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WINTER V21 N2 2022 FOURTH WORLD JOURNAL
Nations’ Land Rights vs. Corporate
Exploitation
Editor: This is a paper jointly authored and contributed to by eight scholars participating in a
ve-month colloquy through remote communications to address the basic question of how to
protect indigenous nations’ land rights.
ABSTRACT
Challenging the predatory impact of extractive industries upon indigenous nations and
eoes arond te gobe reires te formation of eective goba strategies to rse te
creation and imementation of a ega framework. naysts sggest ve ossibe strategies to
resist successfully and potentially overcome state-assisted corporate extraction and prevent
environmental destruction of biodiversity, climate change, sea-level rise, and frequent
occurrences of cross-species virus pandemics around the globe:
Dr. Muhammad Al-Hashimi, Dr. Hiroshi Fukurai, Amelia Marchand, Dr. Sabina Singh, Dr.
Rudolph Rÿser, Dr. Melissa Farley, Dr. Deborah Rogers, Irene Delfanti and Aline Castañeda began
meeting in October of to consider wat migt be te most eective strategy for rotecting
indigenous nations’ land rights. Land rights has been the “clarion call” of nations’ leaders seeking to
protect their traditional territories from destruction by colonial powers. What these leaders and their
communities have recognized for generations is that their very survival is directly linked to the health
of the land, the air, the water, and the people. The remarkable panel making up what became known
as the Extractive Industries Initiative joined their thoughts in this paper. Several members authored
separate papers that are also published here in the Fourth World Journal.
Center for World Indigenous Studies Associate Scholars immediately recognized the need for
strategies that nations’ leaders must consider reversing the violence visited in their territories
by States’ government and the transnational resource extraction corporations they created. The
conversations all contributed to this essay.
Te foowing anaysis is an initia rodct of te tractive Indstries Initiative reecting mc
of our discussion over the many remote meetings in which all participated. As the convenor of the
Extractive Industries Initiative made up of Associate Scholars and the consulting advice of Dr.
Deborah Rogers, President of Initiative for Equality (IfE) on the WEB at https://initiativeforequality.
org/ and Dr. Melissa Farley, President of the Prostitution Research organization on the WEB at
ttsrostittionresearc.com we ad diering viewoints, bt agreed tat a new strategy is
warranted.
2
AL-HASHIMI ET AL.
() e eective deoyment of civi awsits against etractive indstries, teir inner sta,
and corporate personnel.
(2) The human rights registration exposure of predatory extractive corporations to hold them
accountable to internationally recognized human rights laws.
(3) The public exposure and “shaming” of corporate, political, and investor leaders and
nanciers wo rea rots and owers from etractive indstries and nancia accessories.
(4) e engagement of eective vertica oicy organiing, sc as te strategic deoyment
of lobbying and political pressures against nations, states, regional inter-state organizations,
and NGOs.
(5) The facilitation of indigenous voices advancing demands, oppositions, and resistance to
the actions taken by the extractive industrial complex to block access to nations’ territories
and resources. Mediation establishing a balanced and mutually acceptable decision between
concerned parties (transnational corporation, indigenous nations, and perhaps a state as
we) emoys concets of accommodation and mta benet redcing or eiminating a
vioent eects of resorce eoitation inside indigenos territories.
Keywords: extractive Industries, indigenous peoples, extraction, environmental destruction,
climate change
Colonizing Nations through Centuries
and the Present
Colonization exists when a nation, a state, or a
people imposes its will over a nation and subjects
the people to control, forced removal, forced
language usage, alien culture, and exploitation of
lands and resources. The Akan people colonized
other peoples in what is now Ghana, as did the
Quechua led by the Inca in what is now Bolivia,
Peru, and Ecuador. The ancient states of Greece,
Rome, and Egypt all engaged in colonization from
about 1550 BC. Domination of “other peoples”
was regarded as essential to obtain new power
and wealth from neighboring lands and the
natural resources in those lands.
What is referred to as modern colonization
is recorded to have begun in the 15th century
when the Kingdom of Portugal began its
overseas search for trade routes for riches,
initially imposing its will in 1415 over Ceuta,
a coastal town in North Africa. So successful
was the conquering and colonization in Ceuta
the Portuguese forces moved on to colonize the
islands of Madeira and Cape Verde. Spain quickly
followed Portugal’s lead, reaching the Americas,
India, Africa, and Asia. Soon, Belgium, England,
the Netherlands, France, and Germany organized
their own colonizing ventures. By the beginning
of the 20th century, thirteen states and kingdoms
joined the ranks of colonizing powers, including
WINTER V21 N2 2022
FOURTH WORLD JOURNAL
3
NATIONS’ LAND RIGHTS VS. CORPORATE EXPLOITATION.
1 He is director of Havas Media Lab and an online contributor to the
Harvard Business Review. Haque is the author of “The New Capitalist
Manifesto: Building a Disruptively Better Business” (2011)
2 https://www.dcreport.org/2021/11/11/why-were-underestimating-
climate-change
Russia/Union of Soviet Socialist Republics
(USSR), the Ottoman Empire/Turkey, United
States of America (USA), Denmark, Belgium, and
Italy. By the early 20th century, virtually all the
world’s non-states were under the colonial control
of these thirteen kingdoms and states.
Today, eectivey, a internationay
recognized states (including the formerly
decolonized populations) sit astride original
nations sharing much of the same territorial
and political spaces. The states compete with
the original nations inside their boundaries for
control over and access to lands and resources.
The colonial process is accelerated over
indigenous nations by states seeking control over
lands, people, and resources.
It is a familiar prophecy spoken by traditional
healers and traditional spiritual leaders from
indigenous nations throughout the world that
“human wants must be balanced against the
capacity of the earth to restore life support
giving foods, medicines, air, and water.” Failure
to adhere to this maxim results in the death of
the people. A similar way of saying the same
ting is oered by ondon-based bsiness
consultant Umar Haque1 in a recent article
appearing in DC Reports.2 He points out that
economic rebalancing the relationship between
human consumption of earth’s raw materials
with transformational investment in the
restoration of earth’s life-supporting resources
is essential to life. He argues that it is essential
to alter the “economics of our civilization in a
transformational way, at a global scale, on a level
that never happened before. And we have to do
it fast.” Consumer wants must be balanced with
investment in restoration. Promoting “balance”
with the physical environment is necessary to
avoid disrtion and te resting adverse eects
of climate change.
