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Protection of Indigenous Peoples’ Traditional Lands and Exploitation of Natural Resources: The Inter-American Court of Human Rights’ Safeguards

In: International Journal on Minority and Group Rights
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  • 1 Doctor of Laws, Senior Researcher, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund, Sweden, Alejandro.Fuentes@rwi.lu.se
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The Inter-American Court of Human Rights (I-ACtHR) has developed remarkable jurisprudence for the protection of the right to communal property of indigenous and tribal communities with respect to the ancestral lands that they possess and traditionally used-natural resources, in order to guarantee their cultural and economic survival in the Americas. This article critically analyses the legal regime applicable for the protection of the right to traditional communal property of indigenous and tribal peoples in the Americas, its connection with their right to cultural identity, and the right to a dignified life. In particular, it pays specific attention to the right to effective participation and consultation of the indigenous communities affected; the obligation to share reasonable benefits with these communities; and the elaboration of a prior environmental and social impact assessment of any development investments, exploration or extraction plans.

Abstract

The Inter-American Court of Human Rights (I-ACtHR) has developed remarkable jurisprudence for the protection of the right to communal property of indigenous and tribal communities with respect to the ancestral lands that they possess and traditionally used-natural resources, in order to guarantee their cultural and economic survival in the Americas. This article critically analyses the legal regime applicable for the protection of the right to traditional communal property of indigenous and tribal peoples in the Americas, its connection with their right to cultural identity, and the right to a dignified life. In particular, it pays specific attention to the right to effective participation and consultation of the indigenous communities affected; the obligation to share reasonable benefits with these communities; and the elaboration of a prior environmental and social impact assessment of any development investments, exploration or extraction plans.

* The views and opinions expressed in this article are exclusively those of the author, and do not necessarily reflect the official policy or position of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law (rwi).

1 Introduction

As a result of indigenous peoples’ struggles for the recognition and protection of their human rights, in recent years the Inter-American Court has developed a landmark jurisprudence on indigenous peoples’ rights, especially in connection with their right to communal property with respect to their traditional lands and natural resources, recognising their right to enjoy their own culture and traditions as different peoples.1

These rights of indigenous people to traditional lands and natural resources has become widely protected under international law.2 Examples of this recognition can be found in the 1989 ilo Convention No. 169 on Indigenous and Tribal Peoples (Articles 13 to 19), and, more recently, in the 2007 un Declaration on the Rights of Indigenous Peoples. In its Article 26(1) an overwhelming majority of Member States have recognised that “[i]ndigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired”.3 This recognition shall be a legal one, and shall be conducted with “due respect to the customs, traditions and land tenure systems of indigenous peoples concerned” (Article 26(3)).4

The Inter-American Court of Human Rights has shown a sensitive inclination towards the protection of their different cultural understandings and worldviews vis-à-vis the majority part of national societies. In fact, since the adoption of the landmark judgment in the case of The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, decided on 31 August 2001 (hereinafter the Awas Tingni case),5 indigenous peoples’ rights to communal property on their traditional land and natural resources is recognised as protected by the American Convention on Human Rights (hereinafter the American Convention, Convention, or achr).6

However, this jurisprudence has generated some discomfort among the States Parties of the American Convention, especially because it has had an enormous impact on different strategic sectors for the development of the States, in particular, in the exploitation of the natural resources present in the claimed traditional lands. For this reason, a systematisation of the jurisprudence of the Court in connection with the right to communal property over traditional lands and territories is needed in order to clarify the applicable legal standard.

2 Right to Communal Property over Traditional Lands and Territories as Part of Indigenous Peoples’ Cultural Identity

Indigenous peoples’ rights to communal property on traditional land and territories is recognised and protected under Article 21 of the American Convention. This article establishes − in its first paragraph− that “[e]veryone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society”. On the reading of the Court, this paragraph includes the protection to the collective dimension of the right to property, but the literal meaning of its wording seems to indicate a different interpretation, merely, the understanding of the right to property as an individual right. However, the text of the Convention did not provide any further clarification regarding the extension and scope of this right.

In this sense, it is important to make entirely clear that the right to communal property of indigenous peoples upon their traditional lands, as acknowledged by the Inter-American Court, is recognised in accordance with their own customs and traditions. This interpretation is based not only on the premises that the terms enshrined within international human rights treaties have autonomous and independent meanings according to the legal system in which those treaties are framed.7 Also, and most importantly, it is because through recognition of indigenous peoples’ right to communal property in accordance with their ‘own customary use and occupancy patterns’, the Court has delivered a legal and special protection of the distinctive spiritual relationship that these populations have with their traditionally owned or otherwise occupied and used lands and territories.

In fact, what the Court has done (through the enlargement of the scope of Article 21), was the incorporation of the cultural or intertemporal dimension into the conventional understanding of property. This was because, as has been stressed in the Awas Tingni case, without the enjoyment of their traditional lands, indigenous peoples “would be deprived of practicing, conserving and revitalising their cultural habits, which give a meaning to their own existence, both individual and communitarian”.8

Traditional lands constitute an essential part of indigenous peoples’ culture9 that is a central element of their distinctiveness as a different people. Therefore, the existing ties between indigenous peoples and their lands represent a constituent factor in their identity, which permits their ‘self-identification as different peoples’, as indigenous peoples.10 In other words, “just as the land they occupy belongs to them, they in turn belong to their land”.11

Therefore, in order to guarantee equal exercise and full enjoyment of the right to property over traditional lands and resources, as recognised in Article 21 achr, the Court has taken into consideration the specific characteristics that differentiate members of the indigenous communities from the general population and are constitutive of their cultural identity.12 Thus, a failure by State Parties to guarantee equal exercise and full enjoyment of these rights, in accordance with the disposition enshrined in Articles 1(1)13 and 214 of the American Convention, will not only infringe upon their right to property, but also their right to cultural identity, their right to be recognised and differentiated as indigenous peoples as such, and will infringe upon their dignity as human beings.

In fact, without the recognition and protection of the right to use and enjoy their traditional lands according to the indigenous peoples’ traditions and customary law, these people will not have access to a life with dignity. Hence, for the Court an intrinsic connection exists between the rights of indigenous peoples to communal property and their right to life, or to have the possibility to live a dignified life that is connected to their full enjoyment of their traditional lands.15

In conclusion, when Article 21 achr has to be interpreted in connection with indigenous peoples’ communal property cases, due attention has to be paid to their right to life, as guaranteed under Article 4 of the Convention. In addition, according to the principle of non-restrictive interpretation and effectiveness (Articles 1(1) and 29 achr), it will not be possible to interpret the right to property in any manner that could provide support to an unjustified restriction of the full enjoyment of the right to life in a broad sense (or to be able to lead a life with dignity).

