308. Based on the conclusions established in Chapter IX concerning Article 3 of the
Convention, the Court orders the State to implement, within one year of notification of
this judgment at the most, a registration and documentation program, so that the
members of the Community can register and to obtain their identity documents.
5.2.
Adapting domestic law to the Convention
309. Based on the Court’s conclusions in Chapter VI of this judgment, the Court finds
it necessary that the State ensure the effective enjoyment of the rights recognized by
the American Convention, by its Constitution and by its laws. The Court considers that
the State’s international responsibility in this case has resulted from the fact that it had
failed to adapt its laws in order to guarantee the indigenous communities’ right to
ownership of their traditional territory, and also that institutional practices limit or fail
to guarantee fully the effective application of the laws that have been established
formally to guarantee the rights of the members of the indigenous communities. In the
Court’s opinion, the social interest of property for the indigenous communities should
signify that the circumstance that it is indigenous ancestral land should be taken into
account, and should be reflected at both the substantive and the procedural levels.
310. Consequently, in accordance with Article 2 of the American Convention, within
two years, the State must adopt in its domestic law the necessary legislative,
administrative and any other measures to establish an effective system for indigenous
peoples to claim their ancestral or traditional lands, which makes it possible to
implement their right to property. This system must establish substantive norms that
guarantee: (a) that the importance to the indigenous peoples of their traditional lands
is taken into account, and (b) that it is not enough that the land claimed is owned
privately and is being exploited rationally to reject any land claim. Furthermore, this
system must establish that a judicial authority has the competence to decide the
disputes that arise between the right to property of private entities and that of the
indigenous peoples.
5.2. Regarding the decree declaring part of the land claimed by
the members of the Community a protected wooded area
311. With regard to judicial practice, this Court has established that it is aware that
domestic judges and tribunals are subject to the rule of law and, therefore, they are
obliged to apply the legal provisions in force.309 However, when a State has ratified an
international treaty such as the American Convention, its judges, as part of the State
apparatus, are also subject to it, which obliges them to ensure that the effects of the
provisions of the Convention are not weakened by the application of laws contrary to
its object and purpose. In other words, the Judiciary must ex officio exercise “control
that domestic laws are in accordance with the American Convention, evidently, within
the framework of its respective competences and the corresponding procedural
regulations. In this task, the Judiciary must take into account not only the treaty, but
also the interpretation given to it by Inter-American Court, ultimate interpreter of the
American Convention.310
312. In this case, Decree No. 11,804 issued on January 31, 2008, declaring part of
the land claimed by the Community a protected wooded area under private ownership,
309
Cf. Case of Almonacid Arellano et al. v. Chile, supra note 39, para. 124; Case of La Cantuta v. Peru.
Merits, reparations and costs. Judgment of November 29, 2006. Series C No. 162, para. 173, and Case of
Radilla Pacheco v. Mexico, supra note 12, para. 339.
310
Cf. Case of Almonacid Arellano et al. v. Chile, supra note 39, para. 124; Case of La Cantuta v. Peru,
supra note 308, para. 173, and Case of Radilla Pacheco v. Mexico, supra 12, para. 339.
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