There is ample evidence of unrestrained
development by human beings globally and
in localities on virtually all the continents
responsible for a whole range of converging
crises. Viral pandemic, the lapse of environmental
systems and biodiversity, increasing number of
migrants and refugees moving from one part
of the world to other parts of the world seeking
secrity, and conicts between state miitaries
and militias inside states seeking to obtain control
and access to control over life-supporting lands.
There is perhaps no better example of
unrestrained human development causing
damage to the environment and to human
lives than the resource extraction industry.
Resources such as oil and gas, minerals including
aluminum, bauxite, gold and lithium, rainforests
and pine, maple, spruce and cedar forests for
construction materials and paper products, and
lands that produce natural foods and medicines
are all targets of extractive industries. Extractive
industries are investment-rich businesses for
banks, endowments, and individual investors.
Extractive industries are essential to developing
WINTER V21 N2 2022 FOURTH WORLD JOURNAL
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AL-HASHIMI ET AL.
new technologies and the operation of major
factories producing cars, computers, washing
machines, and other mechanical devices
purchased by individuals and other businesses to
operate the modern economy.
States Formed on top of Nations
Geooitics stdies te eects of te territories
and the people on the land and international
relations politics. Applying Fourth World
Geopolitics, we analyze the relations between
the world’s original nations (their politics,
cultures, lands, populations, and economies) and
their relationship to internationally recognized
states. s a ed of stdy and ractice, Fort
World Geopolitics responds to nations’ all too
frequent alarm stated in human rights terms
as “land rights,” “forced population removals,”
“replacement of cultural values and practices
through imposed education systems,” imposition
of cash economies” as well as “governance and
other systems of decision-making.” All these
actions taken by corporate, states, and sometimes
indigenous nation militias and by state militaries
cause distress for families, communities,
and nationa eaders. Resonses reect teir
deeply centered resistance to what can only be
understood as forms of colonization—imposed
replacement of social, economic, political, and
cultural ways of life by an outside political power.
Kingdoms, states, and their corporations have
ayed a signicant roe in eecting modern
colonial practices since the 15th century of the
common era. The consequence of the more than
500-year imposition of emergent global powers
over peoples in Africa, Asia, the Americas, and
te Pacic and tantic regions is tat a system of
states was formed on top of the world’s original
nations. Traditional territories and peoples
were occupied, and states and their businesses
exploited communities and resources of the
and for te economic and oitica benet of te
imposed states.
The territories of more than 5000 indigenous
nations are located within the boundaries of
one or more of te words states. In some
instances, these nations consented to have their
territories included within a state’s borders. Still,
most nations were not parties to an agreement to
retain their territories and were not included in
the state’s governance. Therefore, it is reasonable
to emphasize that most nations are the original
occupants of lands and resources in territories
claimed by states. Decisions about access to lands,
resources, and waterways in these territories are a
matter of contention between the nations and the
state. The state governments claim sovereignty
over all of the territories.
Of te modern states, were
established on pre-existing indigenous nation
territories. From trog , virtay a
35 western hemispheric states and 64 devolved
states3 were established on top of indigenous
nation territories. The UN’s decolonization
roect beginning in , created anoter
countries on top of indigenous territories.
3 States such as Laos, Lebanon, Brunei, and Bangladesh. These
states were devolved from colonial control or formed out of a larger
geographic area.
WINTER V21 N2 2022
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NATIONS’ LAND RIGHTS VS. CORPORATE EXPLOITATION.
While “modern colonialism” has its roots
in t-centry kingdoms and t-centry
state actions, neo-colonialism overlaps modern
cooniaism in te t centry and etends into
the 21st century.
The common feature of neo-colonialism is
the role of the extractive industry now operating
in 63 countries applauded by the International
Monetary Fund (IMF) and the World Bank
(WB), proclaiming, “Natural resources have
the potential to drive growth, development and
poverty reduction.”4
Twenty-nine of the sixty-three states
are considered “Resource-Rich Developing
Countries.” These states, including Bolivia,
Indonesia, Iraq, Timor-Leste, and the Democratic
Republic of the Congo, were formed on top of
mature nations and territories with resources
4 World Bank https://www.worldbank.org/en/topic/extractiveindustries/overview#1 (Aug 13, 2021)
rich in precious metals, minerals, natural foods,
etroem, and forests. e nations ser from
overty even as te states oation benets
from the resources developed and exported from
nations’ lands. The nations’ territories constitute
43% to 100% of the state’s claimed territory. The
remaining developing countries on the IMF and
World Bank list considered “developing” are not
considered “resource-rich” but are nevertheless
made up of mature nations on top of which a
state is imposed. An example worth noting is
Afghanistan, with fourteen nations, including the
Pashto, covering more than 40% of the state. Vast
minerals, foods, and metals are extracted from
this traditional land of the Pashtuns. Exports of
resources from nations’ territories constitute an
estimated 20% of the revenues generated for the
state’s economy.
WINTER V21 N2 2022 FOURTH WORLD JOURNAL
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AL-HASHIMI ET AL.
As the map illustrates, most of the world’s
states are dependent on access to and use of
nations’ lands and resources while nations can
only be characterized as impoverished. Even with
access to nations’ territories many states remain
“undeveloped” and “poor” according to the
IMF. It is evident that the value of resources in
nations territories benet oter economies tat
are primarily organized to produce electronics,
machinery, automobiles, and other commercial
goods.
