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 eventual resolution.

James Anaya, professor of law, is serving as lead counsel on behalf of the Awas Tingni.

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," he says.

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