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E.
Right to Residence and Movement
1.
With respect to the right to residence and movement that the
American Convention on Human Rights guarantees in Article 22,25
this section studies three situations: a. the compulsory relocation of
Miskitos in January of 1982 from their communities on the Coco River to
the Tasba Fri settlements in Zelaya Department; b. the compulsory
relocation of Miskitos in November and December of 1982 from their
communities on the Coco and Bokay rivers in Jinotega to settlements in
the interior of that Department; and c. the repatriation of Nicaraguan
Miskitos currently residing in Honduras.
a.
The relocation from the Coco River Region to Tasba Pri
2.
With respect to the compulsory relocation of approximately 8,500
Miskitos from the Coco River to five camps in what has been called Tasba
Pri, in this section the Commission will consider the compatibility of
this measure with the obligations undertaken by Nicaragua under the
American Convention on Human Rights. The Commission will seek to
establish whether the relocation was legally justified by the fact that
there was an emergency in Nicaragua which authorized its authorities to
adopt such a measure, even though the emergency was declared subsequent
to the relocation.26
3.
Article 27 of the American Convention on Human Rights, applicable
to this case reads as follows: Article
27. Suspension of Guarantees 1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin. 2.
The foregoing provision does not authorize any suspension of the
following articles: Article 3 (Right to Juridical Personality), Article
4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6
(Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws),
Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of
the Family), Article 18 (Right to a Name), Article 19 (Rights of the
Child), Article 20 (Right to Nationality), and Article 23 (Right to
Participate in Government), or of the judicial guarantees essential for
the protection of such rights. 3.
Any State Party availing itself of the right of suspension shall
immediately inform the other States Parties, through the Secretary
General of the Organization of American States, of the provisions the
application of which it has suspended, the reasons that gave rise to the
suspension, and the date set for the termination of such suspension. 4. Since the right to residence is one of the rights that may be suspended, the Commission will limit its examination to considering whether in this case the requirements set forth in paragraph 1 of Article 27 have been met, i.e., that the compulsory relocation move was undertaken: a) in time of war, public danger or other emergency that threatened the independence or security of the State; b) that it was adopted for the period of time strictly required by the exigencies of the situation; and c) that it was not inconsistent with other obligations under international law and did not involve discrimination on the ground of race, color, sex, language, religion or social origin.
The formal requirements set forth in paragraph 3 of Article 27
were not observed by the Government at the time of the relocation, as
has been indicated. The effects of that omission will be considered at
the end of this section.
5.
With respect to the first requisite of paragraph 1 of Article 27,
i.e., that there be a state of war, public danger, or other emergency
that threatens the independence or security of the State, the doctrine
generally accepts the propriety of suspension of obligations in terms of
human rights only when there are extremely, serious circumstances.27
6.
For its part, the European Convention on Human Rights and
Fundamental Freedoms28
and the International Pact on Civil and Political Rights29
set forth provisions similar to those of the American Convention, since
all of these instruments require the existence of a serious national
emergency, that the measures adopted be “strictly required by the
exigencies of the situation” (these terms are the same in all three
instruments) and that those measures be compatible with the state’s
other international obligations.
7.
The European Commission has several times considered the bases of
the declaration of a state of emergency. The criteria arising from the
implementation of the European system indicate, on the one hand, that
the threat to the normal life of the nation should stem from an
important disruption, certainly one greater than a mere civil disorder;
that the danger should be real, in the sense that the danger to security
is imminent and not latent or potential; but, at the same time they
recognize that the State has a margin of discretion to determine the
existence of these threats to its normal life.30
8.
The United Nations Human Rights Commission, for its part, has
also had to deal with some problems in this respect, and has shown
understanding towards states that have truly suffered serious internal
disturbances, as was the case of Lebanon, although that country did not
send notification of the suspension of rights.31
In light of this background, the Commission considers, in
interpreting the first part of paragraph 1 of Article 27 of the American
Convention, that the emergency should be of a serious nature, created by
an exceptional situation that truly represents a threat to the organized
life of the State.
10.
Were the events that took place near the Coco River, on the
border zone with Honduras, in December of 1981, of such a nature?
11.
