The Saramaka People Decision of the Inter-American Court of Human Rights

Home , Saramaka, Surinamese people

# The Author 2008. Published by Oxford University Press. All rights reserved. Advance Access publication 12 August 2008 ...... The Rise of Peoples’ Rights in the Americas: The Saramaka People Decision of

the Inter-American Court Downloaded from of Human Rights

Lisl Brunner* http://chinesejil.oxfordjournals.org/

Abstract

The Saramaka People v. Suriname decision of the Inter-American Court of Human Rights recognized the right of a non-indigenous minority group to the natural resources within its lands. Three factors make the decision signiﬁcant: First, it afﬁrms that certain tribal groups are more akin to indigenous communities than at universite du quebecMontreal on February 13, 2013 they are to other ethnic, linguistic or religious minorities in terms of the rights they possess. Second, the holding adopts an evolving principle of international law and makes it a binding norm in the Americas, enunciating a test to guide future interpretations of Article 21 of the American Convention. Finally, the Court’s incorporation of peoples’ rights into its analysis renders the decision a topical contribution to current debates on the meaning and scope of these rights.

I. Introduction 1. The Inter-American Court of Human Rights recently became the first international tribunal to hold that a non-indigenous minority group has legal rights to the natural resources within the lands it has inhabited for centuries. In Saramaka People v. Suriname, the Court ruled that a tribal group which shares the characteristics that make indigenous peoples unique—a spiritual relationship with the land and a distinct culture, language and traditions—is entitled to the same spectrum of land and resource rights.1 By reaching this conclusion, the Court has defined the scope of evolving principles of international law and adopted them as binding norms in the Americas. Even more significantly, the Court elected to incorporate the concept of peoples’ rights into its interpretation of the

Ã J.D. University of Pittsburgh, 2008 (email: [email protected]). This paper was completed on 1 April 2008. 1 Case of the Saramaka People v. Suriname, Inter-Am. Ct. H.R. (ser. C) No. 172 (28 November 2007).

...... Chinese Journal of International Law (2008), Vol. 7, No. 3, 699–711 doi:10.1093/chinesejil/jmn031 700 Chinese JIL (2008)

American Convention. As the decision was issued within months of the UN Declaration on the Rights of Indigenous Peoples2 and Kosovo’s declaration of independence, Saramaka People is likely to contribute to a provocative dialogue about the scope of peoples’ rights and the identity of the peoples who can claim them.

II. Background Downloaded from II.A. The Saramaka community 2. The Saramaka are one of the six tribes of Maroons who have inhabited inland Suriname since the early 1700s.3 Descendants of slaves brought by Dutch settlers in the seventeenth century, the Maroons escaped and created communities which are culturally and linguisti- http://chinesejil.oxfordjournals.org/ cally distinct from Surinamese society and which follow their own customs and laws.4 In 1762, the Saramaka signed a treaty with the Surinamese government establishing the tribe’s independence and authority to govern its territory on the basis of these customary laws.5 When the treaty was renewed in 1835, the government agreed to demarcate the Saramaka’s territory, and it recognized the tribe’s right to exploit the resources contained therein.6 The 12 matrilineal clans of Saramaka that presently inhabit Suriname continue to survive by hunting, ﬁshing and woodworking, but their relationship with the land is more than economic. They believe that the land which gave rise to their freedom and 7 nurtured their culture contains the spirits of their ancestors. During the hearing, expert at universite du quebecMontreal on February 13, 2013 witness Richard Price explained that the community’s ways of using its land “cement the life and cultural continuity of the Saramaka people”.8 3. Although the Surinamese Constitution of 1986 declared that all natural resources belong to the State,9 the government did not intrude upon the treaty rights of the Maroons until the 1990s, when its economy began to suffer.10 When it granted logging and mining concessions to private companies on Saramaka lands without consulting the tribe, the Saramaka brought a petition before the Inter-American Commission on Human Rights.11 Unable to secure a friendly settlement of the matter, the Commission submitted the case to the Inter-American Court of Human Rights, alleging that Suriname

2 GA Res 61/178, UN Doc. A/61/L.67/Add. 1 (13 September 2007) (hereinafter “UN Declaration”). 3 Final Written Arguments of the Inter-American Commission on Human Rights, Wazen Eduards et al. (Twelve Saramaka Clans) v. Suriname, Case 12.338, 4-6 (hereinafter “IACHR Br.”). 4 Ibid., 4–5; Ellen-Rose Kambel and Fergus MacKay, The Rights of Indigenous Peoples and Maroons in Suriname (1999), 56. 5 See Case of Aloboetoe et al. v. Suriname. Inter-Am. Ct. H.R. (ser. C) No. 15 (10 September 1993), para. 56. 6 Kambel and MacKay, above n.4, 60, 71. 7 IACHR Br. at 7; see also, Case of the Moiwana Community v. Suriname, Inter-Am. Ct. H.R. (ser. C) No. 124 (15 June 2005), paras 101–102. 8 IACHR Br. at 7. 9 Const. Suriname (1992), Art. 41. 10 Kambel and MacKay, above n.4, 13–15. 11 Twelve Saramaka Clans, Inter-Am. C.H.R., Case No. 12.338, Report No. 09/06 (2 March 2006). Brunner, The Rise of Peoples’ Rights in the Americas 701 had violated the Saramaka’s rights to property (Article 21) and to a legal regime that protects them (Article 25) under the American Convention on Human Rights.12

