Enforcing International Law Over Domestic Extinguishment: Inter-American Court Jurisprudence (Awas Tingni & Saramaka) And Plurinational Constitutionalism

Enforcing International Law Over Domestic Extinguishment: Inter-American Court Jurisprudence (Awas Tingni & Saramaka) and Plurinational Constitutionalism

1. The Inter-American Human Rights System: Transforming Customary Land Tenure into Binding International Property Rights

Within the sphere of international human rights law, the Inter-American Court of Human Rights (IACtHR) has developed the world's most progressive, binding jurisprudence on Indigenous territorial sovereignty.^[1] Applying Article 21 (Right to Property) of the American Convention on Human Rights, the Inter-American Court fundamentally dismantled the colonial doctrine that Indigenous property rights exist only if granted, recognized, or registered by settler legislation.^[2] Instead, the Court established that traditional possession and customary land tenure generate inherent property rights enforceable against the state, that states possess an affirmative duty to demarcate and title ancestral lands without demanding title surrender, and that major industrial resource concessions require genuine Free, Prior, and Informed Consent (FPIC).^[3]

This jurisprudence provides an illuminating legal mirror for South-West Western Australia.^[4] While the Inter-American Court repeatedly struck down domestic Latin American property statutes that subordinated Indigenous lands to commercial forestry and mining concessions, Australia's settler-colonial legal framework continues to enforce domestic statutes that coerce Indigenous nations into executing absolute title extinguishments.^[5]

2. Mayagna (Sumo) Awas Tingni Community v Nicaragua (2001): Property Rights Without State Title

The foundational judgment of global Indigenous land jurisprudence was delivered in Mayagna (Sumo) Awas Tingni Community v Nicaragua (2001).^[6] The State of Nicaragua had granted a 30-year commercial logging concession across 62,000 hectares of ancestral rainforest to a Korean multinational timber company (SOLCARSA) without the consent of the Awas Tingni Mayagna community, asserting that because the community held no formal state paper title, the land was "state-owned public domain".^[7]

The Inter-American Court decisively rejected the state's positivist argument:^[8]
Autonomous Property Concept: The Court held that Article 21 of the American Convention protects the right to property understood from the perspective of Indigenous customary law.^[9]
Possession Equals Title: "Indigenous groups, by the fact of their very existence, have the right to live freely in their own territories; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. ... Their possession of the land should suffice for indigenous communities lacking real property titles to obtain official recognition of their property."^[10]
Order to Demarcate: The Court ordered Nicaragua to immediately demarcate and grant collective communal title to the Awas Tingni lands, and prohibited the state from issuing any further resource licenses until demarcation was complete.^[11]

In Western Australia, by contrast, when the Bibbullmun people asserted unceded territorial ownership over ancestral lands lacking settler deeds, courts and governments insisted that sovereignty belonged exclusively to the Crown under terra nullius fictions, demanding that the community surrender all legal claims in exchange for capped conditional trust leases.^[12]

3. Saramaka People v Suriname (2007): Mandatory FPIC and Safeguards in Natural Resource Extraction

In Saramaka People v Suriname (2007), the Inter-American Court advanced Indigenous economic jurisprudence into a binding international doctrine of Free, Prior, and Informed Consent (FPIC).^[13] The State of Suriname had granted commercial timber and gold mining concessions across traditional Saramaka territory, arguing that Suriname's constitution and domestic laws vested all natural resources exclusively in the state.^[14]

The Inter-American Court established three mandatory, legally enforceable safeguards that must be satisfied before any resource concession can be granted across Indigenous lands:^[15]
1. Effective Participation and FPIC: The state must ensure effective participation through culturally appropriate consultations; furthermore, for any large-scale development or investment project that would have a major impact within Indigenous territory, the state has a binding duty not only to consult, but to obtain their Free, Prior, and Informed Consent in accordance with their customary laws and traditions.^[16]
2. Benefit Sharing: The Indigenous community must receive an equitable share of the economic benefits generated from the commercial exploitation of natural resources within their territory.^[17]
3. Prior Environmental and Social Impact Assessments (ESIAs): Comprehensive, independent ESIAs must be completed by independent entities prior to the execution of any concession.^[18]

Under Western Australia's 2015 Settlement, none of these safeguards are satisfied.^[19] Traditional Owners surrendered their right to negotiate under the Native Title Act, surrendered all claims to mineral benefit-sharing, and possess zero consent or veto power over the bauxite, lithium, and mineral sand mining concessions that scar their country.^[20]

4. Plurinational Constitutionalism: Bolivia and Ecuador's Constitutional Rights of Nature (Pachamama)

Beyond judicial decisions, Latin America has pioneered structural constitutional transformations that dismantle the monocultural settler state:^[21] Plurinational State of Bolivia (2009 Constitution): Article 1 of the Bolivian Constitution defines the state as a "Unitary Social State of Plurinational Communitarian Law", formally recognizing the pre-colonial existence of Indigenous nations and their right to autonomous self-determination, territorial self-government (Autonomías Indígena Originario Campesinas), and the direct application of customary Indigenous law.^[22] Republic of Ecuador (2008 Constitution): Articles 71 to 74 of the Ecuadorian Constitution enacted the world's first constitutional recognition of the Rights of Nature (Pachamama).^[23] Nature is recognized not as an object of property or resource exploitation, but as a constitutional rights-bearing entity with the inalienable right to integral respect for its existence, maintenance, and ecological regeneration.^[24]

This constitutional recognition of living ecological systems directly operationalizes classical Bibbullmun customary law, where the Boodjar (Earth) and Bilya (Rivers) are ancestral beings demanding legal protection and custodial reverence.^[25]

5. Special Indigenous Jurisdiction (Jurisdicción Especial Indígena) in Colombia

In Colombia, Article 246 of the 1991 Constitution established the Jurisdicción Especial Indígena (Special Indigenous Jurisdiction).^[26] Traditional authorities of Indigenous territories exercise full judicial and law-enforcement functions within their geographic rohe according to their own customary laws, provided they do not violate fundamental human rights standards.^[27] Colombian national courts, including the Constitutional Court, possess no authority to overturn customary tribal court judgments on internal community disputes or land stewardship matters.^[28]

In Western Australia, customary Bibbullmun law (Karratj) is entirely unrecognized in criminal and civil administration.^[29] Custodians defending sacred sites from bulldozers are arrested and prosecuted under settler criminal trespass laws, while the state refuses to recognize traditional elder authority.^[30]

6. Structural Comparison Matrix: Inter-American Law vs. Western Australia

Legal Dimension	Inter-American Jurisprudence & Plurinational Law	Western Australia South West Settlement (2015)
Source of Title	Customary Possession Sufficient: Generates inherent property rights (Awas Tingni)	Positivist Crown grant required; native title treated as subordinate
Surrender Requirement	Prohibited: State duty to demarcate and title without demanding surrender	Mandatory: Total title surrender and extinguishment across 200,000 km²
Consent Standard (FPIC)	Binding Consent: Large-scale projects require genuine FPIC (Saramaka)	Surrendered: Right to Negotiate waived in perpetuity under ILUA cl 5
Resource Benefit-Sharing	Mandatory equitable benefit sharing codified in binding international law	Zero mineral royalties or gross revenue sharing (s 70 ignored)
Ecological Legal Standing	Constitutional Rights of Nature (Pachamama in Ecuador Constitution 2008)	Advisory-only committees; rivers treated as commercial drains
Customary Courts	Independent Special Indigenous Jurisdiction recognized in Constitution	Customary law (Karratj*) unrecognized; criminalized by settler state