3 Indigenous Peoples’ Traditional Lands as a ‘Vehicle’ for the Realisation of the Right to have a Life with Dignity

The right of indigenous and tribal peoples to communal property needs to be protected in order to safeguard their physical and cultural survival. This means that their access to traditional territories and natural resources must be considered not only as indispensable for the preservation of their culture, identity and survival as different peoples, but additionally for their enjoyment of a dignified standard of living.

What is truly at stake, when indigenous people are deprived of their traditional lands, is their own right to life, which also embraces and includes their cultural identity. Thus, what is under threat, is their physical (and not only cultural) survival.16

In this sense, cultural identity has to be considered as part or as an integrative component of the right to life lato sensu.17 Under Article 4 of the American Convention, the recognised scope of the right to life is very broad. It includes “not only the right of every human being not to be deprived of his life arbitrarily”, hence the right to life understood in strictu sensu, “but also the right that he will not be prevented from having access to the conditions that guarantee a decent existence”, which means the right to life lato sensu.18

This dual understanding of the right to life in connection with the general ‘obligation to respect and ensure’ the enjoyment of fundamental rights incorporated in Article 1(1) of the Convention, generates not only the negative obligation of the States to prevent and restrain arbitrary deprivations of this right, but also their positive obligation to guarantee the necessary conditions that would permit indigenous peoples to have a decent life. Accordingly, in light of Member States’ obligation to secure the full and free enjoyment of human rights to ‘protect and preserve’ the right to life, the Court stressed the positive obligation in their adoption of all appropriate measures.19

Among those ‘positive obligations’ that each State Party to the American Convention must provide in order to guarantee full enjoyment and access to decent conditions of life for all members of society (and especially for those who are in a vulnerable situation),20 the Court included the recognition and protection within the national legal system21 of the right of indigenous peoples to communal property concerning their traditional lands and resources.22 This reasoning is grounded not only in their vulnerable living conditions, but also and most importantly, is based on the intrinsic and constitutive nature that their traditional lands have vis-à-vis their identity, and, therefore, in the enjoyment of decent conditions of life (life with dignity) that necessarily must take into account their own culture, understandings, traditions and worldviews.23

The reasoning of the Court regarding indigenous peoples’ connection with their traditional territories is the following:

  1. a)The protection of the right to life includes not only the prohibition of its arbitrary deprivation (negative obligation), but also the generation of all conditions that permit and facilitate its full enjoyment, merely that generate conditions for a decent life (positive obligations);24
  2. b)Positive obligations include the generation of conditions that permit equal enjoyment for each member of society of their own right to cultural identity; and
  3. c)in the case of indigenous peoples, as long as their cultural identity is intimately connected with their traditional lands, positive measures must include adequate legal and material protection for this special relationship.25

The life of indigenous peoples will be under threat without recognition of the communal property of their traditional lands in accordance with its regulation in their customary laws.26 Indeed, without the intimate and close union with their land in which indigenous peoples found the possibility to build and develop their lives according to their own worldviews and traditions, their own project of life would become meaningless. It would therefore be impossible for them to lead a dignified life according to their own understanding of dignity. 27

In conclusion, in the specific case of indigenous communities, the negation of the right to property to their traditional lands, will amount – according to the specific circumstances of each case – not only to a violation of Article 21 of the American Convention, but as well to an infringement of the right to life as protected by Article 4(1), read in accordance with the dispositions contained within Article 1(1) of the same instrument (Obligation to Respect and Protect).28

4 The Right to Communal Property over Natural Resources: Extension and Limitations

The indigenous peoples’ rights to communal property on their traditional lands include the right to their traditional territories. In fact, according to Article 13(2) of the ilo Convention No. 169, the term ‘lands’ includes the concept of territories that “covers the total environment of the areas which the peoples concerned occupy or otherwise use”. Moreover, in its Article 15(1), it is expressly recognised that the right to natural resources pertaining to their lands “include[s] the right of these peoples to participate in the use, management and conservation of these resources”.

The recognition of the right to property over natural resources could be very controversial. It could be seen as the foundation for further confrontations between indigenous communities, third parties and governments, especially because natural resources are essential for the development and wealth of nations. In fact, in order to deal with possible conflicts, the ilo Convention stresses the need for consultation procedures before “undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands”, even in those cases where the ownership of these resources remains in the hands of the States.29 Again, it is possible to observe how the overarching right to be consulted interacts vis-à-vis the States’ property over natural resources, in order to balance the interests of the involved communities with the States’ general interests in pursuing strategic development plans that could affect them.30

Using the ilo Convention as an interpretative guideline,31 the Court addressed the question of the extension of the right of the indigenous and tribal peoples to use and enjoy the natural resources that lie on and within their traditionally owned lands. In this sense, the Court has recognised that the same reasons that justify the protection of the property rights over those lands that have been traditionally used and occupied for centuries,32 ground the right to ownership of those natural resources that these communities “have traditionally used”.33

In the case of indigenous and tribal peoples, natural resources that lie on and within their traditional lands are necessary for the maintenance and enjoyment of their traditional way of life, social structure, economic system, etc. Access to these resources is essential for the conservation and development of their cultural identity in order for them to have access to the possibility of enjoying a life with dignity. Therefore, because of this intrinsic connection between indigenous communities, their traditional lands and territories, the resources that lie on and within them, and their cultural identity and way of life, the Court has extended the protection provided by Article 21 of the Convention to “those natural resources traditionally used and necessary for the very survival, development and continuation of such peoples’ way of life”.34

Accordingly, those natural resources that can be considered protected by the right to communal property recognised in Article 21 achr are those that fulfil the two above-mentioned conditions. First, these are resources that have been traditionally used since time immemorial and − second − they are necessary for the very survival, development and continuation of the indigenous peoples’ cultural identity and way of life.35 These requirements must be objectively proved in each case; the burden of proof has to be carried by those communities that claim such ownership.

On the contrary, the allocation of the ownership rights over all other natural resources that “do not satisfy” these two requirements will, of course, depend on the domestic national legislation, and hence, can fall under “the inalienable right of each State to the full exercise of national sovereignty over its natural resources”.36

Therefore, in line with the acknowledgement of States’ property of those natural resources not traditionally used by these communities, the Court has expressly recognised that “Article 21 of the convention should not be interpreted in a way that prevents the State from granting any type of concession for the exploration and extraction of natural resources” within those traditional lands and territories.37 The legal principle remains that States have the right to explore and exploit the natural resources that lie in and within their territories.

