26
well as their communal concept of ownership, prompted the Court to apply to the tribal
Moiwana community its jurisprudence regarding indigenous peoples and their right to
communal property under Article 21 of the Convention.78
86.
The Court sees no reason to depart from this jurisprudence in the present case.
Hence, this Tribunal declares that the members of the Saramaka people are to be
considered a tribal community, and that the Court’s jurisprudence regarding indigenous
peoples’ right to property is also applicable to tribal peoples because both share distinct
social, cultural, and economic characteristics, including a special relationship with their
ancestral territories, that require special measures under international human rights law in
order to guarantee their physical and cultural survival.
B.
THE RIGHT OF MEMBERS OF TRIBAL PEOPLES TO THE USE AND ENJOYMENT OF COMMUNAL
PROPERTY IN ACCORDANCE WITH
ARTICLES 21, 1.1, AND 2 OF THE AMERICAN CONVENTION
87.
The Court will now address whether Article 21 of the American Convention
recognizes the rights of members of tribal peoples to the use and enjoyment of communal
property.
B.1) Right to communal property under Article 21 of the American Convention
88.
This Court has previously addressed this issue and has consistently held that:
the close ties the members of indigenous communities have with their traditional lands and
the natural resources associated with their culture thereof, as well as the incorporeal elements
deriving there from, must be secured under Article 21 of the American Convention.79
89.
Likewise, in the Mayagna case, the Court considered that “Article 21 of the
Convention protects the right to property[,] which includes, among others, the rights of
members of […] indigenous communities within the framework of communal property.”80
Similarly, in the Sawhoyamaxa case, the Court considered “that indigenous communities
might have a collective understanding of the concepts of property and possession, in the
sense that ownership of the land ‘is not centered on an individual, but rather on the group
and its community.’”81 Moreover, the Court held in the Yakye Axa case that “both the
private property of individuals and communal property of the members of […] indigenous
communities are protected by Article 21 of the American Convention.”82
90.
The Court’s decisions to this effect have all been based upon the special relationship
that members of indigenous and tribal peoples have with their territory, and on the need to
protect their right to that territory in order to safeguard the physical and cultural survival of
such peoples. In this sense, the Court has declared that:
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, [their relationship with] the land is not merely a matter
78
Cf. Case of the Moiwana Community, supra note 77, para. 133.
Case of the Indigenous Community Sawhoyamaxa, supra note 75, para. 118. Cf. also Case of the
Indigenous Community Yakye Axa, supra note 75, para. 137.
80
Case of The Mayagna (Sumo) Awas Tingni Community, supra note 49, para. 148.
81
Case of the Indigenous Community Sawhoyamaxa, supra note 75, para. 120 (quoting Case of The
Mayagna (Sumo) Awas Tingni Community, supra note 49, para. 149).
82
Case of the Indigenous Community Yakye Axa, supra note 75, para. 143.
79
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