32
dispose of property, which, in turn, would render protection under this provision illusory for
millions of people.127
101. The Court has taken into consideration that indigenous groups, based on their very
existence, have the right to live freely in their own territory; the close ties of indigenous
people with the land must be recognized and understood as the fundamental basis of their
cultures, their spiritual life, their integrity, and their economic survival. For indigenous
communities, relations to the land are not merely a matter of possessions and production,
but a material and spiritual element which they must fully enjoy, even to preserve their
cultural legacy and transmit it to future generations.128 The culture of the members of
indigenous communities directly relates to a specific way of being, seeing, and acting in the
world, developed on the basis of their close relationship with their traditional territories and
the resources therein, not only because these are their main means of subsistence , but also
because they are part of their worldview, their religiosity, and therefore, of their cultural
identity.129
102. Given the intrinsic connection that the members of indigenous and tribal peoples have
with their territory, the protection of property rights and the use and enjoyment thereof is
necessary to ensure their survival. This connection between the territory and the natural
resources that indigenous and tribal peoples have traditionally used and that are necessary
for their physical and cultural survival and the development and continuation of their
worldview must be protected under Article 21 of the Convention to ensure that they can
continue their traditional way of living, and that their distinctive cultural identity, social
structure, economic system, customs, beliefs, and traditions are respected, guaranteed, and
protected by the States.130
103. This Court’s case law has repeatedly acknowledged the right to property of indigenous
peoples over their traditional territories, and the duty of protection that results from Article
21 of the American Convention in the light of the regulations of Convention 169 of the ILO,
the Declaration of the United Nations on the Rights of Indigenous Peoples, as well as the
rights acknowledged by the States in their domestic legislations or in other international
instruments and decisions, thus establishing a corpus juris that defines the obligations of the
States Parties to the American Convention, in relation to the protection of the indigenous
peoples’ right to property.131 Therefore, upon analyzing the content and scope of Article 21 of
the Convention in this case, the Court will take into consideration, in light of the general rules
of interpretation established in Article 29(b) of this instrument and as it has done
Cfr. Case of the Indigenous Community of Sawhoyamaxa v. Paraguay. Merits, Reparations, and Costs.
Judgment of March 29, 2006. Series C No. 146, para. 120, and Case of the Kuna Indigenous People of Madungandí
and the Emberá Indigenous People of Bayano and its members v. Panama, para. 111.
127
Cfr. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, para. 149, and Case of the
Indigenous Community of Xákmok Kásek v. Paraguay. Merits, Reparations, and Costs. Judgment of August 24, 2010.
Series C No. 214, para. 86.
128
129
Cfr. Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations, and Costs. Judgment
of June 17, 2005. Series C No. 125, para. 135, and Case of the Indigenous Community of Xákmok Kásek v. Paraguay,
para. 174.
Cfr. Case of the Yakye Axa Indigenous Community v. Paraguay, para. 124, 135, and 137, and Case of the
Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayano and its members v. Panama,
para. 112.
130
Cfr. Juridical Condition and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September 17,
2003. Series A No. 18, para. 120, Case of the Yakye Axa Indigenous Community v. Paraguay, para. 127 and 128,
Case of Kichwa Indigenous People of Sarayaku v. Ecuador. Merits and Reparations. Judgment of June 17, 2012.
Series C. 245, para. 164, and Case of the Kuna Indigenous People of Madungandí and the Emberá Indigenous People
of Bayano and its members v. Panama, paras. 118 and 142.
131