However, the exploitation and extraction of natural resources within indigenous peoples’ lands “is most likely to affect the use and enjoyment of other natural resources that are necessary for the survival” of these peoples.38 Hence, it is protected under indigenous peoples’ traditional property rights. Consequently, the Court has called Member States to assess each situation under a proper ‘necessity test’ before granting concessions concerning State-owned natural resources. The scope of the test is to determine whether the restriction of the right to communal property of indigenous people over (traditionally used) natural resources is needed to achieve a legitimate aim in a pluralist and democratic society;39 and whether or not a ‘reasonable relation of proportionality’ exists between the exploitation and the restriction of indigenous rights.40

Notwithstanding the intrinsic existing relationship between indigenous peoples and their lands and resources, and due to the essential relevance that they have for their identity and physical and cultural survival, the Court has subjected the application of this ‘necessity test’ to very strict conditions. In the Court’s wording, “[t]he necessity of legally established restriction will depend on whether they are geared toward satisfying an imperative public interest”.41

In fact, the applicable principle in this case consists of the preliminary recognition that Member States have the right to exploit or grant concessions for the exploitation of all those resources within the indigenous peoples’ traditional lands that are not included and protected within the right to property of the latter in accordance with their own domestic regulation. Moreover, when that exploitation generates direct or indirect interference leading to a limitation in the enjoyment of the indigenous peoples’ lands rights, it will be nevertheless justified if it pursues the fulfilment of imperative or “pressing social needs”, as long as it does not “amount to a denial of their traditions and customs in a way that endangers the very survival of the group and of its members”.42

States must always bear in mind that any restriction of the enjoyment of the land rights of indigenous peoples could eventually generate a restriction in their possibility to have access to a “life with dignity”, and therefore, an infringement of their right to life lato sensu (Article 4 read together with Article 1(1) of the American Convention).43

5 Safeguards against Restrictions on the Right to Property that Deny the Survival of Indigenous Peoples

In order to protect and guarantee the unique relationship that indigenous communities have with their lands and territories, which in turn ensures their material and cultural survival as distinctive peoples, the Inter-American Court has identified three specific and concrete safeguards. It has subjected the issuance of logging and mining concessions within indigenous peoples’ lands by the States, to:

a) effective participation of the involved communities, according to their own traditions, in any investment or development project within their lands;

b) the sharing of reasonable benefits with these communities in each project; and

c) the elaboration of a prior and independent environmental and social impact assessment.

Before entering briefly into an analysis of each of these conditions and in order to assess them properly, it is important to stress the fact that in the vast majority of cases they are not going to be applied to the exploitation of State-owned resources, merely those resources that have “not been traditionally used” by indigenous peoples or exceed (in volume) the number of resources that would be indispensable for their material and cultural survival. Hence, we have to conclude that the aim pursued by these safeguards would consist of guaranteeing that the legitimate exercise of the State’s rights would not amount to a total restriction or deprivation of indigenous peoples’ rights over their traditional lands and resources, and therefore, it will not affect their survival as a distinctive people.

The first safeguard required by the Court is the requirement that prior to any development plans (such as concessions for exploitation of surface or subsoil resources, or the construction of strategic infrastructures), States must conduct previous and informed consultation with the communities involved44 in accordance with their own traditions, and taking into account their own methods of decision-making,45 as long as those customs and practices “are not incompatible with fundamental rights defined by national legal systems and with international recognised human rights”.46

The overarching duty to consult with indigenous communities is present in any situation in which States are dealing with indigenous communities’ lands, territories and interests.47 Consensus is the optimal goal. States must conduct the consultation process in good faith, paying due respect to indigenous decision-making institutions and procedures, and with the objective of achieving agreement or consensus with them.48 According to the Court, this means a proactive role of the States, which requires that “they both accept and disseminate information in an understandable and publicly accessible format”,49 and always “in conformity with their customs and traditions”.50

Moreover, in the case of large-scale development or investment projects that could have major impact within the territory of indigenous communities, the Court has imposed on the States not only the duty to consult, but also “to obtain their free, prior and informed consent, according to their customs and traditions”.51 The latter statement probably constitutes the ‘Achilles’ heel’ of the Court’s jurisprudence regarding consultations. In fact, it could be possible to interpret it as the requirement for indigenous peoples’ consent, amounting to the recognition of a ‘veto power’ vis-à-vis the States’ decision in connection with large-scale development projects, such as the construction of a dam or the exploitation of strategic subsoil resources. Thus, indigenous veto power might eventually hamper essential interests that could potentially benefit the whole society (including indigenous communities).52

However, the possible recognition of this veto power would be contrary to the wording and spirit of the un Declaration on the Rights to Indigenous Peoples, when it states that “[n]othing in this declaration may be interpreted as […] encouraging any action which would dismember or impair, totally or in part the territorial integrity or political unity of sovereign and independent States”.53

In addition, it will certainty infringe upon the ‘principle of representative democracy’ that is at the core of the Inter-American System.54 Finally, it will also contravene the exclusive ‘conventional responsibility’ of Member States in the administration of justice within their territories, because its recognition would imply the allocation of the final adjudicative powers regarding certain administrative matters outside the competence of the domestic judicial authorities.55 In fact, the recognition of geographical areas in which States cannot pursue the satisfaction of general interests or fulfilling ‘pressing social needs’ within a pluralist and democratic society, would clearly be contrary to the principle of territorial integrity and full sovereignty over their national territories.

Therefore, it would be possible to conclude that the current common understanding in this matter among scholars and different organs of the United Nations, is that the right of the members of the indigenous communities to be consulted in all of those matters that may affect them, “does not provide indigenous peoples with a ‘veto power’, but rather establishes the need to frame consultation procedures in order to make every effort to build consensus on the part of all concerned”.56

Following this conclusion, the obligation of the States to “cooperate in good faith” with indigenous peoples’ representatives, in order to obtain their “free and prior and informed consent” as mentioned in Article 19 of the un Declaration, has to be interpreted as an obligation of means rather than an obligation of ends, in the sense that States have to make any single effort in order to achieve an agreement with the communities involved. Depending on the level of impact of the proposed activity, the States’ observance of this requirement will be more or less strict. The highest level of restriction on the enjoyment of indigenous’ rights will correspond to major levels of diligence and commitments from the States. But, as we have said before, the consent that has to be sought by the States would not amount to a recognition of a veto power in the hands of the affected indigenous communities.

Accordingly, in those cases when large-scale development or investments projects could affect the integrity of indigenous peoples’ lands and natural resources, what would be required − in order to preserve their cultural survival − is the recognition of “just and integral compensation” for the deprivation or expropriation (if this is the case) of their communal properties. The special characteristics of the all-encompassing relationship of indigenous peoples with those territories indicate that compensation would have to primarily take the form of the submission of alternative lands.57

In connection with the second requirement, according to the Court the justification of benefit sharing with the affected communities is based upon the “restriction or deprivation of their right to the use and enjoyment of their traditional lands and of those natural resources necessary for their survival”.58 In this sense, the right to obtain ‘just compensation’ under Article 21(2) of the Convention has been extended not only to the total deprivation of the communal property title by way of expropriation by the State, but also to the restriction or deprivation of the regular use and enjoyment of such property.59

However, it is important to clarify that as long as participation in the benefits generated by the investment project have to be understood as a form of reasonable equitable compensation for the restrictions imposed on indigenous peoples’ rights, it cannot be interpreted as a partnership in the enterprise, or equal participation in its economic profits. In most of the cases, concessions or the establishment of large-scale development and investment projects are connected with the exploitation and use of natural resources that are in the public domain (regulated according to the national legislations). Therefore, what the States have to compensate is the interference that those projects could create in the enjoyment of the indigenous peoples’ property rights, but not, of course, for the exploitation in itself, which happens within its own domain.60

Hence, the reasonableness in the sharing of projects’ benefits has to be interpreted as the existence of a ‘relation of proportionality’ between the restrictions suffered by the affected communities in the enjoyment of their rights, and the possible benefits from the investment or development projects. Large, invasive or relevant interference will require major participation in those benefits, and lesser impacts or restrictions will reduce the right to claim benefit participation.

