Awas Tingni Decision Excerpt
Unofficial English Translation
of Selected Paragraphs of the
Judgment of the
Inter-American Court of Human Rights
(courtesy of Indian Law Resource Center)
In the case of The Mayagna (Sumo) Indigenous
Community of Awas Tingni
v. the Republic of Nicaragua
Issued 31 August 2001
Reasoning of the Court,
142. Article 21 of the American Convention establishes that:
1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society.
2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.
3. Usury and any other form of exploitation of man by man shall be prohibited by law.143. Article 21 of the American Convention recognizes the right to private property. In this respect it establishes: a) that "everyone has the right to the use and enjoyment of his property"; b) that such use and enjoyment may be subordinated, by decree of law, to the "interest of society"; c) that a person may be deprived of his property for reasons of "public utility or social interest, and in the cases and according to the forms established by law"; and, d) that such deprivation of property will be permitted only upon payment of just compensation.
144. "Property" can be defined as those material goods capable
of being acquired, as well as all rights that can be deemed
to make up the assets of a person; this concept encompasses all
movable and immovable goods, tangible and intangible goods as well as any
other intangible object to which a value can be assigned.
145. During the study and deliberation of the preparatory work
for the American Convention on Human Rights, the phrase "everyone has the
right to private property, but the law may subordinate such use
and enjoyment to the interest of society" was replaced by that of "everyone
has the right to the use and enjoyment of his property. The law
may subordinate such use and enjoyment to the interest of society." That
is, it was deemed more appropriate to make reference to the use and enjoyment
of property in place of "private property."
146. The terms of an international human rights treaty have autonomous
meaning, such that they may not be limited by the
meaning attributed to them under domestic law. Also, international
human rights treaties are living instruments, the interpretation of which
should be adapted to changes over time, and, in particular, to present-day
conditions.
147. To that end, article 29(b) of the Convention establishes
that no provision can be interpreted by "restricting the
enjoyment or exercise of any right or freedom recognized by virtue
of the laws of any State Party or by virtue of another convention to which
one of the said states is a party."
148. Through an evolutional interpretation of the international
instruments for the protection of human rights, taking into account the
applicable norms of interpretation and, in conformity with article 29(b)
of the Convention--which prohibits a
restrictive interpretation of those rights--, this Court deems that
article 21 of the Convention protects the right to property in thesense
that it comprises, among other things, the rights of members of indigenous
communities within the framework of communal possession, a form of property
also recognized by Nicaragua's Political Constitution.
149. Given the characteristics of the instant case, it is necessary
to understand the concept of property in indigenous communities. Among
indigenous communities, there is a communal tradition as demonstrated by
their communal form of collective ownership of their lands, in the sense
that ownership is not centered in the individual but rather in the group
and in the community. By virtue of the fact of their very existence,
indigenous communities have the right to live freely on their own territories;
the close relationship that the communities have with the land must be
recognized and understood as a foundation for their cultures, spiritual
life, cultural integrity and economic survival. For indigenous communities,
the relationship with the land is not merely one of possession and production,
but also a material and spiritual element that they should fully enjoy,
as well as a means through which to preserve their cultural heritage and
pass it on to future generations.
150. In respect of this, Law number 28, published October 30, 1987 in The Gazette No. 238, Official Daily of the Republic of Nicaragua, which incorporates the Statute of Autonomy of the Regions of the Nicaraguan Atlantic Coast, declares in article 36 that:
Communal property is comprised of the land, water, and forest which have traditionally belonged to the Communities of the Atlantic Coast, and they are subject to the following provisions:
1. Communal lands are inalienable; they cannot be gifted, sold, seized, or encumbered, and are imprescriptible.
2. The Communities' inhabitants have the right to work parcels on the communal property and to the usufructory rights of the resources generated by that work.151. The customary law of indigenous peoples should especially be taken into account because of the effects that flow from it. As a product of custom, possession of land should suffice to entitleindigenous communities without title to their land to obtain official recognition and registration of their rights of ownership.
152. As already mentioned, Nicaragua recognizes communal property
of indigenous peoples, but it has not established the specific procedure
for putting into practice that recognition, and hence there has been no
issuance of titles of this type since
1990. Additionally, in the instant case, the State has not opposed
the Awas Tingni Community's proposition that it should be declared a proprietor,
although there is dispute as to the size of area of that claim.
153. The Court deems that, consistent with the terms of article 5 of the Political Constitution of Nicaragua, the members of the Awas Tingni Community have a communal property right over the lands they currently inhabit, without prejudice to the rights of the neighboring indigenous communities. However, the Court emphasizes that the limits of the territory over which that property right exists have not been effectively delimited and demarcated by the State. This situation has created a climate of permanent uncertainty among the members of the Awas Tingni Community inasmuch as they do not know with certainty the geographic extension of their right of communal property, and consequently they do not know up to what point they may freely use and enjoy the corresponding resources. In this context, the Court considers that the members of the Awas Tingni Community have the right that the State,
a) delimit, demarcate, and title the territory of the Community's property; andBecause of the reasons stated, and keeping in mind the criterion adopted by the Court in its application of article 29(b) of the Convention (supra , para. 148), the Court finds that, in light of article 21 of the Convention, the State has violated the right of the members of the Awas Tingni Mayagna Community to the use and enjoyment of their property, by not delimiting and demarcating their communal property, and by authorizing concessions to third parties for the exploitation of the land and natural resources in an area that, wholly or partially, corresponds to the lands that should be delimited, demarcated, and titled in their favor.b) cease, until this official delimitation, demarcation and titling is performed, acts which could cause agents of the State, or third parties acting with its acquiescence or tolerance, to affect the existence, value, use, or enjoyment of the resources located in the geographic area in which the Community members live and carry out their activities.
