5
7.
As the Court has set forth in this regard,
[a]mong indigenous peoples there is a communitarian tradition regarding a communal
form of collective property of the land, in the sense that ownership of the land is not
centered on an individual but rather on the group and its community. Indigenous
groups, by the fact of their very existence, have the right to live freely in their own
territory; 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, relations to the land are not
merely a matter of possession and production but a material and spiritual element that
they must fully enjoy, even to preserve their cultural legacy and transmit it to future
generations.3
8.
It is fitting to recall that the Court determined that:
[t]he right to life is a fundamental human right, and the exercise of this right is essential
for the exercise of all other human rights. If it is not respected, all rights lack meaning.
Owing to the fundamental nature of the right to life, restrictive approaches to it are
inadmissible. In essence, the fundamental right to life includes, not only the right of
every human being not to be deprived of his life arbitrarily, but also the right that he will
not be prevented from having access to the conditions that guarantee a dignified
existence. States have the obligation to guarantee the creation of the conditions
required in order that violations of this basic right do not occur and, in particular, the
duty to prevent its agents from violating it.4
9.
The purpose of provisional measures, in International Human Rights Law, is
to effectively protect fundamental rights, inasmuch as they seek to avoid irreparable
damage to persons. Said measures can also be applied during the stage in which
compliance with the judgment is overseen;5 in the instant case it is probable that
irreparable damage will occur that it will preclude faithful and full compliance with
the judgment on the merits and reparations in the case of the Mayagna Community,
for which reason adoption of said measures is in order.
10.
The State of Nicaragua reached an agreement with the representatives of the
Community to grant “provisional recognition of the Community’s rights to use,
occupation, and exploitation subsequent to carrying out the diagnostic study, along
the lines of the proposal made by the Community and taking into account the results
of the diagnostic study;” and said recognition has not been granted, and therefore it
is necessary to protect the geographical area where the members of the Mayagna
(Sumo) Awas Tingni Community live and conduct their activities.
THEREFORE:
THE INTER-AMERICAN COURT OF HUMAN RIGHTS
by virtue of the authority conferred by Article 63(2) of the American Convention on
Human Rights and Article 25 of its Rules of Procedure,
Case. Reparations (Art. 63(1) Inter-American Convention on Human Rights). September 10, 1993
Judgment. Series C No. 15, para. 62.
3
I.A. Court of H.R. , Mayagna (Sumo) Awas Tingni Community Case, supra note 1, para. 149.
4
I.A. Court of H.R., "Street Children” Case (Villagrán Morales et al.). November 19, 1999
Judgment. Series C No. 63, para. 144.
5
See. I.A. Court of H.R., Loayza Tamayo Case (Provisional Measures), February 3, 2001 Order.
Series E No. 3, pp. 241-255 and see Loayza Tamayo Case (Provisional Measures), December 13, 2000
Order of the President of the Inter-American Court of Human Rights. Series E No. 3, pp. 231-239.