Legal and Historical Background: The Landmark Case of Awas-Tingni v. The State of Nicaragua
The Awas-Tingni case has represented an important landmark for indigenous peoples in the Americas and beyond; as a result, indigenous peoples are increasingly using international human rights institutions to defend their land, territories, and cultures, and their survival.
Leonardo Alvarado on indigenous rights, international law and the case of Awas-Tingni.
In 1995, the Nicaraguan government granted a Korean-based logging company a concession in the ancestral lands of Awas-Tingni – a small Mayagna community located in the North Atlantic Autonomous Region.
The government gave the concession without first consulting the community, and most importantly, without regard to the 1987 Autonomy Law, which protects the lands and rights of the Caribbean Coast’s indigenous and Afro-descendant peoples. In short, the Nicaraguan government ignored its own constitution.
The Mayagna tried and failed to halt the concession through the Nicaraguan legal system, so instead turned to the Inter-American court of Human Rights in Costa Rica. In the case of Awas-Tingni vs. the State of Nicaragua, the court ruled in favour of the Mayagna, maintaining that the government had violated their human rights.
Furthermore, it demanded that the state fully delineate, demarcate and title the Anwas-Tingi territory, as well as all other indigenous territories. The case was a landmark ruling because it demonstrated the potential of international human rights laws to protect indigenous peoples, their land and natural resources. Furthermore, it paved the way for Law 445, otherwise known as the Demarcation Law, passed in 2003.
Law 445: Law of Communal Property Regime of the Indigenous Peoples and Ethnic Communities of the Autonomous Regions of the Atlantic Coast of Nicaragua and of the Rivers Bocay, Coco, Indio and Maíz
It is the ineludible commitment of the State of Nicaragua to respond to the claim for the titling of the lands and territories of the indigenous peoples and ethnic communities of the former Mosquitia of Nicaragua…
First Principle of Nicaragua’s Law 445
Law 445 has been described as kind of enabling structure for Nicaragua’s Autonomy Law, which was passed in 1987 as a post- war peace offering to the Atlantic Coast’s indigenous and Afro-descendant communities, many of which were armed and outspoken. Law 445’s specific concern is the land rights of these communities, which have been generally ignored in spite of the 1987 Autonomy law.
In essence, Law 445 demands the demarcation and titling of all indigenous and Afro-descendant lands. It recognizes the rights of such communities to use, administer and manage their traditional lands and resources as communal property. As such, Law 445 re-establishes the property rights of Nicaragua’s ethnic minorities and devolves political power to the communal level.
For the purposes of carrying out the demarcation, various structures were created, including the National Commission for Demarcation and Titling (CONADETI), Regional Intersectoral Commissions and Regional Technical commissions. Miss Dolene Miller, second secretary to CONADETI’s directive board, described demarcation as a 5-stage process when Interamericana spoke to her. The process is currently being applied to reasonably large territorial areas, or ‘nations’, as titling each individual community would unnecessarily stifle the procedure – and fragment the region.
The stages are:
- Diagnosis. The various forms of land tenure within a given territory are identified, including private and collective. This stage is carried out by a technical team who physically surveys the area. A sociological study accompanies the diagnosis.
- Mediation or Conflict Resolution. A process where communities can come together ‘in a friendly way’ to solve any problems of land overlapping, or disputes over natural resources.
- Boundary setting. Conflicts now resolved, the actual setting of territorial boundaries is accomplished.
- Titling. CONADETI submits the territorial claim to the government, who in turn issues a collective title.
- Saneamiento. The final and perhaps most challenging stage of the demarcation process involves ordering up the land. In saneamiento, all illegal settlers, or those in possession of illegal titles, are asked to pay rent directly to the appropriate territorial government, or failing that, vacate their properties.
Click here to download a complete English language version of Law 445