II.B. Foundations for Saramaka People v. Suriname 4. The Court’s decision in Saramaka People was a logical extension of its progressive jurisprudence regarding the land and resource rights of indigenous peoples. In 2001, the Downloaded from Court became the ﬁrst international tribunal to hold that a State must protect indigenous communities’ rights to their traditional lands.13 In the Awas Tingni case, the Court applied “an evolutionary interpretation” of human rights instruments to conclude that the possession of these lands was sufﬁcient to create legal rights of ownership under Article 14

21 of the American Convention. The decision was based on the unique nature of indige- http://chinesejil.oxfordjournals.org/ nous peoples, whose “close ties ...with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival.”15 Since the Awas Tingni decision, the Court and the Inter-American Commission on Human Rights have consistently expanded their interpretations of Article 21, stating on a few occasions that indigenous communities have rights to the natural resources located within their traditional lands.16 These holdings have been incorporated into the Proposed American Declaration on the Rights of Indigenous Peoples, which speciﬁes that when the State owns the rights to mineral or subsoil resources, indigenous communities should be consulted prior to the exploitation of these resources and should share in the proﬁts.17 at universite du quebecMontreal on February 13, 2013 5. In 2005, the Court extended its interpretation of Article 21 to protect the land rights of a different Maroon tribe in Suriname. In its Moiwana Village decision, the Court observed that the N’djuka tribe, “like other indigenous and tribal peoples, have a profound and all-encompassing relationship to their ancestral lands.”18 Because the community had inhabited these lands “in strict adherence to N’djuka custom” for over 100 years, the Court concluded that “this Court’s holding with regard to indigenous communities and their communal rights to property under Article 21 of the Convention must also apply to the tribal Moiwana community members . . .”.19 Although the core claim involved a massacre of Maroons by State agents rather than an issue of property rights, the Court

12 Case of the Saramaka People, para. 3; see American Convention, OASTS No. 36; 1144 UNTS (1969), 123. 13 S. James Anaya and Claudio Grossman, The Case of Awas Tingni v. Nicaragua: A New Step in the International Law of Indigenous Peoples, 19 Arizona JICL (2002), 1, 2. 14 Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-Am. Ct. H.R. (ser. C) No. 79 (31 August 2001), paras 148–151. 15 Ibid., para. 149. 16 Case of the Yakye Axa Indigenous Community v. Paraguay, Inter-Am. Ct. H.R. (ser. C) No. 125 (17 June 2005), para. 135; Matter of Pueblo Indı´gena de Sarayaku Regarding Ecuador (Provisional Measures), Inter-Am. Ct. H.R. (ser. E) No. 21 (17 June 2005), para. 2. See also, Maya Indigenous Communities of the Toledo District (Belize), Inter-Am. C.H.R., Case 12.053, Report No. 40/04 (12 October 2004). 17 OEA/Ser/L/V/II.95 Doc. 6 (1997), Art. XVIII(2). 18 Moiwana, para. 132. 19 Ibid., para. 133. 702 Chinese JIL (2008) nonetheless ordered Suriname to grant formal legal recognition of the tribe’s right to own and occupy its land.20

III. The Saramaka People v. Suriname decision 6. In its latest case, the Court identiﬁed the Saramaka as a tribal people whose lifestyle resembles that of indigenous communities.21 Like the latter, the Saramaka were found to Downloaded from have a strong spiritual relationship with the land they have traditionally inhabited.22 The pre- sence of sites that are sacred to the Saramaka and the fact that the tribe realized its freedom from slavery on the land supported this conclusion.23 Furthermore, the Court found that rather than serving as a mere source of subsistence, “[t]he lands and resources of the http://chinesejil.oxfordjournals.org/ Saramaka people are part of their social, ancestral, and spiritual essence” and are necessary to the tribe’s survival.24 Recalling its Moiwana decision, the Court held that tribal groups meeting these criteria merit the same scope of land rights that indigenous peoples possess.25 7. Rather than restricting its interpretation of Article 21 to an extension of its past holdings, however, the Court looked to Common Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), as well as Article 27 of the ICCPR, for guidance.26 Observ- ing that Suriname is a party to both conventions, the Court invoked Article 29(b) of the