The Government of Nicaragua, in the statement made by its
representatives to the Commission on March 4, 1982, stated that they had
previously planned to transfer part of the Coco River population to a
more fertile region protected from annual floods, but that the frequent
incursions of the “counterrevolutionary bands” from the Honduran
side of the river had created a “war situation in the zone” that
they viewed as part of an international attack on Nicaragua that
represented a “growing danger to its territorial integrity and
national sovereignty”. As a result, the Government decided on December
28, 1981 to evacuate the entire area and make it a military zone.
With specific reference to the problem of relocation of the
Miskito population, Commander Campbell, in the interview held with the
Commission on March 4, 1982, stated that the Government had previously
decided to relocate part of the population inhabiting the banks of the
River Coco to more fertile lands and more secure areas, in view, among
other things, of the frequent flooding of the villages on the river
banks as a result of the rising of the Coco River and the poverty of the
land, which cannot produce sufficient food or food of sufficient
nutritional value.
The resettlement process was planned to be carried out in stages,
beginning with efforts of persuasion. However, Commander Campbell added,
the resettlement process necessarily had to be undertaken quickly for
military reasons, due to the war situation in the zone as a result of
the presence of counterrevolutionary camps along the left bank of the
Coco River, in Honduran territory, whose existence had been repeatedly
denounced by the Government of National Reconstruction.
Commander Campbell explained that these “counterrevolutionary
bands”, have constantly harassed the border towns either by shooting
from the other side of the river or through frequent incursions into
Nicaraguan territory, which had also been repeatedly denounced by the
Government of Nicaragua. The Commander added that this is part of an
international aggression against Nicaragua to destroy its revolution,
and represents a growing danger to its territorial integrity and
national sovereignty. Thus, the revolutionary government decided to
declare this strip of territory a high security military zone, and
proceeded to reinforce detachments. This situation meant that the
civilian population was trapped between two military forces. The
Commander said that for that reason, the Government of National
Reconstruction, acting responsibly and in the interest of saving the
lives of the Miskitos, decided to relocate the inhabitants of the
above-mentioned communities to five new settlements where they are now
being resettled, community by community, and where the government is
building houses for them and providing them with food and the necessary
medical care.
12.
The Commission finds that the security of the Nicaraguan state
was truly threatened by the incursions of the groups of former members
of the National Guard, which justified the declaration of a state of
emergency and its maintenance. The ongoing penetration of these armed
groups into Nicaraguan territory demonstrates that there was a real and
imminent threat to the security of the State.
13.
The Commission will now consider whether the second requisite
established in paragraph 1 of Article 27 of the American Convention has
been met, according to which the measures adopted shall be strictly
required by the exigencies of the situation, in terms of the duration
and nature of such measures.
14.
According to the above-mentioned criterion, the measures adopted
should be proportionate to the danger, both with respect to degree and
duration; thus, once the danger that threatens the security of the State
has been overcome, the special provisions should also be terminated.
15.
The basic measure adopted by the Government was the relocation of
approximately 8,500 persons from the banks of the Coco River to five new
settlements situated approximately 60 kilometers from the border with
Honduras. These settlements are: Wasminona, Sahsa, Sumubila, Truslaya
and Columbus, and as a whole they are called Tasba Pri, in Miskito.
16.
According to a government publication titled “Tasba Pri”, the
relocation has given the population opportunities they did not formerly
have with respect to health and education; according to that
publication: The organization of the population by family and neighborhood units, to which the Indian peoples are accustomed, has been guaranteed in the existing settlements. All of the members of each of the communities are together, which guarantees that their social structure will not be disrupted.
In all of the settlements, the population has been vaccinated
against malaria, measles and tetanus. Health campaigns have been carried
out that include environmental and personal hygiene, with emphasis on
the use of boiled water to prevent disease.
The children are organized by school age, and schools have been
built in all of the settlements. Normal religious worship takes place in
Sunday services. Likewise, cultural events among the populace of the
settlements have taken place, such as the organization of festivals,
dances, choirs, and musical groups, and sports are encouraged among
children, young people and adults. 17. The reasons for carrying out the relocation are presented by the above-mentioned publication in the following terms: What were the reasons that led the People’s Sandinista Revolution to decide to relocate the Río Coco communities?
