jurisprudential Construction of the Inter-American Court of Human Rights, in MULTICULTURALISM AND INTERNATIONAL LAW 477 (Edward McWhinney et al. eds., 2009). 535 Article 1 ACHR (“State Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms.”). 106

system protects and promotes cultural rights through the far-reaching interpretation of civil and political rights instead of independently interpreting the explicit cultural rights provisions.536

Context-Specific Interpretation of Cultural Human Rights and Resulting State Obligations

Cultural human rights norms are essential to the communities concerned. Therefore, there is a need to clarify the nature, scope, and content of cultural human rights norms and resulting State obligations that fit the specific context of the communities concerned. Most international human rights bodies, particularly those of the Inter-American system, have focused on developing universally applicable human rights norms.537 In this regard, the Inter-American human rights system primarily employ a teleological interpretation. This means that they consider the object and purpose of the relevant legal instruments when analyzing the scope of protection of human rights norms.538 Accordingly, they have stated that the content of human rights norms should be defined in a way that gives them the appropriate effect. Established in the Inter-American Court of Human Rights’ case of Velasquez Rodriguez v. Honduras,539 the

Inter-American human rights system has reiterated this principle of effectiveness in subsequent jurisprudence and reports.540 Similar to other human rights bodies, the Inter-American human rights system also understands human rights instruments as “living instruments” that must be interpreted in light of the present-day circumstances.541 Thus, the State obligations applicable in

536 Gomez, supra note 532, at 173 (“What many call the indirect enforcement of [economic, social, and cultural] rights through the expansive interpretation of civil and political rights has predictably been the object of understandable criticism and pragmatic support.”). 537 MARIA SJÖHOLM, GENDER-SENSITIVE NORM INTERPRETATION BY REGIONAL HUMAN RIGHTS LAW SYSTEMS 155 (2018). 538 For an overview of the Inter-American Court’s interpretative approach, see Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, Advisory Opinion OC-21/14, Inter-Am. Ct. H.R. (ser. A) No. 21, ¶ 53-55 (Aug. 19, 2004). 539 Velasquez Rodriguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4, ¶ 30 (July 29, 1988). 540 Magnus Killander, Interpreting Regional Human Rights Treaties, SUR INT’L J. ON HUM. RTS., Dec. 2013, at 145, 147. 541 The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, Inter-Am. Ct. H.R. (ser. A) No. 16, ¶¶ 114-15 (Oct. 1, 1999). 107

the communities concerned need to be tailored to reflect to human rights claims of these communities. Applying this evolutive interpretation method and referring to article 29 ACHR, the Inter-American human rights system relies on domestic jurisprudence, human rights instruments, and case law from the U.N. and European human rights systems to inform their own human rights interpretation.542

The Inter-American human rights system adopts the “more favorable” principle of human rights interpretation to tailor the content of rights and State obligations to the local circumstances. This principle prohibits an interpretation of human rights standards in a way that would restrict existing international and domestic legal guarantees applicable in a specific case.

It is enshrined in article 29(b) ACHR, which stipulates that the ACHR may not be interpreted to restrict “the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said States is a party.”543

Similarly, international human rights conventions also prohibit States from limiting fundamental rights “on the pretext that [international human rights law] does not recognize such rights or that it recognizes them to a lesser extent.”544 These interpretative rules promote an interpretation of human rights norms at the intersection of different legal orders and aim to achieve the most comprehensive human rights protection possible in a specific case.

The Inter-American Court of Human Rights has resorted to article 29(b) ACHR in several cases on indigenous rights, interpreting conventional rights together with domestic legal provisions. For instance, in the case of Mayagna (Sumo) Awas Tingni Community v. Nicaragua,

542 E.g., Moiwana Village v. Suriname, supra note 21, ¶¶ 111ff. 543 Article 29(b) ACHR. 544 Article 5(2) ICCPR; see also Article 29(a) ACHR; Yota Negishi, The Pro Homine Principle’s Role in Regulating the Relationship between Conventionality Control and Constitutionality Control, 28 EUR. J. INT’L L. 457, 468 (2017). 108

the State failed to demarcate the traditional land of the indigenous community in question as mandated under domestic law, and failed to provide them with effective remedies to demand enforcement of their land rights.545 The Court analyzed indigenous peoples’ property rights under article 21 ACHR and concluded that “article 21 of the Convention protects the right to property and includes, among others, the rights of members of the indigenous communities within the framework of communal property, which is also recognized by the Constitution of

Nicaragua.”546 Based on Nicaragua’s domestic legal framework and article 29(b) ACHR, the

Court found a violation of the right to property under article 21 ACHR. Similarly, in the Case of

Yatama v. Nicaragua, which addressed the participation of an indigenous regional political party in the Atlantic coast regions’ municipal elections of 2000, the Court ruled that in addition to the conventional rights and “in order to guarantee the effectiveness of the political rights of the members of the indigenous and ethnic communities of the Atlantic Coast, … Nicaragua should take into account the specific protection established in Articles 5, 49, 89 and 180 of the

Constitution and Article 11(7) of the Statute of Autonomy of the Atlantic Coast Region.”547

In both cases, the Court referred to article 29(b) ACHR to define the scope of conventional rights and State obligations. Thus, the “more favorable” principle provides a powerful litigation tool before the Inter-American human rights system to advocate for comprehensive human rights protections. In the context of the communities concerned, this principle directly contributes to an enhanced legal protection of the communities’ human rights claims. For instance, Colombian law protects and promotes the land claims of the community of

545 Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 79 (Aug. 31, 2001). 546 Id. at ¶ 148 (subsequently analyzing the Constitution of Nicaragua and other domestic legislation to interpret the right to property of indigenous peoples); see also Yakye Axa Indigenous Community v. Paraguay, supra note 160, at ¶¶ 129, 138. 547 Yatama v. Nicaragua, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 127, ¶ 205 (June 23, 2005). 109

Tierrabomba more effectively than international human rights law.548 Through article 29(b)

ACHR before the Inter-American Court of Human Rights, the community can demand the interpretation of article 21 ACHR in light of the domestic provisions on collective property to obtain human rights protection under the ACHR. Thus, the “more favorable” principle guarantees that the communities concerned receive the most extensive human rights protection possible under applicable international and domestic laws.

Framework to Monitor the Implementation of International Human Rights Law at the Local Level

Cultural and other human rights and their resulting State obligations only offer effective protection to the communities concerned if they are implemented at the local level. However, international human rights actors and States face challenges in monitoring the implementation of international human rights provisions in the local context. These challenges can be attributed to the fact that international enforcement mechanisms are weak, and States may lack the political will to implement them. The progressive realization of economic, social, and cultural rights further complicates the assessment of local human rights implementation. The States’ compliance with these rights depend on, inter alia, the financial situation of the State. This makes it difficult for international human rights actors to monitor the rights’ implementation on the ground. To overcome these challenges, the dissertation proposes the so-called “5A” framework combined with an analysis of three types of human rights indicators. This approach assesses whether legal norms are available, accessible, acceptable, and adaptable in the communities concerned, and whether perpetrators can be held accountable for violating the

548 See infra Domestic Legal Framework of the Rights to Access the Traditional Land and Protect It from Erosion. 110

norms (“5A” framework).549 This assessment is based on the examination of (1) the existing institutional and legal structure of the Colombian and Nicaraguan States respectively (structural indicators); (2) domestic policies and institutions promoting the effective implementation of the legal norms on the ground (process indicators); and (3) the actual realization of human rights provisions at the local level (outcome indicators). This approach provides detailed insight into the gaps in implementing international and local legal norms in the communities concerned, embodying the dissertation’s proposed reinterpretation of the applicable legal framework and serving as a basis for drafting recommendations on how to improve human rights realization.

The “5A” Framework

The “5A” framework is a conceptual scheme that divides the content of human rights norms and resulting State obligations into the five categories of availability, accessibility, acceptability, adaptability, and accountability (the so-called “5 As”) with the aim of facilitating the pr ocess of monitoring their implementation on the ground.550 This framework does not define the content of human rights provisions or State obligations nor does it directly measure their implementation on the ground. Instead, it implies that States comply with their international human rights obligations if the content of legal norms and State obligations are available, accessible, acceptable, and adaptable to the rightsholders and if perpetrators can be held accountable for violating these norms.

The former Special Rapporteur on the Right to Education, Katarina Tomasevsk, established this framework in 1999, using the four categories of availability, accessibility,

549 Cf. ROBERT F. KENNEDY MEM’L CTR. FOR HUMAN RIGHTS, RIGHT TO EDUCATION OF AFRO-DESCENDANT AND INDIGENOUS COMMUNITIES IN THE AMERICAS: ACHIEVING DIGNITY AND EQUALITY FOR ALL 45 (2008). 550 Id. 111

acceptability, and adaptability and referring to it as the “4-A scheme.”551 Since then, the U.N.

Committee on Economic, Social, and Cultural Rights and numerous scholars have replicated and modified the framework and applied it to other economic, social, and cultural rights.552 In its

2008 report on the right to education of Afro-descendants and indigenous peoples in the

Americas, the Robert F. Kennedy Memorial Center for Human Rights added the element of accountability, renaming the 4A framework to the “5A framework.”553 Accountability ensures that the State can be held responsible for failing to respect, protect, and fulfill its human rights obligations in practice.554 The dissertation follows this approach, arguing that human rights provisions are meaningless without corresponding accountability mechanisms because citizens need to be able to demand the norms’ effective realization at the local level. Based on this understanding, the elements of the 5A framework are defined as follows:555

• Availability means that States provide sufficient institutions and programs to implement the content of human rights provisions and State obligations.556 These institutions and programs need to have the necessary facilities to properly operate in the relevant context. They further need to be open for everyone to enjoy and benefit from.557

551 Katarina Tomasevski (Special Rapporteur on the Right to Education), Preliminary Report, ¶ 50, U.N. Doc. E/CN.4/1999/49 (Jan. 13, 1999). 552 E.g., Comm. on Econ., Soc. & Cultural Rights, General Comment No. 22 on the Right to Sexual and Reproductive Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), ¶¶ 12-21, U.N. Doc. E/C.12/GC/22 (May 2, 2016) (stating that the right to sexual and reproductive health needs to be available, accessible, acceptable, and of good quality); Comm. on Econ., Soc. & Cultural Rights, General Comment No. 19: The Right to Social Security (Art. 9), ¶¶ 11-27, U.N. Doc. E/C.12/GC/19 (Feb. 4, 2008) (stating that the right to social security needs to be available, adequate, and accessible, and cover certain social risks); Sital Kalantry et al., Enhancing Enforcement of Economic, Social, and Cultural Rights Using Indicators: A Focus on the Right to Education in the ICESCR, 32 HUM. RTS. Q. 253, 274-75 (2010) (replicating the 4A framework for the right to education). 553 ROBERT F. KENNEDY MEM’L CTR. FOR HUMAN RIGHTS, supra note 549, at 45. 554 Id. at 47. 555 The following definitions of the 5A’s are based on existing elaborations but focus on cultural rights to reflect the human rights claims of the communities concerned. 556 ROBERT F. KENNEDY MEM’L CTR. FOR HUMAN RIGHTS, supra note 549, at 44. 557 CESCR General Comment No. 21, supra note 49, at ¶ 16(a). 112

• Accessibility requires the content of human rights provisions to be physically and economically attainable for everyone without discrimination.558 It further includes access of everyone to information and means of communication to share and disseminate such information in the language of choice.559

• Acceptability means that the contents of rights and State obligations are of good quality and designed and realized in a culturally appropriate manner so that everyone can accept them.560 States need to consult with individuals and communities to guarantee that measures are acceptable for the population and respect cultural diversity.561

• Adaptability requires States to take a flexible approach to human rights implementation, considering the needs of the local population and their diverse cultural backgrounds.562 State measures therefore need to be customized to the circumstances on the ground.

• Accountability ensures that rightsholders can bring action against governmental authorities for their failure to implement human rights provisions in the local communities.563 Thus, it encourages States to effectively realize human rights provisions and allows the rightsholders to participate in the implementation and enforcement process.

The dissertation applies this 5A framework in its analysis of the domestic legal frameworks of Colombia and Nicaragua and the realization of the relevant international and domestic legal norms in the communities concerned.

Structural, Process, and Outcome Human Rights Indicators

Human rights indicators serve to measure States’ implementation of international human rights provisions. They are defined as “specific information on the state of an event, activity or an outcome that can be related to human rights norms and standards; that address and reflect the human rights concerns and principles; and that are used to assess and monitor promotion and

558 ROBERT F. KENNEDY MEM’L CTR. FOR HUMAN RIGHTS, supra note 549, at 45 (adding that accessibility is closely related to availability as institutions that citizens cannot reach for financial reasons are both inaccessible and unavailable). 559 CESCR General Comment No. 21, supra note 49, at ¶ 16(b). 560 Kalantry et al., supra note 552, at 278. 561 CESCR General Comment No. 21, supra note 49, at ¶ 16(c). 562 Kalantry et al., supra note 552, at 279. 563 ROBERT F. KENNEDY MEM’L CTR. FOR HUMAN RIGHTS, supra note 549, at 45. 113

protection of human rights.”564 More specifically, indicators allow States and other human rights actors to measure the extent to which (1) a State is in compliance with human rights norms and

(2) the rightsholders effectively enjoy the protection of rights.565 The purpose is to facilitate the monitoring process of international human rights treaties, highlight violations of human rights provisions, strengthen States’ accountability for their failure to implement these provisions, and assist States in adopting public policies and legislative measures.566 Thus, they are a useful tool to highlight the gaps in States’ efforts to effectively realize international and local legal norms on the ground.

Indicators are divided into three categories, namely structural, process, and outcome indicators, that are defined as follows567:

• Structural indicators assess whether the State has incorporated the international human rights provisions in the domestic legislation and established institutions that are competent to translate these provisions into practice.568 Thus, they are limited to examine the formal existence of the relevant legal and institutional framework of the State.569

• Process indicators measure whether the domestic policies and institutions are designed in a way that allows for the effective implementation of human rights provisions on the ground.570 They seek to measure “the scope, coverage, and content of strategies, plans, programs, or policies, or other specific activities and

564 High Comm’r for Human Rights, Report on Indicators for Monitoring Compliance with International Human Rights Instruments, ¶ 7, U.N. Doc. HRI/MC/2006/7 (May 11, 2006). Indicators differ from benchmarks as the latter define the threshold that a State needs to fulfill in order to comply with the progressive implementation of the respective human rights provision (id. at ¶ 12). This dissertation does not address benchmarks in further details. 565 OLIVIER DE SCHUTTER, INTERNATIONAL HUMAN RIGHTS LAW 480 (2010); YVONNE DONDERS & ANNAMARI LAAKSONEN, FINDING WAYS TO MEASURE THE CULTURAL DIMENSION IN HUMAN RIGHTS AND DEVELOPMENT 5 (2009), https://ssrn.com/abstract=1657837. 566 Kalantry et al., supra note 552, at 259; see DE SCHUTTER, supra note 565, at 480; High Comm’r for Human Rights, supra note 564, at ¶ 3. 567 In addition to these categories, the IAComHR suggests collecting information about the integration of human rights in the domestic legislation, State capabilities, and budgetary allocations (Inter-Am. Comm’n on Human Rights, Guidelines for Preparation of Progress Indicators in the Area of Economic, Social and Cultural Rights, ¶ 34, OEA/Ser.L/V/II.132 Doc. 14 (July 19, 2008). The dissertation reflects these categories in the design of indicators for the claims of the communities concerned (see infra Chapters 4-5 and annexes I-III). 568 High Comm’r for Human Rights, supra note 564, at ¶ 17. 569 Inter-Am. Comm’n on Human Rights, supra note 567, at ¶ 30. 570 Kalantry et al., supra note 552, at 282. 114

interventions”571 that the States have adopted to fulfill their human rights obligations.

• Outcome indicators inquire about the actual realization of human rights provisions at the local level.572 They refer to the impact of States’ measures on the ground, demonstrating to what extent the local population enjoys the international human rights norms.573

The three groups of indicators apply to each category of the conceptual 5A framework.

With regard to structural indicators, this means that existing legal and institutional structure of a

State must be available, accessible, acceptable, and adaptable for all citizens, and citizens must be able to hold the State accountable for failing to implement this structure. Similarly, policies and laws that are designed to effectively implement human rights norms (measured by process indicators) must also be available, accessible, acceptable, and adaptable for all rightsholders, and rightsholders must be able to hold the State accountable for failing to implement such policies and laws. Lastly, the intersection of outcome indicators and the 5A framework means that the actual realization of human rights norms must be available, accessible, acceptable, and adaptable for everyone while the State must provide mechanisms to hold those accountable who impede the implementation of human rights. The analysis of such intersections provides a detailed picture of a State’s effort to implement human rights provisions on its territory.574

International human rights bodies and scholars have used indicators to assess the realization of civil, political, economic, social, and cultural human rights.575 In the Inter-

American human rights system, indicators have primarily been used to monitor the rights

571 Inter-Am. Comm’n on Human Rights, supra note 567, at ¶ 31. 572 High Comm’r for Human Rights, supra note 564, at ¶ 19. 573 Kalantry et al., supra note 552, at 283; Inter-Am. Comm’n on Human Rights, supra note 567, at ¶ 32. 574 Annexes I-III (infra) provide an example of how human rights indicators intersect with selected aspects of the 5A framework in the context of the communities concerned. 575 See High Comm’r for Human Rights, Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, annex I, U.N. Doc. HRI/MC/2008/3* (June 6, 2008); High Comm’r for Human Rights, supra note 564, at annex (establishing indicators on the right to life, judicial review of detention, adequate food, and health). 115

enshrined in the Protocol of San Salvador.576 Other contributions have focused on the rights to health and education.577 For cultural human rights, the development of indicators is still in its infancy. For instance, in an attempt to measure the implementation of the Protocol of San

Salvador, the OAS designed indicators for the right to take part in cultural life.578 These OAS indicators demonstrate that the Inter-American human rights system interprets the right to participate in cultural life as limited to material and folkloric aspects of culture. Most indicators concern States’ national culture, cultural and scientific productions, goods, and services, and recreational activities.579 Only a few indicators refer to customs, world views, and lifestyles of indigenous or Afro-descendant communities,580 although indicators’ explanatory text mentions understanding culture as a way of life.581 Other indicators on historically marginalized

576 ORG. OF AM. STATES, PROGRESS INDICATORS FOR MEASURING RIGHTS UNDER THE PROTOCOL OF SAN SALVADOR, OEA/Ser.D/XXVI.11 (2d ed., 2015). 577 Kalantry et al., supra note 552; ROBERT F. KENNEDY MEM’L CTR. FOR HUMAN RIGHTS, supra note 549; Paul Hunt (Special Rapporteur of the Commission on Human Rights on the Right of Everyone to Enjoy the Highest Attainable Standard of Physical and Mental Health), Interim Report, U.N. Doc. A/58/427 (Oct. 10, 2003); OSCAR PARRA VERA, DEFENSORÍA DEL PUEBLO DE COLOM., EL DERECHO A LA SALUD EN LA CONSTITUCIÓN, LA JURISPRUDENCIA Y LOS INSTRUMENTOS INTERNACIONALES [THE RIGHT TO HEALTH IN THE CONSTITUTION, JURISPRUDENCE, AND INTERNATIONAL INSTRUMENTS] (2003); MANUEL EDUARDO GONGORA MERA, DEFENSORÍA DEL PUEBLO DE COLOM., EL DERECHO A LA EDUCACIÓN EN LA CONSTITUCIÓN, LA JURISPRUDENCIA Y LOS INSTRUMENTOS INTERNACIONALES [THE RIGHT TO EDUCATION IN THE CONSTITUTION, JURISPRUDENCE, AND INTERNATIONAL INSTRUMENTS] (2003). 578 ORG. OF AM. STATES, supra note 576, at 109-19. 579 E.g., id. at 112 (“Percentage of persons attending cultural presentations or shows over the past year.”); id. at 112- 13 (“Percentage of persons who went to cultural or sports venues (parks, museums, etc.) over the past year.”); id. at 113 (“Legislation that protects the moral and material interests of the authors of scientific, literary and artistic production… Estimated average time per day that the country’s inhabitants spend on enjoying culture or consuming cultural goods and services.”); id. at 114 (“Provision in the Constitution establishing the priority that the State must give to public spending on cultural rights and science.”); id. at 115 (“Cultural facilities for every 100,000 inhabitants… Percentage growth of persons who have gone to cultural venues over the past five years.”). 580 E.g., id. at 117 (“Rate of growth or decline of the population speaking first-nation languages.”); id. at 118 (“Constitutional and legal mechanisms to protect ethnic and cultural diversity (and linguistic diversity)… The judiciary system envisages traditional justice for indigenous peoples… Case law in the following fields: i) anti- discrimination for cultural reasons in access to social rights and to State programs or for cultural reasons at work; ii) protection of moral and material interests of authors of cultural and scientific production; iii) minimum wage of minority groups at risk; iv) limits of cultural autonomy, v) access to cultural goods, vi) protection of cultural goods, vii) guarantee and protection of freedom of religion, freedom of expression, protection of the free development of the personality, and academic freedom; viii) conscientious objection… Number of cases that used prior informed consent from ILO Convention 169.”). 581 Id. at 109. 116

population groups focus on folkloric expressions of culture.582 Promoting such expressions is undoubtedly important but insufficient to overcome the communities’ marginalization. From a scholarly perspective, DONDERS & LAAKONEN suggest several indicators for the right to take part in cultural life that are related to “minorities and other groups of specific needs in cultural life.”583 These indicators are however broadly formulated and provide little guidance to States on how to empower marginalized population groups, including the communities concerned.584

Virtually all human rights indicators are designed to measure the nationwide implementation of rights and do not consider the particularities of specific local contexts. While this approach is certainly appropriate to assess the overall implementation of a human rights provision in a given State, it neglects the circumstances of local communities and the specific human rights violations they suffer. The indicators designed in this dissertation deviate from this approach and are tailored to the needs of the communities concerned.585 Such focus on the local context offers a unique tool to highlight the communities’ precarious human rights situation and sheds light on the interactions of international human rights law, domestic institutional and legal frameworks, and local particularities.

582 E.g., id. at 118 (“Cultural, artistic or academic activities representative of historically excluded sectors.”). 583 DONDERS & LAAKSONEN, supra note 565, at 11. 584 See Comm. on Econ., Soc. & Cultural Rights, Guidelines on Treaty-Specific Documents to Be Submitted by States Parties Under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, ¶ 69, U.N. Doc. E/C.12/2008/2 (Mar. 24, 2009) (urging States to “[i]ndicate the measures taken to protect cultural diversity, promote awareness of the cultural heritage of ethnic, religious or linguistic minorities and of indigenous communities, and create favourable conditions for them to preserve, develop, express and disseminate their identity, history, culture, language, traditions and customs.”). 585 See infra annexes I-III. It is noteworthy that the indicators elaborated in this dissertation are by no means exhaustive. The dissertation is limited to develop and describe the most relevant indicators that highlight specific challenges of human rights implementation in the communities concerned. 117

CHAPTER 4

OWNERSHIP, CONTROL, AND USE OF ANCESTRAL LAND AND ITS NATURAL RESOURCES

Ownership, control, and use of traditional lands586 are essential for the economic, social, and cultural survival of the communities concerned.587 The communities concerned desire land rights to carry out subsistence activities on their territory and safeguard their economic and spiritual wellbeing. However, while both communities concerned highlight the importance of securing and implementing land rights, they value different aspects of these rights. The community of Tierrabomba demands the State to demarcate their traditional land and give them collective ownership title over it, take measures to protect their territory against erosion, and allow them to participate in the decision-making processes concerning the land titling and the development of protection measures against erosion. The community of Orinoco seeks protection from third parties illegally settling and farming on their traditional lands. Despite these differences in legal claims, this chapter combines the land rights issues of both communities concerned since the international human rights norms applicable to these claims are similar. This chapter first defines the land-related human rights claims of both communities concerned in legal terms. Next, it analyzes the claims under international and domestic human rights law, examining the relevant legal norms and defining the corresponding State obligations.

Lastly, it examines the implementation of these legal frameworks in each community concerned.

Such analysis serves to shed light on the interactions of the relevant international, domestic, and local human rights systems to identify their strengths and gaps.

586 The term “land” is here understood as to include also the entire territory and environment of the communities, “including forests, rivers, mountains and coastal sea, the surface as well as the sub-surface” (INT’L LABOUR ORG., supra note 161, at 91; see also article 13 ILO Convention No. 169; Inter-Am. Comm’n on Human Rights, supra note 142, at ¶ 39). 587 Eva T. Thorne, The Politics of Afro-Latin Land Rights 2 (Apr. 3, 2008) (unpublished manuscript), http://citation.allacademic.com/meta/p_mla_apa_research_citation/2/6/7/6/2/p267621_index.html#get_document. 118

Land Rights for Afro-Descendant Communities from a Human Rights Perspective

The communities concerned raise claims related to their traditional lands and the natural resources on the land to secure their economic existence and spiritual wellbeing. These claims are comparable to indigenous populations who have framed land-related claims as means to secure their cultural distinctiveness. The U.N. and Inter-American human rights systems contain references to land rights as a means to safeguard both economic and spiritual wellbeing.

However, these systems apply different legal frameworks to the land rights claims of the communities concerned depending on whether they qualify as tribal peoples or not.588

The OAS Charter refers to land tenure as a means to overcome poverty and secure economic existence, but it does not mention the importance of land to maintain a community’s spiritual wellbeing.589 While the OAS Charter does not explicitly mention human rights norms,590 it states that land rights and control over natural resources are essential tools to overcome poverty and achieve a just society.591 The OAS Charter recognizes the importance of securing land rights to ensure economic survival in its Chapter VII on integral development.592

This Chapter VII states that equal opportunities, participation in decision-making processes, eradication of extreme poverty, and equitable wealth and income distribution are essential objectives of the integral development process. States should achieve these objectives through, inter alia, modernizing rural life and implementing an equitable and efficient land tenure

588 See supra Tribal Peoples. 589 The OAS Charter created the OAS, which has adopted numerous human rights treaties, and established the Inter- American Commission of Human Rights (article 106 OAS Charter); see also Inter-Am. Comm’n on Human Rights, Introduction, BASIC DOCUMENTS IN THE INTER-AMERICAN SYSTEM, http://www.oas.org/en/iachr/mandate/Basics/introduction-basic-documents.pdf (last visited July 7, 2019). 590 The OAS Charter does also not impose obligations that member States have towards their individual citizens (see OAS Charter). 591 Article 34 OAS Charter. 592 Article 30 OAS Charter. 119

system.593 Such measures will result in “a more just economic and social order.”594 While this reference to land rights lacks reference to the protection of spiritual wellbeing and collective lifestyles of the communities concerned, it demonstrates the importance of ownership, use, and control over land to ensure the economic existence of the people.595 The communities concerned share this understanding.596

Contrary to the OAS Charter, the U.N. and Inter-American human rights systems have explicitly recognized the spiritual importance of land for some Afro-descendant communities and connected land rights to communities’ economic survival. For instance, the U.N. Committee on the Elimination of Racial Discrimination and U.N. Working Group of Experts on People of

African Descent have acknowledged the inextricable connection between land rights and Afro- descendant communities’ material and spiritual existence.597 The Inter-American human rights system has recognized this connection only in the context of Afro-descendant communities that qualify as tribal.598 Thus, it only acknowledges the spiritual connection of the community of

Orinoco to their traditional land and not Tierrabomba because Tierrabomba does not qualify as a tribal community.

593 Article 34(d) OAS Charter. 594 Article 33 OAS Charter. 595 The OAS Charter lacks a definition of the term “land tenure system.” However, the objectives of integral development mentioned in article 34 of the OAS Charter can only be achieved if this term is understood comprehensively to include ownership rights as well as rights to use, develop, and control the land (see FOOD & AGRIC. ORG., LAND TENURE AND RURAL DEVELOPMENT (2002), http://www.fao.org/3/a-y4307e.pdf). 596 Interview with Ruben Hernandez Cassiani, Professor of History and Social Science, Univ. of Cartagena, in Cartagena, Colom. (Aug. 1, 2017) (“[T]he politics that dominate the economic level through the large-scale projects, have subjected the communities to critical neglect and poverty.”) (translation by the author); interview with Felix Sinclair, supra note 428 (“The main challenge of social injustice is that we are not in control of our natural resources, and we will never get out of poverty.”). 597 CERD General Recommendation No. 34, supra note 269, at ¶ 4(a); Human Rights Council, Rep. of the Working Group of Experts on People of African Descent on its Fifteenth and Sixteenth Sessions, ¶¶ 63, 67, U.N. Doc. A/HRC/30/56 (Aug. 6, 2015). 598 E.g., Saramaka People v. Suriname, supra note 21, at ¶ 84. 120

Land-related claims of the communities are related to collective land use. Nevertheless, international human rights law protects collective land rights only for indigenous and tribal peoples.599 The collective nature of the communities concerned’s claims is based on the premise that the existence of the community is connected to traditional land use, which ultimately ensures the wellbeing of the individual community members.600 Historically international human rights instruments have neglected such collective claims, focusing only on the individuals’ rights.601

With the rise of indigenous social movements in the past decades, international human rights norms, scholarship, and human rights’ practice have abandoned this individualistic approach particularly with regard land. The Inter-American and the U.N. human rights systems have played a prominent role in integrating collective land rights in international legal frameworks that are applicable to indigenous and tribal peoples. The Inter-American Commission on Human

Rights and Inter-American Court of Human Rights have developed vast jurisprudence that broadly interprets individually phrased human rights provisions through the principle of pro homine, which prohibits a restrictive understanding of human rights norms.602 At the U.N. level, the Human Rights Committee has included land rights of indigenous peoples under article 27 of the ICCPR.603 Thus, the international human rights system supports Afro-descendants’ collective land claims only to the extent that they qualify as “indigenous” or “tribal” peoples.

599 See supra Indigenous Peoples; Tribal Peoples. 600 Saramaka People v. Suriname, supra note 21, at ¶ 82 (“Land is more than merely a source of subsistence for them; it is also a necessary source for the continuation of the life and cultural identity of the Saramaka people. The lands and resources of the Saramaka people are part of their social, ancestral, and spiritual essence.”); Moiwana Village v. Suriname, supra note 21, at ¶¶ 132-33; Mayagna (Sumo) Awas Tingni Community v. Nicaragua, supra note 545, at ¶ 149. 601 See, e.g., article XXIII ADHR; article 21 ACHR. 602 Inter-Am. Comm’n on Human Rights, supra note 142, at ¶¶ 10-11. Considering that the indigenous rights jurisprudence of these institutions has been compiled and discussed elsewhere (see, e.g., id.), this section highlights only the legal standards that are relevant for the communities concerned. 603 NOWAK, supra note 462; see also U.N., Human Rights Comm., Chief Bernard Ominayak and Lubicon Lake Band v. Canada, Communication No. 167/1984, U.N. Doc. CCPR/C/38/D/167/1984 (Mar. 26, 1990); U.N., Human Rights Comm., Ivan Kitok v. Sweden, Communication No. 197/1985, U.N. Doc. CCPR/C/33/D/197/1985 (July 27, 1988). 121

Afro-descendant and other rural communities, including the community of Tierrabomba, that fall outside these categories do not enjoy collective land rights at the international level.604

Rights to Access and Protect the Traditional Land of the Community of Tierrabomba in International Human Rights Law

The community of Tierrabomba raises three land-related human rights claims. They urge the Colombian State to (1) demarcate their traditional land and grant collective property title of the land, (2) effectively protect the land from being eroded, and (3) allow them to participate in the decision-making processes on measures affecting the land.605 The subsequent sections analyze the legal protection of these claims and corresponding State obligations under U.N. and

Inter-American human rights law.

Access to Traditional Land Through Demarcation and Collective Ownership of the Land

Universal and Inter-American human rights law protects access to land under three different approaches, namely as a collective right of indigenous and tribal peoples,606 an individual right to guarantee cultural survival, and an individual right to ensure economic subsistence as analyzed below.

Access to Traditional Land as Collective Right

U.N. and Inter-American human rights laws do not effectively protect or promote the claims of the community of Tierrabomba to demarcate their traditional land and obtain collective ownership title to the land.607 These legal systems grant collective land ownership only to

604 See supra Application of the Relevant Human Rights Terminology to Afro-Descendants. 605 See supra Ownership over Traditional Land; Protection of the Traditional Land from Erosion. 606 International human rights law grants the same collective land rights to indigenous and tribal peoples (see supra Tribal Peoples). 607 International human rights law does not contain an explicit right to land. In general, it only contains provisions related to land for indigenous and tribal peoples (e.g., ILO Convention No. 169) and women (articles 14(2)(g), 15(2), and 16(1)(h) of the Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 122

indigenous and tribal peoples. The right “to own property alone as well as in association with others,”608 is established in article 17 UDHR and has been replicated in article 5(d)(v) ICERD.609

While wording of these provisions do not explicitly limit collective land titling to indigenous communities, article 17 UDHR and article 5(d)(v) ICERD have not been developed in legal scholarship or practice. Other human rights treaties, treaty bodies, and legal scholars have applied collective land rights only to indigenous and tribal peoples.610 Collective land rights have generally been framed as a tool to protect cultural distinctiveness of population groups while neglecting other, particularly economic, reasons to grant such rights.611 Tierrabomba does not enjoy collective land rights under international human rights law because it does not qualify as indigenous or tribal community.

The international human rights community has increasingly acknowledged that rural communities not within the categories of indigenous or tribal peoples may raise collective land claims.612 In 2018, the U.N. General Assembly adopted the U.N. Declaration on the Rights of

Peasants and Other People Working in Rural Areas, which includes a protection of collective land claims of non-indigenous and non-tribal communities. In particular, the Declaration states in its article 17, “[p]easants and other people living in rural areas have the right to land,

1979, 1249 U.N.T.S. 13 [hereinafter CEDAW]). The right to land and property of women is however not developed in more details. 608 Art. 17(1) UDHR. 609 Art. 5(d)(v) ICERD (“States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: … (d)(v) The right to own property alone as well as in association with others.”); see also Catarina Krause & Gudmundur Alfredsson, Article 17, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMON STANDARD OF ACHIEVEMENT 359, 364 (Gudmundur Alfredsson & Asbjørn Eide eds., 1999). 610 E.g., article 13 ILO Convention No. 169; Jeremie Gilbert, Land Rights as Human Rights: The Case for A Specific Right to Land, SUR INT’L J. ON HUM. RTS., June 2013, at 115, 119. 611 See supra Afro-Descendants in the Jurisprudence of the Inter-American Human Rights Bodies. 612 For instance, the Special Rapporteur on the right to food does not distinguish between indigenous and non- indigenous peoples when stating that the recognition of collective tenure forms based on customs offers effective tenure security, which is necessary to exercise the right to food (Olivier de Schutter (Special Rapporteur on the Right to Food), Rep. on the Right to Food, ¶ 22, U.N. Doc. A/65/281 (Aug. 11, 2010)). 123

individually and/or collectively, […] including the right to have access to, sustainably use and manage land and the water bodies, coastal seas, fisheries, pastures and forests therein, to achieve an adequate standard of living, to have a place to live in security, peace and dignity and to develop their cultures.”613 This provision grants collective land rights to rural communities that do not qualify as indigenous or tribal. To implement this right, States are required to legally recognize “customary land tenure rights not currently protected by law.”614 Albeit an important step towards promoting a broader understanding of collective land rights, these provisions offer an insufficient protection for the collective land claims of the community of Tierrabomba because they are not legally binding. Given that the community of Tierrabomba does not benefit from collective land rights as interpreted under international law, the next sections analyze whether the community members are entitled to individual land rights.

Access to Land as an Individual Right to Ensure Cultural Existence

International human rights law does not protect the individual right of access to land as a means to safeguard a way of life or the spiritual well-being of non-indigenous citizens. The

Committee on Economic, Social, and Cultural Rights states that the right to participate in cultural life (article 15(1)(a) ICESCR) encompasses access to a way of life that is based on the use of traditional resources, including land and water.615 However, it highlights the importance of land rights for cultural survival only in connection with indigenous peoples.616 Similarly, the OAS indicators under article 14(1)(a) Protocol of San Salvador primarily focus on measuring folkloric and material expressions of culture and recreational activities, neglecting land issues

613 Article 17 UN Declaration on the Rights of Peasants. 614 Article 17(3) UN Declaration on the Rights of Peasants. 615 CESCR General Comment No. 21, supra note 49, at ¶ 15(b). 616 Id. at ¶¶ 36, 49(d), 50(c). 124

altogether.617 Currently, interpretations of the right to participate in cultural life both at the U.N. and Inter-American levels do not recognize access to land as part of the cultural life of non- indigenous and non-tribal individuals. Thus, members of the community of Tierrabomba do not benefit from an individual right to land ownership to safeguard their way of life.

Access to Land as an Individual Right to Ensure Economic Existence

The land claims of the community of Tierrabomba enjoy greater protection under international human rights law if framed as individual claims to access land for material survival.

The individual right to property under article 17 UDHR and article 21 ACHR,618 which includes the right to privately owned land,619 has traditionally been interpreted to ensure that no one is excluded from property ownership.620 The State or third parties cannot arbitrarily interfere in existing property rights.621 In the case of Tierrabomba, this interpretation would mean that the

Colombia’s obligation is limited to not interfere with the existing property rights over the community’s territory, which are the property ownership of the municipality of Cartagena.

Unsurprisingly, human rights scholars have criticized this interpretation of the right to property arguing that it perpetuates the concentration of assets in the hands of a few.622 It fails to promote the meaningful access to property and economic and social development of less affluent people.

617 See supra Structural, Process, and Outcome Human Rights Indicators. Only two indicators seek to measure the immaterial aspects of culture, namely the indicators measuring the indigenous and Afro-descendant communities upholding their traditional way of life and the use of indigenous languages (ORG. OF AM. STATES, supra note 576, at 113, 117). 618 While the right to property has been highly controversial due to its political and ideological dimensions, the rights to property and land are essential for accessing other human rights, especially those related to economic, social, and cultural issues (Land and Human Rights, U.N., OFFICE OF THE HIGH COMM’R FOR HUMAN RIGHTS, https://www.ohchr.org/EN/Issues/LandAndHR/Pages/LandandHumanRightsIndex.aspx (last visited July 8, 2019)). 619 Salvador Chiriboga v. Ecuador, Preliminary Objections and Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 179 (May 6, 2008). 620 Krause & Alfredsson, supra note 609, at 378. 621 Id. 622 Id. at 360; see also U.N., HIGH COMM’R FOR HUMAN RIGHTS, LAND AND HUMAN RIGHTS: STANDARDS AND APPLICATIONS 53 (2015). 125

To overcome this challenge and ensure that everyone has access to property, the right to property needs to guarantee a minimum level of subsistence for everyone without discrimination.623 This human rights-based understanding of property rights is reflected in Article XXIII ADHR, guaranteeing everyone’s right to own private property “as [it] meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.” Similarly, article 26

ACHR requires States to take measures to progressively realize the economic, social, and cultural standards established in the OAS Charter, including “equitable and efficient land-tenure systems.”624 The reference to the principles of equity and efficiency underlines the importance of land for safeguarding the minimum material wellbeing of all individuals. This understanding benefits the community members of Tierrabomba as it requires the Colombian State to secure everyone’s material existence through land tenure.

Several human rights provisions, which are not directly related to property, mirror the importance of ensuring economic existence through property rights. These provisions require access to land in order to be effectively realized in practice and are therefore particularly important for the community of Tierrabomba.625 While they do not necessarily protect or promote individual land titling, they focus on securing livelihood and physical wellbeing.626 For

623 Krause & Alfredsson, supra note 609, at 378. 624 Article 26 ACHR in connection with Art. 34(d) OAS Charter; see also Antkowiak, supra note 530, at 264. It is noteworthy that the term “land-tenure systems” does not necessarily refer to ownership rights but includes all forms of tenure, such as rights of usage. 625 The IACtHR has emphasized the connection between property rights and other human rights in numerous cases concerning indigenous communities, interpreting “a surprising range of economic, social and cultural rights” of indigenous peoples into the right to property (Antkowiak, supra note 530, at 273). The field research in the communities concerned demonstrated that the close link between the right to property and other human rights also applies to non-indigenous communities since their livelihood and way of life frequently depends on land. 626 Similarly, the Social Charter of the Americas states in its article 11 that “[a] property rights system should provide the peoples of the Americas with legal certainty, facilitate capital formation, and promote economic development with social justice, all of which contribute to their prosperity.” The Special Rapporteur on the right to food also highlighted that individual land titling might have unintended negative consequences for small landholders because it could result in reinforcing unequal land distribution if the titling process is corrupted and non-transparent (de Schutter, supra note 612, at ¶ 17). It also bears the risk to conflict with customary communal tenure forms and increases the risk of real estate speculations (id. at ¶ 18). 126

instance, access to land is essential to guarantee the rights to adequate food and housing, and both are included in the right to an adequate standard of living enshrined in article 25 UDHR and article 11(1) ICESCR.627 In particular, the right to food requires that individuals have access to land or other natural resources to produce their own food.628 The Special Rapporteur on the

Right to Food clarified that States should abstain from taking actions that may prevent access to food production resources, protect access from violations by third parties, and adopt measures to guarantee livelihood.629 This interpretation corresponds to the community’s need to remain on the island to be able to catch fish for their own consumption and for sale.630 Further, legally secured land ownership protects individuals’ right to adequate housing against forced eviction or other threats.631 States have the obligation to grant some form of land right security to people who might be affected by evictions.632 However, land right security does not necessarily mean legal ownership of a specific land parcel. Instead, it asserts the importance of access to land to ensure adequate housing and food by ensuring effective access to land.633 These land rights could range from granting different rights of use, such as lease or usufruct, to individual or collective land ownership, and also includes the recognition of customary land rights.634 Thus,

627 It is noteworthy that other human rights also have a close link to property rights, such as the rights to social security, work, and freedom of movement and residence. Addressing these rights in more details would however exceed the scope of the dissertation. 628 Comm. on Econ., Soc. & Cultural Rights, General Comment No. 12: The Right to Adequate Food (Art. 11), ¶ 12, U. N. Doc. E/C.12/1999/5 (May 12, 1999) (stating that individuals should have the possibility to either produce their own food or purchase it in a functioning market system). 629 de Schutter, supra note 612, at ¶ 2. 630 See supra Ownership over Traditional Land. 631 Article 11(1) ICESCR; Comm. on Econ., Soc. & Cultural Rights, General Comment No. 4: The Right to Adequate Housing (Art. 11 (1) of the Covenant), ¶ 8(a), U.N. Doc. E/1992/23 (Dec. 13, 1991) [hereinafter CESCR General Comment No. 4]; see also Gilbert, supra note 610, at 125 (“[T]he connection between housing and land rights seems to be a strong feature of human rights law.”). 632 CESCR General Comment No. 4, supra note 631, at ¶ 8(a). 633 CESCR General Comment No. 4, supra note 631, at ¶ 8(e) (“[I]ncreasing access to land by landless or impoverished segments of the society should constitute a central policy goal”); O.A.S. Permanent Council, supra note 63, at ¶ 6.3 (stating that under the Social Charter of the Americas States should “promote programs that allow improved access to land and to affordable housing” in order to improve housing options); de Schutter, supra note 612, at ¶¶ 22-24. 634 CESCR General Comment No. 4, supra note 631, at ¶ 8(a); de Schutter, supra note 612, at ¶¶ 22-24. 127

the community members of Tierrabomba, as individual rights holders, enjoy the right to access land under the rights to food and adequate housing, but international human rights law is ambiguous regarding the specific form of individual entitlement to the land.635

In sum, only the rights to property, adequate food, and housing offer community members legal protection as individual rightsholders who depend on land for their material existence. This legal framework is inadequate to protect the human right claim of the community of Tierrabomba to obtain collective land title of traditional land. This is because the community does not qualify as indigenous or tribal. While a separate legal framework for Afro- descendants’ land rights or the inclusion of all Afro-descendants under the indigenous and tribal peoples framework is not desired,636 a re-interpretation of “culture” is necessary to strengthen collective land rights for non-indigenous and non-tribal communities and offer collective land title to the community of Tierrabomba.637

Protection of the Traditional Land from Erosion

In addition to access to and titling of their traditional land, the community of

Tierrabomba claims protection of this land from erosion. This claim enjoys protection under the human rights provisions granting access to land to the community members of Tierrabomba, including the rights to property, food, and housing (articles 17 and 25 UDHR, article 11(1)

ICESCR, and article 21 ACHR), the right to a healthy environment in the Inter-American system

635 Given that the community of Tierrabomba’s right to land access is of individual nature, it only offers protection for pieces of land and buildings claimed by individual community members, excluding land areas of cultural and religious importance for the entire community, such as the cemetery. These places enjoy protection under the right to participate in cultural life as part of the community’s cultural heritage (cf. CESCR General Comment No. 21, supra note 49, at ¶¶ 50(a)-(c)). While the scope of such protection has not been developed in further details in international human rights law, it must include access to the places of cultural heritage; otherwise the protection would be meaningless. 636 See supra Introduction. 637 See infra Recommendation 2: Taking a Flexible Approach Towards “Culture.” 128

(article 11 Protocol of San Salvador), and the rights to housing, work, and participation in cultural life (articles 6, 11(1), and 15(1)(a) ICESCR, article 14(1)(a) Protocol of San Salvador).

Legal protections of human rights claims to protect the traditional land of the community of Tierrabomba from erosion are closely related to the community’s rights to access their land and obtain legal ownership as established in articles 17 and 25 UDHR, article 11(1) ICESCR, article XXIII ADHR, and article 26 ACHR.638 Absent an explicit right to land for non- indigenous and non-tribal communities, international human rights law lacks a clear provision on the effective land protection in favor of individuals or non-indigenous or non-tribal communities.639 However, access to land and legally secured tenure of the land is meaningless without the land’s protection from erosion. Erosion is destroying Tierrabomba land and preventing the community from effectively using, controlling, and developing the land in accordance with their cultural values. Access to land necessarily implies protection of the land from any form of destruction, including erosion, otherwise the access would be meaningless.640

Thus, the rights to property, housing, and food that grant the members of Tierrabomba access to and some form of legal title over their individual land parcel to secure their economic existence, must also include the right to protection of the land from erosion.

Through its interpretation of environmental rights,641 the Inter-American human rights system offers an additional legal framework to protect the traditional land of the community

638 See supra Access to Land as an Individual Right to Ensure Economic Existence. 639 For indigenous and tribal peoples, see article 14(2) ILO Convention No. 169. 640 The Inter-American human rights bodies have adopted this approach for indigenous and tribal peoples. They have integrated issues of environmental degradation caused by development projects into the right of indigen ous and tribal peoples to their ancestral land under to article 21 ACHR, ordering States to take protective measures (Maya Indigenous Communities of the Toledo District v. Belize, supra note 161; Kichwa Indigenous People of Sarayaku v. Ecuador, Merits and Reparations, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 245 (June 27, 2012); see also Alan Boyle, Human Rights or Environmental Rights? A Reassessment, 18 FORDHAM ENVTL. L. REV. 471, 475 (2006)). 641 The relationship between environmental law and human rights law has been elaborated and discussed elsewhere (see Rebecca Bratspies, Do We Need a Human Right to a Healthy Environment?, 13 SANTA CLARA J. INT’L L. 31, 129

members of Tierrabomba from erosion.642 First, the right to a healthy environment enshrined in article 11 Protocol of San Salvador requires States to “promote the protection, preservation, and improvement of the environment.”643 This provision is drafted as an individual right, protecting the individual community member from any harm caused by environmental contamination or degradation. As one of the least elaborated rights of the Inter-American human rights system, its scope of protection has not yet been clarified.644 However, in its Advisory Opinion No. 24, the

Inter-American Court of Human Rights interprets the right to a healthy environment as an autonomous right in the Inter-American human rights system that protects the environment as such.645 The Court considers this right to form part of article 26 ACHR as it relates to the notion of integral development established in Chapter VII of the OAS Charter.646 Advisory Opinion

No. 24 asserts that States have the obligation to mitigate “significant damage to the environment,”647 guaranteeing certain procedural rights, such as access to information, public participation, and access to justice.648 This interpretation of the right to a healthy environment gives the community members of Tierrabomba a strong legal position to demand costal protection in order to prevent further erosion of the island. The erosion has severely damaged

48-51 (2015)). This dissertation only focuses on the human rights provisions and jurisprudence referring to environmental issues. 642 At the U.N. level, article 12(2)(b) ICESCR establishes that States are required to take measures to improve “all aspects of environmental and industrial hygiene” in order to fully realize the right to health. The relevance of this provisions is however limited in the context of Tierrabomba’s land erosion because the land erosion has not caused any health issues for community members (cf. Comm. on Econ., Soc. & Cultural Rights, CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), ¶ 15, U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000)). 643 Article 11(2) Protocol of San Salvador. 644 ORG. OF AM. STATES, supra note 576, at 97. 645 The Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity – Interpretation and Scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/17, Inter-Am. Ct. H.R. (ser. A) No. 23, ¶ 62 (Nov. 15, 2017) [hereinafter Advisory Opinion No. 23 on the Environment and Human Rights]. 646 Id. at ¶ 57. 647 Id. at ¶ 172. 648 Id. at ¶ 212. The Inter-American Court of Human Rights also recognized that small islands and coastal communities are particularly vulnerable to environmental degradation due to rising sea levels and erosion (id. at ¶ 67). 130

the traditional land as it has washed away the community’s embarkation area, two rows of houses, and the cemetery. This has caused community members to relocate inlands where the ground is unsuitable for construction, or to the city of Cartagena where they do not have access to land in Tierrabomba. Considering its impact on the community,649 the damage caused by the erosion can be considered significant in light of Advisory Opinion No. 24 and thus triggers State obligations to protect the island from being eroded.650 Thus, Colombia is required to implement coastal protection measures in the community.

Lastly, the erosion directly violates community members’ individual rights to housing, work, and participation in cultural life established in articles 6, 11(1), and 15(1)(a) ICESCR and articles 7, 12, and 14(1)(a) Protocol of San Salvador.651 The erosion has already destroyed over

200 residential buildings of the community and seriously damaged others, which renders these places inhabitable, endangers the physical safety of the residents, and ultimately forces them to move.652 Moreover, the wharf has fallen victim to the sea, depriving the community members of an adequate and safe place to dock the boats and unload passengers and goods, including daily fish catch.653 The erosion also eliminated the cemetery, which constituted a place of spiritual and religious value for the community of Tierrabomba and formed part of the community’s specific way of life.654 Thus, the community members of Tierrabomba can claim a violation of

649 See supra Human Rights Claims of the Community of Tierrabomba. 650 The notions of significant damage and causal link between the cause of the damage and the damage need to be clarified in future case law of the Inter-American Court of Human Rights. 651 Articles 11 and 15(1)(a) ICESCR. 652 Cf. CESCR General Comment No. 4, supra note 631, at ¶ 8(d). 653 Cf. Comm. on Econ., Soc. & Cultural Rights, General Comment No. 23 (2016) on the Right to Just and Favourable Conditions of Work (Article 7 of the International Covenant on Economic, Social and Cultural Rights), ¶ 26, U.N. Doc. E/C.12/GC/23 (April 27, 2016) [hereinafter CESCR General Comment No. 23] (affirming the right to safe working conditions in the informal employment sector). 654 Cf. CESCR General Comment No. 21, supra note 49, at ¶¶ 13, 50(a)-(c); Athanasios Yupsanis, The Meaning of “Culture” in Article 15 (1)(a) of the ICESCR: Positive Aspects of CESCR’s General Comment No. 21 for the Safeguarding of Minority Cultures, in 55 GERMAN YEARBOOK OF INTERNATIONAL LAW 345, 349 (Walther Schücking Inst. for Int’l Law ed., 2012) (explaining the understanding of culture “as way of life, meaning the sum 131

their individual rights to housing, work, and participation in cultural life to the extent the erosion affects their home, work place, and exercise of their cultural life under these rights.

Participation and Prior Consultation in Land-Related Matters

The community of Tierrabomba demands to be consulted and participate in the decision- making processes regarding the demarcation, (individual) land titling, and coastal protection measures. While international human rights law has developed legal standards on participation, consultation, and consent regarding activities that affect land and property rights, these standards primarily apply to indigenous and tribal communities.655 Since the community of Tierrabomba does not qualify as indigenous or tribal, their human rights claim is only partially protected under international human rights norms.

American human rights system has established detailed and multi-layered legal standards on participation, consultation, and consent regarding activities that affect land and property rights based on articles XVIII and XXIII ADHR and articles 21, 23, and 25 ACHR, these standards have been limited to indigenous and tribal communities.656 U.N. human rights instruments and treaty bodies have adopted a similar approach that is based on consultation and participation under article 27 ICCPR and articles 6 and 7 ILO Convention No. 169.657 Given that the

total of the material and spiritual activities and products of a given social group which distinguishes it from other similar groups” [emphasis in the original]). 655 For the legal standards on participation, consultation, and consent of indigenous and tribal peoples, see infra Participation Rights of the Indigenous and Tribal Peoples. 656 Advisory Opinion No. 23 on the Environment and Human Rights, supra note 645, at ¶ 227; CESAR RODRIGUEZ GARAVITO ET AL., LA CONSULTA PREVIA A PUEBLOS INDÍGENAS: LOS ESTÁNDARES DEL DERECHO INTERNACIONAL [PRIOR CONSULTATION OF INDIGENOUS PEOPLES: THE STANDARDS OF INTERNATIONAL LAW] (2010). 657 Yupsanis, supra note 654, at 371-72. 132

community of Tierrabomba falls outside the definition of indigenous and tribal peoples, it does not benefit from these legal standards.

