© COPYRIGHT by Silja Aebersold 2020 ALL RIGHTS RESERVED 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 BY 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. v 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 vi 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