69
norms, as well as to ensure due application of that remedy by its judicial
authorities.53
136.
Along these same lines, the Court has expressed that
[t]he general duty under article 2 of the American Convention involves adopting
protective measures in two directions. On the one hand, suppressing norms and
practices of any type that carry with them the violation of guarantees set forth in the
convention. On the other hand, issuing norms and developing practices which are
conducive to effective respect for such guarantees.54
137. As stated before, in this case Nicaragua has not adopted the adequate
domestic legal measures to allow delimitation, demarcation, and titling of indigenous
community lands, nor did it process the amparo remedy filed by members of the
Awas Tingni Community within a reasonable time.
138. The Court believes it necessary to make the rights recognized by the
Nicaraguan Constitution and legislation effective, in accordance with the American
Convention. Therefore, pursuant to article 2 of the American Convention, the State
must adopt in its domestic law the necessary legislative, administrative, or other
measures to create an effective mechanism for delimitation and titling of the
property of the members of the Awas Tingni Mayagna Community, in accordance
with the customary law, values, customs and mores of that Community.
139. From all the above, the Court concludes that the State violated article 25 of
the American Convention, to the detriment of the members of the Mayagna (Sumo)
Awas Tingni Community, in connection with articles 1(1) and 2 of the Convention.
IX
VIOLATION OF ARTICLE 21
Right to Private Property55
Arguments of the Commission
140.
Regarding article 21 of the Convention, the Commission argued that:
a)
the Mayagna Community has communal property rights to land and
natural resources based on traditional patterns of use and occupation of
ancestral territory. There rights “exist even without State actions which
specify them”. Traditional land tenure is linked to a historical continuity, but
not necessarily to a single place and to a single social conformation
throughout the centuries.
The overall territory of the Community is
possessed collectively, and the individuals and families enjoy subsidiary rights
of use and occupation;
53
cfr. Villagrán Morales et al. case ( “Street Children” case). Judgment of November 19, 1999. C
Series No. 63, para. 237; also see, Ivcher Bronstein case, supra note 9, para. 135; and Cantoral
Benavides case, supra note 48, para. 163.
54
cfr. Baena Ricardo et al. case, supra note 9, para. 180; and Cantoral Benavides case, supra note
48, para. 178.
55
There is no substantial variation among the Spanish-, English- Portuguese-, and French-language
text for article 21 of the Convention. The only difference is that the epigraph in the English-language text
reads “Right to Property” while in the other three languages it reads “Right to Private Property”.