74
145. During the study and consideration of the preparatory work for the American
Convention on Human Rights, the phrase “[e]veryone has the right to the use and
enjoyment of private property, but the law may subordinate its use and enjoyment
to public interest” was replaced by “[e]veryone has the right to the use and
enjoyment of his property. The law may subordinate such use and enjoyment to the
social interest.” In other words, it was decided to refer to the “use and enjoyment of
his property” instead of “private property”.57
146. The terms of an international human rights treaty have an autonomous
meaning, for which reason they cannot be made equivalent to the meaning given to
them in domestic law. Furthermore, such human rights treaties are live instruments
whose interpretation must adapt to the evolution of the times and, specifically, to
current living conditions.58
147. Article 29(b) of the Convention, in turn, establishes that no provision may be
interpreted as “restricting the enjoyment or exercise of any right or freedom
recognized by virtue of the laws of any State Party or by virtue of another convention
to which one of the said states is a party”.
148. Through an evolutionary interpretation of international instruments for the
protection of human rights, taking into account applicable norms of interpretation
and pursuant to article 29(b) of the Convention -which precludes a restrictive
interpretation of rights-, it is the opinion of this Court that article 21 of the
Convention protects the right to property in a sense which includes, among others,
the rights of members of the indigenous communities within the framework of
communal property, which is also recognized by the Constitution of Nicaragua.
149. Given the characteristics of the instant case, some specifications are required
on the concept of property in indigenous communities. Among indigenous peoples
there is a communitarian tradition regarding a communal form of collective property
of the land, in the sense that ownership of the land is not centered on an individual
but rather on the group and its community. Indigenous groups, by the fact of their
very existence, have the right to live freely in their own territory; the close ties of
indigenous people with the land must be recognized and understood as the
fundamental basis of their cultures, their spiritual life, their integrity, and their
economic survival. For indigenous communities, relations to the land are not merely
a matter of possession and production but a material and spiritual element which
they must fully enjoy, even to preserve their cultural legacy and transmit it to future
generations.
150. In this regard, Law No. 28, published on October 30, 1987 in La Gaceta No.
238, the Official Gazette of the Republic of Nicaragua, which regulates the Autonomy
Statute of the Regions of the Atlantic Coast of Nicaragua, states in article 36 that:
57
The right to private property was one of the most widely debated points within the Commission
during the study and appraisal of the preparatory work for the American Convention on Human Rights.
From the start, delegations expressed the existence of three ideological trends, i.e.: a trend to suppress
from the draft text any reference to property rights; another trend to include the text in the Convention
as submitted, and a third, compromise position which would strengthen the social function of property.
Ultimately, the prevailing criterion was to include the right to property in the text of the Convention.
58
cfr. The Right to Information on Consular Assisstance in the Framework of Guarantees for Due
Legal Process Advisory Opinion OC-16/99 of October 1, 1999. A Series No. 16, para. 114.