Indigenous peoples’ possession and special relation with their ancestral landsin the Interamerican Human Rights System

Abstract

In 2001, the Inter-American Court of Human Rights affirmed that the right of indigenous peoples to communal property of their ancestral lands was protected by Article 21 of the American Convention on Human Rights. Since then, there have been many occasions on which the Court has had to pronounce itself, delimiting the content of the right and the positive obligations that, for the States, derive from it. In this doctrine, the possession of land plays a very relevant role, since its starting point is to equate the ancestral possession of land to a property title. However, it is not essential. Thus, claims of dispossession must be addressed, provided that the ancestral character of the land is proven, either through previous possession or through the maintenance of a special relationship between the community and the land. In the process of delimitation, demarcation and titling of lands, the essential proof is the possession of the land, but not only, since the delimitation may extend to lands whose current possession does not belong to the indigenous people. It is the special relationship with the land that draws the contours of this communal right.