On September 17, 2001, the Inter-American Court of Human Rights, the highest tribunal in the Americas, released its decision in the case of a small Mayagna (Sumo) community of Awas Tingni, located on the forested area of Nicaragua's Caribbean coastal regional. In doing so the Court affirmed the existence of indigenous peoples' collective rights to their land, resources, and environment. The justices declared that the community's rights to property and judicial protection had been violated by the Nicaraguan government when it granted concessions to a Korean lumber company to log on the Community's traditional land without even consulting with the community, let alone obtaining its consent.

Deeming Nicaragua's legal protections for indigenous lands "illusory and ineffective", the Court declared that the government not only discriminated against the community by denying them equal protection under the laws of the State, but also violated its obligations under international law to establish its domestic laws in order to comply with the rights and duties articulated in the American Convention on Human Rights, of which Nicaragua is a signatory. In its ruling, the Court declared that "for indigenous communities the relationship with the land is not merely a question of possession and production, but it is also a material and spiritual element which they should fully enjoy, as well as a means to preserve their cultural heritage and pass it on to future generations." (Unofficial translation).

Based on these violations, the Court ordered the government to demarcate and recognize the Community's ancestral and historical title to its lands and to establish legal procedures for the demarcation and titling of the traditional lands of all indigenous communities in Nicaragua. The Court also required the government to submit biannual reports on the measures it takes to comply with the Court's decision. The road to these decisions has been a long one. 2

Since 1992, Awas Tingni has been attempting to attain formal recognition of broad territorial rights in the face of encroaching international lumber companies. The community was, in a way, the test case to challenge vague or non-existent rules that have stalled efforts to establish clear land rights for the community and Nicaragua's Atlantic Coast region in general. The decision will reverberate throughout Latin America, where numerous and similar territorial claims have brought little, if any, government response.

Denial of indigenous land claims is hardly new. It has been endemic in Latin America since the 16th century. However, until quite recently, whenever Latin American Indians "did" anything with regard to land, they largely stood alone.

That is no longer the case. An indigenous movement --with numerous local, national, and international organizations-- now sweeps down from Mexico to Chile. These Indians' actions -most dramatically illustrated by recent strikes and attempted coups in Ecuador and Bolivia-now capture the attention of a wide range of journalists, academics, scholars, policy makers, and politicians. The treatment of the Awas Tingni case, in turn, illustrates how indigenous concerns -- previously regarded, relegated, and easily ignored as simple "claims" by marginal people-- have been elevated to internationally recognized legal "rights," which must be honored. Indians now have powerful national and international legal mechanisms to press their claims. Since 1995, the Weatherhead Center's Program on Nonviolent Sanctions and Cultural Survival (PONSACS), working in close collaboaration with Nicaraguan and US Attorneys, the Indian Law Resource Center, and the community of Awas Tingni, has drawn on anthropological techniques to identify and document the local understanding of and justification for land and resource rights in this landmark case.

Recognizing indigenous land rights: Nicaraguan law, the American Convention on Human Rights, and the International Labor Organization

Nicaragua's 1985 Constitution affirms indigenous rights to communal land and natural resources. That guarantee was restated in 1987 when the Nicaraguan National Assembly granted regional autonomy to Nicaragua's Atlantic Coast region. Likewise, the American Convention on Human Rights, legally binding throughout the Americas, states that each person has the right to use and enjoy property and interprets that right to include traditional land tenure of indigenous peoples and communities. However, it is the International Labor Organization's Convention # 169, which Nicaragua has supported at the United Nations but has not yet formally ratified, that most clearly specifies that "rights" shall be recognized and respected for those lands, or "territories," that indigenous people have "traditionally used and occupied." The broad, plural term "rights" is significantly different from a specific "right" such as a clear title or exclusive use. Indigenous land rights, quite simply, emanate from long-term use and occupancy. Once these rights are recognized, the question of how the rights are subsequently exercised is determined through negotiation and consultation between the occupants and the state. It is Awas Tingni's general territorial rights that Nicaragua has refused to recognize and subsequently negotiate.

Consequently, the role of PONSACS was to document, through ethnographic research, the community's current and historical use and occupancy of its territory. Then it was to illustrate these patterns through computer-generated maps (geographic information systems, or GIS). The preliminary research for these maps was one the interesting (and surprising to the Nicaraguan defense attorneys) anthropological "techniques" of the research. After a short period of training by the ethnographer, members of the community (most of whom had a formal education only through primary school) plotted, flawlessly, most of the critical geographic data - houses, garden plots, hunting and fishing areas, and sacred sites - through the use of simple but sophisticated electronic global positioning systems [GPS] instruments. This basic anthropological research was not designed to "win" a court case (none was pending at the time of the initial research), but simply to draw on community members' existing knowledge, to define the parameters of their territory, and explain their reasons for establishing those lines.

The development of the case

In the early 1990s, Nicaragua's economic demands led to a rush toward the resource-rich (tropical hardwoods and minerals) areas of the coastal, tropical forest uplands of the Northern Autonomous Region. The Awas Tingni project began when a joint Nicaraguan-Dominican lumber company sought logging rights on Awas Tingni lands after the Ministry of Natural Resources had, without informing the residents, declared the region as a "protected area." In May 1994 leaders of Awas Tingni signed a trilateral agreement with the Nicaraguan-Dominican lumber company and the government of Nicaragua for lumbering on 42,000 hectares of tropical rain forest claimed by the community. This agreement, negotiated under the eye of an international environmental organization and supported by specialists in national and international law, led to a community-based natural forest management project that was economically beneficial, environmentally sound, and respectful of human rights.