Uncontrolled Development Destroys
Peoples and Earth’s Life Supports
Perhaps Francis Fukuyama might rethink
what the “end of history was at the end of the
Cold War.”5 Essentially, as he wrote, capitalism
won that war. The communists in Russia and
China were not giving us the socialism we hoped
for, and the world wanted wealth, prosperity,
and unrestrained consumerism, no matter how it
came. The cost of this freedom would be the loss
of control of corporations, and in doing so, and
feeding consumerism, we would plunge countless
indigenous nations into more peril. Uncontrolled
development could not be stopped, nor did money
or wealth get redistributed meaningfully. So,
the end of history, as it is looking, is the end of
humanity.6
The industrial revolution and its progeny, its
most perverse and current form, neoliberalism,
is perhaps wealth-generating, but it is also
destroying the earth’s fabric and its people. This
approach has been mired in simple and vertical
calculations, often economic or money-based,
that cannot account for either humanity or the
earth. The neoliberal project, as George Monbiot
so eloquently states, is one that puts us all in
competition with one another. This “invisible
system” has us competing, against humans
and nature, instead of creating communities in
which we can live in harmony with our abundant
surroundings.
In this way of thinking, neoliberal, the primary
approach is to lower producers’ costs and get
humans to consume as much as they can. The
system can be rotabe nanciay, bt it as
been said numerous times, a race to the bottom.
The neoliberal project privatizes all social services
and causes the wealthy to pay less tax. Those
that cannot earn or get a job are conveniently
called derogatory names and considered useless -
though the system is engineered to keep ordinary
people out of the way. This neoliberal system
does not distribute wealth or allow humanity to
prosper together and with nature.
This idea of consumerism is false and does
not replace democracy. We cannot vote with
consumer dollars. In the Democratic Republic of
the Congo, we can see how the military, state, and
indstry code to rot o (sometimes cid)
labor. The countries surrounding the resource, in
this case, cobalt, are using their military to ensure
te governments benet from tis etraction
6 IBID. https://www.jstor.org/stable/24027184
7 Monbiot, G. (2016) Neoliberalism – the ideology at the root of all our
problems The Guardian https://www.theguardian.com/books/2016/
apr/15/neoliberalism-ideology-problem-george-monbiot
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NATIONS’ LAND RIGHTS VS. CORPORATE EXPLOITATION.
and protect corporations - in this case, as far
away as China and Switzerland. We buy products
from workers’ labors in holes in the ground that
corporations mine for metals and minerals used
in the semi-conductors operating our phones and
computers. Yet we cannot, as consumers, stop
this. We must buy these products to participate
in the world. According to neoliberalism, our
consumer dollars are our new form of democracy.
Yet is there a choice? Even if we are aware of
the problematic nature of resource extraction
throughout the world, in Congo, Libya, Chad,
Sudan, Central, South and North America, and
Asia, we must consume these products to stay
connected, be safe, work, and feed our families.
Because these industries have such a hold on the
technology-dependent populations, we consume
not only their products but also their ways of
viewing the world.
A compelling movement is going on; the
World Economic Forum and the United Nations
are working up a new governance system that
directly includes corporations. The United
Nations is a state-based organization that has
never supported the millions of ‘Indigenous’ or
Fourth World Nations throughout the world.
States were formed on top of nations, and
8 Pal, Ananya. (2020). “The Cycle of Iphone.” February 4, 2020 https://storymaps.arcgis.com/
stories/791c02e17f1443e7a1ec48633c135c67?fbclid=IwAR3_kc4NTmBWgLu_jH_DC12o5c8wLwz93CXg5FAVi4p20ixKrbqYbabnDPE Resources
included in the Iphone or computer include aluminum (taken from Bauxite found in Australia, Brazil and India), iron, lithium (mined in Chile,
and the Democratic Republic of Congo), gold, copper (mined in Chile, Papua New Guinea, Democratic Republic of Congo and Peru), titanium,
silver, zinc, cobalt, nickel, tungsten, lead, platinum, antimony and more. The destination for these minerals transported by cargo ship,
railroad or by plane is Shenzheun, China to a factory owned by Foxconn and nal assembly in Japan.
9 Tedneneke, A. 2019). World Economic Forum and UN Sign Strategic Partnership Framework. World Economic Forum. Geneva. Switlzerland.
https://www.weforum.org/press/2019/06/world-economic-forum-and-un-sign-strategic-partnership-framework/.
10 Freis, Lynn. (2019) “The UN is being turned into a public-private partnership”: An interview with Harris Gleckman https://www.
opendemocracy.net/en/oureconomy/un-being-turned-public-private-partnership-interview-harris-gleckman/ Open Democracy, an
independent global media organization. London, UK.
to be legitimate, they have, for all purposes,
ignored the weight of Fourth World people and
tried to subsume them within their respective
governments. Now, with this new global compact,
governments of the United Nations are proposing
a solid deal in the form of Multistakeholder
Governance to allow corporations to take over key
areas of interest in the world that governments
(although without Indigenous nations) negotiated
over decades. For Fourth World Nations,
Indigenous people throughout the world, this is
an added level of disenfranchisement and a new
problem regarding government (military) and
corporate control of resources.
Gleckman gives the example of the
Sustainable Development Goals negotiated
by governments of the UN. Goal Number
is aordabe energy for a. e eading
corporation working on this has reinterpreted the
goa to eave ot aordabiity. eckman sows
us how corporations can reinterpret the plans to
suit their companies without compromising their
ability to say they are meeting the goals.10 The
bic-rivate artnersis are being soidied
globally and entrenching neoliberalism. It means
that public goods and services will all be delivered
wit an eye towards rots for te comanies
involved. As Gleckman writes.
WINTER V21 N2 2022 FOURTH WORLD JOURNAL
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AL-HASHIMI ET AL.
Yet people, with or without a sovereign’s
rotection, can be negativey aected by goba
forces. The globalized economy has produced
globalized inequalities, where people at the
bottom or even in the middle-income brackets
in the globalized economy are excluded from
meaningful participation in global governance,
incding matters tat tey erceive aect tem
directly.11 [6]
Indigenous people and their governments
ave been disroortionaity aected by
industrialization economically, spiritually, and
culturally. The current system of uncontrolled
development has taken lives, communities,
and iveioods. owever, we are a aected
by this in terms of losing money, democracy,
and community. The neoliberal system and
globalization have moved us in the opposite
direction that we should be going. A new story of
community, sharing and altruistic behavior will
mean shifting the powerful who do not want to
leave their stations. Redistribution, however, will
be suitable even for the wealthy as they open their
eyes to love, security and community.