American Convention, which prohibits any interpretation of the Convention that would at universite du quebecMontreal on February 13, 2013 give its rights a narrower construction than that which appears in other treaties to which the State is a party.27 It cited UN commentaries indicating that the right to self- determination in Common Article 1 applies to indigenous peoples and that Article 27 encompasses their rights to enjoy their lands and resources.28 The Court concluded that these provisions

suppor[t] an interpretation of Article 21 of the American Convention to the effect of calling for the right of members of indigenous and tribal communities to freely determine and enjoy their own social, cultural and economic development, which includes

20 Ibid., para. 197. 21 Saramaka People, paras 79–86. 22 Ibid., para. 82. 23 Ibid. 24 Ibid., para. 82. 25 Ibid., paras 85–86. 26 Ibid., para. 93. ICCPR, 999 UNTS (16 December 1966), 171; ICESR, 993 UNTS (16 December 1966), 3. Common Article 1 enshrines the right of all peoples to self-determination and to determine their political status and their economic, social and cultural development. Art. 27 expresses the right of minority groups to prac- tise their culture. 27 Saramaka People, paras 92–93. 28 Ibid., para. 93 (citing Concluding Observations on the Russian Federation, UN Doc. E/C.12/1/Add.94 (12 December 2003), para. 11), para. 94 (citing General Comment No. 23: The Rights of Minorities (Art. 27), UN Doc. CCPR/C/21/Rev.1/Add.5 (1994), paras 1, 3.2). Brunner, The Rise of Peoples’ Rights in the Americas 703

the right to enjoy the particular spiritual relationship with the territory they have traditionally used and occupied.29

8. After finding that Suriname had violated the group’s rights “to effectively control their territory without outside influence”,30 the Court turned to the issue of natural resources. It recalled its earlier holdings that the cultural and economic survival of indigenous and tribal peoples depends on their ability to use the natural resources that are linked with Downloaded from their traditions.31 Thus, it affirmed that Article 21 protects the rights of these communities to “those natural resources traditionally used and necessary for the very survival, development and continuation of such people’s way of life.”32 9. The Court’s holding recognized the inherent limitations on the resource rights of a single group in a country of millions, especially in the light of the Surinamese Constitution. http://chinesejil.oxfordjournals.org/ It enunciated a test that draws and expands on earlier holdings and the Proposed American Declaration: A state may only restrict the use and enjoyment of an indigenous or tribal group’s right to property when it acts according to a previously established law, when it is necessary, proportional, and pursuant to a legitimate aim in a democratic society, and when it does not deny a community its traditions and customs in a way that endangers its survival.33 When such restrictions occur, the indigenous or tribal group must be an effec- tive participant in the decision-making process, and its members must receive a reasonable 34 benefit from the plan undertaken. Furthermore, an independent assessment of the at universite du quebecMontreal on February 13, 2013 environmental and social impact must occur prior to granting any concessions.35 The community should be informed of the risks involved, and where significant development projects are likely to have a major impact on the land, the group’s free, prior and informed consent is required.36 The Court observed that legal interpretations of the UN, including the new UN Declaration, also support this balancing approach.37 10. Applying these criteria to the facts at hand, the Court concluded that Suriname had failed to carry out all of these obligations with respect to the Saramaka’s rights to timber.38 Although the Saramaka had not traditionally used gold, the mining concessions were also deemed to violate the tribe’s property rights, as these caused substantial environmental damage.39

29 Ibid., para. 95. 30 Ibid., para. 115. 31 Ibid., para. 120. 32 Ibid., para. 122. 33 Ibid., paras 127–128. 34 Ibid., paras 129. 35 Ibid. 36 Ibid., paras 133–134. 37 Ibid., paras 131–140. 38 Ibid., para. 154. 39 Ibid., para. 156. 704 Chinese JIL (2008)

IV. Significance of the decision 11. Saramaka People is the first binding international decision to recognize tribal peoples’ rights to the natural resources located in their lands, indicating that tribal peoples are more akin to indigenous communities than they are to other ethnic, linguistic or religious minorities. Two additional aspects of the decision make it noteworthy. The holding adopts an evolving principle of international law as a binding norm in the Americas and defines the scope of that norm. In addition, rather than merely applying its past holdings Downloaded from to justify its present conclusion, the Court looks to peoples’ rights in interpreting the American Convention. Its election to take this step when other international human rights organs have avoided it adds weight to the decision, especially at a time when peoples’ rights are at the centre of international debate. http://chinesejil.oxfordjournals.org/

