Trump, international law, and the pipe

(Photo: John Duffy/flickr/cc)

On Tuesday, Donald Trump signed an executive order to advance the construction of Dakota Access Pipeline, reversing a decision taken by the Obama administration in the last month of its sprint towards finish. While a single pen stroke alone doesn’t restart the works, it signals that the ongoing battle of permits and law is far from over. This news comes just a few weeks after victory was celebrated by the Sioux, a native tribe on whose land the pipeline is to be built.

Physical work on the 1,172-mile structure connecting the Bakken and Three Forks oil fields with an oil refinery near Chicago began in late 2015, and owners of the project, Energy Transfer Partners, envisioned to conclude by the end of 2016. The construction, however, slowed down due to the protests as well as legal proceedings associated with the construction’s State and Federal permits. Those opposing the construction pointed to ongoing destruction of sacred burial sites of the local tribe, and possible threats to safety of water supply to the region. Should the Trump Government allow continued construction of the pipeline as planned, the country’s institutions would clearly disrespect international human rights law (whether president Trump cares is another question). What’s next, then, for those unwilling to give up? Could the Sioux, so to say, take it to (yet another) court? The legal roots of the dispute suggest cautious optimism might not be misplaced — without domestic resolution, the case might be admissible to the Inter-American system of Human Rights protection.

Facts of the case: The Sioux, US Army Corps of Engineers, and Dakota Access Pipeline

The Sioux have a long, turbulent history of land dispute with the US Federal Government. From a historical perspective, today’s conflict is as much about the environment as it is about a continued fight for sovereignty over land and natural resources. Indigenous populations in the Americas share a history of displacement, population decline, genocide, and land grabs as a result of European colonization, little of which has been resolved or reversed. Challenging the US Supreme Court, however, by 1830’s the Sioux achieved recognition of nationhood and inherent powers of self-government (The Marshall Trilogy 1823–1832), and in 1868 the Treaty of Fort Laramie granted the Sioux “absolute and undisturbed use and occupancy” of their lands. The same treaty, however, also cut down the tribe’s territory significantly. Somewhat predictably, local tribes continued losing their land at hands of European settlers through violence and coercion, as a result of discovery of gold in the region and construction of dams on the Missouri river, until little of its original acreage remained. The Sioux were pushed into even smaller reservations by Congress legislation of 1889 (Indian Appropriations Act of 1889).

Among the constructions created on ‘most fertile Sioux land’[1] is also Oahe Dam, site of the modern-times disputes. Forced relocations of indigenous communities into the Standing Rock reservation in favor of the dam’s constructions in 1960’s (Pick–Sloan Missouri Basin Program) resulted in destruction of livelihoods as well as historical and religious sites for the tribe[2]. Fighting for their rights in Federal Courts for decades, the tribe was finally awarded 106 million US$ in 1980 to compensate for the recognized illegal seizure of lands (United States v. Sioux Nation of Indians). The Sioux Tribal Council rejected the offer, however, as acceptance would terminate continued litigation to secure land ownership rights over the Black Hills region. The Sioux as well as other North American Native tribes believe the area to be sacred, calling it, in the Lakota language, “the heart of everything that is” — Wamaka Og’naka I’cante.

The poverty that resulted from forced displacement throughout the 19th and 20th centuries prevails among the Lakota tribe until today, and unresolved disputes of the past play a large role in the community’s reaction to the Dakota Access Pipeline project. While a majority of the Pipeline passes through private land, a portion is planned to pass under the Oahe Lake, at the heart of Sioux land, as per the treaty of Loramie. Nevertheless, Energy Transfer Partners received permission to proceed with this section of the construction from the US Army Corps on July 25th, 2016. A legal complaint against the permit was filed two days later (Standing Rock Sioux Tribe v US Army Corps of Engineers), pointing to the Army Corps (USACE)’ procedure of tribal consultations under the US National Historical Preservation Act (NHPA), stating that

“Federal agencies shall provide any Indian Tribe a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties….articulate its views on the undertaking’s effects on such properties, and participate in the resolution of adverse effects… Consultation must occur regarding sites with religious and cultural significance even if they occur on ancestral or ceded land.”[3]