A Strategy for Restoring the Balance
In this part of our essay, we explore two
potential approaches to advance the discussion of
eective strategies for restoring goba baance,
based on indigenous nations’ demands, visions,
and knowledge:
(1) the establishment of the “civil jury”
system as a strategic priority for the
adjudication of civil lawsuits against
extractive industries, thereby allowing
11 IBID. (Gleckman 2018, p.4)
12 Asociacion Argentina de Juicio por Jurados (2021) The Civil
Jury of Chaco (Argentina), Central Protagonist of the Presitious
Annual Meeting of “Law and Society”, Cicago, 2021, http://www.
juicioporjurados.org/2021/01/the-civil-jury-of-chaco-argentina.html.
13 Caitlyn Scherr (2016) “Chasing Democracy: The Development and
Acceptance of Jury Trials in Argentina,” University of Miami Inter-
American Law Review 47 (2): 316-353.
a panel of ordinary laypeople, including
indigenous residents from the community
targeted by extractive industries, to
adjudicate civil disputes, as opposed to the
bench trial adjudication led by the state-
appointed professional judges; and
(2) the political advancement of “resource
socialist” policies and “redistributive”
government programs to ensure the rights
and sovereignty of indigenous nations and
peoples.
These political plans are designed to
facilitate and empower indigenous peoples’
political organizing and “bottom-up” judicial
activism, thereby placing authority and rights of
independence back into the hands of indigenous
peoples and their allies.
The establishment of Civil Jury Trials
in Argentina and Japan
In 2021, the Argentinian Province of Chaco
decided to adopt the civil jury system.12 The
new law stipulated that a panel of 12 ordinary
citizens was authorized to deliver the verdict
in the adjudication of civil disputes.13 When
the case involves indigenous peoples in civil
disputes, including indigenous complaints against
WINTER V21 N2 2022
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NATIONS’ LAND RIGHTS VS. CORPORATE EXPLOITATION.
etractive rms in teir omeand, te ry ane
must also require an equal number of indigenous
jurors in the adjudication process. This innovative
jury model is called El Jurado Indigena (the
Indigenous Jury). The law mandates explicitly
that indigenous concerns and issues must
be incororated into te na dgment by
ethnically- and culturally diverse jurors. In
addition to the mandated requirement of
indigenous inclusion in the jury trial, Argentina’s
jury system also required the equal participation
of women in jury trials, i.e., six women and
six men in the adjudication of criminal cases
and civi distes. e eect of te indigenos
participation in resolving civil disputes has
roven to be signicant, and te indigenos ry
panel has become emblematic of the expression
of indigenous rights and sovereignty concerning
corporate predation in their native lands. Before
the adoption of the civil jury system in 2021, the
Province of Neuquén in Argentina in 2011 had
become te rst risdiction to introdce te
criminal component of the all-citizen jury trial,
which Chaco, Buenos Aires soon followed, and
other jurisdictions.14 e indigenos ry was rst
mobilized in Neuquén in 2015 when the leader of
the Mapuche Nation, Relme Namku, was indicted
for attempted homicide after a rock thrown by
the Mapuche leader had allegedly endangered
the lives of corporate representatives. Two other
indigenous land protectors were also indicted
for severe damages to properties. The incident
happened in December 2012 in the mining
town of Zapala, Neuquén, when indigenous
land protectors and their supporters who faced
forceful removal from their ancestral homelands
had participated in demonstrations against the
extractive mining by multinational corporations.
These powerful corporations included the
Apache Corporation, the U.S. petroleum and
natra gas eoration rm eadartered in
Houston, Texas; Repsol S.A., Spain’s energy
company based in Madrid; and Argentina’s
state-run energy corporation YPF (Yacimientos
Petrolieros Fisales). Before adopting criminal
jury trials, more than 200 indigenous activists
and land protectors had been charged and
rosected for crimina oenses, and of
te indicted oenses were directy reated to
indigenous land resistance against extractive
industries in their territories.15 Additionally,
more than 300 Mapuche members have been
prosecuted as illegal “usurpers” in the territories
where they have lived for many generations.16
The criminal jury trial began in October
2015. The panel of six Mapuche and six non-
indigenous members, six women, began to
deliberate on the criminal charges against
indigenous activists. Under the scrutiny
14 Hiroshi Fukurai & Andres Harfuch (2022) The U.S. Supreme Court Decision in “Francis A. Keeble v. United States” and the Necessity for the
Gender-Diverse and Nationally-Bifurcated Jury: Recuperatores in Rome, Jury de Medietate Linguae in England and the U.S., and El Jurado
Indigena in Argentina, (forthcoming in El juicio por jurados en la jurisprudencia nacional e internacional, edited by Andres Harfuch).
15 Censo Nacional de Poblacion, Hogares y Viviendas 2010:Pueblos Originarios” Region Noroeste Argentino: Serie D N 1,” INDEC (last accessed
on January 15, 2022), https://web.archive.org/web/20080611004448/http://www.indec.gov.ar/webcenso/ECPI/index_ecpi.asp.
16 Amnistía Internacional (2015, Nov. 17), Diario del Juicio a Relmu Namku, https://amnistia.org.ar/relmu/.
WINTER V21 N2 2022 FOURTH WORLD JOURNAL
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AL-HASHIMI ET AL.
of national and international corporate and
independent media, numerous instances of
human rights violations against Mapuche land
protectors and indigenous activists were exposed,
including the use of child labor by extractive
industries in their mining exploration, violence
against indigenous land protectors by private
aramiitary gros ired by etractive rms,
and numerous instances of oil spills and water
pollution caused by corporate extractive activities.