The TASBA PRI program is not something new and improvised. It was
immediately preceded by the feasibility study undertaken by the
Revolutionary Government through its Nicaraguan Institute of the
Atlantic Coast (INNICA) in November of 1980, to improve and lend
dignity to the lives of the Miskitos inhabiting the Nicaraguan side of
the Coco River. (Commission’s underlining).
This resettlement will safeguard the Miskito population from the
attacks of counterrevolutionary bands, and ensures protection of their
principal human rights: the right to life and the right to work in
peace.
The resettlements will solve the historic problems of the
inhabitants, which are a subsistence agriculture, lack of fertile lands,
inaccessibility of the region and consequent difficulties for
transporting inputs and obtaining state services, and the floods which
annually cause serious damage to housing and crops. 18. In light of the above-mentioned considerations, the Commission considers that the Government’s plan to relocate the population of the Coco River was replaced due to military necessity. The plan to voluntarily relocate the Coco River population to “improve and lend dignity to the living conditions of the Miskitos” would have been justifiable only if that move had been voluntary, as was allegedly planned.
19.
The Government’s argument that this planned relocation was
changed as a result of a military emergency requires careful examination
to determine whether it was in proportion to the nature of the
emergency. The prevailing situation in the zone at the time of the move
was in fact very tense, and created both a danger to the lives of the
Miskitos and a threat to the Nicaraguan Government; this situation has
been confirmed by subsequent developments in that region. It could be
considered, then, that the requirement of proportionate measures has
been met.
20.
The forced evacuation of nearly 8,500 people, in some cases in
the middle of the night and by armed forces, to create a military zone
is only justifiable in the absence of any other alternative to meet a
serious emergency. Even granting the Government of Nicaragua a margin of
discretion, since it was a military decision applied to a military
emergency, the Commission must now consider whether the duration of the
measure is appropriate to the situation.
21.
The relocation is justified by an emergency situation; therefore,
the measure should not outlast the emergency, and termination of the
emergency should allow the return of the civilian populace to their
original region, if they so desire.
22.
A note of June 15, 1982, addressed by the Government of Nicaragua
to the Chairman of the Commission, regarding the right of the Miskito
population to return to the Coco River when the emergency is over,
stated the following: The Government of Nicaragua guarantees, as stated by a member of the Junta, Dr. Rafael Córdoba Rivas, … than when the danger on the border is over, those who wish to return to their places of origin may do so, and the Government of Nicaragua has surpassed the adequate compensation suggested by giving these Nicaraguan citizens land, homes, seeds, fertilizers and farm tools, and medical attention, without charge. 23. This reply implies, in the opinion of the Commission, that the Miskitos who choose not to remain in Tasba Pri once the emergency is over may return to the Coco River region, which means that the measure would be limited only to the duration of the emergency, thus meeting the other requisites established by the pertinent norms; nevertheless, they will not receive assistance from the Government to reestablish their communities.
It may be understood from the note that the Government considers
that it has met its obligation to compensate the Miskitos for their
losses by providing them an alternative social framework in Tasba Pri,
which nevertheless was neither requested nor accepted by the Miskitos.
Certainly this refusal to provide compensation represents a serious
obstacle for the return of the Miskito population to the Coco River
Region, and contradicts in fact the declared willingness of the
Government to allow that population to return to the zone, once the
current emergency is over.
24.
Nevertheless, the Government of Nicaragua has stated to the
Commission that it had planned the relocation for reasons of economic
development, and that it was to be carried out voluntarily. To impede
their return, directly or indirectly, would imply that the resettlement
arising from the compulsory relocation is permanent, which would be
contradictory to the statements given by the Government and in violation
of the right to residence and movement set forth in the American
Convention.
25.
Due to the circumstances under which the relocation took place,
it is only justifiable on the basis of the military needs invoked by the
Government. Therefore, in order for these measures to fall within the
parameters set forth in paragraph 1 of Article 27 of the American
Convention, they should be adopted “for a period of time strictly
required by the exigencies of the situation”. For that reason, the
Government should expressly declare that the Tasba Pri project may only
be carried out with the Miskitos who voluntarily choose to remain there,
and in addition, should declare that it will assist in resettling other
Miskitos who wish to return to the Coco River Region, which entails
granting them adequate compensation for the loss of their property.