In the case of DAPL, the federal agency followed a dated procedure previously recognized as unlawful (Standing Rock Sioux Tribe v US ACE), denying the tribe a chance to identify, advise on and asses potential damages to sites of great historical, religious, and cultural value, and resolve the situation prior to construction. The claim emphasized USACE’s failure to recognize the Sioux’ right to be consulted, even if the lands in question are no longer administered by the tribe. The Sioux claim that the permit process was rushed, and Dakota Access authorities did not approach them until a survey of potential damages was already completed — without their participation[4]. A motion for temporary injunction of construction, intended to preserve status quo while the trial is underway was denied however, twice. After rejecting to recognize the underlying native cause and month after month referring to their opponents as ‘anti-energy protesters’, at last, USACE temporarily halted construction under the Lake Oahe on December 4th, now citing needs for additional environmental impact review “in light of the history of the Great Sioux Nation’s dispossessions of lands; the importance of Lake Oahe to the Tribe, and … [the need] to protect the environment, and those who rely on fish and wildlife in the area for subsistence.[5]By then, however, 27 known Tribal graves and 82 sacred stone sites have been bulldozed to the ground[6]. While alternative routes were to be explored, irreversible damage has already been caused, and, as many became painfully aware this week, the USACE’s decision to halt construction isn’t final.

Under international law

In today’s globalized reality the value of natural resources invites transnational energy corporations ever closer to the indigenous lands. Protection of ancestral territory and dependent ways of life is among the largest shared concerns for these people (According to the UN Permanent Forum on Indigenous Issues, 6% of the world’s peoples self-identify as indigenous, and form over 5000 tribes in more than 70 countries). A strong regime of international legal protection is essential for the survival of indigenous communities whose relationship to the land forms the very basis of their identity. The Declaration of the Rights of Indigenous Peoples, passed by the United Nations in 2007, while non-binding, has been deemed part of customary international law as a result of recognition by international and national tribunals. In concert with relevant articles of binding international law instruments such as the ICCPR, ICESCR, CERD, the American Convention, the American Declaration of the Rights and Duties of Man, and the ILO’s Convention Concerning Indigenous and Tribal Peoples, a very strong basis for indigenous people’s rights has been put in place.

The Sioux Tribe falls indisputably under the definition of indigenous peoples and derived rights of self-government and sovereignty have been granted to it also through Federal US legislation (Fort Loramie Treaty, 1868 and others). Their right to access the land their identity is firmly tied to is further guaranteed by the International Covenant on Civil and Political Rights (Art.27, “persons belonging to … minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture”), however, only in cases, where (potential) injury to the tribe is more than minimal. Besides breaching their rights as indigenous peoples, the Sioux fear the pipeline also endangers their only water supply — the Missouri river. Here, the international Covenant on Economic, Social and Cultural rights provides protection to the tribal means of subsistence (Art 1), and other treaties cover additional aspects of indigenous land rights.

The totality of the diverse body of relevant international law imposes on states the crucial obligation of securing the so called free, prior and informed consent (FPIC) from indigenous populations in cases where a construction or development project’s “activities [are] affecting the lands, resources, and environments of indigenous peoples must be subject to full prior informed consent or consultation“, defined, e.g. by Articles 10, 11, 19, 29 and, most importantly Art. 32 of the UN Declaration. Derived from the indigenous tribes‘ right to self-determination, the concept (through derivation of rights to lands and resources) assumes the tribes‘ sovereignty over its ancestral lands. It is unclear, to which extent this legal safeguard was observed in the case of Dakota Access Pipeline. Given the concept’s relative novelty, however, a definitive answer on its application is a matter of judicial interpretation.

A Dangerous precedent

The recent adoption of international human rights treaties specific to the concerns of indigenous peoples by the ILO and UN is extraordinary. Yet, despite the wide volume of basic human rights law establishing the need for a functional mechanism of tribal consultations, it remains unobserved in the case of the DAPL. In theory, international human rights law presupposes that people need to be protected from the states, yet, it is national states who act as the prime guarantors of said rights. It is therefore unsurprising that states tend to fail to protect or guarantee their citizens’ rights in full at times as a result of conflicting objectives, priorities, and obligations. The continued occurrence of cases that defy the prescribed norms and rights then easilz weaken the human rights regime, to which many indigenous communities around the world look up for hope of survival.

