29 C. THE PROPERTY RIGHTS OF THE MEMBERS OF THE SYSTEM OF COMMUNAL PROPERTY ARTICLES 1(1) AND 2 THEREOF) (ARTICLE 21 SARAMAKA PEOPLE DERIVED FROM CONVENTION IN CONJUNCTION OF THE THEIR WITH 97. Having declared that the American Convention recognizes the right of the members of the Saramaka people to the use and enjoyment of property in accordance with their system of communal property, the Court will now proceed to analyze whether the State has adopted an appropriate framework to give domestic legal effect to this right. 98. This Court, in the Moiwana case, already addressed the general issue regarding communal property rights of indigenous and tribal peoples in Suriname. There, the Court held that the State did not recognize such peoples a collective right to property.94 The Court observes that such conclusion is further supported by a variety of international bodies and organizations that have also addressed this issue. The United Nations Committee on the Elimination of Racial Discrimination,95 the United Nations Human Rights Committee,96 and the United Nations Commission on Human Rights' Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people97 have all observed that Suriname does not legally recognize the rights of members of indigenous and tribal peoples to their communal land, territories, and resources. 99. The State also acknowledged that its domestic legal framework does not recognize the right of the members of the Saramaka people to the use and enjoyment of property in accordance with their system of communal property, but rather a privilege to use land. Nevertheless, the State provided four alleged reasons as to why it should not be held accountable for this in the present case. First, the State asserted that the lack of clarity regarding the land tenure system of the Saramaka people, particularly regarding who owns the land, presents a practical problem for State recognition of their right to communal property. Second, certain “complexities and sensitivities” regarding the issue of collective rights has not permitted the State to legally recognize such rights. The State suggested that legislation providing for “special treatment” for indigenous and tribal groups raises questions of State sovereignty and discrimination with regard to the rest of the population. Thirdly, the State argued that judge-made law could recognize rights to communal property, but the members of the Saramaka people have refused to apply to domestic courts for said recognition. Finally, the State argued that its domestic legislation recognizes an “interest”, 94 Cf. Case of the Moiwana Community, supra note 77, paras. 86.5 and 130. Cf. UNCERD, Consideration of Reports submitted by States Parties under Article 9 of the Convention, Concluding Observations on Suriname, supra note 43, para. 11 (case file of appendices to the representatives’ brief, appendix 4.2, folios 1487). 96 Cf. UNHRC, Consideration of Reports submitted by States Parties under Article 40 of the Covenant, Concluding observations on Suriname, supra note 42, para. 21 (expressing concern “at the lack of legal recognition and guarantees for the protection of indigenous and tribal rights to land and other resources”, and recommending that Suriname “guarantee to members of indigenous communities the full enjoyment of all the rights recognized by article 27 of the Covenant, and adopt specific legislation for this purpose”) (case file of appendices to the representatives’ brief, appendix 4.3, folios 1495-1496). 97 Cf. U.N., Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, submitted in accordance with Commission resolution 2001/65 (Fifty ninth session), U.N. Doc. E/CN.4/2003/90, January 21, 2003, para. 21 (explaining that, “[l]egally, the land they occupy is owned by the State, which can issue land property grants lo private owners. Indigenous and tribal lands, territories and resources are not recognized in law. […] Despite petitions to the national Government and the InterAmerican system of protection of human rights (Commission and Court), the indigenous and Maroon communities have not received the protection they require”). The Inter-American Development Bank further supported this analysis in its August 2006 study on indigenous peoples and maroons in Suriname. Said study states that “Surinamese law does not recognize and protect the traditional land tenure systems of indigenous and tribal peoples, or their special relationship with the forest. All land and all natural resources are considered to be owned by the State”. Cf. Inter-American Development Bank, Indigenous Peoples and Maroons in Suriname, August 2006 (merits, volume II, folio 567). 95