4
historical and cultural processes. Indeed, it and the other forms of property and land
tenure fit into the broad and pluralistic universe of rights that the inhabitants of
various American countries enjoy. This set of rights has spread because of shared
basic beliefs --the core idea of the use and exploitation of goods-, although there are
significant differences as well –especially apropos the final disposition of those goods.
But, taken together, these laws and rights are the property system that most of our
countries have in common. To ignore the idiosyncratic versions of the right to use
and enjoy property, recognized in Article 21 of the American Convention, and to
pretend that there is only one way to use and enjoy property, is tantamount to
denying protection of that right to millions of people, thereby withdrawing from them
the recognition and protection of essential rights afforded to other people. Far from
ensuring the equality of all persons, this would create an inequality that is utterly
antithetical to the principles and to the purposes that inspire the hemispheric system
for the protection of human rights.
14.
In its analysis of the matter subject to its jurisdiction, the Inter-American
Court regarded the rights to use and enjoy property, protected under Convention
Article 21, from a perfectly valid perspective, that of the members of the indigenous
communities. In my opinion, the approach taken for purposes of the present
judgment does not in any way imply a disregard or denial of other related rights that
differ in nature, such as the collective rights so frequently referenced in the domestic
and international instruments that I have cited in this opinion. It must be recalled
that individual subjective rights flow from and are protected by these community
rights, which are an essential part of the juridical culture of many indigenous peoples
and, by extension, of their members. In short, there is an intimate and inextricable
link between individual and collective rights, a linkage that is a condition sine qua
non for genuine protection of persons belonging to indigenous ethnic groups.
15.
During the hearing held to receive evidence on the merits of the case that the
Court has now decided, opinions were proffered that alluded directly to this very
point. In his verbal opinion, summarized in the Judgment, expert witness Rodolfo
Stavenhagen Gruenbaum pointed out that “(i)n certain historical contexts, the rights
of the human person can be fully guaranteed and exercised only by recognizing the
rights of the collectivity and of the community to which that person has belonged
since birth and of which he is part, a community that affords him the elements
necessary to be able to feel self-fulfilled as a human being, which also means a social
and cultural being.”
16.
In the history of the countries of modern-day Latin America, collective
expressions of indigenous law have been attacked time and time again. These
attacks have directly violated the individual rights of the members of the
communities and the rights of the communities as a whole. Another expert heard by
the Court, Roque de Jesús Roldán Ortega, spoke to this aspect of the issue. In the
opinion he gave before the Court, he stated the following: “The experience in Latin
America with the communal property issue is very telling. For almost 180 years, the
policy of the Latin American States was to liquidate forms of communal ownership
and the autonomous forms of government of the indigenous peoples, to annihilate
them not just culturally but physically as well.”
17.
The judgment of the Inter-American Court of Human Rights in the Mayagna
(Sumo) Awas Tingni Community Case contributes to the recognition of certain
specific juridical relationships that together make up the body of law shared by a
good portion of the inhabitants of the Americas, a body of law being increasingly
accepted by and recognized in domestic laws and international instruments. The