Outside the context of indigenous and tribal peoples’ rights, several international human rights provisions, particularly the rights to participation in cultural life and environmental protection, guarantee individuals the right to consultation and participation in decision-making processes.658 These rights do not require individuals to consent to a given government measure but more vaguely refer to “participation” and “consultation.”659 The Committee on Economic,

Social, and Cultural Rights has clarified that the right to participate in cultural life (article

15(1)(a) ICESCR) requires States to enact legislation and establish mechanisms related to citizen participation.660 These measures must enable all persons individually or within a community to effectively participate in decision-making processes. States further have the core obligation “[t]o allow and encourage the participation of persons belonging to minority groups, indigenous peoples or to other communities in the design and implementation of laws and policies that affect them.”661 While these State obligations are an important step towards strengthening the consultation rights of non-indigenous communities,662 the Committee has not elaborated in further detail. They concern only claims falling under the right to participate in cultural life.663

Therefore, the relevance for the land rights of the community members of Tierrabomba is limited

658 International human rights law also grants the right to participate in public affairs as part of a democratic government system (article 25 ICCPR; article 23 ACHR). Since this right focuses on political participation in governmental affairs, the dissertation does not deal with it in further details (see NOWAK, supra note 462, at 564- 96). 659 For an explanation of the right to consent, see infra Participation Rights of the Indigenous and Tribal Peoples. While legal scholars and human rights actors debate whether the right to free, prior, and informed consent amounts to customary international law, this right has so far been limited to indigenous and tribal peoples and does therefore not apply to the community of Tierrabomba (Tara Ward, The Right to Free, Prior, and Informed Consent: Indigenous Peoples' Participation Rights within International Law, NW. J. INT’L HUM. RTS., Winter 2011, at 54, 54). 660 CESCR General Comment No. 21, supra note 49, at ¶ 54(a). 661 Id. at ¶ 55(e). 662 Yupsanis, supra note 654, at 370. 663 CESCR General Comment No. 21, supra note 49, at ¶¶ 54, 55. 133

to the claims concerning access to and protection of cultural heritage and religious places such as the cemetery.664

Participatory rights in environmental decision-making processes, particularly those related to the design and implementation of coastal protection measures in Tierrabomba, are more established.665 The Inter-American Court of Human Rights defines public participation as a procedural right of individuals to improve the formulation of public environmental policies.666

It specifies that States should ensure people’s effective participation through public meetings, consultations, and other means from the early stages of the decision-making processes.667 Based on this legal framework on environmental protection, the community members of Tierrabomba are entitled to participate in the coastal protection efforts through public consultations procedures. This legal protection is granted to them as individuals who are affected by the coastal protection measures. While the consultation and participation rights of the community members of Tierrabomba are adequate regarding the coastal protection measures, a stronger legal protection of their claim to have a voice in land-related procedures is required. The proposed model framework of this dissertation offers the legal foundation of such protection by strengthening existing consultation and participation rights.668

664 The Committee on the Elimination of Racial Discrimination has stressed the importance of Afro-descendants “to participate in decisions that affect them” in broader terms, but this statement is only a recommendation and not a right (CERD General Recommendation No. 34, supra note 269, at ¶ 42). 665 Advisory Opinion No. 23 on the Environment and Human Rights, supra note 645, at ¶¶ 226-32; Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, June 25, 1998, 2161 U.N.T.S. 447; Rio Declaration on Environment and Development, Principle 10, June 13, 1992, 31 I.L.M. 874; Declaration of the United Nations Conference on the Human Environment, June 16, 1972, 11 I.L.M. 1416. 666 Advisory Opinion No. 23 on the Environment and Human Rights, supra note 645, at ¶ 64. 667 Id. at ¶ 232. 668 See infra Recommendation 1: Giving the Communities Concerned Effective Agency in Decision-Making Processes Affecting Them. 134

Corresponding State Obligations

The rights to access traditional land and protect it from erosion are based on the rights to property, housing, food, participation in cultural life, and a healthy environment. These rights are enshrined in article 17 UDHR and article 21 ACHR (rights to property), article 25 UDHR and article 11 ICESCR (rights to an adequate standard of living), article 26 ACHR (economic, social, and cultural rights), article 15(1)(a) ICESCR (right to participate in cultural life), and article 11 Protocol of San Salvador (right to a healthy environment). This legal framework imposes immediate and progressive obligations to respect, protect, and fulfill the community members’ property and participation rights. These obligations are necessary to ensure access to land as basis for the material survival of individual community members, protect the land from erosion, and consult with the inhabitants of Tierrabomba in the design of coastal protection measures. Colombia’s obligations do not protect the community of Tierrabomba, but they do protect individual community members since the rights are phrased as individual entitlements.669

In order to effectively protect and promote the right to land access and protection from erosion, the minimum core obligations to be implemented immediately must focus on preventing forced displacement of the members of the community of Tierrabomba. If not, the rights to land access and protection lack any practical relevance. Forced displacement would result in cultural assimilation of the community members with the larger Colombian society.670 It would require community members to move to Cartagena, destroying the social cohesion among the community and depriving them of their economic, social, and cultural existence. This existence

669 The domestic legal framework of Colombia protects the collective dimension of land claims of the community of Tierrabomba. Article 29(b) ACHR orders the Inter-American Court of Human Rights to consider such domestic law because it offers greater protection than the ACHR (see supra Context-Specific Interpretation of Cultural Human Rights and Resulting State Obligations). The subsequent list of State obligations is however limited to international human rights law to highlight to what extent such law protects and promotes the community’s land claims. 670 Cultural assimilation is one of the core obligations inherent in article 15(1)(a) ICESCR (see supra State Obligations Resulting from Cultural Human Rights). 135

is connected to access to the sea and traditional land.671 As a result, Colombia has the following obligations to safeguard the rights to access the traditional land and protection from erosion672:

1. Obligation to respect: Colombia has the obligation to refrain from conferring private ownership over the community members’ land to third parties, such as investors from the tourist industry, and to refrain from any State action that might interfere with the community members’ interest in or enjoyment of the land.

2. Obligation to protect: Colombia is required to prevent third parties, in particular investors from the tourist industry, from developing business projects on the traditional land of the community members of Tierrabomba until the individual land rights are clarified.

3. Obligation to fulfill:

a. Colombia has the obligation to take immediate measures of coastal protection, such as constructing emergency breakwaters, so that the lands and buildings that are at the highest risk of being eroded remain intact and the community members of Tierrabomba do not lose housing or places of work or cultural and religious importance.673

b. Colombia is required to inform the community members of Tierrabomba of their participation rights, consult with them, and allow them to effectively participate in the decision-making process concerning the immediate measures of coastal protection to ensure that these measures effectively protect the environment as well as cultural heritage and religious places that are at the highest risk of being eroded, such as the cemetery.674

Colombia’s obligations of progressive realization serve to stabilize the community members’ access to land and mitigate the long-term effects of the land erosion. While the implementation of these obligations depends on the State’s financial resources, Colombia must

671 Cf. CESCR General Comment No. 21, supra note 49, at ¶ 55 (clarifying that under article 15(1)(a) ICESCR States have the core obligation “to create and promote an environment within which a person individually, or in association with others, or within a community or group, can participate in the culture of their choice.”). 672 Most State obligations mentioned below concern the municipality of Cartagena. However, the dissertation refers to Colombia in general since human rights law imposes obligations on the State without specifying the domestic institution or governmental level that is responsible for the implementation of such obligations. 673 Cf. Advisory Opinion No. 23 on the Environment and Human Rights, supra note 645, at ¶ 171. 674 Cf. CESCR General Comment No. 21, supra note 49, at ¶ 55(e). The right to effective participation and consultation is an essential element of the core obligation under article 15(1)(a) ICESCR to prevent forced assimilation since it ensures that the State considers the cultural and religious importance of certain places or elements when designing specific measures. 136

take continuing measures to grant land access and protection from erosion. This guarantees the minimum level of material well-being of the community members of Tierrabomba.675 Thus,

Colombia has the following obligations of progressive realization:

1. Obligation to respect: Colombia has the obligation to respect the community members’ free choice to remain on their traditional land, and grant them direct access to the sea, their main source of food and economic income.

2. Obligation to protect: Upon clarification of the land rights of the community members, Colombia has the obligation to prevent third parties from developing business projects, such as hotels and other tourist activities, that interfere with the land tenure rights of the community members.

3. Obligation to fulfill:

a. Colombia has the obligation to confer a legal form of land rights to the community members of Tierrabomba to ensure their stay on the island. The land tenure form could include legal ownership, usufruct, or another effective right of use.676

b. Colombia has the obligation to construct breakwaters that hinder the further erosion of the land pieces of all community members as well as the lands of cultural and religious importance for the community.677

c. Colombia is required to consult with the community members of Tierrabomba and allow their effective participation in decision-making processes that affect the environment as well as religious and cultural places of the community or concern the coastal protection measures.

In sum, the obligations of immediate effect compel Colombia to undertake measures to respect, protect, and fulfill the community members’ existence on their land without delay. The obligations of progressive realization seek to secure their long-term stay on the island of

Tierrabomba. These obligations of immediate effect and progressive realization ensure that the

675 See supra Access to Traditional Land. 676 Individual ownership titles might however not be beneficial for the community members since they could increase real estate marketability, speculations, and property values. Such development of the property situation might ultimately result in the expulsion of the community members as they will be unable to pay the property taxes that increase with the value of the property. 677 Contrary to the above-mentioned State obligation to fulfill with immediate effect, this State obligation to fulfill is not limited to protecting the land that is at the highest risk of erosion. It encompasses all land parcels of the community members of Tierrabomba. 137

community members may stay on the island to secure their main source of food and economic income. As laid out in the human rights framework, these obligations do not specify the type of land tenure that Colombia should give to the community inhabitants. Further, the obligations guarantee that Colombia implements coastal protection measures to mitigate the erosion and its impact on the community members. Finally, they specify that Colombia is required to engage the community members in the procedures to design and implement the coastal protection measures. Thus, the obligations protect Tierrabomba’s land-related human rights claims to the extent that they can be phrased as individual rights to secure the economic existence of community members.

Rights to Use and Enjoy the Traditional Land and Natural Resources of the Community of Orinoco in International Human Rights Law

The following sections examine the human rights claim of the community of Orinoco to use and enjoy their traditional land and natural resources. The community of Orinoco urges the

Nicaragua to protect the effective use and enjoyment of the traditional land and natural resources by preventing third parties, particularly farmers from the Pacific coast, from settling on the traditional land against the community’s will. Further, the community wishes the State would evict those already settled on the territory. The sections analyze this claim in light of U.N. and

Inter-American human rights law and elaborate relevant State obligations.

Use of Traditional Land and Natural Resources without Outside Interference

As a tribal community, the community of Orinoco benefits from the international human rights standards protecting the collective rights to possess and use their land and natural resources. They are guaranteed this right without any outside interference and must be consulted on any measures aimed at evicting third party settlers on their territory. While international

138

human rights bodies have developed these rights mostly in the context of indigenous peoples’ claims, the Inter-American human rights system has applied them to tribal peoples as outlined below.

Indigenous and Tribal Peoples’ Right to Unhindered Use of Traditional Land and Natural Resources

International human rights law has developed extensive legal standards on indigenous and tribal peoples’ right to use their traditional lands. International law guarantees access to natural resources free from third-party interference. The Inter-American human rights system offers particularly strong protections of this right and emphasizes its collective nature to the benefit of the entire community. In its jurisprudence on indigenous and tribal peoples, the Inter-

American human rights system places the right to possess, use, and control traditional land at

“the very core of the right to property.”678 This has been established in article 21 ACHR as an essential right to maintain the indigenous and tribal communities’ collective cultural and economic existence.679 These property rights are only effective in practice if third parties do not interfere with traditional lands.680 It is therefore not sufficient to grant collective land title to indigenous and tribal communities. These communities must be able to effectively use and control the traditional land without disturbance from third parties. Third parties are only allowed to use, develop, and control ancestral lands if the indigenous and tribal peoples have given their full and informed consent and received adequate compensation.681 Such understanding is

678 Mayagna (Sumo) Awas Tingni Community v. Nicaragua, supra note 545, at ¶ 143; Inter-Am. Comm’n on Human Rights, supra note 142, at ¶ 46. 679 Saramaka People v. Suriname, supra note 21, at ¶ 121. 680 Id. at ¶ 151. In a report on the human rights situation in Brazil, the Inter-American Commission on Human Rights condemned illegal intrusion of non-indigenous settlers on indigenous land as usurpation, adding that State authorities have consented to and supported such intrusion (Inter-Am. Comm’n on Human Rights, Report on the Situation of Human Rights in Brazil, ¶ 44, OEA/Ser.L/V/II.97 Doc. 29 rev.1 (Sept. 29, 1997)). 681 Mary and Carrie Dann v. United States, Case 11.140, Inter-Am. Comm’n H.R., Report No. 75/02, OEA/Ser.L/V/11.117 Doc. 5 rev. at 960, ¶ 131 (2003). 139

confirmed in article 18 ILO Convention No. 169, establishing that States are required to prevent unauthorized encroachment upon, and use of, the indigenous peoples’ lands and to punish any perpetrators.682 Thus, international human rights law protects the traditional land of the community of Orinoco from settlements and activities of farmers from the Pacific coast.

The right to collectively use and control natural resources on the communal land protects the community of Orinoco’s ability to prevent farmers from settling on their traditional land.683

This right applies to Orinoco as a tribal community. It forms part of the right to property of indigenous and tribal peoples and prohibits illegal activities by third parties on indigenous and tribal lands, including mining, logging, and fishing, This right is limited to the natural resources that are “traditionally used and necessary for the very survival, development and continuation of

[indigenous and tribal] people’s way of life,”684 such as forests or water resources.685 The community of Orinoco traditionally engages in agriculture in the hinterlands. The settlements of third parties on these lands and the related wood-logging activities of the settlers destroy the community’s subsistence resources, violating the collective right to natural resources.686

682 See also article XXV(1)-(3) ADRIP; articles 26 and 29(1) UNDRIP; INT’L LABOUR ORG., supra note 161, at 97. 683 Sawhoyamaxa Indigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 146 (March 29, 2006); Yakye Axa Indigenous Community v. Paraguay, supra note 160. 684 Saramaka People v. Suriname, supra note 21, at ¶ 122; see also CESCR General Comment No. 21, supra note 49, at ¶ 36. 685 See also Comm. on the Elimination of Racial Discrimination, General Recommendation XXIII on the Rights of Indigenous Peoples, U.N. Doc. A/52/18, Annex V, ¶ 5 (1997). 686 Saramaka People v. Suriname, supra note 21, at ¶ 123. The right to effectively use and enjoy the traditional land and natural resources without external interference is however not absolute and may be restricted if the restriction is provided by law, necessary, and proportionate, pursues a legitimate democratic goal, and does not pose a threat to the existence of the indigenous or tribal community (id. at ¶¶ 127-28; article 21 ACHR). The State fulfills the latter condition if it consults with the community in accordance with their customary values and cultural norms prior to adopting any decision or measure that may affect the community’s rights to land and natural resources, such as establishing or tolerating settlements of non-indigenous peoples on community land (Saramaka People v. Suriname, supra note 119, at ¶ 129 (adding that the State must also carry out an environmental impact assessment and share the benefits of the extractive activities with the community)). The conditions for restricting the right to use and enjoy the traditional land and natural resources of the community of Orinoco are not fulfilled since the settlements of third parties on communal land lack legal basis, and the community of Orinoco has not been consulted about the settlements. 140

International human rights law protects the claim of the community of Orinoco to relocate the illegal settlers from their traditional lands and regain effective possession of the concerned areas.687 Unauthorized intrusions into indigenous and tribal peoples’ territories threaten the territorial, physical, and cultural integrity of these peoples.688 Third party actors must be removed in a process called “land clearance.” Land clearance, or “saneamiento de tierras” in Spanish, is defined as the State’s removal of any outside interference from ancestral territories of indigenous or tribal peoples during or after the collective land titling process.689

The Inter-American Court of Human Rights established that States have the obligation to relocate third party settlers in exchange for compensation so that indigenous and tribal peoples can effectively and peacefully enjoy their collective land titles.690 This obligation must also apply to illegal settlers that intrude the traditional lands. Removal is a precondition for the indigenous and tribal peoples to exercise all rights related to their ancestral territory. Thus, international human rights law grants the community of Orinoco the right to enjoy the use of their traditional land and the natural resources on that land without interference from illegal settlers. It also supports the community’s claim to evict settlers from traditional lands.

Participation Rights of the Indigenous and Tribal Peoples

International human rights law includes the rights of indigenous and tribal peoples to participate in decision-making processes that might affect their rights or interests. These participation rights grant the community of Orinoco the right to participate in developing and implementing the State’s measures to expel third-party settlers from their land. In general, these

687 Inter-Am. Comm’n on Human Rights, supra note 142, at ¶¶ 48-49. 688 Inter-Am. Comm’n on Human Rights, supra note 680, at ¶ 82(a). 689 Community Garifuna Punta Piedra and its Members v. Honduras, supra note 21, at ¶ 181. 690 Xucuru Indigenous People and its Members v. Brazil, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 346, ¶ 124 (Feb. 5, 2017); Community Garifuna Punta Piedra and its Members v. Honduras, supra note 21, at ¶ 181. 141

rights include some form of consultation with indigenous and tribal peoples with the aim of obtaining their consent for State measures or policies.691 In the 1980’s, consultation rights of indigenous and tribal peoples emerged in international human rights discussions.692 These rights are rooted in the overarching principles and rights to self-determination, popular sovereignty, and non-discrimination.693 Further, consultation rights are based on the understanding that there is a need to overcome indigenous and tribal peoples’ historic marginalization and allow them to regain control over their traditional territories according to their own cultural values.694 More specifically, the Inter-American human rights system has relied on articles XVIII (right to a fair trial) and XXIII ADHR (right to property), articles 21 (right to property), 23 (right to public participation), and 25 ACHR (right to judicial protection), and the ILO Convention No. 169 to guarantee consultation rights, particularly in land-related matters.695 The ILO Convention

No. 169 is the only legally binding international instrument that explicitly mentions consultation rights of indigenous and tribal peoples. States must consult with indigenous and tribal peoples when adopting legislative or administrative measures that might affect them (article 6), extracting or planning to extract the communities’ sub-surface resources (article 15), or relocating them from traditional territory (article 16).696 The UNDRIP incorporates stronger

691 Belen Olmos Giupponi, Free, Prior and Informed Consent (FPIC) of Indigenous Peoples before Human Rights Courts and International Investment Tribunals: Two Sides of the Same Coin?, 25 INT’L J. ON MINORITY & GROUP RTS. 485 (2018). 692 Carla F. Fredericks, Operationalizing Free, Prior, and Informed Consent, 80 ALB. L. REV. 429, 430 (2017). 693 Id. 694 James Anaya (Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples), Rep. on the Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, ¶ 41, U.N. Doc. A/HRC/12/34 (July 15, 2009); see also Preamble UNDRIP (stating that the rights enshrined in the text are based on the right to self-determination of indigenous and tribal peoples). 695 Inter-Am. Comm’n on Human Rights, supra note 142, at ¶¶ 273-74. 696 Article 6(2) ILO Convention No. 169 establishes that States shall consult indigenous and tribal peoples “in good faith and in a form appropriate to the circumstances” when implementing the conventional rights. This provision does not define the right to prior consultation as a prerequisite for adopting measures concerning indigenous and trial peoples’ land nor does it provide them with a veto right in cases of disagreement. For these reasons, it has been criticized as insufficient to protect and promote indigenous and tribal claims (e.g., Marquardt, supra note 114, at 57). 142

articulations of consultation rights compared to the ILO Convention No. 169. It requires States to obtain indigenous peoples’ right to free, prior and informed consent for legislative, administrative, and other measures affecting them.697 While the UNDRIP is not legally binding, its provisions are emerging as customary international law norms and have been cited by the

Inter-American human rights system, gaining increasing importance in the human rights protection of indigenous and tribal peoples.698 Thus, the community of Orinoco enjoys consultation rights as a tribal community established in the Inter-American human rights system and ILO Convention No. 169 and informed by the UNDRIP.

The precise scope and content of the consultation rights of the community of Orinoco is not yet settled in international human rights law. Early case law of U.N. and Inter-American human rights bodies focused on consultation and participation rights. However, there is a growing trend towards State obligation to obtain indigenous and tribal peoples’ free, prior, and informed consent for State measures.699 The Inter-American human rights system and relevant treaty bodies have cited to ILO Convention No. 169 and invoked the rights to judicial protection, property, and public participation to define the scope and content of consultation rights of indigenous peoples.700 For instance, in Saramaka People v. Suriname, the Inter-American Court of Human Rights discussed the legality concessions for mining and logging on the Saramaka people’s traditional land that the State granted to a private company without consulting with the

Saramaka people. It specified State obligations resulting from consultation rights based on the right to property (article 21 ACHR). According to this judgment, the right to be consulted

697 Article 19 UNDRIP; see also Articles 10, 11, 28, 29, and 32 UNDRIP (mentioning the indigenous peoples’ right to free, prior, and informed consnt for certain measures taken by the State). 698 Saramaka People v. Suriname, supra note 21, ¶¶ 131, 136; Ward, supra note 659, at 58-59. 699 Olmos Giupponi, supra note 691, at 515. 700 Mary and Carrie Dann v. United States, supra note 681; Mayagna (Sumo) Awas Tingni Community v. Nicaragua, supra note 545; see also articles XVIII and XXIII ADHR; articles 21 and 23 ACHR. 143

applies when the State adopts legislative, administrative, or other measures to protect, ensure, or render land-related rights effective.701 This type of consultation does not need to result in the indigenous and tribal peoples’ consent to the measures; States only need to obtain their free, prior, and informed consent in case of large-scale investment projects.702 Thus, Nicaragua needs to consult with the community of Orinoco because the eviction of third-party settlers from the community’s land constitutes an administrative measure affecting the traditional territory.

Following the rules established in Saramaka People v. Suriname, Nicaragua needs to effectively consult with the community of Orinoco “according to their customs and traditions”703 while being in constant communication with them. In addition, the State is required to conduct consultations “in good faith” and ensure that they are “culturally appropriate, and have the intent of reaching an agreement.”704 Consultations are not a one-time event but “a process of dialogue and negotiation.”705 Nicaragua is required to duly consider the outcome of the consultation when adopting the measures or, if it decides not to consider such outcome, give reasons for the rejection.706 In Kichwa Indigenous Community of Sarayaku v. Ecuador, the Sarayaku people claimed that the State was in violation of their property rights for granting a private company a concession for exploring and exploiting oil on their traditional territory without consulting with them.707 The Inter-American Court of Human Rights held that the right to prior consultation of indigenous and tribal peoples amounts to “a general principle of international law”708 This applies to all States irrespective of their ratification of human rights instruments.709 Still, the

701 Saramaka People v. Suriname, supra note 21, at ¶ 133. 702 Id. at ¶ 134. 703 Id. at ¶ 133. 704 Id. 705 Inter-Am. Comm’n on Human Rights, supra note 142, at ¶ 292. 706 Id. at ¶ 285. 707 Kichwa Indigenous People of Sarayaku v. Ecuador, supra note 640, at ¶ 127. 708 Id. at ¶ 164. 709 Id. 144

right to free, prior, and informed consent has not yet crystalized as customary international law.710 Therefore, Nicaragua has an obligation to consult with the community of Orinoco when planning and adopting measures to evict the third-party settlers. The State does not need to obtain the community’s free, prior, and informed consent because these measures do not amount to a large-scale development or investment project. The right to prior consultation does not entitle the community of Orinoco to decide on the specific State measures concerning the eviction or relocation of unauthorized third parties. The specific procedures of consultation are not defined in international human rights law. This ambiguity weakens the right to prior consultation because it does not guide the State on how to implement the right, and it does not determine the scope and weight of the community’s participation in the decision-making process.711

Corresponding State Obligations

U.N. and Inter-American human rights norms as well as the corresponding jurisprudence of the Inter-American human rights system define Nicaragua’s obligations to respect, protect, and fulfill the rights of the community of Orinoco to use and enjoy their traditional lands and natural resources. Nicaragua is required to ensure that the community enjoys these rights without interference from third parties, and to evict these third parties in consultation with the community. State obligations derive from the right to property (article 23 ADHR and article 21

ACHR), judicial protection (article XVIII ADHR and article 25 ACHR), public participation

(article 23 ACHR), and consultation of indigenous and tribal peoples (articles 6, 7, 15, and 16

ILO Convention No. 169 and articles 10, 11, 19, 29, and 32 UNDRIP). The wording of these

710 Ward, supra note 659, at 54. 711 See infra Recommendation 2: Giving the Communities Concerned Effective Agency in Decision-Making Processes Affecting Them. 145

human rights instruments shows that the State obligations are of immediate effect.712 This means that Nicaragua must implement the obligations independently of its available financial and other resources.713 The State obligations are supported by Nicaragua’s domestic legislation.714 Based on the relevant legal framework, Nicaragua has the following obligations to respect, protect, and fulfill the rights of the community of Orinoco:

1. Obligation to respect: Nicaragua has the obligation to abstain from tolerating or encouraging third parties to settle and engage in agricultural activities on the traditional land of the community of Orinoco. The State must refrain from any actions on its own that interfere with the community’s right to use and enjoy their traditional lands.715

2. Obligation to protect:

a. Nicaragua has the obligation to adopt legislative, administrative, and other appropriate measures that allow for the investigation, prosecution, and punishment of third parties unlawfully intruding in the traditional lands of the community of Orinoco. Nicaragua is also required to investigate, prosecute, and punish State officials who tolerate or support the unlawful intrusions.716

b. Nicaragua is obligated to adopt legislative, administrative, and other necessary measures that (1) establish the mechanisms and procedures to consult with the community of Orinoco to identify the unauthorized third parties on the traditional lands717; and (2) grant effective use and enjoyment of the ancestral lands and natural resources of the community of Orinoco without outside interference and in accordance with community’s customs and collective land tenure system.718

3. Obligation to fulfill:

a. Nicaragua has the obligation to consult with the community of Orinoco in accordance with the community’s customary norms and values in order to

712 E.g., articles 1(1) and 2 ACHR; articles 2 and 6 ILO Convention No. 169. 713 See supra State Obligations Resulting from Cultural Human Rights. 714 See infra Context-Specific Interpretation of Cultural Human Rights and Resulting State Obligations. This section focuses however on Nicaragua’s obligations under international human rights law to highlight to what extent such law protects and promotes the community’s land claims. 715 Cf. Mary and Carrie Dann v. United States, supra note 681, at ¶ 145. 716 Cf. article 18 ILO Convention No. 169; Inter-Am. Comm’n on Human Rights, supra note 680, at ¶ 82(e). 717 Cf. Maya Indigenous Communities of the Toledo District v. Belize, supra note 161, at ¶ 142. 718 Cf. Saramaka People v. Suriname, supra note 21, at ¶ 194(c). 146

identify the third parties unlawfully settling on the traditional land prior to carry out their relocation.719

b. Nicaragua has the obligation to relocate the third parties unlawfully settling on the traditional land of the community of Orinoco to an area that does not belong to ancestral territory of an indigenous or tribal people, granting them the necessary judicial guarantees and possibly compensation.720

In sum, Nicaragua may not tolerate or encourage any third-party settlers on the traditional territory of the community of Orinoco. It is further required to investigate, prosecute, and punish those unlawfully intruding in the community’s traditional lands. Nicaragua must also establish mechanisms that allow the community to participate in the process of evicting the unlawful intruders and to use and enjoy their traditional land without interference. Moreover, the State has the obligation to consult with the community according to their customary norms and values.

Lastly, Nicaragua must relocate third-party settlers in a procedure that affords them the necessary fair trial guarantees.

Application to Colombia

This section demonstrates that Colombia’s domestic legal order imposes more comprehensive State obligations to protect the human rights claims of the community of

Tierrabomba to access and protect their traditional lands. The analysis of the implementation of these State obligations in the community of Tierrabomba illustrate that the domestic legal

719 This obligation serves to ensure that the State does not evict the non-Garifuna people living on the traditional land with the consent of the community of Orinoco. 720 Cf. Xucuru Indigenous People and its Members v. Brazil, supra note 690, at ¶ 194; Community Garifuna Punta Piedra and its Members v. Honduras, supra note 21, at ¶¶ 181, 323. Under international human rights law, Nicaragua incurs additional obligations, including the obligation to compensate third parties that have to relocate after the land clearance procedures, provided that they settled on the territory in good faith (cf. Xucuru Indigenous People and its Members v. Brazil, supra note 690, at ¶ 195; Community Garifuna Punta Piedra and its Members v. Honduras, supra note 21, at ¶ 324(c)). 147

framework is insufficient to solve the multiple ownership claims that different parties raise over the community’s territory.

Domestic Legal Framework of the Rights to Access the Traditional Land and Protect It from Erosion

Colombia’s legislative framework provides far-reaching protection of the collective land claim of the community of Tierrabomba. These protections are highlighted in the Constitution of

1991, Law 70 of 1993, and implementing decrees.721 These laws exceed the protections granted by international human rights law to these claims.722

Access to the Traditional Land through Demarcation, Collective Land Title, and Participation in the Decision-Making Process

The Colombian Constitution of 1991 contains important provisions for the protection of access to land of the community of Tierrabomba as a means of securing the community’s cultural and economic existence.723 Article 7 of the Constitution of 1991 establishes the principal source of special rights for Afro-descendant communities, requiring the State to

“recognize and protect the ethnic and cultural diversity.”724 The Constitution further guarantees access to property.725 It stipulates that communal lands of ethnic groups are inalienable and not

721 L. 70/93, agosto 31, 1993, D.O. [hereinafter Law 70 of 1993]; D. 1745/95, octubre 12, 1995, D.O. [hereinafter of Decree 1745 of 1995]. 722 The analysis of the domestic legislation is particularly relevant in the case of the community of Tierrabomba because under article 29(b) ACHR, the Inter-American Court of Human Rights interprets the conventional rights in light of domestic law provisions if the latter offer more favorable treatment to the victims of human rights violations (see infra Context Specific Interpretation of Cultural Human Rights and Resulting State Obligations). Thus, the domestic law of Colombia informs the protection and promotion of the community’s land claims under international law. 723 Legal scholarship has not yet provided a comprehensive overview of the rights of Afro-descendants in Colombia but has discussed selected land-related norms (e.g., COMISIÓN COLOMBIANA DE JURISTAS, INFORME SOBRE LA SITUACIÓN DEL DERECHO AL TERRITORIO DE LOS PUEBLOS INDÍGENAS Y LAS COMUNIDADES AFRODESCENDIENTES EN COLOMBIA [REPORT ABOUT THE SITUATION OF THE RIGHT TO LAND OF INDIGENOUS PEOPLES AND AFRO- DESCENDANT COMMUNITIES IN COLOMBIA] (2011)). This section contributes to filling this gap, assessing the legislative and administrative framework relevant for the community of Tierrabomba. 724 Article 7 Constitution of Colombia; C.C., agosto 27, 2012, Sentencia T-680/12. 725 Article 60 Constitution of Colombia. It also recognizes the social and ecological functions of property, which imply State obligations (article 58 Constitution of Colombia). 148

subject to prescription or seizure.726 Transitory Article 55 of the Constitution requires the State to implement legislation “that recognizes the right to collective property of black communities that have been occupying tierras baldías in the river-side rural zones of the Pacific Basin according to their traditional production practices.”727 This provision resulted in the adoption of

Law 70 of 1993, the primary legislation for Afro-Colombian communities seeking land titles and protection of their cultural identity.

Governmental authorities and the Colombian Constitutional Court have adopted a far- reaching interpretation of Law 70 of 1993, recognizing the importance and close interrelation of territory, cultural survival, and material subsistence of the community of Tierrabomba and other

Afro-descendant communities.728 Law 70 of 1993 applies to Afro-descendant communities at the Pacific coast and those living “in other legally unoccupied, rural river-side zones of the country.”729 It enshrines, inter alia, their rights to collective land ownership, environmental protection, and cultural identity. While the literal reading of Law 70 of 1993 suggests that these rights belong to a very narrowly defined category of Afro-Colombian communities,730 the

Constitutional Court of Colombia has argued that Afro-Colombian communities generally fall within the scope of ILO Convention No. 169 and communities are entitled to collective land

726 Article 63 Constitution of Colombia. 727 Transitory article 55 Constitution of Colombia (translation according to ENGLE, supra note 336, at 224). The term “tierras baldías” refers to territories without legal owner registered in the public registry [hereinafter legally unoccupied lands]. 728 E.g., C.C., octubre 17, 2003, Sentencia T-955/03, section 6. 729 Article 1 Law 70 of 1993; Transitory article 55(1) Constitution of Colombia. 730 Article 2(5) Law 70 of 1993 defines Afro-Colombian communities that fall within the scope of the law as follows: “the unity of families of Afro-Colombian descent that possess their own culture, share a common history, and have their own traditions and customs within the relationship of land and village, [and] that emphasize and conserve consciousness of identity that distinguishes them from other ethnic groups” (translation by the author). The ILO Expert Committee has held that the definition of Afro-Colombian communities under Law 70 of 1993 corresponds to the definition of tribal peoples in ILO Convention No. 169 (ILO, Comm. of Experts on the Application of Conventions and Recommendations, Observation (CEACR) - Adopted 2006, Published 96th ILC Session (2007): Indigenous and Tribal Peoples Convention 1989 (No. 169) – Colombia (Ratification: 1991), https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID,P11110_COUNTRY_ ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR:2273512,102595,Colombia,2006). 149

ownership as prescribed by Law 70 of 1993.731 The Court’s interpretation requires communities to share social and cultural features and a collective internal identity that distinguishes them from the rest of the society.732 In practice, governmental authorities and courts have adopted a broad understanding of these criteria, affording collective land titles to communities who are able to prove their ancestral occupation of the land, self-identify as Afro-Colombians, and have a community council mandated to initiate the land titling process.733 The collective land rights under Law 70 of 1993 are not limited to those Afro-descendant communities that live in rural river-side zones and display certain cultural features.734 These land rights are afforded to all

Afro-Colombian communities as the rights holders under Law 70 of 1993.735 The community of

Tierrabomba benefits from the broad interpretation of Law 70 of 1993 because it does not fall under the aforesaid narrow definition of Afro-descendant communities. The domestic legal framework grants the community of Tierrabomba access to the ancestral land through demarcation and collective land title. It recognizes the importance of territory for the cultural and material survival of the community. Analyzing the domestic legal provisions through the lens of the 5A framework, the right to collective land ownership is acceptable since the

731 ILO Convention No. 169 is part of the international human rights norms that form part of the Constitution of Colombia and thus are directly applicable to the Afro-Colombian communities (articles 93 and 94 Constitution of Colombia; L. 21/91, marzo 4, 1991, D.O. (incorporating ILO Convention No. 169 into domestic law); see also C.C., octubre 17, 2003, Sentencia T-955/03. 732 C.C., febrero 14, 2001, Sentencia C-169/01 (stating that the definition of Afro-Colombian communities cannot be based on racial criteria, geographic location, or the existence of a registered organization. Instead, such communities enjoy special legal protection if they demonstrate cultural and social features that are distinct from the racially mixed Colombian population (objective criteria) and possess a group identity (subjective element)); C.C., octubre 17, 2012, Sentencia T-823/12; see also C.C., septiembre 10, 1996, Sentencia T-422/96 (reversing the decision of the High Court of the Judicial District of Santa Marta, which found that the Afro-descendant community in question was not entitled to differential treatment in education as it lacked the “physical socio-economic unity.”). 733 Interview with Efrain Miranda Cañate, supra note 355; JUAN CARLOS BETANCUR & SERGIO CORONADO DELGADO, OBSERVATORIO DE TERRITORIOS ETNICOS [OBSERVATORY OF ETHNIC TERRITORIES], DERECHOS TERRITORIALES DE LAS COMUNIDADES NEGRAS: UNA MIRADA DESDE LA DIFERENCIA [TERRITORIAL RIGHTS OF BLACK COMMUNITIES: A DIFFERENTIAL PERSPECTIVE] 14 (2012). 734 Interview with Efrain Miranda Cañate, supra note 355. 735 C.C., octubre 17, 2003, Sentencia T-955/03. 150

Colombian judiciary has adopted a broad definition of Afro-descendant communities that are entitled to collective land rights. Further, domestic law is not limited to individual property rights but affords collective land ownership to the community as such.736 It protects and promotes the claim of the community of Tierrabomba to access their traditional land to a broader extent than international human rights law. Thus, international human rights provisions on land rights are available to the community of Tierrabomba in the domestic legal system.

Decree 1745 of 1995 establishes the mechanisms to implement the right to collective land ownership recognized in Chapter III of Law 70 of 1993. According to article 3 of Decree 1745 of 1995, an Afro-descendant community seeking collective land title first needs to establish and formally register a community council. Community councils constitutes the highest administrative authority within the community.737 The community council then initiates the land demarcation and titling process before the competent governmental authority, the National

Agency of Territories.738 This National Agency of Territories renders the collective land right enshrined in Law 70 of 1993 accessible to the community. The land titling procedure includes a visit of the National Agency of Territories to the community’s territory739 and an opposition proceeding in which third parties have the opportunity to demonstrate private property or possession claims over the entire or parts of the communal territory.740 The National Agency of

Territories rejects the collective land titling request if the community’s territory falls within an area not subject to adjudication, such as public or private property, urban areas of municipalities,

736 See supra Correcponding State Obligations in Rights to Access and Protect the Traditional Land of the Community of Tierrabomba in International Human Rights Law. 737 Article 3 Decree 1745 of 1995. 738 In Spanish “Agencia Nacional de Tierras”; article 5 Law 70 of 1993; article 11(3) Decree 1745 of 1995. Before initiating the land titling process with the National Agency of Terirtories, the community council needs to obtain the approval of the majority of the community members (article 11(2) of Decree 1745 of 1995). 739 Article 10 Law 70 of 1993; article 22 Decree 1745 of 1995. 740 Articles 24 to 26 Decree 1745 of 1995. The opposition proceeding ensures that the collective land titles are only afforded for legally unoccupied lands. 151

or areas reserved for security and national defense.741 The law prioritizes a broad range of land rights of third parties, including the State, over ancestral land claims of Afro-descendant communities. It strictly limits the communities’ possibility to obtain ownership rights to legally unoccupied lands. This approach does not take into account Colombia’s history of fraudulent real estate practices and massive forced displacement of Afro-descendants to urban centers, or the different property right situations at the Pacific and Atlantic coasts where most Afro-

Colombians live.742 Therefore, the fact that several third-party land rights prevail over the collective land rights of the community of Tierrabomba limits the scope of protection of the community’s right to collective land ownership. It renders this right inadaptable because it requires the State to apply the requirement of legally unoccupied land to all Afro-descendant communities irrespective of the community’s property rights history. Article 17 Law 70 of 1993 provides some relief for Afro-descendant communities, stating that Afro-descendant territories within the meaning of Law 70 of 1993 may not be adjudicated to third parties before any collective land rights have been clarified.743 With this procedure, Law 70 of 1993 provides some form of accountability for communities, like the community of Tierrabomba, where a third party claims legal ownership of the land. However, the practical implementation of Law 70 of 1993 effectively deprives the community of Tierrabomba of any accountability mechanism.

Protection of the Traditional Land from Erosion and Prior Consultation and Participation in the Decision-Making Processes

The Colombian legislative framework recognizes the close relationship between the territorial rights of Afro-descendant communities and the need to prevent environmental

741 Article 6 Law 70 of 1993; article 19 Decree 1745 of 1995. 742 Afro-Colombians at the Pacific coast primarily live on legally unoccupied lands whereas at the Atlantic coast third parties are mostly the legal owners of the lands claimed by Afro-descendant communities. 743 Article 17 Law 70 of 1993. 152

degradation. This has included erosion in these territories in numerous laws, implementing decrees, and vast jurisprudence.744 The Constitution grants the right to a healthy environment745 and requires the State to “prevent and control the factors leading to environmental degradation”746 and repair the damages.747 Law 99 of 1993 establishes that the Regional

Autonomous Corporations that have the mandate to administer issues related to the environment and renewable resources within their jurisdiction,748 are responsible for promoting and executing

“measures of land restoration that are necessary to defend, protect, and adequately manage water basins.”749 As the highest environmental authorities in its jurisdiction, these entities are in charge of implementing, administrating, operating, and maintaining “projects, programs of sustainable development, and infrastructure works.”750 This is required to protect the environment and renewable natural resources, such as land. The Regional Autonomous

Corporations also coordinate with other relevant authorities to implement emergency measures to protect the environmental and prevent natural disasters.751 Law 1523 of 2012 reinforces the framework on emergency measures, adopting the National Policy on Disaster Risk Management

744 This section is limited to highlight the legislative framework that is most relevant for the community of Tierrabomba. It would exceed the scope of this dissertation to provide a complete and comprehensive overview of Colombian environmental law. 745 Article 79 Constitution of Colombia. 746 Article 80 Constitution of Colombia (translation by the author). 747 Interestingly, Law 70 of 1993 imposes on the Afro-descendant communities with collective land titles the obligation to protect and preserve the environment and natural resources on their territory and to exercise their traditional economic activities in a sustainable manner (articles 14, 19-21 Law 70 of 1993). Since the community of Tierrabomba does not enjoy collective land ownership, it does not incur such obligation. 748 Corporaciones Autónomas Regionales [Autonomous Regional Corporations], MINISTERIO DE AMBIENTE Y DESARROLLO SOSTENIBLE DE COLOMBIA, http://www.minambiente.gov.co/index.php/component/content/article/885-plantilla-areas-planeacion-y-seguimiento- 33 (last visited July 13, 2019). 749 Article 31(19) of L. 99/93, diciembre 22, 1993, D.O. [hereinafter Law 99 of 1993] 750 Article 31(20) Law 99 of 1993. 751 Article 31(23) Law 99 of 1993. Other relevant authorities include the municipalities, which are responsible for adopting and implementing measures to protect and preserve the environment (article 76(5) of L. 715/01, diciembre 21, 2001, D.O.). 153

and allowing local and national institutions to take direct measures of prevention and mitigation of environmental risks.752

Administrative environmental measures that directly affect the territory of Afro- descendant communities require the communities’ prior consultation and participation in decision-making processes. The consultation and participation serve to ensure that these measures respect the cultural, social, and economic integrity of the community.753 While the

State’s duty to consult with the communities is established in several legislative measures and extensive jurisprudence on issues of environmental protection and exploitation of natural resources,754 the procedural mechanisms to conduct the consultations have not been defined.755

For instance, Law 99 of 1993 contains the land protection measures in the context of erosion. It simply states that the Regional Autonomous Corporations have the duty to “promote and develop community participation in programs of environmental protection”756 and design programs and projects of environmental protection in coordination with the councils of Afro-descendant communities.757 The settled jurisprudence of the Colombian Constitutional Court has established that the consultation depends on the extent to which the administrative or other measures interfere with the existence and cultural practices of Afro-descendent communities.758 If the measures directly affect the communities, they require prior consultation.

752 L. 1523/12, abril 24, 2012, D.O. 753 C.C., febrero 3, 1997, SU-039/97. 754 E.g., L. 685/01, agosto 15, 2001, D.O. (regulating mining activities); D. 1320/98, julio 13, 1998, D.O. (regulating the prior consultation of indigenous and Afro-descendant communities for the exploitation of natural resources); Law 99 of 1993; C.C., mayo 15, 2012, Sentencia T-348/12. Most of the applicable legal provisions and jurisprudence are however limited to consultations in the context of resource exploitation or the construction of large-scale projects. 755 The Ministry of Interior has drafted the corresponding legislation, but it has not yet been adopted (¿En qué va el proyecto de ley de consultas previas? [In What Stage is the Draft Law on Prior Consultation?], DINERO (Mar. 30, 2020), https://www.dinero.com/pais/articulo/en-que-va-el-proyecto-de-ley-de-consultas-previas/282937). 756 Article 31(3) Law 99 of 1993. 757 Article 31(23) Law 99 of 1993. 758 C.C., agosto 5, 2015, Sentencia T-485/15 (citing to the case of Saramaka People v. Suriname [supra note 119] of the Inter-American Court of Human Rights). The Constituional Court of Colombia distinguishes between three 154

The Colombian legal framework demonstrates that the relevant provisions of Law 99 of

1993 protect the claim of the community of Tierrabomba to prevent further erosion of the traditional land, exceeding Colombia’s obligations under international human rights law.

Analyzing the issue under the 5A framework, the domestic law makes the right to obtain protection of the traditional land from erosion available. It is not limited to protect the land of individual community members and cultural and religious sites, such as the cemetery. The domestic environmental provisions do however not specify the scope of the environmental protection measures or the implementation procedures, giving governmental authorities wide discretion and limiting the accessibility of coastal protection measures. Since the coastal protection measures directly concern the community’s territory, the government must consult with the community.759 The obligation to consult with the community does not depend on whether the community enjoys collective land title. It exists independently of the current land rights because the community of Tierrabomba is Afro-descendent.760 This obligation contributes to the acceptability of the domestic legal framework since it gives the community an opportunity to participate in the design and implementation of the coastal protection measures. It also contributes to the adaptability as the consultation serves to ensure that the measures offer the most effective protection to the places that are of cultural, economic, and social importance for the community. However, the fact that the procedural obligations to consult with the community

levels of interference: The first level of interference is limited to “the simple participation, associated with the intervention of the communities in the national decision-making entities”; the second level concerns “all measures that directly affect” the communities and triggers prior consultation; and the third and most severe form of interference, which “severely affects their rights, primarily those of territorial nature,” requires the free, prior, and informed consent (id.). 759 Id. 760 C.C., agosto 4, 2014, Sentencia T-576/14 (“[T]o pretend that the right to participation of black communities should depend on a formal title that proves a relation to the territory is unreasonable by all means, particularly considering how the black communities of this country have been displaced from their territories and how complex the collective land titling process is in itself.” (translation by the author)). 155

are not yet defined in Colombia’s legal framework limits the accountability of State authorities that adopt coastal protection measures without consulting with the community. In conclusion, the domestic legal framework guarantees wider protection of Tierrabomba’s claims to protect their traditional land than international human rights law. However, it does not define implementation procedures, limiting the rights’ accessibility. It also does not establish mechanisms for holding the State accountable if the State fails to consult with the community while taking coastal protection measures.

Practical Implementation of State Obligations Resulting from International Human Rights Law and the Domestic Framework in the Community of Tierrabomba

The assessment of selected structural, process, and outcome indicators sheds light on the implementation of Colombia’s international and national legal obligations in the community of

Tierrabomba. This demonstrates the limited availability, accessibility, acceptability, and adaptability of the community’s rights to access and protect their traditional land and the State’s limited accountability.761

The rights to access the traditional land and protect it against erosion are available to the community of Tierrabomba in the domestic legal framework and through competent institutions at the local level. Under Law 70 of 1993, Law 99 of 1993, and related provisions, the community is entitled to collective land ownership over the traditional land and protection of this land from erosion. These rights exceed the legal protection afforded to the community in international human rights law.762 Through the more favorable human rights interpretation clause (article 29 ACHR), the domestic laws inform and expand the scope and content of

761 See infra annex I. The dissertation does not list all indicators that contribute to the effectiveness of the rights but is limited to uncover the indicators that are most relevant for the implementation of the rights in the community of Tierrabomba. 762 See supra Access to Traditional Land Through Demarcation and Collective Land Ownership; Protection of the Traditional Land from Erosion. 156

Colombia’s international human rights obligations to respect, protect, and fulfill the land-related claims of the community of Tierrabomba. At the local level, the National Agency of Territories is competent to assess the community’s claim to collective land ownership. The municipality of

Cartagena is responsible for implementing coastal protection measures.763 Thus, there are institutions available to the community of Tierrabomba to implement the rights to access and protect the traditional land.

The rights to access and protect the traditional land are not accessible to the community of Tierrabomba. While the community has access to the National Agency of Territories to file the collective land titling request and obtain a legal assessment, the practical circumstances have rendered the right to access the traditional land inaccessible. As legal owner of the community’s land, the municipality of Cartagena has so far denied transferring the land ownership to the community. It has also failed to provide the community with correct information about their land rights by convincing community members to vacate the land in exchange for money.764

These acts have undermined the community’s right to access the traditional land. In addition, the right to land protection from erosion is inaccessible due to ambiguities in the domestic laws and inaction of the municipal authorities. The domestic law lacks clear procedures for implementing environmental protection measures, rendering these measures inaccessible in practice. The

Cartagena municipality has delayed the implementation of coastal protection measures, violating a judicial order to construct emergency breakwaters.765 It started to construct emergency breakwaters eight months after the judicial order. At the time of the field research, it had not yet

763 See infra annex I, State obligations no. 5 and 7. 764 See infra annex I, State obligation no. 5. 765 See infra annex I, State obligation no. 3. 157

begun the construction of breakwaters to protect the cemetery. Thus, the rights access and protect the traditional land are not accessible to the community.

These land rights are mostly acceptable as legal provisions in the domestic system, but the practice of the municipality of Cartagena has render the rights inacceptable in the community of Tierrabomba. At the domestic level, the legal and institutional design aims to ensure the most effective implementation of collective land rights and environmental protection measures and mandates various municipal and national entities to supervise such process. However, the failure of the municipality of Cartagena to resolve the land disputes in Tierrabomba and implement comprehensive coastal protection measures has rendered the rights to access and the traditional land inacceptable. The lack of tenure security and the continuous erosion pose serious risks to the lives of the community members and their stay on the traditional land. For the environmental measures, the competent local entities should consult with the community, but the domestic law does not clarify how to conduct the consultations.766 In practice, the municipality did not consult with the community for the design and implementation of the emergency breakwaters.767

The community’s rights to access and protect the traditional land is only partially adaptable to the local circumstances. Regarding the land access, the domestic law limits the collective land ownership to those territories that are “legally unoccupied” under Law 70 of

1993. This understanding of collective land rights has led to a deadlock in the community of

Tierrabomba. The National Agency of Territories concluded that Tierrabomba is not legally unoccupied land, but the municipality of Cartagena is the legal owner. Thus, Colombia protects the property rights of the municipality of Cartagena over those of the community. It disregards the fact that the community has lived on this territory for nearly 500 years and instead prioritizes

766 See infra annex I, State obligation no. 8. 767 See infra annex I, State obligation no. 4. 158

the land rights of third parties who have settled in the last few decades. This approach complies with the international legal framework because the community does not qualify as tribal and thus does not enjoy collective land rights. It is further in compliance with Colombia’s domestic legislation that allows third party rights to prevail over the community’s claims. As a result, the community of Tierrabomba depends on the political will of the municipality of Cartagena to transfer the legal ownership over the land. Thus, the right to access the traditional land is not adaptable because the law and practice only considers the status quo and does not adjust land rights to the circumstances of the community of Tierrabomba. The right to protect the land from erosion is adaptable in the domestic legal framework because the community of Tierrabomba’s has consultation rights. These rights allow the community to participate in the process of adopting the coastal protection measures. However, in practice the municipality of Cartagena planned the breakwaters and started construction without consulting the community.768 Thus, the right to protect the land from erosion is not adaptable on in practice.

The accountability of State institutions for failing to grand the rights to access and protect the traditional land is limited. The community of Tierrabomba could contest the finding of the

Colombian land titling agency, but they fear reprisals if they take judicial steps to clarify their land rights.769 The community is aware of other Afro-descendent communities that have received death threats and witnessed the killings of their leaders for advocating for collective land rights.770 This situation limits the accountability of governmental institutions because it deters the community from taking judicial measures. With regard to the coastal protection measures, accountability is limited at the domestic level because the applicable law does not

768 See infra annex I, State obligation no. 4. 769 See infra annex I, State obligation no. 6. 770 Id. 159

define the procedures to adopt protection measures or consult with the community. These legal ambiguities make it difficult for the community to determine the responsibilities and failures of government institutions. Thus, accountability is limited.

Application to Nicaragua

This section discusses to what extent Nicaragua has incorporated the right to use and enjoy traditional land and natural resources without outside interference into its domestic legal system. Nicaragua has adopted a comprehensive legal and institutional framework to protect the traditional lands of Orinoco from interference by third parties. While this framework reflects most of Nicaragua’s obligations under international human rights law, the assessment of the obligations’ practical implementation shows that illegal settlers in the community of Orinoco enjoy a high level of impunity, jeopardizing the land rights of the community.

Domestic Legal Framework on the Right to Use and Enjoy the Traditional Land and Natural Resources Without Outside Interference

Nicaragua’s Constitution recognizes the right of the community of Orinoco to effectively use and enjoy the traditional land without external interference. In particular, it explicitly establishes the right of Afro-descendant communities in the Caribbean coast to access, enjoy, and use their communal property, including waters and forests, in order to maintain and develop their cultural identity.771 The State has the obligation to “guarantee these communities the enjoyment of their natural resources [and] the effectiveness of their forms of collective

771 Articles 5 and 89 Constitution of Nicaragua. The Constitution of Nicaragua further guarantees a general right to private property, stating that expropriations must be carried out in accordance with the law, require just compensation, and fulfill a “public utility or social interest” (article 44); see also article 107 Constitution of Nicaragua (stating that indigenous and Afro-descendant communities have a suis generis right to property). The Nicaraguan legislation mostly uses the term “ethnic communities” when referring to Afro-descendant communities. For the sake of consistency with the other chapters, this dissertation however uses the term “Afro-descendant communities” even in the context of the Nicaraguan domestic law. 160

property”772 while granting them autonomy from the central government of Nicaragua.773

Through article 46 of the Constitution, Nicaragua reinforces these provisions by establishing that the right to use and enjoy the traditional land and natural resources as guaranteed in U.N. and

Inter-American human rights instruments prevails over the domestic legal framework.774

Nicaragua’s domestic laws incorporate the Constitutional guarantees and define corresponding State obligations. These laws include the Autonomy Law, Communal Property

Law, and Law No. 641 (Penal Code).775 They define the right to effectively use and enjoy the traditional land and natural resources without the interference of third parties. The Autonomy

Law reinforces the right to communal property over traditional community lands, waters, and forests. It specifies that the community lands are inalienable and cannot be donated, sold, or subjected to seizure, encumbrance, and prescription.776 The Supreme Court of Nicaragua held that this provision determines the scope of protection may be afforded to the traditional land of indigenous and Afro-descendant communities.777 The Court added that any interfering act against the collective property constitutes a violation of the Constitution.778 Regulating the

Autonomy Law in further detail, the Communal Property Law establishes that the land clearance process, which is the procedure to clarify third parties’ rights over communal lands, constitutes

772 Article 180 Constitution of Nicaragua; see also articles 99 and 103 Constitution of Nicaragua (obliging the State to protect and promote all property forms). 773 See articles 5 and 181 Constitution of Nicaragua. 774 Article 46 Constitution of Nicaragua (stating that the UDHR, ICCPR, ICESCR, ADHR, and ACHR prevail over the Constitution). 775 Autonomy Law; Communal Property Law; Ley No. 641, 16 Nov. 2007, Código Penal [Penal Code], L.G., 3 Dec. 2007 [hereinafter Penal Code]. 776 Article 36 Autonomy Law (adding that the community members have the right to work on communal land plots and use the produce of their work). 777 Sentencia [S.] No. 123, de las 1:30 p.m., 13 June 2000, Sala de lo Constitucional [Supreme Court of Justice], http://calpi.nativeweb.org/sent_123.html (granting an amparo action against the delegate of the Nicaraguan Institute for Agricultural Reform in the Autonomous Region of the South Atlantic for issuing permits that allowed hundreds of third parties to reside on indigenous territory). 778 Id. 161

the last step of the official recognition of such lands.779 While the Communal Property Law does not define the term “land clearance,”780 it states that the collective property rights of Afro- descendant communities generally prevail over the land claims of third parties.781 Third parties with a land title that suffers an error in form or substance have to return the land to the community in exchange for compensation.782 Third parties without any land title have to abandon the land without compensation.783 Lastly, the effective use and enjoyment is reinforced in the Penal Code, punishing usurpation of community land with one to three years of imprisonment.784 The community judge (wihta) and community administrator of the traditional lands (síndico) have the authority to solve land-related disputes in the community, but the

Nicaraguan system remains ambiguous about the exact scope of their competences, particularly with regard to the enforcement of their decisions.785 From the perspective of the 5A framework,

779 Chapter XII Communal Property Law. In its article 45, the Communal Property Law establishes five steps of the regulation of indigenous and Afro-descendant territories, which include (1) the submission of the land titling request, (2) conflict resolution between different communities, (3) mediation and demarcation, (4) titling, and (5) land clearance procedure. It is worth noting that in most Latin American States the land clearance procedure takes place before or during the land titling procedure to ensure full enjoyment of the communities’ traditional lands once they have received collective ownership titles (Nora Sylvander, Saneamiento Territorial in Nicaragua, and the Prospects for Resolving Indigenous-Mestizo Land Conflicts, J. LATIN AM. GEOGRAPHY, Apr. 2018, at 166, 174). 780 See Sylvander, supra note 779, at 174-75. 781 Chapter VII Communal Property Law. 782 Article 37 Communal Property Law. 783 Article 38 Communal Property Law (adding that third parties acting in good faith have to pay rent to the community for the occupation of its territories). While these legal provisions principally support the claim of the community of Orinoco to remove unauthorized settlers, they do not necessarily reflect the community’s perspective. In fact, the law requires the State to relocate all third parties without valid land title from the ancestral communal lands. The community of Orinoco agrees however to the presence of several non-Garifuna families either directly within the community or in the hinterlands as employed farmers of some Garifuna families (e.g., interview with Kensy Sambola, supra note 408). The fact that the legal provisions do not reflect the reality on the ground is aggravated by the lack of legal provisions on participation and consultation procedures in the domestic law (see infra). 784 Article 241(d) Penal Code. The penalty can be increased by one third if the land grapping causes damage to the environment (article 370 Penal Code). 785 The Nicaraguan law contains only a few provisions regulating the competences of the wihta and síndico (e.g., article 10, 13, and 52 Communal Property Law), basing their competences primarily on the customs and traditions of the respective community. The wihta and síndico do not have the power to enforce their decisions, but the legal framework remains unclear about the extent of a collaboration between these communal figures and the police, or an obligation of the police, to enforce their decisions (see interview with Felix Sinclair, supra note 428). Additionally, article 27 of the Decree No. 3584 states that the authorities of the communities regulate the use and enjoyment of the communal property among the community members in accordance with their customs, traditions, and the law 162

the right to use and enjoy the traditional land and natural resources is available in the Nicaraguan legal system since Nicaragua guarantees this right in its domestic laws, establishes that relevant

Inter-American human rights norms prevail, and prohibits the interference of third parties with the traditional land of communities. The legal framework further guarantees the accessibility of the right to use and enjoy the communal lands, regulating aspects of the land clearance process and prohibiting land usurpation in the Penal Code. The fact that the communal institutions of the wihta and síndico have the authority to address land disputes of communities further contributes to the right’s acceptability. However, accountability measures are limited because the wihta and síndico do not enjoy strong enforcement authority under Nicaragua’s domestic laws.