26.
The Commission will now consider the third requisite set forth in
Article 27(2) of the American Convention, i.e., that the exceptional
measures that have been adopted, “are not incompatible with the other
obligations … of international law and do not involve any
discrimination based on race, color, sex, language, religion or social
origin.”
27.
The preponderant doctrine is that massive relocation of
population groups may be juridically valid if done with the consent of
the population involved.32
In fact, with the exception of some cases of relocation of Indians,
which are subject to criticism, the large majority of population
relocations for reasons of economic developed have taken place after
negotiations with the populace concerned, and with assurances of
adequate compensation.
28.
The view set forth above should be taken into consideration in
studying this matter. For that reason, in cases where the State has
moved an Indian minority, study of the conduct of that State should
verify that the move is not based on one of the proscribed forms of
discrimination.
29.
Studies on the forced relocation of rural communities in America
show without exception that this process is a traumatic experience,
particularly when it concerns Indian populations with strong ties to
their land and homes.33
30.
When governmental restrictions are aimed at limiting the rights
of a racial group, the rationale for such restrictions should be
declared strictly and explicitly, in order to determine if the motive
was racial discrimination. In this case, it is necessary to determine if
the relocation was a form of punishment applied to what may have been
considered a disloyal ethnic group.
As indicated by the above background, the problems encountered by
an Indian population as a result of relocation can affect that
population seriously, considering the special ties they have with their
original lands. In the Indian’s complex scheme of values, what gives
meaning to life is its intrinsic connection with their land, their
livestock, their plantations, their cemeteries, their religion and a
complex weave of other elements that combine to infuse the territory
with a deep spiritual meaning. In that culture, a sense of value is
closely tied to one’s place of origin. For that reason, it is
important that the international community seek to avoid, if possible,
disturbances of Indian populations.
31.
In this case, the Commission is of the opinion that the
relocation for military reasons was not carried out in a discriminatory
fashion but that if the Miskitos are not helped to return to the Coco
River region, once the military emergency is over, their prolonged stay
in Tasba Pri will be come a form of discriminatory punishment, in
violation of the American Convention on Human Rights.
32.
Finally, the Commission wishes to refer to the fact that the
Government of Nicaragua did not make use of the right of suspension of
guarantees prior to the relocation, nor did it report to other states on
the “provisions application of which has been suspended” and “the
reasons that gave rise to the suspension” until March 15, 1982.
33.
Since the evacuation took place during the press censorship
imposed by Decree 511, which effectively isolated the Atlantic Coast
from the rest of Nicaragua, an atmosphere of terror and confusion was
created that together with the incendiary broadcasts of Radio 15
September led to the dramatic flight of 10,000 Miskitos to Honduras, to
avoid relocation.
34.
The Commission considers that this result might have been
avoided, at least in part, if the Government of Nicaragua had declared
the state of emergency in the Coco River zone in December, 1981, when it
decided to relocate the population, and if it had reported on the
military justification for the temporary evacuation. This measure would
have undermined the credibility of the Radio September 15 reports of
relocation to concentration camps, and it would have avoided the
consequent panic which gave rise to the exodus of half of the Miskito
population from the Coco River region to Honduras.
35.
This omission has now led to the problem of how to induce the
Nicaraguan population of Miskito origin now in Honduras to return to
their country. The arbitrary detention of Miskitos and the absence of
proper treatment thereof by the Government, because it considers them a
subordinate and suspect population manipulated for military purposes,
has given rise to a deep-seated distrust in the Nicaraguan Miskitos who
are in Honduras.
That is one further reason that leads the Commission to consider
that once the Government of Nicaragua has decided that the military
emergency in the border zone is over, it should provide and even
encourage the return of the Miskito population from Tasba Pri and
Honduras to the Coco River zone, and help them to reestablish the
communities that were destroyed.
b. New evaluation of Miskitos from the Coco River and
Bokay River to settlements in Jinotega
36.