IV.A. The convergence of indigenous and tribal peoples’ rights 12. Although the Inter-American Court’s jurisprudence had already begun to eliminate the distinction between the rights of indigenous and tribal peoples prior to the Saramaka People decision, the convergence of rights is not as clearly articulated in other international instruments and jurisprudence. The new UN Declaration recognizes that indigenous peoples possess a broader spectrum of rights than are generally afforded to other minority groups. Yet the Declaration contains no definition of indigenous peoples, as UN member States could not reach agreement on the subject.40 James Anaya writes that the term “refers at universite du quebecMontreal on February 13, 2013 broadly to the living descendants of preinvasion inhabitants of lands now dominated by others. Indigenous peoples, nations, or communities are culturally distinctive groups that find themselves engulfed by settler societies born of the forces of empire and conquest.”41 The International Labour Organization’s Convention No. 169 on the Rights of Indigenous and Tribal Peoples contains a similar definition.42 13. ILO Convention No. 169 is the only instrument to define “tribal peoples”, which it describes 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.”43 As the only binding instrument to delineate the rights of both indigenous and tribal groups, ILO Convention No. 169 affords the same protections to both. Only 19 States are parties to this convention, however, and Suriname is not among them. 14. For the Inter-American Court, a community’s relationship with the land and the degree to which that relationship has given rise to a unique culture seems to be the basis

40 Stefania Errico, The UN General Assembly adopts the Declaration on the Rights of Indigenous Peoples, update to ASIL Insight vol. 10, issue 19 (9 October 2007) (www.asil.org/insights/2006/08/insights060814.html) (last visited 8 July 2008). 41 S. James Anaya, Indigenous Peoples in International Law (2nd edn, 2004), 3. 42 Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, 72 ILO Official Bulletin 59; 28 ILM (1989), 1382, Art. 1(1)(b) (hereinafter ILO Convention No. 169). 43 Ibid., Art. 1(1)(a). Brunner, The Rise of Peoples’ Rights in the Americas 705 for distinguishing indigenous and tribal peoples from other minority groups. The UN Human Rights Committee’s jurisprudence reflects a similar approach. The Committee has interpreted Article 27 of the ICCPR as encompassing “a particular way of life associated with the use of land and resources, especially in the case of indigenous peoples.”44 On several occasions, the Committee has indicated that a State could violate Article 27 if it permitted the exploitation of natural resources located in indigenous communities’ lands without first consulting them.45 Similarly, the Committee has suggested that Article 27 might also protect Downloaded from the land and resource rights of Maroons in Suriname.46 The UN Committee on the Elim- ination of Racial Discrimination echoed these observations with respect to the Convention on the Elimination of all Forms of Racial Discrimination.47 15. On the basis of these interpretations, Article 27 would not seem to offer the same pro-

tections to ethnic, linguistic or religious minorities that lack a close relationship with the http://chinesejil.oxfordjournals.org/ land. Unlike the Saramaka, these groups might reasonably be made whole if the State inter- feres with their land rights, provided it pays them compensation or provides relocation assist- ance. In this connection, when Namibia expropriated the lands of the Rehoboth Baster community, a group comprised of the offspring of settlers and indigenous peoples, the Com- mittee found no violation of Article 27.48 Although the community had inhabited its lands for 125 years, the Committee found that its way of life was not so intertwined with the land that a unique culture had emerged.49 16. In general, Maroon communities are sufficiently similar to indigenous communities to render the convergence of their rights uncontroversial. Future cases may not be as straight- at universite du quebecMontreal on February 13, 2013 forward, however, as the Rehoboth Baster situation demonstrates. Nomadic tribes in Africa or Central Asia, for example, may fit the ILO definition of “tribal peoples”, but these groups often lack the long-term connection with the land that has led the Inter-American Court and the Human Rights Committee to distinguish the land rights of certain minority groups from those of others. Yet a nomadic tribe that followed a specific circuit, returning to the same lands on a periodic basis for hundreds of years might have a colourable claim for rights to those lands and the resources within them. In such a case, the balancing of interests might weigh more heavily in favour of the State. With a growing body of international law that includes the Saramaka People decision and the UN Declaration, claims by an increasing variety of groups are likely to come, and human rights bodies may be called on

