Indigenous Law Bulletin
Inter-American Court of Human Rights
31 August 2001
by Megan Davis
On 31 August 2001 the Inter-American Court of Human Rights handed down a watershed decision in the Case of the Mayagna (Sumo) Awas Tingni Community v The Republic of Nicaragua concerning Indigenous peoples’ collective rights to their land, resources and the environment. The court found that the international right to property, recognised by the American Convention on Human Rights, includes the right to the protection of customary land and resource tenure for Indigenous people.
This case concerns a small Mayagna Sumo Indigenous community called the Awas Tingni who live in the North Atlantic Coast Autonomous Region (‘RAAN’) in the eastern part of Nicaragua. In 1995 the Nicaraguan government intended to grant a 30 year logging concession to a Korean logging company called Sol del Caribe, SA (‘SOLCARSA’) to log on the traditional lands of the Awas Tingni without consulting them or seeking their consent.
The Awas Tingni lodged an amparo action (similar to a request for an injunction seeking emergency relief for a violation of fundamental human rights) to prevent the Nicaraguan government from granting the logging concession. In addition, the amparo requested an order from the court that SOLCARSA be removed from its lands. At first instance the Matagalpa Appellate Tribunal rejected the action on the ground that the Awas Tingni tacitly consented to the logging concession by failing to file an action in the court within 30 days of its knowledge of the government conduct. The Nicaraguan Supreme Court upheld the rejection of the amparo on appeal.
On 13 March 1996, the Nicaraguan government actually granted the concession, permitting SOLCARSA to log 62,000 hectares of land occupied by the Awas Tingni. The concession was issued by the Ministry of Environment and Natural Resources (‘MARENA’) and also allowed for the construction of a highway for access to the lands.
On 29 March 1996, the administrative arm of RAAN, known as the Regional Council, filed another amparo in the Constitutional Court of the Supreme Court of Justice (‘the Constitutional Court’) seeking the revocation of the concession given to SOLCARSA by the Nicaraguan government. The request was based upon the procedural argument that the Regional Council had not authorised the concession prior to its granting, which is required by the Nicaraguan constitution. Accordingly on 27 February 1997 the Constitutional Court made a declaration finding that the granting of the concession by MARENA to SOLCARSA was unconstitutional.
Despite the Constitutional Court decision, the Nicaraguan government took no action to revoke the concession or halt the logging operations. The Regional Council then filed a brief in the Nicaraguan Supreme Court requesting execution of the judgment at the request of the Awas Tingni to compel the government to comply with the Constitutional Court order. The Constitutional Court of the Supreme Court granted the request issuing an order to the President of Nicaragua that the Minister of MARENA had not complied with the ruling. On 16 February 1998 SOLCARSA was notified that its concession was unconstitutional. While MARENA’s revocation of the logging concession was a victory for the Awas Tingni, the issue of land tenure remained precarious because of the lack of demarcation of communal land.
The Inter-American Court of Human Rights (‘the IA Court’) is an official body of the Organization of American States. The jurisdiction of the IA Court is the adjudication of allegations of violations of the American Convention on Human Rights (‘the Convention’). Its role is to decide upon these violations and it has the capacity to issue binding decisions upon those countries, such as the Republic of Nicaragua, who have formally acceded as parties to the IA Court’s jurisdiction. The principal investigatory body is the Inter-American Commission on Human Rights (‘the Commission’), which monitors and investigates allegations of violations of human rights. Following the ‘grudging nullification of the SOLCARSA concession’ there was a dearth of conciliatory attempts by the Nicaraguan government to remedy the Awas Tingni’s lack of official recognition of traditional land tenure (despite the Nicaraguan constitution’s express recognition of Indigenous peoples’ communal form of property ownership). So, utilising the complaints mechanism under the Convention, lawyers for the Awas Tingni filed a petition with the Commission against the Republic of Nicaragua.
In June 1998 the Commission filed a complaint with the IA Court against the Nicaraguan government. The petition argued that Nicaragua was in violation of articles 1, 2, 21 and 25 of the Convention. Article 1 is an undertaking by state parties to respect the rights recognised in the Convention and ensure the free exercise of those rights without discrimination (including racial discrimination). Article 2 is an undertaking by state parties to take such legislative and other measures necessary to ensure the rights mentioned in article 1. Article 21 deals with rights to property and states that everyone has the right to enjoyment of their property, and they can only be deprived of such a right if it is necessary for public utility or social interest, and upon payment of just compensation. Finally article 25 looks at the right to judicial protection. It ensures that for all acts (including those committed in the course of official duties) that violate rights included in the state’s constitution, domestic law and the Convention, there is to be effective recourse to a competent court or tribunal. It also includes an undertaking by state parties to ensure that competent authorities will enforce the judicial remedies granted.