In November, 1982, another evacuation of Miskito communities that
inhabited the surrounding areas of the Coco River and the Bokay River in
the Department of Jinotega took place. The Commission only learned of
these relocations when it learned of the tragic accident that took place
on December 9, 1982, in which 75 children and 9 mothers lost their lives
when the helicopter that was transporting them to the new settlement of
San José de Bokay, between Jinotega and Matagalpa, caught fire.
37.
Initially, the Commission received the following information from
the National Commission for the Protection and Promotion of Human Rights
in Nicaragua on this matter: The National Commission for the Promotion and Protection of Human Rights shares the deep sorrow and indignation of the Nicaraguan people at the terrible death of 95 Miskito children and 9 mothers, who were evacuated by helicopter from the border zone with Honduras to safe places, far from the siege of the counterrevolutionary bands coming from that country. Rescue by another helicopter from Wiwilí was impeded, due to the damage done to it by those same bands.
While the Government of National Reconstruction was protecting
the right to life of these children and that of the communities located
in the border zone with Honduras, the counterrevolutionaries satisfied
their hatred and vengefulness with the innocent blood of these 75
children.
Since the right to life is inherent in human beings, this tragedy
mourned by Nicaraguans takes on greater significance since this right
has been violated for the most important part of a people, the lives of
their children. The National Commission repudiates and denounces these
criminal acts, that not only move the conscience of our people, but
which unite the deepest feelings of all of those who struggle throughout
the world for the protection and observance of human rights. 38. Apart from this communication, the IACHR has received no further information from the Government of Nicaragua, with respect to that evacuation.
39.
During their visit to Nicaragua, the Executive Secretary of the
IACHR and Dr. Cerna, on June, 1983, received the following statement
from the only survivor, Mrs. Lesbia Castillo, who lost her three-month
old son and several relatives in the accident:
The name of the new settlement where they were to be taken was
called San José de Bokay. They began the evacuation at the beginning of
November. Since they couldn’t take everyone to the new settlement at
one time, they had to make several trips, so they decided to concentrate
everyone in a community called Ayapal, to later be relocated in San José
de Bokay. The vehicle that was to relocate the population was in bad
condition, i.e., it had had accidents. Both the people and the crew knew
this. I say that the helicopter had accidents because it was loaded with
bundles and ran into a tree, and one of its blades was broken. The
helicopter was being repaired on the 18th and 19th
so as to be used in the evacuation.
On November 1, the entire town of San Andrés de Bokay was taken
to the Ayapal community. We were in Ayapal for 20 days (I mean the
people of San Andrés de Bokay), and there were people from other
refugee communities there. The authorities gave us food but even so we
were homesick for our community and belongings (home, farms, livestock,
etc.)
After we were evacuated, the communities and houses were burned,
and the livestock killed to be eaten. I am talking about our natal
community San Andrés de Bokay. On December 9, one of those in charge of
the evacuation told all of those evacuated from the Ayapal communities
that they were al going to be evacuated to a new San José de Bokay
settlement where we would live definitively. He also emphasized that a)
the flight would only take children, the sick and the elderly; b) the
others would have to go on foot to the new settlement. The person in
charge said this after the helicopter had already made three trips to
the settlement. For the fourth trip, the mothers of the small children
who were going in the helicopter complained because they wanted to go
with their children. There were even some who said they preferred to go
with their children on foot if they could not go with them in the
helicopter. But the person in charge insisted that only the children,
the old people and the sick could go and the mothers let their children
go alone. Once those of us who were going were inside (they let me go in
the helicopter because I had a three-month old child), the pilot said to
the other mothers that they would make six more trips after this one.
Immediately after it took off, the helicopter had another accident, and
a whole blade fell off, and immediately in the sight of all the
passengers who were desperate, the plane fell, turning over on the
landing strip of Ayapal, where the main door stuck in the ground.