To strengthen compliance with the agreement, and to deal with any future disputes, the community members sought formal recognition of their territorial claims. In 1995, community members began a land tenure initiative through which their claims could be supported by community-assisted, anthropological and geographical research. PONSACS was asked to assist with anthropological research and technical support to a community-mapping project, while others provided national and international legal assistance (International law specialist, Professor S. James Anaya of the University of Arizona Law School and a Special Attorney for the Indian Law Resource Center, as well as a PONSACS affiliate, has been the lead attorney throughout this case.)

This work, initially seen as a "preventative" tool, took on immediate significance during late 1995. Community members found that yet another government lumber concession had been awarded to a large Korean corporation (Sol de Caribe, S.A., or SOLCARSA) on their lands. A review of the management plan, and the annual schedule of logging sites within the concession, revealed that all sites were located on lands to which community members had significant current and historical use rights and cultural claims, which the anthropological research had identified and mapped.

Awas Tingni, its members, and its lawyers responded to this violation through litigation. First, the community issued a legal complaint at a regional appellate tribunal. The complaint argued that a government body, the Ministry of the Environment and Natural Resources (MARENA), was in violation of laws approved by the Nicaraguan legislature. The tribunal stated that the community was fully aware of the agreement and had thus given tacit approval to the project. That decision was appealed to the Nicaraguan Supreme Court, which, though it found the concession to be "illegal," took no action to stop the work. Consequently, in late 1995, since no recourse could be obtained within the national legal system, a petition was submitted to the Inter-American Commission on Human Rights declaring failure to observe international standards, in this case the American Convention on Human Rights. The Inter-American Commission on Human Rights accepted the petition and recommended that the parties seek a "friendly settlement" --i.e., one that is mutually negotiated and accepted with consent.

Meanwhile, the World Bank, which had earlier withheld a broad sectoral loan to Nicaragua due to generally unclear land-tenure standards in the region, and in Awas Tingni in particular, approved the loan. At the same time it provided funds for a research project to survey the issues of land tenure along the entire Atlantic Coast region and make subsequent recommendations. Using research methods similar to those of the Awas Tingni Project (ethnography and mapping), researchers from the Central American and Caribbean Research Council (CACRC), undertook a broad study and prepared a detailed report, the Diagnóstico general sobre la tenencia de la tierra en las comunidades indígenas de la Costa Atlántica. (1998). The research illustrated extremely unclear, often overlapping local perceptions of land tenure. It strongly recommended immediate remedial actions to avoid or decrease inter-community conflicts. The Nicaraguan government never distributed or circulated the report. The researchers, however, testified in support of Awas Tingni's claim in San José.

Since filing the petition with the Inter-American Commission on Human Rights, numerous efforts to reach a "friendly settlement" acceptable to the INCHR have failed. Consequently, in June 1998, the Commission, which has no sanctioning capacity, transferred the case to the Inter-American Court on Human Rights, which does have sanctioning power.

In San José, from November 15-17, 2000, the Court heard the case. The principal witnesses for the prosecution were three Mayagna Indians from the community of Awas Tingni and the PONSACS anthropological researcher who provided the ethnographic study and related maps (presented in Geographic Information System format). In addition, over a dozen "expert witnesses" from Nicaragua and throughout the Americas testified on behalf of the community.

The decision, and the subsequent requirements, in favor of the community is a landmark in terms of its impact on land rights in Nicaragua, where most indigenous communities exist with precarious tenure. Equally important and clearly more far reaching, a decision favorable to the community will have wide regional impact and will set a precedent for action, particularly in countries that have ratified the International Labor Organization's Convention # 169. That convention requires formal recognition of lands, or territories, "traditionally" occupied by indigenous peoples.

Without demarcation of their lands, those of the Awas Tingni, and any of the innumerable communities in similar situations, remains vulnerable to invasion by parties interested in natural resource exploitation. Threats to indigenous lands throughout the Atlantic Coast of Nicaragua have raised the possibility of social unrest and even violence.

Similar tensions and underlying concerns help to explain, in large part, many recent direct action -- protests, strikes, uprisings, and marches-- by Indian peoples in Colombia, Ecuador, and Bolivia. Consequently, the Court's decision sets a far reaching precedent affirming indigenous land rights not only for the indigenous communities of the Atlantic Coast, but also for indigenous peoples throughout the hemisphere. Moreover, the decision, by specifying required actions to support broad laws, strengthens the rule of law throughout the region.

It is ironic that, now that the community has received a favorable opinion, the Nicaraguan government will simply be required to do what it could have done several years ago, at far less expense and embarrassment. It must begin to undertake its obligation to respect and subsequently negotiate indigenous land rights by demarcating and titling the region's communal lands. The Awas Tingni case illustrates that, on some occasions, by invoking legal sanctions, traditionally less powerful groups can begin to balance structural asymmetry and force serious negotiation.

This project on Resource Rights and International Law has been made possible by the generous support of the William and Flora Hewlett Foundation.

Back to top