by Anouska Perram
Anouska Perram is a Supervising Associate at the London office of Simmons & Simmons LLP, an international law firm. At the request of an international NGO for whom it acts on a pro bono basis, Simmons & Simmons LLP has recently submitted an amicus curiae brief to the Colombian Constitutional Court in relation to international human rights law considerations pertaining to the Curvaradó and Jiguamiandó communities’ case.
Once seen as antipathetic to the individual rights focus of international human rights law, “third generation” and collective rights have – despite lingering controversy – been widely accepted as a fundamental element of the indivisible human rights framework. Driven in particular by the demands of indigenous peoples, national and international law has recognised and protected rights to communal land titles, rights to language, religious practices, specialised education and protection of cultural heritage, and many other rights which are associated with the existence of distinct socio-cultural groups within the boundaries of the wider state.
As they have developed, collective rights have increasingly been applied to groups beyond indigenous peoples. ILO Convention 169 (the Indigenous and Tribal Peoples Convention) extends protections not only to indigenous peoples (described as peoples descended from a pre-colonial society) but also – the clue is in the name – to “tribal peoples”. Unlike the description of indigenous peoples in the Convention, tribal peoples need not be linked by common descent, but rather are characterised by “social, cultural and economic conditions” which “distinguish them from other sections of the national community”.
Taking a similarly expansive approach, the Inter-American Court of Human Rights (IACtHR) has applied collective rights principles to Afro-descendant groups. The Court applies its jurisprudence on indigenous land rights equally to Afro-descendant groups where they have “an ‘all-encompassing relationship’ to their traditional lands, and [where] their concept of ownership regarding that territory is not centered on the individual, but rather on the community as whole”.
The expanding scope of collective rights entails a shift in emphasis in the way these rights are justified. Indigenous rights advocacy has often focused on a claim to right derived from chronological precedence – ancestral descent since time immemorial – perhaps paralleling an orthodox property rights analysis which takes an earlier claim as a better claim. The expansion of rights to other groups such as Afro-descendants – who do not have the same claims to ancestral ownership – moves the focus towards the uniqueness of social and cultural characteristics of the group. In this way, as collective rights have developed juridically, the principle of a distinct social organisation, intrinsically worthy of and requiring protection as a collective has become central to the analysis.
This question brings to the forefront the issue of how to define membership of the “collective” entitled to “collective rights”. Logically the entitlement to protection should follow the contours of the social organisation being protected; how to determine those boundaries in each situation is, however, not necessarily straightforward. This is not actually of course a new question – it arises equally for indigenous peoples – but has perhaps been more readily glossed over in relation to indigenous peoples, in reliance upon the (mythically) objective element of “descent” to determine the boundaries of the group. No such “objective” identifier applies to non-indigenous groups and so the question of how to define the group cannot be avoided.
Lawmakers will remain tempted to adopt an “objective” criterion of descent, which gives an appearance of certainty and also places finite limits on a group. Such an approach, however, has the potential to decouple collective rights from parts of the collectivity being protected. This is the very issue currently before the Colombian Constitutional Court in relation to the Afro-descendant communities of Curvaradó and Jiguamiandó.
Curvaradó and Jigumiando – lots of law, less land
In Colombia – which has the second-largest Afro-descendant population of any country in Latin America, after Brazil – land rights of (certain) Afro-descendant communities have been legally recognised for two decades. Law 70 of 1993, passed two years after Colombia adopted its new, more progressive, Constitution, recognised communal land rights of Comunidades Negras (“Black Communities”) who were living “in accordance with traditional practices” on government-owned rural lands in the Pacific Basin. “Comunidades Negras” is defined as:
the group of families of Afro-Colombian descent who possess their own culture, share a common history and have their own traditions and customs within a rural-urban setting, who demonstrate and preserve consciousness of an identity which distinguishes them from other ethnic groups.
The Curvaradó and Jiguamiandó Communities are Afro-descendant communities within the Chocó department of Colombia. In 2000, following an application by representatives of the community, the government recognised the Curvaradó and Jiguamiandó communities under two resolutions, No. 02809 and No. 02801, respectively, with the formal collective titles given to the communities in 2001.
Unfortunately, almost ten years on, the communities’ access to their land remains severely restricted. While some community members live on the land in a “humanitarian zone” and “biodiversity zone” – established by the communities to permit them to return to at least some small portion of their land with relative security – much of the land remains under illegal occupation, including by large cultivators of African palm, banana and other crops.
There are very significant security risks to the community; several community leaders have been murdered and they are regularly subjected to threats. Small-scale farmer settlers from other parts of the country – sometimes themselves Afro-descendant, but not from the Curvaradó and Jiguamiandó communities – have been brought in at the behest of large cultivators to occupy other parts of the land, and many have set up small scale farming activities.
It is evident that appropriate government intervention to evict non-community members in illegal possession of the land is required. Defining the community has been made still harder by the initial forced displacement of the population in 2001 when the title was given by the government and the following waves of displacement in the area, caused by conflict and forced dispossession at the behest of large-scale cultivators, which has left many former inhabitants no longer living within the community (some with and others without plans to return). To resolve these issues, the Colombian Constitutional Court has requested a census of the population of the communities, which is currently underway.