Finally, with regard to the third safeguard, the conducting of prior environmental and social impact assessments (here-in-after esias) also finds its justification in the prevention of negative impact on traditional lands and territories. Therefore, it aims at protecting the full enjoyment of indigenous communities’ distinctive way of life, which is, as explained above, intimately connected with their lands.61 According to the Court, the purpose of the esias is to ensure that members of the involved communities “are aware of possible risks, including environmental and health risks, in order that the proposed development or investment plan is accepted knowingly and voluntarily”.62 Moreover, the esias “must conform to the relevant international standards and best practices”;63 “must be undertaken by independent and technically capable entities, with the State’s supervision”;64 and must – of course – respect the communities’ traditions and culture. Consequently, the Court has emphasised that “the guided principle with which to analyse the result of esias should be that the level of impact does not deny the ability of the members of the [affected communities] to survive as a tribal [or indigenous] people”.65

States Parties to the American Convention have the obligation to respect and ensure the full enjoyment of the recognised rights (Article 1(1)), and consequently take all legislative and other positive measures in order to guarantee that enjoyment (Article 2). Thus, before granting any concession for the exploration or exploitation of natural resources, or the establishment of any development or investment project within the traditional indigenous peoples’ territories and lands, they have to fulfil the above-mentioned safeguards in order to produce the least possible impact on the enjoyment and exercise of these rights. And, in case those restrictions become unavoidable, States must try to prevent − by all available means − that the interference surpasses the acceptable legal threshold, that is, to endanger the indigenous peoples’ very survival as distinctive peoples.66

When the restriction generated by these projects eventually amounts to levels that surpass the limits set forth by the Court, and therefore makes it impossible for indigenous groups to enjoy their own resources, or even a total deprivation of their lands (e.g. when these are flooded for the construction of a dam), the affected communities would be entitled to a “full and integral compensation” that should consist, if possible, in their relocation to “alternative lands”, with the same capability to sustain their survival as distinctive peoples.

6 The Right to Be Fully Compensated and the Surrender of Alternative Lands

When concrete and fully-justified reasons make it impossible for States to guarantee the permanence of the indigenous communities within their traditional lands (e.g., strategic and essential development projects), or prevent the restitution of their traditional lands when they are in the hands of third good faith parties and the latter’s rights prevail over the former, States have the obligation to fully compensate indigenous peoples’ deprivation of the enjoyment of their right to communal property.67 Indeed, such compensation must be primarily “by the meaning of the land for them”;68 this means by surrendering “alternative lands of equal extension and quality”.69 Furthermore, because of the impact of traditional lands on the cultural identity of these populations, the alternative lands have to be chosen “by agreement with the members of the indigenous peoples, according to their own consultation and decision procedures”.70

The Court has additionally ruled that the lands that have to be surrendered by the States must be legally and substantially equal to those traditional lands that have been possessed and occupied by the affected communities.71 Thus, “the extension of the lands must be large enough to support and develop the community’s way of life”,72 and, therefore, must be “suitable to provide for their present needs and future development”.73 What is protected by the Court through this specific form of reparation is not only the right to property that has been effected. Essentially, this tailored compensation aims to overcome those further implications that the deprivation of the enjoyment of the traditional lands generate, merely the impact on the cultural identity of the affected communities and, consequently, the right of its members to have access to a life with dignity.

Moreover, because of the relevance and interdependence of these threefold relationship (traditional lands/cultural identity/life with dignity), the identification of these alternative lands must be done in a consensual manner with the communities involved and “in accordance with its own manner of consultation and decision-making, practices and customs”.74 However, the possibility could exist that States authorities would be unable to gain the indigenous people´s consent, even after being engaged with them in a fair process of consultation, conducted in a good faith and with cultural sensitivity. In this case, State´s authorities would have to decide the relocation through the adoption of “appropriate procedures established by national laws and regulations, including public inquires where appropriate”.75

The situation could be different in the case of clashes of interest between the right to property of private owners, and community property rights upon traditional lands. In these cases, States have the exclusive power and conventional responsibility to assess “the legitimacy, necessity and proportionality of the condemnation of the territories with the aim of achieving a legitimate goal in a democratic society”,76 and hence, “to impose restrictions on the right to property, on the one hand, or the right to traditional lands, on the other”.77

Moreover, when as a result of the application of this ‘necessity test’ the right to return of the displaced communities to their traditional lands cannot be fulfilled by the State (under objective and fully-justify reasons), the impossibility to reach an agreement with the affected communities in connection with the location, quality and quantity of the alternative lands that have to be surrendered cannot jeopardise the entire process and condemn it to a permanent status quo. In fact, States have always the conventional responsibility to provide a proper legal answer to every conflicting situation raised within their territories,78 balancing the possible conflicting interest at stake.79

Therefore, if the affected communities do not agree to the proposed alternative lands, and after exhausting all possibilities for further dialogue, States’ authorities would and must have the responsibility to provide alternative means of compensation that fully redress the restrictions or deprivation of the rights of the affected communities. Examples of compensations could be – for instance – monetary compensations, the creations of development funds, the development of infrastructure that specifically benefit the affected communities, etc. As a matter of principle,80 the restitution of the traditional lands should remain, whenever possible, as the most adequate form of ‘non-pecuniary reparation’ as well as an adequate guarantee of non-repetition.81

7 Conclusions

The broad and expansive interpretation made by the Inter-American Court of Article 21 of the American Convention, in a sense of including the right of the members of indigenous and tribal communities to communal property on their traditional lands and territories, represents an increasing awareness and sensibility of the international community, and in particular of the Inter-American Court, of the plurality of identities and diversity that exist in our modern societies.82

In the case of indigenous and tribal peoples, their distinctiveness is manifested and intimately connected with the unique relationship that they have with their traditional lands and territories. This all-encompassing relationship moulds and shapes their identity as distinctive people, as indigenous people. Their right to enjoy a life with dignity would suffer if members of these communities did not have access to their traditional lands. In that case, they would not have the possibility to fully develop their life in accordance with their traditions, understanding and world-views. In order to avoid an infringement of their right to life lato sensu (Article 4(1) achr), the recognition and protection of the access of the members of these groups to their traditional lands should be guaranteed.83

