Jurisprudential Developments and Adjudication of Indigenous Peoples’ Rights

Abstract

In recent years, the Inter-American Court of Human Rights (“IACrtHR”) has developed an innovative jurisprudence that has reaffirmed and further developed the right of indigenous peoples as an integrative part of the corpus juris of the international human rights law (“ihrl”). In fact, through a dynamic, systemic, evolutive and effective interpretation of the American Convention on Human Rights (“achr”), the regional tribunal has expanded the scope of protection of Article 21 achr (Right to Property) in a manner that includes the protection of the special relationship that indigenous peoples have with their traditional lands, territories and natural resources. Based on this interpretative development, the IACrtHR has further expanded the protection of indigenous peoples’ communal property to guarantee their right to cultural identity and to a dignified life, that is, to live in accordance with their own cultural traditions and understanding of dignity. In this sense, specific safeguards against unjustified restrictions on the right to property, that could amount to a denial of the cultural survival of indigenous peoples, were jurisprudentially identified by the regional tribunal. This paper critically analyses the legal regime applicable for the protection of the right to traditional communal property of indigenous and tribal peoples in the Americas, as developed by the IACrtHR. In particular, it pays special attention to the methods of interpretation applied by the regional tribunal and the manner that has referred to the corpus juris of international human rights law that specifically protects and guarantees the rights of indigenous peoples.