The crew was made up of a pilot, a copilot and a mechanic. They
were aboard, and the above-mentioned people in charge did not help or
stay there to try to save lives. Instead they got out through a window
and tried to save themselves. The death of those children was slow
because help was needed to get out of the helicopter. But no one would
help anyone then. The number of passengers aboard were: 79 children from
3 days old to 15 years of age. Seventy-five of these died, and only 4
were saved. There were 10 adults, mothers, and I was the only one that
was saved from the tragedy. The crew, a pilot, a copilot and a mechanic
saved themselves. The fire followed its slow course while the hopes of
saving these children and adults disappeared. Six coffins were made and
they put the remains of the children and their mothers in the coffins to
give them a Christian burial. 40. In the view of the Commission, testimony of the only survivor contradicts the version given by the Government of Nicaragua with respect to the cause of the accident. In addition, the fact that the evacuation was carried out in secret and without external observers suggests once again the same critical observations that the Commission made with respect to the relocations carried out in January 1982, to Tasba Pri. From the viewpoint of the IACHR as mediator in a friendly settlement, it can only regret not having been informed of this evacuation until after the helicopter accident. It is clear, given the role that the Commission had assumed at the very initiative of the Government of Nicaragua itself, it should have been duly informed of this new compulsory relocation of Miskito populations, particularly if one bears in mind that the Government of Nicaragua was already informed of the misgivings and concerns that the Commission had expressed with respect to the way in which the earlier relocation to Tasba Pri had taken place.
c.
The relocation of Miskito refugees in Honduras to Nicaragua
41.
Both in its preliminary recommendations and in the
recommendations contained in its Report of July 26, 1983, the Commission
pointed out that, if possible, voluntary repatriation of the Nicaraguan
Miskitos who had taken refuge in Mocorón should be facilitated. For
that purpose, the Commission stated that it would be desirable to have
the assistance of the Government of Honduras and of the United Nations
High Commissioner for Refugees and both were asked for their
cooperation.35
42.
For its part, the Government of Nicaragua always stated its
willingness to accept such relocation. It even made that relocation the
central point of the Commission’s intervention in the friendly
settlement procedure.36
43.
Nevertheless, as stated above, the arbitrary detention of
Miskitos, the destruction of their property and the lack of proper
treatment by the Sandinista Government has led to a deep distrust by the
refugee Miskitos in Honduras of the Nicaraguan Government.
44.
After twice interviewing Nicaraguan refugees of Miskito origin in
Mocoron and other camps in Gracias de Dios Department of Honduras, the
Commission has reached the conclusion that for the time being such
repatriation is not possible, given the resistance of the large majority
of the Miskitos to returning to Nicaragua. Nevertheless, should
prevailing circumstances change, the Commission believes that efforts to
bring about their repatriation should again be undertaken in the future.
45.
Despite the foregoing, the Commission considers that efforts can
be made through the UNHCR and with the cooperation of the Government of
Honduras so that, in some cases, some Miskito families may be reunited,
as is the case for example of the heads of family who have remained in
Nicaragua, such as the pastor of the Moravian church, Tomás Escobar,
whose family is now in Honduras.
1.
With respect to the right to property set forth in Article 21 of
the American Convention on Human Rights,37
the issue studied in this report has two distinct aspects. The first is
the claim made by the leaders of Misurasata and Indian communities to an
inherent right of the Indian people to possess, use and enjoy their
ancestral lands, as well as its resources and riches. The second refers
to the destruction of the homes, crops, livestock and other belongings
of the Miskitos in the course of the compulsory relocation to new
settlements.
2.
In his written presentation to the Commission, Mr. Armstrong
Wiggins, on his own behalf and on behalf of the Indian Law Resource
Center, stated that if the intention of the Sandinista Government was to
permanently locate the inhabitants of the Coco Region elsewhere, this
would be prejudicial to their interests and the basic rights of the
Indians. Mr. Wiggins added that if such relocation were permanent: … then the Indians of Nicaragua are experiencing the same, classic anti-Indian rights policy which Indians have historically suffered throughout the Americas. They are being forcibly uprooted from their traditional homelands and from their traditional ways of life by their more militarily powerful non-Indian neighbors. This would mean that Indian property rights to substantial areas of their territory and Indian cultural rights to continue their way of life are being usurped. If this is the objective, then the Indian right to self-determination is being denied not merely as a temporary emergency measure but as official government policy for the indefinite future. Such outrageous denial of these Indian peoples’ most basic human rights would fairly be called imperialism. 3. For its part, Brooklyn River, Coordinator General of Misurasata, in his presentation of April 8, 1982, claimed that a fundamental part of the allegations of his organization related to the problem of the lands, since the Indians’ rights to the lands in Indian Territory should be recognized as a whole and not in parcels or sections guaranteed by the Government. Likewise, Rivera stated that the Indians’ right to the natural resources of their own land should be guaranteed.
