Courtesy Anna Jeffrey
What if international law would back the San Carlos Apaches in their fight for Oak Flat up? What if they could appeal to a higher court?

Take Oak Flat to a Higher Court: Why US & Canada Fear Human Rights Courts

Steve Russell

Hundreds of Apaches are occupying Oak Flat, a sacred site to Apache people since long before the state of Arizona, where Oak Flat lies, existed. The occupation is an effort to prevent the destruction of Oak Flat by an Australian transnational mining corporation that got the rights to it in a shady deal engineered by the two U.S. Senators and a Congressman from Arizona. The Apaches, courting arrest, have asked for people of faith to back them up. At a protest rally in February, individuals from at least five other tribes appeared to back up the San Carlos Apaches. The New York Times published an op-ed backing them up, calling the Oak Flat deal “sneakily anti-democratic even by congressional standards.”

RELATED: Hundreds Gather at Oak Flat to Fight for Sacred Apache Land

Senators John McCain and Jeff Flake and Rep. Paul Gosar, all Republicans, engineered the gifting of Oak Flat to Rio Tinto with an amendment to a “must pass” defense bill at the last moment, when there could be no debate. The imminent destruction of Oak Flat is a product of the colonial government, so there’s little chance that government’s legal system will back up the Apaches.

What if international law would back them up? What if they could appeal to a higher court?

The American Convention on Human Rights aspired to establish “a system of personal liberty and social justice based on respect for the essential rights of man.” This multilateral treaty was opened for signature in 1969 under the auspices of the Organization of American States. The OAS was established in 1948 with the United States and 20 other states as charter members. Canada finally joined in 1990, and the OAS headquarters is in Washington, D.C.

Article 20 of the American Convention on Human Rights protects freedom of conscience and religion, a freedom that the Apaches cannot enjoy with their sacred sites destroyed. Article 23 protects the right to participate in the colonial governments, a right denied in the underhanded way the gift to Rio Tinto was accomplished. Article 25 promises “judicial protection” against acts that “violate the fundamental rights recognized... by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.”

More important than these fine abstractions, the Convention created the Inter-American Commission on Human Rights and the Inter-American Court on Human Rights as enforcement organs. Since the Inter-American Court began hearing cases in 1979, it has rendered a stunning series of decisions protecting the rights of Indigenous Peoples in the Americas and recognizing the collective nature of those rights. If the Apaches courting arrest right now were able to apply to the Inter-American Court for help, the case would be decided by judges from other nations, lending the decision a credibility U.S. courts can never have.

RELATED: The South Does Rights Thing; Why US & Canada Fear Human Rights Court, Part II

The series of reports of which this is the last attempts to answer why the San Carlos Apaches cannot appeal to the Inter-American Court on Human Rights for protection, just as the First Nations of Canada cannot challenge Canada’s policy to promote mining of bitumen—”tar sands”—in ways that threaten traditional lifeways.

At the time the American Convention on Human Rights was opened for signature in 1969, the Cold War was raging worldwide and was felt most acutely in this hemisphere in the diplomatic estrangement between the U.S. and Cuba that is finally on the path to resolution this year. The U.S. was fighting a hot war in Vietnam against a national liberation movement. Cuba involved itself in the wars of national liberation in the Portuguese colonies of Africa and made mighty efforts to stir up the same conflicts in Latin America.

Looking back, it is amazing that such a comprehensive human rights document came out of times when human rights were, at best, a secondary consideration of the great powers. Foreign policies on both sides of the Cold War were driven by “my enemy’s enemy is my friend.” The U.S. found itself shipping arms to odious Latin American governments who used the weapons on their own people, often their indigenous people.

Opponents of the many Latin American dictatorships were not ignorant of the unfortunate history the U.S. has with its Indigenous Peoples and with slavery, but even more African slaves were imported to South America than to the U.S. Combine that importation with the color prejudice of the Spanish and Portuguese and the result is racial caste systems still common in the Americas. Color prejudice was and is a major human rights issue.

The American Convention attempts to leap a legal hurdle that obstructs treaty enforcement in the U.S. and some other nations, the idea that a treaty is not “self-executing” and therefore confers no rights by itself. Article 2 of the American Convention creates a duty to execute the treaty by passing whatever laws are necessary to make the rights declared legally enforceable:

Article 2. Domestic Legal Effects

Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.

In addition to the civil rights to life, liberty, property and the more procedural rights legal scholars understand as “civil liberties,” the Convention goes a bit further and defines, for example:

— a right to legal personhood, which U.S. law has recently extended to corporations but not all Latin American countries have extended to Indigenous Peoples within their borders;

— a right to humane treatment, even when accused of crime;

— a right to compensation if wrongfully punished for a crime;

— a right of reply to “inaccurate or offensive statements or ideas disseminated to the public…by a legally regulated medium;”

— a right to a nationality, which was denied to Indigenous Peoples in the U.S. until the Indian Citizenship Act of 1924 and is still denied in some nations;

— a right to freedom of movement;

— a right to participate in the colonial government;

After a recitation of human rights far more expansive than the U.S. Bill of Rights, the Convention goes on to create the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights to enforce the treaty.


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eore15's picture
Submitted by eore15 on
Sign this White House petition calling for President Obama to protect this land: Please post to your facebook and twitter pages; the government will respond to petitions with 10,000 signatures. Thank you for participating in your democracy.

Giovanni Johns
Submitted by Giovanni Johns on
~What if these same Indigenous Peoples were to go & plead their case to those who were given the gift & to let them realize the grave injustice of their intentions~

Michael Madrid's picture
Michael Madrid
Submitted by Michael Madrid on
To eore15: I went to the URL you provided, but the webpage says the Petition is closed to signatures. Too bad, I would like to have seen this actually work.