38
those resources necessary for their survival, said property rights, like many other rights
recognized in the Convention, are subject to certain limitations and restrictions. In this
sense, Article 21 of the Convention states that the “law may subordinate [the] use and
enjoyment [of property] to the interest of society”. Thus, the Court has previously held
that, in accordance with Article 21 of the Convention, a State may restrict the use and
enjoyment of the right to property where the restrictions are: a) previously established by
law; b) necessary; c) proportional, and d) with the aim of achieving a legitimate objective in
a democratic society.125 In accordance with this Article, and the Court’s jurisprudence, the
State will be able to restrict, under certain circumstances, the Saramakas’ property rights,
including their rights to natural resources found on and within the territory.
128. Furthermore, in analyzing whether restrictions on the property right of members of
indigenous and tribal peoples are permissible, especially regarding the use and enjoyment
of their traditionally owned lands and natural resources, another crucial factor to be
considered is whether the restriction amounts to a denial of their traditions and customs in
a way that endangers the very survival of the group and of its members. That is, under
Article 21 of the Convention, the State may restrict the Saramakas’ right to use and enjoy
their traditionally owned lands and natural resources only when such restriction complies
with the aforementioned requirements and, additionally, when it does not deny their
survival as a tribal people (supra paras. 120-122).126
E.2)
Safeguards against restrictions on the right to property that deny the survival
of the Saramaka people
129. In this particular case, the restrictions in question pertain to the issuance of logging
and mining concessions for the exploration and extraction of certain natural resources found
within Saramaka territory. Thus, in accordance with Article 1(1) of the Convention, in order
to guarantee that restrictions to the property rights of the members of the Saramaka people
by the issuance of concessions within their territory does not amount to a denial of their
survival as a tribal people, the State must abide by the following three safeguards: First,
the State must ensure the effective participation of the members of the Saramaka people,
in conformity with their customs and traditions, regarding any development, investment,
exploration or extraction plan (hereinafter “development or investment plan”)127 within
Saramaka territory. Second, the State must guarantee that the Saramakas will receive a
reasonable benefit from any such plan within their territory. Thirdly, the State must ensure
that no concession will be issued within Saramaka territory unless and until independent
and technically capable entities, with the State’s supervision, perform a prior environmental
and social impact assessment. These safeguards are intended to preserve, protect and
guarantee the special relationship that the members of the Saramaka community have with
their territory, which in turn ensures their survival as a tribal people.
125
Cf. Case of the Indigenous Community Yakye Axa, supra note 75, paras. 144-145 citing (mutatis mutandi)
Case of Ricardo Canese v. Paraguay. Merits, Reparations and Costs. Judgment of August 31, 2004. Series C No.
111, para. 96; Case of Herrera Ulloa v. Costa Rica. Preliminary Objections, Merits, Reparations and Costs.
Judgment of July 2, 2004. Series C No. 107, para. 127, and Case of Ivcher Bronstein v. Peru. Merits, Reparations
and Costs. Judgment of February 6, 2001. Series C No. 74. para. 155. Cf., also, Case of the Indigenous Community
Sawhoyamaxa, supra note 75, para. 137.
126
Cf., e.g. UNHRC, Länsman et al. v. Finland (Fifty-second session, 1994), Communication No. 511/1992,
U.N. Doc. CCPR/C/52/D/511/1994, November 8, 1994, para. 9.4 (allowing States to pursue development activities
that limit the rights of a minority culture as long as the activity does not fully extinguish the indigenous people’s
way of life).
127
By “development or investment plan” the Court means any proposed activity that may affect the integrity
of the lands and natural resources within the territory of the Saramaka people, particularly any proposal to grant
logging or mining concessions.
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