domingo, 29 de enero de 2012

Saramaka People v. Suriname – Monitoring Compliance with Judgment


This report was elaborated by Francisco J. Rivera Juaristi.  

(Nota: A la fecha del presente reportaje, la resolución sólo se encontraba disponible en inglés.)

On November 23, 2011, the Inter-American Court of Human Rights issued an order supervising Suriname’s compliance with its November 28, 2007 judgment on preliminary objections, merits, reparations, and costs, and its August 12, 2008 interpretation judgment in the Saramaka People v. Suriname case.

The case involves indigenous land rights, including issues such as free, prior, and informed consent, environmental and social impact assessments, and the right to the collective recognition of their juridical capacity.

The Court held a private hearing on September 2, 2010 and, in its November 23, 2011 order, the Court analyzed the parties’ submissions regarding Suriname’s compliance of the judgments and decided as follows: 

1)            The duty to delimit, demarcate, and grant collective title

The State of Suriname and the representatives of the Saramaka People disagree as to whether there are any disputes regarding overlap of lands between the Saramaka People and neighboring tribal communities or other alleged landowners. In any case, the Court noted that the Judgment ordered the State to begin the process of delimitation, demarcation, and titling of traditional Saramaka territory within three months as of the date that the decision was served, and that the process was to be completed within three years of that date. Therefore, this measure of reparation should have been implemented by December 2010, at the latest. Consequently, the Court found that the State had not complied with this obligation. (Considering paras. 7-12)

2)            The duty to abstain, until the first obligation has been fulfilled, from acts which might affect the existence, value, use, or enjoyment of Saramaka territory without consent; and the duty to review concessions already granted within traditional Saramaka territory.

The Court noted that despite its repeated requests, the State has not adequately reported on the measures taken to review concessions existing in Saramaka territory prior to the issuance of the Judgment, nor on the alleged upgrades to the Afobaka road in Saramaka territory or the logging and mining concessions allegedly granted in Saramaka territory after the Judgment was served.  The Court did note, however, that according to the representatives, the adverse impacts of such concessions include the destruction of farming areas, extensive pollution of air and water sources by mining waste, the usurpation and denial of Saramaka ownership rights over those lands and resources, and the denial of their right to effectively control their traditional territory. Moreover, the concession was allegedly issued without the completion of a prior and independent environmental and social impact assessment and without the institution of effective mitigating measures. Additionally, the State had apparently issued a land title within Saramaka territory on 16 July 2010 in the name of a private company for the purpose of maintaining a tourism resort, without effectively consulting with the Saramaka people.

In light of the above, given that the titling of Saramaka lands has not yet been carried out, the Court considered that the granting of any new concessions in those territories after December 19, 2007, the date on which the Judgment was served, without the consent of the Saramaka people and without prior environmental and social impact assessments, would constitute a direct contravention of the Court's decision and, accordingly, of the State's international treaty obligations. Consequently, the Court requested information from the State regarding these issues. (Considering paras. 12-20)

On an important note, the Court refused to entertain the representatives’ request to order the immediate revocation of the land title and concessions issued after the Judgment was served and to order the State to compensate the Saramaka for any damages sustained to date due to upgrades on a road in Saramaka territory. The Court noted that this was not ordered in the judgment and, therefore, the issue exceeded the object of the proceedings for monitoring compliance. The Court’s refusal to entertain this issue on such grounds is curious in light of the request the Court made in the preceding paragraph for more information on precisely the issues of land title and concessions issued after the Judgment and the upgrades to the road in Saramaka territory. (Considering para. 21)

3)            The duty to ensure that environmental and social impact assessments are conducted prior to awarding a concession for any development or investment project within traditional Saramaka territory, and to implement adequate safeguards in order to minimize the damaging effects such projects may have upon the social, economic, and cultural survival of the Saramaka people.

