73
j)
the logging concession granted to the SOLCARSA corporation caused
no damage to the Mayagna Community and that firm did not begin logging
activities derived from the concession;
k)
the “Forest Management Agreement” signed by the Community, the
MADENSA corporation, and the authorities of MARENA, “is not a valid
precedent to prejudge the legitimacy of the claim to communal ownership by
the Mayagna Community. Actions by MARENA -due to its lack of competence
in the matter- cannot be used as an allegation to demand recognition of the
legitimacy of indigenous land titling claims, because the competent institution
to receive and decide on such claims is INRA, currently under the Ministry of
Agriculture and Forestry (MAF). The Commission itself accepts that in the
aforementioned document “Nicaragua did not recognize ancestral possession,
[but rather] simply committed to facilitating the titling of ancestral lands,
which presupposed that a claim be submitted to the administrative,
jurisdictional authority, and an effective demonstration of ancestrality”; and
l)
there is a legal framework and a competent authority to conduct land
titling for indigenous communities.
Nicaragua has promoted important
initiatives for titling of communal lands of indigenous communities of the
Atlantic Coast.
*
*
*
Considerations of the Court
142.
Article 21 of the Convention declares 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
by prohibited by law.
143. Article 21 of the American Convention recognizes the right to private
property. In this regard, it establishes: a) that “[e]veryone has the right to the use
and enjoyment of his property”; b) that such use and enjoyment can be subordinate,
according to a legal mandate, to “social interest”; c) that a person may be deprived
of his or her property for reasons of “public utility or social interest, and in the cases
and according to the forms established by law”; and d) that when so deprived, a just
compensation must be paid.
144. “Property” can be defined as those material things which can be possessed, as
well as any right which may be part of a person’s patrimony; that concept includes
all movables and immovables, corporeal and incorporeal elements and any other
intangible object capable of having value.56
56
cfr. Ivcher Bronstein case, supra note 9, para. 122.