In summary, the arguments for the Awas Tingni were that the State of Nicaragua had failed to demarcate the communal lands of the Awas Tingni community as the government continued to refer to Indigenous peoples’ communal lands as ‘national lands’. In contravention of article 21 (taking into account the state’s obligations under articles 1 and 2 of the Convention) the state had neglected to adopt effective measures for the protection of the property rights of the Awas Tingni for land and resources. The granting of the concession was done without the consent of the community and the state had not provided an effective remedy in relation to the Awas Tingni claims of violation of their property rights.
The Commission requested that Nicaragua establish a legal procedure for land demarcation and official recognition of property rights. It also asked that Nicaragua refrain from the granting and consideration of concessions to exploit the natural resources of the Awas Tingni until the resolution of ambiguity over land security. Finally the Commission requested payment of equitable compensation for material and moral damages suffered by the community, and costs of the case incurred domestically and in the Inter-American system.
The Republic of Nicaragua attempted to have the case dismissed on numerous grounds. Firstly it argued that the Awas Tingni had failed to exhaust domestic remedies. The IA Court rejected this as without merit on the ground that the Nicaraguan government waived its right to such objection by neglecting to bring an action earlier on in the proceedings. Indeed, the IA Court ruled that regardless of Nicaragua’s tacit waiver, the community had in fact exhausted all domestic remedies.
The Nicaraguan defence was predominantly based on the grounds that the Awas Tingni ‘could not claim an ancestral entitlement to land because the existence of the Community’s village at its present location dates back only to the 1940s; that the area claimed by the Community is too large in proportion to the Community’s membership and neighbouring Indigenous communities have rights to at least parts of the same area’. However, the community never disputed the claim that the main village had been moved. They were able to prove that it had moved only a short distance away from its origins and remained contiguous in terms of old and new settlements within the boundaries of the Awas Tingni territory. Interestingly, the Nicaraguan government never proffered evidence to disprove the historical context of the Indigenous land tenure nor continuing tenure. In relation to the disputed issue of other Indigenous groups claiming on Awas Tingni claimed territory, many of the surrounding Indigenous communities joined in an amicus curiae submission to support the case of the Awas Tingni because of the importance of the case in the future demarcation, title and protection of Indigenous land rights.
In the decision handed down on 31 August 2001 the IA Court found by seven votes to one that the Republic of Nicaragua had violated Article 25 (in conjunction with articles 1(1) and 2) of the Convention, the right to judicial protection, to the detriment of the Awas Tingni. Similarly, it also found by a majority of seven votes to one that the Republic of Nicaragua had violated Article 21 of the Convention, the right to property. The IA Court was unanimous in its verdict that the Republic of Nicaragua must adopt legislative and administrative measures to create a mechanism to ensure the effective and official recognition of traditional Indigenous community land in accordance with the customary law, values, usage and customs. The IA Court also unanimously declared that Nicaragua should refrain from committing any acts which would cause agents of the state or third parties to act in a manner that would affect the existence, value, use and enjoyment of the community’s property until demarcation and official recognition of title was completed. The IA Court also declared that the judgment represented in part, a form of reparation for the members of the Mayagna (Sumo) Community of Awas Tingni. The judgment called for the investment by the Republic of Nicaragua of US$50,000 in public works and services as further reparation for moral damages in equity. Furthermore it ordered the payment by Nicaragua of US$30,000 for expenses and legal costs incurred by the Awas Tingni in both the domestic and international proceedings.
The Awas Tingni case is a watershed development at international law for Indigenous peoples. It establishes a case for state responsibility to ensure that its domestic laws and the administration of such laws are utilised to protect the enjoyment of Indigenous peoples’ property rights. As S James Anaya has argued ‘the Court has held that the international human right to enjoy the benefits of property, particularly as affirmed by the American Convention on Human Rights, includes the right of Indigenous peoples to the protection of their customary land and resource tenure’. Importantly the IA Court held that the measures for protection and demarcation of Indigenous lands adopted by Nicaragua were both ‘illusory and ineffective’.
The decision of the IA Court will also have significant implications for the ongoing negotiations for the United Nations Draft Declaration on the Rights of Indigenous Peoples. Indeed it provides particular impetus for the recognition of Indigenous property rights, collective rights and the rights of people as protected in the Draft Declaration. This case will also have significant implications for the ongoing ‘conflict between the collective, undocumented land rights of Indigenous communities and the resource and development interests of national governments and their corporate partners’.