In November, the jury delivered a not-guilty
verdict for all three Mapuche defendants. The
testimony also revealed that no action had been
taken against extractive activities and private
paramilitary troopers even though numerous
instances of violence and environmental damages
ad been reorted to te oces of bic
prosecutors and government agencies. The
jury verdict reverberated in the corporate world,
indigenous peoples’ resistance to extractive
industries, and indigenous members’ civil jury
ane. e verdict reresented a signicant
judicial challenge to the impunity of extractive
activities by multinational corporations. It
oered a viabe dicia aternative to rgentinas
traditional state-led bench trial system.
It is also important to recognize that
the introduction of all-citizen jury trials in
Argentina’s criminal justice system has been
advanced and long supported by the two
progressive civic organizations that were formed
following Argentina’s brutal military dictatorship
from te s to s. Progressive scoars,
legal practitioners, labor organizers, indigenous
activists, and grassroots organizations created
The Argentine Association of Trial by Jury
(Associacion Argentina de Juicio por Jurados,
AAJJ) and INECIP (Instituto de Estudios
Comparados en Ciencias Penales y Sociales).
These organizations argued that Argentina’s
introduction of the jury system was long overdue,
given tat te Constittion in rgentina ad
guaranteed the introduction of a jury trial. While
Argentina amended the constitution on multiple
occasions, the sections that guaranteed the jury
trial remained intact in the most recently adopted
Constittion. e ICIP and JJ, since
teir incetion in and resectivey,
have been advocating for the introduction of the
“constitutionally guaranteed” right to jury trial
and the creation of adjudicative processes that are
transparent and accessible to the public, including
indigenous nations and peoples in Argentina. The
Argentinian populace had experienced the so-
called “Dirty War,” Then-President Jorge Rafael
ideas miitary dictatorsi in te s and
s was resonsibe for secret interrogations,
coerced confessions, and executions.
“Disappearances” were not uncommon among
countless politicians, progressive lawyers,
indigenous activists, student leaders, labor
organizers, women activists, and many others.
The public preferred the jury trial’s open court
process and judicially mandated transparency on
evidence and testimony to the state-judge bench
17 Fionuala Cregan (2015, Nov. 6) Mapuche Leader Found ‘Not Guilty’
in Unprecedented Trial in Argentina, Intercontinental Cry, https://
intercontinentalcry.org/mapuche-leader-found-not-guilty-in-
unprecedented-trial-in-argentina/.
18 Fukurai & Harfuch.
19 David R. Kohut & Olga Vilella (2017), Historical Dictionary of the
Dirty War (Plymouth, UK: Scarecrow Press).
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NATIONS’ LAND RIGHTS VS. CORPORATE EXPLOITATION.
trial system. This preference was because the jury
trial mandated active public participation based
on oral arguments, adversarial proceedings,
and evidence that disallows the use of coerced
confession or other secretly gathered information
and evidence.
A cautionary warning is needed, nonetheless,
for, despite the institution of indigenous juries
in civil and criminal cases in Argentina, the
intimidation by private military troopers and
the state-assisted corporation predation over
indigenous nations and their lands continue
today.20 The state prosecution of indigenous
communities in neighboring Chile also continues,
including the recent allegation of “genocide”
against Mapuche activists and peoples who make
up 12% of the Chilean population. Civil jury
trials and other socialist measures to empower
indigenous peoples are urgently needed in Chile.
These changes are of equal importance, given
the victory of left-wing candidate Gabriel Boric
in the 2021 Chilean presidential election may be
signicant in advancing indigenos rigts and
sovereignty against etractive indstries. orts
sc as tese wod benet oter neigboring
countries in Latin America to preserve indigenous
nations, biodiversity, and ecological health
of ancestral lands from corporate extractive
predation and destruction.
Japan’s Attempt to Introduce the
Civil Jury System
Like AAJJ and INECIP in Argentina, several
civic organizations in Japan have been struggling
to introduce the 12-member jury system in
criminal cases for many decades.
20 Meaghan Beatley (2017, Nov. 2) ’Disappearing’ Indigenous Rights
Protectors, TRT World.
21 Hiroshi Fukurai & Richard Krooth (2010) What Brings People to the
Courtroom? Comparative Analysis of People’s Willingness to Serve
as Jurors in Japan and the U.S., International Journal of Law, Crime,
and Justice, 2011, 38:198-215.
Japan once had a criminal jury trial system,
from to , wic was ssended ony
de to te intensication of te econd ord
War. The Japanese government was legally
required to re-start the criminal jury trial once
the war was over, but the state has failed to follow
its legal mandate. The civic organization called
the Research Group on Jury Trial (RGJT) was
established by a group of progressive lawyers,
civic activists, investigative journalists, and legal
scoars in . Its obectives were to introdce
Japan’s “legally-mandated” criminal jury trial and
educate the Japanese public about the importance
of lay participation, including the democratic
ideal of realizing a self-governing society through
direct involvement in legal decision-making.
ince its incetion in , RJ as worked
collaboratively with various organizations to
achieve its objectives, including the Japanese
Federations of Bar Associations (JFBA), the Civic
Group to Reinstate the Jury Trial (Baishin Saiban
o Fukkatusuru Kai), the Kyushu Baishin Saiban o
Kangaeru Kai, among many others.21
Since the early 2010s, RGJT has also
organied eorts to introdce te civi
component of a jury trial. It plans to create
and distribute an educational video of a mock
civil jury trial through collaboration with other
grassroots organizations throughout Japan.
The video focuses on the jury’s resolution of
WINTER V21 N2 2022 FOURTH WORLD JOURNAL
12
AL-HASHIMI ET AL.
the noise pollution issue at the U.S. military
base in Okinawa. ore tan of te ..
military bases and facilities in Japan have been
concentrated in the Island of Okinawa, while the
island constitutes a mere 0.6 percent of Japan’s
landed territory. Since the U.S. began to establish
miitary bases in foowing te end of te
Second World War, crimes committed by soldiers
and civilian corporate contractors have victimized
local Okinawa residents, including women and
children. The U.S.-Japan military treaty, the
Status of Forces Agreement (SOFA) signed in
, rovides miitary ersonne and civiian
contractors with an extraterritorial shield from
local prosecution, creating a culture of impunity
surrounding sexual assaults and other crimes
directed against residents. Okinawa was once an
independent kingdom in the South China Sea
and served as an important international port for
China, Korea, Russia, the Philippines, Thailand,
Taiwan, and Southeast kingdoms until Japan
forcefy anneed it in .
