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The South Does Rights Thing; Why US & Canada Fear Human Rights Court, Part II
Human rights as something existing outside of national borders but enforceable within those borders is the furthest frontier of international law. Conflict resolution outside of national legal systems began with trade and spread to border disputes and the rules (such as they are) of warfare. In the Atomic Age, very few disputes justify going to war, and recognition of that has driven even more acceptance of international law.
Human rights law is a step beyond peaceful dispute resolution between nations. It demands that nations check their sovereignty at the courthouse door and submit to decisions by human rights tribunals. The law for supranational human rights courts to apply, like the courts themselves, did not exist until this century and is still a work in progress. Much of that law is being written in this hemisphere, south of Canada and the U.S. So far.
Canada and the U.S. are too civilized to require human rights protections for Indigenous Peoples, or so those governments claim. If we are to differ with that claim, it’s necessary to keep our eyes on the growth of human rights law, a process in which the western hemisphere leads the world but the nations quickest to claim the mantle of civilization remain aloof.
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The Inter-American Court of Human Rights is the newest of three supranational tribunals that protect individuals and groups from the nations of which they are citizens. Submitting to the Court’s jurisdiction diminishes sovereignty in the traditional sense and, like all courts, this one must depend on its powers of persuasion to create legitimacy and summon aid if judgments need enforcement. There is no international sheriff.
Because there was no international sheriff in the age of imperialism, the colonizers of the Americas did as they pleased, killing and stealing with impunity. If one goal of international law is to end that impunity, courts must do their best to unravel arrangements based in theft and homicide. That unraveling has to proceed in places where the most havoc was wreaked by colonization. Leadership in the development of human rights law for indigenous people has come to this hemisphere because American nation-states were all created by colonization at the expense of people already living here and so the cases arise in the Americas.
Most of the lines on American maps were drawn in Europe, beginning with the Treaty of Tordesillas in 1494. Following the dictates of the Pope, the so-called New World was divided between Spain and Portugal, sight unseen. The Pope rejiggered the lines several times, but the basic scheme lives on to this day: the Portuguese confined to a tip of South America that is now Brazil, with Spain awarded all the rest of South America and North America, and Portugal given a free hand in Africa.
The repercussions of this imperial hubris still ripple through the indigenous communities of Africa and the Americas. While the evils done are recognized in these post-colonial times, the questions of reparations and protections remain for the international law of human rights.
The Permanent International Court of Justice (one of the few remnants of the League of Nations, the failed brainchild of President Woodrow Wilson that was born and died between the world wars) decided what became a landmark case on the general rule of compensation for a bad act, also known as reparations. Germany v. Poland, in 1928, held that “reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.” That’s a noble goal, and often an impossible one, particularly when wiping out the consequences of the bad act would require raising the dead.
When the Inter-American Court of Human Rights began hearing cases, unlawful killings and the repercussions of those killings on indigenous communities were the first issues brought forward. The only “law” the court was specifically tasked to apply was the American Convention on Human Rights. Like Chief Justice Marshall in the United States, the Inter-American Court was tasked to write on a blank slate and define the status of Indigenous Peoples before the law. Perhaps because an international court is not bound to the interests of any particular government, the writings so far on the blank slate of indigenous human rights differ radically from the courses chosen by the national courts of Canada and the United States. Here are a few of the landmarks in that process:
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— Indigenous Peoples do not lose their tribal status by intermarrying
In Aloeboetoe et al. v. Suriname, the Inter-American Court addressed a 1988 incident in which seven Saramakas, members of what the Court found to be a “tribal population,” were murdered by army troops on suspicion of being part of an insurgency. Suriname objected to the “tribal population” designation because the victims were Maroons, a word derived from the Spanish cimarrón, referring to a wild animal and used to describe escaped African slaves intermarried with South American Indians. When Suriname lost on the issue of whether the Saramakas were a tribal population, it conceded responsibility for the killings, which brought forward the issue of what living persons were due reparations.
Suriname wanted to apply its law of descent and distribution, the method of determining heirs when the deceased left no will. The Saramakas, however, were a polygamous, matrilineal people, two practices not accounted for if the law of Suriname were to define heirship. The court managed to offend all parties when it recognized traditional polygamous relationships as superior to national law but still insisted on reckoning ascendant relatives without regard to sex, apprehending gender neutrality as a value that trumped tribal traditions just as tribal traditions had trumped the domestic law of Suriname.
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Outstanding article that