44 General Comment No. 23: The Rights of Minorities (Art. 27), UN Doc. CCPR/C/21/Rev.1/Add.5 (1994), para. 7. 45 Jouni E. Lansman et al. v. Finland, UN Doc. CCPR/C/58/D/671/1995 (30 October 1996); Ilmari Lansman v. Finland, UN Doc. CCPR/C/52/D/511/1992 (8 November 1994); Aarela and Nakkalajarvi v. Finland, UN Doc. CCPR/C/73/D/779/1997 (7 November 2001); Apirana Mahuika et al. v. New Zealand, UN Doc. CCPR/C/D/70/547/1993 (20 October 2000) (no violations were found in any of these cases, as the Commit- tee concluded that the States had consulted indigenous groups prior to taking action). 46 Concluding Observations on Suriname, UN Doc. CCPR/CO/80/SUR (30 March 2004), para. 21. 47 CERD General Comment No. 23: Indigenous Peoples, UN Doc. A/52/18, Annex V, 122–123; Concluding Observations on Suriname, UN Doc. CERD/C/64/CO/9/Rev.2 (12 March 2004), paras 190–194. 48 J.G.A. Diergaardt et al. v. Namibia, UN Doc. CCPR/C/69/D/760/1996 (25 July 2000). 49 Ibid., para. 10.6 (the Committee also noted that the facts of the case were disputed). 706 Chinese JIL (2008) to reﬁne or re-examine their criteria for determining the protections to which different groups are entitled.

IV.B. Affirming the right to natural resources 17. The Saramaka People decision augments an evolving body of law that recognizes the rights of indigenous peoples (and increasingly, of tribal peoples) to natural resources in both the Inter-American and international spheres. Earlier decisions by the Court and Downloaded from the Commission, as well as the Proposed American Declaration, have acknowledged these rights, but not necessarily in contexts that have produced binding norms. The Court addressed indigenous peoples’ rights to natural resources on two occasions in 2005; however, one case focused solely on land rights,50 and the other arose in the http://chinesejil.oxfordjournals.org/ context of provisional measures, in which the merits of a case are not explored.51 In 2004, the Commission interpreted the American Declaration on the Rights and Duties of Man as recognizing an indigenous group’s right to natural resources;52 yet this instrument lacks the binding force of the American Convention. Finally, the Proposed American Declaration is neither a binding instrument nor a finalized statement of principles at this time. Thus, the Court’s clear interpretation of Article 21 in Saramaka People creates a clear precedent on which both Inter-American organs and the national courts of some member States will rely. 18. The Saramaka People decision also adds to an emergent body of international law that at universite du quebecMontreal on February 13, 2013 has grappled with these questions. The ruling was issued three months after the adoption of the UN Declaration on the Rights of Indigenous Peoples. According to this instrument, “[i]ndigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership” and States must grant them legal recognition of these lands and resources.53 It also requires States to consult with indigenous communities “in order to obtain their free and informed consent prior to the approval of any project affecting their lands ... and other resources.”54 One hundred and forty-three States (including Suriname) have signed this declaration, which builds on the principles that were enunciated in the 1989 ILO Convention No. 169 (but which never gained broad support). Although the Declaration lacks the binding force of a Convention, it evinces a growing consensus surrounding these norms. 19. In addition to the findings of the UN Human Rights Committee (see part III.A), other international organizations and domestic tribunals have acknowledged that indigenous communities have certain rights to their natural resources. UN Special Rapporteur on Indigenous Populations Erica-Irene A. Daes contended in a 2004 report that indigenous

50 Case of the Yakye Axa Indigenous Community, para. 135. 51 Matter of Pueblo Indı´gena de Sarayaku Regarding Ecuador, para. 2. 52 Maya Indigenous Communities of the Toledo District (Belize); see American Declaration Art. XXIII, OAS Res XXX, reprinted in O.A.S./Ser.L/V/I.4 Rev. 9 (2003). 53 UN Declaration Art. 26(2)–(3). 54 Ibid., Art. 32(2). Brunner, The Rise of Peoples’ Rights in the Americas 707 peoples’ sovereignty over their natural resources should be recognized.55 Daes conceded that these rights need not be absolute if the State is the owner of natural resources, but she emphasized that indigenous communities’ rights may not be lesser than those of private individuals and corporations.56 In addition, the highest courts of Canada and South Africa have held that aboriginal title includes the right to exploit mineral resources located in a community’s traditional lands.57 The less sweeping notion that a State must exploit the resources in its territory in a way that benefits its people and respects the rights of indigenous Downloaded from communities has gained the support of numerous scholars and organizations.58 The African Charter on Human and Peoples’ Rights has been interpreted to require this.59 Even financial development institutions such as the World Bank and the Inter-American Development Bank have adopted policies reflecting this understanding.60

20. The instruments, literature and court decisions of the past 10 or 12 years show a http://chinesejil.oxfordjournals.org/ developing recognition of indigenous communities’ rights to the natural resources within their traditional lands. Yet at present, the right is seen as neither binding nor well-deﬁned. For this reason, the Inter-American Court’s adoption of this principle and articulation of its scope makes Saramaka People an important precedent.