The mock jury trial video focuses on
eamining cass-action civi awsits ed
by Okinawa residents against the Japanese
government to compensate for the noise pollution
at the Kadena Airport, the largest U.S. military
Air Force facility in Asia. The civil lawsuit also
demands that the Japanese government formally
request the U.S. military to refrain from the night
and eary morning igt eercises at te airort.
iven te ..-Jaan ecrity reaty,
the U.S. government has primary jurisdiction
over military operations. The civil lawsuits by
Okinawan residents secicay ask te Jaanese
government to sto te nigt igt eercises and
negotiate the status of its operation schedules at
the Air Force bases.
Te video featres ve aintis from te
noise-aected neigboroods and tree defense
witnesses, including the SOFA specialist from the
Japanese government. RGJT plans to produce the
educational video by the summer of 2022.
Given te Covid- andemic in Jaan and
beyond, the mock jurors will deliberate using an
online virtual trial. They will have provided an
important educational tool to ignite much-needed
public debates about the utility of the citizen-
centered jury panel in adjudicating civil lawsuits
ed by oca indigenos residents. ike te
indigenous jury adopted in Argentina, the mock
civil jury trial is also designed to help further the
sense of sovereignty, dignity, and independence
for the communities of indigenous peoples and
their allies on the Island of Okinawa and beyond.
Nicaragua and its Socialist Agendas to
Preserve Indigenous Sovereignty
It is important to explore the democratic
eects of te recent adotion of sociaist-oriented
agendas advanced by the Nicaraguan government.
In addition to eamining te eorts to estabis
the civil jury trial to provide a sense of sovereignty
to indigenous populations in the determination
of civi ega distes ed against owerf
adversaries, including the extractive industry and
military establishment in Argentina and Japan.
They aimed to restore indigenous sovereignty
and indeendence in icaraga. In , te
Sandinistas (the Sandinista National Liberation
Front or Frente Sandinista de Liberacion
WINTER V21 N2 2022
FOURTH WORLD JOURNAL
13
NATIONS’ LAND RIGHTS VS. CORPORATE EXPLOITATION.
Nacional, FSLN) toppled the Samosa government
and ended its brutal military dictatorship. In
, a new constittion was created, wit
provisions designed to recognize the rights of
indigenous peoples, African descendants, and
thus indigenous sovereignty. The section entitled
“Rights of the Indigenous Populations and
Communities of the Atlantic Coast” recognized
“their right to preserve and develop their cultural
identity within the framework of national unity,
to choose their forms of social organization, and
administer oca aairs in conformity wit teir
traditions. Frter, rtice sows tat te
State guarantees enjoyment by these communities
of their natural resources, enforcement of
their communal forms of property, and free
election by the same of their authorities and
representatives.”22
The U.S.-supported Contras fought the
Sandinistas and their supporters throughout
te s. e government ed by ..-backed
ioeta Camorro nay reaced te andinistas
in . Foowing tat, te constittiona
protection of indigenous nations’ sovereignty was
neglected and compromised. Neoliberal programs
and privatization agendas led to the devastation
of the rights of indigenous nations, the
destruction of natural landscapes, deforestation,
22 Andrew Reding (1987), Nicaragua’s New Constitution: A Close Reading, World Policy Journal, Vol.4, No.2: .257-294..
23 See generally Luciano Baracco (2018) Indigenous Struggles for Autonomy: The Caribbean Coast of Nicaragua (Washington, DC: Lexington
Books) for Nicaragua’s devastation of indigenous communities from 1990 to 2006. The U.S.-led intervention of Nicaragua dates to the
nineteenth and early twentieth centuries. For example, the brutal military domination started following the assassination of Augusto Sandino
who successfully challenged and defeated the U.S. intrusion in 1933. Aer the Sandinistas won the 1979 election, the U.S.-led Contras and
hybrid warfare in Nicaragua, including massacres of indigenous populations, forced the International Court of Justice (ICJ) to declare that the
U.S. action constituted the violation of international law in 1986.
24 Rita Jill Clark -Gollub, Erika Takeo, & Avery Raimondo (2020, Feb. 2) Feeding the People in Times of Pandemic: The Food Sovereignty
Approach in Nicaragua, Council of Hemispheric Aairs, https://www.coha.org/feeding-the-people-in-times-of-pandemic-the-food-
sovereignty-approach-in-nicaragua/.
environmental pollution, and the eradication of
biodiversity and ecological health of the ancestral
homelands.23 In 2006, a democratically held
election reinstalled the Sandinistas government,
which proposed social welfare programs,
incorporated food sovereignty into law, and
implemented socialist agendas that included free
education, free healthcare, and housing subsidies
for the poor. The socialist government also built
twenty hospitals in indigenous communities
and helped reduce maternal mortality, infant
mortality, and malnutrition. The Sandinistas
program also empowered peasant movements in
indigenous and African-descendant communities.
