Saramaka People V. Suriname Author(s): Marcos A. Orellana Reviewed work(s): Source: The American Journal of International Law, Vol. 102, No. 4 (Oct., 2008), pp. 841-847 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/20456684 . Accessed: 13/02/2013 11:18 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. American Society of International Law is collaborating with JSTOR to digitize, preserve and extend access to The American Journal of International Law. http://www.jstor.org This content downloaded on Wed, 13 Feb 2013 11:18:59 AM All use subject to JSTOR Terms and Conditions 2008] INTERNATIONALDECISIONS 841 differently to theAppellate Body itself, as opposed to panels?Note that theAppellate Body refers to "an adjudicatorybody"-in the singular-perhaps implying that only theAppellate Body may depart from prior rulingson the basis of "cogent reasons."Alternatively, the "adju dicatory body" itmentions may be theDispute Settlement Body, which would thus include panels. Since there are severalongoing zeroing disputes, the panels in question may have the opportunity to test the boundaries of theAppellate Body's new standard. SIMONLESTER WorldTradeLaw.net, Wellington, Florida Indigenousand tribalpeoples' rights-land, territory,and natural resources-consultations and prior informedconsent- environmentaland socialimpact assessment- concessions andforeign direct invest ment- environmentaldamage SARAMAKAPEOPLE V. SURINAME.Judgment (Preliminary Objections, Merits, Reparations,and Costs). SeriesC, No. 172.At <http:flwww.corteidh.or.cr>. Inter-AmericanCourt of Human Rights,November 28, 2007. The case of the Saramaka People v. Suriname,1 decided by the Inter-AmericanCourt of Human Rights on November 28, 2007, concerned logging andmining concessions awarded by Suriname on territorypossessed by the Saramakapeople, without their full and effective consultation. The Court examined the rights of tribalpeoples in international law and con cluded that themembers of the Saramaka people have a right to use and enjoy the natural resources that lie on andwithin their traditionallyowned territoryand that are necessary for their survival.The Court also declared that Surinamemay restrict this right by granting con cessions for the exploration and extraction of natural resourcesonly when such restrictiondoes not deny theSaramaka's survival as a tribalpeople. In this respect, the statemust abide by three safeguards:first, effective consultations in every event, aswell as free,prior, and informed con sent in connection with development and investment projects havingmajor impacts; second, a sharingof benefits derived from development plans; and third, prior and independent envi ronmental and social impact assessment (EIA). In the end, theCourt found thatSuriname had violated the rights, under theAmerican Convention on Human Rights,2 to juridicalperson ality, property, and judicialprotection of the Saramakapeople living in theUpper Suriname River Region, in relation to the obligations to respect, ensure, and give domestic legal effect to those rights. In its judgment, the Court disposed of all issues relating to the Saramaka People case namely, preliminary objections, merits (including evidence), reparations,and costs. Both the Inter-AmericanCommission on Human Rights (Commission) and the "representatives"of the allegedvictims submittedwritten briefs containing pleadings,motions, and evidence.This 1 Preliminary Objections, Merits, Reparations, Costs, Ser. C, No. 172 (Inter-Am. Ct. H.R. Nov. 28,2007). The Court has issued a Saramaka v. on subsequent judgment, People Suriname, Interpretation of the Judgment Prelim and Ser. No. The are inary Objections, Merits, Reparations, Costs, G, 185 (Aug. 12, 2008). Court's judgments available at 2 <http://www.corteidh.or.cr>. Openedfor signatureNov. 22, 1969, 1144 UNTS 123. This content downloaded on Wed, 13 Feb 2013 11:18:59 AM All use subject to JSTOR Terms and Conditions 842 THE AMERICAN JOURNALOF INTERNATIONALLAW [Vol. 102 duality of "applicants" raised a question concerning the Court's competence in relation to alle gations by the victims' representativesconcerning the ongoing effects of theAfobaka Dam, a hydroelectric project in proximity to the Saramaka people. The Court considered that the Commission's application defined the factual scope of the litigation, and found that it did not include detailed factual assertions on the dam (paras. 