Consequently, Member States of the American Convention have the obligation under Article 1(1) to guarantee the creation of conditions that may be necessary in order to protect and preserve these rights. They have to actively facilitate indigenous peoples’ full enjoyment of their rights through the establishment of positive actions, such as, for instance, the elaboration of necessary legislation for the incorporation of the right of these communities to communal property into their domestic legal order, in compliance with the disposition enshrined in Article 2 of the Convention. In addition, when determining these policies, States have to pay due attention to indigenous peoples’ traditional norms and regulations in connection with their land-tenure systems and, more broadly, the structure of their society, as long as those norms and practices “are not incompatible with fundamental rights defined by the national legal systems and with international recognised human rights”.84

Furthermore, in those situations when indigenous peoples’ right to communal property might enter into contradiction with individual private rights over the same traditional lands, States must take into account the special relationship that these communities have with their lands. This could eventually mean that authorities would have to impose restrictions upon non-indigenous peoples’ claims in order to achieve “the collective objective of preserving cultural identities in a democratic and pluralist society”.85

Member States have the responsibility and obligation to balance all the interests in conflicts, and to assess, on a case-by-case basis, the proportionality and reasonability of the restrictions of one of them vis-à-vis the “imperative interest” of the whole society. In most cases, satisfaction of the interests of society will be connected with the better and prevalent protection of the indigenous peoples’ interests and rights. However, in certain cases what would be necessary in a pluralistic and democratic society would be the restriction of the indigenous peoples’ right to communal property.

States Parties of the Convention have a “certain margin of appreciation” or manoeuvre in the assessment of the imperative needs of the society.86 Because of the impact that traditional lands have on indigenous peoples’ culture, identity, and in maintaining their traditional way of life, States need to assess the given “pressing social need” in an accurate and restrictive manner. This means searching for accommodative solutions that would be able to take all interests at stake into consideration.87 In other words, they would have to adopt those measures able to generate the smallest possible restrictions on indigenous peoples’ all-encompassing connection to their lands.

However, even if States have a margin to decide upon this matter, it would always remain up to the Court to make the final assertion on whether interference on indigenous peoples’ rights are justified and compatible with the Convention.88 It is in this sense that the Court has introduced very strict safeguards for the assessment of the justifiability and proportionality of the proposed restrictive measures that could directly or indirectly affect the indigenous peoples’ enjoyment of their land, and therefore endanger their material and spiritual survival.

In fact, what is really at stake in these cases is the protection of indigenous peoples’ identity as different peoples. In most cases, this protection will be granted by guaranteeing their permanence within their traditional lands and territories. However, it is important to bear in mind that the circumstances of a particular case might not allow this possibility. In those cases, the protection of indigenous peoples’ cultural identity and way of life could be safeguarded by their relocation to alternative lands. These new lands would not be those ancestrally possessed or traditionally connected with the affected communities. Nevertheless, as long as they can enable the recreation of the special relationship that the affected population used to have with their traditional lands, no essential harm would be done.

What cannot be exchanged, or compensated in a similar manner, is their culture. Although no other alternative culture compensates indigenous peoples for the deprivation of their specific and unique traditional culture; with access to alternative, traditional lands, indigenous people will be able to perpetuate their cultural distinctiveness.

Consequently, the essential value that lies behind the indigenous lands’ jurisprudence is the “protection and preservation of cultural diversity in pluralistic societies”. It is in this sense that the Inter-American Court has paid special attention to the protection of indigenous peoples’ culture, providing safeguards that could facilitate the realisation of their ‘project of life’ with dignity, that is, in accordance with their own customs and traditions. Hence, the protection of indigenous peoples’ right to communal property could be interpreted as a vehicle, as a legal enabler that contributes to safeguard the maintenance and perpetuation of their cultural identity.89

1

In connection with the situation of Indigenous Peoples in the Americas, it has been said in one of the most important studies published on this topic, that “[o]ne of the most persistent forms of discrimination against indigenous peoples in Latin America has been the denial of their cultural identity, as well as their exclusion from dominant society and the hegemonic concept of the nation state. This has been characterized as ethnocide or cultural genocide and, as such, can be considered a major violation of the human rights of a significant portion of the Latin American population. […] Structural ethnic/racial discrimination manifests itself in interpersonal relations, negative stereotypes, and subjective prejudices against indigenous peoples”. See R. Stavenhagen, Cultural Diversity in the Development of the Americas. Indigenous Peoples and States in Spanish America, Cultural Studies Series, Unite for Social Development Education and Culture, oas (2002), para. 108.

2

The un Special Rapporteur on Indigenous Issues has remarked “[t]he recognition and protection of land rights is the basis of all indigenous movements and claims today in the face of the continuous encroachment on their land”. See J.R. Martínez Cobo, Study of the Problem of Discrimination against Indigenous Populations, Volume V, Conclusions, Proposals and Recommendations, un Doc. E/cn.4/Sub.2/1986/7/Add.4, New York, 1987, para. 215.

3

The un Declaration on the Rights of Indigenous Peoples was adopted at the 107th plenary meeting of the United Nation General Assembly, on 13 September 2007. Among Member States, 143 voted in favour, 11 abstaining and 4 voted against (Australia, Canada, New Zealand, and United States).

4

The un Declaration on the Rights of Indigenous Peoples is clearly not a binding instrument; nevertheless it must be borne in mind that this Declaration relates to the already existing international human rights standards and obligations that have been assumed by the Member States. In this sense, it represents a commitment made by the United Nations and Members States towards non-discriminatory protection, and promotion, of indigenous peoples’ rights. See on this regards, Human Right Council, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, James Anaya, un Doc. a/hrc/9/9 (2008), para. 41, <http://unsr.jamesanaya.org/docs/annual/2008_hrc_annual_report_en.pdf>, visited on 14 April 2017.

5

See I-ACtHR, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs. Judgment of August 31, 2001. Series C No. 79.

6

For further reading in connection with this case, see − among others − S.J. Anaya and C. Grossman, ‘The case of Awas Tingni v. Nicaragua: A new step in the international law of Indigenous Peoples’, 19 Arizona Journal of International & Comparative Law (2002) pp. 1 et seq.; J.A. Amiott,­ ‘Environment, equality, and indigenous peoples’ land rights in the inter-american human rights­ system: Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua’, 32 Environmental Law (2002) pp. 873 et seq.; S.J. Anaya, ‘Divergent discourses about international law, indigenous people, and rights over lands and natural resources: Toward a realist trend’, 16 Colorado Journal of International Environmental Law and Policy (2005) pp. 237 et seq.; L.J. Alvarado, ‘Prospects and challenges in the implementation of indigenous peoples’ human rights in international law: Lessons from the Case of Awas Tingni v. Nicaragua’, 24 ­Arizona Journal of International & Comparative Law (2007) pp. 609 et seq.

