violated to a matter concerning private property (Article 21) and not “a matter of evident
public interest” (as seen in paras. 13 and 14), but rather a private matter.
19.
According to the second operative paragraph of the judgment, the violation of Article
23 was allegedly proved “pursuant to paragraphs 122 to 230.” But, an analysis of those
paragraphs reveals that, although they are inserted in Chapter VI.2, entitled “Right to
collective property (Article 21) and political rights (Article 23) in relation to Articles 1(1) and
2 of the American Convention,” none of its sections deals with the political rights that were
presumably violated. The “Considerations of the Court” are comprised of the following four
sections, and they do not mention such rights either: “B.1 Interpretation of the right to
collective property of the indigenous peoples in this case”; B.2 The failure to recognize the
right to collective property of the Kaliña and Lokono indigenous peoples”; B.3 Nature
reserves in the traditional territory”, and “B.4 The right to collective property in relation to
the mining concession within the Wane Kreek Nature Reserve.”
20.
Also, the four main disputes described in paragraph 127 do not mention political
rights or Article 23,377 and the 109 paragraphs of these sections do not include any terms
that would attempt to provide grounds for the alleged violation of Article 23:
a)
Paragraph 126: “[…] the Court considers it important to emphasize that,
although the parties have not argued the violation of Article 23 of the Convention during the
proceedings before this Court, it finds it pertinent to apply the iura novit curia principle.” In
other words, it records the decision to consider a violation that has not been alleged by the
parties, but does not explain how this violation has been committed.
b)
Paragraph 196: “In this regard, the Court recalls that Article 23 of the
American Convention establishes that everyone must enjoy the rights and opportunities “to
take part in the conduct of public affairs […].” In this sense, the participation of the
indigenous communities in the conservation of the environment is not only a matter of
public interest, but also part of the exercise of their right as indigenous peoples “to
participate in decision-making in matters which would affect their rights, […] in accordance
with their own procedures and […] institutions” (supra paras. 178 and 180).” Thus, there is
an attempt to identify the “right to take part in the conduct of public affairs” with the right
of the indigenous peoples to take part in the adoption of decisions on matters that affect
their rights, without providing even the most basic grounds for this. It is evident that these
are two different matters.
c)
Paragraph 197: “the absence of explicit mechanisms that guarantee the
access, use and effective participation of the Kaliña and Lokono indigenous peoples in the
conservation of the said nature reserves and the benefits these reserves yield constitutes a
violation of the obligation to adopt the necessary provisions to make such measures
effective in order to ensure the rights to collective property, to cultural identity, and to
377
“Based on the above, in light of the arguments of the parties, the Court finds that the violations that have
been alleged relate to four main disputes: (a) the failure to recognize the right to collective property and the
absence of delimitation, demarcation and land-titling of the ancestral lands of the Kaliña and Lokono indigenous
peoples; (b) the granting of land titles and leases to non-indigenous persons within the territory claimed by the
Kaliña and Lokono peoples; (c) the adverse effects on use and enjoyment of the parts of the nature reserves that
fall within the alleged traditional territories, and (d) the absence of effective participation, by means of a
consultation process, with regard to the mining concessions within one of the nature reserves in the ancestral
territory.” Case of the Kaliña and Lokono Peoples v. Suriname, supra, para. 127.
7
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