IV.C. Incorporating peoples’ rights into the American Convention 21. In its earlier cases, the Court portrayed the right of indigenous peoples to land and

resources as instrumental to their right to life. Because indigenous and tribal communities at universite du quebecMontreal on February 13, 2013 have such a profound spiritual connection with the land, the State’s incursion on that land was seen as threatening the destruction of the communities.61 The Court dedicated most of its analysis in Saramaka People to reiterating this premise. Yet by incorporating Common Article 1 of the Human Rights Covenants into its analysis, the Court implied that the right to land and resources may have a more intrinsic value for communities like

55 UN Economic and Social Council (ECOSOC), Sub-Commission on the Promotion and Protection of Human Rights, Prevention of Discrimination and Protection of Indigenous Peoples: Indigenous Peoples’ Permanent Sovereignty Over Natural Resources, UN Doc. E/CN.4/Sub.2/2004/30 (13 July 2004) (prepared by Erica-Irene A. Daes). 56 Ibid., 13, 15–16. 57 Delgamuukw v. British Columbia (1997), 3 SCR 1010, paras 194, 199, 201; Alexkor Ltd v. Richtersfeld Com- munity, CCT/1903 (2003), para. 102. 58 See, e.g., ECOSOC, Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Right to Self-Determination 71, UN Doc. E/CN.4/Sub.2/404/Rev.1, UN Sales No. E.80.XIV.3 (1980) (prepared by Aureliu Critescu); Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (1997), 319; UN Convention on Biological Diversity Art. 8( j), 31 ILM (1992), 818; Rio Declaration on the Environment and Development of 1992, principle 22, 31 ILM (1992), 874. 59 African Commission on Human and People’s Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, Comm. No. 155/96 (2001). 60 World Bank Operational Manual, Operational Policy 4.10, Indigenous Peoples (July 2005) (The World Bank urges investors to engage in “free, prior, and informed consultation” rather than “consent”); World Bank Legal Department, Legal Note on Indigenous Peoples (8 April 2005); Inter-American Development Bank, Oper- ational Policy on Indigenous Peoples and Strategy for Indigenous Development, OP-765 (July 2006). 61 Awas Tingni, para. 149; Yakye Axa, para. 131; Moiwana Community, para. 132. 708 Chinese JIL (2008) the Saramaka. Rather than a means to the end of survival, these rights may be inherent in indigenous and tribal communities’ nature as “peoples”. 22. Common Article 1 articulates the two clear rights of “peoples” in international law: the rights to self-determination and to control over natural resources.62 Statements of these rights have also appeared in the UN General Assembly Resolutions63 and in the African Charter.64 Their articulation together has led some to conclude that the right to self-determination is “intimately linked” with the notion of permanent sovereignty over Downloaded from natural resources.65 However, while self-determination is a fairly well-established right of peoples, there is less consensus supporting the right to sovereignty over natural resources.66 Identifying the “peoples” who possess these rights is an even more contentious task. IV.C.i. The right to self-determination 23. Indigenous and tribal peoples generally enjoy the right to self-determination in the http://chinesejil.oxfordjournals.org/ Americas, although it is internal rather than external. Ian Brownlie deﬁnes self- determination as “the right of cohesive national groups (‘peoples’) to choose for themselves a form of political organization and their relation to other groups. The choice may be independence as a State, association with other groups in a federal State, or autonomy or assimilation in a unitary (non-federal) State.”67 The latter two options describe the tribal sovereignty that the Saramaka gained through treaties with Suriname, as well as that which indigenous peoples in the United States, Canada, Nicaragua and Paraguay possess.68 Both the UN Declaration and ILO Convention No. 169 advocate this type of at universite du quebecMontreal on February 13, 2013 internal self-determination for indigenous and tribal peoples.69 24. Even though the right to internal self-determination within a larger State may often satisfy the needs of both indigenous peoples and States, the concept continues to generate controversy. Some States perceive the right as necessarily implying a claim to independent statehood or secession.70 Such fears were partially responsible for the delay in adopting