Not only are the Standing Rock protests a reflection of growing movement of indigenous nations in the USA, they are watched closely by countries in the global south, for whom the obligation to protect first people on their territories presents a tangible obstacle to resource-fuelled development. Some theorists have taken it as far as to argue that poor countries are often even more impoverished by the enforcement existing global regimes, since unlike their Western neighbors, they aren’t allowed to exploit others in pursuit of development (e.g. Pogge 2002). The ethics of development are inconclusive — if these states already struggle to fulfill welfare rights and needs of their peoples in general, in face of the world’s most powerful nation’s disregard of indigenous rights, it is understandable they might decide to follow suit, to disregard rights of minorities in favor of prioritizing the (often just as critical) need to improve livelihoods of their majorities.

The fate of indigenous communities mobilizing alongside the Sioux in and outside North Dakota is at stake pending the resolution of this case in American courts. Given the decades long stand-off between the Sioux, demanding rights to their ancestral lands, however, and the attitudes of the incoming government in the USA, a positive outcome is unlikely. The only scenario, in which the international norms would not suffer is therefore one where defiant state’s behavior is condemned by an international human rights body. The application of FPIC and other essential principles protecting indigenous rights needs to be further clarified by international courts in order to set precedents enforcing state compliance. The African Commission on Human and Peoples’ Rights (Endorois Welfare Council v Kenya, 2010), for example, has affirmed that large scale projects having a major impact on the indigenous community’s territory require not only a consultation, but also an informed consent of the tribe in question.

A Case for IACHR?

Provided domestic remedies are exhausted without satisfaction, take unreasonable amount of time, or are at odds with existing international legal prescriptions, the Sioux grievances could be submitted for review to the Inter-American Commission of Human Rights.As organs of the Organization of American States, to which the USA is a member, the Commission can expose human rights violations, and refer cases to the Court for enforcement of norms set within the American Convention for Human Rights. In 2007, the Court ruled against the state of Suriname, affirming that in allowing third party mining activities on indigenous land without consent of the Saramaka people, it violated their of property rights. In 2012, the Court annulled Ecuador’s concessions to companies planning oil extraction on the territory of the Sarayka tribe for lack of effective tribal consultation. In both cases, the court focused strongly on Art. 21 of the American Convention on Human Rights, recognizing the right to the use and enjoyment of individual and communal property. Reinforcing the principle of FPIC, the court asserted that states have an obligation, in cases with potential significant impact on indigenous land, culture, and/or subsistence to implement measures of protection for the tribal communities’ right to adequate consultation and right to prevent destruction of their environment and way of life. The cases differ from the Sioux tribe’s situation in that they continued to inhabit the land in question at the time of the assault.

However, an especially interesting precedent arises from the Court’s Judgment in the case Yakye Axa v. Paraguay, in which indigenous land in question is no longer inhabited by the tribe linked to it. The IACHR asserted that Paraguay ought to demarcate land taken from the indigenous community (more than 12 years prior), submit it to the tribe at no cost, and provide basic services and goods in order to ensure their survival until they can re-assume traditional livelihoods on their land. From this judgment, of possible right to restoration of status quo ante some has been derived. Such example, Kingsbury (2012) asserts, brings forward the idea of legal responsibility for wrongful acts committed against indigenous peoples’ sovereignty in the past. Such claim, understandably controversial among former colonial powers, would provide legal basis for post-colonial reparations, and place the case of the Sioux land claim into an entirely different light. Given the tribe’s continued unwillingness to accept financial reparations from the US Federal Government for breach to the treaty of Loramie (1868), the case for recovering the formerly granted territory of the Sioux and the case against concessions granted to Energy Transfer Partners could be significantly bolstered, should the IACHR follow a similar route in the hypothetical investigation. All in all, recent developments of comparable cases give hope that the Sioux could have a powerful case based in both law and legal practice, should they attempt to submit it to the IACHR for review.

It is possible that the DAPL case might not make it through the Commission to the Court, similarly as the Inuit Petition submitted on behalf of the indigenous populations of the American and Canadian Arctic indigenous peoples in 2005, asserting the institution’s obligation to engage with climate control issues, as the Inuit people’s culture and livelihood directly depends on persistence of ice cover in their territories. While the Commission rejected the case, it did organize a public hearing on the topic of linkage between climate change and human rights. By doing so, the IACmHR acknowledged the indigenous’ community’s struggle and encouraged states to broaden their protection of indigenous people’s rights in this direction.