A number of questions have arisen, and been brought back to the Court, in the context of this census, in particular relating to the definition of “Comunidad Negra” in Law 70 of 1993. One of the critical questions is: who is entitled to participate in the collective rights of the community?
This issue needs to be understood in the social and historical context in which the Jiguamiandó and Curvaradó Communities came into existence. As a preliminary point, Chocó is the department of Colombia with the highest proportion (though not highest absolute number) of citizens who identify as “Afro-descendant”; 74% of its population. Membership of an ethnic group is a matter of self-identification; however, the manner in which individuals identify as “Afro-descendant” is not necessarily uniform (and indeed the terminology has been the subject of some controversy). “Afro-Colombian” is distinguished in the census from indigenous, Roma or white/mestizo (the majority of the population) – but the boundaries where individuals are of mixed race are not clear.
The communities of Curvaradó and Jiguamiandó consist of members who identify as “Afro-descendant”, as well as some who identify as “mestizo” – but all of whom identify as, and are accepted as, part of the community. There is presently a real question before the Constitutional Court, however, about whether Law 70 of 1993 permits the Court to extend collective rights to individuals who identify (and are accepted) as part of an Afro-descendant community but do not, at an individual level, identify as “Afro-descendant”.
Simmons & Simmons LLP was requested by a client to submit a brief outlining the international law considerations that would apply to this issue in the Colombian context. The position in international law is in fact relatively clear, albeit we are not aware of any directly analogous case being decided under its auspices. International law recognises that minorities and indigenous peoples have the right to define their own membership; it will recognise the existence of a group regardless of whether that group is recognised in the formal laws of the State; it follows that international law recognises the rights of individuals within a protected collective that are arbitrarily excluded from protection by virtue of the application of the State’s legal definition.
In the circumstances of this case, we have suggested the Constitutional Court could reconcile these requirements by applying the criterion of “African descent” set out in Law 70 of 1993 at the level of the community, rather than at the level of the individual, and permitting the community itself then to define its boundaries. Which way the Court will fall on this issue however remains to be seen.
The issue is an important one, however, and goes to the heart of how we justify the protection of minorities and marginalised groups. As noted above, there has been a subtle shift from a focus on descent and chronological precedence to a focus on the distinctness of socio-cultural organisation as forming the basis for collective rights. That shift has permitted the expansion of protections to non-indigenous groups, which is no doubt beneficial.
There may also be dangers, however, in placing too much emphasis on “distinctness”, if that privileges the maintenance of every traditional custom, and prevents communities from adapting and developing their culture with time (or excludes from protection those – either communities or individuals – who want change). The question remains something of a thorny issue and will no doubt rear its head again in the future.
 An overview of some of the areas where they have been adopted is set out in Margot Salomon, “Introduction”, in M.E. Salomon (ed), Economic, Social and Cultural Rights: A Guide for Minorities and Indigenous Peoples, Minority Rights Group, 2005, 14.
 Lee Swepston, “Labour Rights”, in M.E. Salomon (ed), Economic, Social and Cultural Rights: A Guide for Minorities and Indigenous Peoples, Minority Rights Group, 2005, 69, at note 1. According to Swepston, who worked with the ILO for many years, the change is deliberate policy to extend protections beyond indigenous groups.
 Moiwana v Suriname, IACtHR, 2005, Series C, 124, paragraph 133. In that case, the IACtHR held that the Moiwana community (part of the N’djuka Community of Suriname, an Afro-descendant community originally formed by escaped slaves, who had established a new and autonomous community), were entitled to recognition of their communal property under Article 21 of the Inter-American Convention on Human Rights. That decision was followed by the IACtHR in Saramaka v Suriname, 28 November 2007, paras 85-86.
 The question of how to define “indigeneity” has of course been a significant issue at national level within many countries with indigenous populations for some time: for one example the Australian Law Reform Commission report on “Recognition of Aboriginal Customary Laws”, 1986, which discusses the difficulties with the “three part test” adopted as the legal definition of an Aborigine in Australian legislation, at section 7. The question of mismatch between the legal definitions and de facto membership has been less frequently considered at an international level than might have been expected: one instance is Lovelace v Canada, Human Rights Committee, Communication No 24/1977, which involved the challenge by an indigenous woman to a Canadian law which stripped her of indigenous status upon marriage to a non-indigenous man.
 Chocó borders both the Pacific and Atlantic coast, as well as Panama. Traditionally a “peripheral” area of the state, it has become increasingly geo-strategically important because it is essential for land access to Central and North America.
 UNDP Colombia, “Los Afrocolombianos frente a los objetivos de desarollo del Milenio”, 2012, Executive Summary, page 3.
 Afro-Colombian advocacy groups argue that the exclusion of the term “moreno” (“brown”) – which is used in some areas to refer to African ancestry, and in others to refer to indigenous ancestry – from the census means the results significantly underestimate the number of Afro-descendants in the country.
 Conversely, there are individuals of African descent in the area who may be seeking to obtain rights in respect of the land of the Curvaradó and Jiguamiandó Communities, but who are not recognised by the community as belonging to it and may be only recent arrivals to the area; it is not controversial that these individuals are not protected by the law.