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.


F.       Right to Property


          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


[ Table of Contents | Previous | Next ]



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.