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perform by the State. In addition to these agreements giving rise to legal rights, they gave rise to a series
of legitimate expectations in the leaders and members of the indigenous people that were constantly
frustrated.
225.
The IACHR also observes that while Law 24 granted formal recognition to the collective
property rights of the Kuna indigenous people of Madungandí, the boundaries of the Comarca were not
demarcated or physically delimited until four years later. In this respect, the IACHR recalls that, as the
Court has noted, the failure to delimit and effectively demarcate indigenous territories, even when there is
formal recognition of the right to communal property of their members, causes “a climate of constant
uncertainty” in which the community members “do not know for certain how far their communal property
extends geographically and, therefore, they do not know until where they can freely use and enjoy their
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respective property.”
226.
Similarly, as the IACHR has indicated, based on Article 2 of the American Convention,
the indigenous peoples have a right to effective implementation of the law. Under this provision, the
states must ensure the practical implementation of the constitutional, statutory, and regulatory provisions
of their domestic law that enshrine the rights of indigenous and tribal peoples and their members, so as to
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ensure the effective enjoyment of those rights. While attaching a positive value to the adoption of legal
provisions on the collective rights of indigenous peoples, the IACHR has insisted that the adoption of
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legal provisions does not suffice to carry out the international obligations of the states.
Similarly, the
Inter-American Court has explained that “legislation alone is not enough to guarantee the full
effectiveness of the rights protected by the Convention, but rather, such guarantee implies certain
governmental conducts to ensure the actual existence of an efficient guarantee of the free and full
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exercise of human rights.”
227.
As regards specifically the right to property over their territory, the mere abstract
recognition of the right to community property of indigenous and tribal peoples does not suffice; rather,
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the states must adopt concrete measures to ensure it is observed in practice. In the words of the Court,
“merely abstract or juridical recognition of indigenous lands, territories, or resources, is practically
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meaningless if the property is not physically delimited and established.” As affirmed by the IACHR and
the Court, under Article 21 it is necessary for the statutory and constitutional provisions that recognize the
right of the members of indigenous communities to their ancestral territory be translated into the
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I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.
Judgment of August 31, 2001. Series C No. 79, para. 153.
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IACHR, Democracy and Human Rights Venezuela, 2009. Doc. OEA/Ser.L/V/II, Doc. 54, December 30, 2009, para.
1062. See also: IACHR, Report on Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia.
Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, paras. 220, 297 - Recommendation 4. IACHR, Follow-up Report to the Report on
Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40,
August 7, 2009, paras. 134, 149.
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See, among others: IACHR, Democracy and Human Rights in Venezuela, 2009. Doc. OEA/Ser.L/V/II, Doc. 54,
December 30, 2009, paras. 1052-1061. IACHR, Report on Access to Justice and Social Inclusion: The Road towards Strengthening
Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, paras. 218, 219. IACHR, Arguments before the Inter-American
Court of Human Rights in the case of Yakye Axa v. Paraguay. Referred to in: I/A Court H.R.. Case of the Yakye Axa Indigenous
Community v. Paraguay. Merits, Reparations and Costs. Judgment of June 17, 2005. Series C No. 125, para. 120(b). See
also: IACHR, Fifth Report on the Situation of Human Rights in Guatemala. Doc. OEA/Ser.L/V/II.111, Doc. 21 rev., April 6, 2001,
para. 36. IACHR, Third Report on the Situation of Human Rights in Paraguay. Doc. OEA/Ser./L/VII.110, Doc. 52, March 9, 2001,
para. 28.
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I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.
Judgment of March 29, 2006. Series C No. 146, para. 167. I/A Court H.R.. Case of the Pueblo Bello Massacre v. Colombia. Merits,
Reparations and Costs. Judgment of January 31, 2006. Series C No. 140, para. 142.
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I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment
of June 17, 2005. Series C No. 125, para. 141.
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I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment
of June 17, 2005. Series C No. 125, para. 143.