14
55.
In the instant case, there is some difference of opinion between the parties as
to who the successors of the victims are. The Commission urges that this decision be
made with reference to the customs of the Saramaka tribe, whereas Suriname
requests that its civil law be applied.
The Court earlier stated that the obligation to make reparation provided in Article
63(1) of the American Convention is governed by international law, which also
applies to the determination of the manner of compensation and the beneficiaries
thereof (supra, para. 44). Nevertheless, it is useful to refer to the national family
law in force, for certain aspects of it may be relevant.
56.
The Saramakas are a tribe that lives in Surinamese territory and was formed
by African slaves fleeing from their Dutch owners. The Commission’s brief affirms
that the Saramakas enjoy internal autonomy by virtue of a treaty dated September
19, 1762, which granted them permission to be governed by their own laws. It also
states that these people “acquired their rights on the basis of a treaty entered into
with the Netherlands, which recognizes, among other things, the local authority of
the Saramaka (sic) over their own territory.” The text of the treaty is attached to
the brief in question, which adds that “the obligations of the treaty are applicable, by
succession, to the state (sic) of Suriname.”
57.
The Court does not deem it necessary to investigate whether or not that
agreement is an international treaty. Suffice it to say that even if that were the
case, the treaty would today be null and void because it contradicts the norms of jus
cogens superveniens. In point of fact, under that treaty the Saramakas undertake to,
among other things, capture any slaves that have deserted, take them prisoner and
return them to the Governor of Suriname, who will pay from 10 to 50 florins per
slave, depending on the distance of the place where they were apprehended.
Another article empowers the Saramakas to sell to the Dutch any other prisoners
they might take, as slaves. No treaty of that nature may be invoked before an
international human rights tribunal.
58.
The Commission has pointed out that it does not seek to portray the
Saramakas as a community that currently enjoys international juridical status;
rather, the autonomy it claims for the tribe is one governed by domestic public law.
The Court does not deem it necessary to determine whether the Saramakas enjoy
legislative and jurisdictional autonomy within the region they occupy. The only
question of importance here is whether the laws of Suriname in the area of family
law apply to the Saramaka tribe. On this issue, the evidence offered leads to the
conclusion that Surinamese family law is not effective insofar as the Saramakas are
concerned. The members of the tribe are unaware of it and adhere to their own
rules. The State for its part does not provide the facilities necessary for the
registration of births, marriages, and deaths, an essential requirement for the
enforcement of Surinamese law. Furthermore, the Saramakas do not bring the
conflicts that arise over such matters before the State’s tribunals, whose role in
these areas is practically non-existent with respect to the Saramakas. It should be
pointed out that, in the instant case, Suriname recognized the existence of a
Saramaka customary law.
The only evidence produced to the contrary is the statement made by Mr. Ramón de
Freitas. However, the manner in which that witness testified, his attitude during the