62 See, e.g., Roland Rich, The Right to Development: A Right of Peoples?, in: James Crawford (ed.), The Rights of Peoples (1988), 44. 63 GA Res 1314 (XIII) (1958); GA Res. 2542 (XXIV) of 11 December 1969. 64 OAU Doc. CAB/LEG/67/3 rev. 5, 1520 UNTS (1986), Arts 20–21, 217; see also Universal Declaration on the Rights of Peoples, Algiers (4 July 1976), Arts 5, 8 (as an instrument drafted by individuals rather than States, it cannot be fairly cited as evidence of customary international law or international consensus). 65 Erica-Irene A. Daes, Some Considerations on the Rights of Indigenous Peoples to Self-Determination, 3 Trans- national Law & Contemporary Problems (1993), 1, 4; ECOSOC, Sub-Commission on Prevention of Discrimi- nation & Protection of Minorities, The Right to Self-Determination 27, UN Doc. E/CN.4/Sub.2/405/Rev.1, UN Sales No. E.79.XIV.5 (1980) (prepared by Hećtor Gros Espiell). 66 James Crawford, Some Conclusions on the Rights of Peoples, in: James Crawford (ed.), The Rights of Peoples (1988), 164–166. 67 Ian Brownlie, Principles of Public International Law (6th edn, 2003), 553. 68 See, e.g., Ian Brownlie, The Right of Peoples in Modern International Law, 8 Bulletin of Australian Legal Phil- osophy (1985), 105, 108–109; Catherine M. Bro¨lman and Marjoleine Y.A. Zieck, Indigenous Peoples, in: Bro¨lman et al. (eds), Peoples and Minorities in International Law (1993), 218. 69 UN Declaration Art. 46(1); ILO Convention No. 169, Arts 1(3), 7–12; Errico, above n.41; Brolmann and Zieck, above n.69, at 215–217. 70 See, e.g., Anaya, above n.41, 102. Brunner, The Rise of Peoples’ Rights in the Americas 709 the UN Declaration;71 they are also reflected in the Human Rights Committee’s consistent refusal to hear petitions by indigenous and minority groups invoking the right to self- determination under Article 1 of the ICCPR.72 25. While debate continues as to whether indigenous and tribal peoples are inherently entitled to internal self-determination, few contend that other ethnic, religious or linguistic minority groups possess this right. This is explained by definitions of the “peoples” thought to possess the right to self-determination, which correspond to the former but not the latter. Downloaded from According to UN Special Rapporteur Aureliu Critescu, a “people” is generally a social entity with a unique identity and characteristics and a special relationship with a territory.73 Never- theless, he adds that “a people should not be confused with ethnic, religious or linguistic minorities, whose existence and rights are recognized in article 27 of the [ICCPR]”.74

UN Special Rapporteur Hećtor Gros Espiell writes that “peoples” are “a specific type of http://chinesejil.oxfordjournals.org/ human community sharing a common desire to establish an entity capable of functioning to ensure a common future”.75 James Anaya and Erica-Irene A. Daes contend that indigenous communities easily fit these definitions of “peoples”.76 By extension, tribal communities with similar characteristics would also qualify as “peoples”.

IV.C.ii. Permanent sovereignty over natural resources 26. While indigenous communities qualify as “peoples” who possess the right to self- determination, their claim to natural resources is less established. Often phrased as “per-

manent sovereignty over natural resources”, this right has been described as “the essential at universite du quebecMontreal on February 13, 2013 feature of the economic aspect of self-determination.”77 It originated with General Assembly Resolution 626 of 1952, whose preamble proclaimed that “the right of peoples freely to use and exploit their natural wealth and resources is inherent in their sovereignty . . .”.78 This statement has reappeared in General Assembly Resolutions throughout the years,79 and Resolution 1803 is seen as the greatest expression of the principle.80 The right has been described as one of sovereign States,81 as a joint right of States

71 Errico, above n.40. 72 Sarah Joseph et al., The ICCPR: Cases, Materials and Commentary (2004), 142–143, 150–151; see also Bernard Ominayak, Chief of the Lubicon Lake Band, on behalf of the Lubicon Lake Band v. Canada, UN Doc. CCPR/C/38/D/167/1984 (10 May 1990), para. 32.1. 73 Critescu, above n.58, 39–41. 74 Ibid. 75 Gros Espiell, above n.65, 9. 76 Anaya, above n.41, 3, 100; Daes, above n.65, 6–9. 77 Critescu, above n.58, at 45; see also 78, 121; Daes, above n.56, 5, 7–8. 78 GA Res 626 (VII) of 21 December 1952. 79 See, e.g., GA Res 1314 (XIII) of 12 December 1958; GA Res 1720 (XVI) of 19 December 1961; GA Res 2692 (XXV) of 11 December 1970 (right of peoples and nations). 80 See, e.g., Emeka Duruigbo, Permanent Sovereignty over Natural Resources and Peoples’ Ownership of Natural Resources in International Law, 38 George Washington ILR (2006), 33, 38. 81 See, e.g., European Energy Charter Treaty, 34 ILM (7 December 1994), 360, Title I; UN Convention on Bio- logical Diversity, 1760 UNTS 79, 31 ILM (1992), 818, Art. 8; GA Res 2158 (XI) of 25 November 1966 (right of “countries”); GA Res 2542 (XXIV) of 11 December 1969 (right of “nations”); GA Res 3016 (XXVII) of 18 710 Chinese JIL (2008) and peoples82 and as a right of the entire population of a country.83 Alternatively, Nico Schrijver writes that permanent sovereignty is the right of “those peoples which had not yet been able to exercise their right to political self-determination”.84 27. These definitions of the right to sovereignty over natural resources reflect the context in which it arose: in the 1950s, it referred to the right of countries emerging from colonial rule to reap the benefits of their own natural resources.85 Because indigenous peoples were colonized in a similar manner, Daes argues that the right should belong to them as well, Downloaded from although she concedes that the State may possess limited rights to resources in indigenous lands.86 International jurisprudence and instruments recognizing indigenous and tribal peoples’ rights to their natural resources have their origin in this principle,87 even if the scope of the rights is still disputed.88 Nevertheless, the recognition that indigenous and