Nicaraguan law does not affirm the right to prior consultation in matters affecting the traditional land of the community of Orinoco, limiting the adaptability of the community’s right to use and enjoy the traditional land and natural resources. This includes the identification and relocation of unauthorized third parties and reforestation of the land. In fact, the domestic law does not contain any provision establishing such right.786 In the absence of implementing domestic legislation, international human rights instruments, and case law (in particular the Inter-

American human rights jurisprudence and ILO Convention No. 169) are the relevant sources of the right to prior consultation. These sources do not clarify the procedural steps that are necessary to exercise this right in the context of Nicaragua.787 Furthermore, while ILO

(Decreto No. 3584, 9 July 2003, Reglamento a la Ley n°. 28 “Estatuto de Autonomía de las Regiones de la Costa Atlántica de Nicaragua” [Ordinance of Law No. 28 “Autonomy Law of the Atlantic Coast Regions of Nicaragua”], L.G., 2 Oct. 2003). Thus, this provision does not give the State the power to interfere in land-related matters of communities. 786 CENTRO NICARAGÜENSE DE DERECHOS HUMANOS, NICARAGUA ANTE LA SEGUNDA REVISIÓN DEL EXAMEN PERIÓDICO UNIVERSAL [NICARAGUA BEFORE THE SECOND REVIEW OF THE UNIVERSAL PERIODIC REVIEW] 35 (2014). 787 It is worth noting that the recent actions of the Nicaraguan government towards its indigenous and Afro- descendant communities have demonstrated the difficulties of these communities in effectively exercising their right to prior consultation and participation in decisions of economic development given the absence of domestically regulated consultation procedures. For instance, in 2013 the government enacted Law No. 840 granting a concession to the Chinese company HKND for constructing the Great Inter-Oceanic Canal of Nicaragua and related projects, 163

Convention No. 169 is directly applicable to the community of Orinoco,788 its applicability within the Nicaraguan legal order is ambiguous.789 This situation limits the adaptability of the right to enjoy and use the traditional land and natural resources because the domestic legal framework does not regulate any consultation process.

In conclusion, the Nicaraguan legal system incorporates the right to enjoy and use the traditional land and natural resources without interference from third parties in the Constitution,

Autonomy Law, Communal Property Law, and Penal Code. It does however not integrate mechanisms to enforce the land-related decisions of the community institutions and fails clarify the procedures to conduct consultations with the community. These limitations have negative consequences for implementing the right to enjoy and use the traditional land and natural resources in practices, as demonstrated in the next section.

Practical Implementation of the State Obligations Resulting from International Human Rights Law and the Domestic Framework in the Community of Orinoco

This section assesses the implementation of the State obligations resulting from international and domestic human rights law in the community of Orinoco by means of selected

which heavily curtail the land rights of indigenous and Afro-descendant communities across Nicaragua, without prior consultation of such communities (Ley No. 840, 13 June 2013, Ley Especial para el Desarrollo de Infraestructura y Transporte Nicaragüense Atingente al Canal, Zonas de Libre Comercio e Infraestructuras Asociadas [Special Law on the Development of the Nicaraguan Infrastructure and Transportation Related to the Canal, Free Trade Zones, and Related Infrastructures], L.G., 14 June 2013). The Supreme Court of Justice has rejected amparo actions of indigenous and Afro-descendant communities on the violation of the right to consultation (S. No. 30, de las 8:30 a.m., 10 December 2013, Sala de lo Constitucional, BOLETÍN JUDICIAL [B.J.] [Supreme Court of Justice] p. 934). 788 Decreto No. 5934, 6 May 2010, Decreto de Aprobación del Convenio sobre Pueblos Indígenas y Tribales, 1989 [Decree on the Approval of the Convention Concerning Indigenous and Tribal Peoples, 1989], L.G., 4 June 2010 (stating that Nicaragua extends the scope of ILO Convention No. 169 to its Afro-descendant communities). 789 Article 46 Constitution of Nicaragua does not enumerate the ILO Convention No. 169 among the human rights treaties of constitutional rang because Nicaragua ratified this convention only in 2010, 23 years after adopting the Constitution. Thus, this provision raises the question about the relationship between domestic law and international human rights treaties that Nicaragua has ratified after the adoption of the Constitution of 1987. 164

structural, process, and outcome indicators. These indicators measure the 5-A framework of the community’s right to effectively use and enjoy their traditional land and natural resources.790

The right to effectively use and enjoy the community’s traditional land and natural resources is available in the domestic legal framework, but the right’s availability is limited in practice. While Nicaragua has established commissions and mandated State institutions to conduct land clearance processes and relocate unlawfully settled third parties, it has converted the land clearance process into a bureaucratic procedure involving numerous institutional actors with ambiguous responsibilities.791 The Interinstitutional Commission, which is the government authority responsible for initiating land clearance processes, is comprised of nine different State entities that collaborate to conduct land clearance processes.792 This setup of the Commission is highly bureaucratic and complicates the coordination between the different entities involved.

Additionally, the Interinstitutional Commission has not published its internal regulations clarifying the responsibilities and tasks of each entity at the time of writing.793

Similarly, the domestic legal framework ensures the accessibility of the right to use and enjoy the traditional lands and natural resources because it regulates the land clearance process and prohibits land usurpation. However, the right’s accessibility is limited in practice. Initiating the land clearance process depends on the will of a State institution, namely the Interinstitutional

Commission.794 This situation renders it difficult for the community of Orinoco to effectuate the relocation of the third-party settlers in case of Nicaragua’s inaction because the community is

790 See infra annex II. 791 See infra annex II, State obligation no. 4. 792 Decreto No. 15-2013, 5 Mar. 2013, Decreto Creador de la Comisión Interinstitucional para la Defensa de la Madre Tierra en Territorios Indígenas, Afrodescendientes del Caribe y Alto Wangkibocay [Decree on the Creation of the Inter-Institutional Commission for the Defense of the Mother Earth on Indigneous and Afro-Descendant Territories in the Caribbean and Alto Wangkibocay], L.G., 7 Mar. 2013 [hereinafter Decree on the Creation of the Interinstitutional Commission]. 793 Cf. article 9 Decree on the Creation of the Interinstitutional Commission. 794 See infra annex II, State obligation no. 4. 165

required to wait for the Interinstitutional Commission to initiate the land clearance process.

Additionally, the wihta and síndico have the authority to solve land-related disputes in the community and make the lands and natural resources accessible, but the law is ambiguous about their competences, particularly their power to enforce decisions. This situation renders the communal authorities ineffective to address the issue of the unlawful settlers on the community’s traditional land. As a result, the right to use and enjoy the traditional land and natural resources becomes inaccessible in practice.

The limited availability and accessibility negatively affect the acceptability of the right in practice. The competent State institutions do not directly discriminate against the community, but their attitude has been characterized by inaction.795 In fact, the police have not conducted any investigations or prosecuted any settler for usurpation of communal property although the community informed the police about the illegal presence of third-party settlers on the hinterlands.796 Thus, the community of Orinoco is skeptical whether the State would actually relocate third-party settlers.

The right to use and enjoy traditional land and natural resources on that land is not adaptable in the domestic legal framework or practical implementation in the community. The domestic law does not define consultation procedures or designate specific authorities that are responsible for conducting consultations with communities.797 This situation limits the community to express their needs and perspectives about the presence of non-Garifuna people on the territory. It renders it difficult to adapt the land clearance process to the circumstances of the community of Orinoco.

795 See infra annex II, State obligation no. 2. 796 Id. 797 See infra annex II, State obligation no. 4. 166

The State’s accountability for failing to implement the right to use and enjoy the traditional land and natural resources is limited in the domestic laws and implementation in practice. Nicaragua does not afford any enforcement powers to the communal authorities of the wihta and síndico nor does it initiate the land clearance procedure or investigate acts of land usurpation.798 This creates a culture of impunity with third parties facing no judicial actions for illegally settling on the community’s land. In addition, in 2016 the Supreme Court of Justice issued a decision on land rights of third parties settling on the traditional lands of communities in the Pearl Lagoon area, where the community of Orinoco is located.799 The Court transferred legal ownership to these third-party settlers although the affected communities were holding a collective ownership title over the lands. This decision encourages third-party settlers to remain on community land. It also casts doubt over the effectiveness of the collective land ownership and respect for the constitutional property guarantees of the community of Orinoco.

Nicaragua does not fully implement the right to use and enjoy the traditional land and the natural resources under international human rights law in the domestic legal and institutional framework or the local context of the community of Orinoco. The assessment of the local context further demonstrates that the Nicaraguan State has not taken effective action against the illegal settlements of non-Garifuna people on the community’s traditional land while settlers act with impunity. The institutional framework supports this situation of inaction and impunity given that it places the land clearance process in the hands of a bureaucratic institutional structure that does not grant any participatory rights to the community of Orinoco.

798 See infra annex II, State obligation no. 6. 799 ALIANZA DE PUEBLOS INDÍGENAS Y AFRODESCENDIENTES DE NICARAGUA, INFORME SOBRE LA SITUACIÓN DE LOS DERECHOS TERRITORIALES DE LOS PUEBLOS INDÍGENAS Y AFRODESCENDIENTES DE NICARAGUA [REPORT ABOUT THE SITUATION OF LAND RIGHTS OF INDGENOUS PEOPLES AND AFRO-DESCENDANTS IN NICARAGUA] 100-03 (2017), http://www.temasnicas.net/informeapian.pdf. 167

In conclusion, the legal analysis of the land-related claims of the communities concerned demonstrates several limitations in the applicable domestic and international legal frameworks.

In both communities concerned, land-related rights are not implemented. In the community of

Tierrabomba, the main obstacle to obtain collective ownership title are the legal provisions that limit collective land ownership to territories that do not already have a legal owner, irrespective of how these owners obtained the land title. The community’s fear of violent acts against community leaders prevents them from challenging the municipality’s ownership before a court.

The protection of Tierrabomba’s coast from erosion is also deficient because the municipality of

Cartagena delayed the construction of breakwaters. Other important limitations are the domestic law not defining procedures for adopting coastal protection measures and for consulting with the community in the process of designing and implementing such measures. In the community of

Orinoco, the primary challenge for clearing the traditional land from third-party settlements lies with the fact that the overly bureaucratic Interinstitutional Commission has the sole power to initiate the land clearance procedure. Additionally, Nicaragua’s stance towards protecting collective land ownership of the community is ambiguous because the Supreme Court of Justice has ruled in favor of illegal settlers in a previous judgment. The law also does not establish procedures to consult the community of Orinoco. Lastly, the accountability mechanisms are weakened because the communal authorities that are competent to resolve land disputes may not enforce their decisions. Thus, both communities concerned face both legal and practical challenges in protecting their land-related human rights claims.

168

CHAPTER 5

EQUAL AND EFFECTIVE ACCESS TO CRIMINAL JUSTICE

The communities concerned urge the Colombian and Nicaraguan States to grant them equal access to criminal justice by effectively applying the domestic penal codes, initiating investigations into criminal acts on their territory, and bringing perpetrators to justice. Over the past years, they have experienced an increase in micro drug trafficking, sales, and consumption amongst community members. The communities concerned have repeatedly denounced these and other drug-related acts with the national police to no avail.800 The police have generally failed to investigate the crimes, and in the few cases where they have launched an official investigation, have delayed the procedures or failed to prosecute or punish any perpetrator.801

Drug trafficking and sales by community members have seriously deteriorated the security and public health conditions in the communities concerned. The infiltration of drugs into the communities have broken social cohesion and raised intracommunal tensions. Inaction of the competent State authorities to address the criminal complaints of the communities concerned nurtures a culture of impunity and threatens to destroy the communities’ unique understanding of unity and collectivity. This section analyzes to what extent Colombia and Nicaragua have the obligation to provide the communities concerned with equal and effective access to justice for drug-related crimes in order to preserve their collective, traditional way of life.802

800 The dissertation only focuses on drug trafficking and sales but not on drug consumption because the latter is closely related to public health issues that would exceed the scope of this research. 801 See supra Access to Justice for Drug-Related Crimes in Human Rights Claims of the Community of Tierrabomba; Human Rights Claims of the Community of Orinoco. 802 The debate about drug-related acts in Afro-descendant communities is oftentimes racialized. This dissertation however discusses such acts from a human rights perspective as issues raised by the communities concerned. By no means it intends to racialize the occurrence of these acts in Afro-descendant communities. 169

A Human Rights Perspective on Equal and Effective Access to Criminal Justice for Afro-Latin American Communities

Afro-descendant communities in Latin America, including the communities concerned, face two major difficulties in accessing the formal justice system of the State.803 First, racism is deeply embedded in the judiciary and law enforcement of Latin American countries.804 While such institutional racism expresses itself in different forms, ranging from inaction and delays of

State authorities to excessive use of force against Afro-descendants and mass incarceration for petty crimes,805 it frequently results in the fact that Afro-descendants—both as individuals and communities—turn away from the State’s justice system and try to resolve criminal and other legal problems by themselves.806 For instance, given the absence of official investigations into the drug trafficking and sales, both communities concerned have conducted their own investigations, documented the drug-related acts, and submitted the material to the national police.807 Second, State institutions frequently do not reach those Afro-descendant communities living in remote rural areas.808 For these communities, physical access to justice implies

803 A separate discussion surrounds the question of whether access to the formal justice system of the State can bring justice at all to Afro-descendant communities and other group-oriented cultures (Daniel M. Brinks, Access to What? Legal Agency and Access to Justice for Indigenous Peoples in Latin America, 55 J. DEV. STUD. 348 (2018)). While this discussion is undoubtedly important to empower Afro-descendant communities, its elaboration would exceed the scope of the dissertation. 804 CERD General Recommendation No. 34, supra note 269, at ¶¶ 6, 34-41; Comm. on the Elimination of Racial Discrimination, General Recommendation XXXI on the Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System, U.N. Doc. A/60/18 (2005) [hereinafter CERD General Recommendation XXXI]; CESAR RODRIGUEZ GARAVITO ET AL., EL DERECHO A NO SER DISCRIMINADO: PRIMER INFORME SOBRE DISCRIMINACIÓN RACIAL Y DERECHOS DE LA POBLACIÓN AFROCOLOMBIANA (VERSIÓN RESUMIDA) [THE RIGHT NOT TO BE DISCRIMINATED AGAINST: FIRST REPORT ABOUT RACIAL DISCRIMINATION AND THE RIGHTS OF THE AFRO-COLOMBIAN POPULATION (SHORTENED VERSION)] (2008). 805 Human Rights Council, Rep. of the Working Group of Experts on People of African Descent on its Fourteenth Session, Addendum, Mission to Brazil, ¶ 67, U.N. Doc. A/HRC/27/68/Add.1 (Sept. 23, 2014); Wallace de Almeida v. Brazil, Case 12.440, Inter-Am. Comm’n H.R., Report No. 26/09, OEA/Ser.L/V/II. Doc. 51 rev. 1, ¶ 148 (2009). 806 MIGUEL EMILIO LA ROTA ET AL., ANTE LA JUSTICIA: NECESIDADES JURÍDICAS Y ACCESO A LA JUSTICIA EN COLOMBIA [AT COURT: LEGAL NEEDS AND ACCESS TO JUSTICE IN COLOMBIA] 319 (2014). 807 See supra Access to Justice for Drug-Related Crimes in Human Rights Claims of the Community of Tierrabomba; Human Rights Claims of the Community of Orinoco. 808 MARIA MAGDALENA SEPULVEDA CARMONA & KATE DONALD, MINISTRY FOR FOREIGN AFFAIRS OF FIN., ACCESS TO JUSTICE FOR PERSONS LIVING IN POVERTY: A HUMAN RIGHTS APPROACH 16-17 (2014). 170

traveling long distances under difficult conditions; this is an effort that many do not consider worth making given the structural exclusion and general lack of trust in governmental institutions. To address this problem, Colombia and Nicaragua have attempted to bring justice to the communities by establishing an outreach post of the national police (Orinoco) and having regular police visits (Tierrabomba), respectively. However, both communities concerned allege that the police are corrupted and do not meet their presence requirements at the outreach posts.809

Racial discrimination and structural racism are major impediments of Afro-descendants’ access to both formal and material justice.810 While the international and domestic human rights systems have stressed the general need to prevent and combat racial discrimination in the criminal justice system and law enforcement, discussions have focused on the importance of criminalizing racially motivated acts and prosecuting perpetrators at the domestic level.811 In the

Latin American context, scholars and practitioners have acknowledged that many States, including Colombia and Nicaragua, lack effective anti-discrimination laws since they are not implemented in practice and do not allow the victims to obtain compensation for damages suffered.812 This focus on criminal prosecution of racial discrimination neglects racism as a structural factor that influences behavior of State and private actors since colonial times. Indeed,

809 See supra Access to Justice for Drug-Related Crimes in Human Rights Claims of the Community of Tierrabomba; Human Rights Claims of the Community of Orinoco. 810 E.g., O.A.S. G.A. Res. 2891 (XLVI-O/16), Plan of Action for the Decade for Persons of African Descent in the Americas (2016-2025) (June 16, 2014) (mentioning “justice” as a strategic line of action); Durban Declaration, supra note 121, Programme of Action at ¶ 12 (“[calling] upon States to take specific steps to ensure full and effective access to the justice system for all individuals, particularly those of African descent”). 811 See supra Domestic Legal Developments; see also articles 2 and 4 CERD; CERD General Recommendation No. 34, supra note 269, at ¶¶ 34-41; CESAR RODRIGUEZ GARAVITO ET AL., RAZA Y DERECHOS HUMANOS EN COLOMBIA: INFORME SOBRE DISCRIMINACIÓN RACIAL Y DERECHOS DE LA POBLACIÓN AFROCOLOMBIANA [RACE AND HUMAN RIGHTS IN COLOMBIA: REPORT ABOUT RACIAL DISCRIMINATION AND THE RIGHTS OF THE AFRO-COLOMBIAN POPULATION] 281 (2009). 812 For Colombia, see MIGUEL EMILIO LA ROTA ET AL., supra note 806, at 320; CESAR RODRIGUEZ GARAVITO ET AL., supra note 804, at 59-61. For Nicaragua, see Comm. on the Elimination of Racial Discrimination, Concluding Observations: Nicaragua, ¶ 17, U.N. Doc. CERD/C/NIC/CO/14 (June 19, 2008). See also HERNANDEZ, supra note 243, at 105 (arguing that the criminalization of racial discrimination does not effectively protect victims since they face high evidentiary standards in the criminal procedures, which they are frequently unable to meet). 171

structural racism operates as a deeply rooted perception rather than as a specific act that can be singled out and criminally prosecuted.813 The claims of the communities concerned shed light on the extent to which these communities face institutional racism when seeking access to justice.

Thus, the systemic factor of racism needs to be taken into account when assessing the claim of equal and effective access to justice.814

The Inter-American human rights system has recently shifted in this direction, recognizing that certain population groups have limited access to justice in their country due to structural discrimination.815 While these bodies have embraced access to justice as “the realization of material justice,”816 recent jurisprudence demonstrates greater awareness of the negative effects of structural discrimination on certain groups’ access to substantive justice.817

For instance, in the case of Simone André Diniz (Brazil), a private employer rejected the petitioner’s job application as a domestic worker with the reasoning that the petitioner was of

African descent.818 The petitioner claimed that this is an act of racial discrimination and the

813 THE WORLD BANK, supra note 14, at 100. 814 While structural racism has generally been most widely discussed in the context of access to justice and law enforcement, it cannot be neglected that structural racism also affects the other claims of the communities concerned. This dissertation addresses structural racism in depth only in the context of access to justice as it is most evident and prevalent. The legal foundations of the prohibition of racial discrimination are however similar for all claims. 815 “Access to justice” in international human rights law serves as an umbrella term for a broad range of fundamental rights related to fair trial guarantees, judicial remedies, and non-discrimination. In its most narrow interpretation, access to justice encompasses the right to legal aid in judicial procedures (FRANCESCO FRANCIONI, ACCESS TO JUSTICE AS A HUMAN RIGHT 1 (2007)). Broader understandings range from the right to bring a claim before a court of law to the right to have a claim adjudicated in accordance with substantive justice standards (id.). International human rights bodies consider access to justice the necessary precondition for the effective protection of all fundamental rights. 816 Antonio Augusto Cançado Trindade, The Right of Access to Justice in the Inter-American System of Human Rights Protection, in 17 ITALIAN YEARBOOK OF INTERNATIONAL LAW 7, 20 (Benedetto Conforti et al. eds, 2007). 817 But see Nadege Dorzema et al. v. Dominican Republic, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 251, ¶ 40 (Oct. 24, 2012) (“In this regard, the Court considers that, in order to decide this case, it is not necessary to make a ruling on the alleged context of structural discrimination that might exist in the Dominican Republic towards Haitians or persons of Haitian origin.”). Nonetheless, the Inter-American Court of Human Rights refers to a “de facto discrimination” of persons of Haitian descent (id. at ¶ 238). 818 Simone André Diniz v. Brazil, Case 12.001, Inter-Am. Comm’n H.R., Report No. 66/06, OEA/Ser.L/V/II.127 Doc. 4 rev. 1, ¶ 11 (2006). 172

Brazilian State’s failure to investigate it amounts to a violation of her rights to fair trial, equal protection before the law, and judicial protection (articles 8, 24, and 25 of the ACHR) and several provisions of the CERD.819 The Inter-American Commission on Human Rights decided in favor of the petitioner.820 It acknowledged that institutional racism “stands in the way of the right of a black citizen to be free from discrimination, and the enjoyment and that same citizen’s exercise of the right to accede to justice to have the violation remedied.”821 In Hacienda Brasil

Verde Workers v. Brazil, the Inter-American Court of Human Rights found that Brazil violated the prohibition of slave labor, among others, for failing to stop the use of slavery and forced labor of eighty-five workers on the farm of Hacienda Brasil Verde, investigate the acts, and prosecute and punish those responsible.822 It held that that the structural discrimination based on

“economic position,”823 that results from poverty, analphabetism, and lack of education, rendered the eighty-five victims particularly vulnerable to slavery and forced labor and impeded their access to judicial protection.824 Regrettably, the Court failed to discuss the racial dimension of poverty although most victims in this case were of African descent. Outside the context of Afro- descendants, the Court confirmed the existence of structural discrimination and violence as factors contributing to the failure of State authorities to investigate human rights violations committed against the victims, particularly women and indigenous peoples.825 While these cases

819 Id. at ¶ 1. 820 Id. at ¶ 145. 821 Id. at ¶ 87 (adding that institutional racism affects the entire Afro-Brazilian population). 822 Hacienda Brasil Verde Workers v. Brazil, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 318 (Oct. 20, 2016). 823 Id. at ¶ 340. 824 Id. at ¶¶ 414-19. 825 Gonzalez et al. (“Cotton Field”) v. Mexico, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 205, ¶ 152, 450 (Nov. 16, 2009); Plan de Sánchez Massacre v. Guatemala, Reparations, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 116, ¶ 49(18), 87(f) (Nov. 19, 2004). In other cases, the Court has used the terminology of “de facto” or “indirect discrimination” to describe structural factors with discriminatory effect on certain population groups (e.g., Nadege Dorzema et al. v. Dominican Republic, supra note 817, ¶¶ 235, 237; Xákmok Kásek Indigenous Community v. Paraguay, supra note 173, at ¶ 274). 173

shed light on the influence that structural factors have on the marginalization of and discrimination against certain population groups, the low number of cases demonstrates that the legal analysis of structural discrimination is still in its infancy in the Inter-American human rights system. Contributing to such analysis, the following section analyzes the legal claims of the communities concerned in light of institutional racism facing Afro-descendants in Latin

America.

Right to Equal Law Enforcement and Effective Investigation of Drug-Related Crimes in the Communities Concerned Under International Human Rights Law

In the specific context of the communities concerned, the claims to effectively apply the domestic penal codes, investigate the drug-related crimes within their communal societies, and prosecute and punish the perpetrators are a violation of the rights to equality before the law, non- discrimination, and an effective remedy.

Equality before the Law and Non-Discrimination

The principles of equality and non-discrimination run “like a red thread” through international human rights law.826 Virtually all international and regional human rights treaties contain non-discrimination clauses and ensure equal treatment under the law.827 The human rights provisions on equality and non-discrimination encompass different aspects. These include the right to equal application of the law (equality before the law), prohibition of discriminatory legislation (equal protection of the law), and the right to protection against discrimination

826 NOWAK, supra note 462, at article 24 ¶ 6. 827 Article 7 UDHR; articles 2(1) and 26 ICCPR; article II ADHR; articles 1(1) and 24 ACHR; articles 2(2)(a) and 3 ILO Convention No. 169; CERD; Inter-American Convention against Racism. Universal and Inter-American human rights treaties also contain an accessory right to non-discrimination, which imposes on States the obligation to implement the treaty rights for all individuals without discrimination. 174

through positive measures (affirmative action).828 This section is primarily concerned with the first aspect, namely the equality before the law.

The selective law enforcement in the communities concerned amounts to a violation of the rights to equality before the law and non-discrimination. The right to equality before the law refers to the formal claim that the State must apply the law equally to all citizens that fall within the scope of the respective law.829 This right is concerned with the enforcement of the law and is violated if a judicial or administrative authority interprets or implements the law in an arbitrary and discriminatory manner. In addition, the Inter-American Court of Human Rights has held that States are required to prevent situations of de jure or de fact discrimination and must take positive measures “to reverse or change discriminatory situations that exist in their societies to the detriment of a specific group of persons.”830 Similarly, the Inter-American Convention against Racism requires States to “prevent, eliminate, prohibit, and punish” racially discriminatory acts violating international human rights norms, “particularly those applicable to minorities or groups that are in vulnerable situations and subject to racial discrimination.”831

Thus, the provision adds a collective dimension to the prohibition of racial discrimination that is particularly relevant to combat the structural racism facing the communities concerned. Based on this legal framework, Colombia and Nicaragua may not deny application of their domestic penal codes to the communities concerned.832 Therefore, the selective law enforcement as it is

828 NOWAK, supra note 462, at article 24 ¶¶ 14, 16, 53. 829 Id. at article 24 ¶¶ 14-15; IACtHR, Hacienda Brasil Verde Workers v. Brazil, supra note 822, at ¶ 334. 830 Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No. 18, ¶ 104 (Sept. 17, 2003) [hereinafter Advisory Opinion No. 18 on Juridical Condition and Rights of the Undocumented Migrants] (referring to affirmative action measures). Similarly, the Plan of Action for the Decade for Persons of African Descent in the Americas encourages States to “[p]romote public policies focused on providing equitable non-discriminatory treatment which will allow for equal access to the justice system for persons of African descent” (O.A.S. G.A. Res. 2891 (XLVI-O/16), supra note 810, at 9). 831 Article 4(viii) Inter-American Convention on Racial Discrimination. 832 Cf. Yatama v. Nicaragua, supra note 547, at ¶ 186 (“Article 24 of the American Convention prohibits any type of discrimination, not only with regard to the rights embodied therein, but also with regard to all the laws that the State 175

practiced by the police outreach posts in the communities concerned violates the rights to equality before the law and non-discrimination.

International human rights law further connects equal protection before the law and non- discrimination with the protection of a traditional way of life of indigenous or other communities with collective legal claims. General Comment No. 21 of the Committee on Economic, Social, and Cultural Rights recognizes that everyone has the right to participate in cultural life based on the principles of equality and non-discrimination.833 Similarly, the OAS has defined indicators on the equal and non-discriminatory application and enforcement of the right to participate in cultural life of indigenous and Afro-descendant communities.834 The prohibition of non- discrimination is further incorporated as an underlying principle into all international human rights instruments containing cultural rights.835 As a result, international cultural rights norms support the claim of the communities concerned that a violation of the rights to equality before the law and non-discrimination violates their participation in cultural life.

To overcome the element of structural racism that is inherent in the selective law enforcement in the communities concerned, States need to tackle the underlying causes of racial discrimination that are frequently deeply rooted in society. Article 7 CERD requires States to

“adopt immediate and effective measures, particularly in the fields of teaching, education,

adopts and to their application. In other words, this Article does not merely reiterate the provisions of Article 1(1) of the Convention concerning the obligation of States to respect and ensure, without discrimination, the rights recognized therein, but, in addition, establishes a right that also entails obligations for the State to respect and ensure the principle of equality and non-discrimination in the safeguard of other rights and in all domestic laws that it adopts.”). 833 CESCR General Comment No. 21, supra note 49, at ¶ 16. Moreover, the prohibition of discrimination is considered a core obligation of the State under article 15(1)(a) ICESCR (see supra State Obligations Resulting from Cultural Human Rights). 834 ORG. OF AM. STATES, supra note 576, at 116-18. 835 Similarly, the Inter-American Convention against Racial Discrimination requires States to “prevent, eliminate, prohibit, and punish … [a]ny restriction or limitation on the use of the language, traditions, customs, and culture of persons in public or private activities” (article 4(ix)). This provision recognizes the interrelation between racial discrimination and protection of cultural life. 176

culture and information, with a view to combating prejudices which lead to racial discrimination.”836 The Committee on the Elimination of Racial Discrimination has repeatedly confirmed that this provision requires States to provide training to law enforcement bodies along with other governmental authorities to challenge racial prejudices against certain population groups.837

In conclusion, international human rights law supports the communities’ claim to investigate drug-related offenses, qualifying the failure to investigate drug-related crimes in the communities concerned as a violation of the rights to equal protection before the law and non- discrimination. Therefore, States are required to ensure the equal application of the domestic penal codes on the communities’ territory. International human rights law also requires States to raise awareness of structural discrimination and take measures to combat it. As a result, the above-mentioned legal framework supports the communities’ human rights claims on access to justice. It also informs the set of recommendations of this dissertation arguing for overcoming structural discrimination against the communities concerned to improve the human rights implementation on their lands.838

Right to an Effective Remedy

The communities concerned seek an effective remedy for the violations of their rights to equal protection before the law, non-discrimination, and participation in cultural life as a result of the States’ failure to implement the penal codes in the communities. U.N. and Inter-American human rights treaties contain the right to an effective remedy for violations of international

836 Article 7 CERD. The Inter-American Convention against Racial Discrimination does not contain an equivalent provision. 837 E.g., CERD General Recommendation No. 34, supra note 269, at ¶ 41; CERD General Recommendation XXXI, supra note 804, at ¶ 5(b). 838 See infra Recommendation 4: Raising Awareness of Structural Racism and Its Impact on the Ground. 177

human rights norms and, in some cases, domestic laws.839 One of the most relevant provisions is article 25 ACHR, granting the communities concerned a “simple and prompt recourse”840 for violations of the ACHR as well as fundamental rights enshrined in the domestic laws.841

The communities concerned have the right to an effective remedy for violations of rights to equal protection before the law, non-discrimination, and participation in cultural life.842 As stated above, the selective enforcement of the domestic penal codes in the communities concerned constitutes a violation of the rights to equality before the law and non-discrimination as enshrined in the ACHR and ICCPR.843 Given that such selective law enforcement and application affects the communities’ collective way of life, it infringes upon the communities’ rights to non-discrimination and participation in cultural life. These provisions protect the right to belong to the cultural community of choice and not to be discriminated against based on a specific way of life or cultural identity.844 The failure to investigate drug trafficking and sales

839 Article 2(3)(a) ICCPR, article 2(1) ICESCR, article 6 ICERD, article 13 ECHR, and article 1 Protocol of San Salvador guarantee an accessory right to an effective remedy for violations of the respective human rights conventions. Thus, a violation of the right to an effective remedy cannot be claimed independently of a violation of a substantive right of the human rights treaty. Article 12 ILO Convention No. 169, which is relevant for the community of Orinoco, guarantees indigenous and tribal communities a legal remedy to effectively protect their rights without specifying the (conventional or domestic) nature of such rights. 840 Article 25 ACHR. This is an autonomous provision, meaning that the State can infringe the right to an effective remedy even if it has not violated any other provision of the Convention. 841 For violations of fundamental rights enshrined in the domestic laws of Colombia and Nicaragua, see infra Application to Colombia and Nicaragua. Article 8 UDHR is similar to article 25 ACHR because it guarantees the right to effective remedy for violations of fundamental rights established in the constitution or domestic law. 842 Besides the human rights violations discussed in this paragraph, the drug trafficking and sales may also affect other international human rights norms, particularly the rights to health (article 12 ICESCR and article 10 Protocol of San Salvador) and to a dignified life (article 4 ACHR). In fact, the communities lack access to the necessary public health institutions and rehabilitation programs to assist the drug-addicted community members. The drug- related crimes have also resulted in an increase in violent acts, which might also affect the right to a dignified life of the communities concerned and their members. A detailed discussion of these rights would however exceed the scope of this dissertation. 843 See supra Equality before the Law and Non-Discrimination. 844 Article 15(1)(a) ICESCR in connection with articles 2(3) and 3 ICESCR; article 14(1)(a) Protocol of San Salvador in connection with article 3 Protocol of San Salvador; CESCR General Comment No. 21, supra note 49, at ¶¶ 21-22, 49(a). This argument is further supported by the fact that the communities concerned have gradually lost their distinctive culture over the past five hundred years as a result of being consistently subjected to racism and racial discrimination. The analysis of the historic context and current marginalization demonstrates the negative impact of structural racism on the communities’ lives (see supra Conceptualization of Afro-descendants in Latin America from Colonial Times to the 21st Century). 178

within the communities concerned, on the other hand, does not violate the right to participate in cultural life.845 While General Comment No. 21 on article 15(1)(a) ICESCR establishes that

States should “investigate and examine alleged infringements …, identify responsibilities, publicize the results and offer the necessary administrative, judicial or other remedies to compensate victims,”846 it does not suggest that criminal, social, or public health issues fall within the scope of article 15(1)(a) ICESCR. Thus, the communities concerned are entitled to an effective remedy for violations of the rights to equality before the law, non-discrimination, and participation in cultural life for States’ selective law enforcement and application in the communities concerned.

The right to an effective remedy does not necessarily include the State obligation to investigate a crime and prosecute and punish the perpetrators. States have an obligation to investigate human rights violations within reasonable time and prosecute and punish the perpetrators only if such violations are the result of a criminal act under domestic law.847 While drug trafficking and sales constitute crimes established in the domestic penal codes of Colombia and Nicaragua,848 the unequal enforcement of the law in the communities concerned is not the result of these crimes. Rather, it might be a result of the marginalization and structural racism facing the communities concerned or the lack of political will to enforce the penal code. While the communities concerned are entitled to an effective remedy to address the selective law enforcement under international human rights law, they do not have a right to an investigation of

845 The failure to investigate drug-related crimes is also unlikely to amount to a violation of other human rights norms. 846 CESCR General Comment No. 21, supra note 49, at ¶ 72. 847 E.g., Simone André Diniz v. Brazil, supra note 818, at ¶¶ 110-34; 1 MINISTERIO PÚBLICO FISCAL DE LA CIUDAD AUTÓNOMA DE BUENOS AIRES, EL DEBIDO PROCESO LEGAL: ANÁLISIS DESDE EL SISTEMA INTERAMERICANO Y UNIVERSAL DE DERECHOS HUMANOS [DUE PROCESS OF LAW: ANALYSIS UNDER THE INTER-AMERICAN AND UNIVERSAL HUMAN RIGHTS SYSTEM] 225 (2013). 848 See infra Application to Colombia and Nicaragua. 179

the drug-related crimes and prosecution and punishment of the perpetrators under international human rights law.849

The Inter-American human rights system has developed extensive jurisprudence what constitutes an effective remedy for violations of the rights to equality before the law, non- discrimination, and participation in cultural life.850 The “right to a simple and prompt recourse, or any other effective recourse”851 enshrined in article 25(1) ACHR grants everyone the right to file an amparo action, a judicial remedy to claim protection of fundamental rights without resorting to ordinary court procedures.852 The mere formal existence of an amparo action in the domestic legislation does not satisfy article 25 ACHR. Instead, the amparo action as well as any other judicial remedy of the State must be effective in practice,853 meaning that they must be

“capable of producing the result for which [they were] designed.”854 This means that judicial remedies need to be adjudicated within a reasonable time and designed in a way that they can determine a legal violation and provide adequate redress.855 They are ineffective if they are

“illusory because of the general conditions prevailing in the country, or even in the particular

849 In practice, this conclusion bears the difficulty of proving the selective law enforcement and structural racism in the communities concerned. 850 Other human rights bodies, particularly the Human Rights Committee, have also extensively deliberated on the right to an effective remedy (see Valeska David, The Expanding Right to an Effective Remedy: Common Developments at the Human Rights Committee and the Inter-American Court, 3 BRIT. J. AM. LEGAL STUD. 259 (2014)). Given the context of this dissertation, the focus of this section lies on the right to an effective remedy under the Inter-American human rights system. 851 Article 25(1) ACHR. 852 Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and (8) American Convention on Human Rights), Advisory Opinion OC-9/87, Inter-Am. Ct. H.R. (ser. A) No. 9, ¶ 23 (Oct. 6, 1987) [hereinafter Advisory Opinion No. 9 on Judicial Guarantees in States of Emergency] (“Article 25(1) of the Convention is a general provision that gives expression to the procedural institution known as amparo, which is a simple and prompt remedy designed for the protection of all the fundamental rights.”); CELINA MEDINA, THE AMERICAN CONVENTION ON HUMAN RIGHTS: CRUCIAL RIGHTS AND THEIR THEORY AND PRACTICE 350 (2d ed. 2016). 853 While the wording of article 25(1) ACHR suggests that the amparo action must be “simple and prompt” and other judicial remedies merely “effective,” the Inter-American Court of Human Rights generally applies the characteristics of simplicity, promptness, and effectiveness for both the amparo and other judicial actions (see Yatama v. Nicaragua, supra note 547, at ¶ 254). 854 Velasquez Rodriguez v. Honduras, supra note 539, at ¶ 66. 855 Acosta Calderon v. Ecuador, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 129, ¶ 93 (June 24, 2005); Advisory Opinion No. 9 on Judicial Guarantees in States of Emergency, supra note 852, at ¶ 24. 180

circumstances of a given case.”856 Reinforcing the effectiveness of judicial remedies, article

25(2)(c) ACHR requires States to ensure enforcement of such remedies.857

In sum, the international human rights to equal protection before the law, non- discrimination, and participation in cultural life protect and promote the human rights claim of the communities concerned to have access to criminal justice. This legal framework prohibits the selective law enforcement practiced by Colombia and Nicaragua. It also provides the communities concerned with the right to an effective remedy to overcome States’ violations of the aforesaid rights. This right to an effective remedy means that the communities concerned are entitled to take legal action against States to enforce the criminal law provisions on their territories.

Corresponding State Obligations

The selective enforcement of the penal codes in the communities concerned violates the communities’ rights to equality before the law and non-discrimination principally based on articles 2(1) and 26 ICCPR and articles 1(1) and 24 ACHR. The communities concerned are entitled to an effective remedy for the violation of these rights as well as for the right to participation in cultural life according to articles 2(3)(a) and 26 ICCPR, articles 2(1) and 15(1)(a)

ICESCR, articles 1(1), 24, and 25 ACHR, and articles 2 and 14(1)(a) Protocol of San Salvador.

This means that the communities concerned have the right to a judicial means to demand enforcement of the penal codes on their territories. These legal entitlements give rise to the following immediate State obligations to protect and fulfill the human rights claims of the

856 Advisory Opinion No. 9 on Judicial Guarantees in States of Emergency, supra note 852, at ¶ 24. The analysis of the indicators for the communities concerned demonstrates that prevailing structural racism renders the right to an effective remedy illusionary (see infra Practical Implementation of the State Obligations Resulting from International Human Rights Law and the Domestic Framework in the Communities Concerned; annex III). 857 Acevedo Buendía et al. (“Discharged and Retired Employees of the Comptroller”) v. Peru, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 198 (July 1, 2009). 181

communities concerned to (1) apply the domestic laws in the same manner in the communities concerned as in the rest of Colombia and Nicaragua and (2) obtain an effective remedy to seek equal and effective law enforcement858:

1) Obligation to protect: Colombia and Nicaragua are required to incorporate into their domestic legal systems a judicial remedy that allows the communities concerned to effectively demand equal enforcement of the law.

2) Obligation to fulfill:

a. Colombia and Nicaragua are required to apply and enforce the domestic penal codes in the communities concerned in the same manner as in the rest of the country.

b. Colombia and Nicaragua have the obligation to take measures to combat racial discrimination and racially discriminatory perceptions of the law enforcement bodies to the detriment of the communities concerned.859

Overall, Colombia and Nicaragua may not discriminate against the communities concerned by selectively implementing the penal codes because of the communities’ racial or ethnic origin. They must grant the communities concerned a judicial remedy to demand equal enforcement of the law. The States also have the obligations to implement the criminal law provisions and combat racially discriminatory perceptions of their law enforcement personnel.

Application to Colombia and Nicaragua

This section demonstrates that the domestic legal frameworks of both Colombia and

Nicaragua provide more protection than international human rights law offers to the claims of the communities concerned.860 Although these provisions provide more clear protections, in practice this is not actualized.

858 These State obligations particularly focus on the context of structural racism of the communities concerned. 859 Cf. O.A.S. G.A. Res. 2891 (XLVI-O/16), supra note 810, at 9; article 2(1)(a) ICERD; article 4(viii) Inter- American Convention against Racial Discrimination. 860 The domestic legislations of Colombia and Nicaragua inform the international law protection of the claims to access to justice of the communities concerned because article 29(b) ACHR orders the Inter-American Court of 182

Domestic Legal Frameworks

This section demonstrates that the Colombian and Nicaraguan legal systems protect and promote the right to equal enforcement of the domestic penal codes, non-discrimination, and to an effective remedy to address legal violations in order to protect the cultural life of Afro- descendants. Additionally, unlike international human rights law, domestic laws enshrine the obligation to investigate drug-related crimes and prosecute and punish perpetrators in the communities concerned as examined below. The judicial remedies to enforce the right to equality before the law, non-discrimination, and investigation into drug-related crimes is ineffective in both States.

Equality before the Law and Non-Discrimination

The Constitutions of both Colombia and Nicaragua guarantee equality before the law and prohibit discrimination based on racial grounds.861 The Constitutions further provide the basis for the States to “promote” positive measures to achieve substantive equality of marginalized population groups.862 Access to justice, equality before the law, and non-discrimination are also underlying principles of the judiciary in both States.863 In Colombia, the Constitutional Court has ruled that the principle of equality is directly applicable to the governmental authorities, prohibiting it from treating citizens in a discriminatory manner.864

The constitutional rights to equality before the law and non-discrimination are reiterated in Colombian and Nicaraguan legislation on Afro-descendant communities. They protect the

Human Rights to afford the protection granted under domestic law if such protection exceeds the scope of the conventional rights (see supra Context-Specific Interpretation of Cultural Human Rights). 861 Article 13 Constitution of Colombia; article 27 Constitution of Nicaragua. 862 Article 13 Constitution of Colombia; article 91 Constitution of Nicaragua. 863 Articles 229-30 Constitution of Colombia; Article 160 Constitution of Nicaragua. 864 Comm. on the Elimination of Racial Discrimination, Combined Fifteenth and Sixteenth Periodic Reports Due in 2012: Colombia, ¶ 52, U.N. Doc. CERD/C/COL/15-16 (Apr. 7, 2014). 183

claims of the communities concerned at least partially. In Colombia, article 33 of Law 70 of

1993 on the rights of Afro-descendant communities states that “the state punishes and avoids all acts of intimidation, segregation, discrimination, and racism against black communities in the different social environment [and] in the public administration … and ensures that the principles of equality and respect for ethnic and cultural diversity are implemented.”865 In line with international human rights law, this provision acknowledges the importance of equal treatment for safeguarding cultural rights. Violations of this provision are sanctioned according to the

National Police Code.866 This National Police Code states that all police acts must adhere to human rights standards, the principle of equality, and recognition of and respect for cultural differences, diversity, and non-discrimination.867 It does not mention acts of intimidation, segregation, discrimination, and racism stated in article 33 of Law 70 of 1993, which raises questions about the effectiveness of this provision.868 Thus, article 33 of Law 70 of 1993 explicitly prohibits racial discrimination against Afro-descendant communities, but the National

Police Code does not include sanctions for such acts. An analysis of the Colombian legal system in light of the 5A framework demonstrates that the international human rights to equality before the law and non-discrimination are available at the national level because they are enshrined in the Colombian Constitution and Law 70 of 1993. However, the legal framework does not

865 Article 33(1) Law 70 of 1993. 866 Article 33(2) Law 70 of 1993; L. 1801/16, julio 29, 2016, D.O. [hereinafter the National Police Code]. Colombia has also adopted affirmative action measures for Afro-descendants to promote substantive equality. These measures are however not subject to discussion in this dissertation. 867 Article 8(2), (4), (6) National Police Code; see also article 10 on the obligations of the national police (stating that one of the police duties is to receive and address the complaints and petitions to a fast, prompt, and efficient manner). 868 See C.C., octubre 26, 2005, Sentencia T-1090/05 (“On the other hand, Article 33 of Law 70 of 1993 indicates that the acts of discrimination, segregation, and racism are sanctioned by the State, reason why it adopts the National Police Code. However, the Court observes that in the National (Decree 1355 of 1970) and Special (Decree 522 of 1971) Misdemeanors of the Police it is not possible to define these conducts. Therefore, the Court orders the Congress of the Republic to, without delay, adopt a law sanctioning the practices or conducts of racial discrimination according to the International Convention on the Elimination of All Forms of Racial Discrimination.”) (translation by the author). 184

mention any mechanisms to enforce the prohibition of “acts of intimidation, segregation, discrimination, and racism”869 against Afro-descendant communities, limiting the State’s accountability for failing to ensure equality before the law and non-discrimination. The community of Tierrabomba may therefore claim a violation of the rights to equality before the law and non-discrimination, but remedies for such violations are not available.

In Nicaragua, the Autonomy Law, which regulates the political autonomy of Nicaragua’s

Atlantic Coast regions from the central government, seeks to “guarantee equality in diversity.”870

It specifies that “the inhabitants at the Atlantic Coast have the right to absolute equality of rights and obligations among each other.”871 This provision focuses on combating discrimination among the indigenous, Afro-descendants, and mestizos living at the Atlantic Coast. Law

No. 757 of 2011 on Equal and Dignified Treatment of Indigenous and Afro-Descendant

Peoples872 recognizes the unequal treatment of Afro-descendant (and indigenous) communities as a result of “their cultural and linguistic characteristics”873 and thus connects equality and non- discrimination to cultural rights. It expands the principle of equality to all “relationships between the municipal, regional, [and] national public servant, the private company, non- governmental organizations, and the population of indigenous and Afro-descendant communities.”874 Thus, Nicaraguan law recognizes discrimination against Afro-descendant culture and prohibits discriminatory acts by the national police against the community of

869 Article 33 Law 70 of 1993. 870 Preamble IV Autonomy Law. 871 Article 11(1) Autonomy Law. 872 Ley No. 757, 2 Mar. 2011, Ley de Trato Digno y Equitativo a Pueblos Indignas y Afrodescendientes [Ley de Trato Digno] [Law of Dignified and Equal Treatment of the Indigenous Peoples and Afro-descendants], L.G., 26 May 2011 [hereinafter Equal Treatment Law]. 873 Preamble I Equal Treatment Law. 874 Article 9(b) Equal Treatment Law. The equal and dignified treatment further applies to State measures aimed at protecting and promoting the cultural and linguistic rights of Afro-descendant communities (article 9(d) Equal Treatment Law). 185

Orinoco. Similar to the Colombian legal system, the domestic laws in Nicaragua render the rights to equality before the law and non-discrimination available because these rights are established in the Nicaraguan Constitution and Equal Treatment Law of Nicaragua. However, the accountability of the State for failing to ensure the equality rights is limited because the

Equal Treatment Law does not incorporate any accountability mechanisms. The community of

Orinoco therefore enjoys the rights to equality before the law and non-discrimination in domestic law, but there are no clear provisions to hold the State responsible for failing to guarantee these rights.

Colombia has recognized the existence of structural racism in its jurisprudence. In its

Decision T-1090 of 2005, the Colombian Constitutional Court addressed the question of whether a night club in Cartagena lawfully prohibited an Afro-descendant woman from entering because of her skin color.875 In this case, the Court extensively discussed the legal standards on racial discrimination and racism against the Afro-descendant population, stating that Afro-Colombians are in “a situation of lack of protection and segregation,”876 which requires the application of the principle of non-discrimination. In the Decision T-015 of 2015, the Court protected an artist’s right to disseminate artwork that reflected the nuances of racism in Colombia everyday life as part of the artist’s freedom of expression.877 The Court explicitly recognized the “structural patterns of racial discrimination in Colombia”878 stemming from the colonization, slavery, blanqueamiento strategies, and the institutional denial of racism. The Court described racism as a “hidden phenomenon neglected by the society and State authorities,” concluding that “there is a direct relation between racism … and the multiple forms of violence and violation of human

875 C.C., octubre 26, 2005, Sentencia T-1090/05. 876 Id. 877 C.C., enero 19, 2015, Sentencia T-015/15. 878 Id. at ¶¶ 11, 60; see also C.C., agosto 28, 2012, Sentencia T-691/12, ¶ 3.1.2. 186

rights that the Afro-Colombian population suffers.”879 In a more recent case on racial discrimination at workplace, the Constitutional Court has ordered the drafting of a booklet on racial discrimination at work to educate employers on racially discriminatory acts in their organizations.880 While these cases do not directly address the State’s failure to enforce criminal law provisions in Afro-descendant communities, they establish important standards applicable to the community of Tierrabomba. The jurisprudence highlights the existence of structural discrimination against these communities. It also establishes the State obligation to educate the public about racial discrimination, which is also enshrined in article 7 CERD. The Nicaraguan legal framework however acknowledges the existence of structural racism against Afro- descendants only in the preamble of the Equal Treatment Law.881 These recognitions of the structural discrimination against Afro-descendant communities in the Colombian and Nicaraguan legal systems contribute to the acceptability and adaptability of the rights to equality before the law and non-discrimination. The communities concerned may refer to these statements if they seek to bring a claim that the States have failed to enforce the penal codes because of their racial biases.

Additionally, both States criminalize acts of racial discrimination in their penal codes.882

Through these provisions, the communities concerned may denounce acts of racial discrimination. The provisions therefore make the rights to equality before the law and non- discrimination accessible in the domestic legal systems.

879 C.C., enero 19, 2015, Sentencia T-015/15, ¶ 13.2. 880 C.C., septiembre 13, 2017, Sentencia T-572/17. 881 Preamble of Equal Treatment Law. 882 Article 134 of L. 599/00, julio 24, 2000, D.O. (Colom.) [hereinafter Penal Code], as amended by L. 1482/11, diciembre 1, 2011, D.O.; article 427 Penal Code (Nic.). 187

Overall, the communities concerned enjoy the rights to equality before the law and non- discrimination because Colombia and Nicaragua integrate these rights into their domestic legal frameworks. While the domestic legal systems explicitly recognize racial and structural discrimination against Afro-descendants, the enforcement mechanisms are weak in both States.

Clear provisions on how to hold the State accountable for failing to take measures against racial discriminations do not exist.

Effective Remedy to Demand the Equal Enforcement of the Law and an Investigation of Drug- Related Crimes

Both the Colombian and Nicaraguan legal frameworks criminalize acts of drug trafficking and sale.883 The States mandate the national police to investigate such acts and prosecute and punish the perpetrators.884 Failure to investigate crimes results in disciplinary responsibility of the police member.885 From the perspective of the 5A framework, this legal framework in Colombia and Nicaragua grants a certain form of accountability mechanisms because it recognizes disciplinary measures for police officers who fail to investigate crimes.

Nonetheless, the communities concerned lack an effective remedy to implement the penal codes and overcome the selective law enforcement as a violation of their constitutional rights to equality before the law and non-discrimination. While the Constitutions guarantee a judicial remedy to enforce legal or administrative acts,886 the Colombian and Nicaraguan legal provisions on equality and non-discrimination of Afro-descendants do not specify any legal remedy or other

883 Article 376 Penal Code (Colom.); article 359 Penal Code (Nic.). 884 L. 906/04, septiembre 1, 2004, D.O. (Colom.); Ley No. 228, 31 July 1996, Ley de la Policía Nacional [Law of the National Police], L.G., 28 Aug. 1996 (Nic.). 885 L. 1010/06, enero 23, 2006, D.O. (Colom.); Decreto Ejecutivo No. 51-2012, 20 Dec. 2012, Reglamento Disciplinario de la Policía Nacional de Nicaragua [Disciplinary Ordenance of the National Police of Nicaragua], L.G., 21 Dec. 2012 (Nic.). 886 Articles 86 and 87 Constitution of Colombia; articles 34, 160, and 188 Constitution of Nicaragua. 188

enforcement mechanism for violations of these rights.887 When no judicial remedy is available, the Constitutions of both States enshrine the amparo action as a subsidiary remedy for infringements of constitutional rights.888 The communities concerned can therefore challenge the selective law enforcement and lack of investigation by initiating an amparo action to claim a violation of their constitutional guarantees. The right to an effective remedy is available because the domestic legal frameworks of Colombia and Nicaragua recognize the amparo action as a form of demanding the implementation of the rights to equality before the law and non- discrimination. The right to an effective remedy is also accessible because any person whose fundamental rights are affected is entitled to file an amparo action.