7

See Awas Tingni case, supra note 7, para. 146. In very recent jurisprudence, the Court emphasized the fact that the usual meaning of the terms, enshrined within the Convention, “cannot be a rule in itself, but should be examined in the context and, especially, from the perspective of the object and purpose of the treaty, so that the interpretation does not result in a deterioration in the protection system embodied in the Convention”. Cf. I-ACtHR, Case of González et al. (“Cotton Field”) v. Mexico, 16 November 2009. Preliminary Objection, Merits, Reparations and Costs, Series C No. 205, para. 42. Regarding the interpretation of human rights instruments see also H. Miranda Bonilla, Derechos fundamentales en América Latina (Editorial Jurídica Continental, San José, 2015), p. 207 et seq.

8

Cf. Awas Tingni case, supra note 7, Joint Separate Opinion of Judges A.A. Cançado Trindade, M. Pacheco Gómez and A. Abreu Burelli, paras. 8–9. See also A.A. Cançado Trindade, ‘The Right to Cultural Identity in the Evolving Jurisprudential Construction of the Inter-American Court of Human Rights’, in S. Yee and J.-Y. Morin (eds.), Multiculturalism and International Law Multiculturalism and International Law: Essays in Honour of Edward McWhinney (Martinus Nijhoff Publishers, Leiden, 2009) pp. 477–499.

9

The concept of ‘culture’ is as defined by the World Conference on Cultural Policies (mondiacult, Mexico City, 1982, in the sense that it “should be regarded as the set of instinctive spiritual material, intellectual and emotional features of society or a social group, and that it encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs”.

10

In this sense, the un Special Rapporteur Mrs. Daes stated that “it is difficult to separate the concept of indigenous peoples’ relationship with their lands, territories and resources from that of their cultural differences and values. The relationship with the land and all living things is at the core of indigenous societies”. See E.I.A. Daes, Indigenous Peoples and Their Relationship to Land. Final working paper prepared by the Special Rapporteur Mrs. Erica-Irene A. Daes, un Doc. E/cn.4/Sub.2/2001/21 (2001) p. 7, para. 13 et seq. See also A. Fuentes, Cultural Diversity and Indigenous Peoples’ Land Claims. Argumentative Dynamics and Jurisprudential Approach in the Americas (University of Trento, Trento, 2012) pp. 179–205, 241 et seq., http://eprints-phd.biblio.unitn.it/767/, visited on 14 April 2017.

11

See Awas Tingni case, supra note 7, Joint Separate Opinion of Judges A.A. Cançado Trindade, M. Pacheco Gómez and A. Abreu Burelli, para. 8. See also A. Fuentes, ‘Judicial Interpretation and Indigenous Peoples’ Rights to Lands Participation and Consultation. The Inter-American Court of Human Rights’ Approach’, 23 International Journal on Minority and Group Rights (2016) pp. 38–45.

12

See I-ACtHR, Case of the Yakye Axa Indigenous Community v. Paraguay, 17 June 2005. Merits, Reparations and Costs, Series C No. 125, para. 135–137.

13

Article 1(1) achr reads as follow: “[t]he States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition”.

14

Article 2 of the achr reads as follow: “[w]here the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms”.

15

See I-ACtHR, Case of the Saramaka People v. Suriname, 28 November 2007. Preliminary Objections, Merits, Reparations, and Costs, Series C No. 172, para. 122. See also E. Abrusci, ‘Judicial fragmentation on indigenous property rights: causes, consequences and solutions’, The International Journal of Human Rights (2017), <http://dx.doi.org/10.1080/13642987.2017.1307830>, visited on 15 April 2017; and A. Fuentes, ‘Rights to Lands, Participation and Consultation of Indigenous Peoples. A summary of the Inter-American Court of Human Rights’ Judicial Interpretation’, Research Brief, rwi Publications (2016), p. 7 et seq., http://rwi.lu.se/app/uploads/2016/08/Rights-to-Lands-Participation-and-Consultation-of-Indigenous-Peoples.pdf , visited on 17 April 2017.

16

See Yakye Axa case (Merits), supra note 14, Separate Dissenting Opinion of Judges A.A. Cançado Trindade and M.E. Ventura Robles, para. 4. Moreover, according to the Commission, “the term ‘survival’ should be understood in a coherent manner with the indigenous and tribal peoples set of rights, with the aim of not giving rise to a static conception of their ways of life”. In addition, the Commission has emphasized that “since the requirement to ensure their “survival” has the purpose of guaranteeing the especial relationship between these peoples with their ancestral territories, reasonable deference should be given to the understanding that the indigenous and tribal peoples themselves have in regards to the scope of this relationship, as authorized interpreters of their cultures”. Cf. I-achr, ‘Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities’, oea/Ser.l/v/ii.Doc.47/15 (2015) para. 83, <http://www.oas.org/en/iachr/reports/pdfs/extractiveindustries2016.pdf>, visited on 14 April 2017.

17

See I-ACtHR, Case of the Sawhoyamaxa Indigenous Community v. Paraguay, 29 March 2006. Merits, Reparations and Costs, Series C No. 146, para. 151.

18

See I-ACtHR, Case of the “Street Children” (Villagrán-Morales et al.) v. Guatemala, 19 November 1999. Merits, Series C No. 63, para. 144.

19

See I-ACtHR, Case of the Pueblo Bello Massacre v. Colombia, 31 January 2006. Merits, Reparations and Costs, Series C No. 140, para. 120. See also Case of the “Mapiripán Massacre” v. Colombia, 15 September 2005. Merits, Reparations and Costs, Series C No. 134, para. 232.

20

Under the ‘jurisprudence constant’ of the I-ACtHR, the obligation to take positive measures vis-à-vis the protection of the right to life increases its imperativeness according to “the particular needs of protection of the legal persons, whether due to their personal conditions or because of the specific situation they have to face, such as extreme poverty, exclusion or childhood”. Cf. Pueblo Bello Massacre case, supra note 21, para. 111–112.

21

In fact, according to the Inter-American Commission, “the right to property embodied in the American Convention cannot be interpreted in isolation, but rather taking into account the overall legal system in which it exists, bearing in mind both domestic and international law, in light of Article 29 of the Convention”. Cf. I-achr, ‘Indigenous and Tribal People’s Rights over their Ancestral Lands and Natural Resources. Norms and Jurisprudence of the Inter‐American Human Rights System’, oea/Ser.l/v/ii.Doc.56/09 (2009) para. 8, <http://www.oas.org/en/iachr/indigenous/docs/pdf/ancestrallands.pdf>, visited on 14 April 2017.

22

In connection with extractive industries, “[t]his obligation includes the adoption of the appropriate domestic legislation to protect the most relevant human rights in the field of extractive and development activities, the repeal of legislation which is incompatible with the rights enshrined in the Inter-American instruments, and to refrain from adopting legislation contrary to these rights”. Cf. I-achr, supra note 18, para. 67.

