65
120. Decree No. 16-96 of August 23, 1996, pertaining to the creation of the
National Commission for the Demarcation of the Lands of the Indigenous
Communities of the Atlantic Coast, established that “the State recognizes communal
forms of property of the lands of the Communities of the Atlantic Coast”, and pointed
out that “it is necessary to establish an appropriate administrative body to begin the
process of demarcation of the traditional lands of the indigenous communities”. To
this end, the decree entrusts that national commission, among other functions, with
that of identifying the lands which the various indigenous communities have
traditionally occupied, to conduct a geographical analysis process to determine the
communal areas and those belonging to the State, to prepare a demarcation project
and to seek funding for this project.
121. Law No. 14, published on January 13, 1986 in La Gaceta No. 8, Official
Gazette of the Republic of Nicaragua, called “Amendment to the Agrarian Reform
Law”, establishes in article 31 that:
The State will provide the necessary lands for the Miskito, Sumo, Rama, and other
ethnic communities of the Atlantic of Nicaragua, so as to improve their standard of
living and contribute to the social and economic development of the [N]ation.
122. Based on the above, the Court believes that the existence of norms
recognizing and protecting indigenous communal property in Nicaragua is evident.
123. Now then, it would seem that the procedure for titling of lands occupied by
indigenous groups has not been clearly regulated in Nicaraguan legislation.
According to the State, the legal framework to carry out the process of land titling for
indigenous communities in the country is that set forth in Law No. 14, “Amendment
to the Agrarian Reform Law”, and that process should take place through the
Nicaraguan Agrarian Reform Institute (INRA). Law No. 14 establishes the procedures
to guarantee property to land for all those who work productively and efficiently, in
addition to determining that property may be declared “subject to” agrarian reform if
it is abandoned, uncultivated, deficiently farmed, rented out or ceded under any
other form, lands which are not directly farmed by their owners but rather by
peasants through medieria, sharecropping, colonato, squatting, or other forms of
peasant production, and lands which are being farmed by cooperatives or peasants
organized under any other form of association. However, this Court considers that
Law No. 14 does not establish a specific procedure for demarcation and titling of
lands held by indigenous communities, taking into account their specific
characteristics.
124. The rest of the body of evidence in the instant case also shows that the State
does not have a specific procedure for indigenous land titling. Several of the
witnesses and expert witnesses (Marco Antonio Centeno Caffarena, Galio Claudio
Enrique Gurdián Gurdián, Brooklyn Rivera Bryan, Charles Rice Hale, Lottie Marie
Cunningham de Aguirre, Roque de Jesús Roldán Ortega) who rendered testimony to
the Court at the public hearing on the merits in the instant case (supra paras. 62 and
83), expressed that in Nicaragua there is a general lack of knowledge, an uncertainty
as to what must be done and to whom should a request for demarcation and titling
be submitted.
125. In addition, a March, 1998 document, “General diagnostic study on land
tenure in the indigenous communities of the Atlantic Coast”, prepared by the Central
American and Caribbean Research Council and supplied by the State in the present
case (supra paras. 64, 65, 80 and 96), recognizes “[…]lack of legislation assigning