A more powerful scenario, of course, is the possibility of review by the IACtHR. In the past, similar cases of indigenous land disputes resulted in ordered reversal of states’ land appropriation, mandated financial sustenance to the community members pending restoration of land sustenance, mandated reparations as per Art. 63 of the American Convention on Human Rights, an order to introduce in domestic legislative and administration measures to ensure an effective mechanism for delimitation, demarcation, and titling of the property of indigenous communities, in accordance with their customary law, values, customs and mores, an obligation to conduct environmental and social impact assessment for any future projects planned on the indigenous land and ensure free, prior and informed consent of the community, or an obligation to the state to acknowledge responsibility for wrongful act(s) and make the judgment publically known through domestic radio and print media — also in languages spoken by the affected population, or even to train national police, military force, and judicial staff on the national and international standards concerning the human rights of indigenous peoples and communities. Such orders, if followed, serve to protect not only the indigenous communities in question, but also those looking to the international legal regime for protection by way of discouraging states’ misconduct vis-à-vis the international indigenous law.

Hope for the Sioux and indigenous communities worldwide?

To what extent might the United States fear these repercussions is clear — as one of the strongest actors in the international sphere, it has little to lose in being shamed or punished in international courts. Donald Trump’s America First approach likely doesn’t include high regard for international law. Even before Trump came to turn the country’s focus inward, the USA has had a poor record also when it comes to the Inter-American Court for Human Rights. Not having ratified the American Convention of Human Rights and famously boycotting the International Criminal Court, any sudden change of attitude would be highly surprising.

Riviera (2013) notes, that “erosion” of the Inter-American Human Right system is at stake without U.S. participation in the enforcement of agreed norms. Predictably, other nations in the region are taking note: Presidents of Venezuela, Ecuador, and Bolivia even asserted recently, that the current system is “a tool used and manipulated by imperial powers,” hinting at underlying mistrust of the system’s fairness. Given the normative nature of the international human rights regime, individual states’ behavior matters. If the behavior of states who push for the strengthening of international regimes worldwide and hold relatively more power in the international system than others undermines these norms, their usefulness to those seeking protection can easily depreciate.

While international legal bodies likely cannot prevent the probable creation of a negative precedent in the case of the Sioux v. USACE, even taking a stand is essential. With the United Nations taking note of the treatment of native protesters by the US police enforcement force the reputational cost might begin getting too high even for Trump’s liking. Whilst little suggests that an IACtHR judgment of the hypothetical case Sioux v USA would have any positive impact on the situation on the ground, perhaps not all is lost if international institutions uphold and protect the remaining framework of norms on global indigenous rights.

Notes:

Kingsbury, B. (2012) ‘Indigenous Peoples’, in Max Planck Encyclopedia of Public International Law, Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Oxford University Press

Pogge, T. (2002), World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms Cambridge: Polity Press

Rivera Juaristi, F.J. (2013), U.S. Exceptionalism and the Strengthening Process of the Inter-American Human Rights System, Human Rights Brief 20, no. 2, pp.19–25.

[1] as described by Everett J. Iron Eyes Sr, former water and natural resource director for the Standing Rock Sioux Tribe, for The Washington Post (2016), A Dakota’s Pipeline’s Last Stand, by Mufson, S., Nov, 25th 2016, available online [16/12/2016]

[2] Compossela, P. (2015) Impacts of the Army Corps of Engineers’ Pick-Sloan Program on the Indian Tribes of the Missouri River Basin, Journal of Environmental Law and Litigation, Vol. 30, 143, pp. 144

[3] 36 C.F.R. § 800.2(c)(2)

[4] Standing Rock Sioux Tribe v. United States Army Corps of Eng’rs (2016), ibid

[5] USACE, (2016), Memorandum for Commander, US. Army Corps of Engineers, available online [17/12/2016]

[6] Standing Rock Sioux Tribe v. United States Army Corps of Eng’rs (2016), Supplementary Declaration of Tim Mentz, Sr. in support of motion for preliminary injunction, Case №1:16-cv-1534-JEB, Art. 6