4.
The position of the Government of Nicaragua has thus far been
diametrically opposed to that set forth by Wiggins and Rivera. In the
view of the Government, the Indians have no special rights that allow
them to exercise rights other than those of other Nicaraguan citizens in
Nicaraguan territory. Thus, in a document submitted to the United
Nations Seminar on resources and other forms of protection for victims
of racial discrimination, the Minister of the Nicaraguan Institute of
the Atlantic Coast, William Ramírez, refuting these special rights of
the Indian communities, stated: Territorial unity stands above any other consideration and is not subject to discussion of any kind. The imperialist dream is to separate the Atlantic Coast from the rest of Nicaragua. We will never permit this. Our Indians are as Nicaraguan as any other citizens, and they have the same rights as any one of us. 5. In addition, the Agrarian Reform Law that came into effect on August 21, 1981, has tried to harmonize the eminent domain of the Nicaraguan state over its national territory with the interests of the Indian communities, by providing in Chapter VIII that: The State may dispose of the amount of land necessary so that the Miskito, Sumo and Rama communities may work them individually or collectively and so that they may benefit from their natural resources, so that their inhabitants may improve their standard of living and contribute to the economic and social development of the Nicaraguan nation. Nevertheless, the Commission is not informed about how this provision has been implemented. On the contrary, it is aware of Misurasata’s disagreement with agrarian reform as it concerns the Indian communities.
6.
The Commission is not in a position to decide on the strict legal
validity of the claim of the Indian communities to their ancestral
lands. This does not mean that it is unaware that this problem is one of
the most serious between these communities and the Government of
Nicaragua, and a de facto situation that must be recognized and
considered sooner or later. In addition, it should be taken into account
that this kind of problem is neither novel nor exclusive to Nicaragua,
since there is a large number of similar situations in America, where
vast groups of the Indian population have seen their development
potential diminished, due to the absence of a political response that
would adequately take into account the peculiarities of their social and
economic organization. The resolution of this kind of problem by the
Government of Nicaragua would represent a valuable precedent for
consideration of similar situations. Obviously, this in no way implies a
limitation on the sovereign rights of Nicaragua over its territorial
integrity. Hence, the Commission recommends to the Government that it
study a just solution to this problem as soon as possible, and that it
meet both the aspirations of the Indians and the requisites of
territorial unity of the Republic. 7. With respect to the destruction of the homes, crops, livestock and other belongings of the Miskitos at the time of the relocation, Government officials themselves have recognized that these acts took place. It would therefore be appropriate for the Government, in conformity with the American Convention on Human Rights, to authorize just compensation for the destruction of their property to those concerned
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25
The pertinent parts of Article 22
of the American Convention states: “1. Every person lawfully in
the territory of a State Party has the right to move about in it,
and to reside in it subject to the provisions of the law. 2. Every
person has the right lo leave any country freely, including his own.
3. The exercise of the foregoing rights may be restricted only
pursuant to a law to the extent necessary in a democratic society to
prevent crime or to protect national security, public safety, public
order, public morals, public health, or the rights or freedoms of
others. 4. The exercise of the rights recognized in paragraph 1 may
also be restricted by law in designated zones for reasons of public
interest.” Article VIII of the American Declaration of the Rights
and Duties of Man states: “Every person has the right to fix his
residence within the territory of the state of which he is a
national, to move about freely within such territory, and not to
leave it except by his own will.” 26
It was only on March 15, 1982 that the Government of
Nicaragua suspended for thirty days, which could be extended,
“throughout national territory, the rights and guarantees set
forth in Decree Nº 52 of August 21, 1979 with the exception of the
provisions of Subparagraph 2 of Article 49 of that Decree.” The
Decree suspending these guarantees was sent to the General
Secretariat of the OAS on March 22, 1982. 27
In this regard, see, for example, Higgins: Derogation
Under Human Rights Treaties, 48, British Year Book of
International Law, page 282-3. 28
Article 15 of the European Convention states: 1. In time of
war or other public emergency threatening the life of the nation any
High Contracting Party may take measures derogating from its
obligations under this Convention to the extent strictly required by
the exigencies of the situation, provided that such measures are not
inconsistent with its other obligations under international law. 2.