23

In this sense, in the Yakye Axa case Judges Cançado Trindade and Ventura Robles have emphasised the fact that even if the right to life “is a non-derogable right under the American Convention, while the right to property is not […] the latter is especially significant because it is directly related to full enjoyment of the right to life including conditions for a decent life”. Cf. Yakye Axa (Merits) case, supra note 14, Separate Dissenting Opinion of Judges A.A. Cançado Trindade and M.E. Ventura Robles, para. 20.

24

See I-ACtHR, Case of Juan Humberto Sánchez v. Honduras, 7 June 2003. Preliminary Objection, Merits, Reparations and Costs, Series C No. 99, para. 110.

25

As stated by the Inter-American Commission, “[t]he obligation to adopt special and specific protective measures is inherent in ilo Convention No. 169; the iachr has highlighted the need for its States parties to ‘take special measures to guarantee indigenous peoples the effective enjoyment of human rights and fundamental freedoms, without restrictions, and to include measures that promote the full effectiveness of their social, economic, and cultural rights, respecting their social and cultural identity, and their customs, traditions, and institutions.’” Cf. I-achr, supra note 23, p. 18, para. 51. See also Fuentes, supra note 12, p. 305 et seq.

26

See I-achr, supra note 18, p. 114 et seq.

27

In connection with the understanding of the Court toward the concept of ‘project of life’, see Street Children case, supra note 20, para. 144; and I-ACtHR, Case of Loayza-Tamayo v. Peru, 27 November 1998. Reparations and Costs, Series C No. 42, para. 147–148.

28

In the case of the members of the Yakye Axa Community, the Court established that the lack of recognition of the right to communal property “has had a negative effect on the right of the members of the community to a decent life, because it has deprived them of the possibility of access to their traditional means of subsistence, as well as to use and enjoyment of the natural resources necessary to obtain clear water and to practice traditional medicine to prevent and cure illnesses”. Cf. Yakye Axa case, supra note 14, para. 168.

29

See Article 15(2) of the ilo Convention No. 169 states that “[i]n cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through with they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands”.

30

Regarding the obligation to consult, the ilo Tripartite Committee has emphasised that “the spirit of consultation and participation constitutes the cornerstone of convention No. 169 on which all its provisions are based”. Cf. ilo Governing Body, 282nd Session, November 2001, Representation under article 24 of the ilo Constitution, Ecuador, gb.282/14/2. Report of the Committee set up to examine the representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under ­article 24 of the ilo Constitution by the Confederación Ecuatoriana de Organizaciones Sindicales Libres (ceosl), para. 41, <https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:50012:0::no::P50012_COMPLAINT_PROCEDURE_ID,P50012_LANG_CODE:2507223,en>, visited on 14 April 2017.

31

In addition to the ilo Convention, in the Saramaka case the Court has stated that “the right to property protected under Article 21 of the American Convention, interpreted in light of the rights recognized under common Article 1 and Article 27 of the iccpr, which may not be restricted when interpreting the American Convention, grants to the members of the Saramaka community the right to enjoy property in accordance with their communal tradition”. Cf. Saramaka case, supra note 17, para. 95.

32

It is important to bear in mind that the Inter‐American jurisprudence “has characterized indigenous territorial property as a form of property whose foundation lies not in official state recognition, but in the traditional use and possession of land and resources; indigenous and tribal peoples’ territories “are theirs by right of their ancestral use or occupancy”. Cf. I-achr, supra note 23, p. 26, para. 68.

33

See Saramaka case, supra note 17, para. 121.

34

Ibid., para. 122.

35

As has been stressed, indigenous lands and territories traditionally used “includes not only physically occupied spaces but also those used for their cultural or subsistence activities, such as routes of access, [which is] compatible with the cultural reality of indigenous­ peoples and their special relationship with the land and territory”. Cf. I-achr, supra note 23, p. 13, para. 40.

36

The un General Assembly, in its 2203rd plenary meeting, has “[s]trongly reaffirms the inalienable rights of States to permanent sovereignty over all their natural resources, on land within their international boundaries as well as those in the sea-bed and the subsoil thereof within their national jurisdiction and in the superjacent waters”. Cf. un ga Res. 3171 (xxviiI), ‘Permanent sovereignty over natural resources’, 2203rd plenary meeting (1973), <https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/282/43/IMG/NR028243.pdf?OpenElement>, visited on 13 April 2017.

37

See Saramaka case, supra note 17, para. 126.

38

Ibid.

39

The Inter-American Commission has stressed in this sense that “recognition and protection as culturally different peoples requires wide political and institutional structures that allow them to participate in public life, and protect their cultural, social, economic and political institutions in the decision-making process. This requires, among other aspects, the promotion of an intercultural citizenship based on dialogue, the generation of culturally appropriate services, and differentiated attention for indigenous and tribal peoples”. Cf. I-achr, supra note 18, p. 75, para. 150.

40

See Saramaka case, supra note 17, para. 127.

41

See Yakye Axa case, supra note 14, para. 145.

42

See Saramaka case, supra note 17, para. 128.

43

It is important to notice that “Article 21 of the Convention states that the ‘law may subordinate [the] use and enjoyment [of property] to the interest of society.’ Thus, the Court has previously held that, in accordance with Article 21 of the Convention, a State may restrict the use and enjoyment of the right to property where the restrictions are: a) previously established by law; b) necessary; c) proportional, and d) with the aim of achieving a legitimate objective in a democratic society”. See I-achr, supra note 23, p. 90, para. 230.

44

In views of the Inter-American Commission, informed consultations “requires the sharing of full and precise information on the nature and consequences of the process on the peoples and communities consulted. This information must be sufficient, accessible and timely”. Cf. I-achr, supra note 18, p. 100, para. 198.

45

See Saramaka case, supra note 17, para. 133. Cultural appropriateness of consultation requires, at a minimum, that “all of the members of the community are fully and accurately informed of the nature and consequences of the process and provided with an effective opportunity to participate individually or as collectives”. Cf. I-achr, supra note 18, p. 104, para. 207. See also, Fuentes, supra note 13, p. 69 et seq.

46

See ilo Convention No. 169, Art. 8(2). See also Fuentes, supra note 12, p. 339 et seq.

47

Some scholars even see in the fact of the widespread acceptance of the norm of consultation a proof of its acceptance as part of the ‘customary international law’. See – among others – S.J. Anaya, ‘Indigenous Peoples’ Participatory Rights in Relation to Decisions about Natural Resource Extraction: The more fundamental issue of what Rights Indigenous Peoples have in Lands and Resources’, 22:1 Arizona Journal of International and Comparative Law (2005) pp. 7–17.

