James Anaya and the case of the Awas Tingni
The legal case of the Awas Tingni people is little-known in major media.
Few Americans even know of their existence. Even so, their case has the
potiential to become something monumental-not so much in terms of its particulars,
but rather the way it is being considered and, perhaps, in terms of its
James Anaya, professor of law, is serving as lead counsel on behalf of the
The Awas Tingni-an indigenous community in Nicaragua-has filed a petition
with the Organization of American States' Inter-American Commission on Human
Rights. They seek to halt unauthorized harvesting on their land-a business
arrangement between the Nicaraguan Ministry of Environment and Natural Resources
and a Korean-owned timber company.
The problem is nothing new. For centuries governments and business have
worked in partnership to obtain resources on indigenous land, very rarely
seeking consent of its native inhabitants, and hardly ever listening to
their protests. What is new is that someone is listening. The petition has
perked the ears of the World Bank-among others-and has, at least temporarily,
stalled the plan.
Anaya believes we are witnessing a shift from Old World concepts of colonization
to what he calls "decolonization."
"What's required is new thinking about new models, new partnerships,"
Anaya says. "Unbridled state control of resources on indigenous lands
is a thing of the past."
The "older model" operates something like this: After reaching
an agreement with a national government, a company will make an arrangement
with the indigenous peoples, providing them with unskilled labor positions.
Often the company offers them lodging and food. However, once production
begins, the company is more likely to charge them for it. And the indigenous
peoples end up indebted to a company that profits greatly from the resources
on their land.
For several years, working with indigenous groups around the world, Anaya-along
with some of his students-have operated from a grass-roots level, educating
and equipping those groups with the knowledge and organization to challenge
the old models. Recently, they set up a legal database for an indigenous
group in Colombia. These days, the indigenous peoples' ownership of resources
is something that is being increasingly acknowledged.
Where Anaya sees politics as a power-based consciousness, law is, perhaps,
its moral equivalent. Where politics sometimes operates in the vacuum of
apathy, and can be harnessed and employed as a tool of reform, Anaya believes
it possible to martial the morality of law against excesses of power.
"That's where political power comes into play. You try to beat (injustices)
in the political and the legal realm. The political realm, first of all,
is about power," he says. "If you have political power, you can
overcome your opponents regardless of what they think. If you have the law
behind you, you can often constrain people who don't care, and get them
to go along with you.
"And that's what happens in many countries-government officials don't
care about indigenous land rights, but they're faced with these international
standards and international institutions that can come down on them. They're
essentially forced to respond in a way that they should. Again, it may only
be because of self-interest that they're acting: simply to keep their jobs,
simply to stay in power, or simply to avoid some kind of sanction,"
Part of the new thinking involves healing the schism between corporate-capitalism
and human rights abuses. Anaya notes a legacy of corporate complicity in
state-sponsored human rights abuses. In fact, he says, corporations often
are viewed by human rights advocates as the culprits.
This has also created a schism, of sorts, between corporate lawyers and
human rights lawyers. In the world's legal systems, it is not unusual for
a corporate law firm to find itself defending a business' sweat-shop operation
or to find itself opposed by human rights lawyers representing the interests
of union organizers who have been jailed or even killed by government forces.
This legacy, Anaya says, "has caused a disjuncture between those interested
in corporate law-those who have been associated with working for 'The Beast'-and
those interested in human rights law-those working for the 'angels.'
The new milieu involves a rethinking of corporate-capitalism, Anaya says.
It requires the recognition of what he calls "soft capitalism."
"Not all corporations have to be 'beasts'-there can be a different
model of responsible corporations. Particularly with the new baby-boom generation,
with the hippies of the '60s becoming the entrepreneurs of the '80s-there's
a different approach to corporations not necessarily equated with 'the beast.'
"The current model is basically a softer form of capitalism. And it
is new. We're seeing a new corporation emerge-ones that have grass-roots
connections, like indigenous corporations in Canada and the United States-corporations
that are owned by indigenous peoples themselves."
by Samuel Harper