No derogation from Article 2, except in respect of deaths resulting
from lawful acts of war, or from Article 3, 4 (paragraph 1) and 7
shall be made under this provision. 3. Any High Contracting Party
availing itself of this right of derogation shall keep the
Secretary-General of the Council of Europe fully informed of the
measures which it has taken and the reasons therefore. It shall also
inform the Secretary-General of the Council of Europe when such
measures have ceased to operate and the provisions of the Convention
are again being fully executed. 29
Article 4 of the International Covenant on Civil and
Political Rights states: 1. In time of public emergency which
threatens the life of the nation and the existence of which is
officially proclaimed, the States Parties to the present Covenant
may take measures derogating from their obligations under the
present Covenant to the extent strictly required by the exigencies
of the situation, provided that such measures are not inconsistent
with their other obligations under international law and do not
involve discrimination solely on the ground of race, colour, sex,
language, religion or social origin. 2. No derogation from articles
6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under
this provision. 3. Any State Party to the present Covenant availing
itself of the right of derogation shall immediately inform the other
States Parties to the present Covenant, through the intermediary of
the Secretary-General of the United Nations, of the provisions from
which it has derogated and of the reasons by which it was actuated.
A further communication shall be made, through the same
intermediary, on the date on which it terminates such derogation. 30
The first analysis of the invocation by a State of an
emergency to justify suspension of obligations arising from the
European Convention was prepared by the European Commission in the
case of “Cyprus” (Greece vs. the United Kingdom of Great
Britain, 1958-1959). Additional bases of investigation to determine
the existence of an emergency and whether the measures adopted by a
government were “strictly limited to the exigencies of the
situation”, were prepared in three other cases by the European
Commission and Court. The “Lawless” case (1961); the Greek Case;
and the case between the Republic of Ireland and the United Kingdom
(1976-1978). 31
UN Doc. 34 UN. GAOR supp. Nº 401. 32
The Institute of International Law, at its meeting in Sienna,
1952, adopted the position that population relocations may be legal
only if they are “voluntary”. (44/2 Annuaire. 138 (1952). 33
For example, a study of the programmed relocation of
approximately 10,000 Navajo Indians demonstrated the following
negative effects arising from resettlement: For most of the people
who have been moved, the deep shock of the forced relocation is
similar to the grief caused by the death of a father, wife, or son.
This multidimensional tension has given rise to numerous negative
effects. The relocation undermines the person’s self-confidence,
who finds it humiliating to have been unable to protect his basic
interests. In the case of the Navajos, these interests were
preservation of their native soil (for them, and more importantly,
for their children), their homes, their system for raising livestock
associated with their way of life, and environmental ties to their
birth sites. The trauma of resettlement alters the family group and
the lives of each of its members. It undermined the influence and
authority of the head of household when he or she has been shown to
be unable to preserve the family’s way of life. The individual
members of the family may suffer severe depression. Violence,
alcohol abuse and mental and physical illnesses are too frequently
closely related to compulsory relocation. The move also undermined
the influence and authority of local leaders. Since most of those
relocations are resisted, in one way or another, their leaders are
discredited if they cooperate with the authorities of the
resettlement process. On the other hand, these leaders are also
discredited if the relocation takes place despite their opposition.
See Scudder: “No place to go. Effects of Compulsory Relocation on
Navajos”, 1982. 35
See Sections L and N in Part One. 36
See paragraph 5, Section N, Part One, which contains the
proposal of August 24, 1982 of the Government of Nicaragua. 37
Article 21 of the American Convention states: 1. Everyone has
the right to the use and enjoyment of his property. The law may
subordinate such use and enjoyment to the interest of society. 2. No
one shall be deprived of his property except upon payment of just
compensation, for reasons of public utility or social interest, and
in the cases and according to the forms established by law. 3. Usury
and any other form of exploitation of man by man shall be prohibited
by law.
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