48

In this sense, Article 19 of the un Declaration on the Rights of Indigenous Peoples expressly states that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them”. Moreover, as stressed by the Inter-American Commission, consultation in good faith “is incompatible with practices such as attempts to undermine the social cohesion of the affected communities, either by bribing community leaders or by establishing parallel leaders, or by negotiating with individual members of the community, all of which are contrary to international standards”. Cf. I-achr, supra note 18, p. 102, para. 201.

49

Cf. I-ACtHR, Case of the Saramaka People v. Suriname, 12 August 2008. Interpretation of the Judgment on Preliminary Objections, Merits, Reparations and Costs, Series C No. 185, para. 17.

50

Ibid., para. 18.

51

Cf. Saramaka case (Merits), supra note 17, para. 134; see also I-achr, supra note 18, p. 93, para. 183.

52

See Fuentes, supra note 13, p. 74 et seq; and Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya: Extractive industries and indigenous peoples, a/hrc/24/41 (2013) p. 8 et seq,<http://unsr.jamesanaya.org/docs/annual/2013-hrc-annual-report-en.pdf>, visited on 13 April 2017.

53

un Declaration on the Rights of Indigenous Peoples, Article 46(1).

54

In this sense, Article 7 of the Inter-American Democratic Charter, adopted by the oas General Assembly at its special session held in Lima, Peru, on September 11, 2001, states that “[d]emocracy is indispensable for the effective exercise of fundamental freedoms and human rights in their universality, indivisibility and interdependence, embodied in the respective constitutions of states and in inter-American and international human rights instruments”.

55

See Sawhoyamaxa case, supra note 19, para. 136.

56

See Human Rights Council, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, a/hrc/12/34 (2009), para. 48, <http://unsr.jamesanaya.org/docs/annual/2009_hrc_annual_report_en.pdf>, visited on 13 April 2017. See also Fuentes, supra note 13, p. 74 et seq.

57

It is important to bear in mind that the determination of the beneficiaries “must be made by the peoples themselves according to their customs and traditions, and not by the State”. Cf. I-achr, supra note 18, p. 109, para. 219.

58

See Saramaka case, supra note 17, para. 139.

59

Ibid.

60

It is in this sense that the Court when has stated “Article 21 of the convention does not per se preclude the issuance of concessions for the exploration and exploitation of natural resources in indigenous or tribal territories”. Cf. Saramaka case, supra note 17, para. 143.

61

The environmental and social impact assessments are intended to “preserve, protect and guarantee the special relationship” that indigenous peoples have with their territories and ensure their survival as peoples […]. Likewise, it has established that the environmental and social impact assessments must be completed prior to the granting of the respective concession, and demands that the States guarantee the participation of indigenous peoples in the environmental and social impact assessments”. See I-ACtHR, supra note 18, p. 106, para. 213 et seq.

62

Cf. Saramaka case (Interpretation), supra note 51, para. 40.

63

Ibid., para. 41.

64

Ibid.

65

Ibid., para. 42.

66

The Court has emphasised that the phrase ‘survival as a tribal people’ “must be understood as the ability of [these people] to “preserve, protect and guarantee the special relationship that they have with their territory”, so that “they may continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected”. Cf. Saramaka case (Interpretation), supra note 51, para. 37.

67

According to the Inter-American Commission, this alternative “it only constitutes a legally acceptable hypothesis when all possible means to obtain the restitution of each people’s specific ancestral territory have been exhausted, and such restitution has not been possible because of objective and justified reasons, in the terms established by the Inter‐American­ jurisprudence and described in the foregoing section on territorial restitution”. Cf. I-achr, supra note 23, p. 59, para. 142. See also Fuentes, supra note 12, p. 342 et seq.

68

Cf. Yakye Axa case, supra note 14, para. 149.

69

Cf. Sawhoyamaxa case, supra note 19, para. 135.

70

Ibid.

71

See ilo Convention No. 169, Article 16(4).

72

Cf. I-ACtHR, Case of the Indigenous Community Yakye Axa v. Paraguay, 6 February 2006. Interpretation of the Judgment of Merits, Reparations and Costs, Series C No. 142, para. 26. See also Fuentes, supra note 12, p. 345 et seq.

73

See ilo Convention No. 169, Article 16(4).

74

Cf. Yakye Axa case (Merits), supra note 14, para. 217.

75

See ilo Convention No. 169, Article 16(2).

76

Cf. Yakye Axa case (Interpretation), supra note 14, para. 24.

77

Cf. Sawhoyamaxa case, supra note 19, para. 138. In this sense, the Inter-American Commission has stressed that “[p]roportionality is based on the restriction being closely adjusted to the attainment of a legitimate objective, interfering as little as possible with the effective exercise of the restricted right”. See I-achr, supra note 23, p. 50, para. 117.

78

In this sense, the Court has emphasised the fact that “the State may not abstain from complying with its international obligations under the American Convention merely because of the alleged difficulty to do so”. Cf. Saramaka case (Merits), supra note 17, para. 102.

79

See Fuentes, supra note 13, p. 71 et seq.

80

Article 28(2) of the un Declaration states that “[u]nless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality size and legal status or of monetary compensation or other appropriate redress”.

81

The scope and meaning of the reparations cannot be addressed here, because of the length and scope of this article, but it is nevertheless important to highlight the fact that, as long as the reparations have to be integral, the surrender of alternative lands must not be considered as a matter of mere restitution, turning back these populations to the vulnerable situation in which they were immersed; they have to be understood as a “guarantee of non-repetition of the particularly serious harmful events that led to the victims’ displacement”. Cf. Yakye Axa case (Interpretation), supra note 14, Concurring Opinion of Judge A.A. Cançado Trindade, para. 7.

82

See Cançado Trindade, supra note 10, p. 485 et seq.

83

In this sense, it has been said that “limitations on the right to indigenous property can also affect the right to the exercise of one’s own religion, spirituality or beliefs, a right recognized by Article 12 of the American Convention and Article iii of the American Declaration. States are under the obligation to secure indigenous peoples’ freedom to preserve their own forms of religiousness or spirituality, including the public expression of this right and access to sacred sites whether or not on public or private property”. Cf. I-achr, supra note 23, p. 61, para. 151.

84

See ilo Convention No. 169, Article 8(2).

85

Cf. Sawhoyamaxa case, supra note 19, para. 148.

86

In this regard, the ECtHR stated that “in determining whether an interference is “necessary in a democratic society”, the Court will take into account that a margin of appreciation is left to the Contracting States”. Cf. ECtHR, Case of Olsson v. Sweden (No. 1) [1988] 26, para. 67.

87

See Fuentes, supra note 13, p. 49.

88

See Sawhoyamaxa case, supra note 19, para. 136; see also ECtHR, The Case of Dudgeon v. The United Kingdom [1981] 19, para. 59.

89

For further reading regarding the manner that the indigenous peoples’ rights to communal property safeguards and perpetuates their cultural identity, see Fuentes, supra note 12, p. 303 et seq.

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