At times it is difficult to imagine the importance of international law when we are faced on a domestic front with governments that can be overtly adversarial to the interests of Indigenous people in Australia. International law may seem irrelevant and it is true that, as Mick Dodson once wrote, international law is not a panacea to all our problems. Nevertheless the Awas Tingni decision is very significant and contributes to a rapidly growing body at international law of rights and standards relating to Indigenous people, which will be influential in the battle for self-determination and the debate for a treaty.
Megan Davis is a Wakka Wakka lawyer from South East Queensland. She is currently the Director of the Bill of Rights Project at the Gilbert & Tobin Centre of Public Law at the University of New South Wales. She completed a United Nations Fellowship with the Indigenous Project Team in Geneva in 1999.
 A copy of the judgement is available at ‘The Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua’ (Spring 2002) 19 Arizona Journal of International and Comparative Law 415.
 See Nicaraguan Constitution, art 181.
 Above n 1.
 Ibid 417.
 The text of the Convention is available at www.oas.org.
 See the Convention, art 62(3), for IA Court’s jurisdiction to consider this case. Nicaragua had been a state party to the Convention since September 1979 and has recognised the jurisdiction of the IA Court since 12 February 1991.
 S James Anaya and Claudio Grossman, ‘The Case of Awas Tingni v Nicaragua: A New Step in the International Law of Indigenous Peoples’ (Spring 2002) 19 Arizona Journal of International and Comparative Law 8.
 The full text of the petition can be found at S James Anaya, ‘The Awas Tingni petition to the Inter-American Commission on Human Rights: Indigenous lands, loggers and government neglect in Nicaragua’ (1996) 9 St Thomas Law Review 157.
 A copy of this complaint can be found in ‘Complaint by the Inter-American Commission on Human Rights, submitted to the Inter-American Court of Human Rights in the Case of the Awas Tingni Mayagna (Sumo) Indigenous Community against the Republic of Nicaragua’ (Spring 2002) 19 Arizona Journal of International and Comparative Law 21.
 See Introduction of the case, which can be found in above n 1.
 Ibid; see also Inter-American Commission, Report No 27/28, 3 March 1998.
 Anaya and Grossman above n 8 , 9; also see The Mayagna (Sumo) Awas Tingni Community Case, Judgment on the Preliminary Objections (1 February 2000) Inter-American Court of Human Rights (Ser C) , , ,  available at http://www1.umn.edu/humanrts/iachr/C/66-ing.html.
These arguments are summarised by Anaya and Grossman, above n 8, 9; see also ‘Reply of the Republic of Nicaragua to the complaint presented before the Inter-American Court of Human Rights in the case of the Mayagna Community of the Awas Tingni’ (Spring 2002) 19 Arizona Journal of International and Comparative Law 101-127; ‘Final written arguments of the Republic of Nicaragua on the merits of the issues’ (Spring 2002) 19 Arizona Journal of International and Comparative Law 367.
 Evidence, in the form of data in maps and an ethnographic study, which supported the Awas Tingni historical and continuing property rights, was an integral component of the legal argument. See S James Anaya and Claudio Grossman, above n 9, 2.
 On 17 April 1996, S James Anaya submitted such a document as legal representative on behalf of the Indigenous communities of the North Atlantic Autonomous Region and the Indigenous Movement of the South Atlantic Autonomous Movement to the Commission. Also an amicus curiae brief was submitted to the IA Court on 27 January 1999 by the Organization of Indigenous People of the Nicaraguan Caribbean.
 Mayagna (Sumo) Awas Tingni Community v Nicaragua (2001) Inter American Court of Human Rights, available at www.corteidh.or.cr.
 S James Anaya, above n 9.
 For the Draft Declaration on the Rights of Indigenous Peoples see Sub-Commission resolutions E/CN.4/1995/2, E/CN.4/Sub.2/1994/56, 28 October 1994. Property rights in the Draft Declaration are at arts 7(b), 10, 25, 26, 27, 28, 29, 30 & 31, and collective rights are at arts 6, 7, 8, 32, 34 and 39.
 Patrick Macklem and Ed Morgan, ‘Indigenous rights in the Inter-American system: the amicus brief of the Assembly of First Nations in Awas Tingni v Republic of Nicaragua’ (2000) 22 Human Rights Quarterly 569-602, 571.
 Mick Dodson, ‘Linking international standards with contemporary concerns of Aboriginal and Torres Strait Islander peoples’ in Sarah Pritchard (ed), Indigenous peoples, the UN and human rights (1998) 20.