The State did not provide specific information on this issue. The representatives indicated that the Afobaka Road project was being carried out and a stone mining concession had been granted in Saramaka territory despite that no prior environmental and social impact assessments had been conducted. According to the representatives, the Saramaka have therefore been unable to evaluate possible risks and impacts, singular or cumulative, of such projects. The Court reminded the State that the granting of any new concessions without prior environmental and social impact assessments would constitute a direct contravention of the Court's decision, and, accordingly, of the State's international treaty obligations. Consequently, the Court requested more specific information about this issue. (Considering paras. 21-26)

4)            The duty to legally recognize the collective juridical capacity of the members of the Saramaka people; to amend or remove legal provisions that impede the protection of the victims' right to property and to implement legal and other measures necessary to ensure their right to hold collective title; to adopt legislative, administrative, and other measures necessary to guarantee the right of the Saramaka people to be consulted, or when necessary, the right to give or withhold their consent, with regard to development or investment projects that may affect their territory, and to reasonably share in the benefits of those projects; and to adopt legislative, administrative, and other measures necessary to provide the victims with adequate and effective recourses against acts that violate their right to the use and enjoyment of property.

The State initially reported that it was “provid[ing] the building blocks for […] the legal framework [and] collective rights” of indigenous and tribal peoples in Suriname. However, the State subsequently informed the Court that it had “officially put a stop” to the project on December 15, 2010. The representatives stated that there had been little progress on the development of the legislative and other measures required to give effect to the judgment. The Court noted that there had been no progress toward the implementation of these orders and, consequently, requested the State to comply with the judgment and to submit more specific information. (Considering paras. 27-30)

5)            Duty to translate into Dutch and publish Chapter VII and Operative Paragraphs one through fifteen of the Judgment in the State’s Official Gazette and in another national daily newspaper.

The Court found that the State had complied with this obligation. (Considering paras. 31-34)

6)            Duty to finance two radio broadcasts, in the Saramaka language, of parts of the Judgment, including Operative Paragraphs one through fifteen, in a radio station accessible to the Saramaka people.

The Court found that the State had complied with this obligation. (Considering paras. 35-38)

7)            Duty to allocate the amounts set in the Judgment as compensation for pecuniary and non-pecuniary damages in a community development fund created and established for the benefit of the members of the Saramaka people in their traditional territory.

The Court had ordered the payment of $75,000.00 in pecuniary damages and of $600,000.00 in non-pecuniary damages into a community development fund. The State paid $600,000.00 into the fund, but the Court requested further information regarding whether the $75,000.00 in pecuniary damages was also deposited into the community development fund. In that regard, the Court reminded the State that the three-year deadline established in the Judgment for the payment of pecuniary and non-pecuniary damages expired on December 19, 2010. Interests would accrue starting from that date. (Considering paras. 39-42)

8)            Reimburse costs and expenses

The Court found that the State had complied with this obligation. (Considering paras. 43-46)

9)            Request for a public hearing and for communication with the Inter-American Development Bank

The representatives requested that the Court “communicat[e] with the Inter-American Development Bank to request that it ensur[e] respect for the […] judgment in projects that it may finance in Suriname and that may affect the Saramaka people and their territory.” The Tribunal noted that it does not have jurisdiction under the American Convention to request that the Inter-American Development Bank ensure the State’s compliance in this case. (Considering paras. 47-51)

The Court decided to convene a private hearing during the year 2012, on a date to be decided.  The State’s next periodic report is due on March 30, 2012.

Separate Opinions on the duties of the Court under Article 65 of the American Convention

It is worth noting that, following a very recent trend, Judge Diego García-Sayán and Judge Eduardo Vio Grossi added separate opinions to this order. The first time a Judge added a concurring opinion to an order monitoring compliance with a judgment was as recently as November 18, 2010 in the Bámaca Velásquez v. Guatemala case (Judge Vio Grossi). The second time it happened, it was also Judge Vio Grossi in a July 5, 2011 order in the Bueno Alves v. Argentina case. In the November 2011 sessions, both Judges García-Sayán and Vio Grossi issued one separate opinion each and proceeded to attach the same opinion to the three separate orders monitoring compliance in the following cases: Saramaka People v. Suriname (this one); Servellón García et al. v. Honduras and Blanco Romero et al. v. Venezuela. In these separate opinions, Judges García-Sayán and Vio Grossi analyze what they believe to be the Court’s duties under Article 65 of the American Convention to inform the General Assembly of the OAS about cases in which a state has not complied with the Court’s judgments.

