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

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?

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 Timespublished 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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The treaty sets out methods for selecting members of the Commission and judges of the Court that assure no nation or political orientation is likely to dominate either.

While the Commission and the Court take complaints against member states from any person or non-governmental organizations (defined to include indigenous organizations), those complaints may only be taken against nations that have consented to recognize the jurisdiction of the Commission or the Court.

It’s in this matter of consent that Canada and the U.S. part company with most of the other governments in the Western Hemisphere. United States President Jimmy Carter signed the American Convention on Human Rights in 1977 but it has never been ratified. Canada has not signed.

Some politicians object that protecting the human rights of persons across national borders is “meddling in the internal affairs” of other nations. Others claim that the northern nations are more advanced than the nations from Mexico south in the protection of human rights and so there is no need for an external mechanism.

Most indigenous citizens of the U.S. and Canada would probably disagree with both of those assertions, and so would the many Latin American countries that have suffered under U.S.-backed dictatorships.

Guatemala was ruled by a series of military dictators from 1930, starting with Jorge Ubico, who expropriated indigenous lands for the benefit of United Fruit Company. The Indians, mostly Mayans, wound up toiling under abysmal conditions on land they used to own.

Ubico was overthrown by coup d’état in 1944, leading to the first free election in Guatemala and the “revolutionary” governments of first Juan José Arévalo and then Jacobo Árbenz. While neither Arévalo nor Árbenz were Marxists, there was no way to reform that did not involve ameliorating the working conditions on the banana plantations and, eventually, returning land to the Mayas. The CIA responded to United Fruit Company’s cries of outrage by engineering the overthrow of Árbenz in 1954, beginning another series of military dictatorships that suppressed the Indians ruthlessly.

Civil War raged in Guatemala from 1960 to 1996, when there were elections. That’s why the massacres of Indians and destruction of their property took up a great deal of the Inter-American Court’s early business, and the Court’s methods of dealing with human rights violations past and ordering creative remedies clearly spooked the U.S. and Canada.

There’s another problem for the nations of North America getting worse over time. Early decisions of the Inter-American Court will be cited as precedent for subsequent cases and that court is already, particularly from the standpoint of U.S. law, “off the reservation.”


— The Court has held that Indigenous Peoples do not lose their tribal status by intermarrying in a case that involved intermarriage with African slaves.

— The Court has recognized aboriginal titles to land, in direct conflict with a U.S. Supreme Court holding that denied aboriginal title to Alaska Natives.

— The Court has held that the right to property includes a right to “informed participation and consent” to mineral extraction even when the Indians do not own the underlying minerals, in direct conflict with a U.S. Supreme Court decision that allowed the U.S. government to fleece the Navajo Nation when the Navajos did own the minerals.

— The Court has held that the right to life includes a right to vida digna, which the Court translates “a decent life,” opening up the U.S. government to lawsuits over the living conditions on reservations.

— Scariest of all for the U.S. and Canada, the Court has found that injuries to indigenous persons are injuries to indigenous communities and therefore the communities must be compensated.

The Inter-American Commission on Human Rights has taken the position that it has authority to issue reports on human rights violations in OAS member states even when they have not signed the American Convention on Human Rights. This puts the government of the colonial state in the position that, if it complains, it merely calls more attention to any negative findings. The latest “victim” of this process is Canada.

On December 21, 2014, the Commission published Missing and Murdered Indigenous Women in British Columbia, Canada. Comparing the Commission’s findings to a judgment the Inter-American Court rendered against Mexico in 2010, it’s probable that if Canada had submitted to the Court’s jurisdiction it would have been ordered to spend a lot of money on some First Nations’ reserves. The harm in the Mexican cases was rape, followed by violations of Article 25 of the treaty, dealing with the right to judicial protection. Damages ordered to the affected communities were more substantial than the damages awarded to the immediate victims.

As to the United States, the Commission has done what it can do to expose one of the most egregious abuses in this hemisphere only to be stonewalled by the country that holds itself up as exceptional in the matter of human rights:

The Commission…sought permission during 2007 to carry out an on-site visit to Guantanamo Bay, Cuba, to monitor conditions of detention there for the hundreds of nationals of various countries who have been held there for extended periods. While representatives of the U.S. Government did indicate that the Commission could visit the base at Guantanamo, they informed the Commission that it would not be permitted to freely interview detainees. The Commission declined to conduct a visit under such limitations.

A subsequent request in 2011 got the same result. The Human Rights Commission’s made attempts to investigate Guantanamo is too numerous to recount here, but the point for this discussion is that the United States and Canada are not the avatars of human rights they claim to be if they cannot consent to human rights remedies administered from outside their borders. The prison at Guantanamo is a clinic in violations of Article 7 of the American Convention on Human Rights, dealing with the right of personal liberty.

While the U.S. was stonewalling investigation into Guantanamo, the Commission was able to assemble the 2014 report on the disappearance of indigenous women in Canada. Another 2014 report could use some attention north of the Rio Bravo: The Right to Truth in the Americas. At this time, the San Carlos Apaches could use a dose of truth as fair and transparent procedure.

At this writing, the following countries have cases in the merits phase before the Inter-American Court on Human Rights, and most of these cases involve Indigenous Peoples: Brazil, Bolivia, Chile, Colombia (3), Costa Rica, Ecuador (5), El Salvador, Guatemala (4), Honduras (3), Peru (9), Suriname and Venezuela. Canada and the United States do not stand outside the jurisdiction of the Inter-American Court on Human Rights because they are better than these countries.

The Apache citizens who are risking arrest at Oak Flat right now are operating outside the colonial legal system for the same reason Dr. Martin Luther King Jr. had to operate outside the colonial legal system. That system has failed its duty to protect fundamental human rights even as both the U.S. and Canada avoid the Inter-American Court out of an exaggerated sense of their own righteousness that would be unlikely to survive neutral and objective scrutiny. This is why they avoid that scrutiny.

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