The legal design of the amparo action in Colombia and Nicaragua renders this remedy ineffective for the communities concerned. In Colombia, the judges considering amparo actions cannot award compensation to the victims or define the nature or amount of compensation.889

Judges are limited to determining if the victims have suffered a damage that needs to be remedied. To obtain compensation, the victims must to initiate a separate civil procedure after obtaining the amparo decision.890 An amparo action can only result in the determination that a legal violation exists or does not exist.891 Thus, the amparo judge can only determine that the national police have discriminated against the community of Tierrabomba by failing to

887 Article 33 Law 70 of 1993 (Colom.); article 9 Equal Treatment Law (Nic.); see also OBSERVATORIO DE DISCRIMINACIÓN RACIAL ET AL., DISCRIMINACIÓN RACIAL EN COLOMBIA: INFORME ALTERNO ANTE EL COMITÉ PARA LA ELIMINACIÓN DE LA DISCRIMINACIÓN RACIAL DE LA ONU [RACIAL DISCRIMINATION IN COLOMBIA: ALTERNATIVE REPORT TO THE UN COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION] ¶ 260 (2009) (arguing that the lack of judicial remedy for racial discrimination has resulted in a very low number of racial discrimination cases). 888 Article 86 Constitution of Colombia; D. 2591/91, noviembre 19, 1991, D.O. (regulating the amparo action) [hereinafter Decree 2591 of 1991] (Colom.); article 188 Constitution of Nicaragua; Ley No. 49, 16 Nov. 1988, Ley de Amparo [Law on the Amparo Action], L.G., 20 Dec. 1988 [hereinafter Law on the Amparo Action] (Nic.). 889 Article 25 Decree 2591 of 1991 (Colom.); C.C., octubre 1, 1992, Sentencia C-543/92. 890 OBSERVATORIO DE DISCRIMINACIÓN RACIAL ET AL., supra note 887, at ¶ 262 fn.250 (adding that “the amparo action is not a judicial remedy to criminally prosecute the discriminating persons, obtain reparation for the victims, or award a guarantee of non-repetition as Article 6 of the Convention [CERD] orders.”). 891 Id. 189

investigate the drug-related crimes and enforce the law.892 This design renders the amparo action ineffective to demand the equal enforcement of the law, non-discrimination, and investigation into the drug-related crimes. It therefore limits the acceptability of the right to an effective remedy. However, the amparo action renders the right to an effective remedy adaptable to the circumstances of the community of Tierrabomba because the community can use this legal tool to bring issues of structural discrimination and lack of political will to enforce the penal code to the attention of the amparo judge. For instance, the above-mentioned

Constitutional Court case T-015 of 2015 on freedom of expression and structural racism against

Afro-descendants in Colombia was initiated through an amparo action of the Colombian artist.893

In Nicaragua, the community members of Orinoco can only file an amparo action after they have exhausted the administrative recourses against the police’ failure to investigate the micro-trafficking in their community.894 The requirement of exhausting administrative remedies before filing an amparo action poses a serious obstacle to the community’s right to have their constitutional rights to equity in law enforcement and non-discrimination enforced. It limits the acceptability of the right to an effective remedy because it places an additional burden to access the justice system on the community members. In addition, the administrative recourses are unlikely to result in the effective and equal law enforcement in the community due to the police’s demonstrated lack of will to investigate structural racism in law enforcement bodies. This

892 But see C.C., octubre 26, 2005, Sentencia T-1090/05 (stating that the amparo action is the most adequate judicial remedy to address racial discrimination); Comm. on the Elimination of Racial Discrimination, supra note 864, at ¶ 141 (referring to the decision T-1090 of 2005 the Colombian Constitutional Court and arguing that “[t]hus in terms of enforceability of rights, amparo is one of the most effective means under the Constitution of guaranteeing the immediate protection of rights whenever they are violated or threatened by an act or omission of any public authority.”). 893 C.C., enero 19, 2015, Sentencia T-015/15. 894 Article 27 no. 6 Law on the Amparo Action (Nic.); INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS, ACCESO A LA JUSTICIA Y DERECHOS HUMANOS EN NICARAGUA [ACCESS TO JUSTICE AND HUMAN RIGHTS IN NICARAGUA] 66 (2009). The Colombian legal system does not require the victims to turn to the administrative procedure before filing the amparo action (see Decree 2591 of 1991 (Colom.)). 190

renders the right to an effective remedy inadaptable in the Nicaraguan law because the law does not consider the specific circumstances of Afro-descendant communities that might impede them from filing an amparo action, including lack of will and structural discrimination. Lastly, while the communal judges of indigenous and Afro-descendant communities (wihta) have the competence to review certain criminal cases, they may not decide on cases involving non- community members or crimes that result in a prison sentence of more than three years.895

However, drug-related crimes involve sentences of more than three years of imprisonment.

Given the severity of the sentence, adjudication of drug-related crimes falls outside the wihta’s competence.

In sum, access to criminal justice of the communities concerned is restricted since they do not benefit from an effective judicial remedy to demand enforcement of the rights to equality before the law and non-discrimination. Thus, Colombia and Nicaragua are required to reexamine their domestic legal remedies to ensure that the individual members of the communities concerned have access to criminal justice.896

Practical Implementation of the State Obligations Resulting from International Human Rights Law and the Domestic Framework in the Communities Concerned

The analysis of structural, process, and outcome indicators in light of the 5A framework in the communities concerned confirms the lack of an effective remedy within the meaning of international human rights law, particularly article 25 ACHR, in both communities concerned.897

The rights to an effective remedy for unequal treatment before the law and racial discrimination are available in Colombia and in Nicaragua. Both States have established

895 Article 20 Penal Code (Nic.). 896 See infra Recommendation 3: Ensuring the Effectiveness of Judicial Remedies. 897 See infra annex III. 191

outreach posts of the national police in the communities concerned with the mandate to investigate criminal acts and incorporated a legal remedy for violations of fundamental rights, namely the amparo action, into their domestic legislation. Thus, the communities concerned can file an amparo action to demand equal enforcement of the penal codes on their territories as a violation of their fundamental rights.

The accessibility of the right to an effective remedy for unequal treatment for the law and racial discrimination is only partially apparent in the communities concerned. While both communities concerned may file criminal complaints with the outreach posts of the national police, they lack information about the possibility of filing an amparo action for racially discriminatory behavior of the police.898 Additionally, both communities concerned may face practical challenges of filing an amparo action because they live in remote locations. Accessing legal aid to prepare the filing or attend a court hearing requires financial and other resources that many community members may be reluctant to invest.

In both communities concerned, the right to effective remedies is not acceptable because this right is not effective to address the communities concerned’s claims, and the States have not ensured this right is upheld. In Colombia, the judge considering the amparo action can only determine whether a legal violation exists, but they cannot afford remedies. This requires the community of Tierrabomba to file another claim for remedies after the amparo judge determines that the State violates their rights to equal treatment before the law and non-discrimination. The

Nicaraguan legal system requires victims to resort to the administrative procedure first. This requirement is a bureaucratic obstacle for the community of Orinoco and unnecessarily prolongs the process of obtaining a legal remedy. Administrative proceedings against police officers

898 See infra annex III, State obligation no. 192

failing to enact the penal code in the community are unlikely to have a favorable outcome for the community of Orinoco given the lack of political will to enforce the penal codes and possible structural racism in the law enforcement system. Therefore, the acceptability of the amparo action is limited in both communities concerned.

The rights’ adaptability is limited since the design of the legal remedies in both Colombia and Nicaragua do not consider the needs or particular circumstances of the communities concerned. The communities concerned have repeatedly demanded the police to investigate the drug trafficking and sales and even conducted their own investigations and submitted their results to the national police. Both States have not taken the necessary investigative or other measures. In addition, in Nicaragua, the requirement of exhausting the administrative recourses before filing an amparo action does not consider that the isolated location of the community of

Orinoco makes it difficult for the community to visit courts and participate in administrative procedures over several instances.

Lastly, Colombia and Nicaragua have failed to hold the police officers accountable who selectively enforce the law in the communities concerned although both countries recognize disciplinary responsibility of police officers. Such inaction and impunity are a direct consequence of lack of political will and possibly structural racism facing the communities concerned.

193

CHAPTER 6

ANALYSIS OF OTHER HUMAN RIGHTS CLAIMS OF THE COMMUNITIES CONCERNED

The inadequacy of the current international and domestic human rights norms and practices to protect and promote the collective way of life of the communities concerned is not limited to land and access to justice claims. This inadequacy extends to virtually all their human rights claims. The previous chapters have demonstrated that (1) the communities concerned enjoy different legal protection of their claims to land and access to justice, depending on whether they are considered tribal or not; (2) international and domestic legal provisions adopted to protect such claims are interpreted in a way that does not always reflect the communities’ actual needs or preferred way of life; and (3) structural racism and overly bureaucratic institutions impede effective implementation of the law in both Colombia and Nicaragua. This chapter highlights the legal differentiation between tribal and non-tribal communities, unsatisfactory interpretation of legal provisions, racism, and institutional bureaucracy that also impact their other human rights claims. These challenges are a common theme in the current domestic and international legal systems and State practice of Colombia and Nicaragua. To demonstrate this, the present chapter discusses the claims to equal access to dignified employment opportunities raised by both communities, Tierrabomba’s demand for access to safe and clean water within the community, and Orinoco’s claim to revitalize the Garifuna language and preserve ancestral religious rituals. While this chapter does not address the selected human rights claims in the same depth as the land and access to justice claims analyzed in the previous chapters, it sheds light on the key legal issues underlying these claims.

194

Equal Access to Decent Work Opportunities

Both communities concerned seek access to work opportunities that allow their members to earn an income in a safe environment while living in the community.899 They assert that such work opportunities are necessary to counter the high poverty, unemployment, and drug trafficking levels, and halt migration of community members to urban areas. Ultimately, work opportunities contribute to economically and socially empowering the communities concerned and preventing the loss of their way of life. The communities concerned connect their demand for decent work opportunities to the current economic system. They claim protection from globalization, stating that neo-liberal market policies have been detrimental to their traditional ways of life.900 However, each community emphasizes different aspects of this human rights claims. While the community of Tierrabomba demands adequate remuneration and safe labor conditions for the inhabitants to work in dignity and cover the high living costs on the island, the community of Orinoco focuses on the collective dimension of work-related rights and seeks to freely choose and access work opportunities within their geographical area. The following sections demonstrate that the current international and domestic legal frameworks protect the former claim while addressing the latter only partially.

899 Interview with Mirla Aarón Freite, supra note 4; interview with Abraham Humphries, supra note 421. 900 For instance, the community of Orinoco asserts that the globalized economic system negatively affects its culture as it forces community members to migrate to cities or even abroad for an income supporting their families at home (interview with Abraham Humphries, supra note 421). The community of Tierrabomba states that the large-scale fishing industry has drastically reduced the fish stock in its vicinity, obliging its fishermen to go to deep waters about 50 miles away from the community. Such journeys are very dangerous as the fishermen lack the adequate boats and other equipment (interview with Michel Martinez, supra note 377). While this section does not analyze the impact of economic developments on the communities concerned, these global trends inform the communities’ legal claim for work. 195

Work-Related Rights of the Communities Concerned Under International Human Rights Law

Labor rights have gained importance in human rights discussions around the globe. This is due to the negative impact of globalization and neo-liberal market policies at the local level.

International human rights law does not grant a right to work in a strict sense.901 However, it does recognizes a myriad of individual and collective work-related rights, ranging from the prohibition of forced labor and slavery in article 8 ICCPR and article 6 ACHR to the right to strike in article 8(1)(d) ICESCR.902 It also affords specific economic rights to indigenous and tribal communities in articles 21 to 23 ILO Convention No. 169, aiming to protect their traditional activities. This chapter first analyzes whether the concept of work under international human rights law corresponds to the communities concerned’s understanding of work. It then examines the scope and content of legal protection that international human rights law affords to the claims of the communities concerned.

The Concept of Decent Work

For the communities concerned, employment is more than an instrument to generate income and cover living expenses. They demand work opportunities that allow them to live in dignity, are within their geographic reach, aim to prevent migration, and ensure their cultural existence. International human rights law reflects a broad understanding of labor. It embraces the concept of “decent work” under article 6 ICESCR and article 6 Protocol of San Salvador.

The Committee on Economic, Social, and Cultural Rights defines this work as labor “that respects the fundamental rights of the human person as well as the rights of workers in terms of

901 See article 6 ICESCR. 902 International human rights law does not understand the right to work as a single human rights provision but rather as a conglomerate of numerous provisions (Krzysztof Drzewicki, The Right to Work and Rights in Work, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A TEXTBOOK 223, 226-27 (Asbjørn Eide et al. eds., 2d ed. 2001)). 196

conditions of work safety and remuneration.”903 Decent work therefore includes remuneration that is sufficient to cover living expenses of the workers and their families, respect for the physical and mental integrity of workers, and free choice of and access to employment.904 It is strengthened through the right to just and adequate working conditions enshrined in article 7

ICESCR and “an inseparable and inherent part of human dignity,”905 contributing to the workers’ wellbeing and acknowledgment within the community. This element demonstrates the collective dimension of decent work and its potential to strengthen harmonious coexistence and collaboration in society.906 The definition of decent work is therefore holistic as it recognizes that a violation of the right to work also entails infringement of other human rights, including those related to participation in cultural life and enjoyment of culture.907 Thus, the communities concerned find support for their understanding of employment in the international human rights concept of decent work.

An analysis of work-related rights and their interpretation would not be complete without examining the corresponding legal standards of the International Labor Organization (ILO).

Similar to international human rights law, the ILO follows the decent work approach, but its definition is more limited. According to the ILO, decent work consists of four pillars: expanding social protection for workers, promoting social dialogue, creating employment opportunities, and

903 Comm. on Econ., Soc. & Cultural Rights, General Comment No. 18: The Right to Work (Art. 6 of the Covenant), ¶ 7, U.N. Doc. E/C.12/GC/18 (Feb. 6, 2006) [hereinafter CESCR General Comment No. 18]. The Inter-American human rights system refers to this definition of decent work when interpreting the right to work enshrined in article 6 Protocol of San Salvador (ORG. OF AM. STATES, supra note 474, at 74). 904 CESCR General Comment No. 18, supra note 903, at ¶¶ 6, 7. 905 Id. at ¶ 1; see also Jeremy Sarkin & Mark Koenig, Developing the Right to Work: Intersecting and Dialoguing Human Rights and Economic Policy, 33 HUM. RTS. Q. 1, 3 (2011) (“Work provides individuals in a society with an element of human dignity as key contributors to that civilization, while also providing remuneration, which might allow them to secure an adequate standard of living.”). 906 MacNaughton, Gillian & Diane F. Frey, Decent Work, Human Rights and the Sustainable Development Goals, 47 GEO. J. INT’L L. 607, 633 (2016). 907 Cf. MacNaughton, Gillian & Diane F. Frey, Decent Work for All: A Holistic Human Rights Approach, 26 AM. U. INT’L L. REV. 441, 466 (2011). 197

promoting rights at work such as freedom of association, prohibition of forced labor, elimination of child labor, and non-discrimination.908 This definition does not take into account the interrelationship between work-related and other fundamental rights, providing little support to the legal claims of the communities concerned.

Adequate Remuneration and Safe Working Conditions for the Community Members of Tierrabomba

The claims of the community of Tierrabomba to adequate remuneration and safe working conditions of their inhabitants are protected in numerous international human rights norms and other relevant legal instruments, including the ILO conventions.909 This legal protection lies at the heart of work-related rights and ensures that individuals generate an income that does not have any negative health or safety implications and serves to achieve a decent standard of living.910 The connection between these work-related rights and the achievement of decent living is evident throughout the entire international human rights system. For instance, article 7(a) ICESCR and article 7(a) Protocol of San Salvador establish that remuneration includes at least fair and equal pay for equal work without any distinction and includes a right to decent living of all workers and their families.911 Similarly, article 45 OAS Charter urges States to implement “a system of fair wages, that ensure life, health, and a decent standard of living for the worker and his family”912 in order to promote “a just social order, along with economic

908 INT’L LABOUR ORG., REPORT OF THE DIRECTOR-GENERAL: DECENT WORK (1999), https://www.ilo.org/public/english/standards/relm/ilc/ilc87/rep-i.htm#The%20policy%20response. 909 Article 23 UDHR; articles 7(a) and (b) ICESCR; article 26 IACHR in connection with articles 34(g) and 45(b) OAS Charter; article 7(a) and (e) Protocol of San Salvador; article XIV ADHR; article 5(e)(i) CERD. ILO Convention No. 169 reaffirms the guarantees to equal remuneration and safe working conditions for indigenous and tribal communities in its articles 20(2)(a) and 20(3)(b). 910 Jeremy Sarkin & Mark Koenig, supra note 905, at 3, 19. 911 Article 7(a) ICESCR; article 7(a) Protocol of San Salvador. External socio-economic factors define the amount of remuneration, which needs to be sufficient to meet all expenses related to the enjoyment of other human rights, including health services, education, housing, food, and water (CESCR General Comment No. 23, supra note 653, at ¶ 18). 912 Article 45(b) OAS Charter. 198

development and true peace.”913 While this provision is not directly justiciable in the Inter-

American human rights system, it can be invoked in connection with article 26 ACHR on the progressive realization of economic, social, and cultural rights.

To comply with the aforesaid provisions, States need to guarantee a minimum salary for a dignified living and adopt a national plan to prevent work-related accidents and health implications without any discriminatory distinction. This is enshrined in article 7 ICESCR and article 7 Protocol of San Salvador.914 The Committee on Economic, Social, and Cultural Rights affirms that these State obligations, together with the prohibition of discrimination, form part of the core obligations under article 7 ICESCR, which States must implement with immediate effect independent of their available resources.915 The rights to non-discrimination and equality enshrined in virtually all international human rights instruments strengthen relevant State obligations.916 It ensures the application of the rights to adequate remuneration and safe working conditions to all economic sectors and to the benefit of all categories of workers, including the employed, self-employed, domestic, and informal workers, irrespective of their legal status, gender, age, or race.917 In its Advisory Opinion No. 18 on the rights of migrant workers, the

Inter-American Court of Human Rights specified that the rights to non-discrimination and equality amount to jus cogens, which are fundamental principles of international law that cannot

913 Article 45 OAS Charter. 914 CESCR General Comment No. 23, supra note 653, at ¶¶ 5, 20, 26; ORG. OF AM. STATES, supra note 576, at 76- 77. 915 CESCR General Comment No. 23, supra note 653, at ¶¶ 65(c) and (d). 916 See supra fn.827. 917 Most legal scholarship on work-related discrimination focuses on gender and nationality-based distinctions, neglecting employment discrimination against ethnic and racial groups, such as the Afro-descendant and indigenous communities in Latin America (see Ana Elena Badilla & Carlos Rafael Urquilla Bonilla, El derecho al trabajo en el Sistema Interamericano de Derechos Humanos [The Right to Work in the Inter-American Human Rights System], in INTERPRETACIÓN DE LOS PRINCIPIOS DE IGUALDAD Y NO DISCRIMINACIÓN PARA LOS DERECHOS HUMANOS DE LAS MUJERES EN LOS INSTRUMENTOS DEL SISTEMA INTERAMERICANO [INTERPRETATION OF THE PRINCIPLES OF EQUALITY AND NON-DISCRIMINATION FOR THE HUMAN RIGHTS OF WOMEN IN THE INSTRUMENTS OF THE INTER-AMERICAN SYSTEM] 185 (Instituto Interamericano de Derechos Humanos ed., 2009)). 199

be set aside.918 These rights give rise to a range of State obligations. For instance, States are required to abstain from any action with de jure or de facto discriminatory effect on workers.919

They also have the obligations to take affirmative action measures to tackle discriminatory circumstances to the disadvantage of a specific racial or other group, and to protect the workers from violations of their rights by private employers.920 Thus, the right to “work under decent and fair conditions and to receive a remuneration” combined with the principles of non- discrimination and equality are necessary to guarantee “the enjoyment of a dignified life to the worker and to the members of his family.”921 International human rights law offers sufficient protection for the community of Tierrabomba’s human rights claim to adequate remuneration and safe working conditions, imposing on Colombia the obligations to respect, protect, and fulfill this claim.

Freedom and Access to Work Within the Geographical Reach of the Community of Orinoco

The employment-related human rights claim of the community of Orinoco focuses on obtaining access to work within geographical reach of the community. With this claim, the community wants to prevent community inhabitants from leaving traditional lands in search of employment. In international human rights law, this claim is only partially protected. The rights to freely choose employment and access it without discrimination belong to the core of work- related international human rights norms. Nevertheless, guarantees of employment opportunities that are geographically close to Orinoco remain unclear. Freedom to work as stated in article 23(1) UDHR, article 6(1) ICESCR, article 6(1) Protocol of San Salvador, and

918 Advisory Opinion No. 18 on Juridical Condition and Rights of the Undocumented Migrants, supra note 830, at ¶ 101. 919 Id. at ¶ 103, 920 Id. at ¶¶ 104, 148. 921 Id. ¶ 158. 200

article 5(e)(i) CERD includes the right to freely choose the type of employment or profitable activity, and to choose the place of work.922 The right to access employment opportunities, which is part of article 6 ICESCR,923 entails the prohibition of discrimination based on racial, ethnic, and other grounds, the right to obtain and transmit information about accessing productive activities, and physical accessibility, particularly for disabled persons.924 To implement this right, States are required to work progressively towards full employment of their citizens.925

Despite these norms allowing the community members of Orinoco to freely choose their type of and place of work without any discrimination, international human rights law has not yet addressed the claim of geographical accessibility of work opportunities. International law has not specified the rights to freedom or access to work in detail, and corresponding State obligations are vague.926 General Comment No. 18 on the right to work enshrined in article 6

ICESCR describes State obligations in very broad terms. It asserts that States’ minimum core obligations include guaranteeing access to employment for “disadvantaged and marginalized individuals and groups,”927 refraining from measures in the private and public employment sector that have a discriminatory effect on these people, and adopting national employment strategies for these populations.928 While this interpretation of these rights suggests that claims

922 Drzewicki, supra note 902, at 233; see also Bonilla & Urquilla Bonilla, supra note 917, at 199. 923 Article 23(2) UDHR; article 6(1) ICESCR; article 6(1) Protocol of San Salvador. 924 CESCR General Comment No. 18, supra note 903, at ¶ 12(b). 925 Id. at ¶ 19; Sarkin & Koenig, supra note 905, at 10. 926 Sarkin & Koenig, supra note 905, at 14. 927 CESCR General Comment No. 18, supra note 903, at ¶ 31(a). 928 Id. at ¶ 31. It is important to note that the rights to freely choose and access employment opportunities are closely related to educational rights, imposing on States the obligation to implement vocational trainings to empower workers and promote their insertion in the labor market (article 6(2) ICESCR; article 6(2) Protocol of San Salvador). While such State obligation is undoubtedly important to achieve full employment, the corresponding provisions primarily deal with labor inclusion of women and persons with disabilities (Bonilla & Urquilla Bonilla, supra note 917, at 200). 201

of geographical accessibility of employment are supported,929 international human rights law allows States to restrict the rights to freedom and access to work in several ways.930 In particular, the available employment opportunities and workplaces depend on States’ economic and social development since the right to work is subject to progressive realization.931 Further, the general human rights principle of proportionality applies to these rights, requiring that any obligation may not impose a disproportionate burden on the State.932 While Nicaragua has the obligation to grant free access to work without discrimination, creating formal employment opportunities in the remote area of Orinoco may impose a disproportionate burden on the State.

This is likely to exceed Nicaragua’s obligation to progressively realize the right to work.

In the context of tribal communities, such as the community of Orinoco, the current understanding of the relevant legal framework imposes an additional limitation on the right to freely choose the employment opportunities. It suggests that (indigenous and) tribal communities enjoy special work-related rights only if they pursue traditional economic activities, such as fishing, hunting, farming, or logging.933 For instance, in Saramaka People v. Suriname, when discussing the State’s obligation to consult the Saramaka people on mining and logging concessions, the Inter-American Court held that gold mining has not traditionally belonged to the

“cultural identity or economic system”934 of the community, lowering the legal standard for

929 Along these lines, the Social Charter of the Americas establishes that States should strive toward inclusive and equitable economic development, fighting poverty, reducing social inequalities, fostering equal opportunities, and enhancing standards of living (article 6). While the Social Charter does not clarify these State obligations in detail, it strongly relies on the principle of substantive equality. 930 See article 4 ICESCR on restricting the economic, social, and cultural rights enshrined in the ICESCR. 931 Sarkin & Koenig, supra note 905, at 10. 932 Drzewicki, supra note 902, at 233; Pueblo Bello Massacre v. Colombia, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 140, ¶ 123 (Jan. 31, 2006). 933 ENGLE, supra note 336, at 281. 934 Saramaka People v. Suriname, supra note 21, at ¶ 155. 202

protecting this natural resource.935 Similarly, both article 20(1) UNDRIP and article XXIX(1)

IADRIP establish the right of indigenous peoples to engage freely in all traditional and other economic activities. While they also grant a general right to employment, the emphasis of these legal instruments lies on the “enjoyment of [the indigenous and tribal peoples’] own means of subsistence”936 through their own economic institutions and structures. Article 23 ILO

Convention No. 169 also favors “[h]andicrafts, rural and community-based industries, and subsistence economy and traditional activities”937 and requires States to promote these activities and provide indigenous peoples with the necessary technical and financial support. This focus on “traditional,” and frequently less profitable, economic activities bears the risk of obliging indigenous people to migrate if they are not able to make a living with, or not willing to engage in such traditional activities within their community. This situation will lead to forced assimilation of indigenous and tribal communities. Such conceptualization of indigenous employment-related rights limits the State’s obligation to protect and promote tribal peoples’ employment opportunities to “traditional” activities. International human rights law fails to support the claim of the community members of Orinoco to work in geographical proximity of their place of residence, but it requires the State to protect and promote the traditional economic activities of the community under the framework of tribal peoples’ rights. While creating formal employment opportunities in remote locations like the community of Orinoco is a disproportionate burden on the State, a re-interpretation of “culture” would grant the community members of Orinoco the freedom to freely choose their economic activities. This does not

935 Nonetheless, the Court ordered the State to consult with the Saramaka people because any mining activity necessarily affects the community’s ancestral land (id.). See also U.N., Human Rights Comm., Ivan Kitok v. Sweden, supra note 603. 936 Article 20(1) UNDRIP; article XXIX(1) IADRIP. 937 Article 23 ILO Convention No. 169. 203

require a separate legal framework for Afro-descendants or the inclusion of all Afro-descendants under the indigenous and tribal peoples’ framework.938 The proposed set of recommendations of this dissertation lays out the legal foundations of such re-interpretation as part of the existing international human rights framework.939

The Rights to Adequate Remuneration and Safe Working Conditions in Colombia

This section examines whether the human rights claim of the community of Tierrabomba to adequate remuneration and safe working conditions enjoys protection in Colombia’s legal framework. It demonstrates that the domestic legislation embraces the international human rights concept of decent work but effectively protects the community’s claim only in the context of formal employment. It further highlights the challenges facing the implementation of these legal norms in the community of Tierrabomba.

Domestic Legal Framework

Colombia’s domestic legal system guarantees the rights to adequate remuneration and safe working conditions that allow workers to live and work in dignity. It also prohibits any discriminatory distinction among workers. The Constitution establishes the relevant basis in its article 25, enshrining the right of everyone to work in dignified and fair conditions. It further enumerates fundamental principles of domestic labor legislation, such as the payment of a minimum living wage, equal opportunities for workers, and respect for human dignity, freedom, and the rights of workers.940 The Constitutional principles of equality and non-discrimination ensure that these rights and principles apply to everyone without discrimination.941 The

938 See supra Introduction. 939 See infra Recommendation 2: Taking a Flexible Approach Towards “Culture.” 940 Articles 25 and 53 Constitution of Colombia. 941 Article 13 Constitution of Colombia. 204

Constitutional Court has established that Constitutional employment-related rights and principles apply to employees as well as self-employed and informal workers.942 It has further held that the amount of remuneration and necessary safety measures at work cannot be defined in the abstract but are determined by what is considered a decent living in each case.943

The Constitutional guarantees of the right to work are specified at the legislative level, strengthening the individuals’ legal protection of adequate remuneration for labor and safe working conditions. Law 1753 of 2015, incorporating the National Development Plan 2014-

2018 into the legal system, requires the Colombian government to adopt national policies on decent employment for all workers.944 The most recent National Development Plan 2018-2022 reiterates the principles of decent employment and includes adequate remuneration and safe labor conditions.945 These National Development Plans lay out the cornerstones of the State’s obligations and highlight the importance of achieving decent working conditions for everyone.

Analyzed from the perspective of the 5A framework, the domestic legal system renders the rights to adequate remuneration and safe working conditions available at the domestic level. These rights are also accessible in the Colombian laws since they apply to all workers without any discrimination based on race or other grounds.946 Moreover, the international human rights to adequate remuneration and safe working conditions are adaptable because the domestic legal framework requires the State to take certain measures to ensure respect for these rights. These

942 C.C., julio 29, 1992, Sentencia T-475/92. 943 C.C., octubre 27, 1993, Sentencia T-483/93. 944 Article 74 of L. 1753/15, junio 9, 2015, D.O. It is important to note that Decree No. 2362 of 2015 on the establishment of the national day of decent work within the frame of the National Development Plan 2014-2018 defines decent work as “any productive activity that is justly remunerated and exercised in freedom, equity, security, and human dignity, presented by the respect for the principles of gender equality and non-discrimination” (Preamble of D. 2362/15, diciembre 7, 2015, D.O.). 945 GOBIERNO DE COLOMBIA, DEPARTAMENTO NACIONAL DE PLANEACIÓN, PLAN NACIONAL DE DESARROLLO 2018- 2022, at 84 (2018), https://colaboracion.dnp.gov.co/CDT/Prensa/Resumen-PND2018-2022-final.pdf 946 C.C., septiembre 13, 2017, Sentencia T-572/17, section 6. 205

include conducting inspections at the workplace and establishing minimum salary and safety guarantees.947 However, this legal framework focuses on contractual employment and is more ambiguous toward the self-employed and informal workers. In particular, the Substantive Labor

Code that regulates employment contracts in the private sector imposes on employers the obligations to pay a remuneration for the employees and take necessary measures to guarantee the workers’ safety and security.948 It guarantees employees the same salary for work of the same value by embracing the principle of equality before the law.949 This renders the rights to adequate remuneration and safe working conditions only partially acceptable since their domestic implementation is stronger for employees than for informal or self-employed workers.

The Colombian legislation offers certain remedies against violations of the right to adequate remuneration and safe working conditions. More importantly, the Constitutional Court has determined that these rights belong to the core of the right to work and violation is justiciable by means of the amparo action.950 Further, Law 1010 of 2006 may serve to assert a claim of racial discrimination at work or unsafe working conditions in employment relationships.951 It prohibits and sanctions differential treatment based on race and other grounds that cannot be justified by work-related considerations. It also protects employees’ physical integrity and safety if such acts affect the workers’ dignity or impede fair and dignified labor conditions.952 This law may help some community members of Tierrabomba claim equal pay for equal work or adequate

947 ¿Qué es el Inspector de Trabajo? [What is the Work Inspector?], MINISTERIO DEL TRABAJO DE COLOMBIA, http://www.mintrabajo.gov.co/relaciones-laborales/inspeccion-vigilancia-y-control/que-es-el-inspector-de-trabajo (last visited Aug. 15, 2019). 948 Articles 27 and 56 of Código Sustantivo del Trabajo [Substantive Labor Code], junio 17, 1951, D.O. [hereinafter Substantive Labor Code]. 949 Articles 10 and 143 Substantive Labor Code. 950 C.C., junio 8, 2001, Sentencia T-611/01. 951 It does not apply to self-employed or informal workers but is limited to private and public employments (article 1 of L. 1010/06, enero 23, 2006, D.O. [hereinafter Law 1010 of 2006]). 952 Articles 1, 2(3), and 2(6) Law 1010 of 2006. 206

safety protection. Their employers repeatedly deny them these rights on racially discriminatory grounds and in violation of their rights to adequate remuneration and safe working conditions.

Such application and interpretation of Law 1010 of 2006 may face challenges. Jurisprudence clarifying the meaning and scope of the relevant provisions does not exist, yet the Constitutional

Court has only recently issued its first ruling on racial discrimination at work.953 Moreover, Law

1010 of 2006 does not offer any remedy to those community members who work in the informal sector and thus fall outside the scope of this law. This limits the accountability measures of the rights to adequate remuneration and safe working conditions to the amparo action and mechanisms for employed workers. Thus, while the Colombian legal system incorporates the rights to adequate remuneration and safe working conditions, it primarily protects formal employees. The legal protection as well as accountability mechanisms for informal workers are limited.

Practical Implementation of the Domestic and International Legal Frameworks in the Community of Tierrabomba

The international human rights system and Colombia’s domestic laws support the claim of the community of Tierrabomba to receive adequate remuneration and work under safe conditions without discrimination, but the Colombian legislation does not fully protect informal workers. The subsequent analysis of this legal framework in the community of Tierrabomba demonstrates that the legal protection of the community’s work-related claim is only partially available, accessible, acceptable, and adaptable. Further, accountability mechanisms are non- existent.

953 C.C., septiembre 13, 2017, Sentencia T-572/17. 207

The rights to adequate remuneration and safe working conditions are not available to the community members of Tierrabomba. Employment that community members typically pursue, such as fishermen, tourist guides, or street vendors, do not allow them to generate sufficient income or work is safe conditions. This is shown by the community’s poverty rate of approximately 80%.954 The fact that many community members lack sufficient income may lead to the community’s gradual displacement to the city of Cartagena, and thus the loss of their communal lifestyle. This situation renders the right to adequate remuneration and safe working conditions unavailable to the community inhabitants of Tierrabomba.

The rights to adequate remuneration and safe working conditions are effectively not accessible because many community members work in the informal labor sector without a national minimum wage. Tierrabomba’s informal workers include domestic workers, street vendors, tourist guides, and masseurs on the beaches of Cartagena who frequently earn less than the minimum wage and are exposed to hazardous labor conditions. Racially discriminatory attitudes of employers combined with lacking higher education and professional and personal connections to employers make it difficult for community members to find formal, and ideally well-paid employment. Although the constitutional right to work in dignified and fair conditions applies to informal workers, the government has not taken any actions to remedy the situation in the community of Tierrabomba. Therefore, in practice the rights to adequate remuneration and safe working conditions are not accessible for the community members of Tierrabomba.

The acceptability of remuneration and working conditions in the community is limited as a result of the elevated living expenses in the community of Tierrabomba, which primarily stem from the isolated location on an island and the privatization of water services. Community

954 CIFRAS&CONCEPTOS, supra note 1, at 40. 208

members earning the national minimum salary or less are barely able to cover the expenses for food, water, and other basic goods and services. In fact, these goods and services are more expensive in the community of Tierrabomba than in comparable low-income communities on the mainland.955 This is because inhabitants have to pay for the transportation costs to and from the island to go to work, and water services are privatized.956 At the time of the field research in

2017, the minimum wage was COP 737,717 (USD 244),957 and a household of Tierrabomba with a low water consumption spent at least COP 180,000 per month (USD 60) on water, roughly one quarter of the minimum wage.958 Virtually all community members who are full-time employees work in Cartagena and pay daily transportation by boat from the island to the mainland and back.

Such transportation costs are at least COP 80,000 (USD 26) per month.959 Taking into account the high prices for food and other expenses necessary for a decent living, such as transportation to Cartagena on other occasions, clothing, medication, or school material for the children, the national minimum wage is not sufficient in the community of Tierrabomba. As a result, the rights to adequate remuneration and safe working conditions are only partially acceptable.

The changes in the fishing and tourism industries around Cartagena have further curbed the adaptability of the rights to adequate remuneration and safe working conditions. While the economic situation has changed and resulted in a loss of income for the community of

Tierrabomba, the State has not taken any measures to support the community. Over the past

955 See supra Clean and Safe Drinking Water. 956 See supra Clean and Safe Drinking Water. 957 The conversion from COP to USD is calculated with the exchange rate of July 24, 2017 (see supra fn.381). On this day, the exchange rate was USD 1 = COP 3,021 (see Currency Converter, supra note 381)). 958 See supra Clean and Safe Drinking Water. 959 One boat ride from the community of Tierrabomba to the mainland and back costs COP 4,000. Assuming that an employee works five days per week, the transportation costs by boat amount to at least COP 80,000 for one person. For many employees, the transportation costs are however higher given that they are required to take a bus in Cartagena in order to reach their workplace, which would double their monthly transportation costs. Thus, full-time employees working in Cartagena easily spend COP 160,000 per month on transportation. 209

years, tourism has increased, and tourist facilities have emerged in Cartagena and its surrounding areas. The inhabitants of Tierrabomba have gradually been excluded from the tourism industry.960 While they first provided boat and guide services to the tourists as independent workers, the hotel complexes have moved to offer all-inclusive packages that no longer require the services of the local population. Similarly, the activities of large-scale fishing companies have reduced the fish stock in the traditional fishing areas of Tierrabomba. The community’s fishermen now go out to the open sea without appropriate equipment in order to locate fish. In both cases, the government has not taken measures to support the economic activities in

Tierrabomba. The government has failed to protect the community from large-scale tourism and fishing corporations and failed to ensure a decent living standard through work, limiting the adaptability of the rights to adequate remuneration and safe working conditions.

Accountability for the State’s failure to implement the rights to adequate remuneration and safe working conditions in Tierrabomba is limited due to the design of the domestic legal framework. This legal framework largely neglects the claims of informal workers. It puts community members working in the informal sector in a precarious situation, effectively depriving them of adequate remuneration and safe working conditions and perpetuating the high levels of poverty in the community. Moreover, Tierrabomba’s inhabitants have not taken any judicial or other steps to claim adequate remuneration and safe working conditions. In conclusion, the community members’ rights to adequate remuneration and safe working conditions are not fully implemented in practice.

960 See supra Adequate Remuneration and Safe Working Conditions. 210

The Rights to Freedom and Access to Work Within Close Geographical Reach in Nicaragua

This section examines whether Nicaragua’s domestic legislation supports the claim of the community of Orinoco to work within geographical proximity of their place of residence. It demonstrates that while the Nicaraguan legal system—contrary to the international human rights framework—contains important references to the right of communities living in the Autonomous

Atlantic Regions to choose and access work in their region, it restricts such rights in several ways. These restrictions become particularly evident when analyzing the practical implementation of the right in the community of Orinoco through the 5A framework.

Domestic Legal Framework

The Nicaraguan Constitution enshrines the right to work in its article 57. This article states that everyone “has the right to freely choose and exercise their profession or occupation and to choose a place of work without any other requirements but the academic title and a social function of the work.”961 The Autonomy Law clarifies this Constitutional framework for the two

Atlantic Autonomous Regions, namely the South Atlantic Autonomous Region and the North

Atlantic Autonomous Region, requiring the regions’ administrative bodies to initiate their own economic programs.962 In particular, the Regional Council, which is the highest legislative authority in the Autonomous Regions, should “participate in the elaboration, planning, implementation, and follow-up of economic […] policies and programs affecting the region.”963

Nicaragua also adopted the Equal Treatment Law, which specifies that the State needs to take specific measures to ensure just and equal treatment of indigenous people and Afro-descendants working in the public, private, and non-governmental sectors of the State.964 In particular, the

961 Article 86 Constitution of Nicaragua. 962 Article 8(3) Autonomy Law. 963 Article 23(3) Autonomy Law. 964 Article 1 Equal Treatment Law. 211

government must promote, facilitate, and guarantee the integration of indigenous people and

Afro-descendant in the public employment sector at the regional and national levels, offer them a dignified remuneration for their work, and seek to eliminate and combat discrimination.965 The

Equal Treatment Law also imposes obligations on private companies and non-governmental organizations. It requires those operating in the Atlantic Autonomous Regions and on indigenous or Afro-descendant territories to elaborate plans for capacity building of the local population and hire at least fifty percent of the employees locally.966

These legal provisions are an important step toward generating employment opportunities within the geographic reach of remote Afro-descendant communities. They require the government to push for economic development in the Atlantic Autonomous Regions and create employment opportunities for the country’s Afro-descendant population, including the community of Orinoco. However, they do not suffice to prevent migration from remote communities for several reasons. First, the obligation under the Equal Treatment Law to promote public sector employment opportunities requires the community members of Orinoco to move to the city or other parts of the State since they live too far away to commute to governmental institutions daily. Further, except for a few community-based initiatives, private companies or non-governmental organizations do not operate in the community of Orinoco; consequently, the community does not have access to capacity building programs within their geographical reach. Thus, this legal framework does not impose an obligation on the State to create employment in the community of Orinoco.

In addition, several provisions of Nicaragua’s domestic legal framework limit the economic activities of indigenous and Afro-descendant communities to agriculture and fishing.

965 Article 4(a), (b), and (e) Equal Treatment Law. 966 Article 5 Equal Treatment Law. 212

Article 36 of the Autonomy Law states that the communities’ collectively owned territory includes “the lands, waters, and forests traditionally owned by the communities,” and community members “have the right to work plots of the communal land and to the usufruct of the produce generated from their work.”967 The Equal Treatment Law further stresses the importance of traditional economic activities in indigenous and Afro-descendant communities. It requires the

State to support the communities in exercising their “right to define their own sustainable strategies of producing, distributing, and consuming produces”968 in accordance with their traditional cultures and modes of farming production. Mirroring international human rights law, these legal provisions demonstrate that the State’s obligations to support economic activities within the communities are limited to traditional activities related to agriculture and fishing. 969

The international human rights norm to protect indigenous and tribal peoples’ traditional economic activities is available in Nicaragua’s domestic legal system, but an obligation to create other employment opportunities within the communities does not exist. Under the Equal

Treatment Law, the State should work toward achieving food security and self-sufficiency of indigenous and Afro-descendant communities based on traditional methods and support their traditional economic activities. The wording of this obligation is however vague, limiting its accessibility, acceptability, and adaptability. Nonetheless, article 5 of the Equal Treatment Law, which requires companies and nonprofit organizations operating on Afro-descendant territories to hire locally, is an important step towards creating employment opportunities in the communities and goes beyond the relevant framework of international human rights law.970

However, Nicaragua’s domestic legal system does not establish accountability mechanisms to

967 Article 36 Autonomy Law. 968 Article 8 Equal Treatment Law. 969 See supra Freedom and Access to Work Within the Geographical Reach of the Community of Orinoco. 970 Article 5 Equal Treatment Law. 213

hold anyone responsible for failing to comply with this and any other obligations under the Equal

Treatment Law.

Practical Implementation of the Domestic and International Legal Frameworks in the Community of Orinoco

The international human rights and domestic legal frameworks do not explicitly require

Nicaragua to create formal employment opportunities within the geographic reach of the community of Orinoco. While the international human rights system does not support the community’s human rights claim, the domestic law states that Nicaragua should create employment opportunities, promote economic development in the Atlantic Autonomous

Regions, and further traditional economic activities in Orinoco. The subsequent analysis of these provisions and their application in the community of Orinoco through the 5A framework demonstrates that these obligations of Nicaragua are only partially available, accessible, acceptable, and adaptable, and accountability mechanisms are inexistent.

Nicaragua’s domestic legal obligations regarding economic activities of Afro- descendants are not available in the community of Orinoco. The State has recently started to create some jobs in Bluefields, but the economic situation in the community of Orinoco itself remains unchanged.971 These job opportunities in Bluefields do not stop the community members of Orinoco from migrating to the city. The obligation to promote economic development in the region is further not accessible because the community of Orinoco lives in a remote area, and a daily commute to the main city of Bluefields is not feasible. This requires community members to move to Bluefields if they seek to work there and benefit from the new economic development.972 Further, the State obligation to promote traditional economic

971 Interview with Kensy Sambola, supra note 408. 972 Interview with Abraham Humphries, supra note 421. 214

activities in the community of Orinoco is only partially acceptable and adaptable. While these activities, particularly farming and fishing, are important to ensure a certain level of food security in the community of Orinoco, the law’s focus on farming and fishing do not reflect the community’s claim to access formal employment opportunities within their geographical reach

(acceptability). Instead, it limits the community members of Orinoco in their free choice of economic activities and obliges those who do not engage in farming or fishing to migrate

(adaptability). Orinoco’s economic reality demonstrates this limited acceptability and adaptability of the State obligation to promote traditional economic activities. While a few community members farm in the hinterlands of the communal territory, many inhabitants are forced to migrate to Bluefields or choose to work on international cruise ships for several months per year.973 Lastly, the fact that the domestic legal system does not grant an explicit remedy to hold the State accountable for failing to comply with its economy-related obligations prevents the community of Orinoco from seeking enforcement. This leaves the community with only the amparo action as the sole legal remedy to demand implementation of their fundamental rights.

Given the ineffective design of the amparo action in Nicaraguan law,974 the community of

Orinoco does not have access to an enforcement mechanism.

Safe and Clean Water for the Community of Tierrabomba

This section analyzes the demand of the community of Tierrabomba for access to clean and safe water for all community members under the concept of the right to water.975 The community currently receives water from a private company that is contaminated and not safe

973 See supra Decent Work Opportunities within Geographical Reach. 974 See supra Effective Remedy to Demand the Equal Enforcement of the Law and an Investigation of Drug-Related Crimes. 975 This section focuses only on the community of Tierrabomba since the community of Orinoco does not raise claims related to safe and clean water. The field research in Orinoco did not reveal any serious water issues within the community. 215

for human consumption.976 Consequently, many community members suffer from diseases related to the poor water quality. A lack of a proper sanitation system further exacerbates this situation and contributes to deteriorating the public health conditions. A private company sells contaminated water at a high price to selected community members who, in turn, sell it at an even more exorbitant price to the rest of the community. The water has become a lucrative business for a hand full of community members, while remaining unaffordable for the vast majority. This lack of safe water affects every aspect of daily life. This is especially true for children who suffer a lack of physical and mental development or children’s whose ability to concentrate at school is reduced.977 To counter this, the community of Tierrabomba seeks access to reasonably priced water of good quality.978 This section demonstrates that, while international human rights and domestic law offers legal protection to access safe and clean water and imposes corresponding obligations on Colombia, it does not prohibit privatization of water services and the use of water as an economic commodity. Thus, the current international and domestic legal systems leave the community of Tierrabomba at risk of paying high water prices.

Water as a Social Good and an Economic Commodity in International Human Rights Law

International human rights law does not explicitly guarantee a right to water. Important developments to this right have taken place leading to scholarly and practical discussions of such right. Currently, scholars and human rights bodies in the U.N. and Inter-American human rights systems widely accept the existence of a right to water.979 Nonetheless, the implementation of this right faces challenges that affect the legal claim of the community of Tierrabomba, namely

976 See supra Clean and Safe Drinking Water. 977 Interview with José Javier Moncaris Padilla, supra note 351. 978 See supra Clean and Safe Drinking Water. 979 Bas de Gaay Fortman & Michela Marcatelli, Between Soft Legality and Strong Legitimacy: A Political Economy Approach to the Struggle for Basic Entitlements to Safe Water and Sanitation, 37 HUM. RTS. Q. 941, 957 (2015). 216

the ambiguous scope and content of State obligations and the extent to which human rights law permits the privatization of water services.

Legal Foundations of a Human Right to Water

Scholars and practitioners debated the existence of a right to water as early as the 1970s, but it was only two decades ago when such right emerged in the U.N. human rights system.980 In

2002, the Committee on Economic, Social, and Cultural Rights specified the legal foundations, scope, and content of a human right to water in its General Comment No. 15.981 In 2010, the

U.N. General Assembly adopted Resolution 64/292, recognizing “the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.”982 Together with the U.N. Human Rights Council, these U.N. bodies identify three grounds to afford the right to water the status of a legally binding human right. 983 First, several international legal instruments, particularly the CEDAW, refer to water as a legal entitlement, recognizing its human rights character.984 Further, the right to water is inherent in,

980 Salman M. A. Salman, The Human Right to Water – Challenges of Implementation, 106 AM. SOC’Y INT’L L. PROC. 44, 44 (2012). It is noteworthy that the human right to water is frequently mentioned in pair with the right to sanitation (e.g., U.N. G.A. Res. 64/292, The Human Right to Water and Sanitation (Aug. 3, 2010)), a fact that has been subject to scholarly criticism (e.g., Keri Ellis & Loretta Feris, The Right to Sanitation: Time to Delink from the Right to Water, 36 HUM. RTS. Q. 607 (2014)). While water and sanitation issues are undoubtedly intertwined, this dissertation focuses on the right to water as it is the primary legal claim of the community of Tierrabomba. 981 CESCR General Comment No. 15, supra note 504. 982 U.N. G.A. Res. 64/292, supra note 980. The OAS followed this approach of the U.N., adopting a resolution on the human right to safe drinking water and sanitation (O.A.S. G.A. Res. 2760 (XLII-O/12), The Human Right to Safe Drinking Water and Sanitation (June 5, 2012)). This right to safe drinking water is more narrowly framed than the right to water elaborated in CESCR General Comment No. 15 (supra note 504), which also covers the use of water for other than drinking purposes (Sharmila L. Murthy, The Human Right(s) to Water and Sanitation: History, Meaning, and the Controversy Over-Privatization, 31 BERKLEY J. INT’L L. 89, 115 (2013)). 983 In 2010, the U.N. Human Rights Council adopted Resolution 15/9 on human rights and access to safe drinking water and sanitation, further clarifying the scope and content of a right to safe water and sanitation and the corresponding State obligations (Human Rights Council Res. 15/9, U.N. Doc. A/HRC/RES/15/9 (Oct. 6, 2010)). 984 Article 14(2)(h) CEDAW; see also article 24(2)(c) of the Convention on the Rights of the Child (Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC]). It is important to note that the CEDAW and CRC highlight different aspects of the right to water. While the CEDAW focuses on physical accessibility, the CRC refers to the health implications of lack of safe and clean water. Other international texts with references to the right to water include the 2030 Agenda for Sustainable Development (supra note 122) and Rio Declaration on Environment and Development (supra note 665) (see also SALMAN M. A. SALMAN & SIOBHÁN MCINERNEY-LANKFORD, THE WORLD BANK, THE HUMAN RIGHT TO WATER: LEGAL AND POLICY DIMENSIONS 60-64 (Law, Justice, and Development Ser. No. 30229, 2004)). 217

and inseparably linked to, human rights provisions such as the rights to an adequate standard of living and health enshrined in articles 11(1) and 12(1) ICESCR.985 The right to water is crucial for achieving an adequate living standard as well as physical and mental health of citizens.

Lastly, the right to water contributes to implementing other human rights provisions in practice as water is necessary for carrying out a myriad of activities.986 For instance, food production

(article 11(1) ICESCR and article 12 Protocol of San Salvador), economic activities (article 6

ICESCR and article 6 Protocol of San Salvador), and numerous cultural practices (article

15(1)(a) ICESCR and article 14(1)(a) Protocol of San Salvador) could not be carried out without access to water.987 Citizens need to have access to water in order to enjoy these provisions in a meaningful way. Therefore, the U.N. human rights system explicitly establishes certain aspects of the right to water in selected human rights treaties. The aforesaid rights that are enshrined in these treaties serve as legal basis of a right to water are all phrased as individual rights. Thus, the right to water can be invoked by the community members of Tierrabomba.

The Inter-American human rights system also contains individual human rights provisions supporting the human rights claim of the community of Tierrabomba to safe and clean

985 CESCR General Comment No. 15, supra note 504, at ¶ 3 (also mentioning the right to life and human dignity); Human Rights Council Res. 15/9, supra note 983, at ¶ 3. Additionally, some scholars infer the right to water from environmental law (SALMAN & MCINERNEY-LANKFORD, supra note 984, at 57-58). Further, article XI ADHR establishes the right to health “through sanitary and social measures relating to food, clothing, housing and medical care,” which is inextricably linked to water. These legal grounds rather refer to the legitimacy of a right to water than its legality. Nonetheless, the international human rights community, including the Inter-American human rights system, has widely accepted and reiterated these grounds as the legal foundations of a human right to water (Murthy, supra note 982, at 105 (denying the customary international law status of the right to water but declaring this right as part of the ICESCR); Rebecca Bates, The Road to the Well: An Evaluation of the Customary Right to Water, 19 REV. EUR. COMMUNITY & INT’L ENVTL. L. 282, 293 (2010) (arguing for the existence of customary international right to water)). 986 CESCR General Comment No. 15, supra note 504, at ¶ 6; U.N. G.A. Res. 64/292, supra note 980. 987 CESCR General Comment No. 15, supra note 504, at ¶ 6 (specifying that the States should however prioritize the allocation of water for personal and domestic use, prevention of diseases and starvation, as well as the fulfillment of core obligations under the ICESCR). 218

water. It approaches the right to water primarily from an environmental law perspective.988

Article 11(1) Protocol of San Salvador explicitly guarantees “the right to live in a healthy environment and to have access to basic public services,”989 including water services.990 The

Inter-American Court of Human Rights specified that access to water of good quality is an integral part of the right to a healthy environment.991 Additionally, the Social Charter of the

Americas explicitly reinforces the importance of water for, inter alia, environmental sustainability and links access to clean drinking water and sanitation services to the fight against poverty.992 However, the legal foundations of the right to water do not make this right justiciable in the Inter-American human rights system. The right to a healthy environment is not subject to judicial review of the Inter-American Court of Human Rights, and the Social Charter is not legally binding. Thus, the community members of Tierrabomba cannot seek a judicial remedy for the lack of safe and clean water in the Inter-American human rights system.993

It is further noteworthy that the Inter-American Court of Human Rights includes the right to water in its jurisprudence on the right to a dignified life of indigenous and tribal communities.994 It requires States to provide “minimum living conditions that are compatible with the dignity of the human person.”995 It also requires access to clean water, which has “a

988 The Inter-American human rights system has also addressed the right to water in connection with detention cases and the prohibition of torture and cruel, inhuman, and degrading treatment (Jimena Murillo Chavarro, The Right to Water in the Case-Law of the Inter-American Court of Human Rights, ACDI ANUARIO COLOMBIANO DE DERECHO INTERNACIONAL, Apr. 2014, at 39, 48), but this approach will not be further discussed as it is not relevant for the community of Tierrabomba. 989 Art. 11(1) Protocol of San Salvador. 990 ORG. OF AM. STATES, supra note 576, at 98, 100. The Social Charter of the Americas, albeit a legally non-binding instrument, also stresses the importance of providing “fair, equitable, and non-discriminatory access to basic public services” to achieve integral development in the region (article 16). 991 Advisory Opinion No. 23 on the Environment and Human Rights, supra note 645, at ¶¶ 109-11 (referring to the CESCR General Comment No. 15). 992 Article 20 Social Charter of the Americas. 993 Article 19(6) Protocol of San Salvador (only the rights to trade union and education are justiciable). 994 See supra fn.466 on the right to a dignified life. 995 Yakye Axa Indigenous Community v. Paraguay, supra note 160, at ¶ 162. 219

major impact on the right to a decent existence and basic conditions to exercise other human rights, such as the right to education or the right to cultural identity.”996 In these cases, the Inter-

American Court of Human Rights has referred to indigenous peoples’ lack of access to their traditional territory, and as a consequence, water, food, and basic sanitation to justify State obligations to provide water. This jurisprudence is not directly applicable to the community of

Tierrabomba because they do not qualify as indigenous or tribal in the Inter-American human rights system. However, it could be argued that the community of Tierrabomba lives in similarly precarious conditions as the indigenous peoples in the Court’s existing case law because they do not have access to water or sanitation and their access to land is threatened. Consequently,

Colombia would have the obligation to install clean and safe drinking water in the community because a lack of water violates the right to a dignified life. This State obligation to provide drinking water would contribute to implementing the community’s right to a dignified life and remedy the community’s precarious living conditions. Until now, a case of a non-indigenous and non-tribal community claiming access to water before the Inter-American human rights system has never occurred. It is unclear whether this system would accept such interpretation of the right to a dignified life. For practical reasons, not every community or person in dire conditions can successfully claim violation of the right to a dignified life. There is a risk that the

Inter-American human rights system would reject the community’s claim to drinking water based on the reasoning that a State’s obligation to provide drinking water to every community in precarious conditions would place a disproportionate burden on the State. Such disproportionate burden is incompatible with international human rights law, which requires State obligations to be proportionate to the purpose that is to be achieved. Following this argument, the Inter-

996 Id. at ¶ 167; see also Xákmok Kásek Indigenous Community v. Paraguay, supra note 173, at ¶ 195 (referring to CESCR General Comment No. 15); Sawhoyamaxa Indigenous Community v. Paraguay, supra note 683, at ¶ 73(69). 220

American human rights system could maintain its current jurisprudence that the right to water applies to indigenous peoples only. To clarify these legal questions surrounding the right to water, a petition to the Inter-American human rights system is required.

In conclusion, international human rights law protects the right to clean and safe drinking water as an individual entitlement of the community members of Tierrabomba. This is found in the rights to an adequate living standard (articles 11(1) ICESCR), health (article 12 ICESCR, article XI ADHR, and article 10 Protocol of San Salvador), and a healthy environment (article

11(1) Protocol of San Salvador). This right is further necessary to fulfill the rights to adequate food (article 11 ICESCR), gain a living (article 6 ICESCR and article 6 Protocol of San

Salvador), and enjoy cultural practices that require the use of water (article 15(1)(a) ICESCR and article 14(1)(a) Protocol of San Salvador). However, the community members of Tierrabomba cannot invoke these rights before Inter-American human rights system as they are non-justiciable in this human rights system.

