Implementing Human Rights in Afro-Descendant Communities in Colombia and Nicaragua: An Analysis of Selected Human Rights Claims at the Intersection of Legal Orders
Creators: name: Aebersold, Silja
Publisher: name: American University
Year: 2023

description: This dissertation examines the human rights claims of two Afro-descendant communities, namely the community of Tierrabomba in Colombia and the community of Orinoco in Nicaragua. It analyzes how these human rights claims are protected in international human rights and domestic legal systems and in practice. This dissertation demonstrates that there is not one legal framework applicable to all Afro-descendant communities due to the cultural, economic, ethnic, and linguistic diversity of this population group. There is a need to tailor the nature and scope of the relevant international and domestic legal protections to the specific circumstances of the communities and their territorial States in order to adequately protect their legal claims. A locally focused approach is necessary to highlight the gaps in the different legal orders applicable to Afro-descendants and to shed light on the effectiveness of the relevant legal norms on the ground. To demonstrate this argument, this dissertation employed a multi-method approach, combining legal doctrinal research with a field study in the communities concerned. Field research revealed the communities’ human rights claims and living conditions. Through the doctrinal legal research, this dissertation analyzed the exact nature and scope of the relevant international human rights provisions and their incorporation into the domestic legislations of Colombia and Nicaragua. It then compared these international and domestic legal frameworks with the realities in the communities concerned to identify any gaps in implementation.This dissertation found that the applicable international human rights law and legal systems of Colombia and Nicaragua only partially protect the human rights claims of the communities concerned, and any protection implemented on the ground is ineffective. The communities concerned demand use of their ancestral land, access to justice, and other fundamental rights to protect their community-oriented way of life. The legal analysis showed that the applicable legal norms primarily focus on the folkloric and material aspects of culture, such as unique religious rituals and traditional economic activities. This does not reflect the communities concerned’s understanding of culture as a way of life. Additionally, conflicting legal norms applicable to the human rights claims of the communities concerned weaken their legal protections while domestic laws mostly lack effective remedies to enforce human rights provisions. Fear of threats of violence from non-State actors and State neglect further jeopardize the rights’ implementation on the ground.To overcome these legal and practical challenges in the communities concerned, this dissertation suggests a set of recommendations for human rights scholars and practitioners. For human rights scholarship, these recommendations center around the integration of empirical research into legal studies and technical analyses of the law. Human rights practitioners should ensure effective agency of the communities concerned, adopt a more flexible understanding of culture, and strengthen local accountability mechanisms. While these recommendations are tailored to the communities concerned, they also inform human rights scholarship and practice for similarly situated communities in Latin America.