36
114. Moreover, on July 5, 2001, within the framework of the final presentation of the
measures carried out at the Garífuna Community of Triunfo de la Cruz, the INA prepared a
blueprint identifying four areas that make up the expansion request filed by the Community
of Triunfo de la Cruz (supra para. 110). Specifically, it mentions the areas: A1 of an extension
of around 408 hectares and that refers to the “area requested in expansion by the Community
of Triunfo de la Cruz, located within the expansion of the Urban area of Tela;” A2 of an
extension of around 155 hectares, which corresponds to the area requested in expansion
“adjacent to the mangrove of the Janneth Kawas park,” and “beyond the urban perimeter of
Tela;” A3 of an extension of around 33 hectares, which corresponds to the area requested in
expansion located within the Punta Izopo National Park, and A4 of an extension of around 45
hectares, which corresponds “to the area requested in expansion that covers part of the Punta
Izopo mountain and is located within the Punta Izopo National park”148 (infra Map Annex).
115. Similarly, in the chapter on Facts, it was confirmed that on September 27, 2001 the
INA approved the granting of a definitive title of full ownership over three plots of land that
cover 234 hectares, 48 areas, and 76.03 square meters, whose surface corresponds to areas
A2, A3, and A4 (infra Map Annex) (supra para. 70). On the other hand, through a special
agreement of September 19, 2001, the INA indicated that, “within the framework of
Convention 169 of the ILO, it acknowledges the ancestral property of the Garífuna Community
of Triunfo de la Cruz over plot A1,” reason for which “it undertakes the responsibility to carry
out a study regarding possession of the land in plot A1 obtained by people not belonging to
the community according to the blueprints prepared by the National Agrarian Institute on July
4, 2001” and that “[o]nce it determined the legality of the public deeds, had them annulled
by the competent judicial authority, and remediated, it would be allocated in favor of the
community.”149
116. The aforementioned allows the Court to reach several conclusions. First, from the
evidence presented it cannot be assumed that the Garífuna Community of Triunfo de la Cruz
presented domestic requests in reference to the territorial extension included in the Merits
Report and in the Brief of Pleadings and Arguments, namely 2840 hectares. Second, the
different requests filed by the Community throughout the years (1946, 1969, 1997, 1998,
and 2001) refer to significantly smaller territorial extensions, specifically: 380 hectares, 128
hectares, 600 hectares, and 126 hectares, that jointly do not add up to 2840 hectares. Third,
the Court points out that the request presented in January 2001 (supra para. 71) was not
based on the fact that the territory claimed was traditional, but instead that “due to the growth
in population it is necessary to expand [the] area [titled in 1993,] so its residents can have
access to the land in order to build their homes, but especially so they may cultivate it for
their subsistence and carry out other activities related to their idiosyncrasy and culture.”150
Fourth, the Court cannot ignore that the request related to the alleged 2840-hectare
traditional territory was presented for the first time before the bodies of the Inter-American
System of human rights, and after the issuing of the Admissibility Report (supra para. 2).
Finally, plot A1 of 408 hectares has been acknowledged as traditional territory by the INA,
but it was not allocated to the Community.
117. Due to all of the above, the Court concludes that it lacks sufficient evidentiary elements
to determine the actual extension of the traditional territory of the Garífuna Community of
Triunfo de la Cruz. Therefore, to the effect of analyzing the State’s international responsibility
regarding the Community’s right to collective property, it will be considered that the traditional
territory of the Garífuna Community of Triunfo de la Cruz covers at least the following areas:
148
National Agrarian Institute, Memorandum of July 5, 2001 (evidence file, folios 1938 and 1941).
149
National Agrarian Institute, Special Agreement of September 19, 2001 (evidence file, folio 1974).
150
Request expansion of title presented by the INA of January 22, 2001 (evidence file, folio 1761).