Privatization of Water Services and State Obligations

The right to water, as it is currently framed in international human rights law, faces important challenges regarding two issues. These challenges are the extent to which water can be privatized and used as an economic commodity, and the scope and content of relevant State obligations. While the struggle for recognizing the right to water emerged from the increasing opposition to water privatization, international human rights law allows States to privatize water services. This risks to convert water into an economic good and ultimately weaken its legal protection.997 In fact, privatization frequently results in increased water costs for consumers

997 Madeline Baer & Andrea Gerlak, Implementing the Human Right to Water and Sanitation: A Study of Global and Local Discourses, 36 THIRD WORLD Q. 1527, 1529 (2015). 221

without improving the quality of water or allowing citizens to participate in the design and management of water projects.998 The General Comment No. 15 of the Committee on

Economic, Social, and Cultural Rights explicitly allows private parties to offer water services, referring to them as third parties.999 In addition, the State is required to implement the right to water based on the availability of its resources. This further eases the path for private companies to provide water services where the State has failed to do so under the pretext of lacking resources.1000 In this case, citizens are dependent on private companies that might be more interested in their economic gain than the provision of adequate water quality. Thus, given that water privatization is permissible under international human rights law, the community members of Tierrabomba may not ask Colombia to provide State-run water services in their village.

Privatization of water services does not absolve the State of its international human rights obligations. Instead, it stresses the obligation to protect citizens from the unsafe acts of private water companies, requiring the State to hinder companies from infringing upon the right to water by regulating and monitoring their acts.1001 While human rights law provides little guidance on the scope and content of such duties, they can be divided into obligations of immediate effect and progressive realization.1002 State obligations of immediate effect emerge from core obligations under the right to water as derived from the above-mentioned provisions of the

ICESCR and the Protocol of San Salvador that serve as the right’s legal basis.1003 In particular,

998 SALMAN & MCINERNEY-LANKFORD, supra note 984, at 72-73. The community of Tierrabomba exemplifies these negative consequences of privatizing water services. 999 CESCR General Comment No. 15, supra note 504, at ¶¶ 23, 24, 33, 44(b). 1000 SALMAN & MCINERNEY-LANKFORD, supra note 984, at 46; see also Murthy, supra note 982, at 106 (“[C]orporations have supported the right to water because its implementation creates potential business opportunities.”). 1001 Privatization of water services also raises the question of whether private water companies incur human rights obligations. Entering this controversial debate on the application of human rights to private parties would however exceed the scope of this dissertation. 1002 See supra State Obligations Resulting from Cultural Human Rights. 1003 Articles 11(1) and 12 ICESCR; articles 10 and 11(1) Protocol of San Salvador. 222

the Committee on Economic, Social, and Cultural Rights recognizes core obligations to guarantee access to an amount of water “that is sufficient and safe for personal and domestic uses to prevent disease.”1004 It further ensures that marginalized groups enjoy such access on a non- discriminatory basis.1005 Thus, these obligations emphasize non-discriminatory access to water of adequate quality and amount for human consumption and hygiene. In the context of privatization, this means that States must take necessary regulatory and monitoring measures to prevent private water companies from discriminating against disadvantaged populations or failing to provide water of drinking quality and sufficient quantity.

The State’s obligations to progressively realize the full enjoyment of the right to water are far-reaching. Regarding article 11(1) Protocol of San Salvador on the access to public services, the Inter-American Commission on Human Rights has clarified that States need to progressively ensure that water supplies are, inter alia, available for everyone to enjoy adequate living conditions; economically and physically accessible on a non-discriminatory basis; and adaptable to the specific needs of the local population.1006 Under the ICESCR provisions, States should work toward preventing private parties “from compromising equal, affordable, and physical access to sufficient, safe and acceptable water”1007 to protect citizens from the negative impacts of water privatization. This can best be done by supervising their activities through an independent regulatory system, public participation, and administering sanctions for non-

1004 CESCR General Comment No. 15, supra note 504, at ¶ 37(a). 1005 CESCR General Comment No. 15, supra note 504, at ¶ 37(b). In its interpretation of article 11(1), the Inter- American Court does not specify the State obligations regarding the right to water, simply stating that in general, access to water imposes obligations of progressive realization, but States have certain obligations of immediacy, such as granting access to water without discrimination (Advisory Opinion No. 23 on the Environment and Human Rights, supra note 645, at ¶ 111). 1006 ORG. OF AM. STATES, supra note 576, at 98-99. 1007 CESCR General Comment No. 15, supra note 504, at ¶ 24. 223

compliance. Moreover, the ICESCR requires States to allocate water and financial resources in a manner that helps ensure equal access to water for all in the long term.1008

In conclusion, international human rights law recognizes water as a social good as well as an economic commodity, trying to hold the balance between these poles. It attempts to restrict the dynamics of the market-based approach to water by imposing on States the obligations of immediate effect to provide water of sufficient quality and quantity to everyone. It therefore offers legal protection for the claim to clean and safe drinking water in the community of

Tierrabomba, allowing the State to outsource water delivery to a private company. In this situation, the State is primarily required to regulate and monitor the private company’s service provision and ensure that water remains accessible for everyone without discrimination.

Application to Colombia

This section examines Colombia’s domestic laws on clean and safe drinking water to demonstrate that Colombia provides a strong legal framework for the right to potable water for everyone. However, an analysis at the local level shows that Colombia has failed to effectively implement such right in the community of Tierrabomba, exposing them to precarious living conditions.

Domestic Legal Framework

The right to water finds different expressions in the Colombian legal system, namely as part of the right to a healthy environment, individual entitlement to drinking water, and public

1008 Id. at ¶ 14. 224

utility.1009 The latter two are of particular importance to Tierrabomba and are subsequently analyzed in more detail.

Colombia’s domestic legal framework does not explicitly guarantee an individual right to clean and safe drinking water, but the Constitutional Court repeatedly recognized the fundamental and autonomous character of such right in its recent jurisprudence. The Court derives the right to clean drinking water from article 366 of the Constitution1010 and the international human rights system, particularly General Comment No. 15 of the Committee on

Economic, Social, and Cultural Rights.1011 Based on the latter legal foundation, the

Constitutional Court emphasized that the State needs to adopt adequate measures to ensure that everyone has equal access to water of good quality and sufficient quantity to cover basic needs.1012 Lack of access to water would be detrimental to other fundamental rights, such as the rights to health and dignity.1013 Colombia is required to progressively achieve accessibility, good quality, and availability of drinking water without any discrimination for all inhabitants. Thus, the community members of Tierrabomba are individually entitled to clean and safe drinking water as established under the international human rights framework.

Colombian law identifies water as a public service. Articles 365 and 366 of the

Constitution require the State to provide public services, including drinking water, to all inhabitants in the form of domestic utilities.1014 However, Law 142 of 1994 on domestic public services clarifies these constitutional guarantees and privatizes all public services, limiting the

1009 Mies Sutorius & Sonia Rodriguez, La fundamentalidad del derecho al agua en Colombia [The Fundamentality of the Right to Water in Colombia], REV. DERECHO DEL ESTADO, July–Dec. 2015, at 243, 245. 1010 Article 366 Constitution of Colombia lists drinking water as one of the public utilities the State needs to provide for in order to improve the living conditions of everyone. 1011 C.C., octubre 3, 2011, Sentencia T-740/11; C.C., febrero 4, 2011, Sentencia T-055/11; C.C., abril 17, 2007, Sentencia T-270/07. 1012 C.C., febrero 4, 2011, Sentencia T-055/11. 1013 C.C., octubre 3, 2011, Sentencia T-740/11. 1014 Articles 365 and 366 Constitution of Colombia. 225

State’s responsibility to, inter alia, supervising the private service providers, supporting these companies through investment projects, and offering subsidies to people of low income.1015

Only in cases where private companies do not provide public services to citizens or where State provision of public services would be more cost-effective, the State is required to provide utilities.1016 While this legal framework emphasizes privatization of water services, it does not absolve the State and private service providers from responsibility toward the most vulnerable population. The Colombian Constitutional Court has repeatedly stressed the social function of water, ruling that the State functions as a guarantor of the right to water, and private companies are required to provide the vital minimum of water even if the beneficiaries are not able to cover the costs.1017 Thus, similar to international human rights law, the State needs to balance between water as a social good and economic commodity and ensure that everyone has access to water of sufficient quality and quantity.

Any infringement of these obligations is subject to the amparo action. The Colombian

Constitutional Court has clarified that the following conditions need to be fulfilled for a amparo action to proceed against an alleged violation of the right to water: (1) The claimant seeks to use the water for human consumption; (2) the lack of clean and safe drinking water may affect other fundamental rights, such as the rights to a dignified life and health; and (3) the claimant undertook a minimal effort with the private company to obtain water service.1018 It is noteworthy

1015 Articles 5 and 15 of L. 142/94, julio 11, 1994, D.O. [hereinafter Law 142 of 1994]. These obligations correspond to the State’s duty to protect inhabitants from detrimental acts of third parties, which is enshrined in international human rights law as well as in article 370 Constitution of Colombia. The latter article establishes the Supervisory Authority of Domestic Public Services responsible for regulating the activities of private service providers. 1016 Article 6 of Law 142 of 1994. 1017 C.C., marzo 29, 2011, Sentencia C-220/11, ¶ 2.4.3.; C.C., marzo 30, 2012, Sentencia T-273/12, ¶ 4.7. 1018 C.C., abril 12, 2011, Sentencia T-279/11, ¶ 13. 226

that the community members of Tierrabomba may file an amparo action directly against the private water company since this company fulfills a public service.1019

Analyzed through the 5A framework, the legal system of Colombia renders the right to water available because it reiterates the international human rights perspective, primarily requiring the State to supervise and monitor the activities of private water companies and protect individuals’ access to water of good quality through subsidies and other measures. The international human right to water is also accessible since the domestic legal framework guarantees the right to water without discrimination to everyone. Further, the right’s acceptability is fulfilled because the State has the obligation under its domestic law to supervise private companies delivering water services to citizens and ensure they deliver water of good quality. The fact that the Colombian legal system requires the State to provide subsidies to low- income residents renders the international human right to water adaptable. This obligation contributes to ensuring that all citizens benefit from access to drinking water. The State’s accountability for violations of the right to clean and safe drinking water is limited because the only mechanism to claim a violation is the amparo action, which contains several limitations in

Colombia’s legal system.1020

Practical Implementation of the Domestic and International Legal Frameworks in the Community of Tierrabomba

The relevant domestic and international legal frameworks protect Tierrabomba’s claims to clean and safe drinking water while adopting a market-friendly approach to providing water.

At the local level, this approach poses several challenges to make the right to water fully

1019 C.C., septiembre 27, 2011, Sentencia T-725/11, ¶ 3.1. 1020 For limitations of the amparo action, see supra Effective Remedy to Demand the Equal Enforcement of the Law and an Investigation of Drug-Related Crimes. 227

available, accessible, acceptable, and adaptable. It further fails to hold the State accountable for any violations thereof. The private company responsible for providing water services does not deliver safe drinking water to Tierrabomba, rendering the right to water unavailable in the community. The water is highly contaminated and has caused health problems to numerous community members. Thus, Colombia has failed to fulfill its international human rights and domestic law obligations to monitor and supervise the quality of the water delivered by the private service provider. Additionally, the private company does not provide the necessary infrastructure to make water accessible to all community members because it simply delivers the water to the cisterns of some community inhabitants, who then sell the water to the others in the community.1021 High costs of water services in Tierrabomba prevent many community members from buying water in quantities needed for daily consumption. The State has therefore failed to grant non-discriminatory access to water for all community inhabitants. Further, the right to safe and clean drinking water is not acceptable. Tierrabomba lacks the sewage system necessary distribute water to all community members; access to running water seriously jeopardizes the company’s efforts to provide water of drinking quality and sufficient quantity. Moreover, the right to water is not adaptable in Tierrabomba because water delivery does not consider the community’s low living standard and income. While the community members should benefit from subsidized water services, the State has not offered any financial support, and the private water company and water cisterns in the community continue to deliver water at a high price.1022

Overall, the State has not been able to protect the community of Tierrabomba from detrimental acts of the private company, failing to ensure adequate water quality, control the water prices, or build the necessary infrastructure to provide water to Tierrabomba.

1021 See supra Safe and Clean Drinking Water. 1022 Id. 228

Community members of Tierrabomba may resort to the amparo action to hold the private water company or State institutions accountable for their failure to provide clean and safe drinking water. For this purpose, the community members need to demonstrate that they seek potable water for their own consumption, the current lack of clean water negatively affects their health, harms their dignity, and they have undertaken minimal efforts to obtain clean and safe drinking water from the water provider. Based on the information gathered during the field research, the community of Tierrabomba meets these conditions and could successfully file an amparo action under Colombia’s domestic legal system.

Revitalization of the Garifuna Language in the Community of Orinoco

This section analyzes the human rights claim of the community of Orinoco to revitalize their aboriginal Garifuna language. The community seeks to revitalize the Garifuna language as only a handful of elderly community members consider Garifuna their mother tongue. Other inhabitants of Orinoco have adopted English Creole as their native language.1023 Reintroducing the Garifuna language as the primary language in the community is crucial; language is an essential element of the community’s identity. The use of the Garifuna language goes beyond daily communication; it is also used in the Garifuna people’s religious ceremonies as the only means to communicate with the ancestors.1024 Thus, the extinction of the Garifuna language would result in the loss of the community’s traditional religion. Recognizing the importance of the Garifuna language, the Nicaraguan government has incorporated Garifuna language classes into the primary school curriculum of the community of Orinoco. This means that the Garifuna

1023 See supra Revitalization of the Garifuna Language. It is worth noting that the Orinoco is the only Garifuna community in Nicaragua with Garifuna speaking inhabitants. The Garifuna language is however still widely used among the Garifuna people in Honduras and Belize (interview with Rosita Davis, supra note 413). The community of Tierrabomba does not raise any human rights claims related to language since its inhabitants speak Spanish and adhere to the Catholic faith. 1024 See supra Revitalization of the Garifuna Language. 229

language is currently taught as a foreign language to first to third grade students. The community of Orinoco welcomes this development but stresses that the government needs to extend the classes to all levels of schooling and fund language exchange programs with

Honduran or Belizean Garifuna communities who still use Garifuna as their primary language.1025 As demonstrated below, this claim to language revitalization finds little support in international human rights law but enjoys greater protection in the domestic legal system.

Reviving Indigenous and Tribal Languages from an International Human Rights Perspective

In the context of the community of Orinoco, the claim to revitalize the native Garifuna language relates to two areas of international human rights law. While it is most directly linked to linguistic rights, the right to participate in cultural life is also relevant as the community of

Orinoco associates Garifuna to maintaining their religion. More broadly, the community emphasizes the connection to the Garifuna language to preserving their cultural identity. The subsequent analysis reveals that international human rights law does not protect a right to language revitalization as such, but there is a tendency toward establishing such right for indigenous and tribal peoples.

Explicit Linguistic Rights to Revitalize Endangered Languages

Most international human rights treaties at the U.N. and Inter-American levels do not explicitly grant language rights. States have been reluctant to agree to such rights by asserting that linguistic diversity threatens national unity and territorial integrity.1026 Nonetheless, several

1025 Id. 1026 Rossana Blanco Gomez, Legislación en materia de derechos lingüísticos y educación indígena en México [Legislation on Linguistic Rights and Indigenous Education in Mexico], Tinkuy, May 2010, at 73, 75. International legal instruments outside the field of human rights law contain provisions aiming to protect endangered languages or linguistic diversity that could be relevant for the claim of the community of Orinoco (e.g., U.N., Educ., Sci. and Cultural Org., Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Oct. 20, 2005, 2440 U.N.T.S. 311). These instruments are however not addressed in further detail here because they lack practical 230

human rights instruments address selected aspects of linguistic rights.1027 In particular, general human rights provisions on the prohibition of discrimination, including article 2(1) ICCPR, article 2(2) ICESCR, article 2 ADHR, article 1(1) ACHR, article 3 Protocol of San Salvador establish the right to non-discrimination based on language. ILO Convention No. 169 further guarantees language-related rights for indigenous and tribal peoples in article 28 on education in the native indigenous or tribal language. While the non-discrimination provisions constitute an integral part of human rights instruments, including those related to indigenous rights, the indigenous peoples’ linguistic rights are still a developing area of international human rights law.

In this regard, the UNDRIP and IADRIP contain the most progressive provisions. These mechanisms are the only international legal instruments that explicitly mention the right to language revitalization. They state that indigenous and tribal peoples have the right to revitalize, use, maintain, and develop their languages and require States to take effective actions to guarantee enjoyment of this right.1028 While these provisions are an important step toward establishing “a government responsibility to support and provide resources for the revitalisation of indigenous languages,” they are non-binding.1029

The legally binding ILO Convention No. 169 takes a more cautious approach, connecting the preservation of indigenous languages to the formal education system. In article 28, it

relevance in international law and impose only minimal State obligations (Fernand de Varennes & Elzbieta Kuzborska, Language, Rights and Opportunities: The Role of Language in the Inclusion and Exclusion of Indigenous Peoples, 23 INT’L J. ON MINORITY & GROUP RTS. 281, 285-85 (2016)). 1027 See Snezana Trifunovska, Factors Affecting the Applicability and Efficiency of International Norms Protecting Linguistic Rights of Minorities, 9 INT’L J. ON MINORITY & GROUP RTS. 235, 236 (2002) (distinguishing three categories of linguistic rights in international law, namely provisions related to the prohibition of discrimination on linguistic grounds, special language rights for minorities, and norms concerning the use of one’s own language in specific situations). The latter category primarily refers to using one’s mother tongue in private activities or for certain interactions with State authorities, particularly courts. Since these situations are not linked to revitalization, they are not addressed in further detail. 1028 Article 13 UNDRIP; article XIV(1) and (2) IADRIP. 1029 De Varennes & Kuzborska, supra note 1026, at 282. 231

guarantees indigenous children the right to learn how to read and write in their native language where feasible.1030 Although ILO Convention No. 169 imposes on States the broadly phrased obligation to take measures “to preserve and promote the development and practice of the indigenous languages,”1031 this linguistic right is limited in two ways. First, it fails to ensure the practical use of indigenous languages, which goes beyond reading and writing and is necessary for the survival of these languages.1032 Instead, it asserts that indigenous people should only become fluent in the States’ national or official language.1033 Further, the feasibility requirement grants a wide discretion to States, allowing them to simply consult with indigenous peoples on the measures that are essential to achieve literacy in their native language.1034 Thus, ILO

Convention No. 169 does not grant comprehensive linguistic rights, let alone a right to revitalize endangered indigenous languages.

Language Revitalization Through the Right to Participation in Cultural Life

Language forms an essential part of indigenous and tribal peoples’ cultural and, in the case of the community of Orinoco, religious identity, and revitalization is thus necessary for the survival of indigenous and tribal cultures. As part of the Garifuna’s cultural life, the human rights claim of Orinoco to revitalize their tribal language could therefore be subsumed under the legal framework for tribal peoples or general cultural human rights norms, including article 27

ICCPR, article 15(1)(a) ICESCR, and article 14(1)(a) Protocol of San Salvador.1035

1030 Article 28(1) ILO Convention No. 169. 1031 Article 28(3) ILO Convention No. 169. Unlike article XIV(2) IADRIP, this provision does not grant indigenous peoples the possibility to participate in the design or implementation of such measures. 1032 Claudia Gafner-Rojas, Der Schutz indigener Sprachen im Völkerrecht und in der kolumbianischen Rechtsordnung [The Protection of Indigenous Languages in International and Colombian Law] 185 (2012) (PhD thesis, University of St. Gall), https://www1.unisg.ch/www/edis.nsf/SysLkpByIdentifier/4014/$FILE/dis4014.pdf; see also de Varennes & Kuzborska, supra note 1026, at 285. 1033 Article 28(2) ILO Convention No. 169. 1034 Article 28(1) ILO Convention No. 169. 1035 Given the fact that revitalizing the Garifuna language is essential for the religious practices of the community of Orinoco, the right to religious freedom as enshrined in article 18 ICCPR or article 12 ACHR could be relevant. 232

Current international human rights law intrinsically links the cultures and religions of indigenous and tribal peoples to their ancestral lands and states that land rights are a necessary precondition for the communities to practice their cultures, including religious traditions.1036 It therefore protects all cultural human rights claims of the community of Orinoco as a tribal community that are linked to their traditional territory. This territorial approach to indigenous cultural rights is particularly evident in the Inter-American human rights system, which has repeatedly stressed the importance of access to land for maintaining indigenous and tribal peoples’ believes and cultural systems.1037 While this focus on the connection between culture and land is undoubtedly valuable, it fails to protect those cultural rights claims of indigenous and tribal peoples that are not, and cannot be, related to ancestral territory, such as the claim to language revitalization. Thus, international human rights law does not protect the claim to revitalize the Garifuna language since such claim is not linked to the community of Orinoco’s ancestral lands.

Outside the territorial approach to cultural rights, legal protections of indigenous and tribal peoples’ claims fail to cover the demand for language revitalization. ILO Convention

No. 169 does not contain provisions explicitly addressing questions of indigenous and tribal cultural identity, such as the use of languages. It only contains vague references to indigenous and tribal culture and customs.1038 For instance, it requires States to take measures to fully realize indigenous peoples’ social, economic and cultural rights “with respect for their social and

However, cultural rights of indigenous and tribal peoples, including article 27 ICCPR, constitute lex specialis in relation to the general religious freedom provisions (NOWAK, supra note 462, at 667). This section therefore focuses only on cultural human rights norms. 1036 See supra Afro-Descendants in the Jurisprudence of the Inter-American Human Rights Bodies. 1037 E.g., Sawhoyamaxa Indigenous Community v. Paraguay, supra note 683, at ¶ 118; Saramaka People v. Suriname, supra note 21, at ¶ 219; Yakye Axa Indigenous Community v. Paraguay, supra note 160, at ¶ 135; Plan de Sánchez Massacre v. Guatemala, supra note 825, at ¶ 85; Mayagna (Sumo) Awas Tingni Community v. Nicaragua, supra note 545, at ¶ 149. 1038 Gafner-Rojas, supra note 1032, at ¶¶ 186-87. 233

cultural identity, their customs and traditions and their institutions”1039 and adopt special measures to safeguard their cultures.1040 Such approaches do not clarify what aspects of indigenous and tribal cultures and customs, including language and religion, are covered. Thus,

ILO Convention No. 169 fails to establish specific rights that link language protection and promotion with cultural identity of indigenous and tribal peoples. It also does not grant a right to protect the use of indigenous languages as a means of cultural identification.1041

Cultural human rights provisions refer to linguistic rights do not go as far as to include revitalization of endangered languages. Article 27 ICCPR primarily refers to the use of minority languages in the private and public sphere and imposes on States the negative obligation not to prevent minority children from learning and developing their language at school.1042 Specific positive State obligations to actively protect certain languages from extinction have not crystalized under this provision. Similarly, while the concept of culture under article 15(1)(a)

ICESCR includes language,1043 the Committee on Economic, Social, and Cultural Rights has not yet clarified to what extent this provision covers linguistic rights. It simply states that minorities and indigenous peoples should benefit from education in their own language, “taking into consideration the wishes expressed by communities and in the international human rights standards in this area,”1044 particularly ILO Convention No. 169. This reference to international human rights standards is ambiguous because, as discussed above, they do not effectively promote indigenous or tribal languages. Other references to linguistic rights under article

1039 Article 2(b) ILO Convention No. 169. 1040 Article 4(1) ILO Convention No. 169; see also Preamble ILO Convention No. 169. 1041 Gafner-Rojas, supra note 1032, at 187 (adding that the reference in the Preamble of ILO Convention No. 169 to “the aspirations of these peoples … to maintain and develop their identities, languages and religions, within the framework of the States in which they live,” does not constitute a sufficient legal basis for such linguistic rights). 1042 NOWAK, supra note 462, at 659. 1043 CESCR General Comment No. 21, supra note 49, at ¶ 13. The same is true for article 14(1)(a) Protocol of San Salvador (ORG. OF AM. STATES, supra note 576, at 111). 1044 CESCR General Comment No. 21, supra note 49, at ¶ 27. 234

15(1)(a) ICESCR focus on language as a mere tool of communication.1045 The Protocol of San

Salvador takes an even more limited approach, obliging States simply to establish an inventory of indigenous languages and translate information on access to State services into such languages.1046

While this human rights framework may be sufficient to protect the continued use of indigenous or tribal languages that are still widely spoken, including those of (tribal) Afro- descendant communities, it is not sufficient to protect and ensure the human rights claim of the community of Orinoco. Orinoco’s demand to revitalization of the Garifuna language implies a need for active measures to revive the language, an approach that is not included in the international human rights framework as outlined above. This framework does not impose on

States any obligation to actively revitalize endangered languages.

The State’s failure to revitalize the language contributes to the cultural assimilation of the community of Orinoco. Without their aboriginal language, the community would lose an important part of their cultural identity, including their religion. Thus, the language revitalization touches on the core of article 27 ICCPR, article 15(1)(a) ICESCR, and article

14(1)(a) Protocol of San Salvador, namely the prohibition of forced assimilation.1047 However, interpreting these cultural rights provisions to cover language revitalization based on the prohibition of forced assimilation would be far-fetched since they approach indigenous or endangered languages only from the perspective of education and communication tools. Thus,

1045 Id. at ¶¶ 16(b), 49(b), 52(a). Given the fact that the Garifuna people lives in several Central American States and maintain cross-border contact with other communities, it is important to note that article 15(3) ICESCR requires States to engage in international cooperation to achieve the right to take part in cultural life. Such obligation particularly applies to “those States that are in a position to provide assistance” (id. at ¶ 58) and could be relevant in the future if a right to language revitalization develops under international human rights law. It could impose obligations on States like Honduras and Belize to assist Nicaragua in revitalizing the Garifuna language through, for instance, language exchange programs or linguistic expertise. 1046 ORG. OF AM. STATES, supra note 576, at 115-16. 1047 See supra State Obligations Resulting from Cultural Human Rights. 235

cultural human rights provisions do not protect the community of Orinoco’s claim to revitalize the Garifuna language.

Application to Nicaragua

This section analyzes Nicaragua’s domestic legal framework on the revitalization of indigenous languages and its implementation in the community of Orinoco. It demonstrates that the legal system guarantees the right to develop and preserve the Garifuna language in the

Atlantic coast, primarily through the education system. The situation on the ground evidences that although revitalization efforts should be increased to preserve the Garifuna language in the community of Orinoco, Nicaragua is in compliance with its obligations at domestic and international human rights levels.

Domestic Legal Framework

Nicaragua refers to language preservation and education in the communities’ native language in its legal system. The Constitution enshrines the rights of indigenous and Afro- descendant communities living at the Atlantic coast to maintain and develop their own identity and preserve their languages.1048 The Autonomy Law, specifying the legal framework of the

Atlantic Autonomous Regions, reiterates the right to “preserve and develop [the inhabitants’] languages, religions, and cultures.”1049 It further guarantees six indigenous and Afro-descendant languages the status of official languages of the Atlantic Autonomous Regions.1050 These languages include Garifuna although it is no longer widely spoken in practice. The Autonomy

1048 Articles 5 and 90 Constitution of Nicaragua. 1049 Article 11(2) Autonomy Law. 1050 Article 5 Autonomy Law. 236

Law also stipulates the right to education in Spanish and the communities’ native language, taking into account their cultural heritage, values, and traditions.1051

These general legal provisions are specified in several legislative instruments. In particular, the Law on the Official Use of the Languages of the Communities of the Atlantic

Coast of Nicaragua requires the State to create language preservation programs, allocate the necessary resources to them, and adopt legal measures to ensure that community members would not be subject to discrimination based on their language.1052 This law also clarifies the State obligations regarding the communities’ right to education in their mother tongue, introducing native language education in the primary school and the communities’ native language as a subject in the secondary school.1053 For the community of Orinoco, this focus on education in the “native language” means that the communal school’s language of teaching is English Creole since it is the predominant language of the community; Garifuna is introduced as a foreign language.1054

The system of native language education has become more flexible with the adoption of the General Education Law in 2006. This law specifies that the education system of the Atlantic

Autonomous Regions “responds to the realities, necessities, wishes, and educational priorities of

[the] multiethnic, multilinguistic, and multicultural population.”1055 It explicitly refers to the need to revitalize indigenous and Afro-descendant languages, seeking to respect, rescue, and

1051 Article 11(5) Autonomy Law. 1052 Article 2 of Ley No. 162, 22 June 1993, Ley de Uso Oficial de las Lenguas de las Comunidades de la Costa Atlántica de Nicaragua [Ley de Lenguas de la Costa Atlántica] [Law of the Official Use of the Languages of the Communities of the Atlantic Coast of Nicaragua], L.G., 15 July 1996 [hereinafter Law on the Languages of the Atlantic Coast]. 1053 Article 7(2) and (3) Law on the Languages of the Atlantic Coast. 1054 Cf. Marleen Haboud et al., Linguistic Human Rights and Language Revitalization: Latin America and the Caribbean, in INDIGENOUS LANGUAGE REVITALIZATION IN THE AMERICAS 201 (Serafín M. Coronel-Molina & Teresa L. McCarty eds., 2016). 1055 Article 41 of Ley No. 582, 22 Mar. 2006, Ley General de Educación [General Education Law], L.G., 3 Aug. 2006. 237

strengthen the “diverse ethnic, cultural, and linguistic identities.”1056 Thus, the law leaves room for various measures to revitalize the Garifuna language through the formal education system, although it does not specify such measures or corresponding State obligations.

The more recent Law on Garifuna Cultural Heritage mentions Garifuna language as an aspect of the community’s cultural heritage.1057 As such, the Garifuna language requires special protection. This law creates an interinstitutional committee to promote, protect, and promulgate

Garifuna culture, including language. 1058 The committee is comprised of members of the regional and central government as well as representatives of Garifuna communities.1059 It receives its budget from the Nicaraguan Institute of Culture.1060 The law further requires the

Regional Councils, Regional Governments, and municipalities with Garifuna population to allocate financial resources to “the preservation, promotion, and promulgation of the Garifuna culture.”1061 Considering the purpose of the law, the interinstitutional committee and regional governmental authorities are entitled to use these budgetary allocations for revitalizing the

Garifuna language in Nicaragua. Thus, the law is an important step toward the rescue of this language.

In conclusion, the domestic legal framework offers a more comprehensive protection of the human rights claims of the community of Orinoco than international human rights law. It recognizes the need to preserve the Garifuna language, stipulating that the formal educational system is the appropriate means to do so. While it does not explicitly require the State to

1056 Id. 1057 Article 2 of Ley No. 886, 29 Oct. 2014, Ley de Declaración de la Cultura Garífuna como Patrimonio Cultural Inmaterial de la Nación [Law of the Declaration of the Garifuna Culture as Cultural Immaterial Heritage of the Nation], L.G., 12 Nov. 2014 [hereinafter Law on Garifuna Cultural Heritage]. 1058 Article 5 Law on Garifuna Cultural Heritage. 1059 Article 5 Law on Garifuna Cultural Heritage. 1060 Article 6(1) Law on Garifuna Cultural Heritage. 1061 Article 6(3) Law on Garifuna Cultural Heritage. 238

actively revitalize the Garifuna (or any other indigenous or Afro-descendant) language in

Nicaragua, the aforesaid provisions render the right to revitalization language at least partially available in the domestic legal framework. Accessibility of language revitalization remains however unclear in the Nicaragua legal system because there are no designated government authorities tasked with the revitalization. While the recently adopted Law on Garifuna Cultural

Heritage does not refer to language education, it allocates a budget to local government authorities that would be well-positioned to undertake language revitalization efforts since they are likely to be familiar with the circumstances in Nicaragua’s Garifuna communities. This approach makes language revitalization acceptable. The General Law on Education offers a flexible approach to revitalize the Garifuna language through various educational measures, rendering the right adaptable. However, since there are no government institutions mandated to revitalize, develop, or preserve the Garifuna language, accountability mechanisms do not exist.

Thus, contrary to the international human rights framework, the domestic laws of Nicaragua offer more comprehensive protection to the community of Orinoco’s claim to language revitalization. However, the specific scope and content of State obligations to revitalize or at least to develop and preserve the Garifuna language remain vague. These ambiguities are also apparent in the application of the legal framework to the community of Orinoco, as highlighted in the following section.

Implementation of the Domestic and International Legal Frameworks in the Community of Orinoco

The situation in the community of Orinoco, where only a few inhabitants speak Garifuna fluently, demonstrates the difficulties of language revitalization as a long-term process. In compliance with its obligations under the Autonomy Law and Law on the Official Use of the

Languages of the Communities of the Atlantic Coast of Nicaragua, the Nicaraguan government 239

offers “native language education” in the community of Orinoco, teaching all subjects in English

Creole in the community school. This effort makes the right to revitalize or at least to develop and preserve the Garifuna language available in the community of Orinoco. While the emphasis on native language education reinforces English Creole as the community’s primary language, which might be counterproductive to revitalizing the Garifuna language, it reflects the linguistic reality in the community of Orinoco. As a result of the “native language education” approach,

Garifuna is currently only taught as a foreign language subject for three years in the primary school. This approach jeopardizes the acceptability of the right to revitalize or, at least, develop and preserve the Garifuna language.

Nicaragua’s efforts to develop the Garifuna language in Orinoco do not fully reflect the provisions of the General Education Law and Law on the Declaration of Garifuna Culture as

Cultural Immaterial Heritage of the Nation. These leave room for more flexible measures to revitalize the Garifuna language. In particular, Garifuna language revitalization is not accessible for the community of Orinoco because the communal school in Orinoco does not have sufficient institutional capacity to teach Garifuna language beyond the primary school. The State’s efforts to reintroduce Garifuna language are further not adaptable since they do not reflect the needs and preferences of the community of Orinoco, which strongly favors more governmental support to convert Garifuna into the community’s primary language again. Thus, Nicaragua needs to take stronger measures to preserve and revitalize the Garifuna language through the educational system and as part of the country’s cultural heritage. Such measures could include teaching the language in primary and secondary school and increasing cooperation with Garifuna communities in Honduras and Belize through language exchange programs. In the absence of

240

accountability mechanisms, the community of Orinoco faces challenges to demand enforcement of these measures.

In conclusion, the communities concerned have clear human rights claims to decent employment opportunities, safe and clean drinking water, and language revitalization. They respectively face similar legal and practical challenges than the implementation of the land and criminal justice claims. In particular, an important challenge is that the applicable legal systems do not reflect the preferred way of life of the communities concerned. The community of

Orinoco’s claim to employment opportunities in geographical reach do not enjoy strong legal protection under international and national laws because both legal systems focus on economic activities that are considered traditional for tribal communities. However, the community is not interested in pursuing only what is called traditional activities, and the law does therefore not reflect the community’s preferences. Similarly, Orinoco’s claim to revitalize their aboriginal language as a part of Garifuna culture is not protected under international human rights law because this legal system primarily grants cultural rights in connection with land rights. The community’s language claim is not related to land because the community can use the Garifuna language irrespective of their access to the land. Another challenge is the fact that the domestic legal systems of Colombia and Nicaragua lack effective enforcement mechanisms that would allow the communities concerned to demand implementation of their rights. For instance, the community of Tierrabomba has the right to clean and safe drinking water, and Colombia should take measures to monitor and supervise the private water company delivering the water to the community. However, the enforcement mechanisms for this right and State obligations are limited to the amparo action. Through the amparo action, the community can only obtain a judicial determination that their right to water is violated. This limits the effectiveness of the

241

amparo action for the community of Tierrabomba. In the community of Orinoco, there are several local government authorities and an interinstitutional committee responsible for language issues, but the responsibilities and accountability structures are not clearly distributed. This ambiguous institutional framework effectively leaves the community of Orinoco with no means to ask for State support to revitalize the Garifuna language. These challenges limit the legal and practical protection of the human rights claims of the communities concerned that are related to work, safe and clean drinking water, and language revitalization.

242

CHAPTER 7

IN LIEU OF CONCLUSION: RE-THINKING THE CURRENT HUMAN RIGHTS APPROACH TO THE HUMAN RIGHTS CLAIMS OF THE COMMUNITIES CONCERNED AND SIMILARLY SITUATED COMMUNITIES

International human rights law, the domestic legal frameworks of Colombia and

Nicaragua, and their practical implementations do not fully protect the human rights claims of the communities concerned. For most human rights claims, the international and domestic legal systems do not reflect the communities understanding of culture, contain conflicting legal norms, and lack an effective remedy for the communities concerned to claim a violation of their rights.

This chapter briefly summarizes the legal approach towards the human rights claims of the communities concerned and its practical consequences when applied. This chapter then establishes a set of recommendations for legal scholarship and practice in Colombia, Nicaragua, and the international human rights community on how to better account for the human rights claims of the communities concerned. The dissertation concludes by examining the potential applicability of this set of recommendations to similarly situated Afro-descendant and indigenous communities in Latin America and other marginalized population groups across the globe.

Current Human Rights Approach towards the Human Rights Claims of the Communities Concerned and Its Impact on the Ground

The legal analysis of the human rights claims of the communities concerned has shown common themes in the international and domestic legal systems applicable to the communities concerned. These themes include the law’s focus on folkloric and material aspects of “culture,” conflicting legal norms applicable to the human rights claims, and the lack of effective remedies to enforce the rights at stake. The remote location of the communities concerned, State neglect,

243

and fear of violence against community leaders exacerbate the negative consequences of these legal weaknesses on the ground.

Focus on Folkloric and Material Aspects of “Culture”

The focus of international and domestic human rights provisions on folkloric and material aspects of “culture” becomes apparent in the legal analysis of the communities’ human rights claims related to land and employment. While the communities concerned share a far-reaching understanding of culture, broadly defining it as a collective way of life according to their own values and priorities,1062 relevant cultural and other human rights norms do not reflect this understanding. Instead, these norms focus on artistic and material expressions to define culture.1063 In the case of tribal communities, like the community of Orinoco, they also cover collective access to and use of land, traditional economic activities, ancestral knowledge, and communal institutions.1064 Such understanding of culture does not fully protect or promote the human rights claims of the communities concerned. The community of Tierrabomba does not enjoy collective land rights because they do not qualify as indigenous or tribal under international human rights law.1065 To qualify, they would have to adopt what the international human rights community labels a “traditional way of life” by, inter alia, adhering to particular religious rituals, subsistence activities related to nature, and community-based cultural institutions.1066 Meeting the criteria of indigenous and tribal communities would strengthen the land-related claims of the community of Tierrabomba under international human rights law.

However, the concept of indigenous and tribal communities limits the legal protection of the

1062 See supra Human Rights Claims of the Community of Tierrabomba; Human Rights Claims of the Community of Orinoco. 1063 See supra Cultural Rights as “Empowering Rights” for the Communities Concerned. 1064 Id. 1065 See supra Access to Traditional Land Through Demarcation and Collective Ownership of the Land. 1066 Id. 244

employment-related claim of the community of Orinoco, which qualifies as tribal.1067 The community’s demand to access employment opportunities within its geographic reach goes beyond the protection and promotion of traditional subsistence activities, which international human rights law affords to tribal peoples, and does not enjoy human rights protection. Thus,

U.N. and Inter-American human rights laws take a top-down approach, requiring the communities concerned to emphasize folkloric aspects of culture and follow a certain way of life that is pre-defined in the law.1068 Such approach does not allow the communities concerned to freely choose their own (communal) lifestyle and receive legal protection for their choice.

Colombian and Nicaraguan domestic laws partially mitigate the folkloric approach to culture under international human rights law. Colombia allows Afro-descendant communities to obtain collective land title without meeting the static criteria of indigenous or tribal peoples in international law. Communities must simply demonstrate their continuous presence on the territory at stake and the existence of a community council.1069 The Colombian system does not focus on cultural characteristics of the community of Tierrabomba when deciding collective land titling claims. This counteracts a top-down approach and instead considers the community’s lived reality on the ground. This is a positive development that strengthens the legal protection of land-related claims of Afro-descendant communities. The Nicaraguan legal framework promotes employment opportunities for indigenous and Afro-descendant people in the Atlantic

Autonomous Regions, exceeding the legal protection granted to the work-related claim of the community of Orinoco under international human rights law.1070 However, other domestic law

1067 See supra Equal Access to Decent Work Opportunities. 1068 The top-down approach of international and domestic human rights law has been reinforced by large parts of legal scholarship that has not questioned the legitimacy of human right norms (McInerney-Lankford, supra note 41). 1069 See supra Access to the Traditional Land through Demarcation, Collective Land Title, and Participation in the Decision-Making Process. 1070 See supra The Rights to Freedom and Access to Work Within Close Geographical Reach in Nicaragua. 245

provisions in Nicaragua confine the income sources of indigenous and Afro-descendant communities to traditional economic activities, such as farming and fishing.1071 Thus, the

Nicaraguan legal system takes an ambiguous stance towards the community of Orinoco’s human rights claims, partially embracing the folkloric and material approach to culture of international human rights law while incorporating broader legal protection in other provisions.

Conflicting Legal Provisions

International human rights law and the domestic legal frameworks relevant for the communities concerned are characterized by conflicting legal norms applicable to the human rights claims. These legal systems protect and promote the human rights claims of the communities concerned in some provisions while restricting the claims’ legal protection through other norms. Such contradictions in the applicable bodies of law render the protection of the human rights claims ambiguous and practically ineffective. For instance, while current international human rights norms and the Colombian legal framework grant the community of

Tierrabomba a right to safe and clean drinking water, they permit privatization of water services, limiting Colombia’s obligations to supervising and monitoring private water companies. This practically leaves the community to the companies’ discretion in how resources are allocated.1072

Similarly, the community members of Tierrabomba are entitled to an adequate remuneration and safe working conditions to live in dignity under the relevant legal systems, but the national law sets the minimum salary too low to cover the high living costs on the island.1073 Therefore, the right to decent working conditions is not given to the community inhabitants of Tierrabomba.

Also, while the community enjoys the right to collective land title under domestic law, the same

1071 Id. 1072 See supra Safe and Clean Water for the Community of Tierrabomba. 1073 See supra The Rights to Adequate Remuneration and Safe Working Conditions in Colombia. 246

law limits the communal territories that may be subject to collective titling to those that do not have a legal owner according to the land registry.1074 Such provision effectively deprives the community of Tierrabomba—and most likely other Afro-descendant communities at Colombia’s

Atlantic coast—of the right to collective land ownership. The country has a history of fraudulent real estate transactions and armed conflict. As a result, most lands inhabited by Afro-descendant communities in the Atlantic coast are legally owned by third parties. The current law prioritizes these (fraudulent) third party ownership rights over the century-long presence of Afro- descendant communities.

A similar contradiction can be observed for the community of Orinoco, resulting in a reduced legal protection of their human rights claims. The community enjoys the right to use the natural resources on their territory without interference from third parties. The communal institutions of the wihta, the community judge, and síndico, the community administrator of the traditional land, are mandated to resolve land disputes, but these authorities do not have the power to enforce their decisions in practice.1075 This lack of enforcement power effectively deprives the community of Orinoco from any mechanism to prevent third parties from settling on their traditional land or expel existing third party settlers from the land. Similarly, while international human rights law and relevant domestic provisions impose on Nicaragua different obligations to preserve indigenous or tribal languages, these obligations are limited in several ways.1076 For instance, the ILO Convention No. 169 focuses on promoting reading and writing skills “where feasible,”1077 and the Nicaraguan legal framework emphasizes education in the

1074 See supra Access to the Traditional Land through Demarcation, Collective Land Title, and Participation in the Decision-Making Process. 1075 See supra Domestic Legal Framework on the Right to Use and Enjoy the Traditional Land and Natural Resources Without Outside Interferrence. 1076 See supra Revitalization of the Garifuna in the Community of Orinoco. 1077 Article 28(1) ILO Convention No. 169. 247

community’s native language.1078 For the community of Orinoco, the native language is not equivalent to their aboriginal Garifuna language. While these legal frameworks might be sufficient to preserve and maintain indigenous or tribal languages that are still spoken, they do not impose positive obligations on the State to actively revive a language that is endangered.

Therefore, the current legal frameworks do not adequately protect Orinoco’s claim to revitalize the Garifuna language.

Lack of Effective Remedies

Lack of effective remedies is another feature of the current legal approach towards the communities concerned. The right to an effective remedy is a well-established norm in international human rights law, and Colombia and Nicaragua have materialized such right through different judicial means, particularly the amparo action.1079 Both States recognize amparo action as the primary means for their citizens to claim infringement of fundamental rights. While the Inter-American system has repeatedly stated that a judicial remedy is only effective if it produces the result which it was designed for, it generally considers the amparo action to be effective.1080 Other human rights bodies and domestic institutions, including the

Constitutional Court of Colombia, have reiterated the effectiveness of the amparo action.1081 For the communities concerned, amparo action is frequently the only judicial remedy available for asserting violations of the legal provisions applicable to their human rights claims.1082

The specific legal design and interpretation at the domestic level renders the amparo action mostly ineffective, impeding the practical realization of the right to an effective remedy in

1078 See supra Revitalization of the Garifuna in the Community of Orinoco. 1079 See supra Chapter 5. 1080 See supra Right to an Effective Remedy. 1081 See supra Application to Colombia and Nicaragua. 1082 Id. 248

the communities concerned. In Colombia, the amparo judge is not entitled to grant compensation for a violation of the victims’ fundamental rights and thus can only issue a declaratory judgment.1083 This limits the effectiveness of the amparo action for the community of Tierrabomba, requiring a lengthy civil procedure to obtain compensation. In Nicaraguan law, those suffering a violation of their fundamental rights must exhaust other administrative recourses before filing an amparo action.1084 Given the complex institutional design in

Nicaragua’s Atlantic Autonomous Regions and the remote location of the community of

Orinoco, amparo action remains largely unattainable for the inhabitants of Orinoco. For instance, the Interinstitutional Commission, which is mandated to conduct land clearance processes, has a complex set-up with members from different government institutions and has the sole discretion to initiate the land clearance process. Thus, the endorsement of amparo action by international human rights bodies and domestic institutions do not reflect the reality of the communities concerned, where the domestic legal design and factual circumstances render this remedy ineffective.

Practical Challenges in the Communities Concerned

The legal challenges that result from the current human rights approach towards the communities concerned impede effective protection and promotion of their human rights claims and are exacerbated by the lived realities of the communities. These realities include the communities’ remote location, State neglect, and violence and fear of violence against community leaders. While such obstacles are not directly linked to the current human rights

1083 Id. 1084 See supra Effective Remedy to Demand the Equal Enforcement of the Law and an Investigation of Drug- Related Crimes. 249

approach towards the communities concerned, they are important factors shaping the law’s practical implementation on the ground.

The remote geographic location of the communities concerned makes it difficult for governmental or private institution to provide services. Community inhabitants need to embark on a costly, and at times dangerous, boat trip if they want to exercise judicial remedies, meet with government representatives, access education and health care of quality, or obtain formal employment. The remoteness also constitutes an obstacle for the State to reach the communities concerned as it imposes an additional financial, administrative, and logistic burden on the State.

For instance, Colombia and Nicaragua both established police outreach posts in the communities concerned to help with access. The reality on the ground shows that these outreach posts, albeit important, have been insufficient to overcome the absence of state institutions in the communities concerned.

There is a lack of political will to assist the communities concerned implement the law on the ground. The impact of lack of political will becomes evident when analyzing the practical implementation of virtually all relevant legal frameworks. For instance, the Colombian State has not been willing to build infrastructure for clean and safe drinking water in the community of

Tierrabomba. It has also refused to cede land ownership from the municipality of Cartagena to the community. In the community of Orinoco, Nicaragua has failed to prevent third parties from settling on communal land, impeding the community’s full enjoyment of the natural resources.

State neglect is further visible in the States’ failure to tackle drug-related crimes and enforce domestic penal code provisions in both communities. As a result, a climate of impunity for those involved in micro-drug trafficking coupled with mistrust in governmental structures has

250

emerged. If the communities do not trust State institutions, any attempts to implement fundamental rights in the communities will be rejected.

Lastly, violence against leaders of Afro-descendant communities has become an everyday phenomenon in Latin America, preventing many communities from claiming or exercising their rights.1085 While the communities concerned currently do not face violent acts, they fear violence against their leaders if they assert their rights, particularly land-related rights.

This fear has made the community of Tierrabomba reluctant to take legal action against the decision of the National Agency of Territories, which rejected the community’s land titling request. If the community is deprived of a land title, they are effectively deprived of legal remedies and become increasingly vulnerable to forced displacement. The community of

Orinoco does not explicitly mention fear of violence as a reason for not pursuing their land or other rights, but experiences in other areas of the Atlantic Autonomous Regions show that many

Afro-descendant and indigenous communities suffer violent conflicts after initiating the land clearance process. Such prospects of violence might deter the community of Orinoco from taking judicial or other action against third-party settlers on their traditional territory. Thus, fear of violence effectively prevents the community of Tierrabomba from taking judicial action and might also impact actions against illegal settlers that the community of Orinoco could take in the future.

A Set of Recommendations for the Communities Concerned

There is a need to rethink the current approach of the international and domestic legal systems towards the communities concerned. A new approach could remedy the deficiencies of these laws and their negative impact on the ground. As highlighted above, the current legal

1085 See infra annex I. 251

approach is not aligned with the human rights claims of the communities concerned. The communities are prevented from being empowered and are kept marginalized in society. To overcome these obstacles, the interpretation and practice of the relevant international and domestic legal frameworks needs to place greater emphasis on the human rights claims and perspectives of the communities concerned. This section proposes a set of recommendations based on a new approach towards the human rights claims of the communities that is grounded in the local context. It highlights the importance of such approach and describes the approach’s foundations in law and practical considerations. The section then adopts recommendations to incorporate this grounded approach in legal scholarship and human rights practice, discussing the recommendations’ impacts and limitations on the human rights claims of the communities concerned.

A Grounded Approach of the Law Towards the Communities Concerned and Its Legal and Practical Foundations

The proposed model framework places the claims and perspectives of the communities concerned at the center of legal human rights interpretations and bases them in concrete legal norms. This provides a more grounded view of the legal provisions applicable to the communities concerned. This “grounded view” on the relevant legal frameworks is understood as the application of a clearly defined legal research design and specific legal norms to individual case studies to examine the local implementation of the technical legal provisions and their deficiencies.1086 In the context of the communities concerned, the grounded approach contributes to ensuring that the legal understanding of the communities’ human rights claims

1086 Cf. Damian Gonzalez-Salzberg & Loveday Hodson, Introduction: Human Rights Research Beyond the Doctrinal Approach, in RESEARCH METHODS FOR INTERNATIONAL HUMAN RIGHTS LAW: BEYOND THE TRADITIONAL PARADIGM (Damian Gonzalez-Salzberg & Loveday Hodson eds., 2020). 252

moves away from mere folkloric aspects to an inclusive understanding of culture.1087 By highlighting the communities’ perspectives, it also helps solve conflicts between contradicting legal norms or interpretations and sheds light on the importance of providing effective remedies and accessible State institutions for the communities concerned to exercise their fundamental rights. Thus, through a grounded approach to the law, the model framework is rooted in concrete legal norms and serves to effectively address the main deficiencies of the current human rights approach towards the communities concerned. At the same time, it raises awareness of the practical challenges facing these communities.1088

Both legal and practical considerations support the grounded approach of the law towards the communities concerned.1089 From a legal perspective, several principles and rights serve to ensure that States’ actions are rooted in the reality of the communities concerned and respect their needs and perspectives. First, the principle of self-identification enshrined in ILO

Convention No. 169, other indigenous and tribal rights instruments, and corresponding jurisprudence establishes that communities and their individual members can freely identify or not as indigenous or tribal.1090 In other words, third parties including State actors, international human rights bodies, and legal scholars, may not determine the identity and way of life of communities or their members. Similarly, the principle of self-identification is implied in the legal interpretation of article 15(1)(a) ICESCR according to which “[t]he decision by a person whether or not to exercise the right to take part in cultural life individually, or in association with

1087 While the international human rights law’s focus on folkloric and material aspects of culture offers legal protection of certain human rights claims of the community of Orinoco as a tribal community, particularly land- related claims, it does not protect other claims of the communities concerned related to their communal understanding of culture (see supra Chapters 4-6). 1088 As outlined below, the set of recommendations does not propose a new legal framework for Afro-descendants specifically in line with the dissertation’s foundation in legal positivism. 1089 Counterarguments to this legal approach are discussed as limitations of the recommendations for legal scholarship and human rights practice in the next section. 1090 See supra The Overarching Principle of Self-Identification. 253

others, is a cultural choice and, as such, should be recognized, respected and protected on the basis of equality.”1091 Thus, it incorporates a bottom-up approach to the law, emphasizing the preferred lifestyle and views of the communities and their members, irrespective of whether they identify as indigenous, tribal, a minority, or none of these categories. Further, international human rights law has increasingly recognized the importance of citizens’ consultation and participation rights in matters that may affect them, ensuring that States’ policies and laws respect the needs and perspectives of local communities. While these rights have generally focused on indigenous and tribal communities, and incorporation in the domestic legal systems of Colombia and Nicaragua remains weak,1092 there is growing awareness among legal scholars and practitioners that these rights should apply to other communities and individual citizens. For instance, the international human rights community has recently acknowledged the rights of peasants and other people working in rural areas to participate actively and freely in decision- making processes affecting them.1093 Similarly, the Committee on Economic, Social, and

Cultural Rights has affirmed that States must enable citizens to participate “freely in an active and informed way, and without discrimination, in any important decision-making process”1094 that impacts their way of life. These participation rights give the communities concerned a say in matters affecting their rights and interests, ensuring that State policies and laws reflect their realities. Likewise, the right to be different, which is inherent in the rights to equality and non- discrimination, helps ensure that the State respects and accounts for different ways of life of communities and their members.1095

1091 CESCR General Comment No. 21, supra note 49, at ¶ 7. 1092 See supra Domestic Legal Framework of the Rights to Access the Traditional Land and Protect it from Erosion; Domestic Legal Framework on the Right to Use and Enjoy the Traditional Land and Natural Resources Without Outside Interference. 1093 Articles 10 and 11 UN Declaration on the Rights of Peasants. 1094 CESCR General Comment No. 21, supra note 49, at ¶ 49(e). 1095 Donders, supra note 489, at 16. 254

In addition to these legal arguments, practical considerations also support a grounded interpretation of the law applicable to the human rights claims of the communities concerned.

First, a bottom-up approach of the law gives the communities an opportunity to voice their concerns, integrating them into society. It further empowers them to actively exercise their citizenship rights and overcome their current economic, social, and cultural marginalization.

Thus, it reinforces democratic principles through engagement of local communities, which in turn contributes to an inclusive society and brings stability.

Recommendations to Incorporate the Grounded Approach Towards the Communities Concerned in Legal Scholarship and Human Rights Practice

Both legal scholarship and national and international human rights practice need to incorporate a grounded approach towards the communities concerned to better reflect the communities’ human rights claims. This section proposes several recommendations for scholarship and human rights practice on how to incorporate such grounded approach in the legal interpretation and application of human rights norms relevant for the communities concerned.

These recommendations are based on the premise that the communities’ human rights claims deserve legal and practical protection. While the recommendations for legal scholarship are deduced from the experiences made in the process of research and writing this dissertation, those for international and domestic human rights practitioners are based on concrete legal norms.1096

Recommendations for Legal Scholarship

Legal scholarship should follow three primary recommendations to move towards a more grounded view of the law applicable to the communities concerned. These are based on research experiences and legal analysis of this dissertation and include integrating empirical research

1096 See infra Recommendations for International and Domestic Human Rights Practice. 255

methods into legal studies, conducting technical legal analysis of such norms, and adopting an inclusive interpretation of human rights norms. While these recommendations are crucial to rethink the current human rights approach towards the communities concerned, they may also face challenges and limitations as discussed hereinafter.