The indigenous community activists began to
serve as the leaders of peasant struggles across
the region and around the globe.24 By oering
the socialist-based legal compacts between the
Nicaraguan government and indigenous people,
the Sandinistas also promoted large-scale land
reforms. They promoted the preservation of
the communal property in indigenous ancestral
homelands by extending the constitutional
guarantee of the legal protection of sovereignty
and independence to indigenous and Afro-
descendant communities in the eastern Atlantic
regions. From and , for eame,
140,000 land titles were issued to women (55%
WINTER V21 N2 2022 FOURTH WORLD JOURNAL
14
AL-HASHIMI ET AL.
of land title recipients) in 304 indigenous and
Afro-descendant communities in the Caribbean
coast, totaing , km or of te nationa
territory.25 icaraga aso ranks te rst in
gender equality in the Western Hemisphere and
te ft in te word, ony otranked by nort
European states. Furthermore, the passage of the
aw of Food and tritiona overeignty
and Security law provided seeds, plants, and
farm animals to women land title holders in
rural sectors to diversify their production and
strengthen women-led household economies
increasing food security and strengthening
agricultural sovereignty in Nicaragua.26
Recent reports suggest that the government’s
socialist programs helped create the democratic
space to reassure the sovereignty and
independence of indigenous communities
and eoes and teir eorts in caenging
and resisting the impacts of multinational
extractive industries upon their ancestral lands
and territories. e eects of icaragas
socialist agendas and closer compacts with its
“political subjects” have been closely observed
by international human rights organizations
and indigenous alliance groups. The victory
of the Sandinistas in the 2021 presidential
eection frter soidied the continuation
25 Ibid.
26 Ibid.
27 U.S. State Department (2021, Nov. 15) New Sanctions Following Sham Elections in Nicaragua, https://www.state.gov/new-sanctions-
following-sham-elections-in-nicaragua/.
28 Nicaragua Investment Conditionality Act (NICA) was promulgated in 2017. For more information, see Frances Robles (2018, Dec. 24) In
Nicaragua, Ortega Was on the Ropes: Now, He has Protesters on the Run, New York Times, https://www.nytimes.com/2018/12/24/world/
americas/nicaragua-protests-daniel-ortega.html.
29 Amelia Cheatham (2021, Jul. 1) Central America’s Turbulent Northern Triangle, Council of Foreign Relations, https://www.cfr.org/
backgrounder/central-americas-turbulent-northern-triangle; Palm Beach Post (2021, Aug. 18) Reboot Foreign Policy to Address Crises in
Haiti, Central America, https://www.palmbeachpost.com/story/opinion/2021/08/18/u-s-foreign-policy-must-change-help-haiti-and-central-
america/8149987002/.
of socialist agendas and programs while also
triggering the imposition of new waves of
U.S. economic sanctions against Nicaragua.
These new sanctions involved continuing the
U.S. government’s Nicaraguan Investment
Conditionaity ct (IC) in . e .. ct
was designed to prevent foreign direct investment
and further destabilize Nicaragua’s economy
and, thus, its political sovereignty. Despite the
U.S. economic and trade sanctions against the
Sandinistas government, Nicaragua’s socialist
agendas have succeeded in improving the living
standards of the general population, including
indigenous and African-descendant peoples. As
a result, Nicaragua remains the sole exception
among the many Central American and Caribbean
regions that are experiencing the phenomenon
of te mass eods of teir eoes, eeing teir
countries to seek refuge in the U.S. El Salvador,
Guatemala, and Honduras in Central America,
and Haiti in the Caribbean, have been victimized
by both past, and present U.S. foreign policies
that devastated their states through the U.S.-
led neoliberal agendas and corporate predation,
including mining industries of indigenous
territories by the multinational corporations of
the North Atlantic states such as the U.S. and
Canada.
WINTER V21 N2 2022
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NATIONS’ LAND RIGHTS VS. CORPORATE EXPLOITATION.
In Sum ...
Only a handful of states around the globe have
successfully established a legal system that allows
indigenous nations participation in the resolution
of criminal and civil disputes. Historically, the
jury and other “lay participation” systems have
allowed the participation of diverse community
sections, including indigenous peoples, women,
and racial and ethnic minorities, in resolving
civi awsits ed against etractive cororate
activities in their communities.
This paper in part examined the adoption
of the civil jury trial in Argentina and Japan,
exploring how the direct participation of people,
including indigenous community members, has
advanced marginalized populations’ interest in
resoving civi conicts and distes. eir direct
legal participation has instilled a strong sense of
indigenous sovereignty and independence in their
communities. Also explored was the impact of the
socialist agendas and redistributive Nicaraguan
government, including the implementation
of land redistribution, food sovereignty, and
social safety nets, which have helped empower
the indigenous and African-descendant
communities and peoples. These socialist-
oriented programs help restore the sense of
indigenous peoples’ authority by providing the
collective ownership of ancestral territories in
indigenous and African-descendant dominant
regions in the eastern Caribbean coastal areas.
The indigenous communities and their
allies continue to challenge and resist predatory
corporate extractive activities across the globe.
The strong anti-corporate alliance led by
Nicaragua’s peasant and indigenous leaders
also supports large-scale peasant movements
in Central America and around the world.
The analysis presented here contributes to
te frter discssion of te soidication of
self-governing practices and people’s direct
participation and the application of democratic
and socialist ideals, thereby creating indigenous
peoples’ sovereignty, dignity, and independence.
These vital visions are desperately needed to
preserve ecological diversity and environmental
balances on earth for future generations in the
coming years and decades.
WINTER V21 N2 2022 FOURTH WORLD JOURNAL
16
AL-HASHIMI ET AL.
EPILOGUE
Our Extractive Industries Initiative Panel
has been meeting intending to prepare an
analysis that can serve as the basis for a strategy
addressing the global catastrophe for thousands
of nations resulting from uncontained land,
resources, and human exploitation. Our Panel
of Scholars calls for new measures to prevent
or restrain the unmonitored and unaccountable
violence committed against indigenous
communities. The destruction of the environment
and displacement of peoples forced into refugee
stats or kied otgt by gangs and miitias
by the Extractive Industry and its accomplices
among states’ governments, investors, and
commercial resources businesses can no longer be
allowed. Absent the ability of the UN or any other
international state-based institution exercising
restraining authority or other controls; it does
appear that global disinvestment, exposure of
nanciay cabe and organied nation-based
law and action are required as part of a strategy.
Mediation is a concept that may be needed,
especially since the state-based legal system
remains neutral or inoperable when indigenous
nations are concerned. Nation-based law may
serve best in the context of mediation between
nations, corporations, and some states.