13, 16). The Court then turned to preliminary objections; three of which are reported here. First, the state argued that the petitioners3 had no authorization from the chief leaderof the Sara makas (theGaa 'man)to petition on behalf of thewhole Saramakacommunity. In accordance with theprinciple of effectiveness (effetutile), theCourt noted that theAmerican Convention permits any group of persons to lodge petitions, including persons other than the alleged vic tims, and dismissed the objection (paras.19-24). Suriname also argued the non-exhaustion of domestic remedies.The Court noted that for this objection to be timely, itmust be pleaded in the state's first submission before theCom mission; otherwise, it ispresumed to be tacitlywaived. Further, the statemust specify the avail able remedies that remain to be exhausted and demonstrate their applicability and effective ness. Since Suriname argued non-exhaustion only in its fourth submission, and since itdid not specifywhich remedieshad not been pursued, theCourt dismissed the objection (paras.41-44). Finally, the state challenged the petition's admissibility, arguing that petitioners had filed requestswith theUN Human Rights Committee and theUN Committee on theElimination of RacialDiscrimination (CERD) .4The Court focused itsexamination on the object, purpose, and nature of those actions to determine whether the caseswere substantially the same.The Court concluded that the reporting procedures of the universal, treaty-basedbodies and the CERD's earlywarning and urgent procedure could not be equatedwith its adjudicatory juris diction (para.54). After addressing (and dismissing) the state's preliminary objections, theCourt assessed the available evidence and then analyzed themerits in a single section. First, theCourt addressed the question whether themembers of the Saramaka people make up a tribal community; of central importance in this contextwere the social, cultural, and economic characteristicsof the Saramakas. Insteadof being indigenous to the region that they inhabit, the Saramakasare one of sixMaroon groups in Suriname whose ancestorswere enslaved during the European col onization in the seventeenth century but escaped to the interior regions of the country. The Saramakas' social structure is organized inmatrilineal clans, and they regulate themselves, at leastpartially, by theirown customs and traditions.Culturally, themembers of the Saramaka people maintain a strong spiritual relationshipwith the ancestral territory that they have tra ditionally used and occupied. In this regard,"land ismore thanmerely a sourceof subsistence; it isalso a necessary source for the continuation of the life and cultural identity of the Saramaka people" (para.82). The Court observed that their economy can also be characterizedas tribal. Having established that the Saramakapeople make up a tribalcommunity, theCourt then askedwhether itsmembers require specialmeasures that guarantee the full exercise of their rights. In this regard, theCourt declared that its jurisprudence regarding indigenous peoples' 3 Namely, the Association of Saramaka Authorities and the twelve Saramaka captains. 4 was a to on One submission "shadow report" the Human Rights Committee Suriname's compliance with the on International Covenant Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171 [hereinafter ICCPR]; other were to measures submissions the CERD's "early warning and urgent action procedure." This content downloaded on Wed, 13 Feb 2013 11:18:59 AM All use subject to JSTOR Terms and Conditions 2008] INTERNATIONALDECISIONS 843 right to property is also applicable to tribalpeoples because both share similar characteristics, such as having distinct social, cultural, and economic traditionsdifferent from other sections of the national community, identifying themselveswith their ancestral territories,and regu lating themselves, at leastpartially, by their own norms, customs, and traditions. The second issue addressedby theCourt was whether Article 21 of theAmerican Conven tion protects the rightof themembers of tribalpeoples to the use and enjoyment of communal property.Recalling its jurisprudenceon indigenous peoples' rights, "both the private property of individualsand communal property ofthe members of... indigenous communities arepro tected byArticle 21 of theConvention" (para.89). The Court explicitly observed that its juris prudence is "basedupon the special relationship thatmembers of indigenous and tribalpeoples havewith their territory,and on the need to protect their right to that territory in order to safe guard the physical and cultural survivalof such peoples" (para.90).