(The Spanish language versions of these separate opinions can be found in the Servellón and Blanco Romero orders mentioned above.)

1)            Judge Diego García-Sayán

In his separate opinion, Judge García-Sayán evaluated the effectiveness of the procedure by which the Court currently monitors compliance with its judgments. He highlighted that hearings have been held for that purpose since 2007, and that this tool – the hearings – has become a vital and successful mechanism to guarantee compliance with its judgments. Additionally, Judge García-Sayán explained that Article 65 of the Convention orders the Court to specifically point out to the General Assembly – without much commentary or analysis – the cases in which a state has not complied with its judgments, so that the latter may act in its capacity as collective guarantor of the Inter-American system. According to Judge García-Sayán, this duty is limited to those exceptional cases in which a State’s effective reluctance or refusal to comply with a judgment is proven. In this Saramaka People case, as in most other cases, this threshold has not been met, and the current mechanisms have proved to be effective.

2)            Judge Eduardo Vio Grossi

Judge Vio Grossi concurred with the order, particularly in light of the extended amount of time elapsed since the issuance of the judgments in this case without the State having complied with its fundamental orders. His analysis of the Court’s duties under Article 65 of the Convention (and Article 30 of the Court’s Statute) differs somewhat from those of Judge García-Sayán. According to Judge Vio Grossi, these norms establish an imperative “strict obligation, and not a power, for the Court” to indicate to the General Assembly the cases in which a state has not complied with the decisions of the Court in the corresponding year. As such, the Court’s annual report should include an indication of “those cases, such as the one at hand, in which not only has the established deadline [for compliance] expired, but too much time has passed, more than what could be considered prudent or reasonable, without the State having complied with the Judgment’s fundamental aspects.” For Vio Grossi, an inclusion, in the annual report, of a list of the cases in proceedings for monitoring of compliance or the attachment, as annexes, of the orders issued, does not meet the Court’s obligations under Article 65.

Judge Vio Grossi further notes that the power to adopt measures in order to achieve compliance with the judgments of the Court lies with the General Assembly of the OAS – a political organ – and not with the Court – a judicial organ. According to Vio Grossi, the current proceeding and mechanisms established by the Court in its Rules of Procedure “cannot, then, hope to substitute the jurisdiction, established in the Convention, of the General Assembly of the OAS on the matter, even under the pretext that this latter organ does not exercise its jurisdiction or does not exercise it in due form. It is not for the Court to judge the actions of this political body, the highest body of the Organization.”

In part, Vio Grossi bases his opinion on a belief that the issue of compliance with judgments is not a matter that is the exclusive responsibility of the Court, but of the States. Vio Grossi argues that States, through the OAS General Assembly, and by virtue of Article 68(1) of the American Convention, have the duty to assume the problem of non-compliance, in some cases, with the judgments of the Court, and adopt, if they deem pertinent, the corresponding measures. For Vio Grossi, “the problem is [the States’] responsibility and it corresponds to them to resolve it.”

Judge Vio Grossi concludes his separate opinion by stating that “all the foregoing is not meant to affirm that the mechanism of monitoring compliance with judgment embodied in the Rules of Procedure is not useful or even, in certain cases, effective. Nor does it affirm that the mechanism is inappropriate or that it contradicts the provisions of the Convention or the Statute. On the contrary, what is being affirmed is that its application does not exempt the Court from complying with the obligation established in Articles 65 of the Convention and 30 of the Statute.” For Vio Grossi, this “does not exclude the possibility that [once the Court informs the OAS General Assembly of the cases in which states have not complied with the Court’s judgments], the Court continue, in the following sessions, to implement the respective regulatory monitoring procedure, in which case, it must indicate, in its subsequent annual reports, whether the non-compliance persists and, thus, contribute to the above-mentioned purpose, which is that the OAS General Assembly proceed to act, if it deems pertinent and in keeping with its powers, in the matter.”

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