Territory Collective Right Of Indigenous Communities And Its Relation With The Right To Free Determination

An Analysis of the Interamerican System of Human Rights

Abstract

In the jurisprudential framework of the ISHR, the territory right of indigenous peoples is understood as a right from which other depends, such as life, health, physical integrity, cultural identity and religious liberty. This is because the relation between indigenous peoples and land/territory is not just a matter of possession or production, but the material and spiritual element of reproduction of their life. In coherence with this conception, the SIDH has conceived the territory right as a pre-condition of indigenous people’s self-determination right. In both cases, the recognition of the character of ‘people’ to the so-called “ethnic minorities” was a central moment.

Analyzing both from the legislative and the jurisprudential perspectives, this article addresses the evolution of the property collective right protection for ancestral territories, in its close relation with the people’s right to free determination, from the historical reconstruction of the political demands of the International Indigenous Movement that got stronger in the seventies. For this purpose, I analyze the legislative evolution of these categories in the ILO conventions 107 and 169, the Twin Covenants, the United Nations Declaration on the Rights of Indigenous Peoples; the American Declaration on the Rights of Indigenous Peoples, and in the UN Study Report on the Problem of the Discrimination Against Indigenous Populations. From the jurisprudential dimension, I take as references the decisions of the cases Miskito Vs. Nicaragua, Yanomami Vs. Brasil, Awuas Tingni Vs. Nicaragua, Yakye Axa Vs. Paraguay; Sawhoyamaxa Vs. Paraguay, Xakmok Kásek Vs. Paraguay and Saramaka Sarayaku People Vs. Ecuador.