AP Photo/William Fernando Martinez
Indians protest in Bogota, November 21, 2008. Thousands of Indians marched to Bogota in a push for land rights and to protest free-trade negotiations and attacks on the country's indigenous population.

Why the US and Canada Fear a Human Rights Court, Pt. I: The Global Expansion of International Law

Steve Russell

If you can’t get your rights protected in the courts of the country where you have been placed by accident of birth, your choices are rebellion or an appeal to international law. Since the end of World War II the hopeful trend has been to expand remedies for human rights violations in international law, starting with the criminal remedies in the Nuremberg and Tokyo Tribunals and expanding to offer civil remedies in specialized courts. With the establishment of regional courts tasked to protect fundamental human rights, more nations are submitting to the jurisdiction of these supranational courts. A less hopeful development is that the nations not submitting to supranational jurisdiction are some of the worst abusers of basic human rights.

Some question whether “international law” exists. Put another way, the question is whether international law can co-exist with the sovereignty of nation-states. The skeptics can point to blazing hypocrisies, such as back-to-back decisions in the Permanent International Court of Justice in the mid-eighties. The hypocrisy is not in the PICJ but rather in the nations litigating, all of which did, after all, sign the treaty creating the court.

The United States sued Iran in the Permanent International Court of Justice over “students” occupying the U.S. embassy in Teheran and making hostages of embassy workers. The U.S. argued successfully that the mob was either a creature of the Iranian government or Iran had failed in its duty to protect diplomatic missions. Upon losing the case in 1980, Iran disregarded the PICJ judgment and paid no damages.

Nicaragua sued the United States over, among other actions, mining Nicaraguan harbors in peacetime in support of a rebellion against the elected Marxist government. The rebels came to be known as “Contras,” truncated from the Spanish, la contrarrevolución. They called themselves counter-revolutionaries to signify opposition to the elected government, which, as is common in Latin America, claimed the mantle of a historical revolutionary, Augusto César Sandino, who led a revolt against U.S. occupation of Nicaragua from 1927 to 1933. About 130 U.S. Marines were killed fighting Sandino, who famously remarked, La soberanía de un pueblo no se discute, sino que se defiende con las armas en la mano. (“The sovereignty of a people is not disputed, but defended with a weapon in hand.”)

Given this history, U.S. opposition to the government that called itself “Sandinista” was a certainty, but since that government was elected, the opposition was mostly covert. When the Nicaraguan government sued the U.S. for covert actions – from training rebels to violations of Nicaraguan air space to mining Nicaraguan harbors –the U.S. contested PICJ’s jurisdiction and, upon losing, withdrew from further participation. In 1986, the PICJ upheld Nicaragua’s claim and ordered the U.S. to pay damages, which it never did. The U.S. Ambassador to the United Nations disparaged the PICJ as a “semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don't.”

If that UN Ambassador was correct, she was correct because the government she served chose to trivialize the same court to which a previous U.S. government had complained. The difference was the difference between U.S. Presidents Jimmy Carter and Ronald Reagan, giving credence to international law as “semi-political.” Carter’s resort to the PICJ regarding the Iran hostages was of a piece with his brokering of the Camp David Accords between Israel and the Palestine Liberation Organization, for which he received the Nobel Peace Prize.

Reagan’s disdain for the PICJ is of a piece with his Iran-Contra Scandal, in which the Reagan Administration violated domestic laws against arming Iran and against aiding the Contras. Having defied Congress by doing those things, defying an international court was small beer.

The hypocrisy of the U.S. is not merely in ignoring the judgment of a court when it denounced Iran for doing the same. The birth of advance agreements on how to resolve disputes among nations peacefully is in the Jay Treaty, familiar to Indians for guaranteeing passage between the U.S. and Canada for Indigenous Peoples and for setting up a commission to resolve disputes over the location of the border that continues working today. The U.S. is also a permanent Security Council member in the United Nations, under whose auspices the PICJ exists, with the Security Council being the enforcement mechanism for judgments, if there is to be enforcement.

The Iran and Nicaragua cases were about the rights of nations. That is not the hard part of an international rule of law. The hard part is human rights claims, the kinds Indigenous Peoples can bring against the nations inside which they have been placed by accidents of history. The argument is that any remedy should come from the domestic court system of the nation charged with human rights violations and anything more is “meddling in the internal affairs” of other countries. This argument deployed against First Nations in Canada or Indians in the U.S. is identical to how China avoids consequences for its actions in Tibet or Russia does the same in the Chechen Republic.

The good news is that three courts have recently been created specifically for human rights claims.

The European Court of Human Rights sits in Strasbourg, France, and was born in 1959. The European Court’s authority is based in the European Convention on Human Rights and it adjudicates claims arising from its 47 member states by agreement of the states in adopting the Convention.

The African Court on Human and Peoples’ Rights was created by the Organization of African Unity in 1998, but did not begin hearing cases until 2004. The court has jurisdiction over all states that have ratified the protocol and some states have also ratified a provision consenting to be sued by non-governmental human rights organizations (NGOs). The court sits in Arusha, Tanzania, and American Indians will be interested to know that it conducts business in all four of the major colonial languages in Africa—English, French, Portuguese, and Arabic—but not in less-common colonial languages of Spanish, German or Afrikaans, or any of the major indigenous languages of that continent.

Since most Africans are tribal peoples like us, their choice of languages here is of interest. The “nations” of Africa are lines drawn on sometimes vague maps by colonial nations without regard to traditional boundaries or cultural differences, much like how maps were drawn in the Americas. Seeking national identity, the postcolonial governments have often adopted the languages of the colonizers as official, because all tribes within each colony were educated in the colonial language. Arabic—technically an African language, although often the native tongue of colonizers—is the official language of 12 countries.

A difference in Africa is the existence of “trade languages,” understood by many peoples but unique to none. Examples are Swahili, Hausa and Berber. Primary trade goods in modern times come from mining and farming, but from the 16th to the 19th centuries, Africa was identified with the slave trade and most of the slaves were exported to the Americas, more to South America than North. American Indians are not the only peoples living with scars from the Age of Imperialism.

The Inter-American Court of Human Rights is the most recent attempt to provide remedies for people with complaints against governments that are nominally their own. The Inter-American Court began in 1979 and sits in San José, Costa Rica, under the auspices of the Organization of American States (OAS). The U.S. and Canada are both OAS members, as are all continental nations to the south and most Caribbean nations. The headquarters of the OAS is in Washington, D.C.

Because the Inter-American Court sits in a hemisphere populated by settler states, it has become a world leader in human rights law as applied for Indigenous Peoples. Of the 35 member states of the OAS, 23 have ratified the American Convention on Human Rights and 20 of those have agreed to the jurisdiction of the Inter-American Court in all cases. The U.S. signed the American Convention on Human Rights in 1977 but Congress has never acted on ratification. Canada has never signed, making its ratification moot. Neither of the settler states in North America has been willing, so far, to submit to judicial scrutiny of their treatment of Indigenous Peoples within their respective borders.

The Inter-American Court does business in the colonial languages of English, French, Portuguese and Spanish. While it has never been allowed to hear cases arising in Canada or the United States—giving credence to the proposition that international law is a human rights mirage in a desert of colonial power—it has decided numerous cases involving the human rights of Indigenous Peoples, cases that will be precedent for Canada and the U.S. if and when they decide to join the civilized world.

In Part II, we will examine the Inter-American Court of Human Rights cases involving Indigenous Peoples.

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