Recommendation 1: Integrating Empirical Research Methods into Legal Studies

The integration of empirical research methods into legal studies is essential to increase awareness and understanding of the realities on the ground among legal scholars and highlight the particularities of such realities.1097 Empirical research bridges the gap between academia and local communities, generating first-hand knowledge of their daily challenges and lived experiences. Through empirical studies, these communities no longer remain research subjects to be analyzed from the distance but become the subjects of legal scholarship and obtain a voice in academia. Further, empirical research brings academic methodologies and work closer to marginalized communities, that are frequently removed from the educational system, particularly higher education.

Empirical research entails several challenges. Some of these challenges are general in nature and others specific to its integration in legal studies. First, empirical research is often time- and resource-intensive as it requires the scholar to travel and spend time on the ground to build trust with the local community and gather the necessary empirical data. It also places an additional responsibility on the researcher, namely a responsibility towards the community.

Empirical research should be a two-way communication between the researcher and the local population. The community contributes to the academic studies by providing information, and

1097 In the dissertation at hand, the field research was essential to understand the human rights claims of the communities concerned; see supra Methodological Research Framework. 256

the researcher should hand something back that benefits the community.1098 Examples are sharing the research results in a form that is easy to understand or raising awareness of their rights or living conditions while respecting their preferred level of confidentiality. Moreover, empirical research is not straightforward and always entails an element of surprise, as the situation on the ground is unpredictable. The local reality might require the scholar to invest more resources to obtain meaningful results, and the research outcome cannot be anticipated, compelling the scholar to be flexible and constantly monitor and update the research plan.

Lastly, applying empirical research to the law is particularly challenging as legal systems operate with predefined terms and categories, while the lived reality is often fluid and constantly changing. Thus, legal researchers need to clarify and draw boundaries between real-life experiences and legal frameworks, thereby respecting the perspectives of the local communities.1099

Legal scholars should bear these challenges in mind as they engage in empirical research.

Many challenges of empirical research can be—at least partially—mitigated through adequate preparation. Cooperation with a local partner helps overcome many risks inherent in empirical research.1100 For instance, a local organization or contact person can significantly facilitate the process of building trust, data gathering, planning the research on the ground, or returning research results to the community. It can also assist the researcher with additional information about the situation on the ground or the claims of the local community.

1098 Cf. interview with Miguel Obeso, Community Leader, in San Basilio de Palenque, Colom. (July 29, 2017). 1099 The present dissertation attempted to put the realities of the communities concerned in legal language. Chapter 1 identified the human rights claims of the communities concerned based on the field research, while Chapters 4-6 applied international human rights norms to these claims. 1100 For instance, in the community of Orinoco, the author of this dissertation was greatly assisted by a local resident of Bluefields who had close ties to the community and introduced her to the community members, paving the way to conduct the field research there. 257

Recommendation 2: Conducting Technical Legal Analysis of Human Rights Norms

Legal analysis of international human rights norms is necessary to improve the legal protection of claims raised by the communities concerned. In particular, it serves to understand the extent to which human rights claims of communities are protected, identifying the weaknesses and strengths of this legal protection.1101 This is essential to advocate for legislative or other changes at the local and domestic levels. Technical legal analysis of international human rights norms further counters the current tendency in international human rights scholarship to take the validity of these norms for granted and adopt an expansive interpretation thereof.1102 While such tendency has contributed to addressing new challenges in international human rights law, it conflates the law’s legitimacy with legality. Examining the legal foundation of a human rights claim of the communities concerned is essential to identify whether the claim is supported by the law, and whether the State has violated its legal obligations towards the communities.1103 Legal analysis of human rights law also highlights the legal principles and norms that limit States’ obligations to implement human rights provisions in practice.1104 Thus, such analysis is the first step to determine the scope of legal norms and corresponding State obligations, contributing to gaining a realistic picture of a legal claim’s human rights protection.

It provides the basis for scholars to assess the implementation and impact of these norms, State

1101 In Chapters 4-6, this dissertation identified several gaps in the current human rights framework applicable to the communities concerned and highlights the framework’s adequacy for the communities concerned through technical legal analysis. It is based on this analysis that the dissertation draws the recommendations for legal scholarship and human rights practice. 1102 See supra Theoretical and Methodological Research Approaches. 1103 For instance, the human rights claim of the community of Orinoco to revitalize the Garifuna language might be legitimate, but the detailed legal analysis demonstrated that international human rights law does not support such claim (see supra Revitalization of the Garifuna Language in the Community of Orinoco). 1104 For instance, the fact that the State is only required to progressively realize the right to work limits the human rights claim of the community of Orinoco to have access to employment opportunities within geographic reach (see supra Freedom and Access to Work Within the Geographical Research of the Community of Orinoco). 258

obligations in the local context, and for State agencies to design and adopt legal and policy measures to protect the communities concerned.

Recommendation 3: Adopting an Inclusive Interpretation of Human Rights Law

An inclusive interpretation of human rights law is based on the understanding that human rights norms are indivisible, interdependent, and interrelated.1105 While legal scholarship no longer disputes the indivisibility, interdependence, and interrelatedness of these rights, it mostly focuses on civil and political rights.1106 Such rights do not fully cover the human rights claims of the communities concerned since these claims also include economic, social, and cultural dimensions. Legal scholars need to adopt an inclusive interpretation of human rights norms in order to account for all aspects of the communities’ human rights claims. Such interpretation further contributes to defining the precise scope of economic, social, and cultural rights, and corresponding State obligations.1107 Since it might entail the legal analysis of several human rights norms, the human rights claims of the communities concerned need to be narrowly defined.

Recommendations for International and Domestic Human Rights Practice

International and domestic human rights practice should follow four primary recommendations to reshape the current legal approach towards the communities concerned.

These recommendations include providing the communities concerned with effective agency in relevant bodies and institutions, taking a flexible approach in defining culture, re-examining the effectiveness of judicial remedies, and raising awareness about structural discrimination and its

1105 See supra Indivisible, Interdependent, and Interrelated Understanding of Human Rights. 1106 Id. 1107 For instance, Chapters 4-5 highlight specific obligations of Colombia and Nicaragua to implement the respective human rights claims of the communities concerned. 259

impact. The recommendations are deduced from the application of the 5A framework in the

Colombian and Nicaraguan domestic legal system and the communities concerned. This framework highlights the deficiencies in the practical legal implementation of the international human rights and national legal systems. All recommendations are directly grounded in U.N. and Inter-American human rights provisions. While they are important for both international and domestic human rights practice, their specific implementation in Colombia and Nicaragua differs.

Recommendation 1: Giving the Communities Concerned Effective Agency in Decision-Making Processes Affecting Them

It is the role of International human rights actors and domestic institutions interacting with the communities concerned to provide them with effective agency in decision-making processes that may affect their rights or interests.1108 This recommendation marks the first step towards a bottom-up approach that integrates the communities’ human rights claims in practice and is therefore essential to reshape the current legal framework applicable to the communities concerned. Notably, it is based on the analysis of the 5A framework regarding land and consultation rights of both communities concerned. This analysis highlights that failure of international human rights framework to reflect the understanding of culture as a way of life.

For the community of Tierrabomba, it denies strong legal protection of their claim to access and protect their traditional land. For the community of Orinoco, it demonstrates that there are no adequate procedures to ensure the community’s participation in the land clearance process. The

1108 This recommendation purposefully does not use the wording of “decision-making processes directly affecting” the communities concerned as the criterion of direct effect has frequently served to limit the scope of consultations with local communities in ways that rendered these consultations meaningless (see DUE PROCESS OF LAW FOUNDATION, RIGHT TO FREE, PRIOR, AND INFORMED CONSULTATION AND CONSENT IN LATIN AMERICA: PROGRESS AND CHALLENGES IN BOLIVIA, BRAZIL, CHILE, COLOMBIA, GUATEMALA, AND PERU (EXECUTIVE SUMMARY) (2015), http://www.dplf.org/sites/default/files/executive_summary_consultation_2015_web_02-17-2016_c.pdf). 260

deficiencies in the legal protection of the communities’ human rights claims result in the failure their perspectives and broad understanding of culture to be reflected in the interpretation of international human rights and domestic legal norms.

Effective agency requires the communities concerned to have space to organize, express their perspectives and human rights claims, and ultimately receive adequate and effective legal protection of these claims. In other words, it goes beyond giving the communities concerned a voice in international and domestic mechanisms. It requires these mechanisms to take the communities’ needs and perspectives seriously and effectively address them through laws, conventions, policies, jurisprudence, recommendations, or guidelines. This contributes to the acceptability and adaptability of human rights norms as it renders these norms culturally appropriate for the communities concerned and fitting within the local context. Giving the communities effective agency further serves to shed light on the legal norms and interpretations that contradict and undermine other provisions relevant for the communities. This recommendation strengthens protection and promotion of the communities’ human rights claims and overcome the gap between the reality on the ground and legal practice at the international and domestic levels.

This recommendation is supported by the above-mentioned principle of self- identification, consultation rights established in the indigenous and tribal peoples’ rights scheme, environmental law frameworks, and the right to participation in matters affecting (non- indigenous and non-tribal) communities’ cultural life as enshrined in article 15(1)(a)

ICESCR.1109 The recently adopted declaration on the rights of peasants further supports this recommendation, affirming that States have an obligation to “consult and cooperate in good faith

1109 See supra The Overarching Principle of Self-Identification; Participation and Prior Consultation in Land-Related Matters; Participation Rights of the Indigenous and Tribal Peoples. 261

with peasants and other people working in rural areas through their own representative institutions.”1110 The recommendation’s practical implementation however depends on the context.

At the international level, it requires human rights actors to build a bridge between their practice and the local realities. While the direct participation of the communities concerned in these mechanisms is limited for practical considerations,1111 the mechanisms may account for the perspectives and human rights claims of the communities concerned through different means.

For instance, consulting with local organizations, integrating empirical legal scholarship, or deploying human rights experts to the ground are essential steps to gain an understanding of the local context before issuing recommendations and decisions. In fact, many human rights mechanisms, particularly the U.N. human rights treaty bodies, make on-site visits and consider first-hand reports of civil society when adopting reports or recommendations for a certain country or situation. Other human rights bodies, such as the Inter-American Court, consult with anthropologists in cases involving indigenous or tribal communities.1112 While these steps are crucial to engage the communities concerned in the U.N. and regional human rights practice, they are frequently insufficient to make the international human rights system culturally acceptable for these communities. Local citizens are unlikely to be aware of the international human rights mechanisms available to advocate for and protect their rights. Thus, international human rights practitioners need to raise awareness of these mechanisms among local communities, including the communities concerned, to strengthen the communities’ engagement.

This contributes to increasing the number of complaints and cases brought by these communities,

1110 Article 2(3) UN Declaration on the Rights of Peasants. 1111 In fact, direct participation would frequently exceed the capacity of human rights mechanisms to directly engage with local communities at the different steps of their decision-making processes. 1112 See Saramaka People v. Suriname, supra note 21. 262

ultimately heightening the pressure on governments to comply with the recommendations and decisions adopted by the human rights bodies.

At the domestic level, implementing the recommendation to give the communities concerned effective agency in decision-making processes requires different measures than at the international level. Direct participation and engagement of the communities concerned in the adoption of laws and governmental policies are feasible albeit challenging in practice. Colombia and Nicaragua need to adopt accessible and effective procedural mechanisms that allow the communities concerned to participate in decision-making processes at various levels, most importantly in those affecting their community lives.1113 This is necessary to make international or domestic consultation rights acceptable and adaptable for the communities concerned. The current lack of clearly defined procedures at the domestic level effectively deprives the communities concerned of any consultation and participation right. Such procedures should not limit the communities’ engagement to merely expressing their needs and perspectives. Instead, the communities need to have real influence on the decision-making process, including the opportunity to veto a governmental decision severely limiting their enjoyment of fundamental rights. In practice, community participation and consultation face several challenges, including the questions of who is entitled to consultation, who may act as legitimate representative of a community in the consultation process, and what entity is required to conduct such consultation.1114 The States should take the time necessary to determine these factors together with the communities concerned in order to render the consultations effective. Lastly, it is

1113 See supra Practical Implementation of State Obligations Resulting from International Human Rights Law and the Domestic Framework in the Community of Tierrabomba (Cchapter 4); Practical Implementation of State Obligations Resulting from International Human Rights Law and the Domestic Framework in the Community of Orinoco (Chapter 4). 1114 See DUE PROCESS OF LAW FOUNDATION, supra note 1108. 263

crucial that these participation and consultation mechanisms are not obstructed by overly bureaucratic institutional structures or requirements as the communities concerned lack the necessary resources and technical knowledge to overcome such obstacles.

Recommendation 2: Taking a Flexible Approach Towards “Culture”

Taking a flexible approach towards culture is necessary to fully understand the human rights claims of the communities concerned and design legal and policy measures to effectively protect and promote them. Legal scholarship has—at least partially—accepted a broad concept of culture as a “way of life,” but international and domestic human rights practice have not followed suit. This has instead highlighted folkloric and material aspects of culture.1115 Such restricted understanding of culture has resulted in the unsatisfactory consequence that some

Afro-descendant communities, like the community of Orinoco, enjoy special rights as indigenous or tribal community while others, such as the community of Tierrabomba, do not benefit from these rights despite raising similar human rights claims.1116 These consequences become particularly evident in the legal analysis of the land- and employment-related claims of the communities concerned. Both communities claim certain collective rights to the territory that they have inhabited for centuries, but only the community of Orinoco is afforded legal protection under international human rights law because it displays folkloric features that the community of

Tierrabomba lacks. While this human rights framework protects the claim of the community of

Orinoco to use their traditional land without interference of third parties, it limits the community’s claim to have employment opportunities within geographical reach, restricting the economic activities protected by the law to—to put it simply—fishing and farming with

1115 See supra Cultural Rights as “Empowering Rights” for the Communities Concerned. 1116 See supra Tribal Peoples. 264

traditional tools. This folkloric interpretation of culture does not correspond to the understanding of culture as a way of life that the communities concerned raise.

International human rights law must reinterpret culture as a specific way of life that the communities concerned can freely determine. This revised understanding of culture will remedy the contradicting interpretation of different human rights norms in the context of the communities concerned. It will also increase the availability and adaptability of these human rights norms in the communities and offer them adequate legal protection while respecting their unique way of life. It is therefore not necessary to expand the existing indigenous and tribal peoples’ rights framework on both communities concerned to offer them adequate legal protection for their land- and employment-related human rights claims. Instead, this recommendation suggests international and domestic human rights actors adopt the understanding of cultural as a way of life as promoted in General Comment No. 21 on article

15(1)(a) ICESCR and as discussed in legal scholarship.1117

Providing the communities concerned with effective agency in decision-making processes affecting them is the first step towards adopting a flexible concept of “culture” since it brings the communities’ understanding of culture to the attention of State agencies, international human rights bodies, and other relevant stakeholders engaged with the communities concerned.

The increased use of empirical research in legal studies will further inform the practice of international and domestic actors dealing with the legal protection of the communities concerned. Thus, listening to the voice of the communities concerned is essential to incorporate a broader understanding of culture in international and domestic human rights practice.

Recommendation 3: Ensuring the Effectiveness of Judicial Remedies

1117 See supra Cultural Rights as “Empowering Rights” for the Communities Concerned. 265

The international and domestic human rights practice needs to reexamine the design and local implementation of the internationally recognized right to an effective remedy and take measures to ensure that judicial remedies achieve the purpose for which they are designed. In particular, these remedies should be effective and easily accessible for the communities concerned. The judicial remedies available to the communities concerned are effective when they allow the communities to receive enforcement of their fundamental rights, remedy violations of such rights, and hold perpetrators accountable. They are easily accessible when the communities concerned can invoke these remedies without excessive financial, administrative, or other burdens. Such effective and accessible remedies serve to restore the justice system in the communities concerned and the communities’ trust in government institutions. While international human rights norms and the Inter-American human rights system have confirmed these principles of effective remedies in their settled jurisprudence,1118 they are not reflected in domestic legal design on judicial remedies in both Colombia and Nicaragua.

This recommendation is based on the analysis of the 5A framework in the domestic legal systems and the communities concerned. Most human rights claims and the Colombian and

Nicaraguan legal frameworks do not provide accountability mechanisms to implement the legal provisions, or the communities concerned cannot effectively access these avenues.1119 This leaves the communities susceptible to human rights abuses, irrespective of the legal protection afforded to their claims. For instance, the community of Tierrabomba enjoys the right to adequate remuneration and safe working conditions under both international and domestic legal frameworks, but the domestic laws lack any enforcement mechanisms, rendering this right

1118 See supra Right to an Effective Remedy. 1119 See supra Chapters 4-6. 266

ineffective in practice.1120 Similarly, the community of Orinoco has the right to unhindered use and protection of their traditional land and natural resources, and the domestic law mandates community institutions of whita and síndico to handle land disputes but deprives them of any enforcement authority.

The measures necessary to implement this recommendation vary among the international and domestic levels. At the international level, human rights mechanisms need to move away from endorsing the domestic amparo action as an effective remedy. They need to analyze the aspects contributing to the ineffectiveness of a judicial remedy, including the procedural steps to invoke the judicial remedy, the type of remedy that the claimants can obtain through a judgment, and structural factors hindering implementation on the ground. Such analysis is essential to shed light on the lack of implementation of the right to an effective remedy in the communities concerned and provides the basis for adopting the necessary recommendations and decisions to improve the effectiveness of judicial remedies. Domestically, the design and implementation of effective judicial remedies are context specific. In Colombia, the community of Tierrabomba is prevented from enjoying effective judicial remedies primarily because the outcome of amparo actions are frequently insufficient to remedy the legal violations, government authorities lack political will to enforce judicial decisions in the community, and the community fears retaliation against their leaders if they decide to initiate legal proceedings.1121 In Nicaragua, the community of Orinoco struggles to judicially claim their rights since an amparo action is practically unavailable due to overly bureaucratic procedures, and Sate institutions are unwilling to implement the law in the community.1122 Thus, ensuring the effectiveness of judicial remedies

1120 See supra The Rights to Adequate Remuneration and Safe Working Conditions in Colombia. 1121 See infra annex I. 1122 See supra Practical Implementation of the State Obligations Resulting from International Human Rights Law and the Domestic Framework in the Communities Concerned (Chapter 5). 267

requires Colombia and Nicaragua to tackle these obstacles, particularly by modifying amparo actions to comply with international human rights standards on judicial protection.1123 Further,

States need to hold their agents accountable for failing to enforce the domestic laws in the communities concerned as mandated by the international human rights and domestic legal norms on equality before the law. Lastly, they should investigate, prosecute, and punish those responsible for intimidating and committing crimes against community leaders under judicial protection norms and potential violations of the right to life.

Recommendation 4: Raising Awareness of Structural Racism and Its Impact on the Ground

Raising awareness of structural racism and its impact in the communities concerned is essential to educate government officials, the general public, and other human rights mechanisms, about the communities’ living conditions, fundamental rights, and the racial discrimination these communities suffer. Educating State agencies and the larger society about racism and its effect on the communities generates greater awareness of the historical exclusion of the communities concerned and their human rights claims. Such awareness increases trust between the communities and State institutions and narrows the gap between different racial and cultural population groups. As a result, State agencies will have greater political will to implement the law and judicial decisions in the communities concerned. Both State institutions and the general public will have increased awareness of racially biased approaches and policies towards these communities. Lastly, raising awareness of the practices and impact of structural racism among various human rights mechanisms will allow these mechanisms to consider structural factors of discrimination and their effect on the ground in international and domestic

1123 See supra Chapter 5. 268

human rights practices. Thus, this recommendation directly contributes to countering structural racism.

This recommendation is derived from the right to ensure equal application of the law in both communities concerned.1124 The analysis of the 5A framework regarding access to criminal justice demonstrates that there is a need to increase the right’s accessibility because Colombia and Nicaragua have so far failed to initiate any criminal investigations in the communities.1125

Moreover, the recommendation is based on article 7 CERD, which requires States “to [combat] the prejudices which lead to racial discrimination and to [promote] understanding, tolerance and friendship among nations and racial or ethnical groups” through “teaching, education, culture, and information.”1126 International and domestic human rights practice may adopt different strategies to implement this recommendation. For instance, international human rights mechanisms should integrate considerations of structural discrimination in their recommendations and judicial decisions, urging States to take educational and other measures to combat racism in institutions and practice. This strengthens the human rights approach against structural discrimination and encouraging the communities concerned to bring relevant claims at the international level. Domestically, State institutions should conduct awareness raising campaigns targeted at government officials and the wider public, promoting tolerance and understanding among different racial groups and highlighting historical marginalization and racial biases towards the communities concerned. Lastly, considerations of structural racism and its impact on the ground should become an integral part of State policies and judicial decisions targeted at the communities concerned.

1124 See supra Chapter 5. 1125 See supra Application to Colombia and Nicaragua. 1126 Article 7 CERD. 269

Lessons Learned for Similarly Situated Afro-Descendant and Other Communities

The above-described set of recommendations for legal scholarship and international and domestic human rights practice is directly tailored to the communities concerned as it is based on on-site field research and legal analysis of their human rights claims. Such limited scope of application of the set of recommendations raises the question of whether these recommendations enjoy relevance or validity beyond the narrow context of these communities. While the economic, social, and cultural background of each community, whether Afro-descendant, indigenous, or other, are unique, the recommendations are at least partially applicable to communities other than the communities concerned.

The set of recommendations is particularly relevant for other economically, socially, and culturally marginalized Afro-descendant communities in Latin America. Many rural Afro- descendant communities across Latin America face realities similar to the communities concerned as they struggle to obtain land ownership rights, prevent settlers and private corporation from occupying their lands, secure economic stability through dignified work, access health care, access to educational institutions, preserving their communal way of life, or ensure these rights are enforced.1127 Although these challenges might vary slightly depending on the circumstances of a specific Afro-descendant community, the resulting human rights claims, legal analysis, and set of recommendations are likely to be similar to those of the communities concerned. In particular, most rural Afro-descendant communities will not qualify as indigenous or tribal under international human rights law, and like the community of Tierrabomba, will not benefit from the tribal rights framework despite their similar human rights claims. As a result, the human rights law’s focus on material and folkloric aspects of culture negatively affects the

1127 THE WORLD BANK, supra note 14, at 20. 270

legal protection and promotion of their claims, while structural racism and State neglect impede the effective implementation of the law and judicial decisions on the ground.

Like rural Afro-descendant communities, Latin America’s indigenous communities in rural areas face struggles related to the enjoyment of land ownership and natural resources, access to justice and other government services, and the preservation of their communal way of life. While indigenous peoples’ historical, political, economic, and social backgrounds differ from the ones of Afro-descendant communities, they have both been marginalized in society and claim a communal lifestyle that distinguishes them, albeit in different ways, from the majority of

Latin Americans.1128 Therefore, many indigenous communities in Latin America raise human rights claims that are comparable to those of the communities concerned. These groups benefit from the indigenous rights framework established in the U.N. and Inter-American human rights systems, which offers more comprehensive legal protection of their land and cultural claims.

This most likely results in different legal analysis and recommendations for legal scholarship and human rights practice. However, where human rights claims exceed the narrow folkloric understanding of culture in international human rights law, the legal protection of human rights claims suffers the limitations shown at by the communities concerned. For such human rights claims, the set of recommendations established for the communities concerned, particularly the recommendation to incorporate the understanding of cultural as “way of life” into cultural human rights norms, remains valid.

To examine the relevance of the set of recommendations for other Afro-descendant and indigenous communities, there is a need to conduct a technical analysis of the relevant domestic legal frameworks and gather empirical data from these communities. This information will

1128 Id. at 29. 271

reveal the interactions of international and domestic human rights laws, their effectiveness, implementation on the ground, and the existence of contradicting legal norms and interpretations.

Such analysis will serve to inform the implementation of the set of recommendations in the local context.

Outside the Latin American context, the set of recommendations is only partially applicable. The foundation for these recommendations, namely the legal analysis of the human rights claims of the communities concerned, is heavily based on the Inter-American human rights system and its interpretation of cultural and other rights. Nonetheless, several findings of this legal analysis and recommendations are applicable to communities across the world who claim a broad understanding of culture that is different from the majority population. For instance, the narrow interpretation of cultural rights in U.N. human rights law, particularly article 27 ICCPR and article 15(1)(a) ICESCR, limits the legal protection of claims to those related to folkloric and material aspects. To overcome the communities’ marginalization, effective agency in decision- making processes and awareness about their exclusion are important tools for empowerment.

For communities that are marginalized due to socio-economic conditions or conflict but do not claim to be culturally distinct, these recommendations’ applicability is limited. While the recommendations urge human rights actors to effectively include these communities in decision- making processes and raise awareness about the communities’ marginalization, further research is necessary to determine the best practices to implement these recommendations and to highlight their specific needs and perspectives.

These set of recommendations for legal scholarship and international and domestic human rights practice contains important recommendations that serve to empower and overcome the current marginalization of the communities concerned and similarly situated communities,

272

particularly those claiming a communal way of life and cultural characteristics different to the larger society. These recommendations encourage legal scholars to rethink their current interpretation of cultural rights claims and rural communities. It also shifts the current international and domestic human rights practice on rural (Afro-descendant) communities by moving towards a bottom-up approach that places the needs and perspectives of the communities at the center. Thus, these set of recommendations provides a crucial starting point for further research into marginalized communities in different contexts and for stronger legal protection.

273

ANNEX A: LAND RIGHT INDICATORS FOR THE COMMUNITY OF TIERRABOMBA

Selected Core State Main Legal Sources Structural Indicators Process Indicators Outcome Indicators Obligations1129

Right to Access the Traditional Lands through Demarcation and Collective Land Titling

1. Colombia has the Article 60 of the Colombian Are there adequate State Does the community have Has the number of transfers obligation to refrain from Constitution and articles 17 institutions to oversee the the possibility to of private ownership rights to conferring private ownership and 18 of Law 70 of 1993 illegal transfer of private immediately intervene with third parties decreased since over the community’s land to ownership rights over or contest the rights transfer? the establishment of the State third parties, such as (phrased as individual right community land? institutions? investors from the tourist in article XXIII ADHR, Analysis: Yes. The industry. article 21 ACHR, article 25 Analysis: Yes. The Notary community does not have Analysis: No. The UDHR, and article 11 Public issues a public deed direct participation rights in community members ICESCR). for the sale contract of the the real estate transfers, and unanimously state that in real estate, which is then the community is generally recent years the municipality registered with the Office of not aware of such transfers of Cartagena has the Registry of Public until the third parties are increasingly transferred Documents (ORPD). The physically present on their property ownership to third Supervisory Authority of the lands. However, the parties. Notary and Registry community may request monitors the acts of the before the courts to prohibit ORPD and initiates the ORPD to transfer any inspections in case of illegal real estate ownership over registrations.1130 The their land until the land community members have the dispute is settled with the possibility to take municipality of administrative recourse Cartagena.1132

1129 Colombia’s obligations listed below are based on the relevant State obligations resulting from international human rights law and adjusted to incorporate the corresponding norms of the domestic law (see supra Chapter 4). This approach is compatible with article 29(b) ACHR, which mandates the interpretation of rights enshrined in ACHR in light of domestic law if the latter is more favorable to the right-holders (see supra Context-Specific Interpretation of Cultural Human Rights). 1130 Article 96-97 L. 1579/12, octubre 1, 2012, D.O. [hereinafter Law 1579 of 2012]; article 11(14) D. 2723/14, diciembre 29, 2014, D.O. 1132 Article 32 Law 1579 of 2012. 274

against unlawful registrations.1131

2. Colombia is required to Article 60 of the Colombian Are there State institutions Can the judicial authorities Have State institutions been prevent third parties, in Constitution and articles 17 that are competent to prohibit order the relocation of third able to effectively stop third particular investors from the and 18 of Law 70 of 1993 the development of third- parties who have developed parties from conducting tourist industry, from party activities on the projects on territory claimed activities on the territory of developing business projects (phrased as individual right communal land? by Afro-descendant the community of on the traditional land of the in article XXIII ADHR, communities? Tierrabomba? community until the land article 21 ACHR, article 25 Yes. The community as well rights are clarified. UDHR, and article 11 as the municipality of Article 18 of Law 70 of 1993 No. The development of the ICESCR). Cartagena may request a provides the community with past years demonstrates that judicial prohibition of the possibility of filing action third parties have registering land ownership of nullity against land increasingly developed transfers (see above). adjudications to third tourist projects on the lands Further, all third-party parties, which would result claimed by the community of activities require the consent in their expulsion from the Tierrabomba. For instance, of the municipality since the community territory. non-community members municipality currently holds Further, the Constitutional have constructed houses in the ownership rights over the Court of Colombia has the community and hotels on community’s land. Thus, repeatedly ordered the the community’s beach, absent any agreement expulsion of third parties Playa Linda. between the municipality and from lands over which Afro- third parties, the descendant communities municipality may request the already have collective land third parties’ expulsion from title.1134 the land.1133

Right to Protect the Traditional Land from Erosion

3. Colombia has the Article 26 ACHR (right to a Are there any State Has the community the Have the competent State obligation to take immediate healthy environment), article institutions responsible for possibility to take legal institutions complied with

1131 Article 60 Law 1579 of 2012. 1133 Land usurpation is prohibited in article 261 Penal Code (Colom.). However, the community of Tierrabomba cannot denounce acts of land usurpation as it is not the legal owner of the land. 1134 E.g., C.C., julio 2, 2015, Sentencia T-414/15. 275

measures of coastal 79 of the Colombian taking emergency measures action against the relevant judicial orders to implement protection, such as Constitution, and articles to mitigate the consequences State institutions for failure emergency measures? constructing emergency 31(19), 31(20), and 31(23) of of the continuous erosion? to take immediate coastal breakwaters, so that the Law 99 of 1993 protection measures? The municipality of traditional lands and Yes. According to the official Cartagena began buildings that are at the (phrased as individual right Plan of Risk Management of Yes. Upon legal action of the constructing emergency highest risk of being eroded in article XXIII ADHR, the Department of Bolivar, Ombudsman, the Fourth breakwaters to protect the remain intact. article 21 ACHR, article 11 the municipality of Administrative Judge of community’s coast from Protocol of San Salvador, Cartagena bears the Cartagena ordered the erosion in July 2017, thus article 25 UDHR, and principle responsibility for municipality of Cartagena to more than eight months after articles 6, 11, and 15(1)(a) implementing immediate begin constructing protection the judicial order. The first ICESCR). measures to protect the measures against the erosion breakwaters that were coastal areas from erosion. within ten days of constructed aimed at Several governmental notification of the judgment, protecting the community’s entities support the which was on October 28, wharf. Breakwaters municipality in this task.1135 2016.1136 These measures protecting the cemetery are should particularly aim at still not in place. protecting the community’s cemetery from further erosion.

4. Colombia is required to Article 26 ACHR (right to a Are there State institutions Have the competent State Do the State institutions consult with the community healthy environment), article that are competent to conduct institutions conducted consider the contributions of Tierrabomba and allow 79 of the Colombian consultation procedures with consultations with the that the community has made them to effectively Constitution, and articles the community of community of Tierrabomba in the consultation process, participate in the decision- 31(3) and 31(21) of Law 99 Tierrabomba? to decide on the design and when implementing the making process concerning of 1993 execution of the emergency emergency coastal protection the immediate measures of Yes. The municipality of coastal protection measures? measures? coastal protection. (phrased as individual right Cartagena as the principally for cultural and religious responsible entity for No. When the municipality of No. The community had implementing the emergency Cartagena began repeatedly and on their own measures is also in charge of constructing the emergency initiative informed the

1135 GOBERNACIÓN DEL DEPARTAMENTO DE BOLÍVAR, PLAN DEPARTAMENTAL DE GESTIÓN DE RIESGO DE BOLÍVAR [DEPARTMENT PLAN OF RISK MANAGEMENT OF BOLÍVAR] 95 (2012), https://repositorio.gestiondelriesgo.gov.co/bitstream/handle/20.500.11762/395/PMGR%20Bolivar%20.pdf?sequence=1&isAllowed=y (stating that the supporting governmental entities are the National Unity of Risk Management (Unidad Nacional para la Gestión del Riesgo), the Ministry of Environment and Sustainable Development (Ministerio de Ambiente y Desarrollo Sostenible), the Institute of Marine and Coastal Investigations “José Benito Vives de Andreis” (Instituto de Investigaciones Marinas y Costeras “José Benito Vives de Andreis”), and the Regional Autonomous Corporation of Cartagena). 1136 Martelo Tirado, supra note 365. 276

places in article 15(1)(a) conducting the consultations breakwaters the community municipality of Cartagena ICESCR). with the community.1137 did not know how they would about the course of the water be designed or how the currents and how it emergency plan would be considered that the executed. breakwaters should be constructed to ensure the most effective coastal protection. The current emergency measures do however not reflect the contributions of the community, and the municipality failed to state reasons for not considering the community’s input.

State Obligations of Main Legal Sources Structural Indicators Progress Indicators Outcome Indicators Progressive Realization

Right to Access the Traditional Lands through Demarcation and Collective Land Titling

5. Colombia has the Articles 7, 60, and 63 of the Are there State institutions to Is the community aware of What specific measures has obligation to respect the Colombian Constitution, implement the land rights of their right to remain on their Colombia undertaken to community’s free choice to Transitory article 55 of the the community of traditional land to ensure respect the community’s remain on their traditional Colombian Constitution, Tierrabomba with respect to their economic and cultural choice to remain on their land, which grants the Chapter III of Law 70 of the community’s own existence? traditional land? community direct access to 1993, Decree 1745 of 1995 values? the sea and enables them to Partially. The community National Agency of shares a strong awareness Territories has examined the

1137 Cf. C.C., mayo 22, 2013, Sentencia T-300/13 (denying the right to prior consultation of two Afro-descendant communities in the case of a phytosanitary emergency because the competent State institution lawfully declared the state of emergency and the emergency measures did not negatively affect the customs and life of the community). The situation of the community of Tierrabomba is however different to this case because the erosion heavily threatens the community’s stay on the island and thus negatively affects its customary lifestyle. 277

maintain their economic and (phrased as individual right Yes. The National Agency of for right to collective land community’s collective land cultural existence. in article XXIII ADHR, Territories, which is title and remain on the titling request and article 21 ACHR, article 25 mandated to adjudicate the island. However, state agents determined in the land UDHR, and article 11 collective land titling request have allegedly tried to clarification process that the ICESCR). of Afro-descendants convince community municipality of Cartagena is communities, coordinates members to sell the property the legal owner of the with the Afro-descendants’ and move to the city of community’s land. Thus, community councils Cartagena. Community National Agency of throughout the land titling members lament that those Territories rejected the land process.1138 The Afro- who sold the property were titling request in its final descendant communities not aware of the importance resolution. It is now within themselves have of their traditional territory, the discretion of the participatory rights since deceived by the sales price of municipality of Cartagena to they suggest the area to be their property.1139 transfer the land ownership demarcated. They are also right to the community. Until party to the opposition today, the municipality has procedure on the land rights however denied doing so and clarification. has instead allowed third parties to settle and develop tourist projects on the community’s land.

6. Colombia has the Articles 7, 60, and 63 of the Do State institutions Are there procedures and Does the community of obligation to confer Colombian Constitution, competent to issue collective State institutions in place that Tierrabomba have the collective land ownership to Transitory article 55 of the land ownership title exist? have the competence to effective possibility to the community to ensure the Colombian Constitution, clarify land disputes between contest the decision of community’s stay on the Chapter III of Law 70 of Yes. The National Agency of the community of National Agency of island and their cultural 1993, Decree 1745 of 1995 Territories is competent to Tierrabomba and third Territories rejecting their survival. determine the requests of parties during the land titling collective land titling (phrased as individual right Afro-descendant process? request? to property to ensure communities to obtain economic existence in article collective ownership title The National Agency of The community could have XXIII ADHR, article 21 over their traditional Territories clarifies the brought legal action before land.1140 It determined property rights of third the Administrative Chamber however that the parties over the community’s

1138 Article 26 of D. 2363/15, diciembre 7, 2015, D.O. 1139 Interview with Mirla Aarón Freite, supra note 4. 1140 D. 2363/15, diciembre 7, 2015, D.O. 278

ACHR, article 25 UDHR, municipality of Cartagena land before deciding on the of the Council of State.1141 and article 11 ICESCR). has legal ownership rights collective land titling However, the community did that prevail over the request. not take legal action against community’s territorial the decision for fear of rights. retaliation and assassinations of their leaders. It is aware that Afro-descendant leaders have received death threats and been murdered for advocating for collective land rights.1142

Right to Protect the Traditional Land from Erosion

7. Colombia has the Article 26 ACHR (right to a Do State institutions with the Have State institutions How many areas of the obligation to construct healthy environment), article mandate to develop and elaborated a comprehensive community’s traditional land breakwaters that hinder the 79 of the Colombian oversee long-term plan to protect the coastal have been protected from further erosion of the Constitution, and articles environmental protection line and traditional land of further erosion? community’s traditional land. 31(19), 31(20), and 31(23) of measures exist? the community of Law 99 of 1993 Tierrabomba? The emergency breakwaters The official Plan of Risk that are currently being (phrased as individual right Management of the The municipality of implemented aim to protect in article XXIII ADHR, Department of Bolivar states Cartagena elaborated a the community’s wharf and article 21 ACHR, article 11 that the municipality of master plan for the coastal main entrance point to the Protocol of San Salvador, Cartagena is responsible for protection of Tierrabomba in community. article 25 UDHR, and implementing measures to collaboration with other recover the land and beaches competent state institutions. of the community of Until today, the

1141 Article 16(3) of D. 2663/94, diciembre 7, 1994, D.O. 1142 Interview with Mirla Aarón Freite, supra note 4. For instance, the Afro-descendant community of the River Naya at the Pacific coast has experienced forced disappearances, death threats, and assassinations of its community members in connection with its endeavors to obtain collective land title (Desapariciones, paramilitarismo y fumigaciones en el Naya [Disappearances, Paramilitarism, and Fumigations in the Naya], COMISIÓN INTERECLESIAL DE JUSTICIA Y PAZ (Aug. 6, 2015), https://www.justiciaypazcolombia.com/desapariciones-paramilitarismo-y-fumigaciones-en-el-naya/). Further, the legal representative of the Afro- descendant community of Cano del Oro, which is also located on the island of Tierrabomba, received death threats two days after the community was awarded collective land title (Tras liderar titulación colectiva de terrenos en Tierra Bomba, líder denuncia haber recibido amenazas de muerte [After Leading the Collective Land Titling in Tierrabomba, Leader Has Reportedly Received Death Threats], supra note 353. 279

articles 6, 11, and 15(1)(a) Tierrabomba on the medium implementation of this plan ICESCR). and long term.1143 has however not begun.

Right to Prior Consultation in Land-Related Decision-Making Processes

8. Colombia has the Articles 7, 60, and 63 of the Do clearly defined and Does the community of Does the community of obligation to prevent third Colombian Constitution and transparent procedures to Tierrabomba have the Tierrabomba participate or parties from developing articles 3, 15 and 17 of Law conduct the consultations possibility to judicially otherwise benefit from the business projects, such as 70 of 1993, and with the community of exercise their right to prior third-party activities on their hotels and other tourist jurisprudence of the Tierrabomba and private consultation in case of territory? activities, on the Colombian Constitutional parties exist? planned third party activities community’s traditional land Court on prior consultation on their traditional lands? The third parties with without previously referring to ILO Convention Upon order of the business projects on the consulting with the No. 169 and case law of the Constitutional Court, the The right to prior community’s land, community. Inter-American Court of Ministry of Interior adopted consultation is a fundamental particularly the hotels, do Human Rights a manual on the procedural right and thus subject to the not employ, collaborate or steps of prior consultations amparo action.1147 This right share profits with the (phrased as individual right with Afro-Colombian does not depend on the community. These projects in article XXIII ADHR, communities.1144 However, question of whether the are exclusively operated by article 21 ACHR, article 25 the manual only defines the community possesses a non-community members. UDHR, and article 11 general consultation collective or other land title. ICESCR). principles,1145 and attempts of regulating the right to prior consultation in details have failed so far.1146

1143 GOBERNACIÓN DEL DEPARTAMENTO DE BOLÍVAR, supra note 1135, at 95; see also supra State obligation no. 4. 1144 MINISTERIO DEL INTERIOR DE COLOMBIA, PROTOCOLO DE CONSULTA PREVIA – CUMPLIMIENTO SENTENCIA T-576 DE 2014 [PROTOCOL ON PRIOR CONSULTATION – COMPLIANCE WITH JUDGMENT T-576 OF 2014] (2015), http://dacn.mininterior.gov.co/sites/default/files/protocolo_consulta_previa_comunidades_negras.pdf. Prior consultations with the community of Tierrabomba would involve, in particular, the community council, Directorate for Affairs of Black, Afro-Colombian, Raizales, and Palenquera Communities of the Ministry of Interior and Justice (“Dirección de Asuntos para comunidades negras, afrocolombianas, raizales y palenqueras”), Public Ministry (including the Ombudsman and Attorney General), municipality of Cartagena, and third parties planning to operate a business on the community land (id. at 6-7). 1145 Id. at p. 3-4. 1146 See Las comunidades bloquean la reglamentación de las consultas previas [The Communities Block the Regulation of the Prior Consultations], PORTAFOLIO (Apr. 22, 2018, 08:16 PM), https://www.portafolio.co/economia/las-comunidades-bloquean-la-reglamentacion-de-las-consultas-516431. 1147 E.g., C.C., agosto 4, 2014, Sentencia T-576/14. 280

9. Colombia is obliged to Article 26 ACHR (right to a Are there State institutions to Does the State facilitate How many consultation consult with the community healthy environment), monitor the effective community’s participation in procedures have the State and allow their effective articles 7 and 79 of the participation of the the land-related decision- institutions conducted with participation in decision- Colombian Constitution, community in land-related making processes and the the community with regard making processes that affect article 3 and Chapter III of decision-making processes? procedures of prior to third party activities on the traditional land of the Law 70 of 1993, Chapter IV consultation by providing their traditional lands? community, including the of Decree 1745 of 1995, Several State institutions are information about the land titling process and the articles 31(3) and 31(21) of mandated with the task of processes and subject-matter The community asserts that adoption of coastal Law 99 of 1993, and supervising the consultation in a culturally appropriate they have never been protection measures. jurisprudence of the processes. For instance, the way? consulted about any business Colombian Constitutional Observatory of the Prior project, such as tourist Court on prior consultation Consultation of the Ministry Both the Constitutional activities, on their territory. referring to ILO Convention of Interior is responsible for Court and the Ministry of No. 169 and case law of the planning, coordinating, and Interior in its manual affirm Inter-American Court of supervising the consultation that cultural Human Rights process.1148 The Ombudsman appropriateness, which monitors the implementation needs to be determined on a (phrased as individual right of the agreements concluded case-by-case basis, is key to for cultural and religious between the State and the the consultation. places in article 15(1)(a) community as a result of the Consultations need to respect ICESCR). consultation process.1149 the traditions and customs of the community, and the community may object a project if it contradicts their communal laws or cultural conscience.1150

1148 ¿Qué hacemos? [What Do We Do?], DIRECCIÓN DE CONSULTA PREVIA, MINISTERIO DEL INTERIOR DE COLOMBIA, https://consultaprevia.mininterior.gov.co/node/21329 (last visited Aug. 15, 2019). 1149 Defensoría Delegada para Grupos Étnicos: Funciones [Ombudsman for Ethnic Groups: Functions], DEFENSORÍA DEL PUEBLO DE COLOMBIA, http://www.defensoria.gov.co/es/delegadas/12/ (last visited Aug. 15, 2019). 1150 MINISTERIO DEL INTERIOR DE COLOMBIA, supra note 1144, at 3. 281

ANNEX B: LAND RIGHTS INDICATORS OF THE COMMUNITY OF ORINOCO

State Obligations1151 Legal Sources Structural Indicators Process Indicators Outcome Indicators

1. Nicaragua has the Article XXIII ADHR, article Does the official public Do State institutions monitor Has the number of obligation to abstain from 21 ACHR, articles 14(2) and policy of the State promote the development of unlawful unlawfully settling third tolerating or encouraging 15(1) ILO Convention No. respect for the land rights of settlements on the parties decreased in the past third parties to settle and 169, articles 5, 89, and 180 Afro-descendant (and community’s traditional years in the community of engage in agricultural of the Nicaraguan indigenous) communities at lands? Orinoco? activities on the traditional Constitution, article 36 the Atlantic coast? land of the community of Autonomy Law, Chapter XII Analysis: The office of Analysis: The community of Orinoco. The State must of the Communal Property Analysis: The National Control of Attorneys and Orinoco asserts that while refrain from any actions of Law, and jurisprudence of Commission of Demarcation Notary Publics under the third parties have started to its own that interfere with the the Supreme Court of Justice and Titling1152 declared the head of the Supreme Court of settle on their hinterlands in community’s right to use and of Nicaragua. land clearance of the Justice monitors the the past years, the number of enjoy their traditional lands. communal territories of the activities of the notary these unauthorized settlers Pearl Lagoon area as a publics and may determine has recently increased. priority for the years 2017 to that notary publics breached 2020.1153 their competences by transferring communal lands to a third party. The number of sanctions for such breaches is however not publicly available.1154

1151 The chart below is based on the State obligations to respect, protect, and fulfill the right to effectively use and enjoy the traditional land and natural resources as established in international human rights law and to some extent confirmed in the country’s domestic law (see supra Chapter 4). Given the nature of the legal sources, all State obligations are of immediate effect. 1152 In Spanish Comisión Nacional de Demarcación y Titulación [hereinafter CONADETI]. 1153 GOBIERNO DE RECONCILIACIÓN Y UNIDAD NACIONAL DE NICARAGUA, MARCO PRESUPUESTARIO DE MEDIANO PLAZO 2017-2020: COMISIÓN NACIONAL DE DEMARCACIÓN Y TITULACIÓN [BUDGETARY MID-TERM FRAMEWORK 2017-2020: NATIONAL COMMISSION OF DEMARCATION AND TITLING] 493 (2017), http://www.hacienda.gob.ni/documentos/presupuesto/presupuesto-gral.-de-la-republica/presupuesto-2017/anexo-al-par-marco-presupuestario-de-mediano-plazo- 2017-2020/7.-marco-de-gasto-institucional-de-mediano-plazo/instituciones-descentralizadas/F_7_43_MGMP_CONADETI.pdf/view. 1154 See Dirección General de Registros y Control de Abogados y Notarios Públicos [General Office of Registrars and Control of Attorneys and Notary Publics], Poder Judicial de Nicaragua, https://www.poderjudicial.gob.ni/consayn/default2.asp (last visited Aug. 16, 2019). 282

2. Nicaragua has the Article XXIII ADHR, article Do State institutions exist Do the existing State Have the existing State obligation to adopt 21 in conjunction with that are competent to conduct institutions effectively institutions initiated an legislative, administrative, articles 1(1) and 2 ACHR, the investigation, investigate, prosecute, and investigation or prosecution and other appropriate article 18 ILO Convention prosecution, and punishment punish unlawfully intruding or punished a third party measures that allow for the No. 169, and article 241 of of third parties who third parties? unlawfully settling on the investigation, prosecution, the Penal Code of Nicaragua. unlawfully settle on the community’s traditional and punishment of third traditional lands of the The experience of other land? parties unlawfully intruding community Orinoco? indigenous and Afro- in the traditional lands of the descendant communities The community of Orinoco community of Orinoco. The community may demonstrates that the police affirms that the police has Nicaragua is also required to denounce such third parties has generally been reluctant not initiated any investigate, prosecute, and with the police who then to investigate allegations of investigation into the punish State officials who initiates an investigation into unlawfully settling third community’s allegation that tolerate or support the the allegations.1155 It may parties or other acts third parties are unlawfully unlawful intrusions. also denounce the situation committed by them.1156 settling on their hinterlands. with the public prosecutor who refers the case to the local police for investigation. There is a police post within the community of Orinoco.

3. Nicaragua is obligated to Article XXIII ADHR, article Do State institutions exist In which steps of the land What are the implications of adopt legislative, 21 in conjunction with that are competent to conduct clearance process do the the existing legal and administrative, and other articles 1(1) and 2 ACHR, consultations with the existing State institutions institutional framework on necessary measures that and article 6 ILO Convention community to identify third consult with the community consultation and establish the mechanisms and No. 169. parties who unlawfully settle of Orinoco about unlawfully participation rights for the procedures to consult with on their traditional lands? settling third parties, and to community of Orinoco? the community of Orinoco to what extent do they take into identify the unauthorized A State institution that is account the input of the The existing legal and third parties on the explicitly mandated to community? institutional framework does traditional lands. conduct consultation with the not allow the community of community about unlawfully According to the Manual on Orinoco to participate in the settling third parties does not Land Clearance, the land clearance process or exist. According to Decree Interinstitutional identify the unlawfully 15-2013, the Commission identifies the settling third parties. It does

1155 Article 222 of Ley No. 406, 18 Dec. 2001, Código Procesal Penal [Procedural Penal Code of Nicaragua], L.G., 21 and 24 Dec. 2001. 1156 See ALIANZA DE PUEBLOS INDÍGENAS Y AFRODESCENDIENTES DE NICARAGUA, supra note 799. 283

Interinstitutional third parties by conducting a not give consideration to the Commission for the Defense survey in the community and perspective of the community of Mother Earth on gathering the relevant of Orinoco about the non- Indigenous, Afro-descendant information from the third Garifuna members that are Territories of the Caribbean parties. The communities allowed to live on their and Alto Wangkibocay has only have the obligation to lands. however certain vaguely organize communal meetings formulated obligations to for the Commission to cooperate with communal present its findings of the authorities.1157 survey.1158

4. Nicaragua is obligated to Article XXIII ADHR, article Are there State institutions Have the judicial authorities How have the judicial adopt legislative, 21 ACHR, articles 14(2) and that are competent to protect protected the ancestral lands authorities’ decisions administrative, and other 15(1) ILO Convention No. the effective use and and natural resources from influenced the relationship necessary measures that 169, articles 5, 89, and 180 enjoyment of the traditional intrusion of unauthorized between the State institutions grant effective use and of the Nicaraguan lands and natural resources third-party settlers? responsible for the land enjoyment of the ancestral Constitution, article 36 of the of the community of Orinoco clearance process and the lands and natural resources Autonomy Law, Chapters by conducting the land In its decision of October 4, community of Orinoco? of the community of Orinoco VII and XII of the clearance process? 2016, the Supreme Court of without outside interference Communal Property Law, Justice of Nicaragua failed The community members of and in accordance with and jurisprudence of the Decree No. 15-2013 created to protect the ancestral lands Orinoco have not explicitly community’s customs and Supreme Court of Justice of the Interinstitutional of various communities of the commented on the judicial collective land tenure Nicaragua. Commission, which is now Pearl Lagoon area, to which decision, but they are system. responsible for conducting the community of Orinoco skeptical whether the State the land clearance belongs, since it transferred would respect effectively process.1159 This Commission ownership title over seven remove the unlawful third-

1157 In Spanish Comisión Interinstitucional para la defensa de la madre Tierra en territorios indígenas, afrodescendientes del Caribe y Alto Wangkibocay [hereinafter Interinstitutional Commission]; article 4(a) and (b) Decree on the Creation of the Interinstitutional Commission (stating that the Interinstitutional Commission has the functions to “formulate the necessary actions to consolidate the ancestral property rights of indigenous peoples with the operating entities of these territories” and “take measures that fit in the indigenous territories together with the communal and territorial authorities.”). 1158 GEMA LORIO, SANEAMIENTO EN TERRITORIOS INDÍGENAS DE NICARAGUA: UN PROCESO EN CONSTRUCCIÓN DENTRO DE LA AUTONOMÍA REGIONAL: EL CASO DE TUAHKA [LAND CLEARANCE ON INDIGENOUS TERRITORIES OF NICARAGUA: A PENDING PROCESS WITHIN THE REGIONAL AUTONOMY: THE CASE OF TUAHKA] 25- 26 (2014), http://repositorio.uca.edu.ni/2973/1/2014_CI-50_Saneamiento_Territ....pdf. 1159 Decree on the Creation of the Interinstitutional Commission. The Decree requires the Commission to adopt internal regulations, a plan of responsibilities, and an action plan within 60 working days of the entry into force of the Decree, but the Commission has not published such regulations yet (article 9). The Decree further modifies the institutional hierarchy established in the Communal Property Law, which names the CONADETI as the responsible entity to conduct the land clearance process (articles 63 and 68). Unlike the CONADETI, the Interinstitutional Commission is dominated by institutions of the central government and does not include representatives of the communities. The members of the Commission are the Attorney General of the Republic, Supreme Court of Justice, 284

follows the Manual on Land keys from the Pearl Lagoon party settlers given the Clearance, describing the communities to the State of similar intrusions that are steps to clarify the land Nicaragua.1162 This decision occurring in other rights of third parties on raises questions about the communities with collective communal lands.1160 legal security of the land title. According to the Manual, the collective land title of these Interinstitutional communities in cases where Commission initiates the the State has interest in the land clearance process and land, contradicting the land collaborates with multiple rights guarantees of state institutions.1161 international and domestic law.