154. In addition, it must be remembered that, as established
by this Tribunal, and grounded in article 1(1) of the American Convention,
the State is obligated to respect the rights and liberties recognized in
the Convention and organize its public administrative bodies to guarantee
the persons under its jurisdiction the free and full exercise of their
human rights. According to the rules of international State responsibility
as applicable to International Human Rights Law, the act or omission of
any public authority, regardless of its ranking within the hierarchy of
the domestic system, constitutes an act imputable to the State, compromising
its responsibility in the terms envisioned by the American Convention.
155. For the above reasons, the Court concludes that the State violated article 21 of the American Convention, to the detriment of the members of the Mayagna (Sumo) Community of Awas Tingni, in connection with articles 1(1) and 2 of the Convention.
* * *
164. For the preceding reason, in conformity with article 2 of the American Convention on Human Rights, this Court holds that the State must adopt measures of a legislative, administrative, and whatever other character necessary to create an effective mechanism for official delimitation, demarcation, and titling of the indigenous communities' properties, in accordance with the customary law, values, usage, and customs of these communities. Additionally, as a consequence of the violation of the rights contained in the Convention shown in this case, the Court orders that the State proceed to officially delimit, demarcate, and title the lands belonging to the Awas Tingni Community within a maximum period of 15 months, with the full participation of, and considering the customary law, values, usage, and customs of, the Community. Until such official delimitation, demarcation, and titling has been performed on the lands of the Community members, Nicaragua must cease acts which could cause agents of the State, or third parties acting with its acquiescence or tolerance, to affect the existence, value, use or enjoyment of the property located in the geographic area the Community of Awas Tingni inhabits and in which it carries out its activities.
* * *
XII
Points of Resolution
173. NOW, THEREFORE,
THE COURT
By seven votes to one,
1. Declares that the State violated the right to judicial protection
as contained in article 25 of the American Convention on Human Rights,
to the detriment of the members of the Mayagna (Sumo) Community of Awas
Tingni, in conjunction with
articles 1(1) and 2 of the Convention, as set forth in paragraph 139
of this Judgment.
Judge ad hoc Montiel Argüello dissenting.
By seven votes to one,
2. Declares that the State violated the right to property as contained in article 21 of the American Convention on Human Rights to the detriment of the members of the Mayagna (Sumo) Community of Awas Tingni, in conection with articles 1(1) and 2 of the Convention, as set forth in paragraph 155 of this Judgment.
Judge ad hoc Montiel Argüello dissenting.
Unanimously,
3. Decides that the State must adopt within its domestic legal system,
in conformity with article 2 of the American Human Rights Convention, measures
of a legislative, administrative, and whatever other character necessary
to create an effective
mechanism for official delimitation, demarcation, and titling of the
indigenous communities' properties, in accordance with the customary law,
values, usage and customs of these communities, as set forth in paragraph
138 and 164 of this Judgment.
Unanimously,
4. Decides that the State shall officially recognize, demarcate, and
issue title for those lands belonging to the members of the Mayagna (Sumo)
Community of Awas Tingni and, until this official delimitation, demarcation,
and titling is performed, abstain from acts which could cause agents of
the State, or third parties acting with its acquiescence or tolerance,
to affect
the existence, value, use or enjoyment of that property located in
the geographic area in which members of the Mayagna (Sumo) Community of
Awas Tingni live and carry out their activities, as set forth in paragraphs
153 and 164 of this Judgment.
Unanimously,
5. Declares that this Judgment represents, in and of itself, a form of reparation for the members of the Mayagna (Sumo) Community of Awas Tingni.
By seven votes to one,
6. Decides, in equity, that the State should invest, as reparation for moral damages, within a period of 12 months, the sum total of US$ 50,000 (fifty thousand dollars of the United States of America) in public works and services in the collective interest and for the benefit of the Mayagna (Sumo) Community of Awas Tingni, in accord with and under the supervision of the Inter-American Commission of Human Rights, as set forth in paragraph 167 of this Judgment.
Judge ad hoc Montiel Argüello dissenting.
By seven votes to one,
7. Decides, in equity, that the State should pay the members of the Mayagna (Sumo) Community of Awas Tingni, through the Inter-American Commission on Human Rights, the sum total of US$30,000 (thirty thousand dollars of the United States of America) for expenses and costs incurred by Community members and their representatives, both in domestic proceedings as well as international proceedings before the Inter-American system for the protection of human rights, as set forth in paragraph 169 of this Judgment.
Judge ad hoc Montiel Argüello dissenting.
Unanimously,
8. Decides that the State should submit, every six months from the date
of the notification of this Judgment, a report to the Inter-American Court
of Human Rights on measures taken in compliance herewith.
Unanimously,
9. Decides that it shall supervise compliance with this Judgment and that this case shall be deemed to be closed once the State has given full implementation to the measures set forth in this Judgment.
Judges Cançado Trinidade, Pachedo Gómez y Abreu Burelli issued joint concurring opinions; Judges Salgado Pesantes and García Ramírez issued concurring opinions; and Judge Montiel Argüello issued a dissenting opinion.
Done in Spanish and English, the Spanish text being authentic, in San José, Costa Rica, on this thirty-first day of August, 2001.
Antônio A. Cançado Trindade
PresidentMáximo Pacheco Gómez
Hernán Salgado Pesantes
Oliver H.Jackman
Alirio Abreu Burelli
Sergio García Ramírez
Carlos Vicente de Roux Rengifo
Alejandro Montiel Argüello
Judge ad hoc