CWIS is reaching out to indigenous nations to
determine the extent to which nations are willing,
capable, or otherwise able to join in a “ground
eort invoking nation-based domestic and
international laws. Several indigenous nations
exercising their inherent sovereignty and nation-
based law have demonstrated their willingness
and ability to block extractive industries from
entering their territories following the model of
blocking entrance into indigenous territories due
to te COI- andemic. ey may invoke
their laws to regulate corporate behavior inside
their territories as the mediated best solution.
While frustrating to some states and
industries, employing nation-based law is having
some success. If this is added to the global
disinvestment exposure initiative conducted
by NGOs and indigenous nations, we may see
some initial measure of progress. The UN cannot
respond to the most egregious violence against
indigenous peoples due to state obstructionism.
Equally clear, we must note that states’
governments are unwilling (as demonstrated by
the results of the Paris Accord on climate and the
two-week meeting in Glasgow, Scotland - 2022)
to restrain businesses and development measures
from destroying the environment and causing
changing climate globally.
The multi-decade crisis that recent reports
graphically demonstrate about the environment,
mass forced human relocations, and viral
pandemics call on us to take more action and
direct eort to revent cororate destrction of
the environment, indigenous communities, and
the climate.
WINTER V21 N2 2022
FOURTH WORLD JOURNAL
17
NATIONS’ LAND RIGHTS VS. CORPORATE EXPLOITATION.
mnista Internaciona (, ov. ), iario de Jicio a Rem amk, ttsamnistia.org.arrem.
[2] Asociacion Argentina de Juicio por Jurados (2021) The Civil Jury of Chaco (Argentina), Central Protagonist
of the Presitious Annual Meeting of “Law and Society”, Cicago, 2021, http://www.juicioporjurados.org/2021/01/
the-civil-jury-of-chaco-argentina.html.
[3] Baracco, ciano () Indigenos trgges for tonomy e Caribbean Coast of icaraga (asing-
ton, DC: Lexington Books)
[4] Censo Nacional de Poblacion, Hogares y Viviendas 2010:Pueblos Originarios” Region Noroeste Argentino:
erie , IC (ast accessed on Janary , ), ttsweb.arcive.orgwebtt
www.indec.gov.ar/webcenso/ECPI/index_ecpi.asp.
[5] Cheatham, Amelia (2021, Jul. 1) Central America’s Turbulent Northern Triangle, Council of Foreign Rela-
tions, https://www.cfr.org/backgrounder/central-americas-turbulent-northern-triangle
[6] Clark -Gollub, Rita Jill, Erika Takeo, & Avery Raimondo (2020, Feb. 2) Feeding the People in Times of Pan-
demic e Food overeignty roac in icaraga, Conci of emiseric airs, ttswww.coa.org
feeding-the-people-in-times-of-pandemic-the-food-sovereignty-approach-in-nicaragua/
Cregan, Fionuala (2015, Nov. 6) Mapuche Leader Found ‘Not Guilty’ in Unprecedented Trial in Argentina,
Intercontinental Cry, https://intercontinentalcry.org/mapuche-leader-found-not-guilty-in-unprecedented-tri-
al-in-argentina/.
Fukurai, Hiroshi & Richard Krooth (2010) What Brings People to the Courtroom? Comparative Analysis of
People’s Willingness to Serve as Jurors in Japan and the U.S., International Journal of Law, Crime, and Justice,
, -.
Fukurai, Hiroshi & Andres Harfuch (2022) The U.S. Supreme Court Decision in “Francis A. Keeble v. United
States” and the Necessity for the Gender-Diverse and Nationally-Bifurcated Jury: Recuperatores in Rome, Jury
de Medietate Linguae in England and the U.S., and El Jurado Indigena in Argentina, (forthcoming in El juicio
por jurados en la jurisprudencia nacional e internacional, edited by Andres Harfuch).
[10] ot, avid R. Oga iea (), istorica ictionary of te irty ar (Pymot, carecrow
Press).
[11 eagan Beatey (, ov. ) isaearing Indigenos Rigts Protectors, R ord.
[12] Pam Beac Post (, g. ) Reboot Foreign Poicy to ddress Crises in aiti, Centra merica, tts
www.ambeacost.comstoryoinion-s-foreign-oicy-mst-cange-e-aiti-and-centra-
america.
[13] Reding, ndrew (), icaragas ew Constittion Cose Reading, ord Poicy Jorna, o., o.
.-.
[14] Robes, Frances (, ec. ) In icaraga, Ortega as on te Roes ow, e as Protesters on te
Rn, ew ork imes, ttswww.nytimes.comwordamericasnicaraga-rotests-danie-orte-
ga.html.
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WINTER V21 N2 2022 FOURTH WORLD JOURNAL
18
AL-HASHIMI ET AL.
[15] Scherr, Caitlyn (2016) “Chasing Democracy: The Development and Acceptance of Jury Trials in Argentina,”
niversity of iami Inter-merican aw Review () -.
[16] U.S. State Department (2021, Nov. 15) New Sanctions Following Sham Elections in Nicaragua, https://www.
state.gov/new-sanctions-following-sham-elections-in-nicaragua/
This article may be cited as:
Al-Hashimi, M., Fukurai, H., Marchand, A., Singh, S., Rÿser, R., Farley, M., Rogers, D., Delfanti, I., (2022)
Nations’ Land Rights vs. Corporate Exploitation. Fourth World Journal. Vol. 21, N2. pp. 1-20.
ABOUT THE AUTHOR
Muhammad Al-Hashimi
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Hiroshi Fukurai
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WINTER V21 N2 2022
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NATIONS’ LAND RIGHTS VS. CORPORATE EXPLOITATION.
ABOUT THE AUTHOR
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Amelia Marchand
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WINTER V21 N2 2022 FOURTH WORLD JOURNAL
20
AL-HASHIMI ET AL.
Rudolph Rÿser, PhD
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ABOUT THE AUTHOR
Irene Delfanti
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WINTER V21 N2 2022
FOURTH WORLD JOURNAL
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