5. Nicaragua has the Article XXIII ADHR, article Are there adequate State Are the community members Have the competent State obligation to consult with the 21 ACHR, and article 6 ILO institutions in place to aware of their rights to prior institutions conducted any community of Orinoco in Convention No. 169. oversee the implementation consultation? consultations with the accordance with the of the consultation community of Orinoco? community’s customary procedures conducted with The community members norms and values in order to the community of Orinoco? have not explicitly mentioned The State has not formally identify the third parties their right to consultation, and officially consulted with unlawfully settling on the The Nicaraguan legal and but the fact that they have the community to identify the traditional land prior to carry institutional framework does held meetings with the third-party settlers. out their relocation. not explicitly address settlers to urge them to leave consultation procedures the communal land indicates during land clearance. The their wish to participate and community has however the have a say in the land possibility to take clearance process. administrative recourse against actions or inactions of State institutions,

Secretariat of the Caribbean Coast, Commission of Ethnic Affairs of the General Assembly, Ministry of Environment and Natural Resources, Ministry of Family and Children Affairs, Council and Coordination of the Autonomous Governments, national police, and military (article 3 Decree on the Creation of the Interinstitutional Commission). 1160 The Manual on Land Clearance was initially adopted by the CONADETI in 2008 and has been reformed several times (Lorío, supra note 1158, at 27). Even though CONADETI is no longer in charge of the land clearance process, the Interinstitutional Commission continues to use this Manual (id. at 28). The Manual is not publicly available. 1161 Lorío, supra note 1158, at 25-26. 1162 ALIANZA DE PUEBLOS INDÍGENAS Y AFRODESCENDIENTES DE NICARAGUA, supra note 799, at 100-03. 285

including the Interinstitutional Commission.1163 While it may initiate amparo action for the violation of Constitutional rights, it is not clear whether the non-consultation with the community would amount to a breach of the Constitution since the consultation rights are only enshrined in ILO Convention No. 169, whose position within the legal order is ambiguous. 1164

6. Nicaragua has the Article XXIII ADHR, article Do State institutions exist to Are the community members How many third-party obligation to relocate the 21 ACHR, article 18 ILO carry out the relocation and aware of the State’s settlers have the existing third parties unlawfully Convention No. 169, articles possible compensation of obligation to relocate the State institutions effectively settling on the traditional 5, 89, and 180 of the unlawfully settling third unlawfully settling third moved from the traditional land of the community of Nicaraguan Constitution, parties? parties from their traditional lands of the community of Orinoco to an area that does article 36 of the Autonomy land? Orinoco to non-indigenous or not belong to ancestral Law, and Chapter VII of the The Manual on Land non-tribal lands? territory of an indigenous or Communal Property Law. Clearance states that the The community members are tribal people, granting them Interinstitutional aware that the third parties The State, particularly the the necessary judicial Commission collaborates are unlawfully residing and police, has not relocated any guarantees and possibly with the police and military farming on their ancestral unlawfully settling third compensation. to relocate the third parties land, and the State has the parties, failing to enforce the according to the land obligation to remove them. decisions of the community’s clearance resolution. The They have even denounced wihta and síndico.1166 Commission further this situation to the local administers the police in the community. compensation with the Intendancy of Property.1165

1163 Article 60 Communal Property Law. 1164 See supra Participation Rights of Indigenous and Tribal Peoples. 1165 Lorío, supra note 1158, at 26. 1166 Interview with Felix Sinclair, supra note 428. 286

ANNEX C: ACCESS TO JUSTICE INDICATORS FOR THE COMMUNITIES OF TIERRABOMBA AND ORINOCO

Selected State Legal Sources Structural Indicators Process Indicators Outcome Indicators Obligations1167

1. Colombia and Nicaragua Article 26 with article 2(3)(a) Do state institutions exist to Do the communities Have the judicial remedies to are required to incorporate ICCPR; article 8 UDHR; adjudicate the judicial concerned have sufficient demand equal law into their domestic legal article 24 and article 25 with remedies that are in place to knowledge about the enforcement and systems a judicial remedy article 1(1) ACHR; article address cases of selective existence of judicial investigations into the drug- that allows the communities XVIII ADHR. law enforcement? procedures to demand equal related crimes resulted in a concerned to effectively law enforcement and an decrease of drug trafficking demand the equal Colombia: article 86 of the Colombia: In the first investigation into the drug- and sales in the communities enforcement of the law. Colombian Constitution, instance the amparo action related crimes? concerned? Decree 2591 of 1991 to needs to be brought before regulate the amparo action. the competent courts at the Colombia and Nicaragua: Colombia and Nicaragua: place where the violation The communities concerned None of the communities Nicaragua: article 188 of the occurred.1168 The lack knowledge about the concerned have filed an Nicaraguan Constitution; Constitutional Court acts as existence of the amparo amparo action for violation Law No. 49 on the Amparo second instance. The action to demand respect for of their rights to equality and Reform. community of Tierrabomba and protection of their before the law and non- submits the amparo action to Constitutional rights to discrimination because they the courts of Cartagena. equality before the law and consider the national police non-discrimination. They ineffective and unwilling to Nicaragua: The Appellate generally believe that the investigate drug-related Tribunals are competent to national police are the only crimes and enforce the law in receive amparo actions. They authority they can approach. the communities.1170 primarily review the formal requirements of the amparo

1167 The chart below is based on the State obligations to respect, protect, and fulfill the right to effectively use and enjoy the traditional land and natural resources as established in international human rights law and to some extent confirmed in the country’s domestic law (see supra Chapter 5). Given the nature of the legal sources, all State obligations are of immediate effect. 1168 Articles 37 Decree 2591 of 1991 (Colom.). 1170 See De 873 denuncias por racismo en cuatro años, solo se ha dado una condena [Out of 873 Complaints on Racism in Four Years, Only One Conviction Was Issued], EL UNIVERSAL (May 17, 2016, 06:38 PM), https://www.eluniversal.com.co/colombia/de-873-denuncias-por-racismo-en-cuatro-anos-solo-se-ha- dado-una-condena-226399-AQEU332103 (citing the vice-minister for Participation and Equality of the Law, Carmen Inés Vázquez, Colombia, who stated that between 2012 and 2016 only one perpetrator has been punished for discriminatory acts whereas over 800 complaints have been filed. She named two principal reasons for the low conviction rate, namely the lack of courage to denounce a discriminatory act and the difficulty to define such act). 287

action and submit the file to the Supreme Court of Justice. The Supreme Court of Justice then decides on the merits.1169 The community of Orinoco submits the amparo action to the Appellate Tribunal of Bluefields.

2. Colombia and Nicaragua Article 26 with article 2(1) Are there mechanisms in Does jurisprudence on the Are law enforcement bodies are obliged to apply and ICCPR; article 7 UDHR; place to monitor the equal law enforcement and available in the communities enforce the domestic penal article 24 with article 1(1) enforcement of the domestic racial discrimination in Afro- concerned to ensure the codes in the same manner in ACHR; article II ADHR. penal codes in the descendant communities effective application of the the communities concerned communities concerned? exist? domestic penal codes? as in the rest of the countries. Colombia: articles 229-230 of the Colombian Colombia and Nicaragua: Colombia: The Colombia: While the Constitution, article 33 of the Police officers who fail to Constitutional Court has Colombian police does not Law 70 of 1993, National implement the law or developed extensive have a physical outreach Police Code, Law 906 of otherwise fulfill their legal jurisprudence on racial post in the community of 2004 (Law of Penal duties incur disciplinary discrimination and the non- Tierrabomba, it is supposed Procedures). responsibility. discriminatory application of to patrol in the community domestic laws. every day. However, the Nicaragua: article 160 community asserts that the Constitution, article 11(1) of Nicaragua: Jurisprudence police do not make regular the Autonomy Law, article on racial discrimination is patrols. 9(b) of the Equal Treatment not publicly available. Judge Law, Law No. 228 of 1996 Lewin Down of the Supreme Nicaragua: The national (Law of the National Police). Court of Justice asserted that police has an outreach post racial discrimination is no in the community of Orinoco longer an issue in Nicaragua but, according to the since the establishment of the community members, are not Autonomous Atlantic always present. The Regions and the enactment of community further asserts the Equal Treatment Law.1171 that the police are corrupt and collaborate with the

1169 Article 25 Law on the Amparo Action (Nic.). 1171 Interview with Ellen Lewin Downs, Judge at the Supreme Court of Nicaragua, in Managua, Nicar. (June 22, 2017). 288

drug trafficker and seller in the community.

Colombia and Nicaragua: The police are aware of the drug-related crimes occurring in the communities concerned since both communities have repeatedly informed them about the crimes and even launched their own investigations.1172

3. Colombia and Nicaragua Article 26 with article 2(1) Do state institutions exist Do the states monitor racially Have the law enforcement have the obligation to take ICCPR; article 7 UDHR; that are competent to raise motivated acts of the law bodies strengthened their measures to combat racial article 24 with article 1(1) awareness of racial enforcement bodies? relationships with the discrimination and racially ACHR; article II ADHR. discrimination and racially communities concerned as a discriminatory perceptions of discriminatory perceptions Colombia and Nicaragua: result of the states’ measures the law enforcement bodies Colombia: article 13 of the with law enforcement The Attorney General is to combat racially charged to the detriment of the Colombian Constitution, bodies? responsible for follow and perceptions? communities concerned. article 33 of the Law 70 of oversee investigations into 1993, jurisprudence of the Colombia: In 2014, the racially discriminatory or Colombia and Nicaragua: Constitutional Court. Ministry of Interior racist acts, including the acts Both communities concerned established the National committed by law view the national police as Nicaragua: article 27 of the Working Group Against enforcement bodies. While ineffective, biased, and Nicaraguan Constitution, Racism to develop a the Colombian Attorney discriminatory against them. article 9(b) of the Equal “Roadmap for Individual General has reported to have They have no trust in the Treatment Law. and Collective Cases of received over 800 complaints police and believe they have Racism and Discrimination” for racial and other forms of to solve criminal issues in with the objective of raising discrimination between their communities by awareness of racial 2012-2016,1177 figures are themselves. not available for Nicaragua.

1172 It is noteworthy that in both communities concerned the national police are not members of the respective community. 1177 De 873 denuncias por racismo en cuatro años, solo se ha dado una condena [Out of 873 Complaints on Racism in Four Years, Only One Conviction Was Issued], supra note 1170. 289

discrimination amongst public officials.1173

Nicaragua: Nicaragua established the National Commission on the Elimination of Racial Discrimination to monitor the implementation of the CERD and combat racial discrimination, but this Commission does not have sufficient funding and institutional support to effectively fulfill its mandate.1174 National policies generally do not address racial discrimination,1175 and Nicaragua has not published information about training

1173 Comm. on the Elimination of Racial Discrimination, supra note 864, at ¶ 140; Se reunió Mesa Nacional contra el racismo [Meeting of the National Roundtable Against Racism Took Place], EL NUEVO SIGLO (June 20, 2014, 12:00 PM), https://elnuevosiglo.com.co/articulos/6-2014-se-reunio-mesa-nacional- contra-el-racismo. The roadmap is now finalized (Ruta de atención [Roadmap], MINISTERIO DEL INTERIOR DE COLOMBIA, https://dacn.mininterior.gov.co/node/22670 (last visited Apr. 27, 2020)). 1174 E.g., DIRECCIÓN DE RELACIONES INTERNACIONALES PARLAMENTARIAS DE NICARAGUA, ANÁLISIS: CONVENCIÓN INTERNACIONAL SOBRE LA ELIMINACIÓN DE TODAS LAS FORMAS DE DISCRIMINACIÓN RACIAL [ANALYSIS: INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION] (2015), http://legislacion.asamblea.gob.ni/Internacionales.nsf/xsp/.ibmmodres/domino/OpenAttachment/Internacionales.nsf/9008DAB516EE606206257EE70051168C/ Adjuntos/An%C3%A1lisis%20Conv%20%20Int%20%20sobre%20la%20Eliminaci%C3%B3n%20de%20todas%20las%20Formas%20de%20Discriminaci%C3 %B3n%20Racial.pdf 1175 For instance, the National Human Development Plan 2018-2021 does not mention racial discrimination or racism against Afro-descendant (or indigenous) communities (GOBIERNO DE RECONCILIACIÓN Y UNIDAD NACIONAL DE NICARAGUA, EJES DEL PROGRAMA NACIONAL DE DESARROLLO HUMANO 2018-2021 [KEY POINTS OF THE NATIONAL PROGRAM OF HUMAN DEVELOPMENT 2018-2021] (2017)). Similarly, the National Human Development Plan of 2012-2016 mentions only discrimination against women and children (GOBIERNO DE RECONCILIACIÓN Y UNIDAD NACIONAL DE NICARAGUA, PLAN NACIONAL DE DESARROLLO HUMANO 2012-2016 [NATIONAL PLAN OF HUMAN DEVELOPMENT 2012-2016] (2013)). 290

law enforcement bodies on the subject-matter.1176

1176 In 2015, the Attorney General was ordered to take measures to raise awareness of racial and labor discrimination amongst public servant, but follow-up information is not available (see Miranda P. Hulda & Oscar Rodriguez, Fiscala fue suspendida un mes por insulta racista a compañera [Attorney General Was Suspended For One Month For Racist Insult Against Colleague], LA NACIÓN (Feb. 13, 2016), https://www.nacion.com/sucesos/judiciales/fiscala-fue- suspendida-un-mes-por-insulto-racista-a-companera/UGZA2YYHMBEG7E7FNXYXTBZ76A/story/). 291

ANNEX D: LIST OF INTERVIEW PARTNERS

Interviews in Colombia

Name of the Interviewee Community Function or Place of the Interview Date of the Interview Profession of the Interviewee

Mr. Aiden José Salgado Political activist from San Basilio de Coffeeshop in Cartagena July 26, 2017 Palenque

Mr. Alfonso Cassiani Herrera Dean of the Antonia Santos His office at the Antonia Santos July 28, 2017 Educational Institute Educational Institute in Cartagena

Ms. Dimas del Rosario Member of the Proceso de Coffeeshop in Cartagena July 28, 2017 Comunidades Negras (Coalition of Black Communities), professor in ethnoeducation

Mr. Efrain Miranda Cañate Lawyer specialized in land rights of His law firm in Cartagena July 27, 2017 Afro-descendant communities at the Atlantic Coast

Mr. Gelvis Godoy Córdoba Community leader His home in Tierrabomba July 31, 2017

Prof. Gloria Amparo Rodriguez Professor of Law at University of University of Rosario in Botogta Aug. 28, 2017 Rosario

Ms. Jennesis Godoy Community leader Her home in Tierrabomba Aug. 5, 2017

292

Mr. Jhon Jairo Rodríguez Community leader and fisherman His home in Tierrabomba Aug. 3, 2017

Mr. José Javier Moncaris Padilla President of CORPODIS His home in Tierrabomba July 27, 2017 (Corporation for Integral and Sustainable Development in Tierrabomba)

Mr. Juan de Dios Mosquera Director of CIMARRON, a nonprofit Office of CIMARRON in Bogota Aug. 25, 2017 Mosquera organization for Afro-Colombian issues

Mr. Luis Alberto Herrera Cardales Community leader His home in Tierrabomba Aug. 4, 2017

Ms. Luz Patricia Herrera Córdoba Community leader Her home in Tierrabomba July 31, 2017

Ms. Marta Morales President of the community council Her home in Tierrabomba Aug. 5, 2017 of Tierrabomba, Director of the Fundación Dones de Misericordia, and pastor of the Protestant Church

Mr. Michel Martinez Community leader His home in Tierrabomba Aug. 3, 2017

Mr. Miguel Obeso Community leader Community square in San Basilio de July 29, 2017 Palenque

Ms. Mirla Aarón Freite Human rights defender and member Her home in Tierrabomba Aug. 2, 2017 of the community council of Tierrabomba

293

Mr. Noel Enrique Cardales Morales Community leader, expert in cultural His home in Tierrabomba Aug. 3, 2017 heritage

Mr. Pablo Lienardo Barrio Community leader His home in Tierrabomba Aug. 4, 2017

Prof. Ruben Hernandez Cassiani Professor of History and Social University of Cartagena, Cartagena Aug. 1, 2017 Science

Mr. Wilfran Jose Moncaris Padilla Community leader and Vice- His home in Tierrabomba Aug. 5, 2017 President of the community council of Tierrabomba

Interviews in Nicaragua

Name of the Interviewee Community Function or Place of the Interview Date of the Interview Profession of the Interviewee

Mr. Abraham Humphries Teacher for mathematics, physics, Secondary school of Orinoco June 30, 2017 and chemistry at the secondary school of Orinoco

Ms. Bernadine Dixon Director of the Center for Research URACCAN University in Managua July 18, 2017 and Documentation on the Multiethnic Woman (CEIMM) at URACCAN University

294

Ms. Donnelea Gonzalez Flores Owner of a grocery shop and Her home in Orinoco July 5, 2017 guesthouse

Dr. Ellen Lewin Downs Judge at the Supreme Court of Supreme Court of Nicaragua in June 22, 2017 Nicaragua Managua

Ms. Elma Midwife of Orinoco Her home in Orinoco July 6, 2017

Mr. Ernesto Colindres Minister of the Anglican Church His home in Orinoco July 4, 2017

Mr. Felix Sinclair Wihta (community judge) His home in Orinoco July 9, 2017

Mr. Gonzalo Carrion Director of the legal department of Office of the Nicaraguan Center for July 17, 2017 the Centro Nicaragüense de Human Rights in Managua Derechos Humanos (Nicaraguan Center for Human Rights)

Ms. Griega Sambola Brautigam President of the Asociación Afro- Home of Kensy Sambola in Orinoco July 3, 2017 Garífuna Nicaragüense ARGANIC (Nicaraguan Afro-Garifuna Association)

Mr. Jonathan Gonzalez Carpenter His home in Orinoco July 2, 2017

Ms. Kensy Sambola Owner of “Hostal Garifuna” and Her home in Orinoco June 23, 2017 community leader

295

Mr. Kevin Sambola Traditional musician and community His home in Orinoco July 3, 2017 leader

Ms. Leonor Muadanez Assistant of the President of the Regional Council of RAAS in July 14, 2017 Regional Council of RAAS Bluefields

Ms. Letty Sinclair Davis Doctor at the communal health center Communal health center in Orinoco July 5, 2017

Ms. Margueth Morales Health care professional at the Communal health center in Orinoco July 5, 2017 communal health center

Ms. Nancy Gomez Pastor of the Catholic Church and Her home in Orinoco July 4, 2017 treasurer of the communal government of Orinoco

Ms. Rebecca Flores Teacher and director of the Her home in Orinoco June 24, 2017 secondary school in Orinoco

Mr. Rodolpho Chang Entrepreneur from Marshall Point, a Restaurant in Bluefields July 13, 2017 Garifuna community next to Orinoco

Ms. Rosita Davis Frente Sandinista member of the Her home in Orinoco July 6, 2017 municipal council in Pearl Lagoon

Ms. Veronadine Lopez Stephen Community leader and Garifuna Her home in Orinoco June 24, 2017 representative in the Regional Council of RAAS

296

Ms. Victorina Lopez Garifuna language teacher at the Her home in Orinoco July 4, 2017 primary school of Orinoco

297

BIBLIOGRAPHY

Colombia

Constitution

CONSTITUCIÓN POLÍTICA DE COLOMBIA.

Decrees and Statutes

Código Sustantivo del Trabajo [Substantive Labor Code], junio 17, 1951, DIARIO OFICIAL [D.O.].

D. 2591/91, noviembre 19, 1991, D.O.

D. 2663/94, diciembre 7, 1994, D.O.

D. 1745/95, octubre 12, 1995, D.O.

D. 1320/98, julio 13, 1998, D.O.

D. 2723/14, diciembre 29, 2014, D.O.

D. 2362/15, diciembre 7, 2015, D.O.

D. 2363/15, diciembre 7, 2015, D.O.

D. 975/18, junio 7, 2018, D.O.

L. 21/91, marzo 4, 1991, D.O.

L. 70/93, agosto 31, 1993, D.O.

L. 99/93, diciembre 22, 1993, D.O.

L. 142/94, julio 11, 1994, D.O.

L. 599/00, julio 24, 2000, D.O.

L. 685/01, agosto 15, 2001, D.O.

L. 715/01, diciembre 21, 2001, D.O.

L. 906/04, septiembre 1, 2004, D.O.

L. 1010/06, enero 23, 2006, D.O. 298

L. 1015/06, febrero 7, 2006, D.O.

L. 1482/11, diciembre 1, 2011, D.O.

L. 1523/12, abril 24, 2012, D.O.

L. 1579/12, octubre 1, 2012, D.O.

L. 1753/15, junio 9, 2015, D.O.

L. 1801/16, julio 29, 2016, D.O.

L. 1955/19, mayo 25, 2019, D.O.

Case Law

Corte Constitucional [C.C.], julio 29, 1992, Sentencia T-475/92.

C.C., octubre 1, 1992, Sentencia C-543/92.

C.C., mayo 12, 1993, Sentencia T-188/93.

C.C., octubre 27, 1993, Sentencia T-483/93.

C.C., septiembre 10, 1996, Sentencia T-422/96.

C.C., febrero 3, 1997, SU-039/97.

C.C., febrero 14, 2001, Sentencia C-169/01.

C.C., junio 8, 2001, Sentencia T-611/01.

C.C., octubre 17, 2003, Sentencia T-955/03.

C.C., octubre 26, 2005, Sentencia T-1090/05.

C.C., abril 17, 2007, Sentencia T-270/07.

C.C., febrero 4, 2011, Sentencia T-055/11.

C.C., marzo 29, 2011, Sentencia C-220/11.

C.C., abril 12, 2011, Sentencia T-279/11.

C.C., septiembre 27, 2011, Sentencia T-725/11.

299

C.C., octubre 3, 2011, Sentencia T-740/11.

C.C., marzo 30, 2012, Sentencia T-273/12.

C.C., mayo 15, 2012, Sentencia T-348/12.

C.C., agosto 27, 2012, Sentencia T-680/12.

C.C., agosto 28, 2012, Sentencia T-691/12.

C.C., octubre 17, 2012, Sentencia T-823/12.

C.C., mayo 22, 2013, Sentencia T-300/13.

C.C., agosto 4, 2014, Sentencia T-576/14.

C.C., enero 19, 2015, Sentencia T-015/15.

C.C., julio 2, 2015, Sentencia T-414/15.

C.C., agosto 5, 2015, Sentencia T-485/15.

C.C., septiembre 13, 2017, Sentencia T-572/17.

Nicaragua

Constitution

CONSTITUCIÓN POLÍTICA DE LA REPÚBLICA DE NICARAGUA, LA GACETA, DIARIO OFICIAL [L.G.] 9 January 1987, as amended by Ley No. 854, Feb. 8, 2014, Reforma Parcial a la Constitución Política de la República de Nicaragua, L.G. Feb. 18, 2014.

Decrees and Statutes

Decreto Ejecutivo No. 51-2012, 20 Dec. 2012, Reglamento Disciplinario de la Policía Nacional de Nicaragua [Disciplinary Ordenance of the National Police of Nicaragua], L.G., 21 Dec. 2012.

Decreto No. 3584, 9 July 2003, Reglamento a la Ley n°. 28 “Estatuto de Autonomía de las Regiones de la Costa Atlántica de Nicaragua” [Ordinance of Law No. 28 “Autonomy Law of the Atlantic Coast Regions of Nicaragua”], L.G., 2 Oct. 2003.

Decreto No. 5934, 6 May 2010, Decreto de Aprobación del Convenio sobre Pueblos Indígenas y Tribales, 1989 [Decree on the Approval of the Convention Concerning Indigenous and Tribal Peoples, 1989], L.G., 4 June 2010.

300

Decreto No. 15-2013, 5 Mar. 2013, Decreto Creador de la Comisión Interinstitucional para la Defensa de la Madre Tierra en Territorios Indígenas, Afrodescendientes del Caribe y Alto Wangkibocay [Decree on the Creation of the Inter-Institutional Commission for the Defense of the Mother Earth on Indigneous and Afro-Descendant Territories in the Caribbean and Alto Wangkibocay], L.G., 7 Mar. 2013.

Ley No. 28, 7 Sept. 1987, Estatuto de la Autonomía de las Regiones de la Costa Atlántica de Nicaragua [Estatuto de Autonomía] [Law of the Autonomy of the Regions of the Atlantic Coast of Nicaragua], L.G., 30 Oct. 1987.

Ley No. 49, 16 Nov. 1988, Ley de Amparo [Law on the Amparo Action], L.G., 20 Dec. 1988.

Ley No. 162, 22 June 1993, Ley de Uso Oficial de las Lenguas de las Comunidades de la Costa Atlántica de Nicaragua [Ley de Lenguas de la Costa Atlántica] [Law of the Official Use of the Languages of the Communities of the Atlantic Coast of Nicaragua], L.G., 15 July 1996.

Ley No. 228, 31 July 1996, Ley de la Policía Nacional [Law of the National Police], L.G., 28 Aug. 1996.

Ley No. 406, 18 Dec. 2001, Código Procesal Penal [Procedural Penal Code of Nicaragua], L.G., 21 and 24 Dec. 2001.

Ley No. 445, 13 Dec. 2002, Ley de Régimen de Propiedad Comunal de los Pueblos Indígenas y Comunidades Étnicas de las Regiones Autónomas de la Costa Atlántica de Nicaragua y de los Ríos Bocay, Coco, Indio y Maíz [Ley de Propiedad Comunal] [Law of the Communal Property Regime of the Indigenous Peoples and Ethnic Communities of the Autonomous Regions of the Atlantic Coast of Nicaragua and the Rivers Bocay, Coco, Indio, and Maíz], L.G., 23 Jan. 2003.

Ley No. 582, 22 Mar. 2006, Ley General de Educación [General Education Law], L.G., 3 Aug. 2006.

Ley No. 641, 16 Nov. 2007, Código Penal [Penal Code], L.G., 3 Dec. 2007.

Ley No. 757, 2 Mar. 2011, Ley de Trato Digno y Equitativo a Pueblos Indignas y Afrodescendientes [Ley de Trato Digno] [Law of Dignified and Equal Treatment of the Indigenous Peoples and Afro-descendants], L.G., 26 May 2011.

Ley No. 840, 13 June 2013, Ley Especial para el Desarrollo de Infraestructura y Transporte Nicaragüense Atingente al Canal, Zonas de Libre Comercio e Infraestructuras Asociadas [Special Law on the Development of the Nicaraguan Infrastructure and Transportation Related to the Canal, Free Trade Zones, and Related Infrastructures], L.G., 14 June 2013.

301

Ley No. 886, 29 Oct. 2014, Ley de Declaración de la Cultura Garífuna como Patrimonio Cultural Inmaterial de la Nación [Law of the Declaration of the Garifuna Culture as Cultural Immaterial Heritage of the Nation], L.G., 12 Nov. 2014.

Case Law

Sentencia [S.] No. 123, de las 1:30 p.m., 13 June 2000, Sala de lo Constitucional [Supreme Court of Justice], http://calpi.nativeweb.org/sent_123.html.

S. No. 30, de las 8:30 a.m., 10 December 2013, Sala de lo Constitucional, BOLETÍN JUDICIAL [B.J.] [Supreme Court of Justice] p. 934.

International Law

Legal Texts of the U.N. System

Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, June 25, 1998, 2161 U.N.T.S. 447.

Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13.

Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.

Declaration of the United Nations Conference on the Human Environment, June 16, 1972, 11 I.L.M. 1416.

I.L.O. Convention Concerning Indigenous and Tribal Peoples in Independent Countries (I.L.O. No. 169), June 27, 1989, 28 I.L.M. 1382.

I.L.O. Indigenous and Tribal Populations Convention, 1957 (No. 107), June 26, 1957, https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_C ODE:C107. International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 U.N.T.S. 195.

International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.

International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.

Rio Declaration on Environment and Development, June 13, 1992, 31 I.L.M. 874.

U.N. Declaration on the Rights of Indigenous Peoples, U.N. Doc. A/RES/61/295 (Sept. 13, 2007), 46 I.L.M. 1013.

U.N. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities, U.N. Doc. A/RES/47/135 (Dec. 18, 1992), 32 I.L.M. 911.

302

U.N., Educ., Sci. and Cultural Org., Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Oct. 20, 2005, 2440 U.N.T.S. 311.

U.N. G.A. Res. 217(III) A, Universal Declaration of Human Rights (Dec. 10, 1948).

Legal Texts of the Organization of American States

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador,” Nov. 17, 1988, O.A.S.T.S. No. 69.

American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 143.

American Declaration of the Rights and Duties of Man, Res. XXX (May 2, 1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V./II.82, doc. 6, rev. 1 at 17 (1992).

Charter of the Organization of American States, Apr. 30, 1948, O.A.S.T.S. No. 61, 119 U.N.T.S. 47.

Inter-American Convention against Racism, Racial Discrimination, and Related Forms of Intolerance, June 5, 2013, O.A.S.T.S. No. A-68.

Org. of Am. States, G.A. Res. AG/RES. 2888 (XLVI-O/16) (American Declaration on the Rights of Indigenous Peoples) (June 15, 2016).

Legal Texts of Other International Actors

Council of Europe, Framework Convention for the Protection of National Minorities, Feb. 1, 1995, European T.S. No. 157.

Cases of U.N. Human Rights Mechanisms

U.N., Human Rights Comm., Chief Bernard Ominayak and Lubicon Lake Band v. Canada, Communication No. 167/1984, U.N. Doc. CCPR/C/38/D/167/1984 (Mar. 26, 1990).

U.N., Human Rights Comm., Ivan Kitok v. Sweden, Communication No. 197/1985, U.N. Doc. CCPR/C/33/D/197/1985 (July 27, 1988).

Cases of the Inter-American Commission on Human Rights

Mary and Carrie Dann v. United States, Case 11.140, Inter-Am. Comm’n H.R., Report No. 75/02, OEA/Ser.L/V/11.117 Doc. 5 rev. at 960 (2003).

Maya Indigenous Communities of the Toledo District v. Belize, Case 12.053, Inter-Am. Comm’n H.R., Report No. 40/04, OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 727 (2004).

303

Simone André Diniz v. Brazil, Case 12.001, Inter-Am. Comm’n H.R., Report No. 66/06, OEA/Ser.L/V/II.127 Doc. 4 rev. 1 (2006).

Wallace de Almeida v. Brazil, Case 12.440, Inter-Am. Comm’n H.R., Report No. 26/09, OEA/Ser.L/V/II. Doc. 51 rev. 1 (2009).

Advisory Opinions of the Inter-American Court of Human Rights

Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and (8) American Convention on Human Rights), Advisory Opinion OC-9/87, Inter-Am. Ct. H.R. (ser. A) No. 9 (Oct. 6, 1987).

Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No. 18 (Sept. 17, 2003).

Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, Advisory Opinion OC-21/14, Inter-Am. Ct. H.R. (ser. A) No. 21 (Aug. 19, 2004).

The Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity – Interpretation and Scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/17, Inter-Am. Ct. H.R. (ser. A) No. 23 (Nov. 15, 2017).

The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, Inter-Am. Ct. H.R. (ser. A) No. 16 (Oct. 1, 1999).

Cases of the Inter-American Court of Human Rights

Acevedo Buendía et al. (“Discharged and Retired Employees of the Comptroller”) v. Peru, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 198 (July 1, 2009).

Acosta Calderon v. Ecuador, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 129 (June 24, 2005).

Community Garifuna Punta Piedra and its Members v. Honduras, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 304 (Oct. 8, 2015).

Community Garifuna Triunfo de la Cruz and its Members v. Honduras, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 305 (Oct. 8, 2015).

Cuscul Pivaral et al. v. Guatemala, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 359 (Aug. 23, 2018).

304

González et al. (“Cotton Field”) v. Mexico, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 205 (Nov. 16, 2009).

Hacienda Brasil Verde Workers v. Brazil, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 318 (Oct. 20, 2016).

Kichwa Indigenous People of Sarayaku v. Ecuador, Merits and Reparations, Judgment, Inter- Am. Ct. H.R. (ser. C) No. 245 (June 27, 2012).

Lagos del Campo v. Peru, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 340 (Aug. 31, 2017).

Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 79 (Aug. 31, 2001).

Moiwana Village v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 124 (June 15, 2005).

Nadege Dorzema et al. v. Dominican Republic, Merits, Reparations, and Costs, Judgment, Inter- Am. Ct. H.R. (ser. C) No. 251 (Oct. 24, 2012).

Pueblo Bello Massacre v. Colombia, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 140 (Jan. 31, 2006).

Plan de Sánchez Massacre v. Guatemala, Reparations, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 116 (Nov. 19, 2004).

Salvador Chiriboga v. Ecuador, Preliminary Objections and Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 179 (May 6, 2008).

Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 172 (Nov. 28, 2007).

Sawhoyamaxa Indigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 146 (March 29, 2006).

Velasquez Rodriguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4 (July 29, 1988).

Xákmok Kásek Indigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 214 (Aug. 24, 2010).

Xucuru Indigenous People and its Members v. Brazil, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 346 (Feb. 5, 2017).

305

Yakye Axa Indigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 125 (June 17, 2005).

Yatama v. Nicaragua, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter- Am. Ct. H.R. (ser. C) No. 127 (June 23, 2005).

Documents of International Organizations

Documents of the U.N.

Anaya, James (Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples), Rep. on the Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, UN Doc. A/HRC/12/34 (July 15, 2009).

CAPOTORTI, FRANCESCO, STUDY ON THE RIGHTS OF PERSONS BELONGING TO ETHNIC, RELIGIOUS AND LINGUISTIC MINORITIES, U.N. Doc. E/CN.4/Sub.2/384, U.N. Sales No. E.78XIV.1 (1979).

Commission on Human Rights, Towards a Comprehensive Programme for the Prevention of Discrimination and Protection of Minorities, Including Proposals for the Examination of Thematic Issues Relating to Racism, Xenophobia, Minorities and Migrant Workers: Some Suggestions, U.N. Doc. E/CN.4/Sub.2/1996/30 (July 25, 1996).

Commission on Human Rights, Note Verbale Dated 5 December 1986 from the Permanent Mission of the Netherlands to the United Nations Office at Geneva Addressed to the Centre for Human Rights (“Limburg Principles”), U.N. Doc. E/CN.4/1987/17 (Jan. 8, 1987).

Commission on Human Rights Res. 2002/68 (April 25, 2002).

Comm. on Econ., Soc. & Cultural Rights, CESCR General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), U.N. Doc. E/1991/23 (Dec. 14, 1990).

Comm. on Econ., Soc. & Cultural Rights, General comment No. 4: The Right to Adequate Housing (Art. 11 (1) of the Covenant), U.N. Doc. E/1992/23 (Dec. 13, 1991).

Comm. on Econ., Soc. & Cultural Rights, General Comment No. 12: The Right to Adequate Food (Art. 11), U.N. Doc. E/C.12/1999/5 (May 12, 1999).

Comm. on Econ., Soc. & Cultural Rights, CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000).

Comm. on Econ., Soc. & Cultural Rights, General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant), U.N. Doc. E/C.12/2002/11 (Jan. 20, 2003). 306

Comm. on Econ., Soc. & Cultural Rights, General Comment No. 18: The Right to Work (Art. 6 of the Covenant), U.N. Doc. E/C.12/GC/18 (Feb. 6, 2006).

Comm. on Econ., Soc. & Cultural Rights, General Comment No. 19: The Right to Social Security (Art. 9), U.N. Doc. E/C.12/GC/19 (Feb. 4, 2008).

Comm. on Econ., Soc. & Cultural Rights, General Comment No. 21: Right of Everyone to Take Part in Cultural Life (Art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), U.N. Doc. E/C.12/GC/21 (Dec. 21, 2009).

Comm. on Econ., Soc. & Cultural Rights, General Comment No. 22 on the Right to Sexual and Reproductive Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), U.N. Doc. E/C.12/GC/22 (May 2, 2016).

Comm. on Econ., Soc. & Cultural Rights, General Comment No. 23 (2016) on the Right to Just and Favourable Conditions of Work (Article 7 of the International Covenant on Economic, Social and Cultural Rights), U.N. Doc. E/C.12/GC/23 (April 27, 2016).

Comm. on Econ., Soc. & Cultural Rights, Guidelines on Treaty-Specific Documents to Be Submitted by States Parties Under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, U.N. Doc. E/C.12/2008/2 (Mar. 24, 2009).

Comm. on the Elimination of Racial Discrimination, Combined Fifteenth and Sixteenth Periodic Reports Due in 2012: Colombia, U.N. Doc. CERD/C/COL/15-16 (Apr. 7, 2014).

Comm. on the Elimination of Racial Discrimination, Concluding Observations: Nicaragua, U.N. Doc. CERD/C/NIC/CO/14 (June 19, 2008).

Comm. on the Elimination of Racial Discrimination, General Recommendation XXIII on the Rights of Indigenous Peoples, U.N. Doc. A/52/18, Annex V (1997).

Comm. on the Elimination of Racial Discrimination, General Recommendation XXXI on the Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System, U.N. Doc. A/60/18 (2005).

Comm. on the Elimination of Racial Discrimination, General Recommendation No. 34 adopted by the Committee: Racial Discrimination against People of African Descent, U.N. Doc. CERD/C/GC/34 (Oct. 3, 2011).

Daes, Erica-Irene (Chairperson-Rapporteur of the Working Group on Indigenous Populations), Standard-Setting Activities: Evolution of Standards Concerning the Rights of Indigenous People, U.N. Doc. E/CN.4/Sub.2/AC.4/1996/2 (June 10, 1996).

Deschênes, Jules, Proposal Concerning a Definition of the Term “Minority,” U.N. Doc. E/CN.4/Sub.2/1985/31 (May 14, 1985).

307

de Schutter, Olivier (Special Rapporteur on the Right to Food), Rep. on the Right to Food, U.N. Doc. A/65/281 (Aug. 11, 2010).

Diène, Doudou (Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance), Mission to Colombia, E/CN.4/2004/18/Add.3 (Feb. 24, 2004).

Donders, Yvonne, Cultural Life in the Context of Human Rights, Background Paper Submitted to the U.N. Committee on Economic, Social and Cultural Rights, U.N. Doc. E/C.12/40/13 (May 9, 2008).

Durban Review Conference, Adoption of the Final Documents and the Report of the Durban Review Conference, U.N. Doc. A/CONF.211/L.1 (April 14, 2009).

Eide, Asbjørn, Prevention of Discrimination and Protection of Minorities, Progress Report on the Update to the Study on Peaceful and Constructive Approaches to Situations Involving Minorities, U.N. Doc. E/CN.4/Sub.2/2003/21 (June 17, 2003).

High Comm’r for Human Rights, Annual Rep. on its Nineteenth Session, U.N. Doc. A/HRC/19/27 (2011).

High Comm’r for Human Rights, Report on Indicators for Monitoring Compliance with International Human Rights Instruments, U.N. Doc. HRI/MC/2006/7 (May 11, 2006).

High Comm’r for Human Rights, Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, U.N. Doc. HRI/MC/2008/3* (June 6, 2008).

Human Rights Comm., CCPR General Comment No. 23: Article 27 (Rights of Minorities), U.N. Doc. CCPR/C/21/Rev.1/Add.5 (Aug. 4, 1994).

Human Rights Comm., CCPR General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add. 13 (May 26, 2004).

Human Rights Comm., General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, U.N. Doc. CCPR/C/GC/36 (Oct. 30, 2018).

Human Rights Council, Rep. of the Working Group of Experts on People of African Descent on its Twelfth Session, U.N. Doc. A/HRC/24/52 (July 15, 2013).

Human Rights Council, Rep. of the Working Group of Experts on People of African Descent on its Fourteenth Session, Addendum, Mission to Brazil, U.N. Doc. A/HRC/27/68/Add.1 (Sept. 23, 2014).

308

Human Rights Council, Rep. of the Working Group of Experts on People of African Descent on its Fifteenth and Sixteenth Sessions, U.N. Doc. A/HRC/30/56 (Aug. 6, 2015).

Human Rights Council Res. 9/14, U.N. Doc. 2008/HRC/RES/9/14 (Sept. 18, 2008).

Human Rights Council Res. 15/9, U.N. Doc. A/HRC/RES/15/9 (Oct. 6, 2010).

Human Rights Council Res. 36/23, U.N. Doc. A/HRC/RES/36/23 (Oct. 9, 2017).

Hunt, Paul (Special Rapporteur of the Commission on Human Rights on the Right of Everyone to Enjoy the Highest Attainable Standard of Physical and Mental Health), Interim Report, U.N. Doc. A/58/427 (Oct. 10, 2003).

ILO, Comm. of Experts on the Application of Conventions and Recommendations, Observation (CEACR) - Adopted 2006, Published 96th ILC Session (2007): Indigenous and Tribal Peoples Convention 1989 (No. 169) – Colombia (Ratification: 1991), https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT _ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_COMMENT_YEAR :2273512,102595,Colombia,2006.

International Conference on Human Rights, Proclamation of Teheran, U.N. Doc. A/CONF. 32/41 at 3 (April 22-May 13, 1968).

Izsák, Rita (Independent Expert on Minority Issues), Rep. on Ensuring the Inclusion of Minority Issues in Post-2015 Development Agendas, U.N. Doc. A/HRC/25/56 (Jan. 6, 2014).

MARTINEZ COBO, JOSE R., STUDY ON THE PROBLEM OF DISCRIMINATION AGAINST INDIGENOUS POPULATIONS, U.N. Doc. E/CN.4/Sub.2/1986/7/Add.4., U.N. Sales No. E.86.XIV.3 (1986).

Thornberry, Patrick, Cultural Rights and Universality of Human Rights, Background Paper Submitted to the Committee on Economic, Social and Cultural Rights, U.N. Doc. E/C.12/40/15 (May 9, 2008).

Tomasevski, Katarina (Special Rapporteur on the Right to Education), Preliminary Report, U.N. Doc. E/CN.4/1999/49 (Jan. 13, 1999).

U.N., Educ., Sci. and Cultural Org., Recommendation on Participation by the Peoples at large in Cultural Life and their Contribution to it (Nov. 26, 1976), http://portal.unesco.org/en/ev.php- URL_ID=13097&URL_DO=DO_TOPIC&URL_SECTION=201.html.

U.N. G.A. Res. 41/128, Declaration on the Right to Development (Dec. 4, 1986).

U.N. G.A. Res. 55/2, United Nations Millennium Declaration (Sept. 8, 2000).

309

U.N. G.A. Res. 64/292, The Human Right to Water and Sanitation (Aug. 3, 2010).

U.N. G.A. Res. 68/237, Proclamation of the International Decade for People of African Descent (Dec. 23, 2013).

U.N. G.A. Res. 69/16, Programme of Activities for the Implementation of the International Decade for People of African Descent (Nov. 18, 2014).

U.N. G.A. Res. 70/1, Transforming Our World: The 2030 Agenda for Sustainable Development (Oct. 21, 2015).

U.N. G.A. Res. 73/165, United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (Jan. 21, 2019).

U.N. G.A. Res. 73/PV55 (Official Records) (Dec. 17, 2018).

U.N. Secretary-General, Report of the Regional Conference of the Americas, Santiago, Chile, 5-7 December 2000, U.N. Doc. A/CONF.189/PC.2/7 (Apr. 21, 2001).

U.N. Sub-Division on the Promotion and Protection of Human Rights, The Right to Adequate Food as a Human Right, 1 HUM. RTS. STUDY SERIES 1, U.N. Sales No. E.89.XIV.2 (1989).

World Conference against Racism, Racial Discrimination, Xenophobia and Related Violence, Report, U.N. Doc. A/CONF.189/12 (2001).

World Conference on Human Rights, Vienna Declaration and Programme of Action, U.N. Doc. A/CONF.157/23 (June 25, 1993).

Documents of the Organization of American States

Inter-Am. Comm’n on Human Rights, Guidelines for Preparation of Progress Indicators in the Area of Economic, Social and Cultural Rights, OEA/Ser.L/V/II.132 Doc. 14 (July 19, 2008).

Inter-Am. Comm’n on Human Rights, Indigenous and Tribal People’s Rights over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter‐American Human Rights System, OEA/Ser.L/V/II. Doc. 56/09 (Dec. 30, 2009).

Inter-Am. Comm’n on Human Rights, Report on the Situation of Human Rights in Brazil, OEA/Ser.L/V/II.97 Doc. 29 rev.1 (Sept. 29, 1997).

Inter-Am. Comm’n on Human Rights, The Situation of People of African Descent in the Americas, OEA/Ser.L/V/II. Doc. 62 (2011).

O.A.S. G.A. Res. AG/doc.5242/12 rev. 2, Social Charter of the Americas (Sept. 20, 2012).

310

O.A.S. G.A. Res. 2760 (XLII-O/12), The Human Right to Safe Drinking Water and Sanitation (June 5, 2012).

O.A.S. G.A. Res. 2824 (XLIV-O/14), Recognition of the International Decade for People of African Descent (June 4, 2014).

O.A.S. G.A. Res. 2891 (XLVI-O/16), Plan of Action for the Decade for Persons of African Descent in the Americas (2016-2025) (June 16, 2014).

O.A.S. Permanent Council, Plan of Action of the Social Charter of the Americas, OEA/Ser.G CP/doc.5097/15 (Feb. 11, 2015).

Other International Organizations

Int’l Comm. of Jurists, Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (Jan. 26, 1997), http://www.refworld.org/docid/48abd5730.html.

Books, Book Chapters, and Reports

1 CENTRO DE DOCUMENTACIÓN PARA LA HISTORIA Y LA CULTURA DE LOS AFRODESCENDIENTES EN EL CARIBE COLOMBIANO, UNIVERSITY OF CARTAGENA, DIÁSPORA AFRICANA Y ESCLAVITUD EN EL CARIBE COLOMBIANO [AFRICAN DIASPORA AND SLAVERY IN THE COLOMBIAN CARIBBEAN] (2013).

1 MINISTERIO PÚBLICO FISCAL DE LA CIUDAD AUTÓNOMA DE BUENOS AIRES, EL DEBIDO PROCESO LEGAL: ANÁLISIS DESDE EL SISTEMA INTERAMERICANO Y UNIVERSAL DE DERECHOS HUMANOS [DUE PROCESS OF LAW: ANALYSIS UNDER THE INTER-AMERICAN AND UNIVERSAL HUMAN RIGHTS SYSTEM] (2013).

ALIANZA DE PUEBLOS INDÍGENAS Y AFRODESCENDIENTES DE NICARAGUA, INFORME SOBRE LA SITUACIÓN DE LOS DERECHOS TERRITORIALES DE LOS PUEBLOS INDÍGENAS Y AFRODESCENDIENTES DE NICARAGUA [REPORT ABOUT THE SITUATION OF LAND RIGHTS OF INDGENOUS PEOPLES AND AFRO-DESCENDANTS IN NICARAGUA] (2017), http://www.temasnicas.net/informeapian.pdf.

ANAYA, S. JAMES, INDIGENOUS PEOPLES IN INTERNATIONAL LAW (2d ed. 2004).

Andenas, Mads & Duncan Fairgrieve, Intent on Making Mischief: Seven Ways of Using Comparative Law, in METHODS OF COMPARATIVE LAW 25 (Pier Giuseppe Monateri ed., 2012).

ANDERSON, MARK, BLACK AND INDIGENOUS: GARIFUNA ACTIVISM AND CONSUMER CULTURE IN HONDURAS (2009).

ANDREWS, GEORGE REID, AFRO-LATIN AMERICA, 1800-2000 (2004).

311

Antkowiak, Thomas M., Social, Economic, and Cultural Rights: The Inter-American Court at a Crossroads, in THE INTER-AMERICAN COURT OF HUMAN RIGHTS: THEORY AND PRACTICE, PRESENT AND FUTURE 259 (Yves Haeck et al. eds., 2015).

ANTKOWIAK, THOMAS & ALEJANDRA GONZA, THE AMERICAN CONVENTION ON HUMAN RIGHTS (2017).

ASOCIACIÓN DE CONSEJOS COMUNITARIOS DE CARTAGENA, AGENDA DE ETNODESARROLLO Y DIÁLOGO INTERCULTURAL PARA LA PAZ EN CARTAGENA DE INDIAS [AGENDA OF ETHNO- DEVELOPMENT AND INTERCULTURAL DIALOGUE FOR PEACE IN CARTAGENA DE INDIAS] (2016), https://doctiktak.com/queue/fem- 3478cb4e2e8bbaf8f93c7e7a58071ab629367.html.

Badilla, Ana Elena & Carlos Rafael Urquilla Bonilla, El derecho al trabajo en el Sistema Interamericano de Derechos Humanos [The Right to Work in the Inter-American Human Rights System], in INTERPRETACIÓN DE LOS PRINCIPIOS DE IGUALDAD Y NO DISCRIMINACIÓN PARA LOS DERECHOS HUMANOS DE LAS MUJERES EN LOS INSTRUMENTOS DEL SISTEMA INTERAMERICANO [INTERPRETATION OF THE PRINCIPLES OF EQUALITY AND NON-DISCRIMINATION FOR THE HUMAN RIGHTS OF WOMEN IN THE INSTRUMENTS OF THE INTER-AMERICAN SYSTEM] 185 (Instituto Interamericano de Derechos Humanos ed., 2009).

BELLO, ALVARO & MARTA RANGEL, ETNICIDAD, “RAZA” Y EQUIDAD EN AMÉRICA LATINA Y EL CARIBE [ETHNICITY, “RACE,” AND EQUITY IN LATIN AMERICA AND THE CARIBBEAN] (2000).

BETANCUR, JUAN CARLOS & SERGIO CORONADO DELGADO, OBSERVATORIO DE TERRITORIOS ETNICOS [OBSERVATORY OF ETHNIC TERRITORIES], DERECHOS TERRITORIALES DE LAS COMUNIDADES NEGRAS: UNA MIRADA DESDE LA DIFERENCIA [TERRITORIAL RIGHTS OF BLACK COMMUNITIES: A DIFFERENTIAL PERSPECTIVE] (2012).

BISAZ, CORSIN, THE CONCEPT OF GROUP RIGHTS IN INTERNATIONAL LAW (2012).

Bix, Brian H., Legal Positivism, in THE BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY 29 (Martin P. Golding & William A. Edmundson eds., 2005).

BOBBIO, NORBERTO, THE AGE OF RIGHTS (Allan Cameron trans., Polity Press 1996) (1990).

Burton, Mandy, Doing Empirical Research: Exploring the Decision-Making of Magistrates and Juries, in RESEARCH METHODS IN LAW 55 (Dawn Watkins & Mandy Burton eds., 2013).

Cançado Trindade, Antonio Augusto, The Right of Access to Justice in the Inter-American System of Human Rights Protection, in 17 ITALIAN YEARBOOK OF INTERNATIONAL LAW 7 (Benedetto Conforti et al. eds, 2007).

312

Cançado Trindade, Antonio Augusto, The Right to Cultural Identity in the Evolving Jurisprudential Construction of the Inter-American Court of Human Rights, in MULTICULTURALISM AND INTERNATIONAL LAW 477 (Edward McWhinney et al. eds., 2009).

CENTRO NICARAGÜENSE DE DERECHOS HUMANOS, NICARAGUA ANTE LA SEGUNDA REVISIÓN DEL EXAMEN PERIÓDICO UNIVERSAL [NICARAGUA BEFORE THE SECOND REVIEW OF THE UNIVERSAL PERIODIC REVIEW] (2014).

Chapman, Audrey R., Development of Indicators for Economic, Social and Cultural Rights: The Rights to Education, Participation in Cultural Life and Access to Benefits of Science, in HUMAN RIGHTS IN EDUCATION, SCIENCE AND CULTURE 111 (Yvonne Donders & Vladimir Volodin eds., 2007).

Chapman, Audrey R. & Sage Russell, Introduction, in CORE OBLIGATIONS: BUILDING A FRAMEWORK FOR ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1 (Audrey R. Chapman & Sage Russell eds., 2002).

CIFRAS&CONCEPTOS, REGISTRO POBLACIONAL Y CARACTERIZACIÓN SOCIOECONÓMICA DE LA ISLA DE TIERRA BOMBA Y SUS CUATRO CENTROS POBLADOS (2013).

COMAS, JUAN, RACIAL MYTHS (1951).

COMISIÓN COLOMBIANA DE JURISTAS, INFORME SOBRE LA SITUACIÓN DEL DERECHO AL TERRITORIO DE LOS PUEBLOS INDÍGENAS Y LAS COMUNIDADES AFRODESCENDIENTES EN COLOMBIA [REPORT ABOUT THE SITUATION OF THE RIGHT TO LAND OF INDIGENOUS PEOPLES AND AFRO-DESCENDANT COMMUNITIES IN COLOMBIA] (2011).

Coomans, Fons et al., A Primer, in METHODS OF HUMAN RIGHTS RESEARCH 11 (Fons Coomans et al. eds., 2009).

Costa, Sergio, Perspectivas y políticas sobre racismo y afrodescendencia en América Latina y el Caribe [Perspectives and Politics on Racism and African Descent in Latin America and the Caribbean], in SENTIDO DE PERTENENCIA EN SOCIEDADES FRAGMENTADAS: AMÉRICA LATINA EN UNA PERSPECTIVA GLOBAL 245 (Martín Hopenhayn & Ana Sojo eds., 2011).

COTTROL, ROBERT J., THE LONG, LINGERING SHADOW: SLAVERY, RACE, AND LAW IN THE AMERICAN HEMISPHERE (2013).

CRANSTON, MAURICE, WHAT ARE HUMAN RIGHTS? (1973).

Davis, Dariél J. et al., Pan-Afro-Latin African Americanism Revisited: Legacies and Lessons for Transnational Alliances in the New Millennium, in AFRODESCENDANTS, IDENTITY, AND THE STRUGGLE FOR DEVELOPMENT IN THE AMERICAS 19 (Bernd Reiter & Simmons Eison Simmons Kimberly eds., 2012).

313

DE FERRANTI, DAVID ET AL., INEQUALITY IN LATIN AMERICA: BREAKING WITH HISTORY? (2004).

DE SCHUTTER, OLIVIER, INTERNATIONAL HUMAN RIGHTS LAW (2010). del Popolo, Fabiana & Susana Schkolnik, Pueblos indígenas y afrodescendientes en los censos de población y vivienda de América Latina: Avances y desafíos en el derecho a la información [Indigenous and Afro-Descendant Peoples in the Population and Housing Censuses in Latin America: Advances and Challenges in the Right to Information], in NOTAS DE POBLACIÓN NO. 97, 205 (Economic Commission for Latin America and the Caribbean ed., 2013), https://repositorio.cepal.org/bitstream/handle/11362/35946/np97205247_es.pdf?sequence =1&isAllowed=y.

DESMET, ELLEN, INDIGENOUS RIGHTS ENTWINED WITH NATURE CONSERVATION (2011).

DIRECCIÓN DE RELACIONES INTERNACIONALES PARLAMENTARIAS DE NICARAGUA, ANÁLISIS: CONVENCIÓN INTERNACIONAL SOBRE LA ELIMINACIÓN DE TODAS LAS FORMAS DE DISCRIMINACIÓN RACIAL [ANALYSIS: INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION] (2015), http://legislacion.asamblea.gob.ni/Internacionales.nsf/xsp/.ibmmodres/domino/OpenAttac hment/Internacionales.nsf/9008DAB516EE606206257EE70051168C/Adjuntos/An%C3 %A1lisis%20Conv%20%20Int%20%20sobre%20la%20Eliminaci%C3%B3n%20de%20t odas%20las%20Formas%20de%20Discriminaci%C3%B3n%20Racial.pdf.

DIXON, KWAME & BURDICK, JOHN (EDS.), COMPARATIVE PERSPECTIVES ON AFRO-LATIN AMERICA (2012).

Dobinson, Ian & Francis Johns, Qualitative Legal Research, in RESEARCH METHODS FOR LAW 16 (Mike McConville & Wing Hong Chui eds., 2007).

Donders, Yvonne, The Cultural Diversity Convention and Cultural Rights: Included or Ignored?, in THE UNESCO CONVENTION ON THE PROMOTION AND THE PROTECTION OF THE DIVERSITY OF CULTURAL EXPRESSIONS 165 (Toshiyuki Kono & Steven Van Uytsel eds., 2012).

Donders, Yvonne, The Legal Framework of the Right to Take Part in Cultural Life, in HUMAN RIGHTS IN EDUCATION, SCIENCE AND CULTURE 231 (Yvonne Donders & Vladimir Volodin eds., 2007).

DONDERS, YVONNE, TOWARDS A RIGHT TO CULTURAL IDENTITY? (2002).

DONDERS, YVONNE & ANNAMARI LAAKSONEN, FINDING WAYS TO MEASURE THE CULTURAL DIMENSION IN HUMAN RIGHTS AND DEVELOPMENT (2009), https://ssrn.com/abstract=1657837.

314

Drzewicki, Krzysztof, The Right to Work and Rights in Work, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A TEXTBOOK 223 (Asbjørn Eide et al. eds., 2d ed. 2001).

DUE PROCESS OF LAW FOUNDATION, RIGHT TO FREE, PRIOR, AND INFORMED CONSULTATION AND CONSENT IN LATIN AMERICA: PROGRESS AND CHALLENGES IN BOLIVIA, BRAZIL, CHILE, COLOMBIA, GUATEMALA, AND PERU (EXECUTIVE SUMMARY) (2015), http://www.dplf.org/sites/default/files/executive_summary_consultation_2015_web_02- 17-2016_c.pdf.

Eide, Asbjørn, Cultural Rights as Individual Rights, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A TEXTBOOK 289 (Asbjørn Eide et al. eds., 2d ed. 2001).

Eide, Asbjørn, Cultural Rights and Minorities: On Human Rights and Group Accommodation, in LEGAL CULTURES AND HUMAN RIGHTS 25 (Kristen Hastrup ed., 2001).

Eide, Asbjørn, Economic, Social and Cultural Rights as Human Rights, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A TEXTBOOK 9 (Asbjørn Eide et al. eds., 2d ed. 2001).

Eide, Asbjørn & Allan Rosas, Economic, Social and Cultural Rights: A Universal Challenge, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A TEXTBOOK 3 (Asbjørn Eide et al. eds., 2d ed. 2001).

EIDE, ASBJØRN, ET AL., THE FUTURE OF HUMAN RIGHTS PROTECTION IN A CHANGING WORLD (1991).

ENGLE, KAREN, THE ELUSIVE PROMISE OF INDIGENOUS DEVELOPMENT: RIGHTS, CULTURE, STRATEGY (2010).

Engle Merry, Sally, Global Human Rights and Local Social Movements in a Legally Plural World (1997), reprinted in LAW AND ANTHROPOLOGY 321 (Martha Mundy ed., 2002).