tribal peoples possess this right to some degree reveals that they are more akin to http://chinesejil.oxfordjournals.org/ “peoples” than to other minority groups, which do not have recognized rights to natural resources.

IV.C.iii. Implications of the Court’s use of peoples’ rights 28. By incorporating peoples’ rights into its analysis of the American Convention, the Inter- American Court offered another justiﬁcation for its conclusion that indigenous and tribal peoples merit a wider set of land and resource rights than individuals and minority groups. The Court was hesitant to place too much weight on the concept of peoples’ at universite du quebecMontreal on February 13, 2013 rights in Saramaka People—the discussion of Common Article 1 is limited to three para- graphs, and the term “peoples’ rights” is never employed. Yet the decision reﬂects a choice to move beyond past holdings and to embrace principles that, while well-established, are typically avoided due to their controversial implications. As such, the decision is likely to contribute to the lively dialogue on peoples’ rights that has recently been stoked by the adoption of the UN Declaration and Kosovo’s invocation of the right to self-determination.89 29. Although the Court may have been wary of moving too hastily in a direction that is still subject to dispute among the international community, its discussion of peoples’ rights

December 1972 (right of “States”); Critescu, above n.58, 71; Schrijver, above n.58, 260–261 (listing several international tribunals which have defined the right as one of States). 82 Schrijver, above n.58, 9–10. 83 Duruigbo, above n.80, 52. 84 Schrijver, above n.58, 9; see also Richard Gittleman, African Charter on Human and Peoples’ Rights: A Legal Analysis, 22 Virginia JIL (1982), 667, 681. 85 Schrijver, above n.58, 3; Daes, above n.55, 5. 86 Daes, above n.55, 11. 87 Ibid.; Schrijver, above n.58, 311–319. 88 When the UN Declaration finally gained approval, the pronoun “their” was omitted before references to natural resources, “reflecting the controversial status of the issue of ownership of natural resources. Errico, above n.40. 89 See, e.g., Christopher J. Borgen, Kosovo’s Declaration of Independence: Self-Determination, Secession and Rec- ognition, 12 ASIL Insights 2 (29 February 2008), www.asil.org/insights/2008/02/insights080229.html#_edn1, last visited 9 July 2008; John Cerone, Kosovo as a Complex Case, JURIST Legal News & Research (22 February 2008), jurist.law.pitt.edu/forumy/2008/02/kosovo-as-complex-case.php, last visited 9 July 2008. Brunner, The Rise of Peoples’ Rights in the Americas 711 is unlikely to invite radical new claims. It could be argued that as “peoples”, the Saramaka should not cede any land or resource rights to the State; after all, no balancing of interests is implicit in statements of the rights to self-determination and permanent sovereignty over natural resources. Yet because indigenous and tribal peoples do not enjoy external self- determination, their States are under a duty to provide them with certain protections. In cases like Yakye Axa and Sawhoyamaxa, the Court ordered Paraguay to ensure that indigenous communities had access to medical care, potable water and other basic necessities of Downloaded from life.90 Suriname would be obligated to protect the Saramaka in the event of a natural disaster or a foreign invasion, just as it would other Surinamese citizens. Thus, granting Suriname a share of ownership of the natural resources located in Saramaka lands is appropriate if those resources are used to benefit the Saramaka and the Surinamese people. This is also consistent

with Article 32 of the American Convention, which states that all rights must be limited to a http://chinesejil.oxfordjournals.org/ certain extent “by the security of all, and by the just demands of the general welfare, in a democratic society”.91

V. Conclusion 30. The Saramaka People decision constitutes another progressive contribution to international human rights law by the Inter-American Court. It remains to be seen whether the Court will expand its interpretation of peoples’ rights in future cases, given its halting incorporation of the concept in the present judgment. Regardless, the decision may be a at universite du quebecMontreal on February 13, 2013 step towards international recognition that peoples’ rights are enforceable rather than merely the subject of academic commentary. This will be a slow process; yet at present, the ruling should be a provocative addition to international dialogue about the meaning and scope of peoples’ rights and the identity of the peoples who can claim them.

90 Yakye Axa, paras 205, 221; Sawhoyamaxa, paras 230–232. 91 American Convention, Art. 32(2).