Figueroa Romero, Dolores, Historia del pueblo garífuna en Nicaragua [History of the Garifuna People in Nicaragua], in REVITALIZACIÓN CULTURAL DEL PUEBLO GARÍFUNA DE LA COSTA CARIBE NICARAGÜENSE 20 (Victor Obando Sancho et al. eds, 1999).

FOOD & AGRIC. ORG., LAND TENURE AND RURAL DEVELOPMENT (2002), http://www.fao.org/3/a- y4307e.pdf.

Freeland, Jane, Nicaragua, in NO LONGER INVISIBLE: AFRO-LATIN AMERICANS TODAY 181 (Minority Rights Grp. ed., 1995).

FRANCIONI, FRANCESCO, ACCESS TO JUSTICE AS A HUMAN RIGHT (2007).

Gandelman, Nestor et al., Traditional Excluding Fources: A Review of the Literature, in OUTSIDERS? THE CHANGING PATTERNS OF EXCLUSION IN LATIN AMERICA AND THE CARIBBEAN 15 (Gustavo Marquez et al. eds., 2007).

315

GOBERNACIÓN DEL DEPARTAMENTO DE BOLÍVAR, PLAN DEPARTAMENTAL DE GESTIÓN DE RIESGO DE BOLÍVAR [DEPARTMENT PLAN OF RISK MANAGEMENT OF BOLÍVAR] (2012), https://repositorio.gestiondelriesgo.gov.co/bitstream/handle/20.500.11762/395/PMGR%2 0Bolivar%20.pdf?sequence=1&isAllowed=y.

GOBIERNO DE COLOMBIA, DEPARTAMENTO NACIONAL DE PLANEACIÓN, PLAN NACIONAL DE DESARROLLO 2018-2022 (2018), https://colaboracion.dnp.gov.co/CDT/Prensa/Resumen- PND2018-2022-final.pdf.

GOBIERNO DE RECONCILIACIÓN Y UNIDAD NACIONAL DE NICARAGUA, MARCO PRESUPUESTARIO DE MEDIANO PLAZO 2017-2020: COMISIÓN NACIONAL DE DEMARCACIÓN Y TITULACIÓN [BUDGETARY MID-TERM FRAMEWORK 2017-2020: NATIONAL COMMISSION OF DEMARCATION AND TITLING] (2017), http://www.hacienda.gob.ni/documentos/presupuesto/presupuesto-gral.-de-la- republica/presupuesto-2017/anexo-al-par-marco-presupuestario-de-mediano-plazo-2017- 2020/7.-marco-de-gasto-institucional-de-mediano-plazo/instituciones- descentralizadas/F_7_43_MGMP_CONADETI.pdf/view.

GOBIERNO DE RECONCILIACIÓN Y UNIDAD NACIONAL DE NICARAGUA, EJES DEL PROGRAMA NACIONAL DE DESARROLLO HUMANO 2018-2021 [KEY POINTS OF THE NATIONAL PROGRAM OF HUMAN DEVELOPMENT 2018-2021] (2017).

GOBIERNO DE RECONCILIACIÓN Y UNIDAD NACIONAL DE NICARAGUA, PLAN NACIONAL DE DESARROLLO HUMANO 2012-2016 [NATIONAL PLAN OF HUMAN DEVELOPMENT 2012- 2016] (2013).

GODFREY, GLENDA, ET AL., TAMBOR, TIERRA, SANGRE... SOY GARÍFUNA [DRUM, EARTH, BLOOD… I AM GARIFUNA] (2012).

Gomez, Veronica, Economic, Social, and Cultural Rights in the Inter-American System, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN ACTION 167 (Mashood A. Baderin & Robert McCorquodale eds., 2007).

GONGORA MERA, MANUEL EDUARDO, DEFENSORÍA DEL PUEBLO DE COLOM., EL DERECHO A LA EDUCACIÓN EN LA CONSTITUCIÓN, LA JURISPRUDENCIA Y LOS INSTRUMENTOS INTERNACIONALES [THE RIGHT TO EDUCATION IN THE CONSTITUTION, JURISPRUDENCE, AND INTERNATIONAL INSTRUMENTS] (2003).

Gongora Mera, Manuel Eduardo, La difusión del bloque de constitucionalidad en la jurisprudencia latinoamericana y su potencial en la construcción del ius constitutionale commune latinoamericano [The Spreading of the Constitutionality Block in the Latin American Jurisprudence and its Potential in Building the Latin American Ius Constitutionale Commune], in IUS CONSTITUTIONALE COMMUNE EN AMÉRICA LATINA: RASGOS, POTENCIALIDADES Y DESAFÍOS 301 (Armin von Bogdandy et al. eds., 2014).

316

Gonzalez-Salzberg, Damian & Loveday Hodson, Introduction: Human Rights Research Beyond the Doctrinal Approach, in RESEARCH METHODS FOR INTERNATIONAL HUMAN RIGHTS LAW: BEYOND THE TRADITIONAL PARADIGM (Damian Gonzalez-Salzberg & Loveday Hodson eds., 2020).

Gootenberg, Paul, Latin American Inequalities: New Perspectives from History, Politics, and Culture, in INDELIBLE INEQUALITIES IN LATIN AMERICA 1 (Paul Gootenberg & Luis Reygadas eds., 2010).

GRONI, CHRISTIAN, DAS MENSCHENRECHT AUF TEILNAHME AM KULTURELLEN LEBEN [THE HUMAN RIGHT TO PARTICIPATION IN CULTURAL LIFE] (2008).

Haboud, Marleen et al., Linguistic Human Rights and Language Revitalization: Latin America and the Caribbean, in INDIGENOUS LANGUAGE REVITALIZATION IN THE AMERICAS 201 (Serafín M. Coronel-Molina & Teresa L. McCarty eds., 2016).

HANNUM, HORST ET AL., INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW, POLICY, AND PRACTICE (6th ed. 2018).

Hansen, Stephen A., The Right to Take Part in Cultural Life: Toward Defining Minimum Core Obligations Related to Article 15 (1)(a) of the International Covenant on Economic, Social and Cultural Rights, in CORE OBLIGATIONS: BUILDING A FRAMEWORK FOR ECONOMIC, SOCIAL AND CULTURAL RIGHTS 279 (Audrey R. Chapman & Sage Russell eds., 2002).

HART, HERBERT L. A., THE CONCEPT OF LAW (3rd ed. 2012).

HENRARD, KRISTIN, DEVISING AN ADEQUATE SYSTEM OF MINORITY PROTECTION (2000).

HERNANDEZ, TANYA KATERI, RACIAL SUBORDINATION IN LATIN AMERICA (2013).

Hooker, Juliet, Indigenous Rights in Latin America - How to Classify Afro-Descendants?, in IDENTITY POLITICS IN THE PUBLIC REALM: BRINGING INSTITUTIONS BACK IN 104 (Avigail Eisenberg & Will Kymlicka eds., 2011).

Hooker, Juliet, Negotiating Blackness within the Multicultural State: Creole Politics and Identity in Nicaragua, in COMPARATIVE PERSPECTIVES ON AFRO-LATIN AMERICA 264 (Kwame Dixon & John Burdick eds., 2012).

Hutchinson, Terry, Doctrinal Research: Researching the Jury, in RESEARCH METHODS IN LAW 7 (Dawn Watkins & Mandy Burton eds., 2013).

INSPECTION PANEL, THE WORLD BANK, EMERGING LESSONS SERIES NO. 2, INDIGENOUS PEOPLES (2016), http://documents.worldbank.org/curated/en/447361478156710826/pdf/109710- REVISED-PUBLIC-IP-lessons-text-10-31-16web-links.pdf.

317

INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS, ACCESO A LA JUSTICIA Y DERECHOS HUMANOS EN NICARAGUA [ACCESS TO JUSTICE AND HUMAN RIGHTS IN NICARAGUA] (2009).

INT’L LABOUR ORG., INDIGENOUS & TRIBAL PEOPLES' RIGHTS IN PRACTICE: A GUIDE TO ILO CONVENTION NO. 169 (2009).

INT’L LABOUR ORG., REPORT OF THE DIRECTOR-GENERAL: DECENT WORK (1999), https://www.ilo.org/public/english/standards/relm/ilc/ilc87/rep- i.htm#The%20policy%20response.

JOHNSON, PAUL CHRISTOPHER, DIASPORA CONVERSIONS: BLACK CARIB RELIGION AND THE RECOVERY OF AFRICA (2007).

Jori, Mario, Introduction, in LEGAL POSITIVISM at xi (Mario Jori ed., 1992).

KELSEN, HANS, INTRODUCTION TO THE PROBLEMS OF LEGAL THEORY (Bonnie Litschewski Paulson & Stanley L. Paulson trans., Oxford Univ. Press 1st ed. 1992) (1934).

KLEIN, HERBERT S., THE ATLANTIC SLAVE TRADE (2d ed. 2010).

Krause, Catarina & Gudmundur Alfredsson, Article 17, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMON STANDARD OF ACHIEVEMENT 359 (Gudmundur Alfredsson & Asbjørn Eide eds., 1999).

LAI, GLORIA, TRANSNAT’L INST., DRUGS, CRIME AND PUNISHMENT: PROPORTIONALITY OF SENTENCING FOR DRUG OFFENCES (2012), http://fileserver.idpc.net/library/Drugs-crime- and-punishment-Proportionality-of-sentencing%20(1).pdf.

Landman, Todd, Social Science Methods and Human Rights, in METHODS OF HUMAN RIGHTS RESEARCH 19 (Fons Coomans et al. eds., 2009).

LA ROTA, MIGUEL EMILIO ET AL., ANTE LA JUSTICIA: NECESIDADES JURÍDICAS Y ACCESO A LA JUSTICIA EN COLOMBIA [AT COURT: LEGAL NEEDS AND ACCESS TO JUSTICE IN COLOMBIA] (2014).

Lopatka, Adam, Cultural Diversity and Cultural Human Rights, in LAW AND LEGAL CULTURE IN COMPARATIVE PERSPECTIVE 216 (Günther Doeker-Mach et al. eds., 2004).

LOPEZ MEDINA, DIEGO EDUARDO, TEORÍA IMPURA DEL DERECHO: LA TRANSFORMACIÓN DE LA CULTURA JURÍDICA LATINOAMERICANA [IMPURE THEORY OF THE LAW: THE TRANSFORMATION OF THE LATIN AMERICAN LEGAL CULTURE] (2004).

LORIO, GEMA, SANEAMIENTO EN TERRITORIOS INDÍGENAS DE NICARAGUA: UN PROCESO EN CONSTRUCCIÓN DENTRO DE LA AUTONOMÍA REGIONAL: EL CASO DE TUAHKA [LAND CLEARANCE ON INDIGENOUS TERRITORIES OF NICARAGUA: A PENDING PROCESS WITHIN

318

THE REGIONAL AUTONOMY: THE CASE OF TUAHKA] (2014), http://repositorio.uca.edu.ni/2973/1/2014_CI-50_Saneamiento_Territ....pdf.

LUCENA SALMORAL, MANUEL, LEYES PARA ESCLAVOS: EL ORDENAMIENTO JURÍDICO SOBRE LA CONDICIÓN, TRATAMIENTO, DEFENSA Y REPRESIÓN DE LOS ESCLAVOS EN LAS COLONIAS DE LA AMÉRICA ESPAÑOLA [LAWS FOR SLAVES: THE LEGAL FRAMEWORK ON THE CONDITION, TREATMENT, DEFENSE, AND REPRESSION OF THE SLAVES IN THE COLONIES OF SPANISH AMERICA] (2000).

MacKay, Fergus, Cultural Rights, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A GUIDE FOR MINORITIES AND INDIGENOUS PEOPLES 83 (Salomon Margot E. & Minority Rights Grp. eds., 2005).

MANELI, MIECZYSLAW, JURIDICAL POSITIVISM AND HUMAN RIGHTS (1981).

Marks, Stephen P., Defining Cultural Human Rights, in HUMAN RIGHTS AND CRIMINAL JUSTICE FOR THE DOWNTRODDEN 293 (Morten Bergsmo ed., 2003).

Marx, Axel et al., Human Rights and Service Delivery: A Review of Current Policies, Practices, and Challenges, in 6 THE WORLD BANK LEGAL REVIEW: IMPROVING DELIVERY IN DEVELOPMENT: THE ROLE OF VOICE, SOCIAL CONTRACT, AND ACCOUNTABILITY 39 (Jan Wouters et al. eds., 2015).

McGoldrick, Dominic, Culture, Cultures, and Cultural Rights, in Economic, Social and Cultural Rights in Action 447 (Mashood A. Baderin & Robert McCorquodale eds., 2007).

McInerney-Lankford, Siobhan, Legal Methodologies and Human Rights Research: Challenges and Opportunities, in RESEARCH METHODS IN HUMAN RIGHTS 38 (Bård-Anders Andreassen et al. eds., 2017).

MEDINA, CELINA, THE AMERICAN CONVENTION ON HUMAN RIGHTS: CRUCIAL RIGHTS AND THEIR THEORY AND PRACTICE (2d ed. 2016).

Melish, Tara, The Inter-American Court of Human Rights: Beyond Progressivity, in SOCIAL RIGHTS JURISPRUDENCE: EMERGING TRENDS IN INTERNATIONAL AND COMPARATIVE LAW 372 (Malcolm Langford ed., 2008).

MINISTERIO DEL INTERIOR DE COLOMBIA, PROTOCOLO DE CONSULTA PREVIA – CUMPLIMIENTO SENTENCIA T-576 DE 2014 [PROTOCOL ON PRIOR CONSULTATION – COMPLIANCE WITH JUDGMENT T-576 OF 2014] (2015), http://dacn.mininterior.gov.co/sites/default/files/protocolo_consulta_previa_comunidades _negras.pdf.

Murphy, Mark C., Natural Law Theory, in THE BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY 15 (Martin P. Golding & William A. Edmundson eds., 2005).

319

NOWAK, MANFRED, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR COMMENTARY (2d ed. 2005).

OBSERVATORIO DE DERECHOS SOCIALES Y DESARROLLO, CIUDAD HETEROGÉNEA, DIVERSA Y DESIGUAL: APROXIMACIÓN SOCIODEMOGRÁFICA A LA POBLACIÓN AFROCOLOMBIANA Y AL PANORAMA SOCIAL DE CARTAGENA DE INDIA [HETEROGENOUS CITY, DIVERSE AND UNEQUAL: SOCIO-DEMOGRAPHIC APPROXIMATION TO THE AFRO-COLOMBIAN POPULATION AND SOCIAL PANORAMA OF CARTAGENA DE INDIA] (2009).

OBSERVATORIO DE DISCRIMINACIÓN RACIAL ET AL., DISCRIMINACIÓN RACIAL EN COLOMBIA: INFORME ALTERNO ANTE EL COMITÉ PARA LA ELIMINACIÓN DE LA DISCRIMINACIÓN RACIAL DE LA ONU [RACIAL DISCRIMINATION IN COLOMBIA: ALTERNATIVE REPORT TO THE UN COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION] (2009).

ORG. OF AM. STATES, PROGRESS INDICATORS FOR MEASURING RIGHTS UNDER THE PROTOCOL OF SAN SALVADOR, OEA/Ser.D/XXVI.11 (2d ed., 2015).

PARRA VERA, OSCAR, DEFENSORÍA DEL PUEBLO DE COLOM., EL DERECHO A LA SALUD EN LA CONSTITUCIÓN, LA JURISPRUDENCIA Y LOS INSTRUMENTOS INTERNACIONALES [THE RIGHT TO HEALTH IN THE CONSTITUTION, JURISPRUDENCE, AND INTERNATIONAL INSTRUMENTS] (2003).

PENTASSUGLIA, GAETANO, MINORITIES IN INTERNATIONAL LAW: AN INTRODUCTORY STUDY (2002).

Pineschi, Laura, Cultural Diversity as a Human Right? General Comment No. 21 of the Committee on Economic, Social and Cultural Rights, in CULTURAL HERITAGE, CULTURAL RIGHTS, CULTURAL DIVERSITY: NEW DEVELOPMENTS IN INTERNATIONAL LAW 29 (Silvia Borelli & Federico Lenzerini eds., 2012).

POSNER, ERIC A., THE TWILIGHT OF HUMAN RIGHTS LAW (2014).

Price, Richard, Introduction: Maroons and their Communities, in MAROON SOCIETIES: REBEL SLAVE COMMUNITIES IN THE AMERICAS 1 (Richard Price ed., 3 ed. 1996)).

Prott, Lyndel, Cultural Rights as Peoples’ Rights in International Law, in THE RIGHTS OF PEOPLES 93 (James Crawford ed., 1988).

Rangel, Marta, Propuestas para el análisis comparado de temas destacados de los derechos humanos de los afrodescendientes en América Latina [Proposals for the Comparative Analysis of Specific Topics Related to Human Rights of Afro-Descendants in Latin America], in POBLACIÓN Y DESARROLLO at 1 (Econ. Comm’n for Latin Am. and the Caribbean, Ser. No. 59, 2005).

320

RESTREPO, EDUARDO, ETNIZACIÓN DE LA NEGRIDAD: LA INVENCIÓN DE LAS “COMUNIDADES NEGRAS” COMO GRUPO ÉTNICO EN COLOMBIA [ETHNICIZATION OF BLACKNESS: THE INVENTION OF THE “BLACK COMMUNITIES” AS ETHNIC GROUP IN COLOMBIA] (2013).

Ringelheim, Julie, Cultural Rights, in INTERNATIONAL HUMAN RIGHTS LAW 286 (Daniel Moeckli et al. eds. 2d ed., 2014).

ROBERT F. KENNEDY MEM’L CTR. FOR HUMAN RIGHTS, RIGHT TO EDUCATION OF AFRO- DESCENDANT AND INDIGENOUS COMMUNITIES IN THE AMERICAS: ACHIEVING DIGNITY AND EQUALITY FOR ALL (2008).

Rodley, Nigel S., Can Armed Opposition Groups Violate Human Rights?, in HUMAN RIGHTS IN THE TWENTY-FIRST CENTURY 297 (Kathleen P. Mahoney & Paul Mahoney eds., 1993).

RODRIGUEZ GARAVITO, CESAR ET AL., EL DERECHO A NO SER DISCRIMINADO: PRIMER INFORME SOBRE DISCRIMINACIÓN RACIAL Y DERECHOS DE LA POBLACIÓN AFROCOLOMBIANA (VERSIÓN RESUMIDA) [THE RIGHT NOT TO BE DISCRIMINATED AGAINST: FIRST REPORT ABOUT RACIAL DISCRIMINATION AND THE RIGHTS OF THE AFRO-COLOMBIAN POPULATION (SHORTENED VERSION)] (2008).

RODRIGUEZ GARAVITO, CESAR ET AL., EL DESPLAZAMIENTO FORZADO DE LOS AFROCOLOMBIANOS: EVALUACIÓN DEL CUMPLIMINETO DEL GOBIERNO COLOMBIANO DEL AUTO 005 DE LA CORTE CONSTITUCIONAL [THE FORCED DISPLACEMENT OF AFRO- COLOMBIANS: EVALUATION OF THE COLOMBIAN GOVERNMENT’S COMPLIANCE WITH THE DECISION 005 OF THE CONSTITUTIONAL COURT] (2010).

RODRIGUEZ GARAVITO, CESAR ET AL., LA CONSULTA PREVIA A PUEBLOS INDÍGENAS: LOS ESTÁNDARES DEL DERECHO INTERNACIONAL [PRIOR CONSULTATION OF INDIGENOUS PEOPLES: THE STANDARDS OF INTERNATIONAL LAW] (2010).

RODRIGUEZ GARAVITO, CESAR ET AL., RAZA Y DERECHOS HUMANOS EN COLOMBIA: INFORME SOBRE DISCRIMINACIÓN RACIAL Y DERECHOS DE LA POBLACIÓN AFROCOLOMBIANA [RACE AND HUMAN RIGHTS IN COLOMBIA: REPORT ABOUT RACIAL DISCRIMINATION AND THE RIGHTS OF THE AFRO-COLOMBIAN POPULATION] (2009).

SALMAN, SALMAN M. A. & SIOBHÁN MCINERNEY-LANKFORD, THE WORLD BANK, THE HUMAN RIGHT TO WATER: LEGAL AND POLICY DIMENSIONS (Law, Justice, and Development Ser. No. 30229, 2004).

SANCHEZ, MARGARITA & MAURICE BRYAN, MINORITY RIGHTS GRP. INT’L, AFRO-DESCENDANTS, DISCRIMINATION AND ECONOMIC EXCLUSION IN LATIN AMERICA (2003).

SAUL, BEN ET AL., THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS: COMMENTARY, CASES, AND MATERIALS (2014).

321

SEGOVIA SALAS, RODOLFO, LAS FORTIFICACIONES DE CARTAGENA DE INDIAS: ESTRATEGIA E HISTORIA [THE FORTIFICATIONS OF CARTAGENA DE INDIAS: STRATEGY AND HISTORY] (1982), http://babel.banrepcultural.org/cdm/ref/collection/p17054coll10/id/3728/.

SEPULVEDA CARMONA, MARIA MAGDALENA, THE NATURE OF THE OBLIGATIONS UNDER THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (2003).

SEPULVEDA CARMONA, MARIA MAGDALENA & KATE DONALD, MINISTRY FOR FOREIGN AFFAIRS OF FIN., ACCESS TO JUSTICE FOR PERSONS LIVING IN POVERTY: A HUMAN RIGHTS APPROACH (2014).

Silva, Eduardo, Black Abolitionists in the Quilombo of Leblon, Rio de Janeiro: Symbols, Organizers, and Revolutionaries, in BEYOND SLAVERY: THE MULTILAYERED LEGACY OF AFRICANS IN LATIN AMERICA AND THE CARIBBEAN 109 (Dariél J. Davis ed., 2007).

SJÖHOLM, MARIA, GENDER-SENSITIVE NORM INTERPRETATION BY REGIONAL HUMAN RIGHTS LAW SYSTEMS (2018).

Spaak, Torben, Kelsen and Hart on the Normativity of Law, in PERSPECTIVES ON JURISPRUDENCE: ESSAYS IN HONOUR OF JES BJARUP 397 (Peter Wahlgren ed., 2005).

SSENYONJO, MANISULI, ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN INTERNATIONAL LAW (2009).

Ssenyonjo, Manisuli, Introduction, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS at xi (Manisuli Ssenyonjo ed., 2011).

STAMATOPOULOU, ELSA, CULTURAL RIGHTS IN INTERNATIONAL LAW: ARTICLE 27 OF THE UNIVERSAL DECLARATION AND BEYOND (2007).

Stavenhagen, Rudolfo, Cultural Rights: A Social Science Perspective, in CULTURAL RIGHTS AND WRONGS 1 (Halina Niec ed., 1998).

Stavenhagen, Rudolfo, Cultural Rights: A Social Science Perspective, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS 85 (Asbjørn Eide et al. eds., 2d ed. 2001).

Stavenhagen, Rodolfo, Indigenous Peoples and the State in Latin America: An Ongoing Debate, in MULTICULTURALISM IN LATIN AMERICA: INDIGENOUS RIGHTS, DIVERSITY AND DEMOCRACY 24 (Rachel Sieder ed., 2002).

STEPAN, NANCY LEYS, THE HOUR OF EUGENICS: RACE, GENDER, AND NATION IN LATIN AMERICA (1991).

Symonides, Janusz, Cultural Rights, in HUMAN RIGHTS: CONCEPTS AND STANDARDS 175 (Janusz Symonides ed., 2000).

322

Symonides, Janusz, Cultural Rights: New Dimensions and Challenges, in 29 THESAURIUS ACROASIUM 135 (Kalliopi Koufa ed., 2000).

TASIOULAS, JOHN, MINIMUM CORE OBLIGATIONS: HUMAN RIGHTS IN THE HERE AND NOW (2017), http://documents.worldbank.org/curated/en/908171515588413853/pdf/122563-WP- Tasioulas2-PUBLIC.pdf

TAYLOR, CHRISTOPHER, THE BLACK CARIB WARS (2012).

THE WORLD BANK, AFRO-DESCENDANTS IN LATIN AMERICA: TOWARD A FRAMEWORK OF INCLUSION (2018), https://openknowledge.worldbank.org/handle/10986/30201.

THE WORLD BANK, OPERATIONAL MANUAL, OP 4.10 – INDIGENOUS PEOPLES (2013), https://policies.worldbank.org/sites/ppf3/PPFDocuments/090224b0822f89d5.pdf.

THE WORLD BANK, POVERTY AND SHARED PROSPERITY 2018: PIECING TOGETHER THE POVERTY PUZZLE (2018), https://openknowledge.worldbank.org/bitstream/handle/10986/30418/9781464813306.pd f.

THOMPSON KLEIN, JULIE, INTERDISCIPLINARITY: HISTORY, THEORY, AND PRACTICE (1990).

Tomuschat, Christian, Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights, in VÖLKERRECHT ALS RECHTSORDNUNG 949 (Rudolf Bernhardt et al. eds., 1983).

TUORI, KAARLO, CRITICAL LEGAL POSITIVISM (2002).

U.N., HIGH COMM’R FOR HUMAN RIGHTS, LAND AND HUMAN RIGHTS: STANDARDS AND APPLICATIONS (2015).

U.N., HIGH COMM’R FOR HUMAN RIGHTS, MINORITY RIGHTS: INTERNATIONAL STANDARDS AND GUIDANCE FOR IMPLEMENTATION (2010).

VAN COTT, DONNA LEE, THE FRIENDLY LIQUIDATION OF THE PAST (2000).

VAN DIJK, TEUN A., RACISM AND DISCOURSE IN SPAIN AND LATIN AMERICA (2005). van Hoecke, Mark, Legal Doctrine: Which Method(s) for What Kind of Discipline?, in METHODOLOGIES OF LEGAL RESEARCH 1 (Mark van Hoecke ed., 2011).

Vrdoljak, Ana, Liberty, Equality, Diversity: States, Cultures and International Law, in THE CULTURAL DIMENSION OF HUMAN RIGHTS 26 (Ana Vrdoljak ed., 2013).

WADE, PETER, RACE AND ETHNICITY IN LATIN AMERICA (2d ed. 2010).

323

YIN, ROBERT K., CASE STUDY RESEARCH: DESIGN AND METHODS (5th ed. 2014).

Yupsanis, Athanasios, Article 27 of the ICCPR Revisited – The Right to Culture as a Normative Source for Minority / Indigenous Participatory Claims in the Case Law of the Human Rights Committee, in 26 HAGUE YEARBOOK OF INTERNATIONAL LAW 359 (Nikos Lavranos et al. eds., 2013).

Yupsanis, Athanasios, The Meaning of “Culture” in Article 15 (1)(a) of the ICESCR: Positive Aspects of CESCR’s General Comment No. 21 for the Safeguarding of Minority Cultures, in 55 GERMAN YEARBOOK OF INTERNATIONAL LAW 345 (Walther Schücking Inst. for Int’l Law ed., 2012).

Zoninsein, Jonas, The Economic Case for Combating Racial and Ethnic Exclusion, in SOCIAL INCLUSION AND ECONOMIC DEVELOPMENT IN LATIN AMERICA 41 (Mayra Buvinić et al. eds., 2004).

Periodicals

Agudelo, Carlos, Movilidades y resistencias de los caribes negros: pasado y presente de los garífuna [Mobilitiy and Resistance of the Black Caribs: The Past and Present of the Garifuna], CS CIENCIAS SOCIALES, July–Dec. 2013, at 190.

Alston, Philip & Gerard Quinn, The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights, 9 HUM. RTS. QUART. 156 (1987).

Alvarez Arzate, Maria Dolores & Bayardo Gamez Montenegro, Recopilación del conocimiento oral de la lengua y cultura garífuna [Compilation of the Oral Language and Garifuna Culture], REV. PUEBLOS Y FRONTERAS DIGITAL, Dec. 2009–Jan. 2010, at 85.

Baer, Madeline & Andrea Gerlak, Implementing the Human Right to Water and Sanitation: A Study of Global and Local Discourses, 36 THIRD WORLD Q. 1527 (2015).

Barten, Ulrike, What’s in a Name: Peoples, Minorities, Indigenous Peoples, Tribal Groups and Nations, J. ON ETHNOPOLITICS & MINORITY ISSUES, 2015, at 1.

Bates, Rebecca, The Road to the Well: An Evaluation of the Customary Right to Water, 19 REV. EUR. COMMUNITY & INT’L ENVTL. L. 282 (2010).

Bello, Alvaro & Marta Rangel, Equity and Exclusion in Latin America and the Caribbean: The Case of Indigenous and Afro-descendant Peoples, CEPAL REV., Apr. 2002, at 39.

Bix, Brian H., On the Dividing Line between Natural Law Theory and Legal Positivism, 75 NOTRE DAME REV. 1613 (2000).

324

Blanco Gomez, Rossana, Legislación en materia de derechos lingüísticos y educación indígena en México [Legislation on Linguistic Rights and Indigenous Education in Mexico], TINKUY, May 2010, at 73.

Boyle, Alan, Human Rights or Environmental Rights? A Reassessment, 18 FORDHAM ENVTL. L. REV. 471 (2006).

Bratspies, Rebecca, Do We Need a Human Right to a Healthy Environment?, 13 SANTA CLARA J. INT’L L. 31 (2015).

Brinks, Daniel M., Access to What? Legal Agency and Access to Justice for Indigenous Peoples in Latin America, 55 J. DEV. STUD. 348 (2018).

Chapman, Audrey R., A “Violations Approach” for Monitoring the International Covenant on Economic, Social and Cultural Rights, 18 HUM. RTS. Q. 23 (1996).

Chapman, Audrey R. & Benjamin Carbonetti, Human Rights Protections for Vulnerable and Disadvantaged Groups: The Contributions of the UN Committee on Economic, Social and Cultural Rights, 33 HUM. RTS. Q. 682 (2011).

Cholewinski, Ryszard, State Duty towards Ethnic Minorities: Positive or Negative?, 10 HUM. RTS. Q. 344 (1988).

Crook, John R., The International Court of Justice and Human Rights, NW. J. INT’L HUM. RTS., Fall 2004, at 1.

Darrow, Mac & Amparo Tomas, Power, Capture, and Conflict: A Call for Human Rights Accountability in Development, 27 HUM. RTS. Q. 471 (2005).

David, Valeska, The Expanding Right to an Effective Remedy: Common Developments at the Human Rights Committee and the Inter-American Court, 3 BRIT. J. AM. LEGAL STUD. 259 (2014).

Davidson, William V., The Garifuna of Pearl Lagoon: Ethnohistory of an Afro-American Enclave in Nicaragua, ETHNOHISTORY, 1980, at 31. de Gaay Fortman, Bas & Michela Marcatelli, Between Soft Legality and Strong Legitimacy: A Political Economy Approach to the Struggle for Basic Entitlements to Safe Water and Sanitation, 37 HUM. RTS. Q. 941 (2015). de Varennes, Fernand & Elzbieta Kuzborska, Language, Rights and Opportunities: The Role of Language in the Inclusion and Exclusion of Indigenous Peoples, 23 INT’L J. ON MINORITY & GROUP RTS. 281 (2016).

Donders, Yvonne, Do Cultural Diversity and Human Rights Make a Good Match?, 61 INT’L SOC. SCI. J. 15 (2010).

325

Donders, Yvonne, International Human Rights and Cultural Diversity: A Balancing Act, 4 ROM. J. COMP. L. 123 (2013).

Dulitzky, Ariel E., When Afro-descendants Became “Tribal Peoples”: The Inter-American Human Rights System and Rural Black Communities, 15 UCLA J. INT’L L. & FOREIGN AFF. 29 (2010).

Eide, Asbjørn & Rianne Letschert, Institutional Developments in the United Nations and at the Regional Level, 14 INT’L J. ON MINORITY & GROUP RTS. 299 (2007).

Ellis, Keri & Loretta Feris, The Right to Sanitation: Time to Delink from the Right to Water, 36 HUM. RTS. Q. 607 (2014).

Esquirol, Jorge L., Writing the Law of Latin America, 40 GEO. WASH. INT’L L. REV. 693 (2008).

Fredericks, Carla F., Operationalizing Free, Prior, and Informed Consent, 80 ALB. L. REV. 429 (2017).

Gilbert, Jeremie, Land Rights as Human Rights: The Case for A Specific Right to Land, SUR INT’L J. ON HUM. RTS., June 2013, at 115.

Hooker, Juliet, Indigenous Inclusion/Black Exclusion: Race, Ethnicity, and Multicultural Citizenship in Latin America, 37 J. LAT. AMER. STUD. 285 (2005).

Hopenhayn, Martin & Alvaro Bello, Discriminación étnico-racial y xenofobia en América Latina y el Caribe [Ethnic-Racial Discrimination and Xenophobia in Latin America and the Caribbean], CEPAL POLÍTICAS SOCIALES, May 2001, at 1.

Kalantry, Sital et al., Enhancing Enforcement of Economic, Social, and Cultural Rights Using Indicators: A Focus on the Right to Education in the ICESCR, 32 HUM. RTS. Q. 253 (2010).

Kelsen, Hans, The Pure Theory of Law and Analytical Jurisprudence, 55 HARV. L. REV. 44 (1941).

Killander, Magnus, Interpreting Regional Human Rights Treaties, SUR INT’L J. ON HUM. RTS., Dec. 2013, at 145.

Lennox, Corinne & Carlos Minott, Inclusion of Afro-Descendents in Ethnic Data Collection: Towards Visibility, 18 INT’L J. ON MINORITY & GROUP RTS. 257 (2011).

Lopez, Vernadine & Arja Koskinen, La revitalización de la lengua y cultura garífuna a través de la educación [The Revitalization of the Garifuna Language and Culture Through Education], CIENCIA ET INTERCULTURALIDAD, Dec. 2009, at 8, https://revistas.uraccan.edu.ni/index.php/Interculturalidad/article/view/87/82.

326

MacNaughton, Gillian & Diane F. Frey, Decent Work for All: A Holistic Human Rights Approach, 26 AM. U. INT’L L. REV. 441 (2011).

MacNaughton, Gillian & Diane F. Frey, Decent Work, Human Rights and the Sustainable Development Goals, 47 GEO. J. INT’L L. 607 (2016).

Marín Morales, Ana María, Historia de una expulsión: Macondo y la materialización de la exclusión [History of Exclusion: Macondo and the Materialization of the Exclusion], MAGUARÉ REV., 2016, at 247.

Marquardt, Stephan, International Law and Indigenous Peoples, 3 INT’L J. GROUP RTS. 47 (1995).

Martin, Claudia, The Moiwana Village Case: A New Trend in Approaching the Rights of Ethnic Groups in the Inter-American System, 19 LEIDEN J. INT’L L. 491 (2006).

Morel, Cynthia, Invisibility in the Americas: Minorities, Peoples and the Inter-American Convention Against All Forms of Discrimination and Intolerance, REV. CEJIL, Sept. 2006, at 124.

Murillo Chavarro, Jimena, The Right to Water in the Case-Law of the Inter-American Court of Human Rights, ACDI ANUARIO COLOMBIANO DE DERECHO INTERNACIONAL, Apr. 2014, at 39.

Murthy, Sharmila L., The Human Right(s) to Water and Sanitation: History, Meaning, and the Controversy Over-Privatization, 31 BERKLEY J. INT’L L. 89 (2013).

Negishi, Yota, The Pro Homine Principle’s Role in Regulating the Relationship between Conventionality Control and Constitutionality Control, 28 EUR. J. INT’L L. 457 (2017).

Ng’weno, Bettina, Can Ethnicity Replace Race? Afro-Colombians, Indigeneity and the Colombian Multicultural State, 12 J. LAT. AM. & CARIBBEAN ANTHROPOLOGY 414 (2007).

Olmos Giupponi, Belen, Free, Prior and Informed Consent (FPIC) of Indigenous Peoples before Human Rights Courts and International Investment Tribunals: Two Sides of the Same Coin?, 25 INT’L J. ON MINORITY & GROUP RTS. 485 (2018).

Pasqualucci, Jo M., The Right to a Dignified Life (Vida Digna): The Integration of Economic and Social Rights with Civil and Political Rights in the Inter-American Human Rights System, 31 HASTINGS INT’L & COMP. L. REV. 1 (2008).

Reales, Leonardo, Ethnic Minorities and Human Rights Violations: The Afro-Colombian Case, 22 REV. LATINOAMERICANA DE DERECHOS HUMANOS 153 (2011).

327

Reales, Leonardo, The Human Rights Protection Regime for Afro-descendants the Case of Latin America and the Caribbean, 3 REV. DE RELACIONES INTERNACIONALES, ESTRATEGIA Y SEGURIDAD, Jan.–June 2008, at 25.

Rodley, Nigel S., Conceptual Problems in the Protection of Minorities: International Legal Developments, 17 HUM. RTS. Q. 48 (1995).

Roth, Kenneth, Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization, 26 HUM. RTS. Q. 63 (2004).

Rubin, Edward L., “Law and” and the Methodology of Law, 1997 WIS. L. REV. 521 (1997).

Ruiz Chiriboga, Oswaldo R., The Right to Cultural Identity of Indigenous Peoples and National Minorities: A Look from the Inter-American System, SUR INT’L J. ON HUM. RTS., Jan. 2006, at 43.

Salman, Salman M. A., The Human Right to Water – Challenges of Implementation, 106 AM. SOC’Y INT’L L. PROC. 44 (2012).

Sarkin, Jeremy & Mark Koenig, Developing the Right to Work: Intersecting and Dialoguing Human Rights and Economic Policy, 33 HUM. RTS. Q. 1 (2011).

Sollis, Peter, The Atlantic Coast of Nicaragua: Development and Autonomy, 21 J. LAT. AMER. STUD. 481 (1989).

Sutorius, Mies & Sonia Rodriguez, La fundamentalidad del derecho al agua en Colombia [The Fundamentality of the Right to Water in Colombia], REV. DERECHO DEL ESTADO, July– Dec. 2015, at 243.

Sylvander, Nora, Saneamiento Territorial in Nicaragua, and the Prospects for Resolving Indigenous-Mestizo Land Conflicts, J. LATIN AM. GEOGRAPHY, Apr. 2018, at 166.

Symonides, Janusz, Cultural Rights: A Neglected Category of Human Rights, 158 INT’L SOC. SCI. J. 559 (1998).

Thorne, Eva T., Land Rights and Garifuna Identity, NACLA REP. ON AMERICAS, Sept.–Oct. 2004, at 21.

Trifunovska, Snezana, Factors Affecting the Applicability and Efficiency of International Norms Protecting Linguistic Rights of Minorities, 9 INT’L J. ON MINORITY & GROUP RTS. 235 (2002).

Vasak, Karel, A 30-Year Struggle, UNESCO COURIER, Nov. 1977, at 29.

Ward, Tara, The Right to Free, Prior, and Informed Consent: Indigenous Peoples' Participation Rights within International Law, NW. J. INT’L HUM. RTS., Winter 2011, at 54.

328

Yupsanis, Athanasios, The Concept and Categories of Cultural Rights in International Law - Their Broad Sense and the Relevant Clauses of the International Human Rights Treaties, 37 SYRACUSE J. INT’L L. & COM. 207 (2010).

Interviews

Interview with Abraham Humphries, Teacher for Mathematics, Physics, and Chemistry at the Secondary School of Orinoco, in Orinoco, Nicar. (June 30, 2017).

Interview with Bernadine Dixon, Director of the Center for Research and Documentation on the Multiethnic Woman (CEIMM) at URACCAN University, in Managua, Nicar. (July 18, 2017).

Interview with Donnelea Gonzalez Flores, Owner of a Grocery Shop and Guesthouse, in Orinoco, Nicar. (July 5, 2017).

Interview with Efrain Miranda Cañate, Lawyer Specialized in Land Rights of Afro-Descendant Communities at the Atlantic Coast, in Cartagena, Colom. (July 27, 2017).

Interview with Ellen Lewin Downs, Judge at the Supreme Court of Nicaragua, in Managua, Nicar. (June 22, 2017).

Interview with Ernesto Colindres, Minister of the Anglican Church, in Orinoco, Nicar. (July 4, 2017).

Interview with Felix Sinclair, Wihta [Community Judge], in Orinoco, Nicar. (July 9, 2017).

Interview with Gelvis Godoy Córdoba, Community Leader, in Tierrabomba, Colom. (July 31, 2017).

Interview with Gonzalo Carrion, Director of the Legal Department of the Centro Nicaragüense de Derechos Humanos [Nicaraguan Center for Human Rights], in Managua, Nicar. (July 17, 2017).

Interview with Griega Sambola Brautigam, President of the Asociación Afro-Garífuna Nicaragüense ARGANIC [Nicaraguan Afro-Garifuna Association], in Orinoco, Nicar. (July 3, 2017).

Interview with Jennesis Godoy, Community Leader, in Tierrabomba, Colom. (Aug. 5, 2017).

Interview with Jhon Jairo Rodríguez, Community Leader and Fisherman, in Tierrabomba, Colom. (Aug. 3, 2017).

Interview with Jonathan Gonzalez, Carpenter, in Orinoco, Nicar. (July 2, 2017).

Interview with José Javier Moncaris Padilla, President of CORPODIS (Corporation for Integral and Sustainable Development in Tierrabomba), in Tierrabomba, Colom. (July 27, 2017). 329

Interview with Kensy Sambola, Owner of the “Hostal Garifuna” and Community Leader, in Orinoco, Nicar. (June 23, 2017).

Interview with Kevin Sambola, Musician and Young Community Leader, in Orinoco, Nicar. (July 3, 2017).

Interview with Letty Sinclair Davis, Doctor at the Communal Health Center, in Orinoco, Nicar. (July 5, 2017).

Interview with Luis Alberto Herrera Cardales, Community Leader, in Tierrabomba, Colom. (Aug. 4, 2017).

Interview with Luz Patricia Herrera Córdoba, Community Leader, in Tierrabomba, Colom. (July 31, 2017).

Interview with Marta Morales, President of the Community Council of Tierrabomba, Director of the Fundación Dones de Misericordia, and Pastor of the Protestant Church, in Tierrabomba, Colom. (Aug. 5, 2017).

Interview with Michel Martinez, Community Leader, in Tierrabomba, Colom. (Aug. 3, 2017).

Interview with Miguel Obeso, Community Leader, in San Basilio de Palenque, Colom. (July 29, 2017).

Interview with Mirla Aarón Freite, Human Rights Defender and Member of the Community Council of Tierrabomba, in Tierrabomba, Colom. (Aug. 2, 2017).

Interview with Ms. Elma, Midwife of Orinoco, in Orinoco, Nicar. (July 6, 2017).

Interview with Nancy Gomez, Pastor of the Catholic Church and Treasurer of the Communal Government of Orinoco, in Orinoco, Nicar. (July 4, 2017).

Interview with Noel Enrique Cardales Morales, Community Leader, in Tierrabomba, Colom. (Aug. 3, 2017).

Interview with Pablo Lienardo Barrio, Community Leader, in Tierrabomba, Colom. (Aug. 4, 2017).

Interview with Rebecca Flores, Teacher and Director of the Secondary School in Orinoco, in Orinoco, Nicar. (June 24, 2017).

Interview with Rodolpho Chang, Entrepreneur, in Bluefields, Nicar. (July 13, 2017).

Interview with Rosita Davis, Frente Sandinista Member of the Municipal Council in Pearl Lagoon, in Orinoco, Nicar. (July 6, 2017).

330

Interview with Ruben Hernandez Cassiani, Professor of History and Social Science, Univ. of Cartagena, in Cartagena, Colom. (Aug. 1, 2017).

Interview with Veronadine Lopez Stephen, Community Leader and Garifuna Representative in the Regional Council of RAAS, in Orinoco, Nicar. (June 24, 2017).

Interview with Victorina Lopez, Garifuna Language Teacher at the Primary School of Orinoco, in Orinoco, Nicar. (July 4, 2017).

Interview with Wilfran Jose Moncaris Padilla, Community Leader and Vice-President of the Community Council of Tierrabomba, in Tierrabomba, Colom. (Aug. 5, 2017).

Miscellaneous

Dissertations and Theses

Gafner-Rojas, Claudia, Der Schutz indigener Sprachen im Völkerrecht und in der kolumbianischen Rechtsordnung [The Protection of Indigenous Languages in International and Colombian Law] (2012) (PhD thesis, University of St. Gall), https://www1.unisg.ch/www/edis.nsf/SysLkpByIdentifier/4014/$FILE/dis4014.pdf.

Higuera Gómez, Sandra, El ecosistema cultural de litoral en Bocachica (isla de Tierrabomba - Cartagena): lineamientos básicos para la formulación de un plan especial de salvaguardia (PES) [The Cultural Ecosystem of the Coast in Bocachica (Island of Tierrabomba – Cartagena): Basic Outline for Formulating a Special Preservation Plan] (July 2013) (unpublished Master thesis, Javeriana University) (on file with author).

Lennox, Corinne, Mobilising for Group-Specific Norms: Reshaping the International Protection Regime for Minorities (July 2009) (PhD thesis, London School of Economics and Political Science), http://etheses.lse.ac.uk/2191/.

Vargas Cuadrado, Tania Patricia, Situación jurídica de la propiedad en Tierrabomba [Legal Property Situation in Tierrabomba] (2007) (unpublished B.A. thesis, University of Cartagena) (on file with the Central Library of the University of Cartagena, Colom.).

Unpublished Sources and Working Papers

Bello, Alvaro & Marcelo Paixão, Estado actual del cumplimiento de los derechos civiles, políticos, económicos, sociales y culturales de la población afrodescendiente en América Latina (Econ. Comm’n for Latin Am. & the Caribbean, Preliminary Version, 2008).

Thorne, Eva T., The Politics of Afro-Latin Land Rights (Apr. 3, 2008) (unpublished manuscript), http://citation.allacademic.com/meta/p_mla_apa_research_citation/2/6/7/6/2/p267621_in dex.html#get_document.

331

Websites and Electronic Resources

Brus, Marcel, Soft Law in Public International Law: A Pragmatic or a Principled Choice? Comparing the Sustainable Development Goals and the Paris Agreement, SSRN (Mar. 22, 2017), https://ssrn.com/abstract=2945942.

Call for submissions: WGEPAD 22nd Session “Framework for a Declaration on the Promotion and Full Respect of Human Rights of People of African Descent” 19-23 March 2018, Geneva, U.N. WORKING GROUP OF EXPERTS ON PEOPLE OF AFRICAN DESCENT, https://www.ohchr.org/EN/Issues/Racism/WGAfricanDescent/Pages/CallSubmissionWG EPAD22ndSession.aspx (last visited Apr. 11, 2020).

Corporaciones Autónomas Regionales [Autonomous Regional Corporations], MINISTERIO DE AMBIENTE Y DESARROLLO SOSTENIBLE DE COLOMBIA, http://www.minambiente.gov.co/index.php/component/content/article/885-plantilla- areas-planeacion-y-seguimiento-33 (last visited July 13, 2019).

Cortez, Menly, Las huellas de la afrodescendencia en El Salvador [The Traces of African Heritage in El Salvador], EL SALVADOR (Aug. 29, 2018), https://www.elsalvador.com/noticias/nacional/513773/las-huellas-de-la- afrodescendencia-en-el-salvador/.

Creación de la Agencia Nacional de Tierras [Establishment of the National Agency of Territories], AGENCIA NACIONAL DE TIERRAS, http://www.agenciadetierras.gov.co/la- agencia/creacion/ (last visited May 8, 2020).

Cultural Space of Palenque de San Basilio, UNESCO INTANGIBLE CULTURAL HERITAGE, https://ich.unesco.org/en/RL/cultural-space-of-palenque-de-san-basilio-00102 (last visited May 3, 2020).

Currency Converter, OANDA, https://www1.oanda.com/currency/converter/ (last visited Apr. 16, 2020).

De 873 denuncias por racismo en cuatro años, solo se ha dado una condena [Out of 873 Complaints on Racism in Four Years, Only One Conviction Was Issued], EL UNIVERSAL (May 17, 2016, 06:38 PM), https://www.eluniversal.com.co/colombia/de-873-denuncias- por-racismo-en-cuatro-anos-solo-se-ha-dado-una-condena-226399-AQEU332103.

Defensoría Delegada para Grupos Étnicos: Funciones [Ombudsman for Ethnic Groups: Functions], DEFENSORÍA DEL PUEBLO DE COLOMBIA, http://www.defensoria.gov.co/es/delegadas/12/ (last visited Aug. 15, 2019).

Desapariciones, paramilitarismo y fumigaciones en el Naya [Disappearances, Paramilitarism, and Fumigations in the Naya], COMISIÓN INTERECLESIAL DE JUSTICIA Y PAZ (Aug. 6, 2015), https://www.justiciaypazcolombia.com/desapariciones-paramilitarismo-y- fumigaciones-en-el-naya/.

332

Dirección General de Registros y Control de Abogados y Notarios Públicos [General Office of Registrars and Control of Attorneys and Notary Publics], Poder Judicial de Nicaragua, https://www.poderjudicial.gob.ni/consayn/default2.asp (last visited Aug. 16, 2019).

Eltis, David & Martin Halbert, Assessing the Slave Trade: Estimates, THE TRANS-ATLANTIC SLAVE TRADE DATABASE (2013), http://slavevoyages.org/assessment/estimates.

¿En qué va el proyecto de ley de consultas previas? [In What Stage is the Draft Law on Prior Consultation?], DINERO (Mar. 30, 2020), https://www.dinero.com/pais/articulo/en-que- va-el-proyecto-de-ley-de-consultas-previas/282937.

High Comm’r for Human Rights, Ratification Status for CERD - International Convention on the Elimination of All Forms of Racial Discrimination, http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx? Treaty=CERD&Lang=en (last visited Feb. 7, 2017).

Inter-Am. Comm’n on Human Rights, IACHR Creates Special Rapporteurship on the Rights of Persons of African Descent, and Racial Discrimination (Press Release 03/05) (Feb. 25, 2005), http://www.oas.org/en/ media_center/press_release.asp?sCodigo=IACHR-03.

Inter-Am. Comm’n on Human Rights, Introduction, BASIC DOCUMENTS IN THE INTER-AMERICAN SYSTEM, http://www.oas.org/en/iachr/mandate/Basics/introduction-basic-documents.pdf (last visited July 7, 2019).

Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance (A-68): Signatories and Ratifications, ORG. OF AM. STATES, http://www.oas.org/en/sla/dil/inter_american_treaties_A-68_racism_signatories.asp (last visited May 6, 2020).

Junieles, Irina, ¿Tierrabomba para quién? [Tierrabomba for Whom?], EL UNIVERSAL (Oct. 7, 2017), http://www.eluniversal.com.co/opinion/columna/tierrabomba-para-quien-13288.

Land and Human Rights, U.N., OFFICE OF THE HIGH COMM’R FOR HUMAN RIGHTS, https://www.ohchr.org/EN/Issues/LandAndHR/Pages/LandandHumanRightsIndex.aspx (last visited July 8, 2019).

Language, Dance and Music of the Garifuna, UNESCO INTANGIBLE CULTURAL HERITAGE, https://ich.unesco.org/en/RL/language-dance-and-music-of-the-garifuna-00001 (last visited Apr. 16, 2020).

Las comunidades bloquean la reglamentación de las consultas previas [The Communities Block the Regulation of the Prior Consultations], PORTAFOLIO (Apr. 22, 2018, 08:16 PM), https://www.portafolio.co/economia/las-comunidades-bloquean-la-reglamentacion-de- las-consultas-516431.

333

Lopez, Carlos Emilio, Cultura garífuna, Patrimonio Cultural Inmaterial de Nicaragua [Garifuna Cultura, Intangible Cultural Heritage of Nicaragua], FUNDACIÓN ILAM (Aug. 14, 2016), https://www.ilam.org/index.php/noticias/novedades-del- patrimonio/item/390-cultura-garifuna-patrimonio-cultural-inmaterial-de-nicaragua.

Martelo Tirado, Eleana, En un plazo de 10 días Distrito deberá intervenir cementerio de Tierrabomba [Within 10 Days the District Should Intervene in the Cemetery of Tierrabomba], EL UNIVERSAL (Oct. 30, 2016), https://www.eluniversal.com.co/cartagena/en-un-plazo-de-10-dias-distrito-debera- intervenir-cementerio-de-tierrabomba-238890-DXEU346984.

Martelo Tirado, Eleana, Piden activar plan de emergencia por crisis en cementerio de Tierrabomba [They Ask to Activate the Emergency Plan Due to the Crisis in the Cemetery of Tierrabomba], EL UNIVERSAL (Oct. 24, 2016), https://www.eluniversal.com.co/cartagena/piden-activar-plan-de-emergencia-por-crisis- en-cementerio-de-tierrabomba-238447-AXEU346457.

Miranda P., Hulda & Oscar Rodriguez, Fiscala fue suspendida un mes por insulta racista a compañera [Attorney General Was Suspended For One Month For Racist Insult Against Colleague], LA NACIÓN (Feb. 13, 2016), https://www.nacion.com/sucesos/judiciales/fiscala-fue-suspendida-un-mes-por-insulto- racista-a-companera/UGZA2YYHMBEG7E7FNXYXTBZ76A/story/.

Orinoco – Capital of Garifuna People, HOSTAL GARIFUNA, http://www.hostalgarifuna.net/index.php/en/live-garifuna-culture/orinoco-garifuna- capitol-in-nicaragua (last visited July 1, 2019).

Port, Fortresses and Group of Monuments, Cartagena, U.N., EDUC., SCI., AND CULTURAL ORG., http://whc.unesco.org/en/list/285 (last visited Oct. 8, 2018).

Posner, Eric, Human Rights Law is Too Ambitious and Ambiguous, THE NEW YORK TIMES (Dec. 28, 2014, 7:36 PM), https://www.nytimes.com/roomfordebate/2014/12/28/have-human- rights-treaties-failed.

¿Qué es el Inspector de Trabajo? [What is the Work Inspector?], MINISTERIO DEL TRABAJO DE COLOMBIA, http://www.mintrabajo.gov.co/relaciones-laborales/inspeccion-vigilancia-y- control/que-es-el-inspector-de-trabajo (last visited Aug. 15, 2019).

¿Qué hacemos? [What Do We Do?], DIRECCIÓN DE CONSULTA PREVIA, MINISTERIO DEL INTERIOR DE COLOMBIA, https://consultaprevia.mininterior.gov.co/node/21329 (last visited Aug. 15, 2019).

Ruta de atención [Roadmap], MINISTERIO DEL INTERIOR DE COLOMBIA, https://dacn.mininterior.gov.co/node/22670 (last visited Apr. 27, 2020).

334

Salario mínimo en Colombia 2017 [Minimum Salary in Colombia 2017], PORTAFOLIO, https://www.portafolio.co/economia/empleo/salario-minimo-colombia-2017-109538 (last visited Apr. 16, 2020).

Se reunió Mesa Nacional contra el racismo [Meeting of the National Roundtable Against Racism Took Place], EL NUEVO SIGLO (June 20, 2014, 12:00 PM), https://elnuevosiglo.com.co/articulos/6-2014-se-reunio-mesa-nacional-contra-el-racismo.

Tarifas agua de Cartagena [Water Tariffs of Cartagena], Aguas de Cartagena, https://www.acuacar.com/Oficina-virtual/Conozca-su-factura/Tarifas (last visited Apr. 16, 2020).

The Foundation of International Human Rights Law, UNITED NATIONS, https://www.un.org/en/sections/universal-declaration/foundation-international-human- rights-law/index.html (last visited May 2, 2020).

Tras liderar titulación colectiva de terrenos en Tierra Bomba, líder denuncia haber recibido amenazas de muerte [After Leading the Collective Land Titling in Tierrabomba, Leader Has Reportedly Received Death Threats], RCN RADIO (Dec. 13, 2017), https://www.rcnradio.com/colombia/caribe/tras-liderar-titulacion-colectiva-terrenos- tierra-bomba-lider-denuncia-haber-recibido-amenazas-muerte.

335